<PAGE> 1
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 27, 1996
--------------------------
-----------------------------
NEXTEL COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 0-19656 36-3939651
(State or other jurisdiction of (Commission File (I.R.S. Employer
incorporation) Number) Identification No.)
1505 FARM CREDIT DRIVE, SUITE 100, McLEAN, VIRGINIA 22102
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (703) 394-3000
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
Nextel Communications, Inc. ("Nextel"), Nextel Finance Company, a
wholly owned subsidiary of Nextel ("NFC"), and certain subsidiaries
of Nextel have entered into definitive agreements which became effective on
September 30, 1996 with respect to the previously announced proposed credit
facility arranged by Chase Securities Inc., J.P. Morgan Securities Inc. and
Toronto-Dominion Securities (USA), Inc. (the "Bank Credit Facility") and with
respect to an amendment, restatement and consolidation of the previously
existing financing arrangements with Motorola, Inc. and NTFC Capital
Corporation (the "Vendor Credit Facility").
The Credit Agreement relating to the Bank Credit Facility
(the "Bank Credit Agreement") provides for up to $1.655 billion of secured
financing consisting of a $1.085 billion revolving loan and $570 million in
term loans. The Amended, Restated and Consolidated Credit Agreement relating
to the Vendor Credit Facility (the "Vendor Credit Agreement") provides for up
to $345 million of secured financing consisting of a $195 million revolving
loan and $150 million in term loans. Borrowings under the Bank Credit Facility
and the Vendor Credit Facility are ratably secured by liens on assets of
Nextel's subsidiaries that are "restricted" subsidiaries under the terms of
Nextel's public indentures. At September 30, 1996, Nextel had drawn
approximately $368,000,000 of its available financing under the Bank Credit
Facility, leaving an aggregate of approximately $1,287,000,000 available for
borrowing under such facility, and had drawn $150,000,000 of its available
financing under the Vendor Credit Facility, leaving an aggregate of
approximately $195,000,000 available for borrowing under such facility, in each
case subject to the satisfaction or waiver of applicable borrowing conditions.
Nextel believes that it has sufficient funds currently available or
reasonably expected to be accessible to it under its existing financing
facilities to meet its cash needs through the planned completion of
its first stage nationwide Digital Mobile networks build-out in 1998, in light
of its current (and currently committed) business and investment activities and
assuming a conservative ramp-up in Digital Mobile system subscriber growth
trajectory. Nextel currently anticipates that the funds available pursuant to
the Bank Credit Facility and the Vendor Credit Facility, together with the
proceeds that would be received by Nextel assuming the exercise of the
currently outstanding warrants and options to acquire shares of Nextel common
stock, which warrants and options are scheduled to expire unless exercised
during such time period and are generally described in Nextel's prior public
disclosures, would be sufficient to permit both the planned implementation of
its nationwide Digital Mobile networks and the pursuit of its other strategic
objectives, including additional spectrum acquisition activities and
international investment opportunities. There can be no assurance, however,
that all such outstanding warrants and options will be exercised. Moreover,
Nextel's public indentures contain provisions that operate to limit the amount
of borrowings available under the Bank Credit Facility and the Vendor Credit
Facility in certain circumstances.
As previously described in Nextel's public disclosures contained in
its annual report on Form 10-K for the year ended December 31, 1995 and
its quarterly report on Form 10-Q for the six month period ended June
30, 1996, Nextel currently is aware of numerous factors and considerations, any
one or more of which could have a material effect on the timing and/or amount
of the future funding to be required by Nextel, but Nextel cannot currently
quantify with precision either the magnitude or the certainty of the effects
associated with any such factors. Many of such factors involve elements wholly
or partly beyond Nextel's control or influence. See "Item 1. Business -
Forward Looking Statements" in Nextel's Annual Report on Form 10-K for the year
ended December 31, 1995.
Copies of the Bank Credit Agreement and the Vendor Credit Agreement,
which are attached hereto as Exhibits 99.1 and 99.2, respectively, are
incorporated herein by reference and the descriptions herein are qualified
in their entirety by such reference.
2
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(A) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED.
Not applicable.
(B) PRO FORMA FINANCIAL INFORMATION.
Not applicable.
(C) EXHIBITS.
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Exhibit No. Exhibit Description
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99.1 Credit Agreement dated as of September 27, 1996 among
Nextel, NFC, the Restricted Companies party thereto, the
Lenders party thereto, Toronto-Dominion (Texas) Inc., as
Administrative Agent, and The Chase Manhattan Bank, as
Collateral Agent.
99.2 Amended, Restated and Consolidated Credit Agreement
dated as of September 27, 1996 among Nextel, NFC, the
Restricted Companies party thereto and the Vendors party
thereto.
99.3 Press Release dated September 30, 1996.
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3
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SIGNATURE
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 COMMUNICATIONS, INC.
Date: September 30, 1996 By: /s/ Thomas J. Sidman
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Thomas J. Sidman
Vice President and General Counsel
4
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EXHIBIT INDEX
Exhibit No. Exhibit Description
99.1 Credit Agreement dated as of September 27,
1996 among Nextel, NFC, the Restricted
Companies party thereto, the Lenders party
thereto, Toronto-Dominion (Texas) Inc., as
Administrative Agent, and The Chase
Manhattan Bank, as Collateral
Agent.
99.2 Amended, Restated and Consolidated Credit
Agreement dated as of September 27, 1996
among Nextel, NFC, the Restricted Companies
party thereto and the Vendors party thereto.
99.3 Press Release dated September 30, 1996.
5
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EXHIBIT 99.1
[Execution Copy]
File No. 28692-00300
================================================================================
CREDIT AGREEMENT
dated as of
September 27, 1996
among
NEXTEL COMMUNICATIONS, INC.,
NEXTEL FINANCE COMPANY
and
THE OTHER "RESTRICTED COMPANIES" PARTY HERETO,
THE LENDERS PARTY HERETO,
and
THE ADMINISTRATIVE AGENT and COLLATERAL AGENT PARTY HERETO
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THE CHASE MANHATTAN BANK,
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
THE TORONTO-DOMINION BANK
as Arrangers
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TABLE OF CONTENTS
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ARTICLE I
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Definitions..................................................................................................... 1
SECTION 1.01. Defined Terms........................................................................... 1
SECTION 1.02. Classification of Loans and Borrowings.................................................. 33
SECTION 1.03. Terms Generally......................................................................... 33
SECTION 1.04. Accounting Terms; GAAP.................................................................. 34
SECTION 1.05. Tax Sharing Agreement................................................................... 34
ARTICLE II
The Credits..................................................................................................... 35
SECTION 2.01. Commitments............................................................................. 35
SECTION 2.02. Loans and Borrowings.................................................................... 36
SECTION 2.03. Requests for Borrowings................................................................. 37
SECTION 2.04. Letters of Credit....................................................................... 38
SECTION 2.05. Funding of Borrowings................................................................... 43
SECTION 2.06. Interest Elections...................................................................... 44
SECTION 2.07. Termination and Reduction of
Commitments................................................................................... 45
SECTION 2.08. Repayment of Loans; Evidence of Debt.................................................... 47
SECTION 2.09. Prepayment of Loans..................................................................... 49
SECTION 2.10. Fees.................................................................................... 55
SECTION 2.11. Interest................................................................................ 56
SECTION 2.12. Alternate Rate of Interest.............................................................. 57
SECTION 2.13. Increased Costs......................................................................... 58
SECTION 2.14. Break Funding Payments.................................................................. 59
SECTION 2.15. Taxes................................................................................... 60
SECTION 2.16. Payments Generally; Pro Rata Treatment;
Sharing of Set-Offs........................................................................... 61
SECTION 2.17. Mitigation Obligations; Replacement of
Lenders....................................................................................... 64
ARTICLE III
Guarantee by NCI................................................................................................ 66
Section 3.01. The Guarantee........................................................................... 66
Section 3.02. Obligations Unconditional............................................................... 66
Section 3.03. Reinstatement........................................................................... 67
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(i)
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Section 3.04. Subrogation............................................................................. 68
Section 3.05. Remedies................................................................................ 68
Section 3.06. Instrument for the Payment of Money..................................................... 68
Section 3.07. Continuing Guarantee.................................................................... 68
ARTICLE IV
Representations and Warranties.................................................................................. 69
SECTION 4.01. Organization; Powers.................................................................... 69
SECTION 4.02. Authorization; Enforceability........................................................... 69
SECTION 4.03. Governmental Approvals; No Conflicts.................................................... 69
SECTION 4.04. Financial Condition; No Material Adverse
Change........................................................................................ 70
SECTION 4.05. Properties.............................................................................. 71
SECTION 4.06. Litigation and Environmental Matters.................................................... 71
SECTION 4.07. Compliance with Laws and Agreements..................................................... 72
SECTION 4.08. Investment and Holding Company Status................................................... 72
SECTION 4.09. Taxes................................................................................... 72
SECTION 4.10. ERISA................................................................................... 72
SECTION 4.11. Disclosure.............................................................................. 73
SECTION 4.12. Material Agreements and Liens........................................................... 73
SECTION 4.13. Regulatory Matters...................................................................... 74
SECTION 4.14. Subsidiaries............................................................................ 76
SECTION 4.15. Capitalization of NCI................................................................... 77
SECTION 4.16. Vendor Equipment Agreements............................................................. 77
SECTION 4.17. Public Note Indentures.................................................................. 78
ARTICLE V
Conditions...................................................................................................... 78
SECTION 5.01. Effective Date.......................................................................... 78
SECTION 5.02. Each Extension of Credit................................................................ 82
ARTICLE VI
Affirmative Covenants........................................................................................... 84
SECTION 6.01. Financial Statements and Other
Information................................................................................... ....... 84
SECTION 6.02. Notices of Material Events.............................................................. 87
SECTION 6.03. Existence; Conduct of Business.......................................................... 87
SECTION 6.04. Payment of Obligations.................................................................. 89
SECTION 6.05. Maintenance of Properties; Insurance.................................................... 89
SECTION 6.06. Books and Records; Inspection Rights.................................................... 89
SECTION 6.07. Fiscal Year............................................................................. 89
SECTION 6.08. Compliance with Laws.................................................................... 90
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(ii)
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SECTION 6.09. Use of Proceeds......................................................................... 90
SECTION 6.10. Hedging Agreements...................................................................... 90
SECTION 6.11. Certain Obligations Respecting
Subsidiaries and Collateral Security.......................................................... 91
SECTION 6.12. Planned Option Issuances................................................................ 93
ARTICLE VII
Negative Covenants.............................................................................................. 93
SECTION 7.01. Indebtedness............................................................................ 94
SECTION 7.02. Liens................................................................................... 96
SECTION 7.03. Fundamental Changes..................................................................... 97
SECTION 7.04. Investments, Loans, Advances, Guarantees
and Acquisitions; Hedging Agreements.......................................................... 99
SECTION 7.05. Restricted Payments..................................................................... 104
SECTION 7.06. Transactions with Affiliates............................................................ 105
SECTION 7.07. Restrictive Agreements.................................................................. 105
SECTION 7.08. Certain Financial and Other Covenants................................................... 106
SECTION 7.09. Lines of Business, Etc.................................................................. 109
SECTION 7.10. Modifications to Certain Agreements;
Prepayments of Vendor Facilities.............................................................. 110
ARTICLE VIII
Events of Default............................................................................................... 111
ARTICLE IX
The Agents...................................................................................................... 115
ARTICLE X
Miscellaneous................................................................................................... 118
SECTION 10.01. Notices................................................................................ 118
SECTION 10.02. Waivers; Amendments.................................................................... 119
SECTION 10.03. Expenses; Indemnity; Damage Waiver..................................................... 121
SECTION 10.04. Successors and Assigns................................................................. 123
SECTION 10.05. Survival............................................................................... 127
SECTION 10.06. Counterparts; Integration;
Effectiveness................................................................................. 127
SECTION 10.07. Severability........................................................................... 128
SECTION 10.08. Right of Setoff........................................................................ 128
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of Process............................................................................ 128
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(iii)
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SECTION 10.10. WAIVER OF JURY TRIAL................................................................... 129
SECTION 10.11. Headings............................................................................... 129
SECTION 10.12. Confidentiality........................................................................ 130
SECTION 10.13. Designation of Tranche A Revolving
Credit Commitments............................................................................ 130
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SCHEDULES:
Schedule 1.01 -- Reorganization
Schedule 2.01 -- Commitments
Schedule 4.06 -- Disclosed Matters
Schedule 4.12 -- Material Agreements and Liens
Schedule 4.13 -- License Compliance
Schedule 4.14 -- Subsidiaries
Schedule 4.15 -- Equity Rights
Schedule 7.01 -- Existing Indebtedness
Schedule 7.07 -- Existing Restrictions
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Opinion of Special Counsel
Exhibit C -- Form of Restricted Company Guarantee and
Security Agreement
Exhibit D -- Form of Intercreditor and Collateral Agency
Agreement
Exhibit E -- Form of Joinder Agreement
(iv)
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CREDIT AGREEMENT dated as of September 27, 1996 among NEXTEL
COMMUNICATIONS, INC., NEXTEL FINANCE COMPANY and the other RESTRICTED COMPANIES
party hereto, the LENDERS party hereto, TORONTO DOMINION (TEXAS) INC., as
Administrative Agent, and THE CHASE MANHATTAN BANK, as Collateral Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"Adjusted Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change in
the Adjusted Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such
Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Toronto Dominion (Texas) Inc., in
its capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agents" means the Administrative Agent and the Collateral
Agent.
"Annualized Operating Cash Flow" means, as at any day,
Operating Cash Flow for the fiscal quarter ending on or most recently ended
prior to such day multiplied by 4.
"Annualized Revenue" means, as at any day, gross revenues of
the Restricted Companies (determined on a combined
Credit Agreement
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basis without duplication in accordance with GAAP) for the period of three
complete calendar months ending on, or most recently ended prior to, such day
multiplied by 4.
"Applicable Percentage" means (a) with respect to any
Revolving Credit Lender for purposes of Section 2.04, the percentage of the
total Tranche A Revolving Credit Commitments represented by such Lender's
Tranche A Revolving Credit Commitment, (b) with respect to any Lender in respect
of any indemnity claim under Section 10.03(b) arising out of an action or
omission of an Agent under this Agreement, the percentage of the total
Commitments of all Classes hereunder represented by the aggregate amount of such
Lender's Commitment of all Classes hereunder and (c) with respect to any Lender
in respect of any indemnity claim under Section 10.03(b) arising out of an
action or omission of an Agent under any other Loan Document, the percentage of
the total Commitments of all Classes hereunder and under the Vendor Financing
Agreement represented by the aggregate amount of such Lender's Commitment of all
Classes hereunder. If the Commitments hereunder or under the Vendor Financing
Agreement have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means (a) in the case of Tranche D Term
Loans, for any day, 2% with respect to any Base Rate Loan and 3% with respect to
any Eurodollar Loan and (b) in the case of Revolving Credit Loans, Tranche C
Term Loans or commitment fees, for any day, with respect to any Base Rate Loan
or Eurodollar Loan, or with respect to the commitment fees payable hereunder,
as the case may be, the applicable rate per annum set forth below under the
caption "Base Rate Spread", "Eurodollar Spread" or "Commitment Fee Rate", as the
case may be, based upon the Total Indebtedness to Cash Flow Ratio as at the last
day of the fiscal quarter most recently ended as to which NCI has delivered
financial statements pursuant to Section 6.01:
Credit Agreement
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Total Indebtedness Base Rate Spread Eurodollar Spread Commitment Fee
to Cash Flow Ratio Rate
- ---------------------------------------------------------------------------------------------------------------------
Greater than 1.000% 2.000% 0.500%
10.00 to 1
- ---------------------------------------------------------------------------------------------------------------------
Greater than
9.00 to 1 and
less than or 0.875% 1.875% 0.500%
equal to
10.00 to 1
- ---------------------------------------------------------------------------------------------------------------------
Greater than
8.00 to 1 and
less than or 0.750% 1.750% 0.500%
equal to
9.00 to 1
- ---------------------------------------------------------------------------------------------------------------------
Greater than
7.00 to 1 and
less than or 0.500% 1.500% 0.500%
equal to
8.00 to 1
- ---------------------------------------------------------------------------------------------------------------------
Greater than
6.00 to 1 and
less than or 0.375% 1.375% 0.375%
equal to
7.00 to 1
- ---------------------------------------------------------------------------------------------------------------------
Greater than
5.00 to 1 and
less than or 0.125% 1.125% 0.375%
equal to
6.00 to 1
- ---------------------------------------------------------------------------------------------------------------------
Greater than
4.00 to 1 and
less than or 0.000% 0.875% 0.375%
equal to
5.00 to 1
- ---------------------------------------------------------------------------------------------------------------------
Less than or
equal to 0.000% 0.750% 0.375%
4.00 to 1
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provided that if, for any fiscal quarter, Cash Flow as used in determining the
Total Indebtedness to Cash Flow Ratio shall be negative, then if (a) the
combined gross revenue of the Restricted Companies for the fiscal quarter most
recently ended as to which the Borrower has delivered
Credit Agreement
<PAGE> 9
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financial statements pursuant to Section 6.01(c) multiplied by 4 is less than or
equal to $475,000,000, the Applicable Rate for Revolving Credit Loans and
Tranche C Term Loans shall be 1.500% with respect to any Base Rate Loan and
2.500% with respect to any Eurodollar Loan. Notwithstanding the foregoing, until
the delivery of the financial statements of NCI and its subsidiaries (and of the
Restricted Companies) for the fiscal quarter ending September 30, 1996, the
Applicable Rate for Revolving Credit Loans and Tranche C Term Loans shall be the
rates referred to in the foregoing clause (b).
Each change in the "Applicable Rate" based upon any change in
the Total Indebtedness to Cash Flow Ratio (or, if applicable, upon any change in
the combined gross revenue of the Restricted Companies), shall become effective
for purposes of the accrual of interest and commitment fees hereunder on the
date three Business Days after the delivery to the Administrative Agent and each
Lender of the financial statements of NCI and its subsidiaries (and of the
Restricted Companies) for the most recently ended fiscal quarter pursuant to
Section 6.01(c), and shall remain effective for such purpose until three
Business Days after the next delivery of such financial statements to the
Administrative Agent and each Lender hereunder, provided that, notwithstanding
the foregoing, the Applicable Rate for Revolving Credit Loans, Tranche C Term
Loans and commitment fees shall be the highest rates provided for in the above
schedule for any period during which either (i) an Event of Default under
paragraph (a) or (b) of Article VIII in respect of principal of or interest on
any Loans, or any other amounts, payable hereunder shall have occurred and be
continuing or (ii) either NCI or the Borrower shall be in default of its
obligation to deliver financial statements for any fiscal quarter by the times
specified in Section 6.01(c).
"April 1994 Indenture" means the Indenture referred to in
clause (e) of the definition of the term "Public Note Indentures" in this
Section 1.01.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Authorizations" means all validations, exemptions,
franchises, waivers, approvals, orders or authorizations, consents, licenses,
certificates and permits from, the FCC, any PUC and any other Federal, state or
local regulatory or
Credit Agreement
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governmental bodies and authorities, including any subdivision thereof.
"Average Life to Maturity" means, as at any day with respect
to any Indebtedness, the quotient obtained by dividing (a) the sum of the
products of (i) the number of years from the day to the date or dates of each
successive principal payment of such Indebtedness multiplied by (ii) the amount
of each such principal payment by (b) the sum of all such principal payments.
"Base Rate", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted Base Rate.
"Basic Documents" means the Loan Documents, the Vendor
Financing Agreement and the Vendor Equipment Agreements.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Nextel Finance Company, a Delaware
corporation.
"Borrowing" means Loans of a particular Class of the same
Type, made, converted or continued on the same date and, in the case of
Eurodollar Loans, as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in U.S. dollar deposits in the London interbank
market.
"Capital Expenditures" means, for any period, the sum for the
Restricted Companies (or, as the case may be, for NCI and the Restricted
Companies) of the aggregate amount of expenditures (including the aggregate
amount of Capital Lease Obligations incurred during such period) made to acquire
or construct fixed assets, plant and equipment (including renewals, improvements
and replacements, but excluding repairs) during such period computed in
accordance with GAAP. "Capital Expenditures" for the Restricted Companies shall
be determined on a combined basis, and
Credit Agreement
<PAGE> 11
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for NCI and the Restricted Companies shall be determined on a consolidated basis
(excluding the Unrestricted Companies), in each case without duplication in
accordance with GAAP.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
Restricted Companies for the fiscal quarter most recently ended as to which the
Borrower has delivered financial statements pursuant to Section 6.01(c)
multiplied by 4 exceeds $475,000,000, the Applicable Rate for Revolving Credit
Loans and Tranche C Term Loans shall be 1.250% with respect to any Base Rate
Loan and 2.250% with respect to any Eurodollar Loan and (b) the combined gross
revenue of the "Change in Control" means either (a) a "Change of Control" under
and as defined in the Public Note Indentures, or any other similar event
(howsoever defined) requiring the prepayment, redemption or offer to repurchase
of the respective Indebtedness under any agreement providing for the issuance of
Indebtedness of NCI after the date hereof pursuant to Section 7.01(c)(i) or
7.01(d), or (b) the termination or material modification of the authority of the
Operations Committee of NCI (including through the occurrence of a "Trigger
Event" as defined in NCI's Certificate of Incorporation as in effect on the date
hereof) or the inability of Craig O. McCaw (whether acting directly or through
any Person controlled by him) for any reason (other than by reason of his death,
disability or incompetence) to designate a majority of the members of said
Operations Committee.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
Issuing Bank (or, for purposes of Section 2.13(b), by any lending office of such
Lender or by such Lender's or Issuing Bank's holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan, Borrowing or
Commitment, refers to whether such Loan, the Loans comprising such Borrowing or
the Loans that a Lender holding such Commitment is obligated to make, are
Tranche A Revolving Credit Loans, Tranche B Revolving Credit Loans, Tranche C
Term Loans or Tranche D Term Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
Credit Agreement
<PAGE> 12
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"Collateral" means all cash and other property in which the
Collateral Agent has a Lien (whether or not perfected under applicable law)
under any of the Security Documents, including all "Collateral" under and as
defined in the Restricted Company Guarantee and Security Agreement.
"Collateral Agent" means The Chase Manhattan Bank, in its
capacity as collateral agent for the Lenders and the Vendors under the Security
Documents.
"Commitments" means the Tranche A Revolving Credit
Commitments, the Tranche B Revolving Credit Commitments, the Tranche C Term Loan
Commitments and the Tranche D Term Loan Commitments, provided that for purposes
of Section 2.09(b) and the definition of "Applicable Percentage" in this
Section 1.01, such term shall also include the "Commitments" of the Vendors
under the Vendor Facilities.
"Contributed Capital" means, as at any time, the net aggregate
amount of equity capital received after the Effective Date by the Restricted
Companies in respect of shares of common stock to the extent such amount does
not exceed the aggregate proceeds of Qualifying Debt or Equity Issuances by NCI
after the Effective Date.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Credit Parties" means NCI and the Restricted
Companies.
"Debt Service" means, for any period, the sum for the
Restricted Companies (or, as the case may be, for NCI and the Restricted
Companies) of the following: (a) the amount, if any, by which the aggregate
principal amount of Revolving Credit Loans outstanding hereunder at the
beginning of such period shall exceed the aggregate amount of the Revolving
Credit Commitments scheduled to be in effect at the end of such period after
giving effect to any reductions of such Commitments scheduled to occur during
such period pursuant to Section 2.07 plus (b) the amount, if any, by which the
aggregate principal amount of "Tranche B Loans" outstanding under the Vendor
Financing Agreement at the beginning of such period shall exceed the aggregate
amount of the "Tranche B Commitment" thereunder scheduled to be in effect at the
end of such period after giving effect to any reductions of such Commitment
scheduled to occur during such period pursuant to
Credit Agreement
<PAGE> 13
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Section 2.07 of the Vendor Financing Agreement plus (c) all regularly
scheduled payments or regularly scheduled mandatory prepayments of principal of
any other Indebtedness (including the Tranche C Term Loans and Tranche D Term
Loans hereunder, the "Tranche A Loans" and "Tranche C Loans" under the Vendor
Financing Agreement, and the principal component of any payments in respect of
Capital Lease Obligations, but excluding any prepayments made pursuant to
Section 2.09) made during such period plus (d) all Interest Expense for such
period. "Debt Service" for the Restricted Companies shall be determined on a
combined basis, and for NCI and the Restricted Companies shall be determined on
a consolidated basis (excluding the Unrestricted Companies), in each case
without duplication in accordance with GAAP.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 4.06.
"Disposition" means any sale, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired) by any
Restricted Company to any other Person excluding any sale, assignment, transfer
or other disposition of any property sold or disposed of in the ordinary course
of business and on ordinary business terms.
"Disposition Investment" means, with respect to any
Disposition, any promissory notes or other evidences of indebtedness or
Investments received by the Restricted Companies in connection with such
Disposition.
"Effective Date" means the date on which the conditions
specified in Section 5.01 are satisfied (or waived in accordance with Section
10.02).
"Enhanced SMR System" means a wide-area network of specialized
mobile radio base stations that employs digital and other advanced, spectrally
efficient communications technologies to provide a full range of communications
services including voice, dispatch, interconnected telephone and data services.
"Environmental Laws" means all laws, rules, regulations,
policies, codes, ordinances, orders, decrees, judgments, injunctions, notices or
binding agreements issued,
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promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to health
and safety matters, including FCC rules and policies concerning RF Emissions.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of any Restricted Company
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials or RF Emissions, (c) exposure
to any Hazardous Materials or RF Emissions, (d) the release or threatened
release of any Hazardous Materials into the environment or (e) any contract,
agreement or other consensual arrangement pursuant to which liability is assumed
or imposed with respect to any of the foregoing.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any stockholders' or voting trust agreements) for the
issuance or sale of, or securities convertible into, any additional shares of
capital stock of any class, or partnership or other ownership interests of any
type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived), (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived, (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan, (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
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termination of any Plan, (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan, (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan, or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such
term in Article VIII.
"Excess Cash Flow" means, for any fiscal year of the
Restricted Companies, the excess of (a) Operating Cash Flow for such fiscal year
over (b) the sum of (i) Debt Service for the Restricted Companies for such
fiscal year plus (ii) the aggregate amount of all Capital Expenditures for the
Restricted Companies made during such fiscal year, except for any such Capital
Expenditures to the extent financed with the proceeds of Indebtedness incurred
pursuant to Section 7.01(g) during such fiscal year and that is secured by Liens
permitted under Section 7.02(f) plus (iii) the aggregate amount paid, or
required to be paid, in cash in respect of income taxes during such fiscal year
plus (iv) $5,000,000.
"Excluded Taxes" means, with respect to either Agent, any
Lender, any Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income, net worth or
franchise taxes imposed on (or measured by) its net income or net worth by the
United States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which the Borrower is located and (c) in
the case of a Foreign Lender (other than an assignee pursuant to a request by
the Borrower under Section 2.17(b)), any withholding tax that is imposed on
amounts payable
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to such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement or is attributable to such Foreign Lender's failure or inability to
comply with Section 2.15(e), except to the extent that such Foreign Lender's
assignor (if any) was entitled, at the time of assignment, to receive additional
amounts from the Borrower with respect to such withholding tax pursuant to
Section 2.15(a).
"Existing Vendor Indebtedness" means the Indebtedness
outstanding under the "Motorola Agreements" and "Northern Telecom Agreements"
under and as defined in the Public Note Indentures.
"FCC" means the Federal Communications Commission or
any Governmental Authority substituted therefor.
"FCC License" means any paging, mobile telephone, specialized
mobile radio, microwave or other license, permit, consent, certificate of
compliance, franchise, approval, waiver or authorization granted or issued by
the FCC, including any of the foregoing authorizing or permitting the
acquisition, construction or operation of an SMR System, radio paging system,
mobile telephone system or other radio communications system.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of l%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Final Order" means an action by any Governmental Authority
that has not been reversed, stayed, enjoined, set aside, annulled, or suspended,
and with respect to which no requests are pending for administrative or judicial
review, reconsideration, appeal, or stay, and the time for filing any such
requests and the time for such Governmental Authority to set aside the action on
its own motion have expired.
"Financial Officer" means, with respect to NCI or the
Borrower, the chief financial officer, principal accounting officer, treasurer
or controller of NCI or the Borrower, as the case may be.
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"First Tier Restricted Company" means any Restricted Company
that is not a Wholly Owned Subsidiary of one or more other Restricted Companies.
"Fixed Charges Ratio" means, as at the last day of any fiscal
quarter, the ratio of (a) the sum of (i) Annualized Operating Cash Flow as at
such day plus (ii) the aggregate unutilized amount of the Commitments
hereunder, and the unutilized amount of the "Commitments" under the Vendor
Financing Agreement, as at such day plus (iii) the amount of cash and cash
equivalents held by NCI and the Restricted Companies on such day to (b) the sum
of (i) Debt Service for NCI and the Restricted Companies for the period of four
fiscal quarters ending on such day plus (ii) the aggregate amount of Capital
Expenditures for NCI and the Restricted Companies made during such period,
except for any such Capital Expenditures to the extent financed with the
proceeds of Indebtedness incurred pursuant to Section 7.01(g) during such
fiscal year and that is secured by Liens permitted under Section 7.02(f) plus
(iii) the aggregate amount of Federal, state and local income taxes paid by NCI
and its subsidiaries in respect of such period.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"GAAP" means generally accepted accounting principles
in the United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or
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lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money (whether by loan, the issuance
and sale of debt securities or the sale of property to another Person subject to
an understanding or agreement, contingent or otherwise, to repurchase such
property from such Person), (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (d) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (e) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (f) all Guarantees by such Person of
Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (i) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
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extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means all Taxes other than (a) Excluded
Taxes and Other Taxes and (b) amounts constituting penalties or interest imposed
with respect to Excluded Taxes or Other Taxes.
"Information Memorandum" means the Information Memorandum
dated August 1996 prepared by NCI in connection with the syndication of the
Commitments hereunder.
"Intercreditor and Collateral Agency Agreement" means an
Intercreditor and Collateral Agency Agreement substantially in the form of
Exhibit D between the Restricted Companies, the Vendors, the Administrative
Agent and the Collateral Agent.
"Interest Coverage Ratio" means, as at any day, the ratio of
(a) Annualized Operating Cash Flow as at such day to (b) Interest Expense for
NCI and the Restricted Companies for the period of four fiscal quarters ending
on or most recently ended prior to such day.
"Interest Expense" means, for any period, the
following:
(a) in the case of the Restricted Companies, the sum of (i)
all interest and fees in respect of Indebtedness accrued or capitalized
during such period, including the interest component of any payments in
respect of Capital Lease Obligations, but excluding any interest not
required to be paid in cash during such period, plus (ii) all
Restricted Payments made by any Restricted Company to NCI during such
period to enable NCI to pay interest in respect of Indebtedness of NCI,
as permitted by Section 7.05, plus (iii) the net amount payable (or
minus the net amount receivable) under Hedging Agreements during such
period (whether or not actually paid or received during such period);
and
(b) in the case of NCI and the Restricted Companies, the sum
of (i) all interest and fees in respect of Indebtedness accrued or
capitalized during such period, including the interest component of any
payments in respect of Capital Lease Obligations, but excluding any
interest not required to be paid in cash during such period, plus (ii)
the net amount payable (or minus the net amount receivable)
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under Hedging Agreements during such period (whether or not actually
paid or received during such period).
"Interest Expense" for the Restricted Companies shall be determined on a
combined basis, and for NCI and the Restricted Companies shall be determined on
a consolidated basis (excluding the Unrestricted Companies), in each case
without duplication in accordance with GAAP.
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any Base
Rate Loan, each Quarterly Date and (b) with respect to any Eurodollar Loan, the
last Business Day of the Interest Period applicable to the Borrowing of which
such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest
Period of more than three months' duration, each Business Day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"Interest Period" means with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months (or, with the consent of each Lender of the relevant Class, twelve
months) thereafter, as the Borrower may elect; provided, that (i) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (ii) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing. Notwithstanding the foregoing,
(v) if any Interest Period for any Revolving Credit Borrowing
would otherwise end after the Revolving Credit Maturity Date, such
Interest Period shall end on the Revolving Credit Maturity Date,
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(w) no Interest Period for any Revolving Credit Borrowing may
commence before and end after any Revolving Credit Commitment Reduction
Date unless, after giving effect thereto, the aggregate principal
amount of Revolving Credit Loans having Interest Periods that end after
such Revolving Credit Commitment Reduction Date shall be equal to or
less than the aggregate principal amount of Revolving Credit Loans
scheduled to be outstanding after giving effect to the payments of
principal required to be made on such Revolving Credit Commitment
Reduction Date,
(x) no Interest Period for any Tranche C Term Loan Borrowing
may commence before and end after any Principal Payment Date unless,
after giving effect thereto, the aggregate principal amount of the
Tranche C Term Loans having Interest Periods that end after such
Principal Payment Date shall be equal to or less than the aggregate
principal amount of the Tranche C Term Loans scheduled to be
outstanding after giving effect to the payments of principal required
to be made on such Principal Payment Date,
(y) no Interest Period for any Tranche D Term Loan Borrowing
may commence before and end after any Principal Payment Date unless,
after giving effect thereto, the aggregate principal amount of the
Tranche D Term Loans having Interest Periods that end after such
Principal Payment Date shall be equal to or less than the aggregate
principal amount of the Tranche D Term Loans scheduled to be
outstanding after giving effect to the payments of principal required
to be made on such Principal Payment Date and
(z) notwithstanding the foregoing clauses (v), (w), (x) and
(y), no Interest Period shall have a duration of less than one month
and, if the Interest Period for any Eurodollar Loan would otherwise be
a shorter period, such Loan shall not be available hereunder as a
Eurodollar Loan for such period.
"Issuing Banks" mean The Chase Manhattan Bank, Morgan Guaranty
Trust Company of New York and The Toronto-Dominion Bank, in their capacity as
the issuers of Letters of Credit hereunder.
"January 1994 Indenture" means the Indenture referred to in
clause (c) of the definition of the term "Public Note Indentures" in this
Section 1.01.
"Joinder Agreement" means a Joinder Agreement
substantially in the form of Exhibit E.
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"LC Disbursement" means a payment made by an Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Revolving Credit
Lender at any time shall be its Applicable Percentage of the total LC Exposure
at such time.
"Lenders" means (a) the Persons listed on Schedule 2.01, (b)
any Person that shall agree to become a party hereto as a "Lender" hereunder
with a commitment to make Tranche E Loans hereunder pursuant to an amendment to
this Agreement as contemplated by Section 7.01(f) and (c) any other Person that
shall have become a party hereto pursuant to an Assignment and Acceptance, other
than any such Person that ceases to be a party hereto pursuant to an Assignment
and Acceptance.
"Letter of Credit" means any letter of credit issued
pursuant to this Agreement.
"Letter of Credit Account" has the meaning assigned to such
term in the Restricted Company Guarantee and Security Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Telerate
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to U.S. dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for U.S.
dollar deposits with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the "LIBO
Rate" with respect to such Eurodollar Borrowing for such Interest Period shall
be the rate at which U.S. dollar deposits of $5,000,000, and for a maturity
comparable to such Interest Period, are offered by the principal London office
of the Administrative Agent in immediately available funds in the London
interbank market at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period.
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"License Company" means any Restricted Company that holds any
FCC Licenses or PUC Authorizations.
"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 and (c) in the case of securities, any
purchase option, call or similar right of a third party (other than a Restricted
Company) with respect to such securities.
"loaded" means, with respect to any SMR License, that the
number of units (described as mobile stations within the meaning of Part 90)
receiving communications services pursuant to such SMR License is sufficient to
satisfy, with respect to each channel authorized by such SMR License, any
applicable loading requirements contained in Part 90 after giving effect to any
valid repeal, waiver, exemption, extension or similar action or relief taken or
granted by the FCC and applicable to such SMR License but only to the extent
such repeal, waiver, exemption, extension or similar action or relief is and
remains in full force and effect. The term "loading" used as an adjective shall
have a correlative meaning.
"Loan Documents" means this Agreement, any promissory notes
evidencing Loans hereunder and the Security Documents.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement and, for purposes of Sections 2.09(b) and 2.16(d),
such term shall also include the "Loans" of the Vendors made under the Vendor
Facilities.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or condition, financial or
otherwise, of NCI and its subsidiaries, or of the Restricted Companies, in each
case taken as a whole, (b) the ability of any of NCI and the Restricted
Companies to perform any of their respective obligations under this Agreement or
the other Loan Documents or (c) the rights of or benefits available to the
Lenders under this Agreement and the other Loan Documents.
"Material Indebtedness" means Indebtedness (other than the
Loans or Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Credit Parties in an aggregate principal
amount exceeding $10,000,000.
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For purposes of determining Material Indebtedness, the "principal amount" of the
obligations of any Credit Party in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that such Credit Party would be required to pay if such Hedging Agreement were
terminated at such time.
"Mobile Communications Business" means the business consisting
of (a) owning, operating or managing one or more SMR Systems and (b) to the
extent ancillary thereto and not constituting a material part of the operations
as a whole, other communications businesses related thereto which utilize the
training or resources appurtenant to the operation of an SMR System, including
radio paging services or sales or servicing of radio equipment or mechanical
parts and mobile telephone services, provided that such term shall not include
the ownership, operation or management of licenses for 1.8 GHz "personal
communications services" pursuant to Part 24.
"Mortgages" means, collectively, one or more assignments of
lease, mortgages, deeds of trust, deeds to secure debt and similar instruments
executed by a Restricted Company in favor of the Collateral Agent (or a trustee
for the benefit of the Collateral Agent), and covering interests in real
property held by such Restricted Company as collateral security for the "Secured
Obligation" under and as defined in the Intercompany and Collateral Agency
Agreement, in each case in such form as shall be satisfactory to the Collateral
Agent.
"Motorola" means Motorola, Inc., a Delaware
corporation.
"Motorola Tranche B" means the "Tranche B Commitment" of
Motorola under the Vendor Financing Agreement, providing for loans to be made by
Motorola to the Borrower in an aggregate principal amount equal to $195,000,000.
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NCI" means Nextel Communications, Inc., a Delaware
corporation.
"Net Cash Payments" means, with respect to any Disposition,
the aggregate amount of all cash payments received by the Restricted Companies
directly or indirectly in connection with such Disposition, whether at the time
of such Disposition or after such Disposition under deferred payment
arrangements or
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Investments entered into or received in connection with such Disposition
(including Disposition Investments); provided that
(a) Net Cash Payments shall be net of (i) the amount of any
legal, title and recording tax expenses, commissions and other fees and
expenses payable by the Restricted Companies in connection with such
Disposition and (ii) any Federal, state and local income or other taxes
estimated to be payable by the Restricted Companies as a result of such
Disposition, but only to the extent that on the date of such
Disposition the Borrower delivers a certificate of a Financial Officer
setting forth a calculation of the amount of such estimated taxes and
delivers an amount of such Net Cash Payments equal to such estimated
taxes to the Collateral Agent to be held in the Tax Proceeds Account
until such payment of taxes is in fact made, it being understood that
to the extent the amount so deposited is not applied to such payment of
taxes by the March 15 of the year immediately following the fiscal year
in which such Disposition shall have occurred, the remaining balance
shall be treated as "Net Cash Payments" for purposes of this Agreement
and shall be applied in accordance with the provisions of Section
2.09(b)(ii) (and, in the event the Borrower shall elect, pursuant to
Section 2.09(b)(ii)(y) to reinvest such remaining balance into
replacement assets, the twelve-month period provided for in Section
2.09(b)(ii)(z) shall be measured from such March 15), and
(b) Net Cash Payments shall be net of any repayments by the
Restricted Companies of Indebtedness or other obligations to the extent
that (i) such Indebtedness or other obligations is secured by a Lien on
the property that is the subject of such Disposition and the transferee
of (or holder of a Lien on) such property requires that such
Indebtedness or other obligations be repaid as a condition to the
purchase of such property or (ii) such Indebtedness or other
obligations requires that it be repaid as a condition to such
Disposition.
"Net Income" means, for any period, the net income of the
Restricted Companies (determined on a combined basis without duplication in
accordance with GAAP) and treating as operating expenses all amounts paid by
the Restricted Companies to NCI pursuant to the Overhead Services Agreement.
"Network Subscriber Units" means, as at any date, the number
of units (described as mobile stations within the meaning of Part 90), employing
analog or digital technology, subscribing to, and paying for, communications
services provided by the
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Restricted Companies for a period of not less than 30 days as of such date,
excluding any such unit to the extent the accounts receivable generated by
operation of such unit are more than 90 days past due as of such date.
"NTFC Capital" means NTFC Capital Corporation, a
Delaware corporation.
"Operating Cash Flow" means, for any period, the sum, for the
Restricted Companies (determined on a combined basis without duplication in
accordance with GAAP), of the following (in each case adjusted to exclude all
extraordinary and unusual items, income or loss attributable to equity in
affiliates and non-cash minority interest payments and receipts): (a) Net Income
for such period plus (b) income tax expense and Interest Expense (to the extent
deducted in determining Net Income) for such period plus (c) depreciation,
amortization and other non-cash charges (to the extent deducted in determining
Net Income) for such period.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement and the other
Loan Documents, provided that there shall be excluded from "Other Taxes" all
Excluded Taxes.
"Overhead Services Agreement" means the Overhead Services
Agreement dated as of the date hereof between the Restricted Companies and NCI.
"Part 24" means 47 CFR Part 24 of the Rules and Regulations of
the FCC in effect from time to time or such other parts or subparts that may be
substituted for or combined with said Part 24.
"Part 90" means 47 CFR Part 90 of the Rules and Regulations of
the FCC in effect from time to time or such other parts or subparts that may be
substituted for or combined with said Part 90.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Debt Limitation" means, at any date, the amount of
Indebtedness permitted to be incurred on such date (a) pursuant to clause (iii)
of the definition of "Permitted Debt"
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under each of the Public Note Indentures (other than the April 1994 Indenture)
and (b) pursuant to clause (iv) of the definition of "Permitted Debt" under the
April 1994 Indenture.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet
due or are being contested in compliance with Section 6.04;
(b) carriers', warehousemen's, mechanics', landlord's,
lessor's, materialmen's, repairmen's and other like Liens imposed by
law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 6.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers compensation, unemployment
insurance and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature, in
each case in the ordinary course of business;
(e) 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 business of any Restricted
Company;
(f) subleases of property with respect to which a Restricted
Company is the primary lessee, to the extent such subleases arise in
the ordinary course of business and do not interfere in any material
respect with the business of any Restricted Company; and
(g) precautionary Uniform Commercial Code filings made with
respect to office and similar equipment (but excluding equipment used
in the operation of the Mobile Communications Business of the
Restricted Companies), or vehicles, leased to the Restricted Companies
in the ordinary course of business under operating leases (i.e. leases
not giving rise to Capital Lease Obligations);
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provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard and
Poor's Ratings Service or from Moody's Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $250,000,000; and
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Planned Option Issuances" means the warrants, options and
other rights to acquire shares of stock of NCI set forth in Part A of Schedule
4.15.
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"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Toronto-Dominion Bank, as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"Principal Payment Dates" means the Quarterly Dates falling on
or nearest to March 31, June 30, September 30 and December 31 of each year,
commencing with March 31, 2001 through and including June 30, 2003.
"Pro-Forma Debt Service" means, as at the last day of any
fiscal quarter, the sum, for NCI and the Restricted Companies (determined on a
consolidated basis without duplication in accordance with GAAP), of the
following: (a) the amount, if any, by which the aggregate principal amount of
Revolving Credit Loans outstanding hereunder on such day exceeds the aggregate
amount of the Revolving Credit Commitments scheduled pursuant to Section 2.07 to
be in effect at the last day of the immediately succeeding four fiscal quarters
plus (b) the amount, if any, by which the aggregate principal amount of "Tranche
B Loans" outstanding under the Vendor Financing Agreement on such day exceeds
the aggregate amount of the "Tranche B Commitment" thereunder scheduled pursuant
to Section 2.07 of the Vendor Financing Agreement to be in effect at the last
day of the immediately succeeding four fiscal quarters plus (c) all regularly
scheduled payments or regularly scheduled mandatory prepayments of principal of
any other Indebtedness (including the Tranche C Term Loans and Tranche D Term
Loans hereunder, the "Tranche A Loans" and "Tranche C Loans" under the Vendor
Financing Agreement, and the principal component of any payments in respect of
Capital Lease Obligations, but excluding any prepayments made pursuant to
Section 2.09) required to be made during the immediately succeeding four fiscal
quarters plus (d) all Interest Expense for NCI and the Restricted Companies
projected to be incurred during the immediately succeeding four fiscal quarters.
In determining Interest Expense for purposes of this definition, interest on a
floating rate basis for any current or future period shall be deemed to accrue
at a rate per annum equal to the higher of (i) the weighted average rate of
interest with respect to all Indebtedness of NCI and the Restricted Companies in
effect on the last day of the fiscal quarter as of which "Pro-Forma Debt
Service" is being determined and (ii) the weighted average rate of interest with
respect to such Indebtedness in effect during such fiscal quarter.
"Pro-Forma Debt Service Ratio" means, as at the last day of
any fiscal quarter, the ratio of (a) Annualized Operating
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Cash Flow as at such day to (b) Pro-Forma Debt Service as at such day.
"Public Note Indentures" means (a) the Indenture dated as of
August 15, 1993 between NCI and The Bank of New York, as Trustee, (b) the
Indenture dated as of December 22, 1993 between NCI (as successor to Dial Call
Communications, Inc.) and The Bank of New York, as Trustee, (c) the Indenture
dated as of January 13, 1994 between NCI (as successor to CenCall Communications
Corp.) and The Bank of New York, as Trustee, (d) the Indenture dated as of
February 15, 1994 between NCI and The Bank of New York, as Trustee and (e) the
Indenture dated as of April 24, 1994 between NCI (as successor to Dial Call
Communications, Inc.) and The Bank of New York, as Trustee.
"Public Notes" means, collectively, the respective Notes
issued pursuant to the Public Note Indentures.
"PUC" means any state regulatory agency or body that exercises
jurisdiction over the rates or services or the ownership, construction or
operation of any SMR System, cellular radio telecommunications system or
conventional mobile telephone system or over Persons who own, construct or
operate SMR Systems, cellular radio telecommunications systems or conventional
mobile telephone systems, in each case by reason of the nature or type of the
business subject to regulation and not pursuant to laws and regulations of
general applicability to Persons conducting business in said state.
"PUC Authorization" means any Authorization issued by a
PUC.
"Purchase Price" means with respect to any acquisition under
Section 7.04(a)(vii) or 7.04(a)(viii), an amount equal to the sum of (i) the
aggregate consideration, whether cash, property or securities (including any
Indebtedness incurred pursuant to Section 7.01(g) hereof), paid or delivered by
the Restricted Companies in connection with such acquisition plus (ii) the
aggregate amount of liabilities of the acquired business (net of current assets
of the acquired business) that would be reflected on a balance sheet (if such
were to be prepared) of the Restricted Companies after giving effect to such
acquisition.
"Qualifying Debt or Equity Issuance" means (a) the issuance or
incurrence by NCI after the date hereof of Indebtedness permitted under Section
7.01 and (b) the issuance or sale by NCI of (i) any shares of capital stock
(including any such shares issued upon the exercise or conversion of any
existing warrants, options or other rights to acquire shares of
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capital stock), (ii) any warrants or options exercisable in respect of capital
stock or (iii) any other security or instrument representing an equity interest
(or the right to obtain any equity interest) in NCI.
"Quarterly Dates" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date of this Agreement.
"Register" has the meaning assigned to such term in
Section 10.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Reorganization" means the series of transactions pursuant to
which various of the existing subsidiaries of NCI (each of which constitutes a
"Restricted Subsidiary" under and as defined in the Public Note Indentures) are
to be transferred to, and become Subsidiaries of, the Borrower, all as more
particularly described in Schedule 1.01.
"Required Lenders" means, at any time, Lenders having Loans,
LC Exposure and unused Commitments representing at least 51% of the sum of the
total Loans, LC Exposure and unused Commitments at such time.
"Required Revolving Credit Lenders" means, at any time,
Lenders having Revolving Credit Loans, LC Exposure and unused Revolving Credit
Commitments representing at least 51% of the sum of the total Revolving Credit
Loans, LC Exposure and unused Revolving Credit Commitments at such time.
"Required Tranche C Term Loan Lenders" means, at any time,
Lenders having Tranche C Term Loans and unused Tranche C Term Loan Commitments
representing at least 51% of the sum of the total Tranche C Term Loans and
unused Tranche C Term Loan Commitments at such time.
"Required Tranche D Term Loan Lenders" means, at any time,
Lenders having Tranche D Term Loans and unused Tranche D Term Loan Commitments
representing at least 51% of the sum of the total Tranche D Term Loans and
unused Tranche D Term Loan Commitments at such time.
"Reserved Commitment Amount" has the meaning assigned
to such term in Section 2.01(a).
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"Restricted Company" means the Borrower, the other Persons
listed on the signature pages hereto under the caption "RESTRICTED COMPANIES"
and each Person that becomes a Restricted Company after the date hereof pursuant
to Section 6.11.
"Restricted Company Guarantee and Security Agreement" means a
Guarantee and Security Agreement substantially in the form of Exhibit C between
the Restricted Companies and the Collateral Agent.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock of any Restricted Company, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock of any
Restricted Company or any option, warrant or other right to acquire any such
shares of capital stock of any Restricted Company, but excluding any such
dividend, distribution or payment either (i) made solely in shares of its common
stock or (ii) made to any other Restricted Company.
"Revolving Credit Availability Period" means the period from
and including the Effective Date to but excluding the earlier of (a) the
Revolving Credit Maturity Date and (b) in the case of Tranche A Revolving Credit
Loans, the date of termination of the Tranche A Revolving Credit Commitments or,
in the case of the Tranche B Revolving Credit Loans, the date of termination of
the Tranche B Revolving Credit Commitments.
"Revolving Credit Commitment Reduction Dates" means the
Quarterly Dates falling on or nearest to March 31, June 30, September 30 and
December 31 of each year, commencing with March 31, 2001, through and including
March 31, 2003.
"Revolving Credit Lender" means (a) a Lender that has a
Tranche A Revolving Credit Commitment or Tranche B Revolving Credit Commitment
set forth opposite its name on Schedule 2.01 and (b) thereafter, the Lenders
from time to time holding Tranche A Revolving Credit Loans and Tranche A
Revolving Credit Commitments, or Tranche B Revolving Credit Loans and Tranche B
Revolving Credit Commitments, after giving effect to any assignments thereof
permitted by Section 10.04.
"Revolving Credit Loans" means Tranche A Revolving
Credit Loans and Tranche B Revolving Credit Loans.
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"Revolving Credit Maturity Date" means the last
Business Day in March, 2003.
"RF Emissions" means radio frequency emissions governed by FCC
rules and policies.
"Sale Proceeds Reinvestment Account" has the meaning assigned
to such term in the Restricted Company Guarantee and Security Agreement.
"Secured Indebtedness" means, as at any day, all Indebtedness
of the Restricted Companies hereunder and under the Vendor Facilities, and all
other Indebtedness that is secured by any Lien upon property of any of the
Restricted Companies, including all Capital Lease Obligations.
"Secured Indebtedness to Cash Flow Ratio" means, as at the
last day of any fiscal quarter, the ratio of (a) Secured Indebtedness as at such
day to (b) Annualized Operating Cash Flow as at such day.
"Secured Indebtedness to Revenue Ratio" means, as at any day,
the ratio of (a) Secured Indebtedness as at such day to (b) Annualized Revenue
as at such day.
"Security Documents" means the Restricted Company Guarantee
and Security Agreement, the Intercreditor and Collateral Agency Agreement, the
Mortgages and all Uniform Commercial Code financing statements required by any
of such instruments to be filed with respect to the security interests in
personal property and fixtures created pursuant thereto.
"SMR License" means an FCC License authorizing the
construction, ownership and operation of an SMR System in the 800 or 900 MHz
band.
"SMR System" means a specialized mobile radio system licensed
under Part 90, together with such other facilities from time to time licensed or
otherwise authorized by the FCC as shall be necessary to provide the
communications services to be offered by the Restricted Companies. The term "SMR
System" shall include an Enhanced SMR System using FCC Licenses in the 800 MHz
or 900 MHz band.
"Special Counsel" means Milbank, Tweed, Hadley & McCloy, in
its capacity as special counsel to The Chase Manhattan Bank, Morgan Guaranty
Trust Company of New York and The Toronto- Dominion Bank, as arrangers of the
credit facilities contemplated hereby.
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"Specified Default" means any Event of Default under paragraph
(a), (b), (d), (f), (g), (h) or (i) of Article VIII.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Tax Proceeds Account" has the meaning assigned to such term
in the Restricted Company Guarantee and Security Agreement.
"Tax Sharing Agreement" means the Tax Sharing Agreement dated
as of the date hereof by and among NCI and the "Affiliated Corporations"
(including the Restricted Companies) therein referred to.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
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"Total Indebtedness" means, as at any day, all Indebtedness of
NCI and the Restricted Companies, determined on a consolidated basis (excluding
the Unrestricted Companies) without duplication in accordance with GAAP.
"Total Indebtedness to Cash Flow Ratio" means, as at the last
day of any fiscal quarter, the ratio of (a) Total Indebtedness as at such day to
(b) Annualized Operating Cash Flow as at such day.
"Tranche A Revolving Credit Commitment" means, with respect to
each Lender, the commitment of such Lender to make Tranche A Revolving Credit
Loans and to acquire participations in Letters of Credit hereunder, as such
commitment may be (a) reduced from time to time pursuant to Sections 2.07 and
2.09 and (b) reduced or increased from time to time pursuant to assignments by
or to such Lender pursuant to Section 10.04. The initial amount of each Lender's
Tranche A Revolving Credit Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed
its Tranche A Revolving Credit Commitment, as applicable. The aggregate original
amount of the Tranche A Revolving Credit Commitments is $260,000,000.
"Tranche A Revolving Credit Exposure" means, with respect to
any Revolving Credit Lender at any time, the sum of the outstanding principal
amount of such Lender's Tranche A Loans and its LC Exposure at such time.
"Tranche A Revolving Credit Loan" means a Loan made pursuant
to Section 2.01(a) that utilizes the Tranche A Revolving Credit Commitment.
"Tranche B Revolving Credit Commitment" means, with respect to
each Lender, the commitment of such Lender to make Tranche B Revolving Credit
Loans hereunder, as such commitment may be (a) reduced from time to time
pursuant to Sections 2.07 and 2.09 and (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 10.04. The
initial amount of each Lender's Tranche B Revolving Credit Commitment is set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender shall have assumed its Tranche B Revolving Credit Commitment, as
applicable. The aggregate original amount of the Tranche B Revolving Credit
Commitments is $825,000,000.
"Tranche B Revolving Credit Loan" means a Loan made pursuant
to Section 2.01(a) that utilizes the Tranche B Revolving Credit Commitment.
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"Tranche C Term Loan Availability Period" means the period
from and including the Effective Date to and including the earlier of December
31, 1996 and the date of termination of the Tranche C Term Loan Commitments.
"Tranche C Term Loan Commitment" means, with respect to each
Lender, the commitment of such Lender to make Tranche C Term Loans hereunder, as
such commitment may be (a) reduced from time to time pursuant to Section 2.09
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 10.04. The initial amount of each Lender's
Tranche C Term Loan Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Tranche C Term Loan Commitment, as applicable. The aggregate original amount of
the Tranche C Term Loan Commitments is $250,000,000.
"Tranche C Term Loan Lender" means (a) a Lender that has a
Tranche C Term Loan Commitment set forth opposite its name on Schedule 2.01 and
(b) thereafter, the Lenders from time to time holding Tranche C Term Loans and
Tranche C Term Loan Commitments after giving effect to any assignments thereof
permitted by Section 10.04.
"Tranche C Term Loan" means a Loan made pursuant to Section
2.01(b).
"Tranche D Term Loan Commitment" means, with respect to each
Lender, the commitment of such Lender to make a Tranche D Term Loan hereunder.
The amount of each Lender's Tranche D Term Loan Commitment is set forth on
Schedule 2.01. The aggregate original amount of the Tranche D Term Loan
Commitments is $320,000,000.
"Tranche D Term Loan Lender" means (a) a Lender that has a
Tranche D Term Loan Commitment set forth opposite its name on Schedule 2.01 and
(b) thereafter, the Lenders from time to time holding Tranche D Term Loans after
giving effect to any assignments thereof permitted by Section 10.04.
"Tranche D Term Loan" means a Loan made pursuant to Section
2.01(c).
"Tranche E Loan" has the meaning assigned to such term
in Section 7.01(f).
"Transactions" means (a) with respect to the Borrower, the
execution, delivery and performance by the Borrower of the Loan Documents to
which it is a party, the borrowing of Loans and
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the use of the proceeds thereof, and the issuance of Letters of Credit
hereunder, (b) with respect to any Credit Party (other than the Borrower), the
execution, delivery and performance by such Credit Party of the Loan Documents
to which it is a party and (c) with respect to each applicable Credit Party, the
Reorganization.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Adjusted Base Rate.
"Unrestricted Companies" means each subsidiary of NCI other
than the Restricted Companies.
"U.S. dollars" or "$" refers to lawful money of the
United States of America.
"Vendor Equipment Agreements" means the following agreements
(i) the Enhanced Specialized Mobile Radio System Equipment Purchase Agreement
dated as of November 1, 1991 between Motorola and NCI; (ii) the letter agreement
dated as of November 4, 1991 between Motorola and NCI; (iii) Amendment to
Purchase Agreements dated as of August 4, 1994 between Motorola and NCI; (iv)
Second Amendment to Purchase Agreements dated as of April 5, 1995 between
Motorola and NCI; (v) Amendment 003 to Enhanced Specialized Mobile Radio System
Purchase Agreement dated as of March 25, 1995 between Motorola and NCI; and (vi)
Amendment 004 to Enhanced Specialized Mobile Radio System Purchase Agreement
dated as of April 28, 1996 between Motorola and NCI; each of which agreements
and Amendments is, pursuant to the assignment referred to in Section 5.01(m),
being assigned to the Borrower on the Effective Date.
"Vendor Facilities" means credit facilities made available to
the Borrower pursuant to the Vendor Financing Agreement.
"Vendor Financing Agreement" means the Amended, Restated and
Consolidated Credit Agreement dated as of the date hereof among NCI, the
Restricted Companies and the Vendors.
"Vendors" means Motorola and NTFC Capital.
"Wholly Owned Subsidiary" means, with respect to any Person at
any date, any corporation, limited liability company, partnership, association
or other entity of which securities or other ownership interests representing
100% of the equity or ordinary voting power (other than directors' qualifying
shares)
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or, in the case of a partnership, 100% of the general partnership interests are,
as of such date, directly or indirectly owned, controlled or held by such Person
or one or more Wholly Owned Subsidiaries of such Person or by such Person and
one or more Wholly Owned Subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Tranche A Revolving Credit Loan", "Tranche B Revolving Credit Loan",
"Tranche C Term Loan" or "Tranche D Term Loan") or by Type (e.g., an "Base Rate
Loan" or a "Eurodollar Loan") or by Class and Type (e.g., a "Eurodollar Tranche
A Revolving Credit Loan" or a "Base Rate Tranche A Revolving Credit Loan"). In
similar fashion, (i) Borrowings may be classified and referred to by Class, by
Type and by Class and Type, and (ii) Commitments may be classified and referred
to by Class.
SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections , Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
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SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower and NCI notify the Administrative Agent that the Borrower
and NCI request an amendment to any provision hereof to eliminate the effect of
any change occurring after the date hereof in GAAP or in the application thereof
on the operation of such provision (or if the Administrative Agent notifies the
Borrower and NCI that the Required Lenders request an amendment to any provision
hereof for such purpose), regardless of whether any such notice is given before
or after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Tax Sharing Agreement. Pursuant to the Tax
Sharing Agreement, the Restricted Companies have agreed to join the affiliated
group headed by NCI as "common parent" (within the meaning of Section 1504 of
the Code) in filing consolidated Federal, and (in certain circumstances) state
and local, income tax returns and have also agreed as to the amounts, if any,
that the Restricted Companies shall be obligated to pay to NCI in respect of
Federal, state and local income taxes (or the amounts that the Restricted
Companies shall be entitled to receive as refunds in respect of such taxes). So
long as the Restricted Companies shall be included in consolidated Federal,
state and local income tax returns filed by NCI pursuant to the Tax Sharing
Agreement, whenever making determinations under this Agreement of the amount of
such taxes payable during any period (or the amount of refunds in respect of
such taxes receivable during any period) by the Restricted Companies, the amount
of such taxes payable or receivable shall be deemed to be equal to the amounts
payable or receivable, as the case may be, in respect of such taxes under the
Tax Sharing Agreement without reference to whether NCI and its subsidiaries as
an affiliated group shall in fact pay any amounts in respect of Federal, state
and local income taxes (or receive any amounts in respect of refunds of such
taxes) during the relevant period.
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ARTICLE II
The Credits
SECTION 2.01. Commitments.
(a) Revolving Credit Loans. Subject to the terms and
conditions set forth herein, each Revolving Credit Lender agrees to make Tranche
A Revolving Credit Loans and Tranche B Revolving Credit Loans to the Borrower
from time to time during the Revolving Credit Availability Period in an
aggregate principal amount that will not result in such Lender's Tranche A
Revolving Credit Loans exceeding such Lender's Tranche A Revolving Credit
Commitment and such Lender's Tranche B Revolving Credit Loans exceeding such
Lender's Tranche B Revolving Credit Commitment, provided that (i) the total
Tranche A Revolving Credit Exposure shall not at any time exceed the total
Tranche A Revolving Credit Commitments and (ii) no Revolving Credit Loans shall
be made hereunder unless the Tranche D Term Loan Commitments are borrowed in
full on the Effective Date. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and reborrow
Tranche A Revolving Credit Loans and Tranche B Revolving Credit Loans.
Proceeds of Revolving Credit Loans shall be available for any
use permitted under the applicable provisions of Section 6.09, provided that, in
the event that as contemplated by Section 2.09(b)(ii), the Borrower shall prepay
Revolving Credit Loans from the proceeds of a Disposition hereunder, then an
amount of Tranche A or Tranche B Revolving Credit Commitments, as specified by
the Borrower pursuant to the next sentence, equal to the amount of such
prepayment (herein the "Reserved Commitment Amount") shall be reserved and shall
not be available for borrowings hereunder except and to the extent that the
proceeds of such borrowings are to be applied to make acquisitions permitted
under Section 7.04(a)(vii) or 7.04(a)(viii) or to make prepayments of Loans
under Section 2.09(b)(ii)(z)(B). The Borrower agrees, upon the occasion of any
Borrowing of Revolving Credit Loans hereunder that is to constitute a
utilization of any Reserved Commitment Amount, to advise the Administrative
Agent in writing of such fact at the time of such borrowing, identifying the
amount of such Borrowing that is to constitute such utilization, the acquisition
in respect of which the proceeds of such Borrowing are to be applied and the
reduced Reserved Commitment Amount to be in effect for each Class of Revolving
Credit Commitment after giving effect to such Borrowing.
(b) Tranche C Term Loans. Subject to the terms and conditions
set forth herein, each Tranche C Term Loan Lender
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agrees to make Tranche C Term Loans to the Borrower from time to time during the
Tranche C Term Loan Availability Period in an aggregate principal amount that
will not result in such Lender's Tranche C Term Loans exceeding such Lender's
Tranche C Term Loan Commitment, provided that no Tranche C Term Loans shall be
made hereunder unless the Tranche D Term Loan Commitments are borrowed in full
on the Effective Date. Proceeds of Tranche C Term Loans shall be available for
any use permitted under Section 6.09.
(c) Tranche D Term Loans. Subject to the terms and conditions
set forth herein, each Tranche D Term Loan Lender agrees to make a single
Tranche D Term Loan to the Borrower on the Effective Date in a principal amount
equal to such Lender's Tranche D Term Loan Commitment. Proceeds of Tranche D
Term Loans shall be available for any use permitted under Section 6.09.
SECTION 2.02. Loans and Borrowings.
(a) Each Loan of a particular Class shall be made as part of a
Borrowing consisting of Loans of such Class made by the Lenders ratably in
accordance with their respective Commitments of such Class. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.12, each Borrowing shall be comprised
entirely of Base Rate Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement.
(c) At the commencement of each Interest Period for a
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $5,000,000. At the time that
each Base Rate Borrowing is made, such Borrowing shall be in an aggregate amount
that is an integral multiple of $500,000 and not less than $1,000,000; provided
that (i) a Base Rate Borrowing of Loans of any Class may be in an aggregate
amount that is equal to the entire unused balance of the total Commitments of
such Class and (ii) a Tranche A Revolving Credit Base Rate Borrowing may be in
an amount that is required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.04(e). Borrowings of more than one Type and Class may
be outstanding at the same time; provided that
Credit Agreement
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there shall not at any time be more than a total of 15 Eurodollar Borrowings
outstanding.
SECTION 2.03. Requests for Borrowings. To request a Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone
(a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York
City time, three Business Days before the date of the proposed Borrowing or (b)
in the case of a Base Rate Borrowing, not later than 11:00 a.m., New York City
time, one Business Day before the date of the proposed Borrowing; provided that
any such notice of a Tranche A Revolving Credit Base Rate Borrowing to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.04(e) may
be given not later than 10:00 a.m., New York City time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) whether the requested Borrowing is to be a
Tranche A Revolving Credit Borrowing, Tranche B Revolving
Credit Borrowing, Tranche C Term Loan Borrowing or Tranche D
Term Loan Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a
Business Day;
(iv) whether such Borrowing is to be a Base Rate
Borrowing or a Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(vi) the location and number of the Borrower's account
to which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be a Base Rate Borrowing. If no Interest Period is specified
with respect to any requested Eurodollar Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. Promptly
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following receipt of a Borrowing Request in accordance with this Section 2.03,
the Administrative Agent shall advise each Lender of the details thereof and of
the amount of such Lender's Loan to be made as part of the requested Borrowing.
Anything herein to the contrary notwithstanding, the initial
Borrowing hereunder shall be a Base Rate Borrowing.
SECTION 2.04. Letters of Credit.
(a) General. Subject to the terms and conditions set forth
herein, in addition to the Tranche A Revolving Credit Loans provided for in
Section 2.01(a), the Borrower may request the issuance of Letters of Credit for
its own account by any Issuing Bank, in a form reasonably acceptable to such
Issuing Bank, at any time and from time to time during the Revolving Credit
Availability Period. Letters of Credit Issued hereunder shall constitute
utilization of the Tranche A Revolving Credit Commitments. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, an Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the respective Issuing Bank) to
an Issuing Bank selected by it and the Administrative Agent (reasonably in
advance of the requested date of issuance, amendment, renewal or extension) a
notice requesting the issuance of a Letter of Credit, or identifying the Letter
of Credit to be amended, renewed or extended, the date of issuance, amendment,
renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section 2.04), the amount of such
Letter of Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. If requested by the respective Issuing Bank, the Borrower also shall
submit a letter of credit application on such Issuing Bank's standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the aggregate
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LC Exposure of any Issuing Bank (determined for these purposes without giving
effect to the participations therein of the Revolving Credit Lenders pursuant to
paragraph (d) of this Section 2.04) shall not exceed $30,000,000, (ii) the
aggregate LC Exposure of all of the Issuing Banks (so determined) shall not
exceed $50,000,000 and (iii) the total Tranche A Revolving Credit Exposure shall
not exceed the total Tranche A Revolving Credit Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the close of business on the earlier of (i) the date 18 months after
the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, 18 months after such renewal or extension) and
(ii) the date that is five Business Days prior to the Revolving Credit Maturity
Date.
(d) Participations. By the issuance of a Letter of Credit (or
an amendment to a Letter of Credit increasing the amount thereof) by any Issuing
Bank, and without any further action on the part of such Issuing Bank or the
Lenders, such Issuing Bank hereby grants to each Revolving Credit Lender, and
each Revolving Lender hereby acquires from such Issuing Bank, a participation in
such Letter of Credit equal to such Revolving Credit Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Revolving
Credit Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of such Issuing Bank, such Revolving
Credit Lender's Applicable Percentage of each LC Disbursement made by such
Issuing Bank and not reimbursed by the Borrower on the date due as provided in
paragraph (e) of this Section 2.04, or of any reimbursement payment required to
be refunded to the Borrower for any reason. Each Revolving Credit Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
(e) Reimbursement. If an Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
Issuing Bank in respect of such LC Disbursement by paying to the Administrative
Agent an amount equal to such LC Disbursement not later than 12:00 noon, New
York City time, on (i) the Business Day that the Borrower receives
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notice of such LC Disbursement, if such notice is received prior to 10:00 a.m.,
New York City time, or (ii) the Business Day immediately following the day that
the Borrower receives such notice, if such notice is not received prior to such
time, provided that, if such LC Disbursement is not less than $1,000,000, the
Borrower may, subject to the conditions to borrowing set forth herein, request
in accordance with Section 2.03 that such payment be financed with a Tranche A
Revolving Credit Base Rate Borrowing in an equivalent amount and, to the extent
so financed, the Borrower's obligation to make such payment shall be discharged
and replaced by the resulting Tranche A Revolving Credit Base Rate Borrowing.
If the Borrower fails to make such payment when due, the
Administrative Agent shall notify each Revolving Credit Lender of the applicable
LC Disbursement, the payment then due from the Borrower in respect thereof and
such Revolving Credit Lender's Applicable Percentage thereof. Promptly following
receipt of such notice, each Revolving Credit Lender shall pay to the
Administrative Agent its Applicable Percentage of the payment then due from the
Borrower, in the same manner as provided in Section 2.05 with respect to
Revolving Credit Loans made by such Lender (and Section 2.05 shall apply,
mutatis mutandis, to the payment obligations of the Revolving Credit Lenders),
and the Administrative Agent shall promptly pay to the respective Issuing Bank
the amounts so received by it from the Revolving Credit Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the respective Issuing Bank or, to the extent that the Revolving
Credit Lenders have made payments pursuant to this paragraph to reimburse such
Issuing Bank, then to such Lenders and such Issuing Bank as their interests may
appear. Any payment made by a Revolving Credit Lender pursuant to this paragraph
to reimburse the Issuing Bank for any LC Disbursement shall not constitute a
Loan and shall not relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section 2.04
shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit, or any term or provision therein, (ii)
any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the respective Issuing
Bank
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under a Letter of Credit against presentation of a draft or other document
that does not comply strictly with the terms of such Letter of Credit and (iv)
any other event or circumstance whatsoever, whether or not similar to any of the
foregoing, that might, but for the provisions of this Section 2.04, constitute a
legal or equitable discharge of the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing
Bank, nor any of their Related Parties, shall have any liability or
responsibility by reason of or in connection with the issuance or transfer of
any Letter of Credit by such Issuing Bank or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss or delay in
transmission or delivery of any draft, notice or other communication under or
relating to any Letter of Credit (including any document required to make a
drawing thereunder), any error in interpretation of technical terms or any
consequence arising from causes beyond the control of the respective Issuing
Bank; provided that the foregoing shall not be construed to excuse an Issuing
Bank from liability to the Borrower to the extent of any direct damages (as
opposed to consequential damages, claims in respect of which are hereby waived
by the Borrower to the extent permitted by applicable law) suffered by the
Borrower that are caused by such Issuing Bank's gross negligence or wilful
misconduct when determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. The parties hereto expressly
agree that:
(i) such Issuing Bank may accept documents that appear
on their face to be in substantial compliance with the terms of a
Letter of Credit without responsibility for further investigation,
regardless of any notice or information to the contrary, and may make
payment upon presentation of documents that appear on their face to be
in substantial compliance with the terms of such Letter of Credit;
(ii) such Issuing Bank shall have the right, in its sole
discretion, to decline to accept such documents and to make such
payment if such documents are not in strict compliance with the terms
of such Letter of Credit; and
(iii) this sentence shall establish the standard of care
to be exercised by an Issuing Bank when determining whether drafts and
other documents presented under a Letter of Credit comply with the
terms thereof (and the parties
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hereto hereby waive, to the extent permitted by applicable law, any
standard of care inconsistent with the foregoing).
(g) Disbursement Procedures. The Issuing Bank for any Letter
of Credit shall, promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under such Letter of Credit. Such
Issuing Bank shall promptly notify the Administrative Agent and the Borrower by
telephone (confirmed by telecopy) of such demand for payment and whether such
Issuing Bank has made or will make an LC Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the
Borrower of its obligation to reimburse such Issuing Bank and the Revolving
Credit Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank for any Letter of
Credit shall make any LC Disbursement, then, unless the Borrower shall reimburse
such LC Disbursement in full on the date such LC Disbursement is made, the
unpaid amount thereof shall bear interest, for each day from and including the
date such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to
Tranche A Revolving Credit Base Rate Loans; provided that, if the Borrower fails
to reimburse such LC Disbursement when due pursuant to paragraph (e) of this
Section 2.04, then Section 2.11(c) shall apply. Interest accrued pursuant to
this paragraph shall be for the account of such Issuing Bank, except that
interest accrued on and after the date of payment by any Revolving Credit Lender
pursuant to paragraph (e) of this Section 2.04 to reimburse such Issuing Bank
shall be for the account of such Lender to the extent of such payment.
(i) Cash Collateralization. If either (i) an Event of Default
shall occur and be continuing and the Borrower receives notice from the
Administrative Agent or the Required Revolving Credit Lenders demanding the
deposit of cash collateral pursuant to this paragraph, or (ii) the Borrower
shall be required to provide cover for LC Exposure pursuant to Section 2.09(b),
the Borrower shall immediately deposit into the Letter of Credit Account an
amount in cash equal to, in the case of an Event of Default, the LC Exposure as
of such date plus any accrued and unpaid interest thereon and, in the case of
cover pursuant to Section 2.09(b), the amount required under Section 2.09(b);
provided that the obligation to deposit such cash collateral shall become
effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any
Event of Default with respect to any Credit Party described in clause (h) or (i)
of
Credit Agreement
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Article VIII. Such deposit shall be held by the Collateral Agent as collateral
in the first instance for the LC Exposure under this Agreement and thereafter
for the payment of the "Secured Obligations" under and as defined in the
Restricted Company Guarantee and Security Agreement.
(j) Existing Letters of Credit. There is outstanding on the
date hereof letters of credit in an aggregate face amount of $382,480 that have
previously been issued by The Chase Manhattan Bank for the account of NCI. Upon
the Effective Date, (i) NCI hereby assigns to the Borrower all of its
obligations in respect of such letters of credit, (ii) the Borrower hereby
assumes all of the obligations of NCI as the account party in respect of such
letters of credit and (iii) each of such letters of credit is hereby designated
a "Letter of Credit" under and for all purposes of this Agreement. In that
connection, the Borrower hereby represents and warrants to each Issuing Bank,
each Revolving Credit Lender and the Administrative Agent that each such letter
of credit satisfies the requirements of this Section 2.04 (including paragraph
(c) above).
SECTION 2.05. Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available
funds by 12:00 noon, New York City time, to the account of the Administrative
Agent most recently designated by it for such purpose by notice to the Lenders.
The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York City and
designated by the Borrower in the applicable Borrowing Request; provided that
Tranche A Revolving Credit Base Rate Loans made to finance the reimbursement of
an LC Disbursement under any Letter of Credit as provided in Section 2.04(e)
shall be remitted by the Administrative Agent to the respective Issuing Bank for
such Letter of Credit.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender will
not make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
2.05 and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
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applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
the Federal Funds Effective Rate. If such Lender pays such amount to the
Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.06. Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in
the applicable Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type
or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may
elect Interest Periods therefor, all as provided in this Section 2.06. The
Borrower may elect different options for continuations and conversions with
respect to different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be
considered a separate Borrowing.
(b) To make an election pursuant to this Section 2.06, the
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Borrowing of the Type resulting from such election to
be made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election
Request applies and, if different options for continuations or
conversions are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
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(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be a Base
Rate Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar
Borrowing, the Interest Period to be applicable thereto after giving
effect to such election, which shall be a period contemplated by the
definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to a Base Rate Borrowing. Notwithstanding any contrary provision
hereof, if a Specified 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 a Specified Default is continuing (i) no outstanding
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Borrowing shall be converted to a Base Rate
Borrowing at the end of the Interest Period applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments.
(a) Unless previously terminated, (i) the Tranche A Revolving
Credit Commitments and the Tranche B Revolving Credit Commitments shall
terminate at the close of business on the Revolving Credit Maturity Date, (ii)
the Tranche C Term Loan Commitments shall terminate at the close of business on
the last day of the Tranche C Term Loan Availability Period and (iii) the
Tranche D Term Loan Commitments shall terminate after the Borrowing of Tranche D
Term Loans on the Effective Date.
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(b) The aggregate amount of the Tranche A Revolving Credit
Commitments and Tranche B Revolving Credit Commitments shall be automatically
reduced at the close of business on each Revolving Credit Commitment Reduction
Date set forth in column (A) below to the amount (subject to reduction pursuant
to paragraph (c) below) set forth in column (B) or column (C) below, as
applicable, opposite such Revolving Credit Commitment Reduction Date:
<TABLE>
<CAPTION>
(A) (B) (C)
Tranche A Tranche B
Revolving Credit Revolving Credit Revolving Credit
Commitment Reduction Commitments Reduced Commitments Reduced
Date Falling on or to the Following to the Following
Nearest to: Amounts Amounts
-------------------- --------------------- ----------------
<S> <C> <C>
March 31, 2001 $240,500,000 $763,125,000
June 30, 2001 $221,000,000 $701,250,000
September 30, 2001 $201,500,000 $639,375,000
December 31, 2001 $182,000,000 $577,500,000
March 31, 2002 $156,000,000 $495,000,000
June 30, 2002 $130,000,000 $412,500,000
September 30, 2002 $104,000,000 $330,000,000
December 31, 2002 $ 78,000,000 $247,500,000
</TABLE>
(c) The Borrower may at any time terminate, or from time to
time reduce, the Commitments of any Class; provided that (i) each reduction of
the Commitments of such Class shall be in an amount that is an integral multiple
of $1,000,000 and not less than $5,000,000, (ii) the Borrower shall not
terminate or reduce the Commitments of such Class if, after giving effect to any
concurrent prepayment of Loans in accordance with Section 2.09, the outstanding
Loans of such Class would exceed the total Commitments of such Class and (iii)
the Borrower shall not terminate or reduce the Tranche A Revolving Credit
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.09, the total Tranche A Revolving Credit Exposures
would exceed the total Tranche A Revolving Credit Commitments.
(d) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce Commitments under paragraph (c) of this Section
2.07 at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section 2.07
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shall be irrevocable; provided that a notice of termination of Commitments
delivered by the Borrower may state that such notice is conditioned upon the
effectiveness of other credit facilities, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. Any
termination or reduction of Commitments shall be permanent. Each reduction of
Commitments of any Class shall be made ratably among the Lenders in accordance
with their respective Commitments of such Class.
SECTION 2.08. Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Revolving Credit Lender the then
unpaid principal amount of such Lender's Revolving Credit Loans on the Revolving
Credit Maturity Date. In addition, if following any Revolving Credit Commitment
Reduction Date the aggregate principal amount of the Tranche A Revolving Credit
Loans shall exceed the Tranche A Revolving Credit Commitments, or the aggregate
principal amount of the Tranche B Revolving Credit Loans shall exceed the
Tranche B Revolving Credit Commitments, the Borrower shall pay Tranche A
Revolving Credit Loans or Tranche B Revolving Credit Loans, as the case may be,
in an aggregate amount equal to such excess.
(b) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the Tranche C Term Loan Lenders the
principal of the Tranche C Term Loans in nine installments payable on the
Principal Payment Dates as follows:
<TABLE>
<CAPTION>
Principal Payment Date
Falling on or Nearest to: Amount of Installment
------------------------ ---------------------
<S> <C>
March 31, 2001 $18,750,000
June 30, 2001 $18,750,000
September 30, 2001 $18,750,000
December 31, 2001 $18,750,000
March 31, 2002 $25,000,000
June 30, 2002 $25,000,000
September 30, 2002 $25,000,000
December 31, 2002 $25,000,000
March 31, 2003 $75,000,000
</TABLE>
If on the close of business on December 31, 1996 the aggregate outstanding
principal amount of the Tranche C Term Loans shall be
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<PAGE> 53
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less than the aggregate original principal amount of the Tranche C Term Loan
Commitments, the shortfall shall be applied to reduce the foregoing installments
ratably.
(c) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the Tranche D Term Loan Lenders the
principal of the Tranche D Term Loans in ten installments payable on the
Principal Payment Dates as follows:
<TABLE>
<CAPTION>
Principal Payment Date
Falling on or Nearest to: Amount of Installment
------------------------ ---------------------
<S> <C>
March 31, 2001 $ 800,000
June 30, 2001 $ 800,000
September 30, 2001 $ 800,000
December 31, 2001 $ 800,000
March 31, 2002 $ 800,000
June 30, 2002 $ 800,000
September 30, 2002 $ 800,000
December 31, 2002 $ 800,000
March 31, 2003 $ 800,000
June 30, 2003 $312,800,000
</TABLE>
(d) Each Lender shall 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.
(e) The Administrative Agent shall maintain accounts in which
it shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(f) The entries made in the accounts maintained pursuant to
paragraph (e) or (f) of this Section 2.08 shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of the Borrower
to repay the Loans in accordance with the terms of this Agreement.
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<PAGE> 54
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(g) Any Lender may request that Loans made by it be evidenced
by a promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns) and
in a form approved by the Administrative Agent. Thereafter, the Loans evidenced
by such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 10.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.09. Prepayment of Loans.
(a) Optional Prepayments. The Borrower shall have the right at
any time and from time to time to prepay any Borrowing in whole or in part,
subject to prior notice in accordance with paragraph (d) of this Section 2.09.
Prepayments of Tranche C Term Loan Borrowings or Tranche D Term Loan Borrowings
under this Section 2.09(a) shall be applied to each of such Classes of
Borrowings (i) as between such Classes of Borrowings, pro rata in accordance
with the respective aggregate principal amounts of the Loans of such Classes
outstanding on the date of prepayment and (ii) as within such Classes of Loans,
to the respective installments thereof in the direct order of their maturities.
(b) Mandatory Prepayments -- all Loans and Vendor Facilities.
The Borrower shall make prepayments of the Loans hereunder and under the Vendor
Facilities (and reduce the Commitments hereunder and under the Vendor
Facilities) as follows:
(i) Excess Cash Flow. Not later than the date 135 days
after the end of each fiscal year of the Borrower (commencing with
Excess Cash Flow for the fiscal year ending on December 31, 1999), the
Borrower shall prepay the Loans hereunder and under the Vendor
Facilities (and provide cover for LC Exposure as specified in clause
(iv) of this Section 2.09), and the Commitments hereunder and under the
Vendor Facilities shall be subject to automatic reduction, in an
aggregate amount equal to 50% of Excess Cash Flow for such fiscal year,
such prepayment and reduction to be effected in each case in the manner
and to the extent specified in clause (iv) of this Section 2.09(b).
(ii) Sale of Assets. Without limiting the obligation of
the Restricted Companies to obtain the consent of the Required Lenders
to any Disposition not otherwise
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permitted hereunder, the Borrower agrees, on or prior to the
occurrence of any Disposition (herein, the "Current Disposition"), to
deliver to the Administrative Agent a statement certified by a
Financial Officer, in form and detail reasonably satisfactory to the
Administrative Agent, of the estimated amount of the Net Cash Payments
of the Current Disposition that will (on the date of the Current
Disposition) be received in cash and, to the extent that the Net Cash
Payments of the Current Disposition, and of all prior Dispositions as
to which a prepayment has not yet been made under this Section
2.09(b)(ii), shall exceed $5,000,000, the Borrower will prepay the
Loans hereunder and under the Vendor Facilities (and provide cover for
LC Exposure as specified in clause (iv) of this Section 2.09), and the
Commitments hereunder and under the Vendor Facilities shall be subject
to automatic reduction, as follows:
(w) upon the date of the Current Disposition, in an
aggregate amount equal to 100% of such estimated amount of the
Net Cash Payments of the Current Disposition, to the extent
received in cash on the date of the Current Disposition,
together with 100% of the Net Cash Payments of all such prior
Dispositions; and
(x) thereafter, quarterly, on the date of the
delivery by the Borrower to the Administrative Agent pursuant
to Section 6.01(c) of the financial statements for each
quarterly fiscal period or (if earlier) the date 60 days after
the end of such quarterly fiscal period, to the extent the
Restricted Companies shall receive Net Cash Payments during
such quarterly fiscal period in cash under deferred payment
arrangements or Disposition Investments entered into or
received in connection with any Disposition, an amount equal
to (A) 100% of the aggregate amount of such Net Cash Payments
minus (B) any transaction expenses associated with
Dispositions and not previously deducted in the determination
of Net Cash Payments plus (or minus, as the case may be) (C)
any other adjustment received or paid by the Restricted
Companies pursuant to the respective agreements giving rise to
Dispositions and not previously taken into account in the
determination of the Net Cash Payments of Dispositions,
provided that if prior to the date upon which the Borrower
would otherwise be required to make a prepayment under this
clause (x) with respect to any quarterly fiscal period the
aggregate amount of such Net Cash Payments (after giving
effect to the adjustments provided for in this
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clause (x)) shall exceed $5,000,000, then the Borrower shall
within three Business Days make a prepayment under this clause
(x) in an amount equal to such required prepayment.
Prepayments of Loans (and cover for LC Exposure) and reductions of
Commitments shall be effected in each case in the manner and to the
extent specified in clause (iv) of this Section 2.09(b).
Notwithstanding the foregoing, the Borrower shall not be
required to make a prepayment (or provide cover) pursuant to this
Section 2.09(b)(ii) with respect to the Net Cash Payments from any
Disposition in the event that the Borrower advises the Administrative
Agent at the time a prepayment is required to be made under the
foregoing clauses (w) or (x) that it intends to reinvest such Net Cash
Payments into replacement assets pursuant to an acquisition permitted
under Section 7.04(a)(vii) or 7.04(a)(viii), so long as:
(y) such Net Cash Payments are either (A) delivered
to the Collateral Agent to be held in the Sale Proceeds
Reinvestment Account pending such reinvestment, in which event
the Collateral Agent need not release such Net Cash Payments
except upon presentation of evidence reasonably satisfactory
to it that such Net Cash Payments are to be so reinvested in
compliance with the provisions of this Agreement or (B)
applied by the Borrower to the prepayment of Revolving Credit
Loans hereunder (in which event the Borrower agrees to advise
the Administrative Agent in writing at the time of such
prepayment of Revolving Credit Loans that such prepayment is
being made from the proceeds of a Disposition and that, as
contemplated by the second paragraph of Section 2.01(a), a
portion of the Revolving Credit Commitments equal to the
amount of such prepayment gives rise to a Reserved
Commitment Amount that shall be available hereunder only for
purposes of making acquisitions under Section 7.04(a)(vii) or
7.04(a)(viii) or to make prepayments of Loans under clause
(z)(b) below), and
(z) the Net Cash Payments from any Disposition are in
fact so reinvested within twelve months of such Disposition
(it being understood that, in the event Net Cash Payments from
more than one Disposition are delivered to the Collateral
Agent or applied to the prepayment of Revolving Credit Loans
as provided in clause (y) above, such Net Cash Payments shall
be
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<PAGE> 57
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deemed to be released (or, as the case may be, Revolving
Credit Loans utilizing the Reserved Commitment Amount shall be
deemed to be made) in the same order in which such
Dispositions occurred and, accordingly, (A) any such Net Cash
Payments so held for more than twelve months shall be
forthwith applied to the prepayment of Loans (and cover for LC
Exposure) and reductions of Commitments as provided in clause
(iv) of this Section 2.09(b) and (B) any Reserved Commitment
Amount that remains so unutilized for twelve months shall be
utilized through the borrowing by the Borrower of Revolving
Credit Loans the proceeds of which shall be applied to the
prepayment of Loans (and cover for LC Exposure) and reductions
of Commitments as provided in clause (iv) of this Section
2.09(b)).
As contemplated by Article V of the Restricted Company Guarantee and
Security Agreement, nothing in this Section 2.09(b)(ii) shall be deemed
to obligate the Collateral Agent to release any of such proceeds from
the Sale Proceeds Reinvestment Account to the Restricted Companies for
purposes of reinvestment as aforesaid upon the occurrence and during
the continuance of any Event of Default.
In the event that any Reserved Commitment Amount with respect
to any Disposition shall remain unutilized for twelve months and the
Borrower shall for any reason not borrow Revolving Credit Loans the
proceeds of which applied to the prepayment of Loans (and cover for LC
Exposure) and reductions of Commitments as provided above in this
clause (iv), the Revolving Credit Lenders agree (which agreement shall
be absolute and unconditional, regardless of whether or not the
conditions to a borrowing of Revolving Credit Loans hereunder shall
have been satisfied and regardless of the occurrence or continuance of
any Event of Default, including any Event of Default described in
paragraphs (h) or (i) of Article VIII) to purchase participations in
the Loans of the Tranche C Term Loan Lenders, the Tranche D Term Loan
Lenders and the Vendors in amounts equivalent to the amount of the
respective prepayments that each of such Lenders and Vendors would have
received had such borrowing of Revolving Credit Loans occurred as
provided above.
(iii) Change in Control. Upon the occurrence of any
Change in Control, the Borrower shall prepay the Loans hereunder and
under the Vendor Facilities in full (and provide cover for LC Exposure
as specified in clause (iv) of this Section 2.09), and the Commitments
hereunder and under the Vendor Facilities shall be automatically
terminated.
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<PAGE> 58
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(iv) Application. Upon each required reduction of
Commitments and prepayment of Loans (and cover for LC Exposure)
pursuant to this Section 2.09(b), the respective Commitments of each
Class or Vendor Facility shall be reduced, and (if the Commitments of
such Class or Vendor Facility have terminated) the respective Loans of
each Class or Vendor Facility shall be prepaid, ratably in accordance
with the respective then-outstanding aggregate amounts of such
Commitments or Loans (whichever, as to any particular Class or Vendor
Facility, is greater). If after giving effect to any such reduction of
the Commitments of any Class the aggregate principal amount of the
Loans of such Class (or, in the case of Tranche A Revolving Credit
Commitments, the aggregate Tranche A Revolving Credit Exposure) shall
exceed the amount of such Commitments, the Borrower will prepay the
Loans of such Class (and, to the extent necessary, in the case of the
Tranche A Revolving Credit Commitments, provide cover for LC Exposure
pursuant to Section 2.04(i)) in an amount equal to such excess.
Notwithstanding the foregoing, no reduction of Tranche A Revolving
Credit Commitments shall be effected hereunder until the Tranche B
Revolving Credit Commitments shall have been reduced to zero, and any
reduction that would otherwise, under this clause (iv), be applied to
the Tranche A Revolving Credit Commitments shall instead be applied to
the Tranche B Revolving Credit Commitments. Prepayments of the Loans of
any Class shall be applied to the installments thereof in the direct
order of maturity.
Subject to the requirements of this clause (iv), in making
prepayments of the Loans of any particular Class, the Borrower may
elect to prepay Base Rate Loans of such Class (or Eurodollar Loans of
such Class having Interest Periods that are the earliest scheduled to
expire) in order to minimize amounts that it would otherwise be
required to pay under Section 2.14 in connection with such prepayment.
(v) Vendor Facilities. The Borrower will cause the
Vendor Financing Agreement to contain provisions with respect to the
prepayment of Loans, and reduction of Commitments, under the Vendor
Facilities identical to the provisions of this Section 2.09(b), with
such changes in references as shall be appropriate in the
circumstances.
(c) Mandatory Prepayments -- Revolving Credit Loans.
(i) Motorola Tranche B. In the event that the
Borrower shall prepay any "Loans" outstanding under Motorola
Tranche B at a time when the aggregate principal amount of
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<PAGE> 59
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the Loans and LC Exposure hereunder shall be equal to or greater than
an amount (the "Threshold Amount") equal to 50% of the sum of (i) the
then outstanding Commitments hereunder of any Class that have not
terminated plus (ii) the then outstanding principal amount of Loans
hereunder of any Class with respect to which the Commitments have
terminated, then, concurrently with such prepayment, the Borrower shall
prepay an amount of the Revolving Credit Loans hereunder in an amount
so that the amount of Revolving Credit Loans prepaid hereunder, as a
percentage of the sum of the Revolving Credit Loans and Tranche C and
Tranche D Term Loans hereunder in excess of the Threshold Amount shall
be at least equal to the percentage of the outstanding "Loans" under
Motorola Tranche B being prepaid.
(ii) Excess Operating Cash. In the event that, at any
time, the aggregate amount of cash and cash equivalents of the
Restricted Companies in bank deposit accounts or otherwise not held in
the possession, or under the control, of the Collateral Agent shall
exceed $5,000,000, the Borrower will forthwith deliver an amount of
such cash and cash equivalents equal to such excess to the Collateral
Agent for deposit into the Concentration Account under and as defined
in the Restricted Company Guarantee and Security Agreement.
(d) Notification of Prepayments. The Borrower shall notify the
Administrative Agent by telephone (confirmed by telecopy) of any prepayment
hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later
than 11:00 a.m., New York City time, three Business Days before the date of
prepayment or (ii) in the case of prepayment of a Base Rate Borrowing, not later
than 11:00 a.m., New York City time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of Commitments as contemplated by Section
2.07, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.07. Promptly following
receipt of any such notice relating to a Borrowing of a particular Class, the
Administrative Agent shall advise the Lenders holding Loans of such Class of the
contents thereof. Each partial prepayment of any Borrowing under paragraph (a)
of this Section 2.09 shall be in an amount that would be permitted in the case
of an advance of a Borrowing of the same Type as provided in Section 2.02.
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<PAGE> 60
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(e) Prepayments Accompanied by Interest. Prepayments shall be
accompanied by accrued interest to the extent required by Section 2.11.
SECTION 2.10. Fees.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee, which shall accrue at a rate per
annum equal to the Applicable Rate on the daily average unused amount of the
respective Commitments of such Lender during the period from and including the
Effective Date to but excluding the date on which such Commitment terminates.
Accrued commitment fees shall be payable in arrears on each Quarterly Date and,
in respect of any Commitments, on the date such Commitments terminate,
commencing on the first such date to occur after the date hereof. All commitment
fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day).
(b) The Borrower agrees to pay with respect to Letters of
Credit outstanding hereunder the following fees:
(i) to the Administrative Agent for the account of each
Revolving Credit Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at a rate per
annum equal to the Applicable Rate used in determining interest on
Tranche A Revolving Credit Eurodollar Loans on the average daily amount
of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from
and including the Effective Date to but excluding the later of the date
on which such Lender's Tranche A Revolving Credit Commitment terminates
and the date on which there shall no longer be any Letters of Credit
outstanding hereunder, and
(ii) to each Issuing Bank (x) a fronting fee, which shall accrue at the
rate of 1/4 of 1% per annum on the average daily amount of the LC
Exposure of such Issuing Bank (determined for these purposes without
giving effect to the participations therein of the Revolving Credit
Lenders pursuant to paragraph (d) of Section 2.04, and excluding any
portion thereof attributable to unreimbursed LC Disbursements) during
the period from and including the Effective Date to but excluding the
later of the date of termination of the Tranche A Revolving Credit
Commitments and the date on which there shall no longer be any Letters
of Credit of such Issuing Bank outstanding hereunder, and
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(y) such Issuing Bank's standard fees with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder.
Accrued participation fees and fronting fees shall be payable in arrears on each
Quarterly Date and on the date the Tranche A Revolving Credit Commitments
terminate, commencing on the first such date to occur after the date hereof,
provided that any such fees accruing after the date on which the Tranche A
Revolving Credit Commitments terminate shall be payable on demand. All
participation fees and fronting fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed (including
the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed in writing upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due,
in immediately available funds, to the Administrative Agent for distribution to
the Lenders entitled thereto. Fees paid shall not be refundable under any
circumstances, absent manifest error in the determination thereof.
SECTION 2.11. Interest.
(a) The Loans comprising each Base Rate Borrowing shall bear
interest at a rate per annum equal to the Adjusted Base Rate plus the Applicable
Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to the Adjusted LIBO Rate for the Interest
Period in effect for such Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, (i) during the period when
any Specified Default shall have occurred and be continuing, the principal of
each Loan hereunder shall bear interest, after as well as before judgment, at a
rate per annum equal to 2% plus the rate (taking into account the last paragraph
of the definition of "Applicable Rate" in Section 1.01) otherwise applicable to
such Loan as provided above (the "Post-Default Rate") and (ii) if any interest
on any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to the Post-Default Rate for
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the Loan in respect of which such interest is payable (or, in the case of a fee
or other amount that does not relate to a Loan of a particular type, at the
Post-Default Rate for Base Rate Tranche D Term Loans).
(d) Accrued interest on each Loan shall be payable in arrears
on each Interest Payment Date for such Loan; provided that (i) interest accrued
pursuant to paragraph (c) of this Section 2.11 shall be payable on demand, (ii)
in the event of any repayment or prepayment of any Eurodollar Loan (or the
repayment or prepayment in full of the Tranche C or Tranche D Term Loans),
accrued interest on the principal amount repaid or prepaid shall be payable on
the date of such repayment or prepayment, (iii) in the event of any conversion
of any Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion, (iv) all accrued interest on Tranche A Revolving Credit Loans shall
be payable upon termination of the Tranche A Revolving Credit Commitments and
(v) all accrued interest on Tranche B Revolving Credit Loans shall be payable
upon termination of the Tranche B Revolving Credit Commitments.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the Adjusted
Base Rate at times when the Adjusted Base Rate is based on the Prime Rate shall
be computed on the basis of a year of 365 days (or 366 days in a leap year), and
in each case shall be payable for the actual number of days elapsed (including
the first day but excluding the last day). The applicable Adjusted Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest. If prior to
the commencement of any Interest Period for a Eurodollar
Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO
Rate, as applicable, for such Interest Period; or
(b) if such Borrowing is of a particular Class of Loans, the
Administrative Agent is advised by the Required Revolving Credit
Lenders, the Required Tranche C Term Loan Lenders or the Required
Tranche D Term Loan Lenders, as the case may be, that the Adjusted LIBO
Rate or the LIBO Rate, as applicable, for such Interest Period will not
adequately
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and fairly reflect the cost to such Lenders of making or maintaining
their Loans of such Class included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as a Base Rate Borrowing.
SECTION 2.13. Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or Issuing
Bank; or
(ii) impose on any Lender or Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein; and the result of any of the foregoing shall be
to increase the cost to such Lender of making or maintaining any
Eurodollar Loan (or of maintaining its obligation to make any such
Loan) or to increase the cost to such Lender or any Issuing Bank of
participating in, issuing or maintaining any Letter of Credit or to
reduce the amount of any sum received or receivable by such
Lender or such Issuing Bank hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender or such Issuing Bank, as
the case may be, such additional amount or amounts as will compensate such
Lender or such Issuing Bank, as the case may be, for such additional costs
incurred or reduction suffered.
(b) If any Lender or Issuing Bank reasonably determines that
any Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or such Issuing Bank's capital or
on the capital of such Lender's or Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or
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participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by such Issuing Bank, to a level below that which such Lender or
such Issuing Bank or such Lender's or Issuing Bank's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's or
Issuing Bank's policies and the policies of such Lender's or Issuing Bank's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender or Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or Issuing Bank, or
such Lender's or Issuing Bank's holding company, for any such reduction
suffered.
(c) A certificate of a Lender or Issuing Bank setting forth
the amount or amounts necessary to compensate such Lender or Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section 2.13 shall be delivered to the Borrower and shall be conclusive so
long as it reflects a reasonable basis for the calculation of the amounts set
forth therein and does not contain any manifest error. The Borrower shall pay
such Lender or Issuing Bank the amount shown as due on any such certificate
within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank
to demand compensation pursuant to this Section 2.13 shall not constitute a
waiver of such Lender's or Issuing Bank's right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender or
Issuing Bank pursuant to this Section 2.13 for any increased costs or reductions
incurred more than six months prior to the date that such Lender or Issuing
Bank, as the case may be, notifies the Borrower of the Change in Law giving rise
to such increased costs or reductions and of such Lender's or Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the six-month period referred to above shall be extended to include the period
of retroactive effect thereof.
SECTION 2.14. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice is permitted to be revocable
and is revoked in accordance herewith) or (d) the assignment of any Eurodollar
Loan other than on the last day of the Interest Period applicable
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thereto as a result of a request by the Borrower pursuant to Section 2.17, then,
in any such event, the Borrower shall compensate each Lender for the loss, cost
and expense attributable to such event. In the case of a Eurodollar Loan, the
loss to any Lender attributable to any such event shall be deemed to include an
amount determined by such Lender to be equal to the excess, if any, of (i) the
amount of interest that such Lender would pay for a deposit equal to the
principal amount of such Loan for the period from the date of such payment,
conversion, failure or assignment to the last day of the then current Interest
Period for such Loan (or, in the case of a failure to borrow, convert or
continue, the duration of the Interest Period that would have resulted from such
borrowing, conversion or continuation) if the interest rate payable on such
deposit were equal to the Adjusted LIBO Rate for such Interest Period, over (ii)
the amount of interest that such Lender would earn on such principal amount for
such period if such Lender were to invest such principal amount for such period
at the interest rate that would be bid by such Lender (or an affiliate of such
Lender) for U.S. dollar deposits from other banks in the eurodollar market at
the commencement of such period. A certificate of any Lender setting forth any
amount or amounts that such Lender is entitled to receive pursuant to this
Section 2.14 shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
SECTION 2.15. Taxes.
(a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.15) the Administrative Agent, Lender or Issuing Bank (as
the case may be) receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
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(c) The Borrower shall indemnify the Administrative Agent,
each Lender and each Issuing Bank, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section 2.15) paid by the Administrative Agent, such
Lender or Issuing Bank, as the case may be (and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto during the period
prior to the Borrower making the payment demanded under this paragraph (c)),
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to
the amount of such payment or liability delivered to the Borrower by a Lender or
an Issuing Bank, or by the Administrative Agent on its own behalf or on behalf
of a Lender or an Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower, such properly completed and
executed documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate.
SECTION 2.16. Payments Generally; Pro Rata Treatment;
Sharing of Set-Offs.
(a) The Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or under Section 2.13, 2.14 or 2.15, or otherwise) prior to 12:00
noon, New York City time, on the date when due, in immediately available funds,
without set-off or counterclaim. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day
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for purposes of calculating interest thereon. All such payments shall be made to
the Administrative Agent at such of its offices in New York City as shall be
notified to the relevant parties from time to time, except payments to be made
directly to an Issuing Bank as expressly provided herein and except that
payments pursuant to Sections 2.13, 2.14, 2.15 and 10.03 shall be made directly
to the Persons entitled thereto. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof, and the Borrower shall
have no liability in the event timely or correct distribution of such payments
is not so made. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in U.S. dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, to pay interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, to pay principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) Except to the extent otherwise provided herein: (i) each
borrowing of Loans of a particular Class from the Lenders under Section 2.01
hereof shall be made from the relevant Lenders, each payment of commitment fee
under Section 2.10 hereof in respect of Commitments of a particular Class shall
be made for account of the relevant Lenders, and each termination or reduction
of the amount of the Commitments of a particular Class under Section 2.03 hereof
shall be applied to the respective Commitments of such Class of the relevant
Lenders, pro rata according to the amounts of their respective Commitments of
such Class; (ii) Eurodollar Loans of any Class having the same Interest Period
shall be allocated pro rata among the relevant Lenders according to the amounts
of their Commitments or such Class (in the case of the making of Loans) or their
respective Loans of such Class (in the case of conversions and continuations of
Loans); (iii) each payment or prepayment by the Borrower of principal of Loans
of a particular Class shall be made for account of the relevant Lenders pro rata
in accordance with the respective unpaid principal amounts of the Loans of such
Class
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held by them; (iv) each payment by the Borrower of interest on Loans of a
particular Class shall be made for account of the relevant Lenders pro rata in
accordance with the amounts of interest on such Loans then due and payable to
the respective Lenders; and (v) each payment by the Borrower of participation
fees in respect of Letters of Credit shall be made for the account of the
Revolving Credit Lenders pro rata in accordance with the amount of participation
fees then due and payable to the Revolving Credit Lenders.
(d) If, at any time after the occurrence and during the
continuance of an Event of Default hereunder or under the Vendor Financing
Agreement, any Lender shall, by exercising any right of set-off or counterclaim
or otherwise (including through voluntary prepayment by the Restricted
Companies, or through the exercise of any remedies under, or payments made
pursuant to, the Restricted Company Guarantee and Security Agreement), obtain
payment in respect of any principal of or interest on any of its Loans (or
participations in LC Disbursements) of any Class resulting in such Lender
receiving payment of a greater proportion of the aggregate principal amount of
its Loans (and participations in LC Disbursements) of such Class and accrued
interest thereon than the proportion of such amounts received by any other
Lender of any other Class or any Vendor, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the Loans
(and LC Disbursements) of the other Lenders and the Vendors to the extent
necessary so that the benefit of such payments shall be shared by all the
Lenders and Vendors ratably in accordance with the aggregate amount of principal
of and accrued interest on their respective Loans (and participations in LC
Disbursements); provided that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans (or participations in LC Disbursements) to any assignee or participant,
other than to any Credit Party or any subsidiary or Affiliate thereof (as to
which the provisions of this paragraph shall apply). The Borrower consents to
the foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender or Vendor acquiring a participation pursuant to
the foregoing arrangements may exercise against the Borrower rights of set-off
and counterclaim with respect to such participation as fully as if such Lender
or Vendor were a direct creditor of the Borrower in the amount of such
participation.
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(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or any Issuing Bank entitled
thereto (the "Applicable Recipient") hereunder that the Borrower will not make
such payment, the Administrative Agent may assume that the Borrower has made
such payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Applicable Recipient the amount due. In such
event, if the Borrower has not in fact made such payment, then each Applicable
Recipient severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Applicable Recipient with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
Federal Funds Effective Rate.
(f) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(d), 2.04(e), 2.05(b) or 2.16(e), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Section until all such unsatisfied obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of
Lenders.
(a) If any Lender requests compensation under Section 2.13, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations, hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.13 or 2.15, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at
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its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 10.04), all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Credit Commitment is being assigned, each Issuing Bank), which
consents shall not unreasonably be withheld or delayed, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
Loans (and participations in LC Disbursements), accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(to the extent of such outstanding principal and accrued interest and fees) or
the Borrower (in the case of all other amounts) and (iii) in the case of any
such assignment resulting from a claim for compensation under Section 2.13 or
payments required to be made pursuant to Section 2.15, such assignment will
result in a reduction in such compensation or payments. A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
(c) If, in connection with a request by any Credit Party to
obtain the consent of the Lenders to a waiver, amendment or modification of any
of the provisions of this Agreement or any other Loan Document that requires the
consent of all of the Lenders under Section 10.02, one or more Lenders (the
"Declining Lenders") having Loans, LC Exposure and unused Commitments
representing not more than 2% of the sum of the total Loans, LC Exposure and
unused Commitments at such time have declined to agree to such request, then the
Borrower may, at its sole expense and effort, upon notice to such Lender(s) and
the Administrative Agent, require all (but not less than all) of such Declining
Lenders to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 10.04), all their interests, rights and
obligations under this Agreement to one or more assignees that shall assume such
obligations (any of which assignees may be another Lender, if a Lender accepts
such assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent (and, if a Revolving Credit
Commitment is being assigned, each Issuing Bank), which consents shall not
unreasonably be withheld or delayed, (ii) each such Declining Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
(and participations in LC Disbursements), accrued interest
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thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts), (iii) each of the
Vendors shall have agreed with such waiver, amendment or modification for
purposes of the Vendor Financing Agreement and the Loan Documents to which it is
a party and (iv) the Borrower shall have paid to each of the Lenders
compensation in an amount equivalent (taking into account the total Commitments,
LC Exposure and Loans of such other Lenders) to any compensation required to
induce the assignees to take such assignment from the Declining Lenders.
ARTICLE III
Guarantee by NCI
Section 3.01. The Guarantee. NCI hereby guarantees to each
Lender, each Issuing Bank and the Administrative Agent and their respective
successors and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the principal of and interest on the
Loans made by the Lenders to the Borrower, all LC Disbursements and all other
amounts from time to time owing to the Lenders, any Issuing Bank or either Agent
by the Borrower hereunder or under any other Loan Document, and all obligations
of the Borrower to any Lender under any Hedging Agreement, in each case strictly
in accordance with the terms thereof (such obligations being herein collectively
called the "Guaranteed Obligations"). NCI hereby further agrees that if the
Borrower shall fail to pay in full when due (whether at stated maturity, by
acceleration or otherwise) any of the Guaranteed Obligations, NCI will promptly
pay the same, without any demand or notice whatsoever, and that in the case of
any extension of time of payment or renewal of any of the Guaranteed
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, by acceleration or otherwise) in accordance with the terms of
such extension or renewal.
Section 3.02. Obligations Unconditional. The obligations of
NCI under Section 3.01 are absolute and unconditional irrespective of the value,
genuineness, validity, regularity or enforceability of this Agreement, the other
Loan Documents or any other agreement or instrument referred to herein or
therein, or any substitution, release or exchange of any other guarantee of or
security for any of the Guaranteed Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section
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3.02 that the obligations of NCI hereunder shall be absolute and unconditional
under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of NCI hereunder which shall remain
absolute and unconditional as described above:
(i) at any time or from time to time, without notice to
NCI, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions
hereof or of the other Loan Documents or any other agreement or
instrument referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right
hereunder or under the other Loan Documents or any other agreement or
instrument referred to herein or therein shall be waived or any other
guarantee of any of the Guaranteed Obligations or any security
therefor shall be released or exchanged in whole or in part or
otherwise dealt with; or
(iv) any lien or security interest granted to, or in
favor of, the Collateral Agent, any Issuing Bank or any Lender or
Lenders as security for any of the Guaranteed Obligations shall fail to
be perfected.
NCI hereby expressly waives diligence, presentment, demand of payment, protest
and all notices whatsoever, and any requirement that the Administrative Agent,
the Collateral Agent, any Issuing Bank or any Lender exhaust any right, power or
remedy or proceed against the Borrower hereunder or under the other Loan
Documents or any other agreement or instrument referred to herein or therein, or
against any other Person under any other guarantee of, or security for, any of
the Guaranteed Obligations.
Section 3.03. Reinstatement. The obligations of NCI under this
Article III shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of the Borrower in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, and NCI agrees that it will indemnify the
Administrative Agent, each
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Issuing Bank and each Lender on demand for all reasonable costs and expenses
(including fees of counsel) incurred by the Administrative Agent or such Issuing
Bank or Lender in connection with such rescission or restoration, including any
such costs and expenses incurred in defending against any claim alleging that
such payment constituted a preference, fraudulent transfer or similar payment
under any bankruptcy, insolvency or similar law.
Section 3.04. Subrogation. NCI hereby waives all rights of
subrogation or contribution, whether arising by contract or operation of law
(including, without limitation, any such right arising under the Federal
Bankruptcy Code of 1978, as amended) or otherwise by reason of any payment by it
pursuant to the provisions of this Article III and further agrees with the
Borrower for the benefit of each of its creditors (including, without
limitation, each Issuing Bank, each Lender and the Administrative Agent) that
any such payment by it shall constitute a contribution of capital by NCI to the
Borrower.
Section 3.05. Remedies. NCI agrees that, as between NCI and
the Lenders, the obligations of the Borrower hereunder may be declared to be
forthwith due and payable as provided in Article VIII or Section 2.04(i), as
applicable (and shall be deemed to have become automatically due and payable in
the circumstances provided in Article VIII or Section 2.04(i), as applicable)
for purposes of Section 3.01 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against the Borrower and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by the
Borrower) shall forthwith become due and payable by NCI for purposes of Section
3.01.
Section 3.06. Instrument for the Payment of Money. NCI hereby
acknowledges that the guarantee in this Article III constitutes an instrument
for the payment of money, and consents and agrees that any Issuing Bank, any
Lender or the Administrative Agent, at its sole option, in the event of a
dispute by NCI in the payment of any moneys due hereunder, shall have the right
to bring motion-action under New York CPLR Section 3213.
Section 3.07. Continuing Guarantee. The guarantee in this
Article III is a continuing guarantee, and shall apply to all Guaranteed
Obligations whenever arising.
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ARTICLE IV
Representations and Warranties
NCI and each Restricted Company represents and warrants to the
Lenders and the Agents, as to itself and each of its subsidiaries, that:
SECTION 4.01. Organization; Powers. NCI is duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Each of the Restricted Companies is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization. Each Credit
Party has all requisite power and authority under their respective
organizational documents to carry on its business as now conducted and, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 4.02. Authorization; Enforceability. The Transactions
are within the corporate power of each Credit Party and have been duly
authorized by all necessary corporate and, if required, stockholder action on
the part of such Credit Party. This Agreement has been duly executed and
delivered by each Credit Party and constitutes a legal, valid and binding
obligation of such Credit Party, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 4.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, (b) will not
violate any applicable law, policy or regulation or the charter, by-laws or
other organizational documents of any Credit Party or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon any Credit Party, or any
of its assets, or give rise to a right thereunder to require any payment to be
made by any Credit Party, and (d) except for the Liens created by the Security
Documents, will not result in the creation or imposition of any Lien on any
asset of the Credit Parties.
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SECTION 4.04. Financial Condition; No Material Adverse
Change.
(a) The Credit Parties have heretofore delivered to the
Lenders the following financial statements:
(i) the audited consolidated balance sheet and statements of
operations, changes in stockholders' equity and cash flows of NCI and
its subsidiaries as of and for the fiscal year ended December 31, 1995,
reported on by Deloitte & Touche LLP, independent public accountants;
(ii) the unaudited consolidated balance sheet and statements
of changes in stockholders' equity and cash flows of NCI and its
subsidiaries as of and for the six-month period ended June 30, 1996,
together with the unaudited consolidated statements of operations for
such period and for the fiscal quarter ended June 30, 1996, in each
case certified by a Financial Officer of NCI;
(iii) pro forma combined balance sheet and statements of
operations, changes in stockholders' equity and cash flows of the
Restricted Companies as of and for the fiscal year ended December 31,
1995, certified by a Financial Officer of the Borrower; and
(iv) pro forma combined balance sheet and statements of
changes in stockholders' equity and cash flows of the Restricted
Companies as of and for the six-month period ended June 30, 1996,
together with the pro forma combined statements of operations for such
period and for the fiscal quarter ended June 30, 1996, in each case
certified by a Financial Officer of NCI.
Such financial statements present fairly, in all material respects, the
consolidated financial position and results of operations and cash flows of NCI
and its subsidiaries, and the pro forma combined financial position and results
of operations and cash flows of the Restricted Companies, as of such dates and
for such periods in accordance with GAAP, subject to year-end audit adjustments
and the absence of footnotes in the case of the statements as at and for the
fiscal quarter and six-month period ended June 30, 1996.
(b) Since June 30, 1996, there has been no material adverse
change in the business, assets, operations, prospects or condition, financial or
otherwise, of NCI and its subsidiaries, or of the Restricted Companies, in each
case taken as a whole.
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(c) None of the Credit Parties has on the date hereof any
contingent liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any unfavorable commitments
in each case that are material, except as referred to or reflected or provided
for in the balance sheets as at June 30, 1996 referred to above, or pursuant to
the Vendor Equipment Agreements.
SECTION 4.05. Properties.
(a) Each of the Credit Parties and their respective
subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) The Restricted Companies have heretofore delivered to the
Collateral Agent a complete and correct list in all material respects, as of
July 31, 1996, of all of the real property interests owned or leased by the
Restricted Companies as of such date, indicating in each case whether the
respective property is owned or leased (and, if leased, the type of the
operations of the Restricted Companies conducted or to be conducted on such
property), the identity of the owner or lessor (to the extent available) and
lessee and the city or market in which the respective property is located.
(c) Each of the Credit Parties and their respective
subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business,
and the use thereof by the Credit Parties and their respective subsidiaries does
not infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 4.06. Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before
any arbitrator or Governmental Authority pending against or, to the knowledge of
any of the Credit Parties, threatened against or affecting any of the Credit
Parties or any of their respective subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii)
that involve any of the Basic Documents or the Transactions.
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(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, no Credit Party
nor any of their respective subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or any inquiry, allegation, notice or other
communication from any Governmental Authority concerning its compliance with
any Environmental Law or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 4.07. Compliance with Laws and Agreements. Each of the
Credit Parties and their respective subsidiaries is in compliance with all laws,
regulations, policies and orders of any Governmental Authority applicable to it
or its property and all indentures, agreements and other instruments binding
upon it or its property, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 4.08. Investment and Holding Company Status. No Credit
Party nor any of their respective subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended, or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935, as amended.
SECTION 4.09. Taxes. Each of the Credit Parties and their
respective subsidiaries has timely filed or caused to be filed all Tax returns
and reports required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which such Restricted
Company has set aside on its books adequate reserves with respect thereto in
accordance with GAAP or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with
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all other such ERISA Events for which liability is reasonably expected to occur,
could reasonably be expected to result in a Material Adverse Effect. As of the
date hereof, none of the Restricted Companies has, or within the past six years
has contributed to or been required to contribute to, any "employee benefit
pension plan" subject to Title IV of ERISA.
SECTION 4.11. Disclosure. The Credit Parties have disclosed to
the Lenders all agreements, instruments and corporate or other restrictions to
which any Credit Party is subject, and all other matters known to any Credit
Party, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Credit
Parties to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not materially misleading; provided that, with respect to projected
financial information, the Credit Parties represent only that such information
was prepared in good faith based upon assumptions believed to be reasonable at
the time.
SECTION 4.12. Material Agreements and Liens.
(a) Part A of Schedule 4.12 is a complete and correct list, as
of the date of this Agreement, of each credit agreement, loan agreement,
indenture, purchase agreement, guarantee, letter of credit or other arrangement
providing for or otherwise relating to any Indebtedness or any extension of
credit (or commitment for any extension of credit) to, or guarantee by, any of
the Credit Parties or any of their respective subsidiaries (other than the
agreements relating to the Existing Vendor Indebtedness) the aggregate principal
or face amount of which equals or exceeds (or may equal or exceed) $5,000,000,
and the aggregate principal or face amount outstanding or that may become
outstanding under each such arrangement is correctly described in Part A of said
Schedule 4.12.
(b) Part B of Schedule 4.12 hereto is a complete and correct
list, as of the date of this Agreement, of each Lien securing Indebtedness of
any Person the aggregate principal or face amount of which equals or exceeds (or
may equal or exceed) $5,000,000 and covering any property of any of the Credit
Parties or any of their respective subsidiaries (other than the Liens securing
the Existing Vendor Indebtedness), and the aggregate
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Indebtedness secured (or that may be secured) by each such Lien and the property
covered by each such Lien is correctly described in Part B of said Schedule
4.12.
SECTION 4.13. Regulatory Matters.
(a) License Information. The Restricted Companies have
heretofore delivered to the Administrative Agent a list, as of July 31, 1996 and
complete and correct in all material respects, of all SMR Licenses and other FCC
Licenses (and all PUC Authorizations material to the Mobile Communications
Business of the Restricted Companies) held by any Restricted Company as well as
all SMR Licenses and other FCC Licenses or PUC Authorizations for which any of
the Restricted Companies is providing management services, which list contains:
(i) for each such FCC License (including each SMR
License), the call sign, the name of the licensee, the city or other
location, and state, in which the primary site (i.e. the site which
receives co-channel interference protection) is located, and the number
of channels subject to such SMR License; and
(ii) for each such PUC Authorization, the geographic
area covered by such Authorization, the services that may be provided
thereunder, if any.
The FCC Licenses and PUC Authorizations specified in such list
and material to the Mobile Communications Business of the Restricted Companies
are valid and in full force and effect without conditions except for such
conditions as are generally applicable to holders of FCC Licenses and such
Authorizations. No event (including the pendency of any petition to deny,
informal objection, petition to revoke, or other complaint, investigation or
proceeding before the FCC or any PUC) has occurred and is continuing which could
reasonably be expected to (i) result in the imposition of a material forfeiture
or the revocation, termination or adverse modification of any FCC License or PUC
Authorization specified in such list, held by a Restricted Company and material
to the Mobile Communications Business of the Restricted Companies or (ii)
materially and adversely affect any rights of the Restricted Companies
thereunder that are material to the Mobile Communications Business of the
Restricted Companies.
None of the Restricted Companies has any reason to believe or
has any knowledge that the FCC Licenses and PUC Authorizations specified in such
list and material to the Mobile Communications Business of the Restricted
Companies will not be
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renewed in the ordinary course. The Restricted Companies (taking into account
the Commitments hereunder and the "Commitments" under the Vendor Financing
Agreement and the other financial sources reflected or assumed in the business
plan of NCI set forth in the Information Memorandum) have sufficient time,
materials, equipment, contract rights and other required resources to complete,
in a timely fashion and in full, construction of each SMR System they currently
operate or currently plan to operate in compliance with all applicable technical
standards and construction requirements and deadlines. The current ownership and
operation by each of the Restricted Companies of its Mobile Communications
Business comply with the Communications Act of 1934, as amended, and all rules,
regulations and policies of the FCC, any PUC and of any other Governmental
Authority, except for such non-compliance that could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect.
(b) Shared Frequency Agreements, Etc. Except for the
agreements set forth in the list delivered pursuant to paragraph (a) of this
Section 4.13, none of the Restricted Companies is, on the date thereof, a party
to (i) any agreement for the shared use of frequencies, (ii) any management,
loading or similar agreements with respect to the FCC Licenses held by the
Restricted Companies, or (iii) any agreement pursuant to which the Restricted
Companies have agreed to share with others any portion of the revenues derived
from any such FCC Licenses, or pursuant to which such FCC Licenses shall be
subject to any right on the part of any other Person to require any Restricted
Companies to sell any such FCC Licenses, which if terminated, amended or
modified, individually or collectively, would have a Material Adverse Effect.
(c) Condition of Systems. All of the material properties,
equipment and systems owned, leased or managed by each Restricted Company are,
and (to the best knowledge of the Restricted Companies) all such material
property, equipment and systems to be acquired or added in connection with any
contemplated system expansion or construction will be, in good repair, working
order and condition and are and will be in compliance with all terms and
conditions of the FCC Licenses and all standards or rules imposed by any
Governmental Authority (including the FCC or any PUC) or as imposed under any
agreements with telephone companies and customers, except for any such failure
to be in good repair, working order or condition, and any such non-compliance,
that could not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect.
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(d) Fees. Each of the Restricted Companies (as to all SMR
Systems owned, leased or managed by any of such entities) has paid all
franchise, license or other fees and charges which have become due pursuant to
any Authorization in respect of its business and has made appropriate provision
as is required by GAAP for any such fees and charges which have accrued.
(e) License Compliance. Except as specifically set forth in
Schedule 4.13 hereto, each of the Restricted Companies (as to all SMR Systems
owned or managed by any of such entities) has secured all material
Authorizations with the FCC, and, if applicable, any PUC and any other
Governmental Authority exercising jurisdiction over the Mobile Communications
Business of the Restricted Companies (or the construction of delivery systems
therefor) required for the conduct of the business and operations of the Mobile
Communications Business as currently conducted. All management agreements
identified in the list delivered pursuant to paragraph (a) above, and all
agreements among the Restricted Companies with respect to the operation of
licenses, are in compliance with all applicable laws as well as the rules,
orders and policies of any Governmental Authority, including the FCC and
applicable PUC's, except for any non-compliance that would not materially and
adversely affect any rights of the Restricted Companies thereunder. The
Restricted Companies have timely filed all required reports, applications,
certificates, and other documents with the FCC and any applicable PUC or other
Governmental Authority with respect to any SMR Systems owned or managed by any
Restricted Company, except where failure to file any such documents could not
result in a Material Adverse Effect.
(f) Coverage. The aggregate population in the geographic
regions covered by the SMR Licenses held by the Restricted Companies as at the
date hereof is at least equal to 250,000,000.
SECTION 4.14. Subsidiaries. Set forth in Schedule 4.14 is a
complete and correct list of all of the subsidiaries of the Credit Parties as of
the date hereof together with, for each such subsidiary, (a) the jurisdiction of
organization of such subsidiary, (b) each Person holding ownership interests in
such subsidiary and (c) the nature of the ownership interests held by each such
Person and the percentage of ownership of such subsidiary represented by such
ownership interests. Except as disclosed in Schedule 4.14, (i) each Credit Party
and its respective subsidiaries owns, free and clear of Liens (other than Liens
created pursuant to the Security Documents and, prior to the Effective Date,
Liens securing the Existing Vendor Indebtedness), and has the unencumbered right
to
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vote, all outstanding ownership interests in each Person shown to be held by
it in Schedule 4.14, (y) all of the issued and outstanding capital stock of each
such Person organized as a corporation is validly issued, fully paid and
nonassessable and (z) there are no outstanding Equity Rights with respect to
such Person.
SECTION 4.15. Capitalization of NCI. NCI has heretofore
delivered to the Administrative Agent a complete and correct copy of its Proxy
Statement dated June 7, 1995 pursuant to which the approval of the shareholders
of NCI was solicited, inter alia, with respect to the "Motorola Transaction"
therein referred to and the Securities Purchase Agreement dated as of April 4,
1995 among NCI, the Digital Radio, L.L.C. (the "McCaw Investor") and Craig O.
McCaw. Such Proxy Statement attaches, as Exhibits thereto, true and complete
copies of the Agreement and Plan of Contribution and Merger (including all
amendments thereto) pursuant to which such Motorola Transaction was consummated,
and such Securities Purchase Agreement, and neither of such Agreement and Plan
of Contribution and Merger, nor such Securities Purchase Agreement, has been
subsequently amended, modified or supplemented. In addition, NCI has heretofore
delivered to the Administrative Agent a complete and correct copy of the Stock
Purchase Agreement dated as of September 14, 1992, as amended, pursuant to which
it has granted options to Comcast FCI, Inc. ("Comcast").
As of the date hereof, none of the Equity Rights described in
said Proxy Statement, or granted pursuant to said Stock Purchase Agreement,
pursuant to which Motorola, the McCaw Investor or Comcast are entitled to
acquire shares of NCI capital stock (all of which Equity Rights are described in
Part A of Schedule 4.15) have been amended, modified or supplemented and (ii)
except as set forth in Part B of Schedule 4.15, there are no outstanding
obligations of NCI, any Restricted Company or any of their subsidiaries to
repurchase, redeem, or otherwise acquire any shares of capital stock of NCI or
any Restricted Company, nor are there any outstanding obligations of NCI, any
Restricted Company or any of their subsidiaries to make payments to any Person,
such as "phantom stock" payments, where the amount thereof is calculated with
reference to the fair market value or equity value of NCI, any Restricted
Company or any of their subsidiaries.
SECTION 4.16. Vendor Equipment Agreements. The Restricted
Companies have heretofore delivered to the Administrative Agent (or to Special
Counsel for delivery to the Administrative Agent) a true and complete copy of
each Vendor
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Equipment Agreement (including all modifications and supplements thereto and all
schedules and exhibits delivered thereunder).
SECTION 4.17. Public Note Indentures. NCI has heretofore
delivered to the Administrative Agent a true and complete copy of each Public
Note Indenture (including all modifications and supplements thereto). The
aggregate outstanding principal amount of Existing Vendor Indebtedness that may
be permitted to be outstanding under the "Motorola Agreements" and "Northern
Telecom Agreements" in accordance with the definitions of such respective terms
under the Public Note Indentures is $260,000,000 and $40,000,000, respectively.
The Restricted Companies constitute all of the "Restricted Subsidiaries" on the
date hereof under and as defined in the Public Note Indentures.
ARTICLE V
Conditions
SECTION 5.01. Effective Date. The obligations of the Lenders
to make Loans, and of any Issuing Bank to issue Letters of Credit, hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 10.02):
(a) Counterparts of Agreement. The Administrative Agent (or
Special Counsel) shall have received from each party hereto either (i)
a counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to Credit Parties. The Administrative
Agent (or Special Counsel) shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of Jones, Day, Reavis & Pogue, counsel to the
Credit Parties, covering such matters relating to the Credit Parties,
this Agreement, the other Loan Documents or the Transactions as the
Required Lenders shall request (and each Credit Party hereby requests
such counsel to deliver such opinion). To the extent deemed appropriate
by the Restricted Companies, internal corporate matters in such opinion
(such as due incorporation and the like) may be
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rendered in a separate opinion from the General Counsel of NCI.
(c) Opinion of Special Communications Counsel. The
Administrative Agent (or Special Counsel) shall have received a
favorable written opinion (addressed to the Administrative Agent and
the Lenders and dated the Effective Date) of Dow, Lohnes & Albertson,
special communications counsel to the Credit Parties, covering such
matters relating to the Credit Parties, this Agreement, the other Loan
Documents or the Transactions as the Required Lenders shall request
(and each Credit Party hereby requests such counsel to deliver such
opinion).
(d) Opinion of Special Counsel. The Administrative Agent shall
have received a favorable written legal opinion (addressed to the
Administrative Agent and the Lenders and dated the Effective Date) of
Special Counsel, substantially in the form of Exhibit B (and each of
The Chase Manhattan Bank, Morgan Guaranty Trust Company of New York and
The Toronto-Dominion Bank, as arrangers of the credit facilities
contemplated hereby, requests Special Counsel to deliver such opinion).
(e) Corporate Matters. The Administrative Agent (or Special
Counsel) shall have received such documents and certificates as the
Administrative Agent or Special Counsel may reasonably request relating
to the organization, existence and good standing of each Credit Party,
the authorization of the Transactions and any other legal matters
relating to the Credit Parties, this Agreement, the other Loan
Documents or the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent and its counsel.
(f) Financial Officer Certificate. The Administrative Agent
(or Special Counsel) shall have received a certificate, dated the
Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) through (d) of Section 5.02.
(g) Notes. The Administrative Agent (or Special Counsel) shall
have received for each Lender that shall have requested a promissory
note, a duly completed and executed promissory note for such Lender.
(h) Restricted Company Guarantee and Security
Agreement. The Collateral Agent (or Special Counsel) shall
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have received (i) from each Restricted Company a counterpart of the
Restricted Company Guarantee and Security Agreement signed on behalf of
such Restricted Company and (ii) the stock certificates identified
under the name of such Restricted Company in Annex 1 thereto,
accompanied by undated stock powers executed in blank. In addition,
each Restricted Company shall have taken such other action (including
delivering to the Collateral Agent, for filing, appropriately completed
and duly executed copies of Uniform Commercial Code financing
statements) as the Collateral Agent shall have requested in order to
perfect the security interests created pursuant to the Restricted
Company Guarantee and Security Agreement.
(i) Concentration Account; Lock Boxes. The Collateral Agent
shall have received evidence satisfactory to it that, as contemplated
by Article V of the Restricted Company Guarantee and Security
Agreement, the Restricted Companies shall have implemented arrangements
under which all cash generated by the Restricted Companies in the
ordinary course of their business operations will be deposited directly
into lock box or segregated depository accounts at banks that have
acknowledged the Lien of the Collateral Agent in such cash and that
have agreed to remit such cash to the Concentration Account under and
as defined in the Restricted Company Guarantee and Security Agreement.
(j) Mortgages. The Collateral Agent shall have received from
each Restricted Company, duly executed collateral lease assignments, in
such form as shall be satisfactory to the Collateral Agent, with
respect to the leasehold interests of such Restricted Company.
(k) Intercreditor and Collateral Agency Agreement. The
Administrative Agent (or Special Counsel) shall have received from each
Restricted Company and each Vendor a counterpart of the Intercreditor
and Collateral Agency Agreement signed on behalf of such party (or, in
the case of a Vendor, written evidence satisfactory to the
Administrative Agent, which may include telecopy transmission of a
signed signature page of the Intercreditor and Collateral Agency
Agreement, that such Vendor has signed a counterpart of the
Intercreditor and Collateral Agency Agreement).
(l) Vendor Financing Agreement. The Administrative
Agent shall have received evidence satisfactory in form and
substance to it that the Restricted Companies, Motorola and
NTFC Capital shall have entered into the Vendor Financing
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Agreement (which shall be an amendment, restatement and consolidation
of the agreements pursuant to which the Existing Vendor Indebtedness is
outstanding) providing for financing to be made available to the
Borrower by
(i) Motorola in an aggregate principal amount at least
equal to $305,000,000 (of which at least $110,000,000 shall be
outstanding on the Effective Date) and
(ii) NTFC Capital in an aggregate principal amount at
least equal to $40,000,000 (all of which shall be outstanding
on the Effective Date),
and containing representations, conditions, covenants and defaults
substantially identical to the corresponding provisions of this
Agreement, and containing such other provisions as shall be
satisfactory to the Required Lenders, together with evidence that the
conditions to effectiveness therein specified shall have been, or shall
on the Effective Date shall be, satisfied; and the Administrative Agent
shall have received copies of each of such agreements certified by a
Financial Officer as being true, correct and complete copies thereof,
together with a copy of all documents delivered in connection with the
closing thereunder (which shall include, in the case of any opinion
delivered in connection therewith not addressed to the Lenders, a
reliance letter from the Person delivering such opinion in favor of the
Agents and the Lenders hereunder).
(m) Vendor Equipment Agreements. The Administrative Agent
shall have received evidence that all right, title and interest of NCI
under each Vendor Equipment Agreement shall have been assigned to the
Borrower (and that the respective Vendor shall have consented to such
assignment), in each case pursuant to instruments satisfactory in form
and substance to the Administrative Agent and the Lenders.
(n) iDEN Technology. The Administrative Agent shall have
received copies of certifications delivered by NCI to Motorola under
the respective Vendor Equipment Agreements entered into with Motorola
to the effect that the "Chicago System" has achieved "Conditional
Acceptance" and "Final Acceptance" (as such terms are defined in such
Vendor Equipment Agreements), and such other evidence requested by the
Administrative Agent (or any Lender through the Administrative Agent)
reasonably satisfactory to the Required Lenders concerning the
operational performance of
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the SMR System operating in the Chicago market and utilizing the
reconfigured iDEN technology platform.
(o) Reorganization. The Administrative Agent shall have
received evidence satisfactory to it that, on or before the Effective
Date, the Reorganization shall have been completed. In addition, the
Administrative Agent (or Special Counsel) shall have received copies of
any agreements, instruments and other documents executed and delivered
by NCI or the Restricted Companies in connection with the
Reorganization.
(p) License Companies. The Administrative Agent shall have
received evidence satisfactory to it that applications for the transfer
to License Companies, in accordance with the requirements of Section
7.09(b), of all FCC Licenses and PUC Authorizations held by First Tier
Restricted Companies have been submitted to the FCC or applicable PUC.
(q) Fees and Expenses. The Administrative Agent shall have
received all fees and other amounts due and payable on or prior to the
Effective Date, including, to the extent invoiced, reimbursement or
payment of all out-of-pocket expenses required to be reimbursed or paid
by the Borrower hereunder.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans, and of the Issuing
Banks to issue Letters of Credit, hereunder shall not become effective unless
each of the foregoing conditions is satisfied (or waived pursuant to Section
10.02) at or prior to 3:00 p.m., New York City time, on October 31, 1996 (and,
in the event such conditions are not so satisfied or waived, the Commitments
shall terminate at such time).
SECTION 5.02. Each Extension of Credit. The obligation of each
Lender to make a Loan on the occasion of any Borrowing, and of any Issuing Bank
to issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties. The representations and
warranties of each Credit Party set forth in this Agreement and the
other Loan Documents shall be true and correct on and as of the date of
such Borrowing, or (as applicable) the date of issuance, amendment,
renewal or extension of such Letter of Credit, both before and after
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giving effect thereto and to the use of the proceeds thereof (or, if
any such representation or warranty is expressly stated to have been
made as of a specific date, such representation or warranty shall be
true and correct as of such specific date).
(b) No Defaults. At the time of and immediately after giving
effect to such Borrowing, or (as applicable) the date of issuance,
amendment, renewal or extension of such Letter of Credit, no Default
shall have occurred and be continuing.
(c) Public Note Indenture Compliance. If such Borrowing is of
Tranche B Revolving Credit Loans, Tranche C Term Loans or Tranche D
Term Loans, the Borrower shall have delivered to the Administrative
Agent a certificate of a Financial Officer demonstrating that one of
the following shall be true: (i) after giving effect to such Borrowing,
the aggregate amount of all outstanding Tranche B Revolving Credit
Loans, Tranche C Term Loans, Tranche D Term Loans and Indebtedness
under the Vendor Facilities (other than any such Loans or Indebtedness
the proceeds of which were applied to refinance Existing Vendor
Indebtedness), and any other Indebtedness of NCI and its subsidiaries
that utilizes the exceptions referred to in the definition of
"Permitted Debt Limitation" in Section 1.01, will not exceed the
Permitted Debt Limitation, (ii) the proceeds of such Borrowing will be
applied to refinance Existing Vendor Indebtedness (or Indebtedness
outstanding under the Vendor Facilities the proceeds of which were
applied to refinance Existing Vendor Indebtedness) or (iii) such
Borrowing is permitted to be incurred on such date under Section 1008
of each Public Note Indenture (other than the January 1994
Indenture)and under Section 10.8 of the January 1994 Indenture.
(d) Motorola Tranche B Borrowing. If after giving effect to
such Borrowing, or such issuance, amendment, renewal or extension of
such Letter of Credit, the aggregate principal amount of the Loans and
LC Exposure shall be equal to or greater than 50% of the sum of (i) the
then outstanding Commitments hereunder of any Class that have not
terminated plus (ii) the then outstanding principal amount of Loans
hereunder of any Class with respect to which the Commitments have
terminated, then, concurrently with such Borrowing, or such issuance,
amendment, renewal or extension, the Borrower shall be making a
borrowing under the Motorola
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Tranche B in an amount equivalent to the amount being borrowed, or the
increased LC Exposure, hereunder (i.e. so that the amount of such
borrowing under Motorola Tranche B as a percentage of the available
"Commitments" under Motorola Tranche B is at least equal to the
percentage of the available Commitments hereunder being utilized by
such Borrowing or such increased LC Exposure).
(e) Secured Indebtedness to Revenue Ratio. After giving effect
to such Borrowing, or such issuance, amendment, renewal or extension of
such Letter of Credit, the Secured Indebtedness to Revenue Ratio shall
not exceed the applicable amount set forth in Section 7.08(f).
Each Borrowing Request, or request for issuance, amendment, renewal or extension
of a Letter of Credit, shall be deemed to constitute a representation and
warranty by the Borrower (both as of the date of such Borrowing Request, or
request for issuance, amendment, renewal or extension, and as of the date of the
related Borrowing or issuance, amendment, renewal or extension) as to the
matters specified in paragraphs (a), (b), (d) and (e) of this Section 5.02.
ARTICLE VI
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each of the Credit Parties
covenants and agrees with the Lenders that:
SECTION 6.01. Financial Statements and Other Information. NCI
and the Borrower will furnish to the Administrative Agent and each Lender:
(a) within 120 days after the end of each fiscal year, the
audited consolidated statements of operations, changes in stockholders'
equity and cash flows of NCI and its subsidiaries for such fiscal year,
and the related audited consolidated balance sheet for NCI and its
subsidiaries as of the end of such fiscal year, setting forth in each
case in comparative form the corresponding figures for the previous
fiscal year, all reported on by Deloitte & Touche LLP, or other
independent public accountants of recognized national standing (without
a "going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit), to the
effect that such audited consolidated financial statements present
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fairly in all material respects the financial condition and results of
operations of NCI and its subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 120 days after the end of each fiscal year, the
unaudited combined statements of operations, changes in stockholders'
equity and cash flows of the Restricted Companies for such fiscal year,
and the related unaudited combined balance sheet for the Restricted
Companies as of the end of such fiscal year, setting forth in each case
in comparative form the corresponding figures for the previous fiscal
year, all certified by a Financial Officer of the Borrower as
presenting fairly in all material respects the financial condition and
results of operations of the Restricted Companies on a combined basis
in accordance with GAAP consistently applied, which financial
statements shall be accompanied with a reconciliation, in form and
detail satisfactory to the Administrative Agent, to the audited
financial statements for NCI and its subsidiaries for such fiscal year
delivered pursuant to clause (a) above;
(c) within 60 days after the end of each fiscal quarter of
each fiscal year:
(i) the consolidated statements of operations
of NCI and its subsidiaries (and, separately stated, the
combined statements of operations of the Restricted Companies)
for such fiscal quarter and for the then elapsed portion of
the fiscal year,
(ii) the consolidated statements of changes in
stockholders' equity and cash flows of NCI and its
subsidiaries (and, separately stated, the combined statements
of changes in stockholders' equity and cash flows of the
Restricted Companies) for the then elapsed portion of the
fiscal year and
(iii) the related consolidated balance sheet
for NCI and its subsidiaries (and, separately stated, the
related combined balance sheet for the Restricted Companies)
as at the end of such fiscal quarter,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by a
Financial Officer of NCI or the Borrower (as the case may be) as
presenting fairly, in all material respects, the financial condition
and results of
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operations of NCI and its subsidiaries on a consolidated basis (or of
the Restricted Companies on a combined basis) in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and
the absence of footnotes;
(d) concurrently with any delivery of financial statements
under clause (a), (b) or (c) above, a certificate of a Financial
Officer of each of NCI and the Borrower (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 7.01(d), 7.01(g), 7.03(f),
clauses (iv) through (viii) of 7.04(a), 7.05(c) and 7.08 (which
calculations shall include the corresponding figures for the
most-recently ended fiscal quarter with respect to Capital Expenditures
and Debt Service necessary to demonstrate compliance with said Section
7.08) and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the later of the date of the
financial statements as at December 31, 1995 referred to in Section
4.04 and the date of the last certificate delivered pursuant to this
clause (d) and, if any such change has occurred, specifying the effect
of such change on the financial statements accompanying such
certificate;
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by any Credit Party with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the functions
of said Commission, or with any national securities exchange, or
distributed by NCI to the holders of the Public Notes or to its
shareholders generally;
(f) as soon as available and in any event within 45 days after
the end of each fiscal quarter of each fiscal year of the Borrower, a
report identifying any SMR License or PUC Authorization material to the
Mobile Communications Business of the Restricted Companies that has
been lost, surrendered or canceled during such period, and within 10
Business Days of the receipt by any of the Restricted Companies of
notice that any such SMR License or PUC Authorization has been lost or
canceled or is subject to any action that might reasonably be expected
to cause such loss or cancellation, copies of any such notice
accompanied by a report describing the measures undertaken by the
Restricted Companies to prevent such loss or cancellation (and the
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anticipated impact, if any, that such loss or cancellation will have
upon the Mobile Communications Business of the Restricted Companies);
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of any Credit Party, or compliance with the terms of this
Agreement, as the Administrative Agent or any Lender may reasonably
request.
SECTION 6.02. Notices of Material Events. NCI and the Borrower
will furnish to the Administrative Agent and each Lender prompt written notice
of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting any Credit Party that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Restricted Companies in an
aggregate amount exceeding $10,000,000; and
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 6.02 shall be accompanied by a
statement of a Financial Officer or other executive officer of NCI or the
Borrower, as the case may be, setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
SECTION 6.03. Existence; Conduct of Business. Each of the
Credit Parties will do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence and the rights,
licenses, permits, privileges and franchises material to the conduct of its
business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.03. In that
connection, each of the Restricted Companies shall take any and all necessary
and appropriate action to maintain all of the SMR Licenses and other FCC
Licenses and PUC Authorizations material
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to the Mobile Communications Business of the Restricted Companies in full force
and effect without adverse modification, shall construct and operate each SMR
System and other ancillary system in compliance with applicable FCC Licenses and
PUC Authorizations, and shall otherwise comply in all material respects with the
terms of all FCC Licenses and PUC Authorizations as well as applicable laws,
rules, policies, decisions and orders of the FCC, any applicable PUC and any
other Governmental Authority, including new rules issued by the FCC with respect
to RF Emissions.
Without limiting the generality of the foregoing, each of the
Restricted Companies will:
(i) do all things necessary to maintain its corporate
existence separate and apart from NCI and the Unrestricted Companies
and any division thereof, including holding regular meetings of its
shareholders and Board of Directors and maintaining appropriate
corporate books and records (including current minute books);
(ii) not suffer any limitation on the authority of its
own officers and directors to conduct its business and affairs in
accordance with their independent business judgment, or authorize or
suffer any Person other than its own officers to conduct its business
and affairs in accordance with their independent business judgment, or
authorize or suffer any Person other than its own officers and
directors to act on its behalf with respect to matters (other than
matters customarily delegated to others under power of attorney) for
which a corporation's own officers and directors would customarily be
responsible;
(iii) maintain the operations of the Restricted Companies
separate and apart from the operations of NCI and the Unrestricted
Companies, including (A) following customary corporate formalities, (B)
identifying separately all of its assets from those of NCI and the
Unrestricted Companies, (C) when dealing with creditors of the
Restricted Companies, or supplying financial information to creditors
of the Restricted Companies, identifying the respective Restricted
Company as a separate legal entity, (D) if NCI shall issue account
statements on behalf of the Restricted Companies to customers of the
Restricted Companies at any time after the date 120 days following the
Effective Date, identifying that such statements are being delivered
"for the respective operating companies" (or words of similar import)
rendering the services covered by such statements and (E) accounting
for and managing all of its liabilities
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separately from those of NCI and the Unrestricted Companies,
including payment by it of all payroll and other administrative
expenses and taxes (except as contemplated by the Overhead Services
Agreement and the Tax Sharing Agreement) from its own assets; and
(iv) not commingle its funds with those of NCI or any
Unrestricted Company or use its funds for other than in the business
conducted by the Restricted Companies.
SECTION 6.04. Payment of Obligations. Each of the Credit
Parties will pay its obligations, including Tax liabilities, that, if not paid,
could result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) such Credit Party
has set aside on its books adequate reserves with respect thereto in accordance
with GAAP and (c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 6.05. Maintenance of Properties; Insurance. Each of
the Credit Parties will (a) keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and
tear excepted, and (b) maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customarily
maintained by companies engaged in the same or similar businesses operating in
the same or similar locations.
SECTION 6.06. Books and Records; Inspection Rights. Each of
the Credit Parties will keep proper books of record and account in which full,
true and correct entries are made of all dealings and transactions in relation
to its business and activities. Each of the Credit Parties will permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 6.07. Fiscal Year. The Credit Parties will not change
the last day of their fiscal year from December 31 of each year, or the last
days of the first three fiscal quarters in each of their fiscal years from March
31, June 30 and September 30 of each year, respectively.
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SECTION 6.08. Compliance with Laws. Each of the Credit Parties
will comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 6.09. Use of Proceeds.
(a) The proceeds of the Loans hereunder will be used for
capital expenditures, general corporate purposes (including the payment of
interest and fees hereunder and under the Vendor Financing Agreement), working
capital, international investments, spectrum acquisitions and refinancing of
existing Indebtedness of the Restricted Companies, in each case in compliance
with the applicable provisions of the Public Note Indentures and of this
Agreement.
(b) No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that entails a violation of any of the
Regulations of the Board, including Regulations G, U and X.
SECTION 6.10. Hedging Agreements. Within 90 days after the
Effective Date, the Borrower will enter into and, thereafter for a period of at
least three years measured from the Effective Date, maintain in full force and
effect one or more Hedging Agreements with one or more of the Lenders (and/or
with a bank or other financial institution having capital, surplus and undivided
profits of at least $500,000,000), that satisfy the following requirements:
(a) the notional principal amount of such Hedging
Agreement(s), together with the aggregate principal amount of
Indebtedness of NCI and the Restricted Companies bearing interest at a
fixed rate, shall be at least equal to 50% of the sum of the
Commitments hereunder and all other Indebtedness of NCI and the
Restricted Companies outstanding on the Effective Date; and
(b) each such Hedging Agreement shall enable the Restricted
Companies, as at any date, to protect themselves against three-month
London interbank offered rate fluctuations at rates, and in a manner,
reasonably satisfactory to the Required Lenders.
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SECTION 6.11. Certain Obligations Respecting Subsidiaries and
Collateral Security.
(a) Guarantors. In the event that any Restricted Company shall
form or acquire any new subsidiary after the date hereof (and in the event that
NCI shall form or acquire any new subsidiary after the date hereof constituting
a "Restricted Subsidiary" under and as defined in the Public Note Indentures or
shall designate an existing Unrestricted Subsidiary as a "Restricted Subsidiary"
under and as defined in the Public Note Indentures), such Credit Party will,
within five Business Days of such formation or acquisition, cause such new
subsidiary (or such "Restricted Subsidiary"):
(i) to execute and deliver to the Collateral Agent a
Joinder Agreement (and thereby become a party to this Agreement, as a
"Restricted Company" hereunder, and the Restricted Company Guarantee
and Security Agreement and Intercreditor and Collateral Agency
Agreement, as a "Guarantor" thereunder) and to pledge and grant a
security interest in its property pursuant to the Restricted Company
Guarantee and Security Agreement to the Collateral Agent for the
benefit of the Lenders and the Vendors;
(ii) to take such action (including delivering such
shares of stock and executing and delivering such Uniform Commercial
Code financing statements) as shall be necessary to create and perfect
valid and enforceable first priority Liens consistent with the
provisions of the Security Documents, on substantially all of the
shares of stock and property of such new subsidiary (or such
"Restricted Subsidiary") under the Restricted Company Guarantee and
Security Agreement; and
(iii) to deliver such proof of corporate action,
incumbency of officers and other documents (including, opinions of
counsel, but only in the case of any such subsidiary, or group of
subsidiaries, that in the aggregate have assets with a fair market
value exceeding $10,000,000 and then only to the extent requested by
the Administrative Agent or any Lender) as is consistent with those
delivered by each Restricted Company pursuant to Section 5.01 upon the
Effective Date or as either Agent shall have requested.
Notwithstanding the foregoing, no subsidiary that is an "Unrestricted
Subsidiary" under and as defined in the Public Note Indentures shall be
designated as a "Restricted Subsidiary" under and as defined in the Public Note
Indentures unless immediately
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prior thereto and after giving effect thereto, no Default shall have occurred
and be continuing.
(b) Ownership of Subsidiaries. Each Restricted Company will
take such action from time to time as shall be necessary to ensure that the
percentage of the equity capital of any class or character owned by it in any
subsidiary on the date hereof (or, in the case of any newly formed or newly
acquired subsidiary, on the date of formation or acquisition) is not at any time
decreased, other than by reason of transfers to another Restricted Company. In
the event that any additional shares of stock shall be issued by any subsidiary
of any Restricted Company, the respective Restricted Company shall forthwith
deliver to the Collateral Agent pursuant to the Restricted Company Guarantee and
Security Agreement the certificates evidencing such shares of stock, accompanied
by undated stock powers executed in blank and to take such other action as the
Collateral Agent shall request to perfect the security interest created therein
pursuant to the Restricted Company Guarantee and Security Agreement.
(c) Regulatory Matters. If after the date hereof there shall
be a change in law, or the rules or regulations of the FCC or applicable to any
PUC Authorization, the effect of which is to permit the granting of a security
interest in the FCC Licenses or such PUC Authorization, the Restricted Companies
will, within five Business Days after request therefor by the Collateral Agent
(or the Required Lenders through the Collateral Agent) execute and deliver all
such instruments and documents, and take such other actions, as shall be
necessary or desirable, or that the Collateral Agent (or the Required Lenders)
may reasonably request, in order to create and perfect (or to confirm the
creation and perfection of) a security interest in the FCC Licenses or such PUC
Authorization.
(d) Real Property Interests. Within 120 days after the end of
each fiscal year of the Borrower, the Restricted Companies will deliver to the
Collateral Agent a revised list, as of the last day of such fiscal year, of the
information heretofore delivered pursuant to Section 4.05(b), setting forth all
of the real property interests owned or leased by the Restricted Companies as at
such date, such list to be in the same form and detail, and otherwise to be
reasonably satisfactory, to the Collateral Agent. In addition, within 60 days
after the end of each fiscal quarter of each fiscal year of the Borrower, the
Restricted Companies will deliver to the Collateral Agent a supplement, as of
the last day of such fiscal quarter, with respect to the information heretofore
delivered pursuant to Section 4.05(b), setting forth any additional real
property
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interests owned or leased by the Restricted Companies since the date of
the most recent list or supplement, as the case may be, delivered pursuant to
Section 4.05(b) or this paragraph (d), such list to be in the same form and
detail, and otherwise to be reasonably satisfactory, to the Collateral Agent.
(e) License Information. Within 120 days after the end of each
fiscal year of the Borrower, the Restricted Companies will deliver to the
Administrative Agent a revised list, as of the last day of such fiscal year, of
the information heretofore delivered pursuant to Section 4.13(a), setting forth
all of the SMR Licenses and other FCC Licenses or PUC Authorizations held or
managed by any Restricted Company as at such date, such list to be in the same
form and detail, and otherwise to be reasonably satisfactory, to the
Administrative Agent. In addition, within 60 days after the end of each fiscal
quarter of each fiscal year of the Borrower, the Restricted Companies will
deliver to the Administrative Agent a supplement, as of the last day of such
fiscal quarter, with respect to the information heretofore delivered pursuant to
Section 4.13(a), setting forth any additional SMR Licenses and other FCC
Licenses or PUC Authorizations held or managed by any Restricted Company since
the date of the most recent list or supplement, as the case may be, delivered
pursuant to Section 4.13(a) or this paragraph (e), such list to be in the same
form and detail, and otherwise to be reasonably satisfactory, to the
Administrative Agent.
SECTION 6.12. Planned Option Issuances. NCI will, immediately
upon receipt thereof, contribute to one or more of the Restricted Companies, as
additional equity capital in respect of the common stock of the Restricted
Companies, any proceeds received by NCI after the date hereof from Planned
Option Issuances. In addition, NCI will from time to time make such
contributions of capital to the Restricted Companies as shall be necessary so
that the aggregate amount of Contributed Capital (i) as at December 31, 1997
shall be at least equal to $550,000,000 (ii) as at December 31, 1999 shall at
least equal to $1,100,000,000.
ARTICLE VII
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit shall have
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expired or terminated and all LC Disbursements shall have been reimbursed, the
Credit Parties covenant and agree with the Lenders that:
SECTION 7.01. Indebtedness. No Credit Party will create,
incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder;
(b) Indebtedness of the Borrower to the Vendors under the
Vendor Financing Agreement (including any increase therein after the
date hereof) in an aggregate principal amount not exceeding
$395,000,000 at any time;
(c) Indebtedness of the Credit Parties existing on the
date hereof and set forth in Schedule 7.01 and,
(i) in the case of the Public Notes,
extensions, renewals and refinancings thereof, so long as (x)
any such extension, renewal and refinancing does not increase
the outstanding stated principal amount of the Public Notes
being extended, renewed or refinanced, (y) the maturity date
of such extension, renewal or refinancing is later than the
maturity date of the Public Notes being extended, renewed or
refinanced and (z) the terms and conditions of such extension,
renewal or refinancing (other than in respect of interest,
which shall not be restricted), are no less favorable to NCI,
the Restricted Companies, the Lenders, the Vendors and the
Agents than the terms and conditions of the January 1994
Indenture and the Public Notes issued thereunder;
(ii) in the case of any such Indebtedness of
the Restricted Companies, extensions, renewals and
refinancings thereof, so long as (w) such extension, renewal
and refinancing does not increase the outstanding principal
amount of the Indebtedness being extended, renewed or
refinanced, (x) the Average Life to Maturity of the
Indebtedness so extended, renewed or refinanced shall not be
shorter than the Average Life to Maturity of the Indebtedness
being extended, renewed or refinanced, (y) at the time of such
extension, renewal or refinancing, and after giving effect
thereto, no Default shall have occurred and be continuing and
(z) the terms and conditions of such Indebtedness as so
extended, renewed or refinanced (other than in respect of
interest, which shall not be restricted) are no less favorable
to the Restricted
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Companies, the Lenders, the Vendors and the Agents than the
terms and conditions of this Agreement and the other Loan
Documents;
(d) additional Indebtedness incurred by NCI after the date
hereof, provided that (i) the sum of (x) the aggregate principal amount
of any such Indebtedness issued at par plus (y) the net proceeds of any
such Indebtedness issued at less than par, shall not exceed
$750,000,000, (ii) no scheduled payments, prepayments, redemptions or
sinking fund or like payments in respect of such Indebtedness shall be
required prior to September 30, 2003, (iii) such Indebtedness shall
provide that interest payable in respect thereof shall be capitalized
prior to the fifth anniversary of the date of incurrence of such
Indebtedness and (iv) the terms and conditions of such Indebtedness
(other than in respect of interest, which shall not be restricted) are
no less favorable to NCI, the Restricted Companies, the Lenders, the
Vendors and the Agents than the terms and conditions of the January
1994 Indenture and the Public Notes issued thereunder;
(e) Indebtedness of any Restricted Company to any
other Restricted Company;
(f) Indebtedness of the Borrower (and Guarantees thereof by
the other Restricted Companies pursuant to the Restricted Company
Guarantee and Security Agreement, and by NCI pursuant to Article III)
in an aggregate principal amount not exceeding $250,000,000 arising
pursuant to an amendment to this Agreement consented to by the Required
Lenders pursuant to which an additional Tranche of either Revolving
Credit or Term Loans (the "Tranche E Loans") will be provided for
herein, so long as (i) no payments in respect of Tranche E Loans shall
be scheduled prior to the then-latest maturity date for Loans hereunder
(except that the Tranche E Loans shall be entitled to participate, to
the same extent as Tranche C and Tranche D Term Loans hereunder, in
mandatory prepayments pursuant to Section 2.09(b)), (ii) each Lender
hereunder is afforded an opportunity to offer to participate in the
commitments to make Tranche E Loans hereunder (it being understood that
no Lender shall be obligated to offer to so participate in such
commitments) and (iii) each entity (not already a Lender hereunder)
that becomes a "Lender" hereunder in respect of the Tranche E Loans
shall have been consented to by the Administrative Agent (which
consent shall not be unreasonably withheld or delayed); and
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(g) other Indebtedness of the Restricted Companies in an
aggregate principal amount not exceeding $75,000,000 at any time
outstanding (or such greater amount to which the Required Lenders shall
have consented).
SECTION 7.02. Liens. NCI will not create, incur, assume or
permit to exist any Lien on any of its assets now owned or hereafter acquired by
NCI to secure Indebtedness (the "Relevant Indebtedness") without making
effective provision for securing the Indebtedness of NCI hereunder and under the
Vendor Financing Agreement (and, if NCI shall so determine, any other
Indebtedness of NCI which is not subordinated in right of payment to the
Indebtedness hereunder) equally and ratably with the Relevant Indebtedness as to
such assets for so long as the Relevant Indebtedness shall be so secured.
No Restricted Company will create, incur, assume or permit to
exist any Lien on any of its assets except:
(a) Liens created by the Security Documents securing the
obligations of the Restricted Companies hereunder (including in respect
of Tranche E Loans), under the Vendor Financing Agreement and under the
Security Documents, in each case subject to the provisions of the
Intercreditor Agreement;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of any Restricted
Company existing on the date hereof and set forth in Schedule 4.12;
provided that (i) such Lien shall not apply to any other property or
asset of any Restricted Company and (ii) such Lien shall secure only
those obligations that it secures on the date hereof (and
extensions, renewals and refinancings thereof that comply with the
requirements of Section 7.01(c));
(d) Liens securing judgments for the payment of money in an
amount not resulting (whether immediately or with the passage of time)
in an Event of Default under clause (k) of Article VIII;
(e) any Lien existing on any property or asset prior to the
acquisition thereof by a Restricted Company or existing on any property
or asset of any Person that becomes a subsidiary of a Restricted
Company after the date hereof prior to the time such Person becomes
such a subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person
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becoming a subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of any Restricted Company and
(iii) such Lien shall secure only Indebtedness in existence at the time
of such acquisition, and that is permitted under Section 7.01(g), and
no other Indebtedness or obligations; and
(f) Liens on fixed or capital assets acquired, constructed or
improved by the Restricted Companies; provided that (i) such Liens
secure Indebtedness permitted under Section 7.01(g), (ii) such Liens
and the Indebtedness secured thereby are incurred prior to or within 90
days after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby does not exceed the
cost of acquiring, constructing or improving such fixed or capital
assets and (iv) such Liens shall not apply to any other property or
assets of the Restricted Companies.
SECTION 7.03. Fundamental Changes. NCI shall not sell,
transfer, lease or otherwise dispose of any shares of stock of any of the
Restricted Companies owned by it. In addition, NCI shall not merge or
consolidate with any other Person unless (i) at the time thereof, and after
giving effect thereto, no Default shall have occurred and be continuing, (ii)
either (x) NCI shall be the continuing or surviving entity or (y) the continuing
or surviving entity shall have assumed all of the obligations of NCI hereunder
pursuant to an instrument in form and substance satisfactory to the
Administrative Agent and shall have delivered such proof of corporate action,
incumbency of officers, opinions of counsel and other documents as is consistent
with those delivered by NCI pursuant to Section 5.01 upon the Effective Date or
as the Administrative Agent shall have requested and (iii) the net worth
(determined on a consolidated basis in accordance with GAAP) of the continuing
or surviving entity immediately after giving effect thereto shall be greater
than or equal to the net worth (so determined) of NCI immediately prior to
giving effect thereto.
No Restricted Company will merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
to the extent that any such merger or consolidation would effect a transfer of
cash or other property constituting Collateral (whether or not such cash or
other property is in the possession, or under the control, of the Collateral
Agent), or sell, transfer, lease or otherwise dispose of (in one transaction or
in a series of transactions) any cash or other property (including the stock of
any of its subsidiaries), whether now owned or hereafter acquired,
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constituting Collateral (whether or not such cash or other property is in the
possession, or under the control, of the Collateral Agent), except that:
(a) any Restricted Company (other than a License Company) may
merge into the Borrower in a transaction in which the Borrower is the
surviving corporation;
(b) any Restricted Company may merge into any other Restricted
Company, provided that no such merger may involve a License Company,
unless all parties to such merger are License Companies and immediately
after giving effect thereto no Default shall have occurred and be
continuing;
(c) any Restricted Company may permit any other Person to
merge into or consolidate with such Restricted Company to the extent
permitted by Section 7.04(a)(viii);
(d) any Restricted Company other than the Borrower may sell,
transfer, lease or otherwise dispose of its assets to another
Restricted Company, provided that no such transaction may involve a
disposition of assets of any License Company unless the acquiror of
such assets is a License Company and immediately after giving effect
thereto no Default shall have occurred and be continuing;
(e) any Restricted Company may sell, transfer, lease or
otherwise dispose of its assets to any Person on an arms-length basis
in the ordinary course of business;
(f) any Restricted Company may sell any of its assets for
consideration in an amount not less than the fair market value of such
assets, provided that (A) at least 85% of such consideration is in the
form of cash, (B) the Net Cash Payments of such sale are applied to
prepay the Loans and reduce the Commitments hereunder and under the
Vendor Facilities to the extent required by Section 2.09(b)(ii), (C) at
the time of such sale and immediately after giving effect thereto no
Default shall have occurred and be continuing and (D) the aggregate
fair market value of all such assets sold by the Restricted Companies
after the Effective Date shall not exceed $250,000,000;
(g) the Restricted Companies may dispose of assets relating to
any Mobile Communications Business (or the capital stock of any
Restricted Company that owns such assets), provided that:
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(i) both immediately prior to such disposition
and, after giving effect thereto, no Default shall have
occurred and be continuing; and
(ii) such disposition is an exchange, with
another Person, not an Affiliate of such Restricted Company,
of such assets for assets of like kind owned by such Person
(or the capital stock, or other equity ownership interest, of
such Person) comprising a Mobile Communications Business, as
the case may be, of equal or greater value, as determined in
good faith by the Board of Directors of such Restricted
Company, provided that (x) the acquisition of assets of such
Person pursuant to such exchange (excluding acquisitions of
FCC Licenses in exchange for other FCC Licenses for the
purpose of enabling the Restricted Companies to create
contiguous blocks of spectrum covered by the SMR Licenses of
the Restricted Companies) shall comply with the provisions of
one of Section 7.04(a)(vii) or 7.04(a)(viii) and be treated as
an acquisition covered by said Sections and (y) the Borrower
shall have furnished to the Lenders, promptly following
request therefor, copies of such information or documents
relating to such disposition as the Administrative Agent or
any Lender or Lenders (through the Agent) shall have
reasonably requested.
SECTION 7.04. Investments, Loans, Advances, Guarantees
and Acquisitions; Hedging Agreements.
(a) No Restricted Company will purchase, hold or acquire any
capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, or make or permit to exist any
investment or any other interest in, any other Person, or purchase or otherwise
acquire (in one transaction or a series of transactions) any assets of any other
Person constituting a business unit, if the effect of any such transaction would
be to transfer any cash or other property constituting Collateral (whether or
not such cash or other property is in the possession, or under the control, of
the Collateral Agent) from any Restricted Company to any other Person, except:
(i) Permitted Investments, and Disposition Investments
received in connection with any Disposition permitted under Section
7.03(f) or any Disposition to which the Lenders shall have consented in
accordance with Section 10.02, so long as each such Disposition
Investment shall
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have been delivered to the Collateral Agent to be held as collateral
security by the Collateral Agent pursuant to the Restricted Company
Guarantee and Security Agreement;
(ii) investments by Restricted Companies in the capital stock
of other Restricted Companies;
(iii) loans or advances made by any Restricted Company to any
other Restricted Company;
(iv) investments in Affiliates (excluding Unrestricted
Companies, as to which the provisions of clause (v) below shall apply)
in an aggregate amount as to all Restricted Companies at any one time
outstanding not exceeding $5,000,000, so long as both immediately prior
to each such investment and after giving effect thereto, no Default
shall have occurred and be continuing;
(v) investments in Unrestricted Companies in an aggregate
amount for all Restricted Companies at any one time outstanding not
exceeding the sum of (A) $250,000,000 plus (B) the net aggregate amount
of equity capital received after the date hereof by the Restricted
Companies in respect of shares of common stock from the proceeds of
Qualifying Debt or Equity Issuances by NCI (other than from the
proceeds of Planned Option Issuances), so long as both immediately
prior to each such investment and after giving effect thereto, no
Default shall have occurred and be continuing;
(vi) acquisitions of SMR Licenses in the currently-planned
auction of 800 MHz spectrum by the FCC, so long as:
(A) following consummation of each such acquisition,
(x) the Restricted Companies shall have complied with the
requirements of Section 7.09(b) with respect to the SMR
Licenses acquired in such acquisition and (y) all
Authorizations required by the FCC in connection with such
acquisition shall have been duly granted pursuant to a Final
Order and (if the fair market value of the SMR Licenses so
acquired shall exceed $10,000,000 and the Administrative Agent
or any Lender shall have requested the same) the
Administrative Agent and the Lenders shall have received an
opinion of counsel with respect to such acquisition that is
satisfactory in form and substance to the Required Lenders;
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(B) the Borrower shall have delivered to the
Administrative Agent a supplement to Schedule 4.13 setting
forth a list of the respective SMR Licenses acquired in
connection with such acquisition; and
(C) both immediately prior to each such acquisition
and after giving effect thereto, no Default shall have
occurred and be continuing;
(vii) acquisitions of FCC Licenses in the 800 Mhz or 900
MHz band (other than pursuant to the auction referred to in clause (vi)
above) so long as:
(A) the aggregate Purchase Price for all such
acquisitions consummated after the date hereof (excluding any
portion thereof that shall have been paid through the issuance
of equity securities of NCI) shall not exceed $75,000,000;
(B) each such acquisition is for the purpose of
enabling the Restricted Companies to create contiguous blocks
of spectrum covered by the SMR Licenses of the Restricted
Companies;
(C) following consummation of each such acquisition,
(x) the Restricted Companies shall have complied with the
requirements of Section 7.09(b) with respect to the FCC
Licenses acquired in such acquisition and (y) all
Authorizations required by the FCC in connection with such
acquisition shall have been duly granted pursuant to a Final
Order and (if the fair market value of the assets so acquired
shall exceed $10,000,000 and the Administrative Agent or any
Lender shall have requested the same) the Administrative Agent
and the Lenders shall have received an opinion of counsel with
respect to such acquisition that is satisfactory in form and
substance to the Required Lenders;
(D) the Borrower shall have delivered to the
Administrative Agent a supplement to Schedule 4.13 setting
forth a list of the respective FCC Licenses acquired in
connection with such acquisition; and
(E) both immediately prior to each such investment
and after giving effect thereto, no Default shall have
occurred and be continuing;
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(viii) acquisitions of any Mobile Communications Business
and the related assets of any other Person (or, if for the purpose of
enabling the Restricted Companies to create contiguous blocks of
spectrum covered by the SMR Licenses of the Restricted Companies,
acquisitions of cellular telephone and other businesses), whether by
way of purchase of assets or stock, by merger or consolidation or
otherwise, so long as:
(A) the aggregate Purchase Price for all such
acquisitions consummated after the date hereof (excluding any
portion thereof that shall have been paid through the issuance
of equity securities of NCI) shall not exceed $200,000,000;
(B) any such acquisition (if by purchase of assets,
merger or consolidation) shall be effected in such manner so
that the acquired business, and the related assets, are owned
by a Restricted Company (which may include a new Wholly Owned
Subsidiary that becomes a Restricted Company pursuant to
Section 6.11(a)) and, if effected by merger or consolidation
involving the Borrower, the Borrower shall be the continuing
or surviving entity;
(C) any such acquisition (if by purchase of stock)
shall be effected in such manner so that the acquired entity
becomes a Wholly Owned Subsidiary that becomes a Restricted
Company pursuant to Section 6.11;
(D) if the fair market value of the assets to be so
acquired shall exceed $10,000,000, the Restricted Companies
shall deliver to the Administrative Agent (which shall
promptly forward copies thereof to each Lender, upon request
by such Lender) (x) no later than five Business Days prior to
the consummation of each such acquisition (or such earlier
date as shall be five Business Days after the execution and
delivery thereof), executed counterparts of the respective
agreements or instruments pursuant to which such
acquisition is to be consummated (including any related
management, non-compete, employment, option or other material
agreements), any schedules to such agreements or instruments
and all other material ancillary documents to be executed or
delivered in connection therewith and (y) promptly following
request therefor, copies of such other information or
documents relating to each such acquisition as the
Administrative Agent or the Required Lenders shall have
reasonably requested;
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(E) following consummation of each such acquisition,
(x) the Restricted Companies shall have complied with the
requirements of Section 7.09(b) with respect to any FCC
Licenses or PUC Authorizations acquired in such acquisition
and (y) all Authorizations required by the FCC in connection
with such acquisition shall have been duly granted pursuant to
a Final Order and (if the fair market value of the assets so
acquired shall exceed $10,000,000 and the Administrative Agent
or any Lender shall have requested the same) the
Administrative Agent and the Lenders shall have received an
opinion of counsel with respect to such acquisition that is
satisfactory in form and substance to the Required Lenders;
(F) to the extent applicable, the Restricted
Companies shall have complied with the provisions of Section
6.11, including delivery to the Collateral Agent of (x) the
certificates evidencing any capital stock of a Restricted
Company, accompanied by undated stock powers executed in blank
and (y) the agreements, instruments, opinions of counsel and
other documents required under said Section 6.11 to be
delivered;
(G) the Borrower shall have delivered to the
Administrative Agent a supplement to Schedule 4.13 setting
forth a list of the respective SMR Licenses, other FCC
Licenses and PUC Authorizations acquired in connection with
such acquisition; and
(H) both immediately prior to each such acquisition
and after giving effect thereto, no Default shall have
occurred and be continuing; and
(ix) the acquisition of FCC Licenses pursuant to an exchange
transaction permitted under Section 7.03(g) for the purpose of enabling
the Restricted Companies to create contiguous blocks of spectrum
covered by the SMR Licenses of the Restricted Companies.
(b) No Restricted Company will Guarantee any obligations of
any other Person, except Guarantees constituting Indebtedness permitted by
Section 7.01 and Guarantees by any Restricted Company of any other Restricted
Company.
(c) No Restricted Company will enter into any Hedging
Agreement, other than Hedging Agreements entered into in the ordinary course of
business to hedge or mitigate risks to which the Restricted Companies are
exposed in the conduct of their
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business or the management of their liabilities (including, in the case of the
Borrower, the Hedging Agreements required by Section 6.10).
SECTION 7.05. Restricted Payments. No Restricted Company will
declare or make, or agree to pay or make, directly or indirectly, any Restricted
Payment consisting of any cash or other property constituting Collateral
(whether or not such cash or other property is in the possession, or under the
control, of the Collateral Agent), except:
(a) any Restricted Company may make Restricted Payments to the
extent necessary to make required payments under the Overhead Services
Agreement, and required tax distributions under the Tax Sharing
Agreement;
(b) so long as at the time thereof, and after giving effect
thereto, no Default shall have occurred and be continuing, any
Restricted Company that is a subsidiary of NCI may make Restricted
Payments to NCI to the extent necessary to enable NCI to make
scheduled payments of principal and interest on the Public Notes; and
(c) in addition to the Restricted Payments permitted under the
foregoing clauses (a) and (b), during any fiscal year (commencing with
Excess Cash Flow for the fiscal year ending December 31, 1999), any
Restricted Company may make Restricted Payments, subject to the
satisfaction of each of the following conditions on the date of such
payment and after giving effect thereto:
(i) no Default shall have occurred and be
continuing;
(ii) the Total Indebtedness to Cash Flow Ratio
as at the last day of the fiscal quarter ending on or most
recently ended prior to the date of such Restricted Payment
shall be less than 5.00 to 1;
(iii) the aggregate amount of Restricted
Payments under this clause (c) made during such fiscal year
(the "current fiscal year") shall not exceed 50% of Excess
Cash Flow for the fiscal year immediately preceding the
current fiscal year;
(iv) the Borrower shall have delivered to the
Administrative Agent, at least ten Business Days (but not more
than twenty Business Days) prior to the date of the proposed
Restricted Payment, a certificate of a
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Financial Officer setting forth computations in reasonable
detail demonstrating satisfaction of the foregoing
conditions as at the date of such certificate; and
(v) prior to, or concurrently with, the making
of such Restricted Payment, the Borrower shall prepay the
Loans as required by Section 2.09(b)(i).
SECTION 7.06. Transactions with Affiliates. Except as
expressly permitted by this Agreement, no Restricted Company will sell, lease or
otherwise transfer any cash or other property constituting Collateral (whether
or not such cash or other property is in the possession, or under the control,
of the Collateral Agent) to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to such Restricted Company than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Restricted Companies not involving any other
Affiliate, (c) any Restricted Payment permitted by Section 7.05, (d) as
contemplated by the Overhead Services Agreement and the Tax Sharing Agreement
and (e) pursuant to the Vendor Equipment Agreements or the Vendor Financing
Agreement, provided that any amendments, modifications or supplements to any
Vendor Equipment Agreement or the Vendor Financing Agreement shall be subject to
the requirements of this Section 7.06.
SECTION 7.07. Restrictive Agreements. No Restricted Company
will directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a)
the ability of any Restricted Company to create, incur or permit to exist any
Lien upon any of its property or assets, or (b) the ability of any Restricted
Company to pay dividends or other distributions with respect to any shares of
its capital stock or to make or repay loans or advances to any Restricted
Company or to Guarantee Indebtedness of any other Restricted Company; provided
that
(i) the foregoing shall not apply to restrictions and
conditions (w) imposed by law or by this Agreement, the Vendor
Financing Agreement, the other Loan Documents, (x) existing on the date
hereof identified in Schedule 7.07 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of,
any such restriction or condition), (y) consisting of customary
restrictions on transfers of site leases (provided that the Restricted
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Companies agree that any such lease entered into after the date hereof
shall expressly permit the creation of a security interest in the
rights of the respective Restricted Company party thereto as security
for indebtedness for borrowed money, or guarantees thereof) or (z)
contained in agreements relating to the sale of a Restricted Company
pending such sale, provided such restrictions and conditions apply only
to the Restricted Company or assets that are to be sold and such sale
is permitted hereunder and
(ii) clause (a) above shall not apply to (x) restrictions or
conditions imposed by any agreement relating to secured Indebtedness
permitted by this Agreement if such restrictions or conditions apply
only to the property or assets securing such Indebtedness or (y)
customary provisions in leases and other contracts restricting the
assignment thereof.
SECTION 7.08. Certain Financial and Other Covenants.
(a) Total Indebtedness to Cash Flow Ratio. NCI will not permit
the Total Indebtedness to Cash Flow Ratio at any time during any period below to
exceed the ratio set opposite such period below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
From September 30, 1999
through March 30, 2000 15.00 to 1
From March 31, 2000
through March 30, 2001 7.50 to 1
From March 31, 2001
through March 30, 2002 6.00 to 1
From March 31, 2002
and at all times thereafter 5.00 to 1
</TABLE>
(b) Interest Coverage Ratio. NCI will not permit the
Interest Coverage Ratio at any time during any period below to be
less than the ratio set opposite such period below:
Credit Agreement
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<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
From September 30, 1999
through March 30, 2000 1.10 to 1
From March 31, 2000
through March 30, 2001 1.50 to 1
From March 31, 2001
and at all times thereafter 2.00 to 1
</TABLE>
(c) Pro-Forma Debt Service Ratio. NCI will not permit the
Pro-Forma Debt Service Ratio as at the last day of any fiscal quarter ending on
or after March 31, 2001 to be less than 1.00 to 1.
(d) Fixed Charges Ratio. NCI will not permit the Fixed Charges
Ratio as at the last day of any fiscal quarter ending on or after March 31, 2001
to be less than 1.00 to 1.
(e) Secured Indebtedness to Cash Flow Ratio. The Restricted
Companies will not permit the Secured Indebtedness to Cash Flow Ratio at any
time during any period below to exceed the ratio set opposite such period below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
From September 30, 1999
through March 30, 2000 10.00 to 1
From March 31, 2000
through March 30, 2001 5.00 to 1
From March 31, 2001
through March 30, 2002 4.00 to 1
From March 31, 2002
and at all times thereafter 3.00 to 1
</TABLE>
(f) Secured Indebtedness to Revenue Ratio. The Restricted
Companies will not (i) incur any Secured Indebtedness at any time during any
period set forth below if, after giving effect thereto, the Secured Indebtedness
to Revenue Ratio shall exceed the ratio set forth opposite such period in the
Incurrence Ratio column below nor (ii) permit the aggregate amount of Secured
Indebtedness at any time during any period set forth below to exceed the ratio
set forth opposite such period in the Maintenance Ratio column below:
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<TABLE>
<CAPTION>
Incurrence Maintenance
Period Ratio Ratio
------ ---------- -----------
<S> <C> <C>
From Effective Date through
September 29, 1997 4.25 to 1 4.50 to 1
From September 30, 1997
through December 30, 1997 3.50 to 1 3.75 to 1
From December 31, 1997
through March 30, 1998 2.75 to 1 3.00 to 1
From March 31, 1998
through September 29, 1999 2.50 to 1 2.75 to 1
</TABLE>
(g) Minimum Annualized Revenue. The Restricted Companies will
not permit Annualized Revenue (adjusted as provided in the next sentence) as at
any date below to be less than the amount set opposite such date below:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
September 30, 1996 $ 240,000,000
December 31, 1996 $ 250,000,000
March 31, 1997 $ 275,000,000
June 30, 1997 $ 300,000,000
September 30, 1997 $ 340,000,000
December 31, 1997 $ 400,000,000
March 31, 1998 $ 500,000,000
June 30, 1998 $ 650,000,000
September 30, 1998 $ 815,000,000
December 31, 1998 $ 975,000,000
The last day in each
fiscal quarter in 1999 $1,485,000,000
The last day in each
fiscal quarter in 2000 $2,150,000,000
</TABLE>
For purposes of this paragraph (g), Annualized Revenue as at any date shall be
reduced, for each acquisition consummated prior to such date by any Restricted
Company the Purchase Price for which exceeds $50,000,000 (excluding, however,
any such acquisition consummated prior to the date hereof), by an amount equal
to the product of 4 multiplied by the revenue of the business, or attributable
to the assets, so acquired for the fiscal quarter ending on, or most recently
ended prior to, the date of such
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acquisition, provided that, if at the last day of any fiscal quarter of the
Restricted Companies (the "current fiscal quarter") fewer than four complete
fiscal quarters shall have elapsed following the date of such acquisition, such
product shall be further multiplied by a fraction, the numerator of which is the
number of days during the period commencing on the date of such acquisition to
but excluding the last day of the current fiscal quarter and the denominator of
which is 365.
(h) Minimum Network Subscriber Units. The Restricted Companies
will not permit the aggregate number of Network Subscriber Units (adjusted as
provided in the next sentence) as at any date below to be less than the number
set opposite such date below:
<TABLE>
<CAPTION>
Date Number
---- ------
<S> <C>
September 30, 1996 800,000
December 31, 1996 800,000
March 31, 1997 900,000
June 30, 1997 950,000
September 30, 1997 1,000,000
December 31, 1997 1,120,000
March 31, 1998 1,230,000
June 30, 1998 1,390,000
September 30, 1998 1,575,000
December 31, 1998 1,750,000
The last day of each fiscal
quarter in 1999 and 2000 2,250,000
</TABLE>
For purposes of this paragraph (h), Network Subscribers Units as at any date
shall be reduced, for each acquisition consummated prior to such date by any
Restricted Company the Purchase Price for which exceeds $50,000,000 (excluding,
however, any such acquisition consummated prior to the date hereof), by the
number or Network Subscriber Units of the business, or attributable to the
assets, so acquired on the date on which such acquisition is consummated.
SECTION 7.09. Lines of Business, Etc.
(a) Business Activities. No Restricted Company will engage to
any substantial extent in any line or lines of business activity other than the
Mobile Communications Business, and businesses reasonably related thereto,
provided that nothing herein shall be deemed to prohibit the Restricted
Companies from
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acquisitions pursuant to Section 7.04(vii) of FCC Licenses in the
800 MHz or 900 MHz bands, or acquisitions pursuant to Section 7.04(viii) of
cellular telephone and other businesses, for the purpose of enabling the
Restricted Companies to create contiguous blocks of spectrum covered by the SMR
Licenses of the Restricted Companies.
(b) License Companies. The Restricted Companies will not at
any time permit any FCC Licenses and PUC Authorizations (including any thereof
acquired after the date hereof, but excluding any PUC Authorizations issued by
PUC's in any jurisdiction that prohibits the actions contemplated by this
paragraph (b)) to be held by any First Tier Restricted Company, provided that
(i) with respect to the FCC Licenses and PUC Authorizations covered by the
applications referred to in Section 5.01(p), the Restricted Companies will cause
such FCC Licenses and PUC Authorizations to the extent necessary to be
transferred by the respective First Tier Restricted Companies to a Restricted
Company that is not a First Tier Restricted Company as provided in this
paragraph (b) no later than the date 90 days after the Effective Date and (ii)
with respect to any FCC Licenses and PUC Authorizations acquired by any First
Tier Restricted Company after the date hereof pursuant to an acquisition
permitted under Section 7.04, such First Tier Restricted Company will cause such
FCC Licenses and PUC Authorizations to the extent necessary to be transferred as
provided in this paragraph (b) no later than the date 90 days after the
respective acquisition date therefor.
SECTION 7.10. Modifications to Certain Agreements; Prepayments
of Vendor Facilities. The Credit Parties will not consent to any modification,
supplement or waiver of any of the provisions of the Overhead Services Agreement
(other than to add new Restricted Companies as parties thereto), the Tax
Sharing Agreement (other than to add new subsidiaries of NCI as parties thereto)
or the Vendor Financing Agreement (other than amendments thereto to conform the
terms of the Vendor Financing Agreement to the terms of this Agreement following
any amendment hereto or to increase the amount of the Vendor Facilities
thereunder to the extent permitted under Section 7.01(b)), nor will they
terminate or reduce any of the commitments to provide financing under the Vendor
Financing Agreement, without, in each case, the prior consent of the
Administrative Agent (with the approval of the Required Lenders). In addition,
NCI will not consent to any modification, supplement or waiver of any of the
provisions of the Public Note Indentures or the Public Notes without the prior
consent of the Administrative Agent (with the approval of the Required Lenders).
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The Restricted Companies will not prepay any "Tranche A Loans"
or "Tranche C Loans" under and as defined in the Vendor Financing Agreement
unless concurrently therewith the Commitments hereunder of any Class (to the
extent the Commitments of such Class have not terminated) shall be ratably
reduced, and the Loans hereunder of any Class (to the extent the Commitments of
such Class have terminated) shall be ratably repaid in a manner consistent with
the provisions of Section 2.09(b)(iv) as if such reduction and prepayment were
governed by said Section.
ARTICLE VIII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement, when and as the same
shall become due and payable, and such failure shall continue
unremedied for a period of three or more Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of any Credit Party in or in connection with this Agreement
or any of the other Basic Documents or any amendment or modification
hereof or thereof (or in any report, certificate, financial statement
or other document furnished pursuant to or in connection with this
Agreement, any of the other Basic Documents or any amendment or
modification hereof or thereof) shall prove to have been incorrect when
made or deemed made in any material respect;
(d) the Restricted Companies shall fail to observe or perform
any covenant, condition or agreement contained in Section 6.02, 6.03
(with respect to the existence of the Restricted Companies), 6.09, 6.11
or 6.12, Article VII, or in Section 5.01 or 6.02 of the Restricted
Company Guarantee and Security Agreement;
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(e) any Credit Party shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement or any
other Loan Document (other than those specified in clause (c) or (d) of
this Article), and such failure shall continue unremedied for a period
of thirty or more days after notice thereof from the Administrative
Agent (given at the request of any Lender) to the Borrower;
(f) any Credit Party shall fail to make any payment (whether
of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (f) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of any Credit Party or its
debts, or of a substantial part of its assets, under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for any Credit
Party or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or
an order or decree approving or ordering any of the foregoing shall be
entered;
(i) any Credit Party shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for any Credit Party or for a substantial
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part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors or (vi) take any
action for the purpose of effecting any of the foregoing;
(j) any Credit Party shall become unable, admit in writing or
fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $10,000,000 shall be rendered against any
one or more of the Credit Parties and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of any Credit
Party to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(m) a proceeding shall have been initiated by or before, or
any action shall have been taken by, the FCC, a PUC, a court of
competent jurisdiction, or other Governmental Authority which either:
(i) has resulted in the cancellation,
non-renewal or adverse modification of any one or more SMR
Licenses, radio channels authorized under SMR Licenses or PUC
Authorizations held by one or more of the Restricted
Companies, or
(ii) in the reasonable opinion of the Required
Lenders, is likely to result in the cancellation, non-renewal
or adverse modification of any one or more SMR Licenses, radio
channels authorized under SMR Licenses, or PUC Authorizations
held by one or more Restricted Companies,
that, in the aggregate, in the judgment of the Required Lenders, have
resulted or are reasonably likely to result in a Material Adverse
Effect, and the same shall continue uncured for a period of 45 or more
days after notice thereof to the Borrower by the Required Lenders
(through the Administrative Agent);
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(n) any FCC License or PUC Authorization, or any other
material operating assets, rights or other property, relating to the
operation of all or any part of the Mobile Communications Business of
any of the Restricted Companies shall be held by NCI or any of the
Unrestricted Companies, other than any FCC Licenses or PUC
Authorizations that are (i) acquired by Unrestricted Companies after
the date hereof, (ii) not material to the Mobile Communications
Business of the Restricted Companies, (iii) subject to management
agreements in favor of the Restricted Companies and (iv) do not relate
to a portion of the Mobile Communications Business of the Restricted
Companies representing more than 5% of the aggregate Operating Cash
Flow;
(o) a reasonable basis shall exist for the assertion against
any Credit Party, or any predecessor in interest of any Credit Party or
their Affiliates, of (or there shall have been asserted against any
Credit Party) any claims or liabilities, whether accrued, absolute or
contingent, based on or arising from the generation, storage,
transport, handling or disposal of Hazardous Materials or RF Emissions
by any Credit Party or any of its subsidiaries, Affiliates or
predecessors that, in the judgment of the Required Lenders is
reasonably likely to be determined adversely to any Credit Party, and
the amount thereof (either individually or in the aggregate) is
reasonably likely to have a Material Adverse Effect (insofar as such
amount is payable by a Credit Party but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor); or
(p) Any of the following shall occur: (i) the Liens created by
the Security Documents shall at any time, with respect to any material
portion of the property of the Restricted Companies, not constitute
valid and perfected Liens on the Collateral intended to be covered
thereby (to the extent perfection by filing, registration, recordation
or possession is required herein or therein) in favor of the Collateral
Agent for the benefit of the Lenders hereunder and the Vendors under
the Vendor Financing Agreement, free and clear of all other Liens
(other than Liens permitted under Section 7.02 or under the respective
Security Documents); (ii) except for expiration in accordance with its
terms, any of the Security Documents shall for whatever reason be
terminated, or shall cease to be in full force and effect, with respect
to any material portion of the property of the Restricted Companies; or
(iii) the enforceability of
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any of the Security Documents shall be contested by any Credit Party;
then, and in every such event (other than an event with respect to any Credit
Party described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and at the request of the Required Lenders shall, by notice to the Borrower,
take either or both of the following actions, at the same or different times:
(i) terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to any Credit Party
described in clause (h) or (i) of this Article, the Commitments shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE IX
The Agents
Each of the Lenders and each Issuing Bank hereby irrevocably
appoints each of the Administrative Agent and the Collateral Agent as its agent
and authorizes such Agent to take such actions on its behalf and to exercise
such powers as are delegated to such Agent by the terms of this Agreement and
the other Loan Documents, together with such actions and powers as are
reasonably incidental thereto.
Each of The Toronto-Dominion Bank and The Chase Manhattan Bank
shall have the same rights and powers in its capacity as a Lender hereunder as
any other Lender and may exercise the same as though Toronto Dominion (Texas)
Inc. were not the Administrative Agent and The Chase Manhattan Bank were not the
Collateral Agent, and each such bank and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of business with any Credit
Party or any subsidiary or
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other Affiliate of any thereof as if it were not such Agent hereunder.
Neither Agent shall have any duties or obligations except
those expressly set forth in this Agreement and the other Loan Documents.
Without limiting the generality of the foregoing, (a) neither Agent shall be
subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing, (b) neither Agent shall have any duty to
take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by this Agreement and the
other Loan Documents that such Agent is required to exercise in writing by the
Required Lenders, and (c) except as expressly set forth herein and in the other
Loan Documents, neither Agent shall have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to any Credit Party
or any of their respective subsidiaries that is communicated to or obtained by
the bank serving as such Agent or any of its Affiliates in any capacity.
Neither Agent shall be liable for any action taken or not taken by it with the
consent or at the request of the Required Lenders or, if provided herein, with
the consent or at the request of the Required Revolving Credit Lenders, the
Required Tranche C Term Loan Lenders or the Required Tranche D Term Loan
Lenders, or in the absence of its own gross negligence or wilful misconduct.
Neither Agent shall be deemed to have knowledge of any Default unless and until
written notice thereof is given to such Agent by the Borrower, a Lender or the
other Agent, and neither Agent shall be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement or the other Loan Documents, (ii) the
contents of any certificate, report or other document delivered hereunder or
under any of the other Loan Documents or in connection herewith of therewith,
(iii) the performance or observance of any of the covenants, agreements or other
terms or conditions set forth herein or in any other Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement, the
other Loan Documents or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article V or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to such
Agent.
Neither Agent shall, except to the extent expressly instructed
by the Required Lenders with respect to collateral security under the Security
Documents, be required to initiate or conduct any litigation or collection
proceedings hereunder or under any other Loan Document.
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Each Agent shall be entitled to rely upon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. Each Agent also may rely
upon any statement made to it orally or by telephone and believed by it to be
made by the proper Person, and shall not incur any liability for relying
thereon. Each Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall
not be liable for any action taken or not taken by it in accordance with the
advice of any such counsel, accountants or experts.
Either Agent may perform any and all of its duties, and
exercise its rights and powers, by or through any one or more sub-agents
appointed by such Agent. Either Agent and any such sub-agent may perform any and
all its duties and exercise its rights and powers through their respective
Related Parties. The exculpatory provisions of the preceding paragraphs shall
apply to any such sub-agent and to the Related Parties of such Agent and any
such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities as such Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent or Collateral Agent, as the case may be, as provided in
this paragraph, either Agent may resign at any time by notifying the Lenders,
each Issuing Bank, the Borrower and the other Agent (and, in the case of the
Collateral Agent, by notifying the Vendors pursuant to the Intercreditor and
Collateral Agency Agreement). Upon any such resignation, the Required Lenders
shall have the right, in consultation with the Borrower, to appoint a successor
Administrative Agent, and the Required Lenders and the Required Vendors shall
have the right, in consultation with the Borrower, to appoint a successor
Collateral Agent. If no successor shall have been so appointed and shall have
accepted such appointment within 30 days after such retiring Agent gives notice
of its resignation, then such retiring Agent may, on behalf of the Lenders and
the Issuing Banks, appoint a successor Administrative Agent or Collateral Agent,
as the case may be, which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent or Collateral Agent, as the case may be, by a successor,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of such retiring Agent, and such retiring Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents. The
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fees payable by the Borrower to a successor Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After an Agent's resignation hereunder, the provisions of this
Article and Section 10.03 shall continue in effect for its benefit in respect of
any actions taken or omitted to be taken by it while it was acting as
Administrative Agent or Collateral Agent, as the case may be.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent, the Collateral Agent, any
Issuing Bank or any other Lender and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Collateral Agent, any
Issuing Bank or any other Lender and based on such documents and information as
it shall from time to time deem appropriate, continue to make its own decisions
in taking or not taking action under or based upon this Agreement and the other
Loan Documents, any related agreement or any document furnished hereunder or
thereunder.
Each Lender and each Issuing Bank hereby authorizes and
directs the Administrative Agent and the Collateral Agent to execute and deliver
the Intercreditor and Collateral Agency Agreement.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to NCI or the Borrower, to it at 1505 Farm Credit
Drive, Suite 100, McLean, Virginia 22102, Attention Steven Shindler,
Senior Vice President and Chief Financial Officer (Telecopy No.
703-394-3011);
(b) if to any Restricted Company other than the Borrower, to
such Restricted Company care of the Borrower at the address for notices
indicated in clause (a) above;
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(c) if to the Administrative Agent, to it at 909
Fannin Street, Suite 1700, Houston, Texas 77010, Attention
Sophia Sgarbi (Telecopy No. 713-951-9921);
(d) if to the Collateral Agent, to it at One Chase
Manhattan Plaza, 4th Floor, Attention Tracy Navin, (Telecopy
No. 212-552-4905); and
(e) if to any Lender (including any Lender in its capacity as
an Issuing Bank hereunder), to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 10.02. Waivers; Amendments.
(a) No failure or delay by the Administrative Agent, any
Issuing Bank or any Lender in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Agents, the
Issuing Banks and the Lenders hereunder are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by any Restricted
Company therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section 10.02, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. Without limiting the generality of the foregoing, the making of a
Loan or issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or the
respective Issuing Bank may have had notice or knowledge of such Default at the
time.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Restricted Companies and the Required Lenders or by
the Restricted Companies and the Administrative Agent with the consent of the
Required Lenders; provided that no such agreement shall:
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(i) increase the Commitment of any Lender without
the written consent of such Lender;
(ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected
thereby;
(iii) postpone the scheduled date of payment of the
principal amount of any Loan or LC Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive
or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each
Lender affected thereby;
(iv) change Section 2.09 in a manner that would alter
the application of prepayments thereunder, or change Section 2.16(b),
(c) or (d) in a manner that would alter the pro rata sharing of
payments required thereby, without in each case the written consent of
each Lender (except as a result of the designation of Tranche E Loans,
and the related commitments to provide Tranche E Loans hereunder, as a
"Class" of Loans or Commitments hereunder, which, as contemplated by
Section 7.01(f), shall only require the consent of the Required
Lenders);
(v) alter the rights or obligations of the Borrower to
prepay Loans without the written consent of each Lender (other than the
obligations of the Borrower under Section 2.09(b)(iii), which may be
altered with the consent of the Required Lenders, and except as a
result of the designation of Tranche E Loans as "Loans" hereunder and,
if deemed appropriate by the Required Lenders, to provide for ratable
borrowings and prepayments of Tranche E Loans in a manner similar to
that provided for herein for the Motorola Tranche B, either of which,
as contemplated by Section 7.01(f), shall only require the consent of
the Required Lenders);
(vi) change any of the provisions of this Section 10.02
or the definition of "Required Lenders", "Required Revolving Credit
Lenders", "Required Tranche C Term Loan Lenders" or "Required Tranche D
Term Loan Lenders", or any other provision hereof specifying the number
or percentage of Lenders required to waive, amend or modify any rights
hereunder or under any other Loan Document or make any determination or
grant any consent hereunder or thereunder, without the written consent
of each Lender (except as a result of the designation of Tranche E
Loans, and the related commitments to provide Tranche E Loans
hereunder, as
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a "Class" of Loans or Commitments hereunder, which, as contemplated by
Section 7.01(f), shall only require the consent of the Required
Lenders); or
(vii) release NCI from its obligations in respect of its
Guarantee under Article III, without the written consent of each
Lender;
provided further that no such agreement shall amend, modify or otherwise affect
the rights or duties of either Agent or any Issuing Bank hereunder without the
prior written consent of such Agent or Issuing Bank, as the case may be.
(c) Neither any Security Document nor any provision thereof
may be waived, amended or modified except pursuant to an agreement or agreements
in writing entered into by the Restricted Companies party thereto, and by the
Collateral Agent with the consent of the appropriate Lenders and Vendors as more
particularly provided in Section 5.02(c) of the Intercreditor and Collateral
Agency Agreement.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) The Credit Parties jointly and severally agree to pay, or
reimburse the Agents or Lenders for paying, (i) all reasonable out-of-pocket
expenses incurred by each Agent and its Affiliates, including the reasonable
fees, charges and disbursements of Special Counsel (and of special
communications counsel for such Agent), in connection with the syndication of
the credit facilities provided for herein, the preparation of this Agreement and
the other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated), (ii) all out-of-pocket expenses
incurred by any Issuing Bank in connection with the issuance, amendment, renewal
or extension of any Letter of Credit or any demand for payment thereunder, (iii)
all amounts that the Collateral Agent is required to make under any indemnity
issued to any bank with which lock box or segregated deposit arrangements are
entered into pursuant to Section 5.01((i) or the Restricted Company Guarantee
and Security Agreement, (iv) all out-of-pocket expenses incurred by either
Agent, any Issuing Bank or any Lender, including the fees, charges and
disbursements of any counsel for such Agent, Issuing Bank or Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement and the other Loan Documents, including its rights under this
Section 10.03, or in connection with the Loans made or Letters of Credit issued
hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof,
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(v) all transfer, stamp, documentary or other similar taxes, assessments or
charges levied by any governmental or revenue authority in respect of this
Agreement or any of the other Loan Documents or any other document referred to
herein or therein and all costs, expenses, taxes, assessments and other charges
incurred in connection with any filing, registration, recording or perfection of
any security interest contemplated by any Security Document or any other
document referred to therein, and (vi) all costs, expenses and other charges in
respect of title insurance procured with respect to the Liens created pursuant
to the Mortgages.
(b) The Credit Parties jointly and severally agree to
indemnify each Agent, each Issuing Bank and each Lender, and each Related Party
of any of the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement, the other Loan Documents or any
agreement or instrument contemplated hereby, the performance by the parties
hereto and thereto of their respective obligations hereunder or thereunder or
the consummation of the Transactions or any other transactions contemplated
hereby or thereby, (ii) any Loan or Letter of Credit or the use of the proceeds
therefrom (including any refusal by any Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials or RF
Emissions on or from any property owned or operated by any Credit Party or any
of their subsidiaries, or any Environmental Liability related in any way to any
Credit Party or any of their subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses (are determined by a court of competent
jurisdiction by final and nonappealable judgment to have) resulted from the
gross negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Credit Parties fail to pay any
amount required to be paid by them to either Agent under paragraph (a) or (b) of
this Section 10.03, each Lender severally agrees to pay to such Agent such
Lender's Applicable Percentage
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(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against such Agent in its capacity as such.
To the extent that the Credit Parties fail to pay any amount required to be paid
by them to any Issuing Bank under paragraph (a) or (b) of this Section 10.03,
each Revolving Credit Lender severally agrees to pay to such Issuing Bank such
Lender's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against such Agent in its capacity as such.
(d) To the extent permitted by applicable law, none of the
Credit Parties shall assert, and each Credit Party hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, the other
Loan Documents or any agreement or instrument contemplated hereby or thereby,
the Transactions, any Loan or Letter of Credit or the use of the proceeds
thereof.
(e) All amounts due under this Section 10.03 shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that no Credit Party may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by any Credit
Party without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent, the Issuing Banks and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more banks or other
financial institutions (including funds) all or a portion of its rights and
obligations under this Agreement (including all
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or a portion of its Commitments and the Loans at the time owing to it); provided
that
(i) except in the case of an assignment to a Lender or
an Affiliate of a Lender, each of the Borrower and the Administrative
Agent (and, in the case of an assignment of all or a portion of a
Revolving Credit Commitment or any Revolving Credit Lender's
obligations in respect of its LC Exposure, each Issuing Bank) must give
their prior written consent to such assignment (which consent shall not
be unreasonably withheld or delayed) and, in the case of any such
assignment as to which no consent of the Administrative Agent is
required, the Administrative Agent shall have acknowledged receipt of
such assignment,
(ii) except in the case of an assignment to a Lender or
an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitments, the amount of the
Commitments of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect
to such assignment is delivered to the Administrative Agent) shall not
be less than $5,000,000 unless each of the Borrower and the
Administrative Agent otherwise consents,
(iii) each partial assignment of rights with respect to
any Class of Loans and/or Commitments shall be made as an assignment of
a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to such Class,
(iv) upon any assignment by a Revolving Credit Lender of
either Tranche of Revolving Credit Loans or Commitments, a
proportionate part of the other Tranche of Revolving Credit Loans, LC
Exposure and Commitments shall be concurrently assigned to the same
assignee,
(v) the parties to each assignment shall execute and
deliver to the Administrative Agent (with sufficient copies for the
assignor, the assignee and the Borrower) an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, and
(vi) the assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an Administrative Questionnaire;
provided further that any consent of the Borrower otherwise required under this
paragraph shall not be required if an Event
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of Default under clause (h) or (i) of Article VIII has occurred and is
continuing.
Upon acceptance and recording pursuant to paragraph (d) of
this Section 10.04, from and after the effective date specified in each
Assignment and Acceptance, the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.13, 2.14, 2.15 and 10.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section 10.04.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain a copy of each Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses of
the Lenders, and the Commitment of, and principal amount of the Loans and LC
Disbursements owing to, each Lender pursuant to the terms hereof from time to
time (the "Register"). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent, the Issuing Banks and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower,
any Issuing Bank and any Lender, at any reasonable time and from time to time
upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section 10.04 and any written consent to such assignment required by
paragraph (b) of this Section 10.04, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register on a date mutually agreed upon between the assignor, the assignee and
the Administrative Agent (which shall be no later than the date 5
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Business Days after compliance with the requirements of this paragraph). No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Restricted
Companies, the Administrative Agent or any Issuing Bank sell participations to
one or more banks or other entities (a "Participant") in all or a portion of
such Lender's rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans and LC Exposure owing to it); provided
that (i) such Lender's obligations under this Agreement shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations and (iii) the Borrower, the Administrative
Agent, the Issuing Banks and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 10.02(b), or the first proviso to
Section 10.02(c), that affects such Participant. Subject to paragraph (f) of
this Section 10.04, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.13, 2.14 and 2.15 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section 10.04.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.15 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.15 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.15(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any such pledge or assignment to a Federal
Reserve Bank, and this
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Section 10.04 shall not apply to any such pledge or assignment of a security
interest; provided that no such pledge or assignment of a security interest
shall release a Lender from any of its obligations hereunder or substitute any
such assignee for such Lender as a party hereto.
(h) Anything in this Section 10.04 to the contrary
notwithstanding, no Lender may assign or participate any interest in any Loan
held by it hereunder to the Borrower or any of its Affiliates or subsidiaries
without the prior consent of each Lender.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Credit Parties herein and in the
other Loan Documents, and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement and the other Loan Documents,
shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of this Agreement and the other Loan
Documents and the making of any Loans and issuance of any Letters of Credit,
regardless of any investigation made by any such other party or on its behalf
and notwithstanding that the Administrative Agent, any Issuing Bank or any
Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect so long as the principal of or any
accrued interest on any Loan or any fee or any other amount payable under this
Agreement or the other Loan Documents is outstanding and unpaid or any Letter
of Credit is outstanding and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.13, 2.14, 2.15 and 10.03 and Article
IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any other Loan Document or
any provision hereof or thereof.
SECTION 10.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement and
any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 5.01, this Agreement shall become
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effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 10.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Lender is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
to or for the credit or the account of the Borrower against any of and all the
obligations of the Borrower now or hereafter existing under this Agreement held
by such Lender, irrespective of whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. The
rights of each Lender under this Section 10.08 are in addition to any other
rights and remedies (including other rights of setoff) which such Lender may
have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of Process.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each party hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and
Credit Agreement
<PAGE> 134
-129-
each of the parties hereto hereby irrevocably and unconditionally agrees that
all claims in respect of any such action or proceeding may be heard and
determined in such New York State court (or, to the extent permitted by law, in
such Federal court). Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent,
any Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against any Credit Party or its properties
in the courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the other
Loan Documents in any court referred to in paragraph (b) of this Section 10.09.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.10.
SECTION 10.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
Credit Agreement
<PAGE> 135
-130-
SECTION 10.12. Confidentiality. Each of the Agents, the
Issuing Banks and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates, directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to the execution and delivery of an agreement containing provisions
substantially the same as those of this Section 10.12, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section 10.12 or (ii) becomes available to the
Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis
from a source other than the Borrower.
For the purposes of this Section 10.12, "Information" means
all information received from the Borrower relating to the Credit Parties or
their business, other than any such information that is available to either
Agent, any Issuing Bank or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified
at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section 10.12 shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
SECTION 10.13. Designation of Tranche A Revolving Credit
Commitments. NCI hereby designates the Tranche A Revolving Credit Commitments
hereunder, and the Tranche A Revolving Credit Loans to be made hereunder, as
the "Credit Facility" under and for all purposes of the Public Note Indentures.
In that connection, NCI hereby represents and warrants that there is not
currently in effect any designation of any other credit facility as a "Credit
Facility" under any of the Public Note Indentures. NCI further agrees that,
until the
Credit Agreement
<PAGE> 136
-131-
principal of and interest on all of the Loans have been paid in full
and all of the Commitments terminated, it will not designate any credit facility
(other than the Tranche A Revolving Credit Commitments and Tranche A Revolving
Credit Loans pursuant to this Section 10.13) as a "Credit Facility" for any of
the Public Note Indentures.
SECTION 10.14. Obligations Senior. The obligations of the
Restricted Companies hereunder and under the other Loan Documents constitute
"senior Debt" for the purposes of the second paragraph of Section 10.12 of the
January 1994 Indenture.
Credit Agreement
<PAGE> 137
-132-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
NEXTEL COMMUNICATIONS, INC.,
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
RESTRICTED COMPANIES
NEXTEL FINANCE COMPANY,
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
Credit Agreement
<PAGE> 138
-133-
ADVANCED MOBILECOMM OF
NORTH CAROLINA, INC.
AIR LINK COMMUNICATIONS, INC.
AIRWAVE COMMUNICATIONS CORP.
(SEATTLE)
AMERICAN MOBILE SYSTEMS
INCORPORATED
C-CALL CORP.
COMQOR, INC.
CUSTOM RADIO/JOHNSON
COMMUNICATIONS, INC.
DIAL CALL, INC.
DIAL CALL ARKANSAS, INC.
DIAL CALL FLORIDA, INC.
DIAL CALL KENTUCKY, INC.
DIAL CALL LOUISIANA, INC.
DIAL CALL TEXAS, INC.
DIAL CALL VIRGINIA, INC.
DIAL CALL WEST VIRGINIA, INC.
DIAL DISTANCE, INC.
DISPATCH COMMUNICATIONS
OF ARIZONA, INC.
DISPATCH COMMUNICATIONS
OF MINNESOTA, INC.
DISPATCH COMMUNICATIONS
OF NEW ENGLAND, INC.
DISPATCH COMMUNICATIONS
OF MARYLAND, INC.
DISPATCH COMMUNICATIONS
OF PENNSYLVANIA, INC.
ESMR SUB, INC.
FC NEW YORK, INC.
FCI 900, INC.
FLEET CALL CORPORATION
FLEET CALL OF TEXAS, INC.
FLEET CALL OF UTAH, INC.
FLEET CALL WEST, INC.
F-M TOWER COMPANY
FORT WORTH COMMUNICATIONS, INC.
METRACOM TRUNKED RADIO
COMMUNICATION SYSTEMS, INC.
METROLINK COMMUNICATIONS
CORPORATION
MIJAC ENTERPRISES, INC.
MOBILE RADIO OF ILLINOIS, INC.
MOTOROLA SF, INC.
Credit Agreement
<PAGE> 139
-134-
NATIONAL TOWER TRUNKING
SYSTEMS, INC.
NEXTEL COMMUNICATIONS
OF THE MID-ATLANTIC, INC.
NEXTEL HAWAII ACQUISITION CORP.
NEXTEL OF TEXAS, INC.
NEXTEL UTAH ACQUISITION CORP.
NEXTEL WESTERN ACQUISITION CORP.
ONECOMM CORPORATION, N.A.
POWERFONE HOLDINGS, INC.
POWERFONE, INC.
SABER COMMUNICATIONS, INC.
SAFETY NET, INC.
SHORELAND COMMUNICATIONS, INC.
SMART SMR, INC.
SMART SMR OF CALIFORNIA, INC.
SMART SMR OF ILLINOIS, INC.
SMART SMR OF NEW YORK, INC.
SPECTRUM RESOURCES
OF THE MIDWEST, INC.
TRS, INC.
U.S. DIGITAL, INC.
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
FORT WORTH TRUNKED RADIO
LIMITED PARTNERSHIP
By Fort Worth Communications,
Inc., a General Partner
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
Credit Agreement
<PAGE> 140
-135-
TORONTO DOMINION (TEXAS) INC.,
as Administrative Agent
by /s/ Jessica Laxman
-------------------------
Name: Jessica Laxman
Title: Director
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
by /s/ R. Blake Witherington
-------------------------
Name: R. Blake Witherington
Title: Vice President
BANK OF MONTREAL,
CHICAGO BRANCH,
by /s/ Karen S. Klapper
-------------------------
Name: Karen S. Klapper
Title: Director
BARCLAYS BANK, PLC,
by /s/ Frank J. Sisinni
-------------------------
Name: Frank J. Sisinni
Title: Director
THE CHASE MANHATTAN BANK,
individually and as
Collateral Agent,
by /s/ Tracey A. Navin
-------------------------
Name: Tracey A. Navin
Title: Vice President
THE TORONTO-DOMINION BANK,
by /s/ Jessica Laxman
-------------------------
Name: Jessica Laxman
Title: Director
THE BANK OF NOVA SCOTIA,
by /s/ Vincent J. Fitzgerald
-------------------------
Name: Vincent J. Fitzgerald
Title: Senior Relationship
Manager
CIBC, INC.,
by /s/ Marisa J. Harney
-------------------------
Name: Marisa J. Harney
Title: Director, CIBC Wood
Gundy Secur. Corp.
as Agent
THE FIRST NATIONAL BANK
OF BOSTON,
by /s/ Matthew E. Murphy
-------------------------
Name: Matthew E. Murphy
Title: Vice President
Credit Agreement
<PAGE> 141
-136-
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.,
by /s/ John W. Fraser
-------------------------
Name: John W. Fraser
Title: Authorized Signatory
ABN AMRO BANK N.V.,
NEW YORK BRANCH,
by /s/ Mark S. Gronish
-------------------------
Name: Mark S. Gronish
Title: Vice President
/s/ David B. Martens
-------------------------
Name: David B. Martens
Title: Vice President
NATIONSBANK OF TEXAS, N.A.,
by /s/ Pamela S. Kurtzman
-------------------------
Name: Pamela S. Kurtzman
Title: Vice President
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE FUND, INC.
INCOME TRUST,
by /s/ Jeffrey W. Maillet
-------------------------
Name: Jeffrey W. Maillet
Title: Sr. Vice Pres. -
Director
BANQUE PARIBAS,
by /s/ Errol R. Antzis
-------------------------
Name: Errol R. Antzis
Title: Group Vice President
/s/ Philippe Vuarchex
-------------------------
Name: Philippe Vuarchex
Title: Vice President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH,
by /s/ W. Jeffrey Vollack
-------------------------
Name: W. Jeffrey Vollack
Title: Vice President,
Manager
/s/ Chris G. Kortlandt
-------------------------
Name: Chris G. Kortlandt
Title: Vice President
FLEET NATIONAL BANK,
by /s/ Alexander G. Ivanov
-------------------------
Name: Alexander G. Ivanov
Title: Assistant Vice
President
PNC BANK, NATIONAL
ASSOCIATION,
by /s/ Tom Partridge
-------------------------
Name: Tom Partridge
Title: Assistant Vice
President
CREDIT SUISSE,
by /s/ Todd C. Morgan
-------------------------
Name: Todd C. Morgan
Title: MSM
/s/ Judith E. Smith
-------------------------
Name: Judith E. Smith
Title: MSM
THE MITSUBISHI TRUST AND
BANKING CORPORATION,
by /s/ Hachiro Hosoda
-------------------------
Name: Hachiro Hosoda
Title: Senior Vice President
Credit Agreement
<PAGE> 142
-137-
ROYAL BANK OF CANADA,
by /s/ Thomas M. Byrne
-------------------------
Name: Thomas M. Byrne
Title: Senior Manager
THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH,
by /s/ Leslie L. Rogers
-------------------------
Name: Leslie L. Rogers
Title: Vice President
PROTECTIVE LIFE INSURANCE
COMPANY,
by /s/ James Dondero
-------------------------
Name: James Dondero
Title: President, Protective
Asset Management,
L.L.C.
THE FUJI BANK LIMITED
by /s/ Teiji Teramoto
-------------------------
Name: Teiji Teramoto
Title: Vice President &
Manager
BANK OF TOKYO-MITSUBISHI
TRUST COMPANY
by /s/ John P. Judge
-------------------------
Name: John P. Judge
Title: Vice President
THE NIPPON CREDIT BANK, LTD.,
by /s/ Barry S. Fein
-------------------------
Name: Barry S. Fein
Title: Assistant Vice
President
DEAN WITTER PRIME INCOME TRUST
by /s/ Rafael Scolari
-------------------------
Name: Rafael Scolari
Title: Vice President
INDOSUEZ CAPITAL ASSET
ADVISORS, INC.
by /s/ Andrew H. Marshak
-------------------------
Name: Andrew H. Marshak
Title: Authorized Signatory
by /s/ John G. Popp
-------------------------
Name: John G. Popp
Title: President
CHL HIGH YIELD LOAN
PORTFOLIO (a unit of The
Chase Manhattan Bank),
by /s/ Andrew D. Gordon
-------------------------
Name: Andrew D. Gordon
Title: Managing Director
Credit Agreement
<PAGE> 143
-138-
KEYBANK NATIONAL ASSOCIATION,
by /s/ Jason R. Weaver
-------------------------
Name: Jason R. Weaver
Title: Assistant Vice
President
LTCB TRUST COMPANY,
by /s/ John J. Sullivan
-------------------------
Name: John J. Sullivan
Title: Executive Vice
President
SENIOR HIGH INCOME
PORTFOLIO, INC.,
by /s/ John W. Fraser
-------------------------
Name: John W. Fraser
Title: Authorized Signatory
KOREA FIRST BANK,
by /s/ Won Baik Sull
-------------------------
Name: Won Baik Sull
Title: Agent and General
Manager
U.S. BANK OF WASHINGTON, N.A.,
by /s/ Gary Egbert
-------------------------
Name: Gary Egbert
Title: Vice President
STANDARD BANK LONDON LIMITED
by /s/ M. R. Cooke
-------------------------
Name: M. R. Cooke
Title: Manager
by /s/ S. Harrison
-------------------------
Name: S. Harrison
Title: Manager
Credit Agreement
<PAGE> 144
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of
September 27, 1996 (as amended and in effect on the date hereof, the "Credit
Agreement"), among Nextel Communications, Inc., Nextel Finance Company and the
other Restricted Companies named therein, the Lenders named therein, Toronto
Dominion (Texas) Inc., as Administrative Agent, and The Chase Manhattan Bank, as
Collateral Agent. Terms defined in the Credit Agreement are used herein with the
same meanings.
The Assignor named on the reverse hereof hereby sells and
assigns, without recourse, to the Assignee named on the reverse hereof, and the
Assignee hereby purchases and assumes, without recourse, from the Assignor,
effective as of the Assignment Date set forth on the reverse hereof, the
interests set forth on the reverse hereof (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth on the reverse hereof in the Assignor's
Tranche A Revolving Credit Commitments, Tranche B Revolving Credit Commitments,
Tranche C Term Loan Commitments and Tranche D Term Loan Commitments on the
Assignment Date and Tranche A Revolving Credit Loans, Tranche B Revolving Credit
Loans, Tranche C Term Loans and Tranche D Term Loans owing to the Assignor which
are outstanding on the Assignment Date, together with unpaid interest accrued on
the assigned Loans to the Assignment Date, the participations in Letters of
Credit and LC Disbursements held by the Assignor on the Assignment Date, and the
amount, if any, set forth on the reverse hereof of the fees accrued to the
Assignment Date for the account of the Assignor. The Assignee hereby
acknowledges receipt of a copy of the Credit Agreement (including the Schedules
and forms of Exhibits attached thereto).
From and after the Assignment Date (i) the Assignee shall be a
party to and be bound by the provisions of the Credit Agreement and the other
Loan Documents and, to the extent of the interests assigned by this Assignment
and Acceptance, have the rights and obligations of a Lender thereunder and (ii)
the Assignor shall, to the extent of the interests assigned by this Assignment
and Acceptance, relinquish its rights and be released from its obligations under
the Credit Agreement and the other Loan Documents. In that connection, the
Assignee (to the extent not already a party to the Credit Agreement) hereby
appoints each of the Administrative Agent and the Collateral Agent as its agent
and authorizes such Agent to take such actions on its behalf and to exercise
such powers as are delegated to such Agent by the
Assignment and Acceptance
<PAGE> 145
-2-
terms of the Credit Agreement and the other Loan Documents, together with such
actions and powers as are reasonably incidental thereto, all in the manner and
to the extent provided in Article IX of the Credit Agreement.
This Assignment and Acceptance is being delivered to the
Administrative Agent together with (i) if the Assignee is a Foreign Lender, any
documentation required to be delivered by the Assignee pursuant to Section
2.15(e) of the Credit Agreement, duly completed and executed by the Assignee,
and (ii) if the Assignee is not already a Lender under the Credit Agreement, an
Administrative Questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee
payable to the Administrative Agent pursuant to Section 10.04(b) of the Credit
Agreement.
This Assignment and Acceptance shall be governed by and
construed in accordance with the laws of the State of New York.
Assignment and Acceptance
<PAGE> 146
-3-
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date")1:
<TABLE>
<CAPTION>
Percentage Assigned (set forth, to at least
8 decimals, as a percentage of the
aggregate Loans and the aggregate
Commitments, as applicable of
Facility Amount Assigned all Lenders thereunder)
- -------- --------------- -----------------------
<S> <C> <C>
Tranche A Revolving Credit $ %
Commitment:
Tranche A Revolving Credit Loans:
Tranche B Revolving Credit
Commitment:
Tranche B Revolving Credit Loans:
Tranche C Term Loan Commitment:
Tranche C Term Loans:
Tranche D Term Loan Commitment:
Tranche D Term Loans
Commitment fees in respect of
Tranche A Revolving Credit
Commitment (if any):
Commitment fees in respect of
Tranche B Revolving Credit
Commitment (if any):
Commitment fees in respect of
Tranche A Term Loan Commitment (if
any):
Commitment fees in respect of
Tranche B Term Loan Commitment (if
any):
</TABLE>
- --------
1 Must be at least five Business Days after execution hereof by all
required parties.
Assignment and Acceptance
<PAGE> 147
-4-
The terms set forth above and on the reverse side hereof are hereby agreed to:
[NAME OF ASSIGNOR] , as Assignor
By:__________________________________
Name:
Title:
[NAME OF ASSIGNEE] , as Assignee
By:__________________________________
Name:
Title:
Assignment and Acceptance
<PAGE> 148
-5-
The undersigned hereby consent to [or acknowledge receipt of] the
within assignment:(2)
NEXTEL FINANCE COMPANY TORONTO DOMINION (TEXAS) INC.,
as Administrative Agent,
By:_____________________ By:_______________________
Name: Name:
Title: Title:
THE CHASE MANHATTAN BANK, MORGAN GUARANTY TRUST COMPANY
as Issuing Bank OF NEW YORK, as Issuing Bank
By:_____________________ By:_______________________
Name: Name:
Title: Title:
THE TORONTO-DOMINION BANK,
as Issuing Bank
By:_____________________
Name:
Title:
- ---------------
(2) Consents or acknowledgments to be included to the extent required by
Section 9.04(b) of the Credit Agreement.
Assignment and Acceptance
<PAGE> 149
EXHIBIT B
[Form of Opinion of Special Counsel]
[Effective Date]
To the Lenders and the
Agents Party to the Credit
Agreement Referred to Below
Ladies and Gentlemen:
We have acted as special New York counsel to The Chase
Manhattan Bank, Morgan Guaranty Trust Company of New York and The
Toronto-Dominion Bank, as arrangers of the credit facilities contemplated by the
Credit Agreement dated as of September 27, 1996 (the "Credit Agreement") among
Nextel Communications, Inc. ("NCI"), Nextel Finance Company (the "Borrower") and
the other Restricted Companies named therein, the Lenders named therein, Toronto
Dominion (Texas) Inc., as Administrative Agent, and The Chase Manhattan Bank, as
Collateral Agent. Terms defined in the Credit Agreement are used herein as
defined therein. This opinion is being delivered pursuant to Section 5.01(e) of
the Credit Agreement.
In rendering the opinions expressed below, we have examined
the following agreements, instruments and other documents:
(a) the Credit Agreement;
(b) the Restricted Company Guarantee and Security
Agreement; and
(c) the Intercreditor and Collateral Agency Agreement.
The agreements, instruments and other documents referred to in the foregoing
lettered clauses are collectively referred to as the "Credit Documents".
In our examination, we have assumed the authenticity of all
documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies. When relevant
facts were not independently established, we have relied upon representations
made in or pursuant to the Credit Documents.
Opinion of Special Counsel
<PAGE> 150
-2-
In rendering the opinions expressed below, we have assumed,
with respect to all of the documents referred to in this opinion letter, that:
(i) such documents have been duly authorized by, have
been duly executed and delivered by, and (except to
the extent set forth in the opinions below as to the
Credit Parties) constitute legal, valid, binding and
enforceable obligations of, all of the parties to
such documents;
(ii) all signatories to such documents have been duly
authorized; and
(iii) all of the parties to such documents are duly
organized and validly existing and have the power and
authority (corporate or other) to execute, deliver
and perform such documents.
Based upon and subject to the foregoing and subject also to
the comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinions
expressed below, we are of the opinion that:
1. Each of the Credit Documents constitutes the legal, valid
and binding obligation of each Credit Party party thereto, enforceable
against such Credit Party in accordance with its terms, except as may
be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws relating to or affecting
the rights of creditors generally and except as the enforceability of
the Credit Documents is subject to the application of general
principles of equity (regardless of whether considered in a
proceeding in equity or at law), including, without limitation, (a) the
possible unavailability of specific performance, injunctive relief or
any other equitable remedy and (b) concepts of materiality,
reasonableness, good faith and fair dealing.
2. The Restricted Company Guarantee and Security Agreement is
effective to create, in favor of the Collateral Agent for the benefit
of the Collateral Agent and the Secured Parties (as defined in the
Restricted Company Guarantee and Security Agreement), a valid security
interest under the Uniform Commercial Code as in effect in the State of
New York (the "UCC") in all of the right, title and interest of the
Restricted Companies in, to and under the Collateral (as defined in the
Restricted Company Guarantee
Opinion of Special Counsel
<PAGE> 151
-3-
and Security Agreement) as collateral security for the payment when
due of the Secured Obligations (as so defined), except that:
(a) such security interest will continue in
Collateral after its sale, exchange or other disposition only
to the extent provided in Sections 9-306 and 9-307 of the UCC;
(b) such security interest in any portion of the
Collateral in which a Restricted Company acquires rights after
the commencement of a case under the Federal Bankruptcy Code
of 1978, as amended (the "Bankruptcy Code"), in respect of
such Restricted Company may be limited by Section 552 of the
Bankruptcy Code;
(c) the creation of a security interest in any
portion of the Collateral constituting a right to receive
proceeds of a letter of credit requires that the letter of
credit be delivered to and retained by the Collateral Agent in
the State of New York; and
(d) the creation of a security interest in any
portion of the Collateral constituting a "security" (as
defined in Section 8-102(1)(c) of the UCC) requires the
transfer of said Collateral to the Collateral Agent pursuant
to Section 8-313(1) of the UCC, which transfer in the case of
any Pledged Equity (as defined in the Restricted Company
Guarantee and Security Agreement) represented by a certificate
may be effected by the Collateral Agent taking possession of
such certificate and thereafter retaining possession thereof
in the State of New York.
3. Any security interest in Pledged Equity represented by a
certificate will be created and perfected by the Collateral Agent
taking and thereafter retaining possession thereof (or any certificates
representing any such certificated security) in the State of New York.
4. With respect to any portion of the Pledged Equity
consisting of a certificated security, if such security interest
therein is perfected by the Collateral Agent in the manner specified in
paragraph 3 above in good faith and without notice of any adverse claim
(as defined in Section 8-302(2) of the UCC) and in bearer form or in
registered form issued to the Collateral Agent or indorsed to the
Collateral Agent or in blank, any perfected security
Opinion of Special Counsel
<PAGE> 152
-4-
interest therein will have priority over all other security interests
theretofore or thereafter created under the UCC.
The foregoing opinions are subject to the following comments
and qualifications:
(A) The enforceability of Section 10.03 of the Credit
Agreement (and any similar provisions in any of the other Credit
Documents) may be limited by (i) laws rendering unenforceable
indemnification contrary to Federal or state securities laws and the
public policy underlying such laws and (ii) laws limiting the
enforceability of provisions exculpating or exempting a party, or
requiring indemnification of a party for, liability for its own action
or inaction, to the extent the action or inaction involves gross
negligence, recklessness, willful misconduct or unlawful conduct.
(B) Clause (iii) of the second sentence of Section 3.02 of the
Credit Agreement, and clause (iii) of the second sentence of Section
2.02 of the Restricted Company Guarantee and Security Agreement, may
not be enforceable to the extent that the Guaranteed Obligations (as
defined in the Credit Agreement and the Restricted Company Guarantee
and Security Agreement, respectively) are materially modified.
(C) The enforceability of provisions in the Credit Documents
to the effect that terms may not be waived or modified except in
writing may be limited under certain circumstances.
(D) We express no opinion as to (i) the effect of the laws of
any jurisdiction in which any Lender is located (other than the State
of New York) that limit the interest, fees or other charges such Lender
may impose for the loan or use of money or other credit, (ii) the next
to the last sentence of Section 2.16(d) of the Credit Agreement, (iii)
the first sentence of Section 10.09 of the Credit Agreement (and any
similar provisions in any of the other Credit Documents), insofar as
such sentence relates to the subject matter jurisdiction of the United
States District Court for the Southern District of New York to
adjudicate any controversy related to the Loan Documents, (iv) Section
3.06 of the Credit Agreement and Section 2.06 of the Restricted Company
Guarantee and Security Agreement and (v) Section 2.09 of the Restricted
Company Guarantee and Security Agreement.
Opinion of Special Counsel
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(E) We express no opinion as to the applicability to the
obligations of any Restricted Company (or the enforceability of such
obligations) of Section 548 of the Bankruptcy Code, Article 10 of the
New York Debtor and Creditor Law or any other provision of law relating
to fraudulent conveyances, transfers or obligations or of the
provisions of the law of the jurisdiction of incorporation of any
Restricted Company restricting dividends, loans or other distributions
by a corporation for the benefit of its stockholders.
(F) We wish to point out that the obligations of the
Restricted Companies, and the rights and remedies of the Collateral
Agent, under Sections 6.05 through 6.10 (inclusive) of the Restricted
Company Guarantee and Security Agreement may be subject to possible
limitations upon the exercise of remedial or procedural provisions
contained in the Restricted Company Guarantee and Security Agreement,
provided that such limitations do not, in our opinion (but subject to
the other comments and qualifications set forth in this opinion
letter), make the remedies and procedures that will be afforded to the
Collateral Agent and the Secured Parties (as defined therein)
inadequate for the practical realization of the substantive benefits
purported to be provided to the Collateral Agent and such Secured
Parties by the Restricted Company Guarantee and Security Agreement.
(G) With respect to our opinion in paragraphs 7, 8 or 9 above,
we express no opinion as to the creation, perfection or priority of any
security interest in (or other lien on) any Collateral (as defined in
the Restricted Company Guarantee and Security Agreement) (i) to the
extent that, pursuant to Section 9-104 of the UCC, Article 9 of the UCC
does not apply thereto, (ii) consisting of uncertificated securities
(as defined in Section 8-102(b) of the UCC), (iii) consisting of
fixtures, timber to be cut or minerals (including oil and gas) or (iv)
covered by a certificate of title.
(H) We wish to point out that the acquisition by an Obligor
after the initial extension of credit under the Credit Agreement of an
interest in Property that becomes subject to the Lien of the Guarantee
and Security Agreement may constitute a voidable preference under
Section 547 of the Bankruptcy Code.
Opinion of Special Counsel
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(I) We express no opinion as to the existence of, or the
right, title or interest of any Restricted Company in, to or under, any
of the Collateral.
(J) Except as expressly provided in paragraphs 7, 8 and 9
above, we express no opinion as to the creation, perfection or priority
of any security interest in, or other lien on, the Collateral.
The foregoing opinions are limited to matters involving the
Federal laws of the United States and the law of the State of New York, and we
do not express any opinion as to the laws of any other jurisdiction. We express
no opinion herein as to the applicability to, or effect upon, the transactions
contemplated by the Credit Document with respect to matters governed by (i) the
Federal Communications Act of 1934, as amended, and the rules and regulations
promulgated thereunder by the FCC or (ii) any PUC which on the date hereof is
entitled to exercise jurisdiction over the Credit Parties.
At the request of our clients, this opinion is rendered solely
to you in connection with the above matter. This opinion may not be relied upon
by you for any other purpose or relied upon by any other Person (other than your
successors and assigns as Lenders and Persons that acquire participations in
your extensions of credit under the Credit Agreement) without our prior written
consent.
Very truly yours,
RJW/CDP, Jr.
Opinion of Special Counsel
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EXHIBIT C
[Form of Restricted Company Guarantee and Security Agreement]
GUARANTEE AND SECURITY AGREEMENT
GUARANTEE AND SECURITY AGREEMENT dated as of September 27,
1996 between NEXTEL FINANCE COMPANY, a corporation duly organized and validly
existing under the laws of the State of Delaware (the "Borrower"); each of the
subsidiaries of Nextel Communications, Inc. listed on the signature pages hereto
under the caption "INITIAL GUARANTORS" (the "Initial Guarantors"); each of the
additional entities, if any, that becomes a "Guarantor" hereunder as
contemplated by Section 7.12 (each an "Additional Guarantor" and together with
the Initial Guarantors, the "Guarantors"; the Guarantors together with the
Borrower, being herein called the "Restricted Companies"); and The Chase
Manhattan Bank, as collateral agent for the Vendors and Lenders party to the
Loan Agreements referred to below (in such capacity, together with its
successors in such capacity, the "Collateral Agent").
Nextel Communications, Inc. and the Restricted Companies are
parties to (i) an Amended, Restated and Consolidated Credit Agreement dated as
of September 27, 1996 (as modified and supplemented and in effect from time to
time, the "Vendor Financing Agreement") with Motorola, Inc., a Delaware
corporation ("Motorola"), and NTFC Capital Corporation, a Delaware corporation
("NTFC Capital" and, together with Motorola, the "Vendors"), providing, subject
to the terms and conditions thereof, for loans to be made by Motorola and NTFC
Capital to the Borrower in an aggregate principal amount not exceeding
$345,000,000 and (ii) a Credit Agreement dated as of September 27, 1996 (as
modified and supplemented and in effect from time to time, the "Credit
Agreement" and, together with the Vendor Financing Agreement, the "Loan
Agreements"), providing, subject to the terms and conditions thereof, for
extensions of credit (by means of loans and letters of credit) to be made by the
Lenders named therein (collectively, together with any entity that becomes a
"Lender" party to the Credit Agreement after the date hereof as provided
therein, the "Lenders" and, together with the Vendors and any successors or
assigns of any of the foregoing, the "Secured Parties") to the Borrower in an
aggregate principal or face amount not exceeding $1,655,000,000 (which, in the
circumstances contemplated by Section 7.01(f) thereof, may be increased to
$1,905,000,000). In addition, the Borrower may from time to time be obligated to
one or more of the Lenders under the Credit Agreement in respect of Hedging
Agreements under and as
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defined in the Credit Agreement (collectively, the "Hedging Agreements").
To induce the Secured Parties to enter into the respective
Loan Agreements to which they are party and to extend credit thereunder, and to
induce the Lenders to extend credit to the Borrower under Hedging Agreements,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Guarantors have agreed to guarantee the
Guaranteed Obligations (as hereinafter defined), and the Restricted Companies
have agreed to pledge and grant a security interest in the Collateral (as so
defined) as security for the Secured Obligations (as so defined). Accordingly,
the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this
Agreement, the following terms have the meanings specified below:
"Accounts" has the meaning assigned to such term in
paragraph (d) of Article IV.
"Agents" means the Administrative Agent under the Credit
Agreement and the Collateral Agent hereunder.
"Authorizations" means all validations, exemptions,
franchises, waivers, approvals, orders or authorizations, consents, licenses,
certificates and permits from, the FCC, any PUC and any other Federal, state or
local regulatory or governmental bodies and authorities, including any
subdivision thereof.
"Capital Expenditures" has the meaning assigned to such
term in the Loan Agreements.
"Casualty Event" means, with respect to any property of any
Restricted Company, any loss of or damage to, or any condemnation or other
taking of, such property for which such Restricted Company or any of its
subsidiaries receives insurance proceeds, or proceeds of a condemnation award or
other compensation.
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"Casualty Event Proceeds Account" has the meaning
assigned to such term in Section 5.01.
"Collateral" has the meaning assigned to such term in
Article IV.
"Collateral Accounts" has the meaning assigned to such
term in Section 5.01.
"Commitments" means the "Commitments" of the Lenders under the
Credit Agreement (including any commitment to provide "Tranche E Loans"
thereunder in the circumstances contemplated by Section 7.01(f) of the Credit
Agreement) and the "Commitments" of the Vendors under the Vendor Financing
Agreement.
"Concentration Account" has the meaning assigned to
such term in Section 5.01.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Enhanced SMR System" means a wide-area network of specialized
mobile radio base stations that employs digital and other advanced, spectrally
efficient communications technologies to provide a full range of communications
services including voice, dispatch, interconnected telephone and data services.
"Equipment" has the meaning assigned to such term in
paragraph (h) of Article IV.
"Equity Collateral" means, collectively, the Collateral
described in clauses (a) through (c) of Article IV and the proceeds of and to
any such property and, to the extent related to any such property or such
proceeds, all books, correspondence, credit files, records, invoices and other
papers.
"Event of Default" means, an "Event of Default" under and as
defined in the Credit Agreement or an "Event of Default" under and as defined in
the Vendor Financing Agreement.
"FCC" means the Federal Communications Commission or
any Governmental Authority substituted therefor.
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"FCC License" means any paging, mobile telephone, specialized
mobile radio, microwave or other license, permit, consent, certificate of
compliance, franchise, approval, waiver or authorization granted or issued by
the FCC, including any of the foregoing authorizing or permitting the
acquisition, construction or operation of an SMR System, radio paging system,
mobile telephone system or other radio communications system.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guaranteed Obligations" has the meaning assigned to
such term in Section 2.01.
"Hedging Agreements" has the meaning assigned to such
term in the preamble to this Agreement.
"Instruments" has the meaning assigned to such term in
paragraph (e) of Article IV.
"Intercreditor and Collateral Agency Agreement" means the
Intercreditor and Collateral Agency Agreement dated as of the date hereof
between the Restricted Companies, the Vendors, the Administrative Agent and the
Collateral Agent.
"Inventory" has the meaning assigned to such term in
paragraph (g) of Article IV.
"Issuing Bank" has the meaning assigned to such term in
the Credit Agreement.
"Issuers" means, collectively, (a) the respective corporations
identified beneath the names of the Securing Parties on Annex 1 under the
caption "Issuer" and (b) any other entity that shall at any time be a subsidiary
of any of the Restricted Companies.
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"LC Disbursement" has the meaning assigned to such term
in the Credit Agreement.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit under the Credit Agreement
at such time plus (b) the aggregate amount of all LC Disbursements that have not
yet been reimbursed by or on behalf of the Borrower at such time.
"Letter of Credit Account" has the meaning assigned to
such term in Section 5.01.
"Letters of Credit" means the "Letters of Credit" from time to
time issued under the Credit Agreement.
"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 and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Document" means the Loan Agreements, any promissory
notes evidencing Loans under any Loan Agreement and the Security Documents.
"Loans" means the "Loans" made by the Lenders to the Borrower
under the Credit Agreement (including any "Tranche E Loans" thereunder made in
the circumstances contemplated by Section 7.01(f) of the Credit Agreement) and
the "Loans" made by the Vendors to the Borrower under the Vendor Financing
Agreement.
"Mortgages" means, collectively, one or more assignments of
lease, mortgages, deeds of trust, deeds to secure debt and the like executed by
a Restricted Company in favor of the Collateral Agent (or a trustee for the
benefit of the Collateral Agent), and covering interests in real property held
by such Restricted Company as collateral security for the Secured Obligations,
in each case in such form as shall be satisfactory to the Collateral Agent.
"Part 90" means 47 CFR Part 90 of the Rules and Regulations of
the FCC in effect from time to time or such other
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parts or subparts that may be substituted for or combined with said Part 90.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard and
Poor's Ratings Service or from Moody's Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $250,000,000; and
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental authority or other entity.
"Pledged Equity" has the meaning assigned to such term
in paragraph (a) of Article IV.
"PUC" means any state regulatory agency or body that exercises
jurisdiction over the rates or services or the ownership, construction or
operation of any SMR System, cellular radio telecommunications system or
conventional mobile telephone system or over Persons who own, construct or
operate SMR Systems,
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cellular radio telecommunications systems or conventional mobile telephone
systems, in each case by reason of the nature or type of the business subject to
regulation and not pursuant to laws and regulations of general applicability to
Persons conducting business in said state.
"PUC Authorization" means any Authorization issued by a
PUC.
"Required Revolving Credit Lenders" has the meaning assigned
to such term in the Credit Agreement.
"Required Secured Parties" means, at any time, Secured Parties
having Loans, LC Exposure and unused Commitments under the respective Loan
Agreements representing at least 51% of the sum of the total Loans, LC Exposure
and unused Commitments at such time.
"Restricted Payments" has the meaning assigned to such
term in the Loan Agreements.
"Sale Proceeds Reinvestment Account" has the meaning
assigned to such term in Section 5.01.
"Secured Obligations" means, collectively, (a) in the case of
the Borrower, the principal of and interest on the Loans made by the Secured
Parties to the Borrower, all LC Disbursements and all other amounts from time to
time owing to the Secured Parties or the Agents by the Borrower under the Loan
Documents or any Hedging Agreement, (b) in the case of each Guarantor, all
obligations of such Guarantor in respect of its Guarantee under Article II and
(c) in the case of each Restricted Company, all other obligations of such
Restricted Company to the Secured Parties and the Agents hereunder.
"Security Documents" means this Agreement, the Intercreditor
and Collateral Agency Agreement, the Mortgages and all Uniform Commercial Code
financing statements required by any of such instruments to be filed with
respect to the security interests in personal property and fixtures created
pursuant hereto or thereto.
"SMR System" means a specialized mobile radio system licensed
under Part 90, together with such other facilities from time to time licensed or
otherwise authorized by the FCC as shall be necessary to provide the
communications services to be offered by the Restricted Companies. The term "SMR
System" shall include
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an Enhanced SMR System using FCC Licenses in the 800 MHz or 900 MHz band.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Tax Proceeds Account" has the meaning assigned to such
term in Section 5.01.
"Trademark Collateral" means all Trademarks, whether now owned
or hereafter acquired by any Restricted Company, including each Trademark
identified in Annex 2. Notwithstanding the foregoing, the Trademark Collateral
does not and shall not include any Trademark that would be rendered invalid,
abandoned, void or unenforceable by reason of its being included as part of the
Trademark Collateral.
"Trademarks" means all trade names, trademarks and service
marks, logos, trademark and service mark registrations, and applications for
trademark and service mark registrations, including all renewals of trademark
and service mark registrations, all rights corresponding thereto throughout the
world, the right to recover for all past, present and future infringements
thereof, all other rights of any kind whatsoever accruing thereunder or
pertaining thereto, together, in each case, with the product lines and goodwill
of the business connected with the use of, and symbolized by, each such trade
name, trademark and service mark.
"Uniform Commercial Code" means the Uniform Commercial Code as
in effect from time to time in the State of New York.
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SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections and Exhibits shall be construed to refer
to Articles and Sections of, and Exhibits to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
ARTICLE II
The Guarantee
SECTION 2.01. The Guarantee. The Guarantors hereby jointly and
severally guarantee to each Secured Party and the Agents and their respective
successors and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the principal of and interest on the
Loans made by the Secured Parties to the Borrower, all LC Disbursements and all
other amounts from time to time owing to the Secured Parties or either Agent by
the Borrower under the Loan Agreements or any other Loan Document, and all
obligations of the Borrower to any Secured Party under any Hedging Agreement, in
each case strictly in accordance with the terms thereof (such principal,
interest, other amounts and obligations being herein collectively called the
"Guaranteed Obligations"). The Guarantors hereby further jointly and severally
agree that if the Borrower shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) any of the Guaranteed
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Obligations, the Guarantors will promptly pay the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Guaranteed Obligations, the same will be promptly paid in
full when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
SECTION 2.02. Obligations Unconditional. The obligations of
the Guarantors under Section 2.01 are absolute and unconditional, joint and
several, irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of the Borrower under the Loan Agreements or
any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 2.02 that the obligations of the
Guarantors hereunder shall be absolute and unconditional, joint and several,
under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the Guarantors hereunder which shall
remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to
the Guarantors, the time for any performance of or compliance with any
of the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions
of the Loan Agreements or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right under
the Loan Agreements or any other agreement or instrument referred to
herein or therein shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
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(iv) any lien or security interest granted to, or in
favor of, either Agent or any Secured Party as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that either Agent or any
Secured Party exhaust any right, power or remedy or proceed against the Borrower
under the Loan Agreements or any other agreement or instrument referred to
herein or therein, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
SECTION 2.03. Reinstatement. The obligations of the Guarantors
under this Article shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of the Borrower in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise and the Guarantors jointly and
severally agree that they will indemnify each Agent and Secured Party on demand
for all reasonable costs and expenses (including fees of counsel) incurred by
such Agent or Secured Party in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
SECTION 2.04. Subrogation. Each Guarantor hereby waives all
rights of subrogation or contribution, whether arising by contract or operation
of law (including any such right arising under the Federal Bankruptcy Code of
1978, as amended) or otherwise by reason of any payment by it pursuant to the
provisions of this Article II and further agrees with the Borrower for the
benefit of each of its creditors (including each Agent and Secured Party) that
any such payment by it shall constitute a contribution of capital by such
Guarantor to the Borrower (or an investment by such Guarantor in the equity
capital of the Borrower).
SECTION 2.05. Remedies. The Guarantors jointly and severally
agree that, as between the Guarantors and the Secured Parties, the obligations
of the Borrower under the Loan Agreements may be declared to be forthwith due
and payable as provided in Article VIII of the respective Loan Agreements (and
shall be deemed to have become automatically due and payable in
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the circumstances provided in said Article VIII) for purposes of Section 2.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Borrower and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Borrower) shall forthwith
become due and payable by the Guarantors for purposes of said Section 2.01.
SECTION 2.06. Instrument for the Payment of Money. Each
Guarantor hereby acknowledges that the guarantee in this Article constitutes an
instrument for the payment of money, and consents and agrees that any Agent or
Secured Party, at its sole option, in the event of a dispute by such Guarantor
in the payment of any moneys due hereunder, shall have the right to bring
motion-action under New York CPLR Section 3213.
SECTION 2.07. Continuing Guarantee. The guarantee in
this Article is a continuing guarantee, and shall apply to all
Guaranteed Obligations whenever arising.
SECTION 2.08. Rights of Contribution. The Guarantors hereby
agree, as between themselves, that if any Guarantor shall become an Excess
Funding Guarantor (as defined below) by reason of the payment by such Guarantor
of any Guaranteed Obligations, each other Guarantor shall, on demand of such
Excess Funding Guarantor (but subject to the next sentence), pay to such Excess
Funding Guarantor an amount equal to such Guarantor's Pro Rata Share (as defined
below and determined, for this purpose, without reference to the properties,
debts and liabilities of such Excess Funding Guarantor) of the Excess Payment
(as defined below) in respect of such Guaranteed Obligations. The payment
obligation of a Guarantor to any Excess Funding Guarantor under this Section
2.08 shall be subordinate and subject in right of payment to the prior payment
in full of the obligations of such Guarantor under the other provisions of this
Article and such Excess Funding Guarantor shall not exercise any right or remedy
with respect to such excess until payment and satisfaction in full of all of
such obligations.
For purposes of this Section 2.08, (a) "Excess Funding
Guarantor" means, in respect of any Guaranteed Obligations, a Guarantor that has
paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations,
(b) "Excess Payment" means, in respect of any Guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
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Guaranteed Obligations and (c) "Pro Rata Share" means, for any Guarantor, the
ratio (expressed as a percentage) of (i) the amount by which the aggregate
present fair saleable value of all properties of such Guarantor (excluding any
shares of stock of any other Guarantor) exceeds the amount of all the debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder and any obligations of any other Guarantor that have been Guaranteed
by such Guarantor) to (ii) the amount by which the aggregate fair saleable value
of all properties of all of the Restricted Companies exceeds the amount of all
the debts and liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of the Restricted
Companies hereunder and under the other Loan Documents) of all of the Restricted
Companies, determined (A) with respect to any Guarantor that is a party hereto
on the Effective Date, as of the Effective Date, and (B) with respect to any
other Guarantor, as of the date such Guarantor becomes a Guarantor hereunder.
SECTION 2.09. General Limitation on Guarantee Obligations. In
any action or proceeding involving any state corporate law, or any state or
Federal bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of any Guarantor under Section 2.01
would otherwise, taking into account the provisions of Section 2.08, be held or
determined to be void, invalid or unenforceable, or subordinated to the claims
of any other creditors, on account of the amount of its liability under said
Section 2.01, then, notwithstanding any other provision hereof to the contrary,
the amount of such liability shall, without any further action by such
Guarantor, any Agent or Secured Party or any other Person, be automatically
limited and reduced to the highest amount that is valid and enforceable and not
subordinated to the claims of other creditors as determined in such action or
proceeding.
ARTICLE III
Representations and Warranties
Each Restricted Company represents and warrants to each Agent
and Secured Party that:
(a) Such Restricted Company is the sole beneficial owner of
the Collateral in which it purports to grant a security
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interest pursuant to Article IV and no Lien exists or will exist upon such
Collateral at any time (and no right or option to acquire the same exists in
favor of any other Person), except for Liens permitted under Section 7.02 of the
respective Loan Agreements and except for the pledge and security interest in
favor of the Collateral Agent for the benefit of the Secured Parties created or
provided for herein and in the other Security Documents, which pledge and
security interest will, upon perfection under the applicable provisions of the
Uniform Commercial Code (but subject in any event to such Liens permitted under
said Section 7.02) constitute a first priority perfected pledge and security
interest in and to all of such Collateral, to the extent such pledge and
security interest can be perfected under the Uniform Commercial Code.
(b) The Pledged Equity identified under the name of such
Restricted Company in Annex 1 is, and all other Pledged Equity in which such
Restricted Company shall hereafter grant a security interest pursuant to Article
IV will be, duly authorized, validly existing, fully paid and non-assessable (in
the case of any equity interest in a corporation) and duly issued and
outstanding (in the case of any equity interest in any other entity), and none
of such Pledged Equity is or will be subject to any contractual restriction, or
any restriction under the charter, by-laws, partnership agreement or other
organizational document of the respective Issuer of such Pledged Equity, upon
the transfer of such Pledged Equity (except for any such restriction contained
herein or identified in Annex 1).
(c) The Pledged Equity identified under the name of such
Restricted Company in Annex 1 constitutes all of the issued and outstanding
shares of capital stock, partnership or other ownership interest of any class or
character of the Issuers beneficially owned by such Restricted Company on the
date hereof (whether or not registered in the name of the such Restricted
Company) and Annex 1 correctly identifies, as at the date hereof, the respective
Issuers of such Pledged Equity and (in the case of any corporate Issuer) the
respective class and par value of the shares comprising such Pledged Equity and
the respective number of shares (and registered owners thereof) represented by
each such certificate.
(d) Annex 2 sets forth under the name of such Restricted
Company a complete and correct list of all Trademarks owned by such Restricted
Company on the date hereof.
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ARTICLE IV
Collateral
As collateral security for the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the Secured
Obligations, each Restricted Company hereby pledges and grants to the Collateral
Agent, for the benefit of the Secured Parties as hereinafter provided, a
security interest in all of such Restricted Company's right, title and interest
in the following property, whether now owned by such Restricted Company or
hereafter acquired and whether now existing or hereafter coming into existence
(all being collectively referred to herein as "Collateral"):
(a) the shares of common and preferred stock of, or
partnership and other ownership interest in, the Issuers identified in
Annex 1 under the name of such Restricted Company (as the same shall be
supplemented from time to time under a Joinder Agreement executed
pursuant to Section 7.12) and all other shares of capital stock, or
partnership or other ownership interest, of whatever class or character
of the Issuers, now or hereafter owned by such Restricted Company, in
each case together with the certificates evidencing the same
(collectively, the "Pledged Equity");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Equity, or representing a distribution
or return of capital upon or in respect of the Pledged Equity, or
resulting from a split-up, revision, reclassification or other like
change of the Pledged Equity or otherwise received in exchange
therefor, and any subscription warrants, rights or options issued to
the holders of, or otherwise in respect of, the Pledged Equity;
(c) without affecting the obligations of such Restricted
Company under any provision prohibiting such action hereunder or under
the Loan Agreements, in the event of any consolidation or merger in
which an Issuer is not the surviving entity, all ownership interests of
any class or character of the successor entity (unless such successor
entity is such Restricted Company itself) formed by or resulting from
such consolidation or merger (the Pledged Equity, together with all
other certificates, shares, securities, properties or moneys as may
from time to time be pledged hereunder pursuant to clause (a) or (b)
above and
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this clause (c) being herein collectively called the "Equity
Collateral");
(d) all accounts and general intangibles (each as defined in
the Uniform Commercial Code) of such Restricted Company constituting
any right to the payment of money, including all moneys due and to
become due to such Restricted Company in respect of any loans or
advances or for Inventory or Equipment or other goods sold or leased or
for services rendered, all moneys due and to become due to such
Restricted Company under any guarantee (including a letter of credit)
of the purchase price of Inventory or Equipment sold by such Restricted
Company and all tax refunds (such accounts, general intangibles and
moneys due and to become due being herein called collectively
"Accounts");
(e) all instruments, chattel paper or letters of credit (each
as defined in the Uniform Commercial Code) of such Restricted Company
evidencing, representing, arising from or existing in respect of,
relating to, securing or otherwise supporting the payment of, any of
the Accounts, including promissory notes, drafts, bills of exchange and
trade acceptances (herein collectively called "Instruments");
(f) all Trademark Collateral of such Restricted Company and
all other accounts or general intangibles of such Restricted Company
not constituting Trademark
Collateral or Accounts;
(g) all inventory (as defined in the Uniform Commercial Code)
of such Restricted Company (including all handsets, telephones and
other similar equipment held by such Restricted Company for sale or
lease to customers), all goods obtained by such Restricted Company in
exchange for such inventory, and any products made or processed from
any inventory including all substances, if any, commingled therewith or
added thereto (herein collectively called "Inventory");
(h) all equipment (as defined in the Uniform Commercial Code)
of such Restricted Company, including all transmitter, switch and
related equipment (herein collectively called "Equipment");
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(i) each contract and other agreement of such Restricted
Company relating to the sale or other disposition of Inventory or
Equipment; all documents of title (as defined in the Uniform Commercial
Code) or other receipts of such Restricted Company covering, evidencing
or representing Inventory or Equipment; and all rights, claims and
benefits of such Restricted Company against any Person arising out of,
relating to or in connection with Inventory or Equipment purchased by
such Restricted Company, including any such rights, claims or benefits
against any Person storing or transporting Inventory or Equipment;
(j) all customer lists, customer contracts and sales agent
agreements with respect to the operation of the Mobile Communications
Business by such Restricted Company;
(k) to the maximum extent permitted under the applicable
instrument pursuant to which such easements, rights of way and leases
arise, all easements and rights of way, and all right, title and
interest of such Restricted Company in, to and under any leases entered
into by such Restricted Company for transmitter sites, switching
stations and other locations in connection with the operation of the
Mobile Communications Business by such Restricted Company; and
(l) all rights of such Restricted Company under or relating to
FCC Licenses and PUC Authorizations and the proceeds from the sale of
any FCC Licenses or PUC Authorizations or any goodwill or other
intangible rights or benefits associated therewith, provided that such
security interest does not include at any time any FCC Licenses to the
extent (but only to the extent) that at such time the Collateral Agent
may not validly possess a security interest therein pursuant to the
Communications Act of 1934, as amended, and the regulations promulgated
thereunder, as in effect at such time, but such security interest does
include, to the maximum extent permitted by law, all rights incident or
appurtenant to FCC Licenses and the right to receive all proceeds
derived from or in connection with the sale, assignment or transfer of
the FCC Licenses;
(m) the balance from time to time in the Collateral
Accounts; and
(n) all other tangible and intangible personal property and
fixtures of such Restricted Company, including
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all proceeds, products, offspring, accessions, rents, profits, income,
benefits, substitutions and replacements of and to any of the property
of such Restricted Company described in the preceding clauses of this
Article IV (including any proceeds of insurance thereon and all causes
of action, claims and warranties now or hereafter held by such
Restricted Company in respect of any of the items listed above) and, to
the extent related to any property described in said clauses or such
proceeds, products and accessions, all books, correspondence, credit
files, records, invoices and other papers, including all tapes, cards,
computer runs and other papers and documents in the possession or under
the control of such Restricted Company or any computer bureau or
service company from time to time acting for such Restricted Company
provided that in the case of any of the foregoing that consists of general or
limited partnership interests in a general or limited partnership, the security
interest hereunder shall be deemed to be created only to the maximum extent
permitted under the applicable organizational instrument pursuant to which such
partnership is formed.
ARTICLE V
Collateral Accounts
SECTION 5.01. Collateral Account. There is hereby established
with The Chase Manhattan Bank, as Collateral Agent, five segregated deposit
accounts (respectively, the "Sale Proceeds Reinvestment Account", the "Casualty
Event Proceeds Account", the "Tax Proceeds Account", the "Letter of Credit
Account" and the "Concentration Account"; collectively, the "Collateral
Accounts"), each in the name and under the control of the Collateral Agent into
which there shall be deposited all cash generated by the Restricted Companies
(whether or not in the ordinary course of business) as follows:
(a) the Restricted Companies shall deposit into the Sale
Proceeds Reinvestment Account, the Net Cash Payments of any Disposition
(as each of such capitalized terms is defined in the respective Loan
Agreements on the date hereof) that, pursuant to clause (y) of Section
2.09(b)(ii) of the respective Loan Agreements, the Restricted Companies
elect to deliver to the Collateral Agent pending
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reinvestment of such Net Cash Payments into replacement assets;
(b) the Restricted Companies shall deposit into the Casualty
Event Proceeds Account, if such proceeds exceed $5,000,000, the
proceeds (inclusive of such $5,000,000) of any insurance, condemnation
award or other compensation received as a result of any Casualty
Event in respect Collateral hereunder;
(c) the Restricted Companies shall deposit into the Tax
Proceeds Account, that portion of the cash payment received by the
Restricted Companies directly or indirectly in connection with any
Disposition (as such term in defined in the respective Loan Agreements
on the date hereof) that represents the income or other taxes estimated
to be payable by the Restricted Companies as a result of such
Disposition and that are deducted in determining the amount of "Net
Cash Payments" (as so defined) with respect to such Disposition;
(d) the Restricted Companies shall deposit into the Letter of
Credit Account monies required to be deposited therein from time to
time pursuant to Section 2.04(i) of the Credit Agreement; and
(e) the Restricted Companies shall deposit into the
Concentration Account all other cash generated or received by the
Restricted Companies (whether or not in the ordinary course of
business), including the cash proceeds of all sales or other
dispositions of Collateral, the proceeds of all service charges, fees
and lease payments received from customers in the ordinary course of
business and any proceeds of any insurance, condemnation award or other
compensation received as a result of any Casualty Event in respect
Collateral hereunder that is not deposited into the Casualty Event
Proceeds Account.
To implement the provisions of the foregoing clause (e), each Restricted Company
shall instruct all account debtors and other Persons obligated in respect of all
Accounts of such Restricted Company to make all payments in respect of such
Accounts either (i) directly to the Collateral Agent by instructing that such
payments be remitted to a post office box which shall be in the name and under
the control of the Collateral Agent (and the Collateral Agent agrees, upon
receipt of any such payments, to immediately deposit the same into the
Concentration Account) or (ii) to one or more other banks in the United States
of America
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(by instructing that such payments be remitted to a post office box
which shall be in the name and under the control of the Collateral Agent) under
arrangements, in form and substance satisfactory to the Collateral Agent
pursuant to which such Restricted Company shall have irrevocably instructed such
other bank (and such other bank shall have agreed) to remit all proceeds of such
payments directly to the Collateral Agent for deposit into the Concentration
Account.
In addition to the foregoing, each Restricted Company agrees
that if the proceeds of any Collateral hereunder (including any payments made in
respect of Accounts) shall be received by it, such Restricted Company shall as
promptly as possible deposit such proceeds into the appropriate Collateral
Account. Until so deposited, all such proceeds shall be held in trust by such
Restricted Company for and as the property of the Collateral Agent and shall not
be commingled with any other funds or property of such Restricted Company.
SECTION 5.02. Application of Monies in Collateral Accounts.
The balance from time to time in the Collateral Accounts shall constitute part
of the Collateral hereunder, shall not constitute payment of the Secured
Obligations until applied to the Secured Obligations as hereinafter provided and
shall be released to the Restricted Companies (or otherwise be subject to
withdrawal) only as follows:
(a) monies and investments in the Sale Proceeds Reinvestment
Account may be withdrawn only in connection with a reinvestment
transaction permitted under Section 2.09(b)(ii) of the respective Loan
Agreements, or for application to the prepayment of Loans (or cover for
Letters of Credit) as contemplated by said Section 2.09(b)(ii),
provided that (without the consent of the Required Secured Parties) the
Collateral Agent shall not be obligated to release such monies for
application to a reinvestment transaction at any time after the
occurrence and during the continuance of any Event of Default;
(b) monies and investments in the Casualty Event Proceeds
Account may be withdrawn only in connection with the replacement,
restoration and repair of the property affected by such Casualty Event
(the "Damaged Property"), or for application to the prepayment of Loans
(or cover for Letters of Credit) pursuant to Section 2.09(a) of the
Loan Agreements (in such manner as the Borrower shall elect), and if
the respective Restricted Company elects to so replace or
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restore and repair Damaged Property, any such monies shall be advanced
to such Restricted Company by the Collateral Agent in periodic
installments upon compliance by such Restricted Company with such
reasonable conditions to disbursement as may be imposed by the
Collateral Agent, including, but not limited to, reasonable retention
amounts and receipt of lien releases, provided that (without the
consent of the Required Secured Parties) the Collateral Agent shall not
be obligated to release such monies for application to any such
replacement, restoration, repair or prepayment at any time after the
occurrence and during the continuance of any Event of Default;
(c) monies and investments in the Tax Proceeds Account may be
withdrawn only in connection with the payment of taxes as contemplated
by the definition of "Net Cash Payments" in the respective Loan
Agreements, or for application to the prepayment of Loans (or cover for
Letters of Credit) as contemplated by said Section 2.09(b)(ii),
provided that (without the consent of the Required Secured Parties) the
Collateral Agent shall not be obligated to release such monies for
application to the payment of taxes at any time after the occurrence
and during the continuance of any Event of Default;
(d) monies and investments in the Letter of Credit Account may
be applied only to the payment of LC Disbursements for which the
respective Issuing Banks have not been reimbursed by the Borrower or,
but only with the consent of the Required Revolving Credit Lenders, to
the payment of other Secured Obligations and, after the payment in full
of all LC Disbursements and the expiration or termination of all
Letters of Credit, to the payment of any other Secured Obligations as
shall at the time be payable hereunder; and
(e) monies and investments in the Concentration Account may be
withdrawn only in connection with remitting the same to bank deposit
accounts (such as payroll and other accounts) maintained by the
Restricted Companies for use in the ordinary course of business, to
make Capital Expenditures, to make acquisitions and investments
permitted under Section 7.04 of the respective Loan Agreements, to make
Restricted Payments permitted under Section 7.05 of the respective Loan
Agreements, or to make payments or prepayments of principal, interest
or other amounts in
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respect of Indebtedness (including Loans) or Hedging Agreements
permitted under the respective Loan Agreements.
In connection with any release of monies in any of the Collateral Accounts
described above, the Collateral Agent shall be entitled to rely upon a
certificate of a Financial Officer (and upon such other evidence, if any, as the
Collateral Agent shall deem appropriate). At any time following the occurrence
and during the continuance of an Event of Default, the Collateral Agent may
(and, if instructed by the Required Secured Parties shall) in its (or their)
discretion apply or cause to be applied (subject to collection) the balance from
time to time outstanding to the credit of any of the Collateral Accounts to the
payment of the Secured Obligations in the manner specified in Section 6.09.
SECTION 5.03. Investment of Balances in Collateral Accounts.
Amounts on deposit in the Collateral Accounts shall be invested from time to
time in such Permitted Investments as the Borrower (or, after the occurrence and
during the continuance of a Default, the Collateral Agent) shall determine,
which Permitted Investments shall be held in the name and be under the control
of the Collateral Agent, provided that at any time after the occurrence and
during the continuance of an Event of Default, the Collateral Agent may (and, if
instructed by the Required Secured Parties shall) in its (or their) discretion
at any time and from time to time elect to liquidate any such Permitted
Investments and to apply or cause to be applied the proceeds thereof to the
payment of the Secured Obligations in the manner specified in Section 6.09.
ARTICLE VI
Further Assurances; Remedies
In furtherance of the grant of the pledge and security
interest pursuant to Article IV, each Restricted Company hereby agrees with each
Agent and Secured Party as follows:
SECTION 6.01. Delivery and Other Perfection. Such
Restricted Company shall:
(a) if any of the shares, securities, moneys or property
required to be pledged by such Restricted Company under clauses (a),
(b) and (c) of Article IV are received by such Restricted Company,
forthwith either (x) transfer and deliver to the Collateral Agent such
shares or securities so
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received by such Restricted Company (together with the certificates for
any such shares and securities duly endorsed in blank or accompanied by
undated stock powers duly executed in blank), all of which thereafter
shall be held by the collateral Agent, pursuant to the terms of this
Agreement, as part of the Collateral or (y) take such other action as
the Collateral Agent reasonably shall deem necessary or appropriate to
duly record the Lien created hereunder in such shares, securities,
moneys or property in said clauses (a), (b) and (c);
(b) deliver and pledge to the Collateral Agent any and all
Instruments, endorsed and/or accompanied by such instruments of
assignment and transfer in such form and substance as the Collateral
Agent may reasonably request; provided, that so long as no Event of
Default shall have occurred and be continuing, such Restricted Company
may retain for collection in the ordinary course any Instruments
received by such Restricted Company in the ordinary course of business
and the Collateral Agent shall, promptly upon request of such
Restricted Company, make appropriate arrangements for making any
Instrument pledged by such Restricted Company available to such
Restricted Company for purposes of presentation, collection or renewal
(any such arrangement to be effected, to the extent deemed appropriate
by the Collateral Agent, against trust receipt or like document);
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the reasonable judgment of the
Collateral Agent) to create, preserve, perfect or validate the security
interest granted pursuant hereto or to enable the Collateral Agent to
exercise and enforce its rights hereunder with respect to such pledge
and security interest, including causing any or all of the Equity
Collateral to be transferred of record into the name of the Collateral
Agent or its nominee (and the Collateral Agent agrees that if any
Equity Collateral is transferred into its name or the name of its
nominee, the Collateral Agent will thereafter promptly give to such
Restricted Company copies of any notices and communications received by
it with respect to the Equity Collateral), provided that notices to
account debtors in respect of any Accounts or Instruments shall be
subject to the provisions of clause (f) below;
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(d) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise mark such books and records in such
manner as the Collateral Agent may reasonably require in order to
reflect the security interests granted by this Agreement;
(e) permit representatives of the Collateral Agent, upon
reasonable notice, at any time during normal business hours to inspect
and make abstracts from its books and records pertaining to the
Collateral, and permit representatives of the Collateral Agent to be
present at such Restricted Company's place of business to receive
copies of all communications and remittances relating to the
Collateral, and forward copies of any notices or communications
received by such Restricted Company with respect to the Collateral, all
in such manner as the Collateral Agent may reasonably require; and
(f) upon the occurrence and during the continuance of any
Event of Default, upon request of the Collateral Agent, promptly notify
(and such Restricted Company hereby authorizes the Collateral Agent so
to notify) each account debtor in respect of any Accounts or
Instruments of such Restricted Company that such Collateral has been
assigned to the Collateral Agent hereunder, and that any payments due
or to become due in respect of such Collateral are to be made directly
to the Collateral Agent.
SECTION 6.02. Other Financing Statements and Liens. Except as
otherwise permitted under Section 7.02 of the respective Loan Agreements,
without the prior written consent of the Collateral Agent (granted with the
authorization of the Required Secured Parties), no Restricted Company shall file
or suffer to be on file, or authorize or permit to be filed or to be on file, in
any jurisdiction, any financing statement or like instrument with respect to the
Collateral in which the Collateral Agent is not named as the sole secured party
for the benefit of the Secured Parties.
SECTION 6.03. Preservation of Rights. The Collateral
Agent shall not be required to take steps necessary to preserve
any rights against prior parties to any of the Collateral.
SECTION 6.04. Special Provisions Relating to Equity
Collateral.
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(a) So long as no Event of Default shall have occurred and be
continuing, each Restricted Company shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the Equity Collateral for
all purposes not inconsistent with the terms of this Agreement, the Loan
Agreements, the other Loan Documents or any other instrument or agreement
referred to herein or therein, provided that such Restricted Company agrees that
it will not vote the Equity Collateral in any manner that is inconsistent with
the terms of this Agreement, the Loan Agreements, the other Loan Documents or
any such other instrument or agreement; and the Collateral Agent shall execute
and deliver to such Restricted Company or cause to be executed and delivered to
such Restricted Company all such proxies, powers of attorney, dividend and other
orders, and all such instruments, without recourse, as such Restricted Company
may reasonably request for the purpose of enabling such Restricted Company to
exercise the rights and powers that it is entitled to exercise pursuant to this
Section 6.04(a).
(b) Unless and until an Event of Default has occurred and is
continuing, such Restricted Company shall, subject to Article V, be entitled to
receive and retain any dividends or distributions in respect of the Equity
Collateral.
SECTION 6.05. Events of Default, Etc. During the
period during which an Event of Default shall have occurred and
be continuing:
(a) each Restricted Company shall, at the request of the
Collateral Agent, assemble the Collateral owned by it at such place or
places, reasonably convenient to both the Collateral Agent and such
Restricted Company, designated in its request;
(b) the Collateral Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Collateral and
may extend the time of payment, arrange for payment in installments, or
otherwise modify the terms of, any of the Collateral;
(c) the Collateral Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party under the
Uniform Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled
under the laws in effect in any jurisdiction where any rights and
remedies
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hereunder may be asserted, including the right, to the maximum
extent permitted by law, to exercise all voting, consensual and other
powers of ownership pertaining to the Collateral as if the Collateral
Agent were the sole and absolute owner thereof (and each Restricted
Company agrees to take all such action as may be appropriate to give
effect to such right);
(d) the Collateral Agent in its discretion may, in its name or
in the name of the Restricted Companies or otherwise, demand, sue for,
collect or receive any money or property at any time payable or
receivable on account of or in exchange for any of the Collateral, but
shall be under no obligation to do so; and
(e) the Collateral Agent may, upon ten business days' prior
written notice to the Restricted Companies of the time and place, with
respect to the Collateral or any part thereof that shall then be or
shall thereafter come into the possession, custody or control of the
Collateral Agent, the Secured Parties or any of their respective
agents, sell, lease, assign or otherwise dispose of all or any part of
such Collateral, at such place or places as the Collateral Agent deems
best, and for cash or for credit or for future delivery (without
thereby assuming any credit risk), at public or private sale, without
demand of performance or notice of intention to effect any such
disposition or of the time or place thereof (except such notice as is
required above or by applicable statute and cannot be waived), and the
Collateral Agent or any Secured Party or anyone else may be the
purchaser, lessee, assignee or recipient of any or all of the
Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including
any right or equity of redemption (statutory or otherwise), of the
Restricted Companies, any such demand, notice and right or equity being
hereby expressly waived and released. The Collateral Agent may, without
notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and
place fixed for the sale, and such sale may be made at any time or
place to which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
6.05 shall be applied in accordance with Section 6.09.
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The Restricted Companies recognize that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and applicable
state securities laws, the Collateral Agent may be compelled, with respect to
any sale of all or any part of the Collateral, to limit purchasers to those who
will agree, among other things, to acquire the Collateral for their own account,
for investment and not with a view to the distribution or resale thereof. The
Restricted Companies acknowledge that any such private sales may be at prices
and on terms less favorable to the Collateral Agent than those obtainable
through a public sale without such restrictions, and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner and that the Collateral Agent shall
have no obligation to engage in public sales and no obligation to delay the sale
of any Collateral for the period of time necessary to permit the respective
Issuer or issuer thereof to register it for public sale.
SECTION 6.06. Deficiency. If the proceeds of sale, collection
or other realization of or upon the Collateral pursuant to Section 6.05 are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Restricted Companies shall remain liable
for any deficiency.
SECTION 6.07. Removals, Etc. Without at least 30 days' prior
written notice to the Collateral Agent, no Restricted Company shall (i) maintain
any of its books and records with respect to the Collateral at any office or
maintain its principal place of business other than at the address for notices
to the Borrower specified in Section 10.01 of the respective Loan Agreements or
at one of the locations identified in Annex 3 or in transit from one of such
locations to another or (ii) change its name, or the name under which it does
business, from the name shown on the signature pages hereto.
SECTION 6.08. Private Sale. Neither Agent nor any Secured
Party shall incur any liability as a result of the sale of the Collateral, or
any part thereof, at any private sale pursuant to Section 6.05 conducted in a
commercially reasonable manner. So long as such sale is conducted in a
commercially reasonable manner, each Restricted Company hereby waives any claims
against the Agents and the Secured Parties arising by reason of the fact that
the price at which the Collateral may have been sold at such a private sale was
less than the price that might have been obtained at a public sale or was less
than
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the aggregate amount of the Secured Obligations, even if the Collateral Agent
accepts the first offer received and does not offer the Collateral to more
than one offeree.
SECTION 6.09. Application of Proceeds. Except as otherwise
herein expressly provided, the proceeds of any collection, sale or other
realization of all or any part of the Collateral pursuant hereto, and any other
cash at the time held by the Collateral Agent under Article V or this Article
VI, shall be applied by the Collateral Agent:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable
out-of-pocket costs and expenses of the Collateral Agent and the fees
and expenses of its agents and counsel, and all expenses incurred and
advances made by the Collateral Agent in connection therewith;
Next, to the payment in full of the Secured Obligations, in
each case equally and ratably in accordance with the respective amounts
thereof then due and owing or as the Secured Parties holding the same
may otherwise agree; and
Finally, to the payment to the respective Restricted Company,
or their respective successors or assigns, or as a court of competent
jurisdiction may direct, of any surplus then remaining.
As used in this Article VI, "proceeds" of Collateral shall
mean cash, securities and other property realized in respect of, and
distributions in kind of, Collateral, including any thereof received under any
reorganization, liquidation or adjustment of debt of the Restricted Companies or
any issuer of or obligor on any of the Collateral.
SECTION 6.10. Attorney-in-Fact. Without limiting any rights or
powers granted by this Agreement to the Collateral Agent while no Event of
Default has occurred and is continuing, upon the occurrence and during the
continuance of any Event of Default the Collateral Agent is hereby appointed the
attorney-in-fact of the Restricted Companies for the purpose of carrying out the
provisions of this Article and taking any action and executing any instruments
that the Collateral Agent may deem necessary or advisable to accomplish the
purposes hereof, which appointment as attorney-in-fact is irrevocable and
coupled with an interest. Without limiting the generality of the foregoing,
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so long as the Collateral Agent shall be entitled under this Article to make
collections in respect of the Collateral, the Collateral Agent shall have the
right and power to receive, endorse and collect all checks made payable to the
order of any Restricted Company representing any dividend, payment or other
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same.
SECTION 6.11. Perfection. Prior to or concurrently with the
execution and delivery of this Agreement, each Restricted Company shall (i) file
such financing statements and other documents in such offices as the Collateral
Agent may request to perfect the security interests granted by Article IV and
(ii) deliver to the Collateral Agent all certificates identified in Annex 1
hereto, accompanied by undated stock powers duly executed in blank.
SECTION 6.12. Termination. When all Secured Obligations shall
have been paid in full and the Commitments of the Secured Parties under the
respective Loan Agreements shall have expired or been terminated, this Agreement
shall terminate, and the Collateral Agent shall forthwith cause to be assigned,
transferred and delivered, against receipt but without any recourse, warranty or
representation whatsoever, any remaining Collateral and money received in
respect thereof, to or on the order of the respective Restricted Company. The
Collateral Agent shall also execute and deliver to respective Restricted Company
upon such termination such Uniform Commercial Code termination statements and
such other documentation as shall be reasonably requested by the respective
Restricted Company to effect the termination and release of the Liens on the
Collateral.
SECTION 6.13. Further Assurances. Each Restricted Company
agrees that, from time to time upon the written request of the Collateral Agent,
such Restricted Company will execute and deliver such further documents and do
such other acts and things as the Collateral Agent may reasonably request in
order fully to effect the purposes of this Agreement. Without limiting the
generality of the foregoing, the Restricted Companies will take such action from
time to time as shall be necessary so that all leasehold and other real property
interests of the Restricted Companies are subjected to Liens in favor of the
Collateral Agent as collateral security for the Secured Obligations (and in that
connection will obtain appropriate consents of landlords, in form and substance
satisfactory to the Collateral Agent, with respect to any such leasehold
interest arising after the date hereof and
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will use its best efforts to obtain such consents with respect to all such
leasehold interests existing on the date hereof).
ARTICLE VII
Miscellaneous
SECTION 7.01. Notices. All notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to the Borrower, to it at 1505 Farm Credit
Drive, Suite 100, McLean, Virginia 22102, Attention Steven
Shindler, Senior Vice President and Chief Financial Officer
(Telecopy No. 703-394-3011);
(b) if to any Restricted Company other than the Borrower, to
such Restricted Company care of the Borrower at the address for notices
indicated in clause (a) above; and
(c) if to the Collateral Agent, to it at One Chase
Manhattan Plaza, 4th Floor, Attention Tracy Navin, (Telecopy
No. 212-552-4905).
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 7.02. Waivers; Amendments.
(a) No failure or delay by either Agent or any Secured Party
in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents and the Secured Parties
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Restricted Companies therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of
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this Section 7.02, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given.
(b) Neither this Agreement nor any other Security Document nor
any provision hereof or thereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Restricted
Companies party thereto, and by the Collateral Agent with the consent of the
appropriate Secured Parties as more particularly provided in Section 5.02(c) of
the Intercreditor and Collateral Agency Agreement.
SECTION 7.03. Expenses.
(a) The Restricted Companies shall pay, or reimburse the
Agents or the Secured Parties for paying, (i) all amounts that the Collateral
Agent is required to make under any indemnity issued to any bank with which lock
box or segregated deposit arrangements are entered into pursuant to Section
5.01((i) of the respective Loan Agreements or this Agreement and (ii) all
out-of-pocket expenses incurred by either Agent or any Secured Party, including
the fees, charges and disbursements of any counsel for either Agent or any
Secured Party, in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section 7.03,
including in connection with any workout, restructuring or negotiations in
respect thereof.
(b) All amounts due under this Section 7.03 shall be payable
promptly after written demand therefor.
SECTION 7.04. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the respective
successors and assigns of the Restricted Companies, the Agents, the Secured
Parties and each holder of the Secured Obligations, except that no Restricted
Company may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of the Collateral Agent (and any
attempted assignment or transfer by any Restricted Company without such consent
shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, the
Secured Parties and the respective successors and assigns of the Restricted
Companies, the Agents, the Secured Parties and each holder of the Secured
Obligations) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
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SECTION 7.06. Counterparts. This Agreement may be executed in
counterparts (and by the parties hereto on different counterparts), each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract.
SECTION 7.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 7.08. Governing Law. This Agreement shall be
construed in accordance with and governed by the law of the State
of New York.
SECTION 7.09. Headings. Article and Section headings used
herein are for convenience of reference only, are not part of this Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Agreement.
SECTION 7.10. Agents and Attorneys-in-Fact. The Collateral
Agent may employ agents and attorneys-in-fact in connection herewith and shall
not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
SECTION 7.11. Certain Regulatory Requirements.
(a) Each Restricted Company shall take all action that the
Collateral Agent may reasonably request in the exercise of its rights and
remedies hereunder, which include the right to require such Restricted Company
to transfer or assign the FCC Licenses or the PUC Authorizations to any party or
parties. In furtherance of this right, each Restricted Company shall (i)
cooperate fully with the Collateral Agent in obtaining all approvals and
consents from the FCC and each other Governmental Authority that the Collateral
Agent may deem necessary or advisable to accomplish any such transfer or
assignment of the FCC Licenses or the PUC Authorizations and (ii) prepare,
execute and file with the FCC and any other Governmental Authority any
application, request for consent, certificate or instrument that the Collateral
Agent may deem necessary or advisable to accomplish any such transfer or
assignment of the FCC Licenses or
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the PUC Authorizations. If any Restricted Company fails to execute such
applications, requests for consent, certificates or instruments, the clerk of
any court that has jurisdiction over the Loan Documents may, upon an ex parte
request by the Collateral Agent, execute and file the same on behalf of such
Restricted Company.
(b) To enforce the provisions of Section 6.05, the Collateral
Agent is authorized to request the consent or approval of the FCC or any other
Governmental Authority to a voluntary or an involuntary transfer of control of
any Restricted Company or the voluntary or involuntary assignment of any FCC
Licenses or PUC Authorizations held by any Restricted Company. In connection
with the exercise of its remedies under this Agreement, the Collateral Agent may
obtain the appointment of a trustee or receiver to assume, control of any
Restricted Company, subject to any required prior approval of the FCC or any
other Governmental Authority. Such trustee or receiver shall have all rights and
powers provided to it by law or by court order or provided to the Collateral
Agent under this Agreement.
(c) Notwithstanding anything to the contrary contained
in this Agreement,
(i) the Collateral Agent will not take any action
hereunder that would constitute or result in any transfer of control or
assignment of the FCC Licenses or any Restricted Company without
obtaining all necessary FCC and other Governmental Authority approvals.
The Collateral Agent, the Administrative Agent and the Secured Parties
shall be entitled to rely on the advice of FCC counsel selected by the
Collateral Agent to determine whether FCC approval or other
Governmental Authority approvals are required, and
(ii) the Collateral Agent shall not foreclose on, sell,
assign, transfer or otherwise dispose of, or exercise any right to
control the FCC Licenses as provided herein or take any other action
that would affect the operational, voting, or other control of any
Restricted Company, unless such action is taken in accordance with the
provisions of the Communications Act of 1934, as from time to time
amended, and the rules, regulations and policies of the FCC and any
other Governmental Authority.
(d) Each Restricted Company acknowledges that the approval of
the FCC and of each other appropriate Governmental Authority to the assignment
of the FCC Licenses or the transfer
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of control of such Restricted Company is integral to the Collateral Agent's
realization of the value of the Collateral, including the FCC Licenses, that
there is no adequate remedy at law for failure by such Restricted Company to
comply with the provisions of this Section 7.11 and that such failure could not
be adequately compensable in damages. Therefore, each Restricted Company agrees
that the provisions of this Section 7.11 may be specifically enforced.
SECTION 7.12. Additional Guarantors. As contemplated by
Section 6.11(a) of the respective Loan Agreements, in the event that any
Restricted Company shall form or acquire any new subsidiary after the date
hereof, such Restricted Company will cause such new subsidiary to execute and
deliver to the Collateral Agent a Joinder Agreement in the form of Exhibit E to
the respective Loan Agreements (and, thereby, to become a party to the Loan
Agreements as a "Restricted Company" thereunder, and to this Agreement and the
Intercreditor and Collateral Agency Agreement, as a "Guarantor" hereunder and
thereunder, and to pledge and grant a security interest in its property pursuant
to this Agreement to the Collateral Agent for the benefit of the Secured
Parties). Accordingly, upon the execution and delivery of any such Joinder
Agreement by any such new subsidiary, such new subsidiary shall automatically
and immediately, and without any further action on the part of any Person,
become a "Guarantor" under and for all purposes of this Agreement, and Annexes
1, 2 and 3 hereto shall be deemed to be supplemented in the manner specified in
said Joinder Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Guarantee and Security Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
NEXTEL FINANCE COMPANY,
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
INITIAL GUARANTORS
ADVANCED MOBILECOMM OF
NORTH CAROLINA, INC.
AIR LINK COMMUNICATIONS, INC.
AIRWAVE COMMUNICATIONS CORP.
(SEATTLE)
AMERICAN MOBILE SYSTEMS
INCORPORATED
C-CALL CORP.
COMQOR, INC.
CUSTOM RADIO/JOHNSON
COMMUNICATIONS, INC.
DIAL CALL, INC.
DIAL CALL ARKANSAS, INC.
DIAL CALL FLORIDA, INC.
DIAL CALL KENTUCKY, INC.
DIAL CALL LOUISIANA, INC.
DIAL CALL TEXAS, INC.
DIAL CALL VIRGINIA, INC.
DIAL CALL WEST VIRGINIA, INC.
DIAL DISTANCE, INC.
DISPATCH COMMUNICATIONS
OF ARIZONA, INC.
DISPATCH COMMUNICATIONS
OF MINNESOTA, INC.
DISPATCH COMMUNICATIONS
OF NEW ENGLAND, INC.
DISPATCH COMMUNICATIONS
OF MARYLAND, INC.
DISPATCH COMMUNICATIONS
OF PENNSYLVANIA, INC.
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<PAGE> 190
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ESMR SUB, INC.
FC NEW YORK, INC.
FCI 900, INC.
FLEET CALL CORPORATION
FLEET CALL OF TEXAS, INC.
FLEET CALL OF UTAH, INC.
FLEET CALL WEST, INC.
F-M TOWER COMPANY
FORT WORTH COMMUNICATIONS, INC.
METRACOM TRUNKED RADIO
COMMUNICATION SYSTEMS, INC.
METROLINK COMMUNICATIONS
CORPORATION
MIJAC ENTERPRISES, INC.
MOBILE RADIO OF ILLINOIS, INC.
MOTOROLA SF, INC.
NATIONAL TOWER TRUNKING
SYSTEMS, INC.
NEXTEL COMMUNICATIONS
OF THE MID-ATLANTIC, INC.
NEXTEL HAWAII ACQUISITION CORP.
NEXTEL OF TEXAS, INC.
NEXTEL UTAH ACQUISITION CORP.
NEXTEL WESTERN ACQUISITION CORP.
ONECOMM CORPORATION, N.A.
POWERFONE HOLDINGS, INC.
POWERFONE, INC.
SABER COMMUNICATIONS, INC.
SAFETY NET, INC.
SHORELAND COMMUNICATIONS, INC.
SMART SMR, INC.
SMART SMR OF CALIFORNIA, INC.
SMART SMR OF ILLINOIS, INC.
SMART SMR OF NEW YORK, INC.
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SPECTRUM RESOURCES
OF THE MIDWEST, INC.
TRS, INC.
U.S. DIGITAL, INC.
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
FORT WORTH TRUNKED RADIO
LIMITED PARTNERSHIP
By Fort Worth Communications,
Inc., a General Partner
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
COLLATERAL AGENT
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by /s/ Tracey A. Navin
-------------------------
Name: Tracey A. Navin
Title: Vice President
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<PAGE> 192
EXHIBIT D
[Form of Intercreditor and Collateral Agency Agreement]
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT dated as of
September 27, 1996 between NEXTEL FINANCE COMPANY, a corporation duly organized
and validly existing under the laws of the State of Delaware (the "Borrower");
each of the subsidiaries of Nextel Communications, Inc. listed on the signature
pages hereto under the caption "INITIAL GUARANTORS" (the "Initial Guarantors");
each of the additional entities, if any, that becomes a "Guarantor" hereunder as
contemplated by Section 7.12 of the below-referenced Restricted Company
Guarantee and Security Agreement (each an "Additional Guarantor" and together
with the Initial Guarantors, the "Guarantors"; the Guarantors together with the
Borrower, being herein called the "Restricted Companies"); MOTOROLA, INC., a
Delaware corporation ("Motorola"); NTFC Capital Corporation, a Delaware
corporation ("NTFC Capital" and, together with Motorola, the "Vendors"); TORONTO
DOMINION (TEXAS) INC., as administrative agent for the Lenders referred to below
(in such capacity, together with its successors in such capacity, the
"Administrative Agent"); and THE CHASE MANHATTAN BANK, as collateral agent for
the Vendors and for the Lenders referred to below (in such capacity, together
with its successors in such capacity, the "Collateral Agent").
Nextel Communications, Inc. ("NCI") and the Restricted
Companies are parties to (i) an Amended, Restated and Consolidated Credit
Agreement dated as of September 27, 1996 (as modified and supplemented and in
effect from time to time, the "Vendor Financing Agreement") with the Vendors,
providing, subject to the terms and conditions thereof, for loans to be made by
Motorola and NTFC Capital to the Borrower in an aggregate principal amount not
exceeding $345,000,000 and (ii) a Credit Agreement dated as of September 27,
1996 (as modified and supplemented and in effect from time to time, the "Credit
Agreement" and, together with the Vendor Financing Agreement, the "Loan
Agreements"), providing, subject to the terms and conditions thereof, for
extensions of credit (by means of loans and letters of credit) to be made by
the Lenders named therein (collectively, together with any entity that becomes a
"Lender" party to the Credit Agreement after the date hereof as provided
therein, the "Lenders" and, together with the Vendors and any successors or
assigns of any of the foregoing, the "Secured Parties") to the Borrower in an
aggregate principal or face amount not exceeding $1,655,000,000 (which, in the
circumstances contemplated by Section 7.01(f) thereof, may be increased to
$1,905,000,000). In addition, the Borrower may from time to time be obligated to
one or more of the Lenders under the Credit
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Agreement in respect of Hedging Agreements under and as defined in the Credit
Agreement (collectively, the "Hedging Agreements").
In connection with the foregoing, the parties hereto wish to
provide for the appointment of the Collateral Agent by the Vendors and for
certain arrangements with respect to the priority of security interests in favor
of the Secured Parties. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this
Agreement, the following terms have the meanings specified below:
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agents" means the Administrative Agent under the Credit
Agreement and the Collateral Agent hereunder.
"Applicable Percentage" means with respect to any Vendor in
respect of any indemnity claim under Section 7.03(a) of the Restricted Company
Guarantee and Security Agreement arising out of an action or omission of the
Collateral Agent under any Loan Document, the percentage of the total
Commitments under the Credit Agreement and under the Vendor Financing Agreement
represented by the aggregate amount of such Vendor's Commitments under the
Vendor Financing Agreement. If the Commitments under the Credit Agreement or
under the Vendor Financing Agreement have terminated or expired, the Applicable
Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.
"Commitments" means the "Commitments" of the Lenders under the
Credit Agreement (including any commitment to provide "Tranche E Loans"
thereunder in the circumstances contemplated by Section 7.01(f) of the Credit
Agreement) and the "Commitments" of the Vendors under the Vendor Financing
Agreement.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise
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voting power, by contract or otherwise. "Controlling" and "Controlled" have
meanings correlative thereto.
"Credit Parties" means NCI and the Restricted
Companies.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Event of Default" means any "Event of Default" under the
Credit Agreement or any "Event of Default" under the Vendor Financing Agreement.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Hedging Agreements" has the meaning assigned to such
term in the preamble to this Agreement.
"LC Disbursement" has the meaning assigned to such term
in the Credit Agreement.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit under the Credit Agreement
at such time plus (b) the aggregate amount of all LC Disbursements that have not
yet been reimbursed by or on behalf of the Borrower at such time.
"Letters of Credit" means the "Letters of Credit" from time to
time issued under the Credit Agreement.
"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 and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
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"Loan Documents" means the Loan Agreements, any promissory
notes evidencing Loans under any Loan Agreement and the Security Documents.
"Loans" means the "Loans" made by the Lenders to the Borrower
under the Credit Agreement (including any "Tranche E Loans" thereunder made in
the circumstances contemplated by Section 7.01(f) of the Credit Agreement) and
the "Loans" made by the Vendors to the Borrower under the Vendor Financing
Agreement.
"Mortgages" means, collectively, one or more assignments of
lease, mortgages, deeds of trust, deeds to secure debt and the like executed by
a Restricted Company in favor of the Collateral Agent (or a trustee for the
benefit of the Collateral Agent), and covering interests in real property held
by such Restricted Company as collateral security for the Secured Obligations,
in each case in such form as shall be satisfactory to the Collateral Agent.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental authority or other entity.
"Public Note Indentures" means (a) the Indenture dated as of
August 15, 1993 between NCI and The Bank of New York, as Trustee, (b) the
Indenture dated as of December 22, 1993 between NCI (as successor to Dial Call
Communications, Inc.) and The Bank of New York, as Trustee, (c) the Indenture
dated as of January 13, 1994 between NCI (as successor to CenCall Communications
Corp.) and The Bank of New York, as Trustee, (d) the Indenture dated as of
February 15, 1994 between NCI and The Bank of New York, as Trustee and (e) the
Indenture dated as of April 24, 1994 between NCI (as successor to Dial Call
Communications, Inc.) and The Bank of New York, as Trustee.
"Required Secured Parties" means, at any time, Secured Parties
having Loans, LC Exposure and unused Commitments under the respective Loan
Agreements representing at least 51% of the sum of the total Loans, LC Exposure
and unused Commitments at such time.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Restricted Company Guarantee and Security Agreement" means
the Restricted Company Guarantee and Security Agreement
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dated as of the date hereof between the Restricted Companies, the Secured
Parties and the Collateral Agent.
"Secured Obligations" means, collectively, (a) in the case of
the Borrower, the principal of and interest on the Loans made by the Secured
Parties to the Borrower, all LC Disbursements and all other amounts from time to
time owing to the Secured Parties or the Agents by the Borrower under the Loan
Documents or any Hedging Agreement, (b) in the case of each Guarantor, all
obligations of such Guarantor in respect of its Guarantee under Article II of
the Restricted Company Guarantee and Security Agreement and (c) in the case of
each Restricted Company, all other obligations of such Restricted Company to the
Secured Parties and the Agents under the Restricted Company Guarantee and
Security Agreement.
"Security Documents" means this Agreement, the Restricted
Company Guarantee and Security Agreement, the Mortgages and all Uniform
Commercial Code financing statements required by any of such instruments to be
filed with respect to the security interests in personal property and fixtures
created pursuant thereto.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Tranche E Loans" has the meaning assigned to such term in
Section 7.02(f) of the respective Loan Agreements.
"Vendor Equipment Agreements" means (a) the following
agreements (i) the Enhanced Specialized Mobile Radio System Equipment Purchases
Agreement dated as of November 1, 1991 between Motorola and NCI; (ii) the letter
agreement dated as of November
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4, 1991 between Motorola and NCI; (iii) Amendment to Purchase Agreements dated
as of August 4, 1994 between Motorola and NCI; (iv) Second Amendment to
Purchase Agreements dated as of April 5, 1995 between Motorola and NCI; (v)
Amendment 003 to Enhanced Specialized Mobile Radio System Purchase Agreement
dated as of March 25, 1995 between Motorola and NCI; and (vi) Amendment 004 to
Enhanced Specialized Mobile Radio System Purchase Agreement dated as of April
28, 1996 between Motorola and NCI; each of which agreements and Amendments is,
pursuant to the assignment referred to in Seciton 5.01(m) of the respective
Loan Agreements, being assigned to the Borrower on the Effective Dated and (b)
any other agreement providing for the sale by either Vendor (or any of its
Affiliates) of equipment or other property to any of the Restricted Companies.
SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections and Exhibits shall be construed to refer
to Articles and Sections of, and Exhibits to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
ARTICLE II
The Collateral Agent; Appointment by Vendors
Each of the Vendors hereby irrevocably appoints the Collateral
Agent as its agent and authorizes the Collateral Agent
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to take such actions on its behalf and to exercise such powers as are delegated
to the Collateral Agent by the terms of this Agreement and the other Security
Documents, together with such actions and powers as are reasonably incidental
thereto.
The Chase Manhattan Bank shall have the same rights and powers
in its capacity as a Lender under the Credit Agreement as any other Lender and
may exercise the same as though it were not the Collateral Agent, and The Chase
Manhattan Bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with any Credit Party or any subsidiary
or other Affiliate of any thereof as if it were not the Collateral Agent
hereunder.
The Collateral Agent shall not have any duties or obligations
except those expressly set forth in this Agreement and the other Security
Documents. Without limiting the generality of the foregoing, (a) the Collateral
Agent shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default has occurred and is continuing, (b) the Collateral Agent
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by this Agreement and the other Security Documents that the
Collateral Agent is required to exercise in writing by the Required Secured
Parties, and (c) except as expressly set forth herein and in the other Security
Documents, the Collateral Agent shall not have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to any
Credit Party or any of their respective subsidiaries that is communicated to or
obtained by The Chase Manhattan Bank or any of its Affiliates in any capacity.
The Collateral Agent shall not be liable for any action taken or not taken by
it with the consent or at the request of the Required Secured Parties, or in the
absence of its own gross negligence or wilful misconduct. The Collateral Agent
shall not be deemed to have knowledge of any Default unless and until written
notice thereof is given to the Collateral Agent by the Borrower, a Secured Party
or the Administrative Agent, and the Collateral Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or the other
Security Documents, (ii) the contents of any certificate, report or other
document delivered hereunder or under any of the other Security Documents or in
connection herewith of therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or in
any other Security Document, (iv) the validity, enforceability, effectiveness or
genuineness of this
Intercreditor and Collateral Agency Agreement
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Agreement, the other Security Documents or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article V of the
respective Loan Agreements.
The Collateral Agent shall not, except to the extent expressly
instructed by the Required Secured Parties with respect to collateral security
under the Security Documents, be required to initiate or conduct any litigation
or collection proceedings hereunder or under any other Loan Document.
The Collateral Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Collateral
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Collateral Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Collateral Agent may perform any and all of its duties,
and exercise its rights and powers, by or through any one or more sub-agents
appointed by the Collateral Agent. The Collateral Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Collateral Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for in the Credit Agreement as well as activities as the Collateral Agent.
Subject to the appointment and acceptance of a successor
Collateral Agent as provided in this paragraph, the Collateral Agent may resign
at any time by notifying the Secured Parties, the Borrower and the
Administrative Agent. Upon any such resignation, the Required Secured Parties
shall have the right, in consultation with the Borrower, to appoint, in
consultation with the Borrower, a successor Collateral Agent. If no successor
shall have been so appointed and shall have accepted such appointment within 30
days after such retiring Collateral Agent gives notice of its resignation, then
such retiring Collateral Agent may, on behalf of the Secured Parties, appoint a
successor Collateral Agent, which shall be a bank with an office
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-9-
in New York, New York, or an Affiliate of any such bank. Upon the acceptance of
its appointment as Collateral Agent by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Collateral Agent, and the retiring Collateral Agent shall be discharged
from its duties and obligations hereunder and under the other Security
Documents. The fees payable by the Borrower to a successor Collateral Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After a Collateral Agent's resignation
hereunder, the provisions of this Article and Section 7.03 of the Restricted
Company Guarantee and Security Agreement shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Collateral Agent.
Each Vendor acknowledges that it has, independently and
without reliance upon the Collateral Agent, or any other Secured Party and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into the Vendor Financing Agreement. Each
Vendor also acknowledges that it will, independently and without reliance upon
the Collateral Agent or any other Secured Party and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement
and the other Security Documents, any related agreement or any document
furnished hereunder or thereunder.
ARTICLE III
The Collateral Agent; Appointment by Lenders
Pursuant to Article IX of the Credit Agreement, each of the
Lenders has appointed The Chase Manhattan Bank as Collateral Agent for purposes
of this Agreement and the other Security Documents. Each of the Lenders party to
the Credit Agreement has authorized the Administrative Agent to execute and
deliver this Agreement pursuant to said Article IX of the Credit Agreement.
ARTICLE IV
Priority of Liens
It is the intent of the Agents and the Secured Parties that
the Liens created pursuant to the Security Documents in
Intercreditor and Collateral Agency Agreement
<PAGE> 201
-10-
favor of the Collateral Agent shall secure equally and ratably the obligations
of the Restricted Companies under the Loan Documents and the Hedging
Agreements, without priority of any such obligation over any other such
obligation. Accordingly, anything in any of the Loan Documents, or any other
agreement or instrument between any of the Restricted Companies and any of the
Secured Parties (including, without limitation, any of the "Motorola
Agreements" or "Northern Telecom Agreements" under and as defined in the Public
Note Indentures), to the contrary notwithstanding:
(a) each of the Vendors hereby assigns to the Collateral Agent
any Liens upon any property of any of the Restricted Companies that it
may now hold or which may hereafter arise by operation of law or
otherwise (excluding, however, any such Lien arising pursuant to the
Security Documents);
(b) each of the Vendors hereby agrees with the Administrative
Agent for the benefit of the Administrative Agent and the Lenders that
the only Liens securing obligations of any of the Restricted Companies
to the Vendors under the Loan Documents shall be the Liens arising
under the Security Documents, and that the obligations of the
Restricted Companies under the Vendor Equipment Agreements shall not be
entitled to the benefits of any Liens; and
(c) the Administrative Agent (on behalf of itself and each of
the Lenders) hereby agrees with the Vendors that the only Liens
securing obligations of any of the Restricted Companies to the Lenders
under the Loan Documents or the Hedging Agreements shall be the Liens
arising under the Security Documents.
Nothwithstanding the foregoing, it is understood that the Vendors are not
waiving, renouncing or sharing the benefit of any rights of reclamation or
other remedies accorded a manufacturer, supplier or distributor they may have
under State law, common law or otherwise arising out of the sale of equipment
or other goods by the Vendors to the Restricted Companies.
In addition to the foregoing if, as contemplated by Section
2.16(d) of any Loan Agreement, any payment received by any Secured Party must be
rescinded as therein contemplated, each of the Vendors on behalf of itself, and
the Administrative Agent on behalf of each of the Lenders, hereby agrees to make
such
Intercreditor and Collateral Agency Agreement
<PAGE> 202
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adjustments as shall be necessary in order to effect such rescission.
NTFC Capital hereby represents and warrants to each Agent and
each of the other Secured Parties that its former name (and the name in which
various Uniform Commercial Code financing statements filings by the Restricted
Companies in its favor have been effected) is "Northern Telecom Finance
Corporation".
ARTICLE V
Miscellaneous
SECTION 5.01. Notices. All notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to the Borrower, to it at 1505 Farm Credit Drive, Suite
100, McLean, Virginia 22102, Attention Steven Shindler, Senior Vice
President and Chief Financial Officer (Telecopy No. 703-394-3011);
(b) if to any Restricted Company other than the Borrower, to
such Restricted Company care of the Borrower at the address for notices
indicated in clause (a) above;
(c) if to Motorola, to it at 1301 East Algonquin Road,
Schaumburg, Illinois 60196, Attention Vice President, Director of
Financing (Telecopy No. 847-538-2491), with a copy to Gary Tatje at
such address and to the General Counsel and Secretary at 1303 East
Algonquin Road, Schaumburg, Illinois 60196;
(d) if to NTFC Capital Corporation, to it at 220
Athens Way, Nashville, Tennessee 37228, Attention Legal
Counsel (Telecopy No. 615-734-5283);
(e) if to the Administrative Agent, to it at 909
Fannin Street, Suite 1700, Houston, Texas 77010, Attention
Sophia Sgarbi (Telecopy No. 713-951-9921);
(f) if to any Lender, to such Lender care of the
Administrative Agent at the address for notices indicated in
clause (e) above; and
Intercreditor and Collateral Agency Agreement
<PAGE> 203
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(g) if to the Collateral Agent, to it at One Chase
Manhattan Plaza, 4th Floor, Attention Tracy Navin, (Telecopy
No. 212-552-4905).
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 5.02. Waivers; Amendments.
(a) No failure or delay by either Agent or any Secured Party
in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of Agents and the Secured Parties
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by any party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section 5.02, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given.
(b) Neither this Agreement not any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Restricted Companies, the Agents and each Secured
Party.
(c) No Security Document (other than this Agreement, as to
which paragraph (b) above shall control) nor any provision thereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Restricted Companies party thereto, and by the
Collateral Agent with the consent of the Required Secured Parties; provided
that, (i) without the written consent of each Secured Party, no such agreement
shall release any Restricted Company from its obligations under any Security
Document and (ii) without the written consent of each Secured Party, no such
agreement shall release any collateral or otherwise terminate any Lien under any
Security Document, agree to additional obligations being secured by such
collateral security (unless either (x) the Lien for such additional obligations
shall be junior to the Lien in favor of the other obligations secured by such
Security Document, in which
Intercreditor and Collateral Agency Agreement
<PAGE> 204
-13-
event the Collateral Agent may consent to such junior Lien provided that it
obtains the consent of the Required Secured Parties thereto, or (y) such
additional obligations result from an increase in the Vendor Financing Agreement
as permitted under Section 7.01((b) of the Credit Agreement or from the
designation of Tranche E Loans in accordance with Section 7.01(f) of the
respective Loan Agreements, in which event the Collateral Agent may consent to
additional obligations being secured by such collateral, without the consent of
any Secured Party thereto), alter the relative priorities of the obligations
entitled to the benefits of the Liens created under the Security Documents or
release any Guarantor under the Restricted Company Guarantee and Security
Agreement from its guarantee obligations thereunder, except that no such consent
shall be required, and the Collateral Agent is hereby authorized, to release any
Lien covering property (and to release any such Guarantor) that is the subject
of either a disposition of property permitted under the respective Loan
Agreements or a disposition to which the "Required Lenders" and "Required
Vendors" under the respective Loan Agreements have consented; provided further
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Collateral Agent without the prior written consent of the
Collateral Agent.
SECTION 5.03. Indemnification. To the extent that the Credit
Parties fail to pay any amount required to be paid by them to the Collateral
Agent under Section 7.03(a) of the Restricted Company Guarantee and Security
Agreement, each Vendor severally agrees to pay to the Collateral Agent such
Vendor's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Collateral Agent in its capacity as such.
SECTION 5.04. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the respective
successors and assigns of the Restricted Companies, the Agents, the Secured
Parties and each holder of the Secured Obligations. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, the Secured Parties and the respective successors and
assigns of the Restricted Companies, the Agents, the Secured Parties and each
holder of the Secured Obligations) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
Intercreditor and Collateral Agency Agreement
<PAGE> 205
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SECTION 5.05. Counterparts. This Agreement may be executed in
counterparts (and by the parties hereto on different counterparts), each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract.
SECTION 5.06. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 5.07. Governing Law. This Agreement shall be
construed in accordance with and governed by the law of the State
of New York.
SECTION 5.08. Headings. Article and Section headings used
herein are for convenience of reference only, are not part of this Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Agreement.
Intercreditor and Collateral Agency Agreement
<PAGE> 206
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IN WITNESS WHEREOF, the parties hereto have caused this
Intercreditor and Collateral Agency Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
NEXTEL FINANCE COMPANY,
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
INITIAL GUARANTORS
ADVANCED MOBILECOMM OF
NORTH CAROLINA, INC.
AIR LINK COMMUNICATIONS, INC.
AIRWAVE COMMUNICATIONS CORP.
(SEATTLE)
AMERICAN MOBILE SYSTEMS
INCORPORATED
C-CALL CORP.
COMQOR, INC.
CUSTOM RADIO/JOHNSON
COMMUNICATIONS, INC.
DIAL CALL, INC.
DIAL CALL ARKANSAS, INC.
DIAL CALL FLORIDA, INC.
DIAL CALL KENTUCKY, INC.
DIAL CALL LOUISIANA, INC.
DIAL CALL TEXAS, INC.
DIAL CALL VIRGINIA, INC.
DIAL CALL WEST VIRGINIA, INC.
DIAL DISTANCE, INC.
DISPATCH COMMUNICATIONS
OF ARIZONA, INC.
DISPATCH COMMUNICATIONS
OF MINNESOTA, INC.
DISPATCH COMMUNICATIONS
OF NEW ENGLAND, INC.
DISPATCH COMMUNICATIONS
OF MARYLAND, INC.
DISPATCH COMMUNICATIONS
OF PENNSYLVANIA, INC.
ESMR SUB, INC.
Intercreditor and Collateral Agency Agreement
<PAGE> 207
-16-
FC NEW YORK, INC.
FCI 900, INC.
FLEET CALL CORPORATION
FLEET CALL OF TEXAS, INC.
FLEET CALL OF UTAH, INC.
FLEET CALL WEST, INC.
F-M TOWER COMPANY
FORT WORTH COMMUNICATIONS, INC.
METRACOM TRUNKED RADIO
COMMUNICATION SYSTEMS, INC.
METROLINK COMMUNICATIONS
CORPORATION
MIJAC ENTERPRISES, INC.
MOBILE RADIO OF ILLINOIS, INC.
MOTOROLA SF, INC.
NATIONAL TOWER TRUNKING
SYSTEMS, INC.
NEXTEL COMMUNICATIONS
OF THE MID-ATLANTIC, INC.
NEXTEL HAWAII ACQUISITION CORP.
NEXTEL OF TEXAS, INC.
NEXTEL UTAH ACQUISITION CORP.
NEXTEL WESTERN ACQUISITION CORP.
ONECOMM CORPORATION, N.A.
POWERFONE HOLDINGS, INC.
POWERFONE, INC.
SABER COMMUNICATIONS, INC.
SAFETY NET, INC.
SHORELAND COMMUNICATIONS, INC.
SMART SMR, INC.
SMART SMR OF CALIFORNIA, INC.
SMART SMR OF ILLINOIS, INC.
SMART SMR OF NEW YORK, INC.
Intercreditor and Collateral Agency Agreement
<PAGE> 208
-17-
SPECTRUM RESOURCES
OF THE MIDWEST, INC.
TRS, INC.
U.S. DIGITAL, INC.
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
FORT WORTH TRUNKED RADIO
LIMITED PARTNERSHIP
By Fort Worth Communications,
Inc., a General Partner
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
VENDORS
MOTOROLA, INC.
by /s/ Gary Tatje
-------------------------
Name: Gary Tatje
Title: Director, Worldwide Finance
NTFC CAPITAL CORPORATION
by
/s/ L. W. Middleton
-------------------------
Name: L. W. Middleton
Title: Secretary
Intercreditor and Collateral Agency Agreement
<PAGE> 209
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THE AGENTS
TORONTO DOMINION (TEXAS) INC., as
Administrative Agent,
by /s/ Jessica Laxman
-------------------------
Name: Jessica Laxman
Title: Director
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by /s/ Tracey A. Navin
-------------------------
Name: Tracey A. Navin
Title: Vice President
Intercreditor and Collateral Agency Agreement
<PAGE> 210
EXHIBIT E
[Form of Joinder Agreement]
JOINDER AGREEMENT
JOINDER AGREEMENT dated as of ____________, 19__ by
____________, a ___________ corporation (the "Additional Guarantor"), in favor
of The Chase Manhattan Bank, as collateral agent for the Vendors and Lenders
party to the Loan Agreements referred to below (in such capacity, together with
its successors in such capacity, the "Collateral Agent").
Nextel Communications, Inc. and Nextel Finance Company, a
Delaware corporation (the "Borrower"), and certain subsidiaries and affiliates
of the Borrower (collectively, the "Existing Guarantors") are parties to (i) an
Amended, Restated and Consolidated Credit Agreement dated as of September 27,
1996 (as amended and in effect on the date hereof, the "Vendor Financing
Agreement") with Motorola, Inc., a Delaware corporation ("Motorola"), and NTFC
Capital Corporation, a Delaware corporation ("NTFC Capital" and, together with
Motorola, the "Vendors"), providing, subject to the terms and conditions
thereof, for loans to be made by Motorola and NTFC Capital to the Borrower in an
aggregate principal amount not exceeding $345,000,000 and (ii) a Credit
Agreement dated as of September 27, 1996 (as amended and in effect on the date
hereof, the "Credit Agreement" and, together with the Vendor Financing
Agreement, the "Loan Agreements"), providing, subject to the terms and
conditions thereof, for extensions of credit (by means of loans and letters of
credit) to be made by the Lenders named therein (collectively, together with any
entity that becomes a "Lender" party to the Credit Agreement after the date
hereof as provided therein, the "Lenders" and, together with the Vendors and any
successors or assigns of any of the foregoing, the "Secured Parties") to the
Borrower in an aggregate principal or face amount not exceeding $1,655,000,000
(which, in the circumstances contemplated by Section 7.01(f) thereof, may be
increased to $1,905,000,000). In addition, the Borrower may from time to time be
obligated to one or more of the Lenders under the Credit Agreement in respect of
Hedging Agreements under and as defined in the Credit Agreement (collectively,
the "Hedging Agreements").
In connection with the Loan Agreements, the Borrower, the
Existing Guarantors and the Collateral Agent are parties to a Guarantee and
Security Agreement dated as of September 27, 1996 (the "Restricted Company
Guarantee and Security Agreement")
Joinder Agreement
<PAGE> 211
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pursuant to which the Existing Guarantors have, inter alia, guaranteed the
Guaranteed Obligations (as defined in the Restricted Company Guarantee and
Security Agreement) and granted a security interest in the Collateral (as so
defined) as collateral security for the Secured Obligations (as so defined).
Terms defined in the Restricted Company Guarantee and Security Agreement are
used herein as defined therein.
To induce the Secured Parties to enter into the respective
Loan Agreements to which they are party, and to extend credit thereunder and to
extend credit to the Borrower under Hedging Agreements, and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Additional Guarantor has agreed to become a party to each Loan
Agreement as a "Restricted Company" thereunder, and to the Restricted Company
Guarantee and Security Agreement and Intercreditor and Collateral Agency
Agreement (as defined in the Restricted Company Guarantee and Security
Agreement) as a "Guarantor" thereunder, and to pledge and grant a security
interest in the Collateral (as defined in the Restricted Company Guarantee and
Security Agreement).
Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the
Restricted Company Guarantee and Security Agreement are used herein as defined
therein.
Section 2. Joinder to Agreements. Effective upon the execution
and delivery hereof, the Additional Guarantor hereby agrees that it shall become
a "Restricted Company" under and for all purposes of each Loan Agreement with
all the rights and obligations of a Restricted Company thereunder, and a
"Guarantor" under the Restricted Company Guarantee and Security Agreement and
Intercreditor and Collateral Agency Agreement with all of the rights and
obligations of a Guarantor thereunder. Without limiting the generality of the
foregoing, the Additional Guarantor hereby:
(i) jointly and severally with the other Guarantors
party to the Restricted Company Guarantee and Security Agreement
guarantees to each Agent and Secured Party and their respective
successors and assigns the prompt payment in full when due (whether at
stated maturity, by acceleration or otherwise) of all Guaranteed
Obligations in the same manner and to the same extent as is provided in
Article II of the Restricted Company Guarantee and Security Agreement;
Joinder Agreement
<PAGE> 212
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(ii) pledges and grants the security interests in all
right, title and interest of the Additional Guarantor in all Collateral
now owned or hereafter acquired by the Additional Guarantor and whether
now existing or hereafter coming into existence provided for by Article
IV of the Restricted Company Guarantee and Security Agreement as
collateral security for the Secured Obligations and agrees that Annexes
1, 2 and 3 thereof shall be supplemented as provided in Appendix A
hereto;
(iii) makes the representations and warranties set forth
in Article III of each Loan Agreement and the Restricted Company
Guarantee and Security Agreement, to the extent relating to the
Additional Guarantor or to the Pledged Equity evidenced by the
certificates, if any, identified in Appendix A hereto; and
(iv) submits to the jurisdiction of the courts, and
waives jury trial, as provided in Sections 10.09 and 10.10 of the
respective Loan Agreements.
The Additional Guarantor hereby instructs its counsel to
deliver the opinions referred to in Section 6.11(a)(iii) of the Credit Agreement
to the Agents and the Secured Parties.
Joinder Agreement
<PAGE> 213
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IN WITNESS WHEREOF, the Additional Guarantor has caused this
Joinder Agreement to be duly executed and delivered as of the day and year first
above written.
[ADDITIONAL GUARANTOR]
By________________________
Title:
Accepted and agreed:
THE CHASE MANHATTAN BANK,
as Collateral Agent
By ________________________
Title:
Joinder Agreement
<PAGE> 1
EXHIBIT 99.2
[Execution Copy]
File No. 28692-00300
AMENDED, RESTATED AND CONSOLIDATED CREDIT AGREEMENT
dated as of
September 27, 1996
among
NEXTEL COMMUNICATIONS, INC.,
NEXTEL FINANCE COMPANY
and
THE OTHER "RESTRICTED COMPANIES" PARTY HERETO,
MOTOROLA, INC.
and
NTFC CAPITAL CORPORATION
<PAGE> 2
<TABLE>
<CAPTION>
Page
TABLE OF CONTENTS
Page
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ARTICLE I
<S> <C>
Definitions ........................................................... 1
SECTION 1.01. Defined Terms ................................. 1
SECTION 1.02. Classification of Loans and Borrowings ........ 23
SECTION 1.03. Terms Generally ............................... 23
SECTION 1.04. Accounting Terms; GAAP ........................ 24
SECTION 1.05. Tax Sharing Agreement ......................... 24
ARTICLE II
The Credits ........................................................... 25
SECTION 2.01. Commitments ................................... 25
SECTION 2.02. Loans and Borrowings .......................... 26
SECTION 2.03. Requests for Borrowings ....................... 26
SECTION 2.04. Intentionally Left Blank ...................... 27
SECTION 2.05. Funding of Borrowings ......................... 27
SECTION 2.06. Intentionally Left Blank ...................... 27
SECTION 2.07. Termination and Reduction of
Commitments ................................... 27
SECTION 2.08. Repayment of Loans; Evidence of Debt .......... 28
SECTION 2.09. Prepayment of Loans ........................... 30
SECTION 2.10. Intentionally Left Blank ...................... 34
SECTION 2.11. Interest ...................................... 34
SECTION 2.12. Intentionally Left Blank ...................... 36
SECTION 2.13. Intentionally Left Blank ...................... 36
SECTION 2.14. Intentionally Left Blank ...................... 36
SECTION 2.15. Taxes ......................................... 36
SECTION 2.16. Payments Generally; Pro Rata Treatment;
Sharing of Set-Offs ........................... 37
ARTICLE III
Guarantee by NCI ...................................................... 38
Section 3.01. The Guarantee ................................. 38
Section 3.02. Obligations Unconditional ..................... 39
Section 3.03. Reinstatement ................................. 40
Section 3.04. Subrogation ................................... 40
Section 3.05. Remedies ...................................... 40
</TABLE>
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<TABLE>
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Section 3.06. Instrument for the Payment of Money ........... 40
Section 3.07. Continuing Guarantee .......................... 41
ARTICLE IV
Representations and Warranties ........................................ 41
SECTION 4.01. Organization; Powers .......................... 41
SECTION 4.02. Authorization; Enforceability ................. 41
SECTION 4.03. Governmental Approvals; No Conflicts .......... 41
SECTION 4.04. Financial Condition; No Material Adverse
Change ........................................ 42
SECTION 4.05. Properties .................................... 43
SECTION 4.06. Litigation and Environmental Matters .......... 43
SECTION 4.07. Compliance with Laws and Agreements ........... 44
SECTION 4.08. Investment and Holding Company Status ......... 44
SECTION 4.09. Taxes ......................................... 44
SECTION 4.10. ERISA ......................................... 45
SECTION 4.11. Disclosure .................................... 45
SECTION 4.12. Material Agreements and Liens ................. 45
SECTION 4.13. Regulatory Matters ............................ 46
SECTION 4.14. Subsidiaries .................................. 48
SECTION 4.15. Capitalization of NCI ......................... 49
SECTION 4.16. Intentionally Left Blank ...................... 49
SECTION 4.17. Public Note Indentures ........................ 50
ARTICLE V
Conditions ............................................................ 50
SECTION 5.01. Effective Date ................................ 50
SECTION 5.02. Each Loan ..................................... 53
ARTICLE VI
Affirmative Covenants ................................................. 54
SECTION 6.01. Financial Statements and Other
Information ....................... 54
SECTION 6.02. Notices of Material Events .................... 57
SECTION 6.03. Existence; Conduct of Business ................ 57
SECTION 6.04. Payment of Obligations ........................ 59
SECTION 6.05. Maintenance of Properties; Insurance .......... 59
SECTION 6.06. Books and Records; Inspection Rights .......... 59
SECTION 6.07. Fiscal Year ................................... 59
SECTION 6.08. Compliance with Laws .......................... 60
SECTION 6.09. Intentionally Left Blank ...................... 60
SECTION 6.10. Hedging Agreements ............................ 60
</TABLE>
(ii)
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<TABLE>
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SECTION 6.11. Certain Obligations Respecting
Subsidiaries and Collateral Security 60
SECTION 6.12. Planned Option Issuances ....................... 63
ARTICLE VII
Negative Covenants ..................................................... 63
SECTION 7.01. Indebtedness ................................... 63
SECTION 7.02. Liens .......................................... 65
SECTION 7.03. Fundamental Changes ............................ 66
SECTION 7.04. Investments, Loans, Advances, Guarantees
and Acquisitions; Hedging Agreements ........... 68
SECTION 7.05. Restricted Payments ............................ 72
SECTION 7.06. Transactions with Affiliates ................... 74
SECTION 7.07. Restrictive Agreements ......................... 74
SECTION 7.08. Certain Financial and Other Covenants .......... 75
SECTION 7.09. Lines of Business, Etc ......................... 78
SECTION 7.10. Modifications to Certain Agreements ............ 79
ARTICLE VIII
Events of Default ...................................................... 79
ARTICLE IX
Intentionally Left Blank ............................................... 83
ARTICLE X
Miscellaneous .......................................................... 84
SECTION 10.01. Notices ....................................... 84
SECTION 10.02. Waivers; Amendments ........................... 84
SECTION 10.03. Expenses; Indemnity; Damage Waiver ............ 86
SECTION 10.04. Successors and Assigns ........................ 87
SECTION 10.05. Survival ...................................... 89
SECTION 10.06. Counterparts .................................. 90
SECTION 10.07. Severability .................................. 90
SECTION 10.08. Right of Setoff ............................... 90
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of Process ............................ 90
SECTION 10.10. WAIVER OF JURY TRIAL .......................... 91
SECTION 10.11. Headings ...................................... 92
SECTION 10.12. Confidentiality ............................... 92
SECTION 10.13. Intentionally Left Blank ...................... 93
</TABLE>
(iii)
<PAGE> 5
SECTION 10.14. Existing Vendor Agreements .................... 93
SECTION 10.15. Obligations Senior ............................ 93
SCHEDULES:
Schedule 1.01 -- Reorganization
Schedule 4.06 -- Disclosed Matters
Schedule 4.12 -- Material Agreements and Liens
Schedule 4.13 -- License Compliance
Schedule 4.14 -- Subsidiaries
Schedule 4.15 -- Equity Rights
Schedule 7.01 -- Existing Indebtedness
Schedule 7.07 -- Existing Restrictions
EXHIBITS:
Exhibit A -- [Intentionally Left Blank]
Exhibit B -- [Intentionally Left Blank]
Exhibit C -- Form of Restricted Company Guarantee and
Security Agreement
Exhibit D -- Form of Intercreditor and Collateral Agency
Agreement
Exhibit E -- Form of Joinder Agreement
(iv)
<PAGE> 6
AMENDED, RESTATED AND CONSOLIDATED CREDIT AGREEMENT dated as
of September 27, 1996 among NEXTEL COMMUNICATIONS, INC., NEXTEL FINANCE COMPANY
and the other RESTRICTED COMPANIES party hereto, and the VENDORS party hereto.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this
Agreement, the following terms have the meanings specified below:
"Administrative Agent" means Toronto Dominion (Texas) Inc., in
its capacity as administrative agent for the Lenders under the Credit Agreement.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agents" means the Administrative Agent and the
Collateral Agent.
"Annualized Operating Cash Flow" means, as at any day,
Operating Cash Flow for the fiscal quarter ending on or most recently ended
prior to such day multiplied by 4.
"Annualized Revenue" means, as at any day, gross revenues of
the Restricted Companies (determined on a combined basis without duplication in
accordance with GAAP) for the period of three complete calendar months ending
on, or most recently ended prior to, such day multiplied by 4.
"April 1994 Indenture" means the Indenture referred to in
clause (e) of the definition of the term "Public Note Indentures" in this
Section 1.01.
"Authorizations" means all validations, exemptions,
franchises, waivers, approvals, orders or authorizations, consents, licenses,
certificates and permits from, the FCC, any PUC and any other Federal, state or
local regulatory or governmental bodies and authorities, including any
subdivision thereof.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of (a) the Maturity Date and (b) in
the case of Loans of any Class, the date of termination of the Commitment of
such Class.
Vendor Financing Agreement
<PAGE> 7
-2-
"Average Life to Maturity" means, as at any day with respect
to any Indebtedness, the quotient obtained by dividing (a) the sum of the
products of (i) the number of years from the day to the date or dates of each
successive principal payment of such Indebtedness multiplied by (ii) the amount
of each such principal payment by (b) the sum of all such principal payments.
"Basic Documents" means the Loan Documents, the Credit
Agreement and the Vendor Equipment Agreements.
"Board" means the Board of Governors of the Federal
Reserve System of the United States of America.
"Borrower" means Nextel Finance Company, a Delaware
corporation.
"Borrowing" means Loans of a particular Class made on
the same date.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.
"Capital Expenditures" means, for any period, the sum for the
Restricted Companies (or, as the case may be, for NCI and the Restricted
Companies) of the aggregate amount of expenditures (including the aggregate
amount of Capital Lease Obligations incurred during such period) made to acquire
or construct fixed assets, plant and equipment (including renewals, improvements
and replacements, but excluding repairs) during such period computed in
accordance with GAAP. "Capital Expenditures" for the Restricted Companies shall
be determined on a combined basis, and for NCI and the Restricted Companies
shall be determined on a consolidated basis (excluding the Unrestricted
Companies), in each case without duplication in accordance with GAAP.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
Vendor Financing Agreement
<PAGE> 8
-3-
"Change in Control" means either (a) a "Change of Control"
under and as defined in the Public Note Indentures, or any other similar event
(howsoever defined) requiring the prepayment, redemption or offer to repurchase
of the respective Indebtedness under any agreement providing for the issuance of
Indebtedness of NCI after the date hereof pursuant to Section 7.01(c)(i) or
7.01(d), or (b) the termination or material modification of the authority of the
Operations Committee of NCI (including through the occurrence of a "Trigger
Event" as defined in NCI's Certificate of Incorporation as in effect on the date
hereof) or the inability of Craig O. McCaw (whether acting directly or through
any Person controlled by him) for any reason (other than by reason of his death,
disability or incompetence) to designate a majority of the members of said
Operations Committee.
"Chase" means The Chase Manhattan Bank, a New York
state banking corporation.
"Class", when used in reference to any Loan, Borrowing or
Commitment, refers to whether such Loan, the Loans comprising such Borrowing or
the Loans that a Vendor holding such Commitment is obligated to make, are
Tranche A Loans, Tranche B Loans or Tranche C Loans.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" means all cash and other property in which the
Collateral Agent has a Lien (whether or not perfected under applicable law)
under any of the Security Documents, including all "Collateral" under and as
defined in the Restricted Company Guarantee and Security Agreement.
"Collateral Agent" means The Chase Manhattan Bank, in its
capacity as collateral agent for the Lenders and the Vendors under the Security
Documents.
"Commitment Reduction Dates" means the Quarterly Dates falling
on or nearest to March 31, June 30, September 30 and December 31 of each year,
commencing with March 31, 2001, through and including March 31, 2003.
"Commitments" means the Tranche A Commitment, the Tranche B
Commitment and the Tranche C Commitment, provided that for purposes of Section
2.09(b), such term shall also include the "Commitments" of the Lenders under the
Credit Agreement.
Vendor Financing Agreement
<PAGE> 9
-4-
"Contributed Capital" means, as at any time, the net aggregate
amount of equity capital received after the Effective Date by the Restricted
Companies in respect of shares of common stock to the extent such amount does
not exceed the aggregate proceeds of Qualifying Debt or Equity Issuances by NCI
after the Effective Date.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Credit Agreement" means the Credit Agreement dated as of the
date hereof among NCI, the Restricted Companies, the Lenders named therein, the
Administrative Agent and the Collateral Agent.
"Credit Parties" means NCI and the Restricted
Companies.
"Debt Service" means, for any period, the sum for the
Restricted Companies (or, as the case may be, for NCI and the Restricted
Companies) of the following: (a) the amount, if any, by which the aggregate
principal amount of Revolving Credit Loans outstanding under the Credit
Agreement at the beginning of such period shall exceed the aggregate amount of
the "Revolving Credit Commitments" thereunder scheduled to be in effect at the
end of such period after giving effect to any reductions of such Commitments
scheduled to occur during such period pursuant to Section 2.07 of the Credit
Agreement plus (b) the amount, if any, by which the aggregate principal amount
of Tranche B Loans outstanding hereunder at the beginning of such period shall
exceed the aggregate amount of the Tranche B Commitment hereunder scheduled to
be in effect at the end of such period after giving effect to any reductions of
such Commitment scheduled to occur during such period pursuant to Section 2.07
plus (c) all regularly scheduled payments or regularly scheduled mandatory
prepayments of principal of any other Indebtedness (including the Tranche A
Loans and Tranche C Loans hereunder, the "Tranche C Term Loans" and the "Tranche
D Term Loans" under the Credit Agreement and the principal component of any
payments in respect of Capital Lease Obligations, but excluding any prepayments
made pursuant to Section 2.09) made during such period plus (d) all Interest
Expense for such period. "Debt Service" for the Restricted Companies shall be
determined on a combined basis, and for NCI and the Restricted Companies shall
be determined on a consolidated basis (excluding the Unrestricted Companies), in
each case without duplication in accordance with GAAP.
Vendor Financing Agreement
<PAGE> 10
-5-
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 4.06.
"Disposition" means any sale, assignment, transfer or other
disposition of any property (whether now owned or hereafter acquired) by any
Restricted Company to any other Person excluding any sale, assignment, transfer
or other disposition of any property sold or disposed of in the ordinary course
of business and on ordinary business terms.
"Disposition Investment" means, with respect to any
Disposition, any promissory notes or other evidences of indebtedness or
Investments received by the Restricted Companies in connection with such
Disposition.
"Effective Date" means the date on which the conditions
specified in Section 5.01 are satisfied (or waived in accordance with Section
10.02).
"Enhanced SMR System" means a wide-area network of specialized
mobile radio base stations that employs digital and other advanced, spectrally
efficient communications technologies to provide a full range of communications
services including voice, dispatch, interconnected telephone and data services.
"Environmental Laws" means all laws, rules, regulations,
policies, codes, ordinances, orders, decrees, judgments, injunctions, notices or
binding agreements issued, promulgated or entered into by any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, release or threatened release of any
Hazardous Material or to health and safety matters, including FCC rules and
policies concerning RF Emissions.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of any Restricted Company
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials or RF Emissions, (c) exposure
to any Hazardous Materials or RF Emissions, (d) the
Vendor Financing Agreement
<PAGE> 11
-6-
release or threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
"Equity Rights" means, with respect to any Person, any
subscriptions, options, warrants, commitments, preemptive rights or agreements
of any kind (including any stockholders' or voting trust agreements) for the
issuance or sale of, or securities convertible into, any additional shares of
capital stock of any class, or partnership or other ownership interests of any
type in, such Person.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived), (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived, (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan, (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan, (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan, (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan, or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
Vendor Financing Agreement
<PAGE> 12
-7-
"Event of Default" has the meaning assigned to such
term in Article VIII.
"Excess Cash Flow" means, for any fiscal year of the
Restricted Companies, the excess of (a) Operating Cash Flow for such fiscal year
over (b) the sum of (i) Debt Service for the Restricted Companies for such
fiscal year plus (ii) the aggregate amount of all Capital Expenditures for the
Restricted Companies made during such fiscal year, except for any such Capital
Expenditures to the extent financed with the proceeds of Indebtedness incurred
pursuant to Section 7.01(g) during such fiscal year and that is secured by Liens
permitted under Section 7.02(f) plus (iii) the aggregate amount paid, or
required to be paid, in cash in respect of income taxes during such fiscal year
plus (iv) $5,000,000.
"Excluded Taxes" means, with respect to either Vendor or any
other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income, net worth or franchise taxes imposed on (or
measured by) its net income or net worth by the United States of America, or by
the jurisdiction under the laws of which such recipient is organized or in which
its principal office is located or (b) any branch profits taxes imposed by the
United States of America or any similar tax imposed by any other jurisdiction in
which the Borrower is located.
"Existing Vendor Indebtedness" means the Indebtedness
outstanding under the agreements referred to in Section 10.14.
"FCC" means the Federal Communications Commission or
any Governmental Authority substituted therefor.
"FCC License" means any paging, mobile telephone, specialized
mobile radio, microwave or other license, permit, consent, certificate of
compliance, franchise, approval, waiver or authorization granted or issued by
the FCC, including any of the foregoing authorizing or permitting the
acquisition, construction or operation of an SMR System, radio paging system,
mobile telephone system or other radio communications system.
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of l%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the
Vendor Financing Agreement
<PAGE> 13
-8-
quotations for such day for such transactions received by Chase from three
Federal funds brokers of recognized standing selected by it.
"Final Order" means an action by any Governmental Authority
that has not been reversed, stayed, enjoined, set aside, annulled, or suspended,
and with respect to which no requests are pending for administrative or judicial
review, reconsideration, appeal, or stay, and the time for filing any such
requests and the time for such Governmental Authority to set aside the action on
its own motion have expired.
"Financial Officer" means, with respect to NCI or the
Borrower, the chief financial officer, principal accounting officer, treasurer
or controller of NCI or the Borrower, as the case may be.
"First Tier Restricted Company" means any Restricted Company
that is not a Wholly Owned Subsidiary of one or more other Restricted Companies.
"Fixed Charges Ratio" means, as at the last day of any fiscal
quarter, the ratio of (a) the sum of (i) Annualized Operating Cash Flow as at
such day plus (ii) the aggregate unutilized amount of the Commitments
hereunder, and the unutilized amount of the "Commitments" under the Credit
Agreement, as at such day plus (iii) the amount of cash and cash equivalents
held by NCI and the Restricted Companies on such day to (b) the sum of (i) Debt
Service for NCI and the Restricted Companies for the period of four fiscal
quarters ending on such day plus (ii) the aggregate amount of Capital
Expenditures for NCI and the Restricted Companies made during such period,
except for any such Capital Expenditures to the extent financed with the
proceeds of Indebtedness incurred pursuant to Section 7.01(g) during such
fiscal year and that is secured by Liens permitted under Section 7.02(f) plus
(iii) the aggregate amount of Federal, state and local income taxes paid by NCI
and its subsidiaries in respect of such period.
"GAAP" means generally accepted accounting principles
in the United States of America.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
Vendor Financing Agreement
<PAGE> 14
-9-
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
endorsements for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money (whether by loan, the issuance
and sale of debt securities or the sale of property to another Person subject to
an understanding or agreement, contingent or otherwise, to repurchase such
property from such Person), (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (c) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (d) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (e) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
Vendor Financing Agreement
<PAGE> 15
-10-
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (f) all Guarantees by such Person of
Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (i) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means all Taxes other than (a) Excluded
Taxes and Other Taxes and (b) amounts constituting penalties or interest imposed
with respect to Excluded Taxes or Other Taxes.
"Information Memorandum" means the Information Memorandum
dated August 1996 prepared by NCI in connection with the syndication of the
Commitments under the Credit Agreement.
"Intercreditor and Collateral Agency Agreement" means an
Intercreditor and Collateral Agency Agreement substantially in the form of
Exhibit D between the Restricted Companies, the Vendors, the Administrative
Agent and the Collateral Agent.
"Interest Coverage Ratio" means, as at any day, the ratio of
(a) Annualized Operating Cash Flow as at such day to (b) Interest Expense for
NCI and the Restricted Companies for the period of four fiscal quarters ending
on or most recently ended prior to such day.
"Interest Expense" means, for any period, the
following:
(a) in the case of the Restricted Companies, the sum of (i)
all interest and fees in respect of Indebtedness accrued or capitalized
during such period, including the interest component of any payments in
respect of Capital Lease Obligations, but excluding any interest not
required to be paid in cash during such period, plus (ii) all
Restricted Payments made by any Restricted Company to NCI during such
period to enable NCI to pay interest in respect of Indebtedness of NCI,
as permitted by Section 7.05, plus (iii) the net amount payable (or
minus the net amount receivable) under Hedging Agreements during such
period
Vendor Financing Agreement
<PAGE> 16
-11-
(whether or not actually paid or received during such
period); and
(b) in the case of NCI and the Restricted Companies, the sum
of (i) all interest and fees in respect of Indebtedness accrued or
capitalized during such period, including the interest component of any
payments in respect of Capital Lease Obligations, but excluding any
interest not required to be paid in cash during such period, plus (ii)
the net amount payable (or minus the net amount receivable) under
Hedging Agreements during such period (whether or not actually paid or
received during such period).
"Interest Expense" for the Restricted Companies shall be determined on a
combined basis, and for NCI and the Restricted Companies shall be determined on
a consolidated basis (excluding the Unrestricted Companies), in each case
without duplication in accordance with GAAP.
"January 1994 Indenture" means the Indenture referred to in
clause (c) of the definition of the term "Public Note Indentures" in this
Section 1.01.
"Joinder Agreement" means a Joinder Agreement
substantially in the form of Exhibit E.
"LC Exposure" has the meaning assigned to such term in
the Credit Agreement.
"Lenders" means the "Lenders" from time to time party
to the Credit Agreement.
"License Company" means any Restricted Company that holds any
FCC Licenses or PUC Authorizations.
"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 and (c) in the case of securities, any
purchase option, call or similar right of a third party (other than a Restricted
Company) with respect to such securities.
"loaded" means, with respect to any SMR License, that the
number of units (described as mobile stations within the meaning of Part 90)
receiving communications services pursuant to
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such SMR License is sufficient to satisfy, with respect to each channel
authorized by such SMR License, any applicable loading requirements contained in
Part 90 after giving effect to any valid repeal, waiver, exemption, extension or
similar action or relief taken or granted by the FCC and applicable to such SMR
License but only to the extent such repeal, waiver, exemption, extension or
similar action or relief is and remains in full force and effect. The term
"loading" used as an adjective shall have a correlative meaning.
"Loan Documents" means this Agreement, any promissory notes
evidencing Loans hereunder and the Security Documents.
"Loans" means the loans made by the Vendors to the Borrower
pursuant to this Agreement and, for purposes of Sections 2.09(b) and 2.16(d),
such term shall also include the "Loans" of the Lenders made under the Credit
Agreement.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or condition, financial or
otherwise, of NCI and its subsidiaries, or of the Restricted Companies, in each
case taken as a whole, (b) the ability of any of NCI and the Restricted
Companies to perform any of their respective obligations under this Agreement or
the other Loan Documents or (c) the rights of or benefits available to the
Vendors under this Agreement and the other Loan Documents.
"Material Indebtedness" means Indebtedness (other than the
Loans or Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Credit Parties in an aggregate principal
amount exceeding $10,000,000. For purposes of determining Material Indebtedness,
the "principal amount" of the obligations of any Credit Party in respect of any
Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that such Credit Party would be required to
pay if such Hedging Agreement were terminated at such time.
"Maturity Date" means the last Business Day in March,
2003.
"Mobile Communications Business" means the business consisting
of (a) owning, operating or managing one or more SMR Systems and (b) to the
extent ancillary thereto and not constituting a material part of the operations
as a whole, other communications businesses related thereto which utilize the
training or resources appurtenant to the operation of an SMR System, including
radio paging services or sales or servicing
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of radio equipment or mechanical parts and mobile telephone services, provided
that such term shall not include the ownership, operation or management of
licenses for 1.8 GHz "personal communications services" pursuant to Part 24.
"Mortgages" means, collectively, one or more assignments of
lease, mortgages, deeds of trust, deeds to secure debt and similar instruments
executed by a Restricted Company in favor of the Collateral Agent (or a trustee
for the benefit of the Collateral Agent), and covering interests in real
property held by such Restricted Company as collateral security for the "Secured
Obligation" under and as defined in the Intercompany and Collateral Agency
Agreement, in each case in such form as shall be satisfactory to the Collateral
Agent.
"Motorola" means Motorola, Inc., a Delaware
corporation.
"Multiemployer Plan" means a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NCI" means Nextel Communications, Inc., a Delaware
corporation.
"Net Cash Payments" means, with respect to any Disposition,
the aggregate amount of all cash payments received by the Restricted Companies
directly or indirectly in connection with such Disposition, whether at the time
of such Disposition or after such Disposition under deferred payment
arrangements or Investments entered into or received in connection with such
Disposition (including Disposition Investments); provided that
(a) Net Cash Payments shall be net of (i) the amount of any
legal, title and recording tax expenses, commissions and other fees and
expenses payable by the Restricted Companies in connection with such
Disposition and (ii) any Federal, state and local income or other taxes
estimated to be payable by the Restricted Companies as a result of such
Disposition, but only to the extent that on the date of such
Disposition the Borrower delivers a certificate of a Financial Officer
setting forth a calculation of the amount of such estimated taxes and
delivers an amount of such Net Cash Payments equal to such estimated
taxes to the Collateral Agent to be held in the Tax Proceeds Account
until such payment of taxes is in fact made, it being understood that
to the extent the amount so deposited is not applied to such payment of
taxes by the March 15 of the year immediately following the fiscal year
in which such Disposition shall have occurred, the remaining balance
shall
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be treated as "Net Cash Payments" for purposes of this Agreement and
shall be applied in accordance with the provisions of Section
2.09(b)(ii) (and, in the event the Borrower shall elect, pursuant to
Section 2.09(b)(ii)(y) to reinvest such remaining balance into
replacement assets, the twelve-month period provided for in Section
2.09(b)(ii)(z) shall be measured from such March 15), and
(b) Net Cash Payments shall be net of any repayments by the
Restricted Companies of Indebtedness or other obligations to the extent
that (i) such Indebtedness or other obligations is secured by a Lien on
the property that is the subject of such Disposition and the transferee
of (or holder of a Lien on) such property requires that such
Indebtedness or other obligations be repaid as a condition to the
purchase of such property or (ii) such Indebtedness or other
obligations requires that it be repaid as a condition to such
Disposition.
"Net Income" means, for any period, the net income of the
Restricted Companies (determined on a combined basis without duplication in
accordance with GAAP) and treating as operating expenses all amounts paid by the
Restricted Companies to NCI pursuant to the Overhead Services Agreement.
"Network Subscriber Units" means, as at any date, the number
of units (described as mobile stations within the meaning of Part 90), employing
analog or digital technology, subscribing to, and paying for, communications
services provided by the Restricted Companies for a period of not less than 30
days as of such date, excluding any such unit to the extent the accounts
receivable generated by operation of such unit are more than 90 days past due as
of such date.
"NTFC Capital" means NTFC Capital Corporation, a
Delaware corporation.
"Operating Cash Flow" means, for any period, the sum, for the
Restricted Companies (determined on a combined basis without duplication in
accordance with GAAP), of the following (in each case adjusted to exclude all
extraordinary and unusual items, income or loss attributable to equity in
affiliates and non-cash minority interest payments and receipts): (a) Net Income
for such period plus (b) income tax expense and Interest Expense (to the extent
deducted in determining Net Income) for such period plus (c) depreciation,
amortization and other non-cash charges (to the extent deducted in determining
Net Income) for such period.
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"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement and the other
Loan Documents, provided that there shall be excluded from "Other Taxes" all
Excluded Taxes.
"Overhead Services Agreement" means the Overhead Services
Agreement dated as of the date hereof between the Restricted Companies and NCI.
"Part 24" means 47 CFR Part 24 of the Rules and Regulations of
the FCC in effect from time to time or such other parts or subparts that may be
substituted for or combined with said Part 24.
"Part 90" means 47 CFR Part 90 of the Rules and Regulations of
the FCC in effect from time to time or such other parts or subparts that may be
substituted for or combined with said Part 90.
"PBGC" means the Pension Benefit Guaranty Corporation referred
to and defined in ERISA and any successor entity performing similar functions.
"Permitted Debt Limitation" means, at any date, the amount of
Indebtedness permitted to be incurred on such date (a) pursuant to clause (iii)
of the definition of "Permitted Debt" under each of the Public Note Indentures
(other than the April 1994 Indenture) and (b) pursuant to clause (iv) of the
definition of "Permitted Debt" under the April 1994 Indenture.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet
due or are being contested in compliance with Section 6.04;
(b) carriers', warehousemen's, mechanics', landlord's,
lessor's, materialmen's, repairmen's and other like Liens imposed by
law, arising in the ordinary course of business and securing
obligations that are not overdue by more than 30 days or are being
contested in compliance with Section 6.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers compensation, unemployment
insurance and other social security laws or regulations;
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(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) 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 business of any Restricted
Company;
(f) subleases of property with respect to which a Restricted
Company is the primary lessee, to the extent such subleases arise in
the ordinary course of business and do not interfere in any material
respect with the business of any Restricted Company; and
(g) precautionary Uniform Commercial Code filings made with
respect to office and similar equipment (but excluding equipment used
in the operation of the Mobile Communications Business of the
Restricted Companies), or vehicles, leased to the Restricted Companies
in the ordinary course of business under operating leases (i.e. leases
not giving rise to Capital Lease Obligations);
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard and
Poor's Ratings Service or from Moody's Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or
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placed with, and money market deposit accounts issued or offered by,
any domestic office of any commercial bank organized under the laws of
the United States of America or any State thereof which has a combined
capital and surplus and undivided profits of not less than
$250,000,000; and
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Planned Option Issuances" means the warrants, options and
other rights to acquire shares of stock of NCI set forth in Part A of Schedule
4.15.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"Principal Payment Dates" means the Quarterly Dates falling on
or nearest to March 31, June 30, September 30 and December 31 of each year,
commencing with March 31, 2001 through and including March 31, 2003.
"Pro-Forma Debt Service" means, as at the last day of any
fiscal quarter, the sum, for NCI and the Restricted Companies (determined on a
consolidated basis without duplication in accordance with GAAP), of the
following: (a) the amount, if any, by which the aggregate principal amount of
Revolving Credit Loans outstanding under the Credit Agreement on such day
exceeds the aggregate amount of the "Revolving Credit Commitments" thereunder
scheduled pursuant to Section 2.07 of the Credit Agreement to be in effect at
the last day of the immediately succeeding four
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fiscal quarters plus (b) the amount, if any, by which the aggregate principal
amount of Tranche B Loans outstanding hereunder on such day exceeds the
aggregate amount of the Tranche B Commitment scheduled pursuant to Section 2.07
to be in effect at the last day of the immediately succeeding four fiscal
quarters plus (c) all regularly scheduled payments or regularly scheduled
mandatory prepayments of principal of any other Indebtedness (including the
Tranche A Loans and Tranche C Loans hereunder, the "Tranche C Term Loans" and
the "Tranche D Term Loans" under the Credit Agreement and the principal
component of any payments in respect of Capital Lease Obligations, but excluding
any prepayments made pursuant to Section 2.09) required to be made during the
immediately succeeding four fiscal quarters plus (d) all Interest Expense for
NCI and the Restricted Companies projected to be incurred during the immediately
succeeding four fiscal quarters. In determining Interest Expense for purposes of
this definition, interest on a floating rate basis for any current or future
period shall be deemed to accrue at a rate per annum equal to the higher of (i)
the weighted average rate of interest with respect to all Indebtedness of NCI
and the Restricted Companies in effect on the last day of the fiscal quarter as
of which "Pro-Forma Debt Service" is being determined and (ii) the weighted
average rate of interest with respect to such Indebtedness in effect during such
fiscal quarter.
"Pro-Forma Debt Service Ratio" means, as at the last day of
any fiscal quarter, the ratio of (a) Annualized Operating Cash Flow as at such
day to (b) Pro-Forma Debt Service as at such day.
"Public Note Indentures" means (a) the Indenture dated as of
August 15, 1993 between NCI and The Bank of New York, as Trustee, (b) the
Indenture dated as of December 22, 1993 between NCI (as successor to Dial Call
Communications, Inc.) and The Bank of New York, as Trustee, (c) the Indenture
dated as of January 13, 1994 between NCI (as successor to CenCall Communications
Corp.) and The Bank of New York, as Trustee, (d) the Indenture dated as of
February 15, 1994 between NCI and The Bank of New York, as Trustee and (e) the
Indenture dated as of April 24, 1994 between NCI (as successor to Dial Call
Communications, Inc.) and The Bank of New York, as Trustee.
"Public Notes" means, collectively, the respective Notes
issued pursuant to the Public Note Indentures.
"PUC" means any state regulatory agency or body that exercises
jurisdiction over the rates or services or the ownership, construction or
operation of any SMR System, cellular
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<PAGE> 24
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radio telecommunications system or conventional mobile telephone system or over
Persons who own, construct or operate SMR Systems, cellular radio
telecommunications systems or conventional mobile telephone systems, in each
case by reason of the nature or type of the business subject to regulation and
not pursuant to laws and regulations of general applicability to Persons
conducting business in said state.
"PUC Authorization" means any Authorization issued by a
PUC.
"Purchase Price" means with respect to any acquisition under
Section 7.04(a)(vii) or 7.04(a)(viii), an amount equal to the sum of (i) the
aggregate consideration, whether cash, property or securities (including any
Indebtedness incurred pursuant to Section 7.01(g) hereof), paid or delivered by
the Restricted Companies in connection with such acquisition plus (ii) the
aggregate amount of liabilities of the acquired business (net of current assets
of the acquired business) that would be reflected on a balance sheet (if such
were to be prepared) of the Restricted Companies after giving effect to such
acquisition.
"Qualifying Debt or Equity Issuance" means (a) the issuance or
incurrence by NCI after the date hereof of Indebtedness permitted under Section
7.01 and (b) the issuance or sale by NCI of (i) any shares of capital stock
(including any such shares issued upon the exercise or conversion of any
existing warrants, options or other rights to acquire shares of capital stock),
(ii) any warrants or options exercisable in respect of capital stock or (iii)
any other security or instrument representing an equity interest (or the right
to obtain any equity interest) in NCI.
"Quarterly Dates" means the last Business Day of March, June,
September and December in each year, the first of which shall be the first such
day after the date of this Agreement.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Reorganization" means the series of transactions pursuant to
which various of the existing subsidiaries of NCI (each of which constitutes a
"Restricted Subsidiary" under and as defined in the Public Note Indentures) are
to be transferred to, and become Subsidiaries of, the Borrower, all as more
particularly described in Schedule 1.01.
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"Required Vendors" means, at any time, Vendors having Loans
and unused Commitments representing at least 51% of the sum of the total Loans
and unused Commitments at such time.
"Reserved Commitment Amount" has the meaning assigned to such
term in Section 2.01(a) of the Credit Agreement.
"Restricted Company" means the Borrower, the other Persons
listed on the signature pages hereto under the caption "RESTRICTED COMPANIES"
and each Person that becomes a Restricted Company after the date hereof pursuant
to Section 6.11.
"Restricted Company Guarantee and Security Agreement" means a
Guarantee and Security Agreement substantially in the form of Exhibit C between
the Restricted Companies and the Collateral Agent.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock of any Restricted Company, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock of any
Restricted Company or any option, warrant or other right to acquire any such
shares of capital stock of any Restricted Company, but excluding any such
dividend, distribution or payment either (i) made solely in shares of its common
stock or (ii) made to any other Restricted Company.
"Revolving Credit Loans" has the meaning assigned to
such term in the Credit Agreement.
"RF Emissions" means radio frequency emissions governed by FCC
rules and policies.
"Sale Proceeds Reinvestment Account" has the meaning assigned
to such term in the Restricted Company Guarantee and Security Agreement.
"Secured Indebtedness" means, as at any day, all Indebtedness
of the Restricted Companies hereunder and under the Credit Agreement, and all
other Indebtedness that is secured by any Lien upon property of any of the
Restricted Companies, including all Capital Lease Obligations.
"Secured Indebtedness to Cash Flow Ratio" means, as at
the last day of any fiscal quarter, the ratio of (a) Secured
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Indebtedness as at such day to (b) Annualized Operating Cash Flow as at such
day.
"Secured Indebtedness to Revenue Ratio" means, as at any day,
the ratio of (a) Secured Indebtedness as at such day to (b) Annualized Revenue
as at such day.
"Security Documents" means the Restricted Company Guarantee
and Security Agreement, the Intercreditor and Collateral Agency Agreement, the
Mortgages and all Uniform Commercial Code financing statements required by any
of such instruments to be filed with respect to the security interests in
personal property and fixtures created pursuant thereto.
"SMR License" means an FCC License authorizing the
construction, ownership and operation of an SMR System in the 800 or 900 MHz
band.
"SMR System" means a specialized mobile radio system licensed
under Part 90, together with such other facilities from time to time licensed or
otherwise authorized by the FCC as shall be necessary to provide the
communications services to be offered by the Restricted Companies. The term "SMR
System" shall include an Enhanced SMR System using FCC Licenses in the 800 MHz
or 900 MHz band.
"Specified Default" means any Event of Default under paragraph
(a), (b), (d), (f), (g), (h) or (i) of Article VIII.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Tax Proceeds Account" has the meaning assigned to such term
in the Restricted Company Guarantee and Security Agreement.
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"Tax Sharing Agreement" means the Tax Sharing Agreement dated
as of the date hereof by and among NCI and the "Affiliated Corporations"
(including the Restricted Companies) therein referred to.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Indebtedness" means, as at any day, all Indebtedness of
NCI and the Restricted Companies, determined on a consolidated basis (excluding
the Unrestricted Companies) without duplication in accordance with GAAP.
"Total Indebtedness to Cash Flow Ratio" means, as at the last
day of any fiscal quarter, the ratio of (a) Total Indebtedness as at such day to
(b) Annualized Operating Cash Flow as at such day.
"Tranche A Commitment" means the commitment of Motorola to
make Tranche A Loans hereunder. The amount of the Tranche A Commitment is
$110,000,000.
"Tranche A Loan" means a Loan made pursuant to Section 2.01(a)
that utilizes the Tranche A Commitment.
"Tranche B Commitment" means the commitment of Motorola to
make Tranche B Loans hereunder, as such commitment may be reduced from time to
time pursuant to Sections 2.07 and 2.09. The initial amount of the Tranche B
Commitment is $195,000,000.
"Tranche B Loan" means a Loan made pursuant to Section 2.01(b)
that utilizes the Tranche B Commitment.
"Tranche C Commitment" means the commitment of NTFC Capital to
make Tranche C Loans hereunder. The amount of the Tranche C Commitment is
$40,000,000.
"Tranche C Loan" means a Loan made pursuant to Section 2.01(c)
that utilizes the Tranche C Commitment.
"Transactions" means (a) with respect to the Borrower, the
execution, delivery and performance by the Borrower of the Loan Documents to
which it is a party and the borrowing of Loans and the use of the proceeds
thereof, (b) with respect to any Credit Party (other than the Borrower), the
execution, delivery and performance by such Credit Party of the Loan Documents
to which it is a party and (c) with respect to each applicable Credit Party, the
Reorganization.
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"Unrestricted Companies" means each subsidiary of NCI other
than the Restricted Companies.
"U.S. dollars" or "$" refers to lawful money of the
United States of America.
"Vendor Equipment Agreements" means the following agreements
(i) the Enhanced Specialized Mobile Radio System Equipment Purchase Agreement
dated as of November 1, 1991 between Motorola and NCI; (ii) the letter agreement
dated as of November 4, 1991 between Motorola and NCI; (iii) Amendment to
Purchase Agreements dated as of August 4, 1994 between Motorola and NCI; (iv)
Second Amendment to Purchase Agreements dated as of April 5, 1995 between
Motorola and NCI; (v) Amendment 003 to Enhanced Specialized Mobile Radio System
Purchase Agreement dated as of March 25, 1995 between Motorola and NCI; and (vi)
Amendment 004 to Enhanced Specialized Mobile Radio System Purchase Agreement
dated as of April 28, 1996 between Motorola and NCI; each of which agreements
and Amendments is, pursuant to the assignment referred to in Section 5.01(m),
being assigned to the Borrower on the Effective Date.
"Vendors" means Motorola and NTFC Capital.
"Wholly Owned Subsidiary" means, with respect to any Person at
any date, any corporation, limited liability company, partnership, association
or other entity of which securities or other ownership interests representing
100% of the equity or ordinary voting power (other than directors' qualifying
shares) or, in the case of a partnership, 100% of the general partnership
interests are, as of such date, directly or indirectly owned, controlled or held
by such Person or one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person.
"Withdrawal Liability" means liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan, as
such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Class
(e.g., a "Tranche A Loan", "Tranche B Loan" and "Tranche C Loan"). In similar
fashion, Borrowings and Commitments may be classified and referred to by Class.
SECTION 1.03. Terms Generally. The definitions of
terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any
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pronoun shall include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation". The word "will" shall be construed to have
the same meaning and effect as the word "shall". Unless the context requires
otherwise (a) any definition of or reference to any agreement, instrument or
other document herein shall be construed as referring to such agreement,
instrument or other document as from time to time amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (b) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (c) the words
"herein", "hereof" and "hereunder", and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular
provision hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower and NCI notify the Vendors that the Borrower and NCI
request an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Required Vendors notify the Borrower
and NCI that they request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
SECTION 1.05. Tax Sharing Agreement. Pursuant to the Tax
Sharing Agreement, the Restricted Companies have agreed to join the affiliated
group headed by NCI as "common parent" (within the meaning of Section 1504 of
the Code) in filing consolidated Federal, and (in certain circumstances) state
and local, income tax returns and have also agreed as to the amounts, if any,
that the Restricted Companies shall be obligated to pay to NCI in respect of
Federal, state and local income taxes (or the amounts that the Restricted
Companies shall be entitled to
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receive as refunds in respect of such taxes). So long as the Restricted
Companies shall be included in consolidated Federal, state and local income tax
returns filed by NCI pursuant to the Tax Sharing Agreement, whenever making
determinations under this Agreement of the amount of such taxes payable during
any period (or the amount of refunds in respect of such taxes receivable during
any period) by the Restricted Companies, the amount of such taxes payable or
receivable shall be deemed to be equal to the amounts payable or receivable, as
the case may be, in respect of such taxes under the Tax Sharing Agreement
without reference to whether NCI and its subsidiaries as an affiliated group
shall in fact pay any amounts in respect of Federal, state and local income
taxes (or receive any amounts in respect of refunds of such taxes) during the
relevant period.
ARTICLE II
The Credits
SECTION 2.01. Commitments.
(a) Tranche A Loans. Subject to the terms and conditions set
forth herein, Motorola agrees to make Tranche A Loans to the Borrower on the
Effective Date in a principal amount equal to the Tranche A Commitment, provided
that on the Effective Date a portion of the Existing Vendor Indebtedness held by
Motorola (before giving effect to the designation provided for in paragraph (b)
of this Section 2.01) up to but not exceeding the Tranche A Commitment shall be
automatically designated as Tranche A Loans hereunder.
(b) Tranche B Loans. Subject to the terms and conditions set
forth herein, Motorola agrees to make Tranche B Loans to the Borrower from time
to time during the Availability Period in an aggregate principal amount that
will not result in the Tranche B Loans exceeding the Tranche B Commitment,
provided that on the Effective Date any remaining balance of the Existing Vendor
Indebtedness held by Motorola (after giving effect to the designation provided
for in paragraph (a) of this Section 2.01) up to but not exceeding the Tranche B
Commitment shall be automatically designated as Tranche B Loans hereunder.
Within the foregoing limits and subject to the terms and conditions set forth
herein, the Borrower may borrow, prepay and reborrow Tranche B Loans.
(c) Tranche C Loans. Subject to the terms and conditions set
forth herein, NTFC Capital agrees to make Tranche C Loans to the Borrower on the
Effective Date in a principal
Vendor Financing Agreement
<PAGE> 31
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amount equal to the Tranche C Commitment, provided that on the Effective Date a
portion of the Existing Vendor Indebtedness held by NTFC Capital up to but not
exceeding the Tranche C Commitment shall be automatically designated as Tranche
C Loans hereunder.
(d) Reallocation of Tranche A Commitment. The parties hereto
contemplate that Motorola and NTFC Capital may, after the Effective Date, wish
to allocate (in one or more steps) up to $60,000,000 of the Tranche A Loans to
the Tranche C Loans (such $60,000,000 to be reduced by the amount of any
assignment or participation pursuant to the last paragraph of Section 10.04(h).
In each such event, Motorola and NTFC Capital shall make such arrangements
between themselves as they shall deem appropriate with respect to the
assignment of the portion of the Tranche A Loans so transferred (advising the
Borrower of such arrangements and the effective date of such transfer),
whereupon the repayment schedules set forth in paragraphs (b) and (c) of
Section 2.08 shall be automatically adjusted (on a ratable basis) to reflect
such transfer as if the respective original amounts of the Tranche A
Commitments had been $110,000,000 (minus the cumulative amount of Loans so
reallocated) and $40,000,000 (plus the cumulative amount of Loans so
reallocated), respectively.
SECTION 2.02. Loans and Borrowings.
(a) The failure of either Vendor to make any Loan required to
be made by it shall not relieve the other Vendor of its obligations hereunder;
provided that the Commitments of the Vendors are several and neither Vendor
shall be responsible for the other Vendor's failure to make Loans as required.
(b) At the time that each Borrowing is made, such Borrowing
shall be in an aggregate amount that is an integral multiple of $500,000 and not
less than $1,000,000; provided that a Borrowing of Loans of any Class may be in
an aggregate amount that is equal to the entire unused balance of the Commitment
of such Class.
SECTION 2.03. Requests for Borrowings. To request a Borrowing,
the Borrower shall notify the respective Vendor of such request by telephone not
later than 11:00 a.m., New York City time, one Business Day before the date of
the proposed Borrowing. Each such telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly by hand delivery or telecopy to such
Vendor of a written Borrowing Request in a form approved by such Vendor and
signed by the Borrower. Each such telephonic and written Borrowing Request
shall specify the following information in compliance with Section 2.02:
Vendor Financing Agreement
<PAGE> 32
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(i) in the case of a Borrowing from Motorola on the
Effective Date, whether such Borrowing is to be a Tranche A Borrowing
or Tranche B Borrowing;
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a
Business Day; and
(iv) the location and number of the Borrower's account
to which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
SECTION 2.04. Intentionally Left Blank. This Section
2.04 has been intentionally left blank.
SECTION 2.05. Funding of Borrowings. Each Vendor shall make
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to an
account of the Borrower at a bank designated by the Borrower in the applicable
Borrowing Request.
SECTION 2.06. Intentionally Left Blank. This Section
2.06 has been intentionally left blank.
SECTION 2.07. Termination and Reduction of
Commitments.
(a) Unless previously terminated, (i) the Tranche A Commitment
shall terminate after the Borrowing of Tranche A Loans on the Effective Date,
(ii) the Tranche B Commitment shall terminate at the close of business on the
Maturity Date and (iii) the Tranche C Commitment shall terminate after the
Borrowing of Tranche C Loans on the Effective Date.
(b) The aggregate amount of the Tranche B Commitment shall be
automatically reduced at the close of business on each Commitment Reduction Date
set forth in column (A) below to the amount (subject to reduction pursuant to
paragraph (c) below) set forth in column (B) below opposite such Commitment
Reduction Date:
Vendor Financing Agreement
<PAGE> 33
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<TABLE>
<CAPTION>
(A) (B)
Tranche B
Commitment Reduction Commitments Reduced
Date Falling on or to the Following
Nearest to: Amounts
----------- -------
<S> <C>
March 31, 2001 $180,375,000
June 30, 2001 $165,750,000
September 30, 2001 $151,125,000
December 31, 2001 $136,500,000
March 31, 2002 $117,000,000
June 30, 2002 $ 97,500,000
September 30, 2002 $ 78,000,000
December 31, 2002 $ 58,500,000
</TABLE>
(c) The Borrower may at any time terminate, or from time to
time reduce, the Commitment of any Class; provided that (i) each reduction of
the Commitment of such Class shall be in an amount that is an integral multiple
of $1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not
terminate or reduce the Commitment of such Class if, after giving effect to any
concurrent prepayment of Loans in accordance with Section 2.09, the outstanding
Loans of such Class would exceed the total Commitment of such Class.
(d) The Borrower shall notify each Vendor of any election to
terminate or reduce a Commitment under paragraph (c) of this Section 2.07 at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Each notice
delivered by the Borrower pursuant to this Section 2.07 shall be irrevocable;
provided that a notice of termination of a Commitment delivered by the Borrower
may state that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Vendors on or prior to the specified effective date) if such condition is
not satisfied. Any termination or reduction of Commitments shall be permanent.
SECTION 2.08. Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay to
each Vendor the then unpaid principal amount of such Vendor's Loans on the
Maturity Date. In addition, if following any Commitment Reduction Date the
aggregate principal amount of the Tranche B Loans shall exceed the Tranche B
Commitments, the Borrower shall pay Tranche B Loans in an aggregate amount equal
to such excess.
Vendor Financing Agreement
<PAGE> 34
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(b) The Borrower hereby unconditionally promises, subject to
adjustment pursuant to Section 2.01(d), to pay to Motorola the principal of the
Tranche A Loans in nine installments payable on the Principal Payment Dates as
follows:
<TABLE>
<CAPTION>
Principal Payment Date
Falling on or Nearest to: Amount of Installment
------------------------- ---------------------
<S> <C>
March 31, 2001 $ 8,250,000
June 30, 2001 $ 8,250,000
September 30, 2001 $ 8,250,000
December 31, 2001 $ 8,250,000
March 31, 2002 $11,000,000
June 30, 2002 $11,000,000
September 30, 2002 $11,000,000
December 31, 2002 $11,000,000
March 31, 2003 $33,000,000
</TABLE>
(c) The Borrower hereby unconditionally promises, subject to
adjustment pursuant to Section 2.01(d), to pay to NTFC Capital the principal of
the Tranche C Loans in nine installments payable on the Principal Payment Dates
as follows:
<TABLE>
<CAPTION>
Principal Payment Date
Falling on or Nearest to: Amount of Installment
------------------------- ---------------------
<S> <C>
March 31, 2001 $ 3,000,000
June 30, 2001 $ 3,000,000
September 30, 2001 $ 3,000,000
December 31, 2001 $ 3,000,000
March 31, 2002 $ 4,000,000
June 30, 2002 $ 4,000,000
September 30, 2002 $ 4,000,000
December 31, 2002 $ 4,000,000
March 31, 2003 $12,000,000
</TABLE>
(d) Each Vendor shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Vendor resulting from each Loan made by such Vendor, including the amounts
of principal and interest payable and paid to such Vendor from time to time
hereunder.
(e) The entries made in the accounts maintained pursuant to
paragraph (d) of this Section 2.08 shall be prima facie evidence of the
existence and amounts of the obligations
Vendor Financing Agreement
<PAGE> 35
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recorded therein; provided that the failure of either Vendor to maintain such
accounts or any error therein shall not in any manner affect the obligation of
the Borrower to repay the Loans in accordance with the terms of this Agreement.
(f) Each Loan made by a Vendor hereunder shall be evidenced by
a promissory note in a form (that shall be prepared by the Borrower, and
executed and delivered to such Vendor) satisfactory to such Vendor.
SECTION 2.09. Prepayment of Loans.
(a) Optional Prepayments. The Borrower shall have the right at
any time and from time to time to prepay any Borrowing in whole or in part,
subject to prior notice in accordance with paragraph (d) of this Section 2.09.
(b) Mandatory Prepayments -- All Loans. The Borrower shall
make prepayments of the Loans hereunder and under the Credit Agreement (and
reduce the Commitments hereunder and under the Credit Agreement) as follows:
(i) Excess Cash Flow. Not later than the date 135 days
after the end of each fiscal year of the Borrower (commencing with
Excess Cash Flow for the fiscal year ending on December 31, 1999), the
Borrower shall prepay the Loans hereunder and under the Credit
Agreement (and provide cover for LC Exposure as specified in clause
(iv) of Section 2.09 of the Credit Agreement), and the Commitments
hereunder and under the Credit Agreement shall be subject to automatic
reduction, in an aggregate amount equal to 50% of Excess Cash Flow for
such fiscal year, such prepayment and reduction to be effected in each
case in the manner and to the extent specified in clause (iv) of this
Section 2.09(b).
(ii) Sale of Assets. Without limiting the obligation of
the Restricted Companies to obtain the consent of the Required Vendors
to any Disposition not otherwise permitted hereunder, the Borrower
agrees, on or prior to the occurrence of any Disposition (herein, the
"Current Disposition"), to deliver to the Vendors a statement certified
by a Financial Officer, in form and detail reasonably satisfactory to
the Vendors, of the estimated amount of the Net Cash Payments of the
Current Disposition that will (on the date of the Current Disposition)
be received in cash and, to the extent that the Net Cash Payments of
the Current Disposition, and of all prior Dispositions as to which a
prepayment has not yet been made under this Section 2.09(b)(ii), shall
exceed $5,000,000, the
Vendor Financing Agreement
<PAGE> 36
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Borrower will prepay the Loans hereunder and under the Credit Agreement
(and provide cover for LC Exposure as specified in clause (iv) of
Section 2.09 of the Credit Agreement), and the Commitments hereunder
and under the Credit Agreement shall be subject to automatic reduction,
as follows:
(w) upon the date of the Current Disposition, in an
aggregate amount equal to 100% of such estimated amount of the
Net Cash Payments of the Current Disposition, to the extent
received in cash on the date of the Current Disposition,
together with 100% of the Net Cash Payments of all such prior
Dispositions; and
(x) thereafter, quarterly, on the date of the
delivery by the Borrower to the Vendors pursuant to Section
6.01(c) of the financial statements for each quarterly fiscal
period or (if earlier) the date 60 days after the end of such
quarterly fiscal period, to the extent the Restricted
Companies shall receive Net Cash Payments during such
quarterly fiscal period in cash under deferred payment
arrangements or Disposition Investments entered into or
received in connection with any Disposition, an amount equal
to (A) 100% of the aggregate amount of such Net Cash Payments
minus (B) any transaction expenses associated with
Dispositions and not previously deducted in the determination
of Net Cash Payments plus (or minus, as the case may be) (C)
any other adjustment received or paid by the Restricted
Companies pursuant to the respective agreements giving rise to
Dispositions and not previously taken into account in the
determination of the Net Cash Payments of Dispositions,
provided that if prior to the date upon which the Borrower
would otherwise be required to make a prepayment under this
clause (x) with respect to any quarterly fiscal period the
aggregate amount of such Net Cash Payments (after giving
effect to the adjustments provided for in this clause (x))
shall exceed $5,000,000, then the Borrower shall within three
Business Days make a prepayment under this clause (x) in an
amount equal to such required prepayment.
Prepayments of Loans (and cover for LC Exposure) and reductions of
Commitments shall be effected in each case in the manner and to the
extent specified in clause (iv) of this Section 2.09(b).
Notwithstanding the foregoing, the Borrower shall not
be required to make a prepayment (or provide cover) pursuant
Vendor Financing Agreement
<PAGE> 37
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to this Section 2.09(b)(ii) with respect to the Net Cash Payments from
any Disposition in the event that the Borrower advises the Vendors at
the time a prepayment is required to be made under the foregoing
clauses (w) or (x) that it intends to reinvest such Net Cash Payments
into replacement assets pursuant to an acquisition permitted under
Section 7.04(a)(vii) or 7.04(a)(viii), so long as:
(y) such Net Cash Payments are either (A) delivered
to the Collateral Agent to be held in the Sale Proceeds
Reinvestment Account pending such reinvestment, in which event
the Collateral Agent need not release such Net Cash Payments
except upon presentation of evidence reasonably satisfactory
to it that such Net Cash Payments are to be so reinvested in
compliance with the provisions of this Agreement or (B)
applied by the Borrower to the prepayment of Revolving Credit
Loans under the Credit Agreement (in which event the Borrower
agrees to advise the Administrative Agent, with a copy to the
Vendors, in writing at the time of such prepayment of
Revolving Credit Loans that such prepayment is being made from
the proceeds of a Disposition and that, as contemplated by the
second paragraph of Section 2.01(a) of the Credit Agreement, a
portion of the Revolving Credit Commitments under the Credit
Agreement equal to the amount of such prepayment gives rise to
a Reserved Commitment Amount that shall be available under the
Credit Agreement only for purposes of making acquisitions
under Section 7.04(a)(vii) or 7.04(a)(viii) or to make
prepayments of Loans under clause (z)(B) below), and
(z) the Net Cash Payments from any Disposition are in
fact so reinvested within twelve months of such Disposition
(it being understood that, in the event Net Cash Payments from
more than one Disposition are delivered to the Collateral
Agent or applied to the prepayment of Revolving Credit Loans
as provided in clause (y) above, such Net Cash Payments shall
be deemed to be released (or, as the case may be, Revolving
Credit Loans under the Credit Agreement utilizing the Reserved
Commitment Amount shall be deemed to be made) in the same
order in which such Dispositions occurred and, accordingly,
(A) any such Net Cash Payments so held for more than twelve
months shall be forthwith applied to the prepayment of Loans
(and cover for LC Exposure) and reductions of Commitments as
provided above and (B) any Reserved Commitment Amount that
remains so unutilized for more
Vendor Financing Agreement
<PAGE> 38
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than twelve months shall, subject to the satisfaction of the
conditions precedent to such borrowing in Section 5.02 of the
Credit Agreement, be utilized through the borrowing by the
Borrower of Revolving Credit Loans the proceeds of which shall
be applied to the prepayment of Loans (and cover for LC
Exposure) and reductions of Commitments as provided in clause
(iv) of this Section 2.09(b)).
As contemplated by Article V of the Restricted Company Guarantee and
Security Agreement, nothing in this Section 2.09(b)(ii) shall be deemed
to obligate the Collateral Agent to release any of such proceeds from
the Sale Proceeds Reinvestment Account to the Restricted Companies for
purposes of reinvestment as aforesaid upon the occurrence and during
the continuance of any Event of Default.
(iii) Change in Control. Upon the occurrence of any
Change in Control, the Borrower shall prepay the Loans hereunder and
under the Credit Agreement in full (and provide cover for LC Exposure
as specified in clause (iv) of Section 2.09 of the Credit Agreement),
and the Commitments hereunder and under the Credit Agreement shall be
automatically terminated.
(iv) Application. Upon each required reduction of
Commitments and prepayment of Loans (and cover for LC Exposure)
pursuant to this Section 2.09(b), the respective Commitments of each
Class hereunder and each "Class" under the Credit Agreement shall be
reduced, and (if the Commitments of such Class or "Class" have
terminated) the respective Loans of each Class or "Class" shall be
prepaid, ratably in accordance with the respective then-outstanding
aggregate amounts of such Commitments or Loans (whichever, as to any
particular Class or "Class", is greater). If after giving effect to any
such reduction of the Commitments of any Class the aggregate principal
amount of the Loans of such Class shall exceed the amount of such
Commitments, the Borrower will prepay the Loans of such Class in an
amount equal to such excess.
(v) Credit Agreement. The Borrower will cause the
Credit Agreement to contain provisions with respect to the prepayment
of Loans, and reduction of Commitments, under the Credit Agreement
identical to the provisions of this Section 2.09(b), with such changes
in references as shall be appropriate in the circumstances.
Vendor Financing Agreement
<PAGE> 39
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(c) Mandatory Prepayments -- Special Circumstances.
(i) Tranche B Loans. Not later than seven days after
the Effective Date, the Borrower shall have prepaid the Tranche B Loans
in full so that the entire amount of the Tranche B Commitment hereunder
is unutilized. Thereafter, the Borrower may again make Borrowings of
Tranche B Loans as provided herein.
(ii) Revolving Credit Loans. In the event that, at any
time, the aggregate amount of cash and cash equivalents of the
Restricted Companies in bank deposit accounts or otherwise not held in
the possession, or under the control, of the Collateral Agent shall
exceed $5,000,000, the Borrower will forthwith deliver an amount of
such cash and cash equivalents equal to such excess to the Collateral
Agent for deposit into the Concentration Account under and as defined
in the Restricted Company Guarantee and Security Agreement.
(d) Notification of Prepayments. The Borrower shall notify the
Vendors by telephone (confirmed by telecopy) of any prepayment hereunder not
later than 11:00 a.m., New York City time, one Business Day before the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of Commitments as contemplated by Section
2.07, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.07. Each partial prepayment
of any Borrowing under paragraph (a) of this Section 2.09 shall be in an amount
that would be permitted in the case of an advance of a Borrowing as provided in
Section 2.02.
(e) Prepayments Accompanied by Interest. Prepayments
shall be accompanied by accrued interest to the extent required
by Section 2.11.
SECTION 2.10. Intentionally Left Blank. This Section
2.10 has been intentionally left blank.
SECTION 2.11. Interest.
(a) The Loans comprising each Borrowing shall bear interest at
a rate per annum equal to the Prime Rate plus the 2%.
(b) Notwithstanding the foregoing, (i) during the
period when any Specified Default shall have occurred and be
Vendor Financing Agreement
<PAGE> 40
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continuing, the principal of each Loan hereunder shall bear interest, after as
well as before judgment, at a rate per annum equal to 2% plus the rate otherwise
applicable to such Loan as provided above (the "Post-Default Rate") and (ii) if
any interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration or
otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate per annum equal to the Post-Default Rate.
(c) Accrued interest on each Loan shall be payable in
arrears on each Quarterly Date; provided that
(i) interest accrued pursuant to paragraph (b) of
this Section 2.11 shall be payable on demand,
(ii) all accrued interest on Loans of any Class
shall be payable upon termination of the Commitment of such
Class,
(iii) in the event that Motorola shall assign or sell a
participation (excluding, however, any assignment to NTFC Capital
contemplated under Section 2.01(d), any assignment or participation
pursuant to the last paragraph of section 10.04(h), and any assignment
or participation made on the basis of full recourse to Motorola), in
any portion of the Tranche A Loans hereunder prior to the first
anniversary of the Effective Date, interest accrued with respect to
the portion of the Tranche A Loans so assigned or sold during the
period commencing on the date of such assignment or sale to and
including such anniversary date shall be paid by adding the amount of
such interest to the principal of the Tranche A Loans on each
Quarterly Date and on such anniversary date, and any interest so added
to the principal of the Tranche A Loans shall bear interest as
provided in this Section 2.11,
(iv) interest accrued with respect to the Tranche B
Loans during the period commencing on the Effective Date to and
including the first anniversary of the Effective Date shall be paid by
adding the amount of such interest to the principal of the Tranche B
Loans on each Quarterly Date and on such anniversary date, and any
interest so added to the principal of the Tranche B Loans shall bear
interest as provided in this Section 2.11, and
(v) in the event that NTFC Capital shall assign or sell
a participation (excluding, however, any assignment or participation
made on the basis of full recourse to NTFC
Vendor Financing Agreement
<PAGE> 41
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Capital) of any portion of the Tranche A Loans (other than the first
$10,000,000 thereof) reallocated to it as Tranche C Loans hereunder
pursuant to Section 2.01(d) prior to the first anniversary of the
Effective Date, interest accrued with respect to the portion of such
reallocated Tranche C Loans so assigned or sold during the period
commencing on the date of such assignment or sale to and including such
anniversary date shall be paid by adding the amount of such interest to
the principal of such reallocated Tranche C Loans on each Quarterly
Date and on such anniversary date, and any interest so added to the
principal of such reallocated Tranche C Loans shall bear interest as
provided in this Section 2.11.
(d) All interest hereunder shall be computed on the basis of a
year of 365 days (or 366 days in a leap year), and in each case shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day).
SECTION 2.12. Intentionally Left Blank. This Section
2.12 has been intentionally left blank.
SECTION 2.13. Intentionally Left Blank. This Section
2.13 has been intentionally left blank.
SECTION 2.14. Intentionally Left Blank. This Section
2.14 has been intentionally left blank.
SECTION 2.15. Taxes.
(a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.15) the respective Vendor receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
Vendor Financing Agreement
<PAGE> 42
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(c) The Borrower shall indemnify each Vendorwithin 10 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on
or attributable to amounts payable under this Section 2.15) paid by such Vendor
(and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto during the period prior to the Borrower making the payment
demanded under this paragraph (c)), whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Vendor shall be conclusive absent
manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Vendor the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to such Vendor.
SECTION 2.16. Payments Generally; Pro Rata Treatment;
Sharing of Set-Offs.
(a) The Borrower shall make each payment required to be made
by it hereunder to each Vendor (whether of principal, interest or fees, or under
Section 2.15, or otherwise) prior to 12:00 noon, New York City time, on the date
when due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
respective Vendor, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to each Vendor pursuant to instructions delivered by such Vendor
to the Borrower from time to time. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All payments
hereunder shall be made in U.S. dollars.
(b) This paragraph (b) has been intentionally left
blank.
(c) This paragraph (c) has been intentionally left
blank.
Vendor Financing Agreement
<PAGE> 43
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(d) If, at any time after the occurrence and during the
continuance of an Event of Default hereunder or under the Credit Agreement,
either Vendor shall, by exercising any right of set-off or counterclaim or
otherwise (including through voluntary prepayment by the Restricted Companies,
or through the exercise of any remedies under, or payments made pursuant to, the
Restricted Company Guarantee and Security Agreement), obtain payment in respect
of any principal of or interest on any of its Loans of any Class resulting in
such Vendor receiving payment of a greater proportion of the aggregate principal
amount of its Loans of such Class and accrued interest thereon than the
proportion of such amounts received by the other Vendor or any Lender, then the
Vendor receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans of the other Vendor and the Lenders to the extent
necessary so that the benefit of such payments shall be shared by both Vendors
and all Lenders ratably in accordance with the aggregate amount of principal of
and accrued interest on their respective Loans (and participations in "LC
Disbursements" under the Credit Agreement); provided that (i) if any such
participations are purchased and all or any portion of the payment giving rise
thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment
obtained by a Vendor as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to
any Credit Party or any subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under applicable
law, that either Vendor or any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Vendor or
Lender were a direct creditor of the Borrower in the amount of such
participation.
ARTICLE III
Guarantee by NCI
Section 3.01. The Guarantee. NCI hereby guarantees to each
Vendor and its successors and assigns the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the principal of
and interest on the Loans made by such Vendor to the Borrower and all other
amounts from time to time owing to the Vendors by the Borrower hereunder or
under any other Loan Document, in each case strictly in accordance with the
terms thereof (such obligations being herein collectively called
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the "Guaranteed Obligations"). NCI hereby further agrees that if the Borrower
shall fail to pay in full when due (whether at stated maturity, by acceleration
or otherwise) any of the Guaranteed Obligations, NCI will promptly pay the same,
without any demand or notice whatsoever, and that in the case of any extension
of time of payment or renewal of any of the Guaranteed Obligations, the same
will be promptly paid in full when due (whether at extended maturity, by
acceleration or otherwise) in accordance with the terms of such extension or
renewal.
Section 3.02. Obligations Unconditional. The obligations of
NCI under Section 3.01 are absolute and unconditional irrespective of the value,
genuineness, validity, regularity or enforceability of this Agreement, the other
Loan Documents or any other agreement or instrument referred to herein or
therein, or any substitution, release or exchange of any other guarantee of or
security for any of the Guaranteed Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 3.02 that the
obligations of NCI hereunder shall be absolute and unconditional under any and
all circumstances. Without limiting the generality of the foregoing, it is
agreed that the occurrence of any one or more of the following shall not alter
or impair the liability of NCI hereunder which shall remain absolute and
unconditional as described above:
(i) at any time or from time to time, without notice to
NCI, the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions
hereof or of the other Loan Documents or any other agreement or
instrument referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right
hereunder or under the other Loan Documents or any other agreement or
instrument referred to herein or therein shall be waived or any other
guarantee of any of the Guaranteed Obligations or any security therefor
shall be released or exchanged in whole or in part or otherwise dealt
with; or
(iv) any lien or security interest granted to, or in
favor of, the Collateral Agent or either Vendor as security
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for any of the Guaranteed Obligations shall fail to be perfected.
NCI hereby expressly waives diligence, presentment, demand of payment, protest
and all notices whatsoever, and any requirement that either Vendor exhaust any
right, power or remedy or proceed against the Borrower hereunder or under the
other Loan Documents or any other agreement or instrument referred to herein or
therein, or against any other Person under any other guarantee of, or security
for, any of the Guaranteed Obligations.
Section 3.03. Reinstatement. The obligations of NCI under this
Article III shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of the Borrower in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, and NCI agrees that it will indemnify each
Vendor on demand for all reasonable costs and expenses (including fees of
counsel) incurred by such Vendor in connection with such rescission or
restoration, including any such costs and expenses incurred in defending against
any claim alleging that such payment constituted a preference, fraudulent
transfer or similar payment under any bankruptcy, insolvency or similar law.
Section 3.04. Subrogation. NCI hereby waives all rights of
subrogation or contribution, whether arising by contract or operation of law
(including, without limitation, any such right arising under the Federal
Bankruptcy Code of 1978, as amended) or otherwise by reason of any payment by it
pursuant to the provisions of this Article III and further agrees with the
Borrower for the benefit of each of its creditors (including, without
limitation, each Vendor) that any such payment by it shall constitute a
contribution of capital by NCI to the Borrower.
Section 3.05. Remedies. NCI agrees that, as between NCI and
the Vendors, the obligations of the Borrower hereunder may be declared to be
forthwith due and payable as provided in Article VIII (and shall be deemed to
have become automatically due and payable in the circumstances provided in
Article VIII) for purposes of Section 3.01 notwithstanding any stay, injunction
or other prohibition preventing such declaration (or such obligations from
becoming automatically due and payable) as against the Borrower and that, in the
event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by the Borrower) shall forthwith become due and payable by NCI for purposes of
Section 3.01.
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Section 3.06. Instrument for the Payment of Money. NCI hereby
acknowledges that the guarantee in this Article III constitutes an instrument
for the payment of money, and consents and agrees that either Vendor, at its
sole option, in the event of a dispute by NCI in the payment of any moneys due
hereunder, shall have the right to bring motion-action under New York CPLR
Section 3213.
Section 3.07. Continuing Guarantee. The guarantee in
this Article III is a continuing guarantee, and shall apply to
all Guaranteed Obligations whenever arising.
ARTICLE IV
Representations and Warranties
NCI and each Restricted Company represents and warrants to the
Vendors, as to itself and each of its subsidiaries, that:
SECTION 4.01. Organization; Powers. NCI is duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Each of the Restricted Companies is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization. Each Credit
Party has all requisite power and authority under their respective
organizational documents to carry on its business as now conducted and, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, is qualified to
do business in, and is in good standing in, every jurisdiction where such
qualification is required.
SECTION 4.02. Authorization; Enforceability. The Transactions
are within the corporate power of each Credit Party and have been duly
authorized by all necessary corporate and, if required, stockholder action on
the part of such Credit Party. This Agreement has been duly executed and
delivered by each Credit Party and constitutes a legal, valid and binding
obligation of such Credit Party, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
SECTION 4.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, (b) will not
violate any applicable law,
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policy or regulation or the charter, by-laws or other organizational documents
of any Credit Party or any order of any Governmental Authority, (c) will not
violate or result in a default under any indenture, agreement or other
instrument binding upon any Credit Party, or any of its assets, or give rise to
a right thereunder to require any payment to be made by any Credit Party, and
(d) except for the Liens created by the Security Documents, will not result in
the creation or imposition of any Lien on any asset of the Credit Parties.
SECTION 4.04. Financial Condition; No Material Adverse
Change.
(a) The Credit Parties have heretofore delivered to the
Vendors the following financial statements:
(i) the audited consolidated balance sheet and
statements of operations, changes in stockholders' equity and cash
flows of NCI and its subsidiaries as of and for the fiscal year ended
December 31, 1995, reported on by Deloitte & Touche LLP, independent
public accountants;
(ii) the unaudited consolidated balance sheet and
statements of changes in stockholders' equity and cash flows of NCI and
its subsidiaries as of and for the six-month period ended June 30,
1996, together with the unaudited consolidated statements of operations
for such period and for the fiscal quarter ended June 30, 1996, in each
case certified by a Financial Officer of NCI;
(iii) pro forma combined balance sheet and statements of
operations, changes in stockholders' equity and cash flows of the
Restricted Companies as of and for the fiscal year ended December 31,
1995, certified by a Financial Officer of the Borrower; and
(iv) pro forma combined balance sheet and statements of
changes in stockholders' equity and cash flows of the Restricted
Companies as of and for the six-month period ended June 30, 1996,
together with the pro forma combined statements of operations for such
period and for the fiscal quarter ended June 30, 1996, in each case
certified by a Financial Officer of NCI.
Such financial statements present fairly, in all material respects, the
consolidated financial position and results of operations and cash flows of NCI
and its subsidiaries, and the pro forma combined financial position and results
of operations and cash flows of the Restricted Companies, as of such dates and
for such periods in accordance with GAAP, subject to year-end
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audit adjustments and the absence of footnotes in the case of thestatements as
at and for the fiscal quarter and six-month period ended June 30, 1996.
(b) Since June 30, 1996, there has been no material adverse
change in the business, assets, operations, prospects or condition, financial or
otherwise, of NCI and its subsidiaries, or of the Restricted Companies, in each
case taken as a whole.
(c) None of the Credit Parties has on the date hereof any
contingent liabilities, liabilities for taxes, unusual forward or long-term
commitments or unrealized or anticipated losses from any unfavorable commitments
in each case that are material, except as referred to or reflected or provided
for in the balance sheets as at June 30, 1996 referred to above, or pursuant to
the Vendor Equipment Agreements.
SECTION 4.05. Properties.
(a) Each of the Credit Parties and their respective
subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) The Restricted Companies have heretofore delivered to the
Collateral Agent a complete and correct list in all material respects, as of
July 31, 1996, of all of the real property interests owned or leased by the
Restricted Companies as of such date, indicating in each case whether the
respective property is owned or leased (and, if leased, the type of the
operations of the Restricted Companies conducted or to be conducted on such
property), the identity of the owner or lessor (to the extent available) and
lessee and the city or market in which the respective property is located.
(c) Each of the Credit Parties and their respective
subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, patents and other intellectual property material to its business,
and the use thereof by the Credit Parties and their respective subsidiaries does
not infringe upon the rights of any other Person, except for any such
infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
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SECTION 4.06. Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before
any arbitrator or Governmental Authority pending against or, to the knowledge of
any of the Credit Parties, threatened against or affecting any of the Credit
Parties or any of their respective subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect (other than the Disclosed Matters) or (ii)
that involve any of the Basic Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, no Credit Party
nor any of their respective subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) has become subject to
any Environmental Liability, (iii) has received notice of any claim with respect
to any Environmental Liability or any inquiry, allegation, notice or other
communication from any Governmental Authority concerning its compliance with any
Environmental Law or (iv) knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change
in the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 4.07. Compliance with Laws and Agreements. Each of the
Credit Parties and their respective subsidiaries is in compliance with all laws,
regulations, policies and orders of any Governmental Authority applicable to it
or its property and all indentures, agreements and other instruments binding
upon it or its property, except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect. No Default has occurred and is continuing.
SECTION 4.08. Investment and Holding Company Status. No Credit
Party nor any of their respective subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940,
as amended, or (b) a "holding company" as defined in, or subject to regulation
under, the Public Utility Holding Company Act of 1935, as amended.
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SECTION 4.09. Taxes. Each of the Credit Parties and their
respective subsidiaries has timely filed or caused to be filed all Tax returns
and reports required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are being
contested in good faith by appropriate proceedings and for which such Restricted
Company has set aside on its books adequate reserves with respect thereto in
accordance with GAAP or (b) to the extent that the failure to do so could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. As of the date hereof, none of
the Restricted Companies has, or within the past six years has contributed to or
been required to contribute to, any "employee benefit pension plan" subject to
Title IV of ERISA.
SECTION 4.11. Disclosure. The Credit Parties have disclosed to
the Vendors all agreements, instruments and corporate or other restrictions to
which any Credit Party is subject, and all other matters known to any Credit
Party, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Credit
Parties to either Vendor in connection with the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not materially misleading; provided
that, with respect to projected financial information, the Credit Parties
represent only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
SECTION 4.12. Material Agreements and Liens.
(a) Part A of Schedule 4.12 is a complete and correct list, as
of the date of this Agreement, of each credit agreement, loan agreement,
indenture, purchase agreement, guarantee, letter of credit or other arrangement
providing for or otherwise relating to any Indebtedness or any extension of
credit (or commitment for any extension of credit) to, or guarantee by, any of
the Credit Parties or any of their respective subsidiaries (other than the
agreements relating to the Existing Vendor Indebtedness) the aggregate principal
or face amount of which equals or exceeds (or may equal or exceed) $5,000,000,
and the
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aggregate principal or face amount outstanding or that may become outstanding
under each such arrangement is correctly described in Part A of said Schedule
4.12.
(b) Part B of Schedule 4.12 hereto is a complete and correct
list, as of the date of this Agreement, of each Lien securing Indebtedness of
any Person the aggregate principal or face amount of which equals or exceeds (or
may equal or exceed) $5,000,000 and covering any property of any of the Credit
Parties or any of their respective subsidiaries (other than the Liens securing
the Existing Vendor Indebtedness), and the aggregate Indebtedness secured (or
that may be secured) by each such Lien and the property covered by each such
Lien is correctly described in Part B of said Schedule 4.12.
SECTION 4.13. Regulatory Matters.
(a) License Information. The Restricted Companies have
heretofore delivered to the Administrative Agent under the Credit Agreement a
list, as of July 31, 1996 and complete and correct in all material respects, of
all SMR Licenses and other FCC Licenses (and all PUC Authorizations material to
the Mobile Communications Business of the Restricted Companies) held by any
Restricted Company as well as all SMR Licenses and other FCC Licenses or PUC
Authorizations for which any of the Restricted Companies is providing management
services, which list contains:
(i) for each such FCC License (including each SMR
License), the call sign, the name of the licensee, the city or other
location, and state, in which the primary site (i.e. the site which
receives co-channel interference protection) is located, and the number
of channels subject to such SMR License; and
(ii) for each such PUC Authorization, the geographic
area covered by such Authorization, the services that may be provided
thereunder, if any.
The FCC Licenses and PUC Authorizations specified in such list
and material to the Mobile Communications Business of the Restricted Companies
are valid and in full force and effect without conditions except for such
conditions as are generally applicable to holders of FCC Licenses and such
Authorizations. No event (including the pendency of any petition to deny,
informal objection, petition to revoke, or other complaint, investigation or
proceeding before the FCC or any PUC) has occurred and is continuing which could
reasonably be expected to (i) result in the imposition of a material forfeiture
or the revocation, termination or adverse modification of any FCC License or PUC
Authorization specified in such list, held by
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a Restricted Company and material to the Mobile Communications Business of the
Restricted Companies or (ii) materially and adversely affect any rights of the
Restricted Companies thereunder that are material to the Mobile Communications
Business of the Restricted Companies.
None of the Restricted Companies has any reason to believe or
has any knowledge that the FCC Licenses and PUC Authorizations specified in such
list and material to the Mobile Communications Business of the Restricted
Companies will not be renewed in the ordinary course. The Restricted Companies
(taking into account the Commitments hereunder and the "Commitments" under the
Credit Agreement and the other financial sources reflected or assumed in the
business plan of NCI set forth in the Information Memorandum) have sufficient
time, materials, equipment, contract rights and other required resources to
complete, in a timely fashion and in full, construction of each SMR System they
currently operate or currently plan to operate in compliance with all applicable
technical standards and construction requirements and deadlines. The current
ownership and operation by each of the Restricted Companies of its Mobile
Communications Business comply with the Communications Act of 1934, as amended,
and all rules, regulations and policies of the FCC, any PUC and of any other
Governmental Authority, except for such non-compliance that could not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(b) Shared Frequency Agreements, Etc. Except for the
agreements set forth in the list delivered pursuant to paragraph (a) of this
Section 4.13, none of the Restricted Companies is, on the date thereof, a party
to (i) any agreement for the shared use of frequencies, (ii) any management,
loading or similar agreements with respect to the FCC Licenses held by the
Restricted Companies, or (iii) any agreement pursuant to which the Restricted
Companies have agreed to share with others any portion of the revenues derived
from any such FCC Licenses, or pursuant to which such FCC Licenses shall be
subject to any right on the part of any other Person to require any Restricted
Companies to sell any such FCC Licenses, which if terminated, amended or
modified, individually or collectively, would have a Material Adverse Effect.
(c) Condition of Systems. All of the material properties,
equipment and systems owned, leased or managed by each Restricted Company are,
and (to the best knowledge of the Restricted Companies) all such material
property, equipment and systems to be acquired or added in connection with any
contemplated system expansion or construction will be, in good repair, working
order and condition and are and will be in
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compliance with all terms and conditions of the FCC Licenses and all standards
or rules imposed by any Governmental Authority (including the FCC or any PUC) or
as imposed under any agreements with telephone companies and customers, except
for any such failure to be in good repair, working order or condition, and any
such non-compliance, that could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
(d) Fees. Each of the Restricted Companies (as to all SMR
Systems owned, leased or managed by any of such entities) has paid all
franchise, license or other fees and charges which have become due pursuant to
any Authorization in respect of its business and has made appropriate provision
as is required by GAAP for any such fees and charges which have accrued.
(e) License Compliance. Except as specifically set forth in
Schedule 4.13 hereto, each of the Restricted Companies (as to all SMR Systems
owned or managed by any of such entities) has secured all material
Authorizations with the FCC, and, if applicable, any PUC and any other
Governmental Authority exercising jurisdiction over the Mobile Communications
Business of the Restricted Companies (or the construction of delivery systems
therefor) required for the conduct of the business and operations of the Mobile
Communications Business as currently conducted. All management agreements
identified in the list delivered pursuant to paragraph (a) above, and all
agreements among the Restricted Companies with respect to the operation of
licenses, are in compliance with all applicable laws as well as the rules,
orders and policies of any Governmental Authority, including the FCC and
applicable PUC's, except for any non-compliance that would not materially and
adversely affect any rights of the Restricted Companies thereunder. The
Restricted Companies have timely filed all required reports, applications,
certificates, and other documents with the FCC and any applicable PUC or other
Governmental Authority with respect to any SMR Systems owned or managed by any
Restricted Company, except where failure to file any such documents could not
result in a Material Adverse Effect.
(f) Coverage. The aggregate population in the geographic
regions covered by the SMR Licenses held by the Restricted Companies as at the
date hereof is at least equal to 250,000,000.
SECTION 4.14. Subsidiaries. Set forth in Schedule 4.14 is a
complete and correct list of all of the subsidiaries of the Credit Parties as of
the date hereof together with, for each such subsidiary, (a) the jurisdiction of
organization of such subsidiary, (b) each Person holding
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ownership interests in such subsidiary and (c) the nature of the ownership
interests held by each such Person and the percentage of ownership of such
subsidiary represented by such ownership interests. Except as disclosed in
Schedule 4.14, (i) each Credit Party and its respective subsidiaries owns, free
and clear of Liens (other than Liens created pursuant to the Security Documents
and, prior to the Effective Date, Liens securing the Existing Vendor
Indebtedness), and has the unencumbered right to vote, all outstanding ownership
interests in each Person shown to be held by it in Schedule 4.14, (y) all of the
issued and outstanding capital stock of each such Person organized as a
corporation is validly issued, fully paid and nonassessable and (z) there are no
outstanding Equity Rights with respect to such Person.
SECTION 4.15. Capitalization of NCI. NCI has heretofore
delivered to each Vendor a complete and correct copy of its Proxy Statement
dated June 7, 1995 pursuant to which the approval of the shareholders of NCI was
solicited, inter alia, with respect to the "Motorola Transaction" therein
referred to and the Securities Purchase Agreement dated as of April 4, 1995
among NCI, the Digital Radio, L.L.C. (the "McCaw Investor") and Craig O. McCaw.
Such Proxy Statement attaches, as Exhibits thereto, true and complete copies of
the Agreement and Plan of Contribution and Merger (including all amendments
thereto) pursuant to which such Motorola Transaction was consummated, and such
Securities Purchase Agreement, and neither of such Agreement and Plan of
Contribution and Merger, nor such Securities Purchase Agreement, has been
subsequently amended, modified or supplemented. In addition, NCI has heretofore
delivered to the Administrative Agent a complete and correct copy of the Stock
Purchase Agreement dated as of September 14, 1992, as amended, pursuant to which
it has granted options to Comcast FCI, Inc. ("Comcast").
As of the date hereof, none of the Equity Rights described in
said Proxy Statement, or granted pursuant to said Stock Purchase Agreement,
pursuant to which Motorola, the McCaw Investor or Comcast are entitled to
acquire shares of NCI capital stock (all of which Equity Rights are described in
Part A of Schedule 4.15) have been amended, modified or supplemented and (ii)
except as set forth in Part B of Schedule 4.15, there are no outstanding
obligations of NCI, any Restricted Company or any of their subsidiaries to
repurchase, redeem, or otherwise acquire any shares of capital stock of NCI or
any Restricted Company, nor are there any outstanding obligations of NCI, any
Restricted Company or any of their subsidiaries to make payments to any Person,
such as "phantom stock" payments, where the amount thereof is calculated with
reference to the fair market value or
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equity value of NCI, any Restricted Company or any of their subsidiaries.
SECTION 4.16. Intentionally Left Blank. This Section
4.16 has been intentionally left blank.
SECTION 4.17. Public Note Indentures. NCI has heretofore
delivered to each Vendor a true and complete copy of each Public Note Indenture
(including all modifications and supplements thereto). The aggregate outstanding
principal amount of Existing Vendor Indebtedness that may be permitted to be
outstanding under the "Motorola Agreements" and "Northern Telecom Agreements" in
accordance with the definitions of such respective terms under the Public Note
Indentures is $260,000,000 and $40,000,000, respectively. The Restricted
Companies constitute all of the "Restricted Subsidiaries" on the date hereof
under and as defined in the Public Note Indentures.
ARTICLE V
Conditions
SECTION 5.01. Effective Date. The obligations of the Vendors
to make Loans hereunder shall not become effective until the date on which each
of the following conditions is satisfied (or waived in accordance with Section
10.02):
(a) Counterparts of Agreement. Each Vendor (or its counsel)
shall have received from each Credit Party either (i) a counterpart of
this Agreement signed on behalf of such Credit Party or (ii) written
evidence satisfactory to such Vendor (which may include telecopy
transmission of a signed signature page of this Agreement) that such
Credit Party has signed a counterpart of this Agreement.
(b) Opinion of Counsel to Credit Parties. Each Vendor (or its
counsel) shall have received a favorable written opinion (addressed to
such Vendor and dated the Effective Date) of Jones, Day, Reavis &
Pogue, counsel to the Credit Parties, covering such matters relating to
the Credit Parties, this Agreement, the other Loan Documents or the
Transactions as the Required Vendors shall request (and each Credit
Party hereby requests such counsel to deliver such opinion). To the
extent deemed appropriate by the Restricted Companies, internal
corporate matters in such opinion (such as due incorporation and the
like) may be rendered in a separate opinion from the General Counsel of
NCI.
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(c) Opinion of Special Communications Counsel. Each Vendor (or
its counsel) shall have received a favorable written opinion (addressed
to such Vendor and dated the Effective Date) of Dow, Lohnes &
Albertson, special communications counsel to the Credit Parties,
covering such matters relating to the Credit Parties, this Agreement,
the other Loan Documents or the Transactions as the Required Vendors
shall request (and each Credit Party hereby requests such counsel to
deliver such opinion).
(d) Intentionally Left Blank. This paragraph (d) has
been intentionally left blank.
(e) Corporate Matters. Each Vendor (or its counsel) shall have
received such documents and certificates as such Vendor or its counsel
may reasonably request relating to the organization, existence and good
standing of each Credit Party, the authorization of the Transactions
and any other legal matters relating to the Credit Parties, this
Agreement, the other Loan Documents or the Transactions, all in form
and substance reasonably satisfactory to such Vendor and its counsel.
(f) Financial Officer Certificate. Each Vendor (or its
counsel) shall have received a certificate, dated the Effective Date
and signed by the President, a Vice President or a Financial Officer of
the Borrower, confirming compliance with the conditions set forth in
paragraphs (a) through (d) of Section 5.02.
(g) Notes. Each Vendor (or its counsel) shall have received
for such Vendor, a duly completed and executed promissory note for such
Vendor with respect to each Class of Loan to be made by such Vendor
hereunder.
(h) Restricted Company Guarantee and Security Agreement. The
Collateral Agent (or "Special Counsel" under the Credit Agreement)
shall have received (i) from each Restricted Company a counterpart of
the Restricted Company Guarantee and Security Agreement signed on
behalf of such Restricted Company and (ii) the stock certificates
identified under the name of such Restricted Company in Annex 1
thereto, accompanied by undated stock powers executed in blank. In
addition, each Restricted Company shall have taken such other action
(including delivering to the Collateral Agent, for filing,
appropriately completed and duly executed copies of Uniform Commercial
Code financing statements) as the Collateral Agent shall have requested
in order to perfect the security interests created
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pursuant to the Restricted Company Guarantee and Security Agreement.
(i) Concentration Account; Lock Boxes. The Collateral Agent
shall have received evidence satisfactory to it that, as contemplated
by Article V of the Restricted Company Guarantee and Security
Agreement, the Restricted Companies shall have implemented arrangements
under which all cash generated by the Restricted Companies in the
ordinary course of their business operations will be deposited directly
into lock box or segregated depository accounts at banks that have
acknowledged the Lien of the Collateral Agent in such cash and that
have agreed to promptly remit such cash to the Concentration Account
under and as defined in the Restricted Company Guarantee and Security
Agreement.
(j) Mortgages. The Collateral Agent shall have received from
each Restricted Company, duly executed collateral lease assignments, in
such form as shall be satisfactory to the Collateral Agent, with
respect to the leasehold interests of such Restricted Company.
(k) Intercreditor and Collateral Agency Agreement. Each Vendor
(or its counsel) shall have received from each Restricted Company and
the Administrative Agent a counterpart of the Intercreditor and
Collateral Agency Agreement signed on behalf of such party.
(l) Credit Agreement. Each Vendor shall have received evidence
satisfactory in form and substance to it that the Credit Agreement has
been duly executed and delivered by the respective parties thereto,
together with evidence that the conditions to effectiveness therein
specified shall have been, or shall on the Effective Date shall be,
satisfied; and such Vendor shall have received copies of the Credit
Agreement certified by a Financial Officer as being true, correct and
complete copies thereof, together with a copy of all documents
delivered in connection with the closings thereunder (which shall
include, in the case of any opinion delivered in connection therewith
not addressed to the Vendors, a reliance letter from the Person
delivering such opinion in favor of such Vendor).
(m) Intentionally Left Blank. This paragraph (m) has
been intentionally left blank.
(n) Intentionally Left Blank. This paragraph (n) has
been intentionally left blank.
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(o) Reorganization. Each Vendor shall have received evidence
satisfactory to it that, on or before the Effective Date, the
Reorganization shall have been completed. In addition, such Vendor (or
its counsel) shall have received copies of any agreements, instruments
and other documents executed and delivered by NCI or the Restricted
Companies in connection with the Reorganization.
(p) License Companies. Each Vendor shall have received
evidence satisfactory to it that applications for the transfer to
License Companies, in accordance with the requirements of Section
7.09(b), of all FCC Licenses and PUC Authorizations held by First Tier
Restricted Companies have been submitted to the FCC or applicable PUC.
Each Vendor shall notify the Borrower of the Effective Date, and such notice
shall be conclusive and binding. Notwithstanding the foregoing, the obligations
of the Vendors to make Loans hereunder shall not become effective unless each of
the foregoing conditions is satisfied (or waived pursuant to Section 10.02) at
or prior to 3:00 p.m., New York City time, on October 31, 1996 (and, in the
event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION 5.02. Each Loan. The obligation of each
Vendor to make a Loan on the occasion of any Borrowing is subject
to the satisfaction of the following conditions:
(a) Representations and Warranties. The representations and
warranties of each Credit Party set forth in this Agreement and the
other Loan Documents shall be true and correct on and as of the date of
such Borrowing both before and after giving effect thereto and to the
use of the proceeds thereof (or, if any such representation or warranty
is expressly stated to have been made as of a specific date, such
representation or warranty shall be true and correct as of such
specific date).
(b) No Defaults. At the time of and immediately after
giving effect to such Borrowing no Default shall have
occurred and be continuing.
(c) Public Note Indenture Compliance. The Borrower shall have
delivered to the respective Vendor a certificate of a Financial Officer
demonstrating that one of the following shall be true: (i) after giving
effect to such Borrowing, the aggregate amount of all outstanding Loans
hereunder, and all "Tranche B Revolving Credit Loans", "Tranche C Term
Loans" and "Tranche D Term Loans under the Credit Agreement (other than
any such Loans or Indebtedness
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the proceeds of which were applied to refinance Existing Vendor
Indebtedness), and any other Indebtedness of NCI and its subsidiaries
that utilizes the exceptions referred to in the definition of
"Permitted Debt Limitation" in Section 1.01, will not exceed the
Permitted Debt Limitation, (ii) the proceeds of such Borrowing will be
applied to refinance Existing Vendor Indebtedness (or Indebtedness
outstanding hereunder the proceeds of which were applied to refinance
Existing Vendor Indebtedness) or (iii) such Borrowing is permitted to
be incurred on such date under Section 1008 of each Public Note
Indenture (other than the January 1994 Indenture) and under Section
10.8 of the January 1994 Indenture.
(d) Tranche B Borrowings. If such Borrowing is of Tranche B
Loans, the aggregate amount of the "Loans" and "LC Exposure" under and
as defined in the Credit Agreement shall be at least equal to 50% of
the sum of (i) the then outstanding "Commitments" under the Credit
Agreement that have not terminated plus (ii) the then outstanding
principal amount of "Loans" thereunder with respect to which the
Commitments have terminated.
(e) Secured Indebtedness to Revenue Ratio. After
giving effect to such Borrowing, the Secured Indebtedness to
Revenue Ratio shall not exceed the applicable amount set
forth in Section 7.08(f).
Each Borrowing Request shall be deemed to constitute a representation and
warranty by the Borrower (both as of the date of such Borrowing Request and as
of the date of the related Borrowing) as to the matters specified in paragraphs
(a), (b) and (e) of this Section 5.02.
ARTICLE VI
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full, each of the Credit Parties covenants and agrees with the
Vendors that:
SECTION 6.01. Financial Statements and Other Information.
NCI and the Borrower will furnish to each Vendor:
(a) within 120 days after the end of each fiscal year, the
audited consolidated statements of operations, changes in stockholders'
equity and cash flows of NCI and its
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subsidiaries for such fiscal year, and the related audited consolidated
balance sheet for NCI and its subsidiaries as of the end of such fiscal
year, setting forth in each case in comparative form the corresponding
figures for the previous fiscal year, all reported on by Deloitte &
Touche LLP, or other independent public accountants of recognized
national standing (without a "going concern" or like qualification or
exception and without any qualification or exception as to the scope of
such audit), to the effect that such audited consolidated financial
statements present fairly in all material respects the financial
condition and results of operations of NCI and its subsidiaries on a
consolidated basis in accordance with GAAP consistently applied;
(b) within 120 days after the end of each fiscal year, the
unaudited combined statements of operations, changes in stockholders'
equity and cash flows of the Restricted Companies for such fiscal year,
and the related unaudited combined balance sheet for the Restricted
Companies as of the end of such fiscal year, setting forth in each case
in comparative form the corresponding figures for the previous fiscal
year, all certified by a Financial Officer of the Borrower as
presenting fairly in all material respects the financial condition and
results of operations of the Restricted Companies on a combined basis
in accordance with GAAP consistently applied, which financial
statements shall be accompanied with a reconciliation, in form and
detail satisfactory to the Required Vendors, to the audited financial
statements for NCI and its subsidiaries for such fiscal year delivered
pursuant to clause (a) above;
(c) within 60 days after the end of each fiscal quarter of
each fiscal year:
(i) the consolidated statements of operations
of NCI and its subsidiaries (and, separately stated, the
combined statements of operations of the Restricted Companies)
for such fiscal quarter and for the then elapsed portion of
the fiscal year,
(ii) the consolidated statements of changes in
stockholders' equity and cash flows of NCI and its
subsidiaries (and, separately stated, the combined statements
of changes in stockholders' equity and cash flows of the
Restricted Companies) for the then elapsed portion of the
fiscal year and
(iii) the related consolidated balance sheet for
NCI and its subsidiaries (and, separately stated, the
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related combined balance sheet for the Restricted Companies)
as at the end of such fiscal quarter,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by a
Financial Officer of NCI or the Borrower (as the case may be) as
presenting fairly, in all material respects, the financial condition
and results of operations of NCI and its subsidiaries on a consolidated
basis (or of the Restricted Companies on a combined basis) in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements
under clause (a), (b) or (c) above, a certificate of a Financial
Officer of each of NCI and the Borrower (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 7.01(d), 7.01(g), 7.03(f),
clauses (iv) through (viii) of 7.04(a), 7.05(c) and 7.08 (which
calculations shall include the corresponding figures for the
most-recently ended fiscal quarter with respect to Capital Expenditures
and Debt Service necessary to demonstrate compliance with said Section
7.08) and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the later of the date of the
financial statements as at December 31, 1995 referred to in Section
4.04 and the date of the last certificate delivered pursuant to this
clause (d) and, if any such change has occurred, specifying the effect
of such change on the financial statements accompanying such
certificate;
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by any Credit Party with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the functions
of said Commission, or with any national securities exchange, or
distributed by NCI to the holders of the Public Notes or to its
shareholders generally;
(f) as soon as available and in any event within 45 days after
the end of each fiscal quarter of each fiscal year of the Borrower, a
report identifying any SMR License or PUC Authorization material to the
Mobile Communications Business of the Restricted Companies that has
been lost,
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surrendered or canceled during such period, and within 10 Business Days
of the receipt by any of the Restricted Companies of notice that any
such SMR License or PUC Authorization has been lost or canceled or is
subject to any action that might reasonably be expected to cause such
loss or cancellation, copies of any such notice accompanied by a report
describing the measures undertaken by the Restricted Companies to
prevent such loss or cancellation (and the anticipated impact, if any,
that such loss or cancellation will have upon the Mobile Communications
Business of the Restricted Companies);
(g) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of any Credit Party, or compliance with the terms of this
Agreement, as either Vendor may reasonably request (including any
information delivered by any Restricted Company to either Agent or any
Lender under the Credit Agreement).
SECTION 6.02. Notices of Material Events. NCI and the
Borrower will furnish to each Vendor prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting any Credit Party that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Restricted Companies in an
aggregate amount exceeding $10,000,000; and
(d) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section 6.02 shall be accompanied by a
statement of a Financial Officer or other executive officer of NCI or the
Borrower, as the case may be, setting forth the details of the event or
development requiring such notice and any action taken or proposed to be taken
with respect thereto.
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SECTION 6.03. Existence; Conduct of Business. Each of the
Credit Parties will do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal existence and the rights,
licenses, permits, privileges and franchises material to the conduct of its
business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 7.03. In that
connection, each of the Restricted Companies shall take any and all necessary
and appropriate action to maintain all of the SMR Licenses and other FCC
Licenses and PUC Authorizations material to the Mobile Communications Business
of the Restricted Companies in full force and effect without adverse
modification, shall construct and operate each SMR System and other ancillary
system in compliance with applicable FCC Licenses and PUC Authorizations, and
shall otherwise comply in all material respects with the terms of all FCC
Licenses and PUC Authorizations as well as applicable laws, rules, policies,
decisions and orders of the FCC, any applicable PUC and any other Governmental
Authority, including new rules issued by the FCC with respect to RF Emissions.
Without limiting the generality of the foregoing, each of the
Restricted Companies will:
(i) do all things necessary to maintain its corporate
existence separate and apart from NCI and the Unrestricted Companies
and any division thereof, including holding regular meetings of its
shareholders and Board of Directors and maintaining appropriate
corporate books and records (including current minute books);
(ii) not suffer any limitation on the authority of its
own officers and directors to conduct its business and affairs in
accordance with their independent business judgment, or authorize or
suffer any Person other than its own officers to conduct its business
and affairs in accordance with their independent business judgment, or
authorize or suffer any Person other than its own officers and
directors to act on its behalf with respect to matters (other than
matters customarily delegated to others under power of attorney) for
which a corporation's own officers and directors would customarily be
responsible;
(iii) maintain the operations of the Restricted Companies
separate and apart from the operations of NCI and the Unrestricted
Companies, including (A) following customary corporate formalities, (B)
identifying separately all of its assets from those of NCI and the
Unrestricted Companies, (C) when dealing with creditors of the
Restricted Companies, or supplying financial information to creditors
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the Restricted Companies, identifying the respective Restricted
Company as a separate legal entity, (D) if NCI shall issue account
statements on behalf of the Restricted Companies to customers of the
Restricted Companies at any time after the date 120 days following the
Effective Date, identifying that such statements are being delivered
"for the respective operating companies" (or words of similar import)
rendering the services covered by such statements and (E) accounting
for and managing all of its liabilities separately from those of NCI
and the Unrestricted Companies, including payment by it of all payroll
and other administrative expenses and taxes (except as contemplated by
the Overhead Services Agreement and the Tax Sharing Agreement) from its
own assets; and
(iv) not commingle its funds with those of NCI or any
Unrestricted Company or use its funds for other than in the business
conducted by the Restricted Companies.
SECTION 6.04. Payment of Obligations. Each of the Credit
Parties will pay its obligations, including Tax liabilities, that, if not paid,
could result in a Material Adverse Effect before the same shall become
delinquent or in default, except where (a) the validity or amount thereof is
being contested in good faith by appropriate proceedings, (b) such Credit Party
has set aside on its books adequate reserves with respect thereto in accordance
with GAAP and (c) the failure to make payment pending such contest could not
reasonably be expected to result in a Material Adverse Effect.
SECTION 6.05. Maintenance of Properties; Insurance. Each of
the Credit Parties will (a) keep and maintain all property material to the
conduct of its business in good working order and condition, ordinary wear and
tear excepted, and (b) maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customarily
maintained by companies engaged in the same or similar businesses operating in
the same or similar locations.
SECTION 6.06. Books and Records; Inspection Rights. Each of
the Credit Parties will keep proper books of record and account in which full,
true and correct entries are made of all dealings and transactions in relation
to its business and activities. Each of the Credit Parties will permit any
representatives designated by either Vendor, upon reasonable prior notice, to
visit and inspect its properties, to examine and make extracts from its books
and records, and to discuss its affairs, finances and condition with its
officers and independent accountants, all at such reasonable times and as often
as reasonably requested.
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SECTION 6.07. Fiscal Year. The Credit Parties will not change
the last day of their fiscal year from December 31 of each year, or the last
days of the first three fiscal quarters in each of their fiscal years from March
31, June 30 and September 30 of each year, respectively.
SECTION 6.08. Compliance with Laws. Each of the Credit Parties
will comply with all laws, rules, regulations and orders of any Governmental
Authority applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 6.09. Intentionally Left Blank. This Section
6.09 has been intentionally left blank.
SECTION 6.10. Hedging Agreements. Within 90 days after the
Effective Date, the Borrower will enter into and, thereafter for a period of at
least three years measured from the Effective Date, maintain in full force and
effect one or more Hedging Agreements with one or more of the Lenders (and/or
with a bank or other financial institution having capital, surplus and undivided
profits of at least $500,000,000), that satisfy the following requirements:
(a) the notional principal amount of such Hedging
Agreement(s), together with the aggregate principal amount of
Indebtedness of NCI and the Restricted Companies bearing interest at a
fixed rate, shall be at least equal to 50% of the sum of the
Commitments hereunder and all other Indebtedness of NCI and the
Restricted Companies outstanding on the Effective Date; and
(b) each such Hedging Agreement shall enable the Restricted
Companies, as at any date, to protect themselves against three-month
London interbank offered rate fluctuations at rates, and in a manner,
reasonably satisfactory to the "Required Lenders" under the Credit
Agreement.
SECTION 6.11. Certain Obligations Respecting
Subsidiaries and Collateral Security.
(a) Guarantors. In the event that any Restricted Company shall
form or acquire any new subsidiary after the date hereof (and in the event that
NCI shall form or acquire any new subsidiary after the date hereof constituting
a "Restricted Subsidiary" under and as defined in the Public Note
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Indentures or shall designate an existing Unrestricted Subsidiary as a
"Restricted Subsidiary" under and as defined in the Public Note Indentures),
such Credit Party will, within five Business Days of such formation or
acquisition, cause such new subsidiary (or such "Restricted Subsidiary"):
(i) to execute and deliver to the Collateral Agent
a Joinder Agreement (and thereby become a party to this Agreement, as a
"Restricted Company" hereunder, and the Restricted Company Guarantee
and Security Agreement and Intercreditor and Collateral Agency
Agreement, as a "Guarantor" thereunder) and to pledge and grant a
security interest in its property pursuant to the Restricted Company
Guarantee and Security Agreement to the Collateral Agent for the
benefit of the Vendors and the Lenders;
(ii) to take such action (including delivering such
shares of stock and executing and delivering such Uniform Commercial
Code financing statements) as shall be necessary to create and perfect
valid and enforceable first priority Liens consistent with the
provisions of the Security Documents, on substantially all of the
shares of stock and property of such new subsidiary (or such
"Restricted Subsidiary") under the Restricted Company Guarantee and
Security Agreement; and
(iii) to deliver such proof of corporate action,
incumbency of officers and other documents (including, opinions of
counsel, but only in the case of any such subsidiary, or group of
subsidiaries, that in the aggregate have assets with a fair market
value exceeding $10,000,000 and then only to the extent requested by
either Vendor) as is consistent with those delivered by each Restricted
Company pursuant to Section 5.01 upon the Effective Date or as either
Vendor or the Collateral Agent shall have requested.
Notwithstanding the foregoing, no subsidiary that is an "Unrestricted
Subsidiary" under and as defined in the Public Note Indentures shall be
designated as a "Restricted Subsidiary" under and as defined in the Public Note
Indentures unless immediately prior thereto and after giving effect thereto, no
Default shall have occurred and be continuing.
(b) Ownership of Subsidiaries. Each Restricted Company will
take such action from time to time as shall be necessary to ensure that the
percentage of the equity capital of any class or character owned by it in any
subsidiary on the date hereof (or, in the case of any newly formed or newly
acquired subsidiary, on the date of formation or acquisition) is not at any time
decreased, other than by reason of transfers to another Restricted Company. In
the event that any additional shares of
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stock shall be issued by anysubsidiary of any Restricted Company, the respective
Restricted Company shall forthwith deliver to the Collateral Agent pursuant to
the Restricted Company Guarantee and Security Agreement the certificates
evidencing such shares of stock, accompanied by undated stock powers executed in
blank and to take such other action as the Collateral Agent shall request to
perfect the security interest created therein pursuant to the Restricted Company
Guarantee and Security Agreement.
(c) Regulatory Matters. If after the date hereof there shall
be a change in law, or the rules or regulations of the FCC or applicable to any
PUC Authorization, the effect of which is to permit the granting of a security
interest in the FCC Licenses or such PUC Authorization, the Restricted Companies
will, within five Business Days after request therefor by the Collateral Agent
(or the Required Vendors through the Collateral Agent) execute and deliver all
such instruments and documents, and take such other actions, as shall be
necessary or desirable, or that the Collateral Agent (or the Required Vendors)
may reasonably request, in order to create and perfect (or to confirm the
creation and perfection of) a security interest in the FCC Licenses or such PUC
Authorization.
(d) Real Property Interests. Within 120 days after the end of
each fiscal year of the Borrower, the Restricted Companies will deliver to the
Collateral Agent a revised list, as of the last day of such fiscal year, of the
information heretofore delivered pursuant to Section 4.05(b), setting forth all
of the real property interests owned or leased by the Restricted Companies as at
such date, such list to be in the same form and detail, and otherwise to be
reasonably satisfactory, to the Collateral Agent. In addition, within 60 days
after the end of each fiscal quarter of each fiscal year of the Borrower, the
Restricted Companies will deliver to the Collateral Agent a supplement, as of
the last day of such fiscal quarter, with respect to the information heretofore
delivered pursuant to Section 4.05(b), setting forth any additional real
property interests owned or leased by the Restricted Companies since the date of
the most recent list or supplement, as the case may be, delivered pursuant to
Section 4.05(b) or this paragraph (d), such list to be in the same form and
detail, and otherwise to be reasonably satisfactory, to the Collateral Agent.
(e) License Information. Within 120 days after the end of each
fiscal year of the Borrower, the Restricted Companies will deliver to the
Administrative Agent (and, upon request by a Vendor, to such Vendor) under the
Credit Agreement a revised list, as of the last day of such fiscal year, of the
information heretofore delivered pursuant to Section 4.13(a), setting forth
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all of the SMR Licenses and other FCC Licenses or PUC Authorizations held or
managed by any Restricted Company as at such date, such list to be in the same
form and detail, and otherwise to be reasonably satisfactory, to the
Administrative Agent. In addition, within 60 days after the end of each fiscal
quarter of each fiscal year of the Borrower, the Restricted Companies will
deliver to the Administrative Agent under the Credit Agreement a supplement, as
of the last day of such fiscal quarter, with respect to the information
heretofore delivered pursuant to Section 4.13(a), setting forth any additional
SMR Licenses and other FCC Licenses or PUC Authorizations held or managed by any
Restricted Company since the date of the most recent list or supplement, as the
case may be, delivered pursuant to Section 4.13(a) or this paragraph (e), such
list to be in the same form and detail, and otherwise to be reasonably
satisfactory, to the Administrative Agent.
SECTION 6.12. Planned Option Issuances. NCI will, immediately
upon receipt thereof, contribute to one or more of the Restricted Companies, as
additional equity capital in respect of the common stock of the Restricted
Companies, any proceeds received by NCI after the date hereof from Planned
Option Issuances. In addition, NCI will from time to time make such
contributions of capital to the Restricted Companies as shall be necessary so
that the aggregate amount of Contributed Capital (i) as at December 31, 1997
shall be at least equal to $550,000,000 (ii) as at December 31, 1999 shall at
least equal to $1,100,000,000.
ARTICLE VII
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full, the Credit Parties covenant and agree with the Vendors that:
SECTION 7.01. Indebtedness. No Credit Party will
create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness created hereunder;
(b) Indebtedness of the Borrower to the Lenders under
the Credit Agreement in an aggregate principal amount not
exceeding $1,655,000,000 at any time;
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(c) Indebtedness of the Credit Parties existing on the
date hereof and set forth in Schedule 7.01 and,
(i) in the case of the Public Notes,
extensions, renewals and refinancings thereof, so long as (x)
any such extension, renewal and refinancing does not increase
the outstanding stated principal amount of the Public Notes
being extended, renewed or refinanced, (y) the maturity date
of such extension, renewal or refinancing is later than the
maturity date of the Public Notes being extended, renewed or
refinanced and (z) the terms and conditions of such extension,
renewal or refinancing (other than in respect of interest,
which shall not be restricted), are no less favorable to NCI,
the Restricted Companies, the Vendors, the Lenders, and the
Agents than the terms and conditions of the January 1994
Indenture and the Public Notes issued thereunder;
(ii) in the case of any such Indebtedness of
the Restricted Companies, extensions, renewals and
refinancings thereof, so long as (w) such extension, renewal
and refinancing does not increase the outstanding principal
amount of the Indebtedness being extended, renewed or
refinanced, (x) the Average Life to Maturity of the
Indebtedness so extended, renewed or refinanced shall not be
shorter than the Average Life to Maturity of the Indebtedness
being extended, renewed or refinanced, (y) at the time of such
extension, renewal or refinancing, and after giving effect
thereto, no Default shall have occurred and be continuing and
(z) the terms and conditions of such Indebtedness as so
extended, renewed or refinanced (other than in respect of
interest, which shall not be restricted) are no less favorable
to the Restricted Companies, the Vendors, the Lenders and the
Agents than the terms and conditions of this Agreement and the
other Loan Documents;
(d) additional Indebtedness incurred by NCI after the date
hereof, provided that (i) the sum of (x) the aggregate principal amount
of any such Indebtedness issued at par plus (y) the net proceeds of any
such Indebtedness issued at less than par, shall not exceed
$750,000,000, (ii) no scheduled payments, prepayments, redemptions or
sinking fund or like payments in respect of such Indebtedness shall be
required prior to September 30, 2003, (iii) such Indebtedness shall
provide that interest payable in respect thereof shall be capitalized
prior to the fifth anniversary of the date of incurrence of such
Indebtedness and (iv) the terms and
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conditions of such Indebtedness (other than in respect of interest,
which shall not be restricted) are no less favorable to NCI, the
Restricted Companies, the Vendors, the Lenders and the Agents than the
terms and conditions of the January 1994 Indenture and the Public Notes
issued thereunder;
(e) Indebtedness of any Restricted Company to any
other Restricted Company;
(f) "Tranche E Loans" under and as defined in Section 7.01(f)
of the Credit Agreement in an aggregate principal amount not exceeding
$250,000,000 arising pursuant to an amendment to the Credit Agreement
consented to by "the Required Lenders" thereunder as provided in said
Section 7.01(f), provided that to the extent the percentage of the
Lenders that shall have so consented shall not be sufficient alone to
constitute the "Required Secured Parties" (as defined in the
Restricted Company Guarantee and Security Agreement), then Vendors
holding Loans hereunder in a percentage at least equal to the amount
necessary for such percentage at least equal to the amount necessary
for such "Required Secured Parties" to have so consented shall have
first consented to the making of such "Tranche E Loans"; and
(g) other Indebtedness of the Restricted Companies in an
aggregate principal amount not exceeding $75,000,000 at any time
outstanding (or such greater amount to which the Required Vendors shall
have consented).
SECTION 7.02. Liens. NCI will not create, incur, assume or
permit to exist any Lien on any of its assets now owned or hereafter acquired by
NCI to secure Indebtedness (the "Relevant Indebtedness") without making
effective provision for securing the Indebtedness of NCI hereunder and under the
Credit Agreement (and, if NCI shall so determine, any other Indebtedness of NCI
which is not subordinated in right of payment to the Indebtedness hereunder)
equally and ratably with the Relevant Indebtedness as to such assets for so long
as the Relevant Indebtedness shall be so secured.
No Restricted Company will create, incur, assume or permit to
exist any Lien on any of its assets except:
(a) Liens created by the Security Documents securing the
obligations of the Restricted Companies hereunder, under the Credit
Agreement and under the Security Documents, in each case subject to the
provisions of the Intercreditor Agreement;
(b) Permitted Encumbrances;
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(c) any Lien on any property or asset of any Restricted
Company existing on the date hereof and set forth in Schedule 4.12;
provided that (i) such Lien shall not apply to any other property or
asset of any Restricted Company and (ii) such Lien shall secure only
those obligations that it secures on the date hereof (and extensions,
renewals and refinancings thereof that comply with the requirements of
Section 7.01(c));
(d) Liens securing judgments for the payment of money in an
amount not resulting (whether immediately or with the passage of time)
in an Event of Default under clause (k) of Article VIII;
(e) any Lien existing on any property or asset prior to the
acquisition thereof by a Restricted Company or existing on any property
or asset of any Person that becomes a subsidiary of a Restricted
Company after the date hereof prior to the time such Person becomes
such a subsidiary; provided that (i) such Lien is not created in
contemplation of or in connection with such acquisition or such Person
becoming a subsidiary, as the case may be, (ii) such Lien shall not
apply to any other property or assets of any Restricted Company and
(iii) such Lien shall secure only Indebtedness in existence at the time
of such acquisition, and that is permitted under Section 7.01(g), and
no other Indebtedness or obligations; and
(f) Liens on fixed or capital assets acquired, constructed or
improved by the Restricted Companies; provided that (i) such Liens
secure Indebtedness permitted under Section 7.01(g), (ii) such Liens
and the Indebtedness secured thereby are incurred prior to or within 90
days after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby does not exceed the
cost of acquiring, constructing or improving such fixed or capital
assets and (iv) such Liens shall not apply to any other property or
assets of the Restricted Companies.
SECTION 7.03. Fundamental Changes. NCI shall not sell,
transfer, lease or otherwise dispose of any shares of stock of any of the
Restricted Companies owned by it. In addition, NCI shall not merge or
consolidate with any other Person unless (i) at the time thereof, and after
giving effect thereto, no Default shall have occurred and be continuing, (ii)
either (x) NCI shall be the continuing or surviving entity or (y) the continuing
or surviving entity shall have assumed all of the obligations of NCI hereunder
pursuant to an instrument in form and substance satisfactory to each Vendor and
shall have delivered such proof
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of corporate action, incumbency of officers, opinions of counsel and other
documents as is consistent with those delivered by NCI pursuant to Section 5.01
upon the Effective Date or as either Vendor shall have requested and (iii) the
net worth (determined on a consolidated basis in accordance with GAAP) of the
continuing or surviving entity immediately after giving effect thereto shall be
greater than or equal to the net worth (so determined) of NCI immediately prior
to giving effect thereto.
No Restricted Company will merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
to the extent that any such merger or consolidation would effect a transfer of
cash or other property constituting Collateral (whether or not such cash or
other property is in the possession, or under the control, of the Collateral
Agent), or sell, transfer, lease or otherwise dispose of (in one transaction or
in a series of transactions) any cash or other property (including the stock of
any of its subsidiaries), whether now owned or hereafter acquired, constituting
Collateral (whether or not such cash or other property is in the possession, or
under the control, of the Collateral Agent), except that:
(a) any Restricted Company (other than a License Company) may
merge into the Borrower in a transaction in which the Borrower is the
surviving corporation;
(b) any Restricted Company may merge into any other Restricted
Company, provided that no such merger may involve a License Company,
unless all parties to such merger are License Companies and immediately
after giving effect thereto no Default shall have occurred and be
continuing;
(c) any Restricted Company may permit any other Person to
merge into or consolidate with such Restricted Company to the extent
permitted by Section 7.04(a)(viii);
(d) any Restricted Company other than the Borrower may sell,
transfer, lease or otherwise dispose of its assets to another
Restricted Company, provided that no such transaction may involve a
disposition of assets of any License Company unless the acquiror of
such assets is a License Company and immediately after giving effect
thereto no Default shall have occurred and be continuing;
(e) any Restricted Company may sell, transfer, lease or
otherwise dispose of its assets to any Person on an arms-length basis
in the ordinary course of business;
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(f) any Restricted Company may sell any of its assets for
consideration in an amount not less than the fair market value of such
assets, provided that (A) at least 85% of such consideration is in the
form of cash, (B) the Net Cash Payments of such sale are applied to
prepay the Loans and reduce the Commitments hereunder and under the
Credit Agreement to the extent required by Section 2.09(b)(ii), (C) at
the time of such sale and immediately after giving effect thereto no
Default shall have occurred and be continuing and (D) the aggregate
fair market value of all such assets sold by the Restricted Companies
after the Effective Date shall not exceed $250,000,000;
(g) the Restricted Companies may dispose of assets
relating to any Mobile Communications Business (or the capital stock of
any Restricted Company that owns such assets), provided that:
(i) both immediately prior to such disposition
and, after giving effect thereto, no Default shall have
occurred and be continuing; and
(ii) such disposition is an exchange, with
another Person, not an Affiliate of such Restricted Company,
of such assets for assets of like kind owned by such Person
(or the capital stock, or other equity ownership interest, of
such Person) comprising a Mobile Communications Business, as
the case may be, of equal or greater value, as determined in
good faith by the Board of Directors of such Restricted
Company, provided that (x) the acquisition of assets of such
Person pursuant to such exchange (excluding acquisitions of
FCC Licenses in exchange for other FCC Licenses for the
purpose of enabling the Restricted Companies to create
contiguous blocks of spectrum covered by the SMR Licenses of
the Restricted Companies) shall comply with the provisions of
one of Section 7.04(a)(vii) or 7.04(a)(viii) and be treated as
an acquisition covered by said Sections and (y) the Borrower
shall have furnished to the Vendors, promptly following
request therefor, copies of such information or documents
relating to such disposition as either Vendor shall have
reasonably requested.
SECTION 7.04. Investments, Loans, Advances, Guarantees
and Acquisitions; Hedging Agreements.
(a) No Restricted Company will purchase, hold or acquire any
capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to
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acquire any of the foregoing) of, make or permit to exist any loans or advances
to, or make or permit to exist any investment or any other interest in, any
other Person, or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person constituting a business unit, if
the effect of any such transaction would be to transfer any cash or other
property constituting Collateral (whether or not such cash or other property is
in the possession, or under the control, of the Collateral Agent) from any
Restricted Company to any other Person, except:
(i) Permitted Investments, and Disposition Investments
received in connection with any Disposition permitted under Section
7.03(f) or any Disposition to which the Vendors shall have consented in
accordance with Section 10.02, so long as each such Disposition
Investment shall have been delivered to the Collateral Agent to be held
as collateral security by the Collateral Agent pursuant to the
Restricted Company Guarantee and Security Agreement;
(ii) investments by Restricted Companies in the
capital stock of other Restricted Companies;
(iii) loans or advances made by any Restricted
Company to any other Restricted Company;
(iv) investments in Affiliates (excluding Unrestricted
Companies, as to which the provisions of clause (v) below shall apply)
in an aggregate amount as to all Restricted Companies at any one time
outstanding not exceeding $5,000,000, so long as both immediately prior
to each such investment and after giving effect thereto, no Default
shall have occurred and be continuing;
(v) investments in Unrestricted Companies in an
aggregate amount for all Restricted Companies at any one time
outstanding not exceeding the sum of (A) $250,000,000 plus (B) the net
aggregate amount of equity capital received after the date hereof by
the Restricted Companies in respect of shares of common stock from the
proceeds of Qualifying Debt or Equity Issuances by NCI (other than from
the proceeds of Planned Option Issuances), so long as both immediately
prior to each such investment and after giving effect thereto, no
Default shall have occurred and be continuing;
(vi) acquisitions of SMR Licenses in the
currently planned auction of 800 Mhz spectrum by the FCC, so long as:
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(A) following consummation of each such acquisition,
(x) the Restricted Companies shall have complied with the
requirements of Section 7.09(b) with respect to the SMR
Licenses acquired in such acquisition and (y) all
Authorizations required by the FCC in connection with such
acquisition shall have been duly granted pursuant to a Final
Order and (if the fair market value of the SMR Licenses so
acquired shall exceed $10,000,000 and either Vendor shall have
requested the same) the Vendors shall have received an opinion
of counsel with respect to such acquisition that is
satisfactory in form and substance to the Required Vendors;
(B) the Borrower shall have delivered to the
Administrative Agent a supplement to Schedule 4.13
setting forth a list of the respective SMR Licenses
acquired in connection with such acquisition; and
(C) both immediately prior to each such acquisition
and after giving effect thereto, no Default shall have
occurred and be continuing;
(vii) acquisitions of FCC Licenses in the 800 Mhz or 900
MHz band (other than pursuant to the auction referred to in clause (vi)
above) so long as:
(A) the aggregate Purchase Price for all such
acquisitions consummated after the date hereof (excluding any
portion thereof that shall have been paid through the issuance
of equity securities of NCI) shall not exceed $75,000,000;
(B) each such acquisition is for the purpose of
enabling the Restricted Companies to create contiguous blocks
of spectrum covered by the SMR Licenses of the Restricted
Companies;
(C) following consummation of each such acquisition,
(x) the Restricted Companies shall have complied with the
requirements of Section 7.09(b) with respect to the FCC
Licenses acquired in such acquisition and (y) all
Authorizations required by the FCC in connection with such
acquisition shall have been duly granted pursuant to a Final
Order and (if the fair market value of the assets so acquired
shall exceed $10,000,000 and either Vendor shall have
requested the same) the Vendors shall have received an opinion
of counsel with respect to such acquisition that is
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satisfactory in form and substance to the Required Vendors;
(D) the Borrower shall have delivered to the
Administrative Agent a supplement to Schedule 4.13 setting
forth a list of the respective FCC Licenses acquired in
connection with such acquisition; and
(E) both immediately prior to each such investment
and after giving effect thereto, no Default shall have
occurred and be continuing;
(viii) acquisitions of any Mobile Communications Business
and the related assets of any other Person (or, if for the purpose of
enabling the Restricted Companies to create contiguous blocks of
spectrum covered by the SMR Licenses of the Restricted Companies,
acquisitions of cellular telephone and other businesses), whether by
way of purchase of assets or stock, by merger or consolidation or
otherwise, so long as:
(A) the aggregate Purchase Price for all such
acquisitions consummated after the date hereof (excluding any
portion thereof that shall have been paid through the issuance
of equity securities of NCI) shall not exceed $200,000,000;
(B) any such acquisition (if by purchase of assets,
merger or consolidation) shall be effected in such manner so
that the acquired business, and the related assets, are owned
by a Restricted Company (which may include a new Wholly Owned
Subsidiary that becomes a Restricted Company pursuant to
Section 6.11(a)) and, if effected by merger or consolidation
involving the Borrower, the Borrower shall be the continuing
or surviving entity;
(C) any such acquisition (if by purchase of stock)
shall be effected in such manner so that the acquired entity
becomes a Wholly Owned Subsidiary that becomes a Restricted
Company pursuant to Section 6.11;
(D) if the fair market value of the assets to be so
acquired shall exceed $10,000,000, the Restricted Companies
shall deliver to the Vendors (x) no later than five Business
Days prior to the consummation of each such acquisition (or
such earlier date as shall be five Business Days after the
execution and delivery thereof), executed counterparts of the
respective agreements or instruments pursuant to which such
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acquisition is to be consummated (including any related
management, non-compete, employment, option or other material
agreements), any schedules to such agreements or instruments
and all other material ancillary documents to be executed or
delivered in connection therewith and (y) promptly following
request therefor, copies of such other information or
documents relating to each such acquisition as the Required
Vendors shall have reasonably requested;
(E) following consummation of each such acquisition,
(x) the Restricted Companies shall have complied with the
requirements of Section 7.09(b) with respect to any FCC
Licenses or PUC Authorizations acquired in such acquisition
and (y) all Authorizations required by the FCC in connection
with such acquisition shall have been duly granted pursuant to
a Final Order and (if the fair market value of the assets so
acquired shall exceed $10,000,000 and either Vendor shall
have requested the same) the Vendors shall have received an
opinion of counsel with respect to such acquisition that is
satisfactory in form and substance to the Required Vendors;
(F) to the extent applicable, the Restricted
Companies shall have complied with the provisions of Section
6.11, including delivery to the Collateral Agent of (x) the
certificates evidencing any capital stock of a Restricted
Company, accompanied by undated stock powers executed in blank
and (y) the agreements, instruments, opinions of counsel and
other documents required under said Section 6.11 to be
delivered;
(G) the Borrower shall have delivered to the
Administrative Agent a supplement to Schedule 4.13 setting
forth a list of the respective SMR Licenses, other FCC
Licenses and PUC Authorizations acquired in connection with
such acquisition; and
(H) both immediately prior to each such acquisition
and after giving effect thereto, no Default shall have
occurred and be continuing; and
(ix) the acquisition of FCC Licenses pursuant to an
exchange transaction permitted under Section 7.03(g) for the purpose of
enabling the Restricted Companies to create contiguous blocks of
spectrum covered by the SMR Licenses of the Restricted Companies.
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(b) No Restricted Company will Guarantee any obligations of
any other Person, except Guarantees constituting Indebtedness permitted by
Section 7.01 and Guarantees by any Restricted Company of any other Restricted
Company.
(c) No Restricted Company will enter into any Hedging
Agreement, other than Hedging Agreements entered into in the ordinary course of
business to hedge or mitigate risks to which the Restricted Companies are
exposed in the conduct of their business or the management of their liabilities
(including, in the case of the Borrower, the Hedging Agreements required by
Section 6.10).
SECTION 7.05. Restricted Payments. No Restricted
Company will declare or make, or agree to pay or make, directly or indirectly,
any Restricted Payment consisting of any cash or other property constituting
Collateral (whether or not such cash or other property is in the possession, or
under the control, of the Collateral Agent), except:
(a) any Restricted Company may make Restricted Payments to the
extent necessary to make required payments under the Overhead Services
Agreement, and required tax distributions under the Tax Sharing
Agreement;
(b) so long as at the time thereof, and after giving effect
thereto, no Default shall have occurred and be continuing, any
Restricted Company that is a subsidiary of NCI may make Restricted
Payments to NCI to the extent necessary to enable NCI to make scheduled
payments of principal and interest on the Public Notes; and
(c) in addition to the Restricted Payments permitted under the
foregoing clauses (a) and (b), during any fiscal year (commencing with
Excess Cash Flow for the fiscal year ending December 31, 1999), any
Restricted Company may make Restricted Payments, subject to the
satisfaction of each of the following conditions on the date of such
payment and after giving effect thereto:
(i) no Default shall have occurred and be
continuing;
(ii) the Total Indebtedness to Cash Flow Ratio
as at the last day of the fiscal quarter ending on or most
recently ended prior to the date of such Restricted Payment
shall be less than 5.00 to 1;
(iii) the aggregate amount of Restricted
Payments under this clause (c) made during such fiscal
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year (the "current fiscal year") shall not exceed 50% of
Excess Cash Flow for the fiscal year immediately preceding the
current fiscal year;
(iv) the Borrower shall have delivered to the
Vendors, at least ten Business Days (but not more than twenty
Business Days) prior to the date of the proposed Restricted
Payment, a certificate of a Financial Officer setting forth
computations in reasonable detail demonstrating satisfaction
of the foregoing conditions as at the date of such
certificate; and
(v) prior to, or concurrently with, the making
of such Restricted Payment, the Borrower shall prepay the
Loans as required by Section 2.09(b)(i).
SECTION 7.06. Transactions with Affiliates. Except as
expressly permitted by this Agreement, no Restricted Company will sell, lease or
otherwise transfer any cash or other property constituting Collateral (whether
or not such cash or other property is in the possession, or under the control,
of the Collateral Agent) to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to such Restricted Company than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Restricted Companies not involving any other
Affiliate, (c) any Restricted Payment permitted by Section 7.05, (d) as
contemplated by the Overhead Services Agreement and the Tax Sharing Agreement
and (e) pursuant to the Vendor Equipment Agreements or the Vendor Financing
Agreement, provided that any amendments, modifications or supplements to any
Vendor Equipment Agreement or the Vendor Financing Agreement shall be subject to
the requirements of this Section 7.06.
SECTION 7.07. Restrictive Agreements. No Restricted Company
will directly or indirectly, enter into, incur or permit to exist any agreement
or other arrangement that prohibits, restricts or imposes any condition upon (a)
the ability of any Restricted Company to create, incur or permit to exist any
Lien upon any of its property or assets, or (b) the ability of any Restricted
Company to pay dividends or other distributions with respect to any shares of
its capital stock or to make or repay loans or advances to any Restricted
Company or to Guarantee Indebtedness of any other Restricted Company; provided
that
(i) the foregoing shall not apply to restrictions and
conditions (w) imposed by law or by this Agreement, the
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Vendor Financing Agreement, the other Loan Documents, (x) existing on
the date hereof identified in Schedule 7.07 (but shall apply to any
extension or renewal of, or any amendment or modification expanding the
scope of, any such restriction or condition), (y) consisting of
customary restrictions on transfers of site leases (provided that the
Restricted Companies agree that any such lease entered into after the
date hereof shall expressly permit the creation of a security interest
in the rights of the respective Restricted Company party thereto as
security for indebtedness for borrowed money, or guarantees thereof) or
(z) contained in agreements relating to the sale of a Restricted
Company pending such sale, provided such restrictions and conditions
apply only to the Restricted Company or assets that are to be sold and
such sale is permitted hereunder and
(ii) clause (a) above shall not apply to (x) restrictions or
conditions imposed by any agreement relating to secured Indebtedness
permitted by this Agreement if such restrictions or conditions apply
only to the property or assets securing such Indebtedness or (y)
customary provisions in leases and other contracts restricting the
assignment thereof.
SECTION 7.08. Certain Financial and Other Covenants.
(a) Total Indebtedness to Cash Flow Ratio. NCI will not permit
the Total Indebtedness to Cash Flow Ratio at any time during any period below to
exceed the ratio set opposite such period below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
From September 30, 1999
through March 30, 2000 15.00 to 1
From March 31, 2000
through March 30, 2001 7.50 to 1
From March 31, 2001
through March 30, 2002 6.00 to 1
From March 31, 2002
and at all times thereafter 5.00 to 1
</TABLE>
(b) Interest Coverage Ratio. NCI will not permit the
Interest Coverage Ratio at any time during any period below to be
less than the ratio set opposite such period below:
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<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
From September 30, 1999
through March 30, 2000 1.10 to 1
From March 31, 2000
through March 30, 2001 1.50 to 1
From March 31, 2001
and at all times thereafter 2.00 to 1
</TABLE>
(c) Pro-Forma Debt Service Ratio. NCI will not permit the
Pro-Forma Debt Service Ratio as at the last day of any fiscal quarter ending on
or after March 31, 2001 to be less than 1.00 to 1.
(d) Fixed Charges Ratio. NCI will not permit the
Fixed Charges Ratio as at the last day of any fiscal quarter
ending on or after March 31, 2001 to be less than 1.00 to 1.
(e) Secured Indebtedness to Cash Flow Ratio. The Restricted
Companies will not permit the Secured Indebtedness to Cash Flow Ratio at any
time during any period below to exceed the ratio set opposite such period below:
<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
From September 30, 1999
through March 30, 2000 10.00 to 1
From March 31, 2000
through March 30, 2001 5.00 to 1
From March 31, 2001
through March 30, 2002 4.00 to 1
From March 31, 2002
and at all times thereafter 3.00 to 1
</TABLE>
(f) Secured Indebtedness to Revenue Ratio. The Restricted
Companies will not (i) incur any Secured Indebtedness at any time during any
period set forth below if, after giving effect thereto, the Secured Indebtedness
to Revenue Ratio shall exceed the ratio set forth opposite such period in the
Incurrence Ratio column below nor (ii) permit the aggregate amount of Secured
Indebtedness at any time during any period set forth below to exceed the ratio
set forth opposite such period in the Maintenance Ratio column below:
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<TABLE>
<CAPTION>
Incurrence Maintenance
Period Ratio Ratio
------ ----- -----
<S> <C> <C>
From Effective Date through
September 29, 1997 4.25 to 1 4.50 to 1
From September 30, 1997
through December 30, 1997 3.50 to 1 3.75 to 1
From December 31, 1997
through March 30, 1998 2.75 to 1 3.00 to 1
From March 31, 1998
through September 29, 1999 2.50 to 1 2.75 to 1
</TABLE>
(g) Minimum Annualized Revenue. The Restricted
Companies will not permit Annualized Revenue (adjusted as provided in the next
sentence) as at any date below to be less than the amount set opposite such date
below:
<TABLE>
<CAPTION>
Date Amount
---- ------
<S> <C>
September 30, 1996 $ 240,000,000
December 31, 1996 $ 250,000,000
March 31, 1997 $ 275,000,000
June 30, 1997 $ 300,000,000
September 30, 1997 $ 340,000,000
December 31, 1997 $ 400,000,000
March 31, 1998 $ 500,000,000
June 30, 1998 $ 650,000,000
September 30, 1998 $ 815,000,000
December 31, 1998 $ 975,000,000
The last day in each
fiscal quarter in 1999 $1,485,000,000
The last day in each
fiscal quarter in 2000 $2,150,000,000
</TABLE>
For purposes of this paragraph (g), Annualized Revenue as at any date shall be
reduced, for each acquisition consummated prior to such date by any Restricted
Company the Purchase Price for which exceeds $50,000,000 (excluding, however,
any such acquisition consummated prior to the date hereof), by an amount equal
to the product of 4 multiplied by the revenue of the business, or attributable
to the assets, so acquired for the fiscal quarter ending on, or most recently
ended prior to, the date of such acquisition, provided that, if at the last day
of any fiscal
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quarter of the Restricted Companies (the "current fiscal quarter")
fewer than four complete fiscal quarters shall have elapsed following the date
of such acquisition, such product shall be further multiplied by a fraction, the
numerator of which is the number of days during the period commencing on the
date of such acquisition to but excluding the last day of the current fiscal
quarter and the denominator of which is 365.
(h) Minimum Network Subscriber Units. The Restricted Companies
will not permit the aggregate number of Network Subscriber Units (adjusted as
provided in the next sentence) as at any date below to be less than the number
set opposite such date below:
<TABLE>
<CAPTION>
Date Number
---- ------
<S> <C>
September 30, 1996 800,000
December 31, 1996 800,000
March 31, 1997 900,000
June 30, 1997 950,000
September 30, 1997 1,000,000
December 31, 1997 1,120,000
March 31, 1998 1,230,000
June 30, 1998 1,390,000
September 30, 1998 1,575,000
December 31, 1998 1,750,000
The last day of each fiscal
quarter in 1999 and 2000 2,250,000
</TABLE>
For purposes of this paragraph (h), Network Subscribers Units as at any date
shall be reduced, for each acquisition consummated prior to such date by any
Restricted Company the Purchase Price for which exceeds $50,000,000 (excluding,
however, any such acquisition consummated prior to the date hereof), by the
number or Network Subscriber Units of the business, or attributable to the
assets, so acquired on the date on which such acquisition is consummated.
SECTION 7.09. Lines of Business, Etc.
(a) Business Activities. No Restricted Company will engage to
any substantial extent in any line or lines of business activity other than the
Mobile Communications Business, and businesses reasonably related thereto,
provided that nothing herein shall be deemed to prohibit the Restricted
Companies from acquisitions pursuant to Section 7.04(vii) of FCC Licenses in the
800 MHz or 900 MHz bands, or acquisitions pursuant to Section
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7.04(viii) of cellular telephone and other businesses, for the purpose of
enabling the Restricted Companies to create contiguous blocks of spectrum
covered by the SMR Licenses of the Restricted Companies.
(b) License Companies. The Restricted Companies will not at
any time permit any FCC Licenses and PUC Authorizations (including any thereof
acquired after the date hereof, but excluding any PUC Authorizations issued by
PUC's in any jurisdiction that prohibits the actions contemplated by this
paragraph (b)) to be held by any First Tier Restricted Company, provided that
(i) with respect to the FCC Licenses and PUC Authorizations covered by the
applications referred to in Section 5.01(p), the Restricted Companies will cause
such FCC Licensesand PUC Authorizations to the extent necessary to be
transferred by the respective First Tier Restricted Companies to a Restricted
Company that is not a First Tier Restricted Company as provided in this
paragraph (b) no later than the date 90 days after the Effective Date and (ii)
with respect to any FCC Licenses and PUC Authorizations acquired by any First
Tier Restricted Company after the date hereof pursuant to an acquisition
permitted under Section 7.04, such First Tier Restricted Company will cause such
FCC Licenses and PUC Authorizations to the extent necessary to be transferred as
provided in this paragraph (b) no later than the date 90 days after the
respective acquisition date therefor.
SECTION 7.10. Modifications to Certain Agreements. The Credit
Parties will not consent to any modification, supplement or waiver of any of the
provisions of the Overhead Services Agreement (other than to add new Restricted
Companies as parties thereto), the Tax Sharing Agreement (other than to add new
subsidiaries of NCI as parties thereto) or the provisions in Section 2.09 of the
Credit Agreement relating to the application of prepayments, (or the second
paragraph of Section 2.01(a) thereof), or the provisions of Section 2.16(d) of
the Credit Agreement, without, in each case, the prior consent of the Required
Vendors. In addition, NCI will not consent to any modification, supplement or
waiver of any of the provisions of the Public Note Indentures or the Public
Notes without the prior consent of the Required Vendors.
ARTICLE VIII
Events of Default
If any of the following events ("Events of Default") shall
occur:
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(a) the Borrower shall fail to pay any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in clause
(a) of this Article) payable under this Agreement, when and as the same
shall become due and payable, and such failure shall continue
unremedied for a period of three or more Business Days;
(c) any representation or warranty made or deemed made by or
on behalf of any Credit Party in or in connection with this Agreement
or any of the other Basic Documents or any amendment or modification
hereof or thereof (or in any report, certificate, financial statement
or other document furnished pursuant to or in connection with this
Agreement, any of the other Basic Documents or any amendment or
modification hereof or thereof) shall prove to have been incorrect when
made or deemed made in any material respect;
(d) the Restricted Companies shall fail to observe or perform
any covenant, condition or agreement contained in Section 6.02, 6.03
(with respect to the existence of the Restricted Companies), 6.11
or 6.12, Article VII, or in Section 5.01 or 6.02 of the Restricted
Company Guarantee and Security Agreement;
(e) any Credit Party shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement or any
other Loan Document (other than those specified in clause (c) or (d) of
this Article), and such failure shall continue unremedied for a period
of thirty or more days after notice thereof from either Vendor to the
Borrower;
(f) any Credit Party shall fail to make any payment (whether
of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or any
trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled
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maturity; provided that this clause (f) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of any Credit Party or its
debts, or of a substantial part of its assets, under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for any Credit
Party or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or
an order or decree approving or ordering any of the foregoing shall be
entered;
(i) any Credit Party shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h)
of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for any Credit Party or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) any Credit Party shall become unable, admit in
writing or fail generally to pay its debts as they become
due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $10,000,000 shall be rendered against any
one or more of the Credit Parties and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken
by a judgment creditor to attach or levy upon any assets of any Credit
Party to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Vendors, when taken together with
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all other ERISA Events that have occurred, could reasonably be expected
to result in a Material Adverse Effect;
(m) a proceeding shall have been initiated by or before, or
any action shall have been taken by, the FCC, a PUC, a court of
competent jurisdiction, or other Governmental Authority which either:
(i) has resulted in the cancellation,
non-renewal or adverse modification of any one or more SMR
Licenses, radio channels authorized under SMR Licenses or PUC
Authorizations held by one or more of the Restricted
Companies, or
(ii) in the reasonable opinion of the Required
Vendors, is likely to result in the cancellation, non-renewal
or adverse modification of any one or more SMR Licenses, radio
channels authorized under SMR Licenses, or PUC Authorizations
held by one or more Restricted Companies,
that, in the aggregate, in the judgment of the Required Vendors, have
resulted or are reasonably likely to result in a Material Adverse
Effect, and the same shall continue uncured for a period of 45 or more
days after notice thereof to the Borrower by the Required Vendors;
(n) any FCC License or PUC Authorization, or any other
material operating assets, rights or other property, relating to the
operation of all or any part of the Mobile Communications Business of
any of the Restricted Companies shall be held by NCI or any of the
Unrestricted Companies, other than any FCC Licenses or PUC
Authorizations that are (i) acquired by Unrestricted Companies after
the date hereof, (ii) not material to the Mobile Communications
Business of the Restricted Companies, (iii) subject to management
agreements in favor of the Restricted Companies and (iv) do not relate
to a portion of the Mobile Communications Business of the Restricted
Companies representing more than 5% of the aggregate Operating Cash
Flow;
(o) a reasonable basis shall exist for the assertion against
any Credit Party, or any predecessor in interest of any Credit Party or
their Affiliates, of (or there shall have been asserted against any
Credit Party) any claims or liabilities, whether accrued, absolute or
contingent, based on or arising from the generation, storage,
transport, handling or disposal of Hazardous Materials or RF Emissions
by any Credit Party or any of its subsidiaries, Affiliates
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or predecessors that, in the judgment of the Required Vendors is
reasonably likely to be determined adversely to any Credit Party, and
the amount thereof (either individually or in the aggregate) is
reasonably likely to have a Material Adverse Effect (insofar as such
amount is payable by a Credit Party but after deducting any portion
thereof that is reasonably expected to be paid by other creditworthy
Persons jointly and severally liable therefor); or
(p) Any of the following shall occur: (i) the Liens created by
the Security Documents shall at any time, with respect to any material
portion of the property of the Restricted Companies, not constitute
valid and perfected Liens on the Collateral intended to be covered
thereby (to the extent perfection by filing, registration, recordation
or possession is required herein or therein) in favor of the Collateral
Agent for the benefit of the Vendors hereunder and the Lenders under
the Credit Agreement, free and clear of all other Liens (other than
Liens permitted under Section 7.02 or under the respective Security
Documents); (ii) except for expiration in accordance with its terms,
any of the Security Documents shall for whatever reason be terminated,
or shall cease to be in full force and effect, with respect to any
material portion of the property of the Restricted Companies; or (iii)
the enforceability of any of the Security Documents shall be contested
by any Credit Party;
then, and in every such event (other than an event with respect to any Credit
Party described in clause (h) or (i) of this Article), and at any time
thereafter during the continuance of such event, the Required Vendors may, by
notice to the Borrower, take either or both of the following actions, at the
same or different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be
due and payable), and thereupon the principal of the Loans so declared to be due
and payable, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall become due and payable
immediately, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower; and in case of any event with
respect to any Credit Party described in clause (h) or (i) of this Article, the
Commitments shall automatically terminate and the principal of the Loans then
outstanding, together with accrued interest thereon and all fees and other
obligations of the Borrower accrued hereunder, shall automatically become due
and payable,
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without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
ARTICLE IX
Intentionally Left Blank
This Article IX has been intentionally left blank.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to NCI or the Borrower, to it at 1505 Farm Credit
Drive, Suite 100, McLean, Virginia 22102, Attention Steven Shindler,
Senior Vice President and Chief Financial Officer (Telecopy No.
703-394-3011);
(b) if to any Restricted Company other than the Borrower, to
such Restricted Company care of the Borrower at the address for notices
indicated in clause (a) above;
(c) if to Motorola, to it at 1301 East Algonquin Road,
Schaumburg, Illinois 60196, Attention Vice President, Director of
Financing (Telecopy No. 847-538-2491), with a copy to Gary Tatje at
such address and to the General Counsel and Secretary at 1303 East
Algonquin Road, Schaumburg, Illinois 60196; and
(d) if to NTFC Capital Corporation, to it at 220
Athens Way, Nashville, Tennessee 37228, Attention Legal
Counsel (Telecopy No. 615-734-5283).
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
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SECTION 10.02. Waivers; Amendments.
(a) No failure or delay by either Vendor in exercising any
right or power hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Vendors hereunder are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by any Restricted
Company therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section 10.02, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for
which given. Without limiting the generality of the foregoing, the making of a
Loan shall not be construed as a waiver of any Default, regardless of whether
either Vendor may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Restricted Companies and the Required Vendors;
provided that no such agreement shall:
(i) increase the Commitment of either Vendor
without the written consent of such Vendor;
(ii) reduce the principal amount of any Loan or reduce
the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of the Vendor affected thereby;
(iii) postpone the scheduled date of payment of the
principal amount of any Loan, or any interest thereon, or any fees
payable hereunder, or reduce the amount of, waive or excuse any such
payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of the Vendor affected thereby;
(iv) this clause (iv) has been intentionally left
blank;
(v) alter the rights or obligations of the Borrower to
prepay Loans without the written consent of each Vendor (other than the
obligations of the Borrower under Section 2.09(b)(iii), which may be
altered with the consent of the Required Vendors);
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(vi) change any of the provisions of this Section 10.02
or the definition of "Required Vendors", or any other provision hereof
specifying the number or percentage of Vendors required to waive, amend
or modify any rights hereunder or under any other Loan Document or make
any determination or grant any consent hereunder or thereunder, without
the written consent of each Vendor; or
(vii) release NCI from its obligations in respect of its
Guarantee under Article III without the written consent of each Vendor.
(c) Neither any Security Document nor any provision thereof
may be waived, amended or modified except pursuant to an agreement or agreements
in writing entered into by the Restricted Companies party thereto, and by the
Collateral Agent with the consent of the appropriate Lenders and Vendors as more
particularly provided in Section 5.02(c) of the Intercreditor and Collateral
Agency Agreement.
SECTION 10.03. Expenses; Indemnity; Damage Waiver.
(a) The Credit Parties jointly and severally agree to pay, or
reimburse the Vendors for paying, (i) all amounts that the Collateral Agent is
required to make under any indemnity issued to any bank with which lock box or
segregated deposit arrangements are entered into pursuant to Section 5.01((i) or
the Restricted Company Guarantee and Security Agreement, (ii) all out-of-pocket
expenses incurred by a Vendor, including the fees, charges and disbursements of
any counsel for such Vendor, in connection with the enforcement or protection of
its rights in connection with this Agreement and the other Loan Documents,
including its rights under this Section 10.03, or in connection with the Loans
made hereunder, including in connection with any workout, restructuring or
negotiations in respect thereof, (iii) all transfer, stamp, documentary or other
similar taxes, assessments or charges levied by any governmental or revenue
authority in respect of this Agreement or any of the other Loan Documents or any
other document referred to herein or therein and all costs, expenses, taxes,
assessments and other charges incurred in connection with any filing,
registration, recording or perfection of any security interest contemplated by
any Security Document or any other document referred to therein, and (iv) all
costs, expenses and other charges in respect of title insurance procured with
respect to the Liens created pursuant to the Mortgages.
(b) The Credit Parties jointly and severally agree to
indemnify each Vendor, and each Related Party of a Vendor (each such Person
being called an "Indemnitee") against, and hold each
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Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement, the other Loan Documents or any agreement or instrument contemplated
hereby, the performance by the parties hereto and thereto of their respective
obligations hereunder or thereunder or the consummation of the Transactions or
any other transactions contemplated hereby or thereby, (ii) any Loan or the use
of the proceeds therefrom, (iii) any actual or alleged presence or release of
Hazardous Materials or RF Emissions on or from any property owned or operated by
any Credit Party or any of their subsidiaries, or any Environmental Liability
related in any way to any Credit Party or any of their subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (are determined by a
court of competent jurisdiction by final and nonappealable judgment to have)
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) This paragraph (c) has been intentionally left
blank.
(d) To the extent permitted by applicable law, none of the
Credit Parties shall assert, and each Credit Party hereby waives, any claim
against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement, the other
Loan Documents or any agreement or instrument contemplated hereby or thereby,
the Transactions or any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section 10.03 shall be payable
promptly after written demand therefor.
SECTION 10.04. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that no Credit Party may assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Vendor (and any attempted assignment or transfer by any Credit
Party without such consent shall be null and void).
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Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby and, to the extent expressly contemplated hereby, the
Related Parties of each Vendor) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Either Vendor may assign its rights and obligations under
this Agreement (including all or a portion of its Commitments and the Loans at
the time owing to it); provided that the Borrower must give its prior written
consent to such assignment (which consent shall not be unreasonably withheld or
delayed), provided further that no consent of the Borrower shall be required if
an Event of Default under clause (h) or (i) of Article VIII has occurred and is
continuing, or if such assignment is by one Vendor to another Vendor or to a
Lender.
From and after the effective date of any such assignment, the
assignee thereunder shall be a party hereto and have the rights and obligations
of the respective assigning Vendor under this Agreement, and the assigning
Vendor thereunder shall be released from its obligations under this Agreement
(and shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15 and 10.03). Any assignment or transfer by a Vendor of
rights or obligations under this Agreement that does not comply with this
paragraph shall be treated for purposes of this Agreement as a sale by such
Vendor of a participation in such rights and obligations in accordance with
paragraph (e) of this Section 10.04.
(c) This paragraph (c) has been intentionally left
blank.
(d) This paragraph (d) has been intentionally left
blank.
(e) Either Vendor may, without the consent of the Restricted
Companies, sell participations to one or more banks or other entities (a
"Participant") in all or a portion of such Vendor's rights and obligations under
this Agreement (including all or a portion of its Commitments and the Loans
owing to it); provided that (i) such Vendor's obligations under this Agreement
shall remain unchanged, (ii) such Vendor shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) the Borrower
and the other Vendor shall continue to deal solely and directly with such Vendor
in connection with such Vendor's rights and obligations under this Agreement and
(iv) when selling any participation in the Tranche A Loans hereunder prior to
the first anniversary of the Effective Date, Motorola shall advise the Borrower
of the effective date of
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such participation (and shall indicate whether or not such participation has
been sold on the basis of full recourse to Motorola). Any agreement or
instrument pursuant to which a Vendor sells such a participation shall provide
that such Vendor shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Vendor will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 10.02(b) that
affects such Participant. Subject to paragraph (f) of this Section 10.04, the
Borrower agrees that each Participant shall beentitled to the benefits of
Section 2.15 to the same extent as if it were a Vendor and had acquired its
interest by assignment pursuant to paragraph (b) of this Section 10.04.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.15 than the applicable Vendor would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent.
(g) This clause (g) has been intentionally left blank.
(h) Anything in this Section 10.04 to the contrary
notwithstanding, (i) no Vendor may assign or participate any interest in any
Loan held by it hereunder to the Borrower or any of its Affiliates or
subsidiaries without the prior consent of each Vendor, (ii) Motorola may not
assign or participate any interest in any Loan held by it hereunder prior to the
date six months after the Effective Date (other than any assignment contemplated
under Section 2.01 and any assignment or participation made on the basis of full
recourse to Motorola), and will not thereafter assign or sell participations in
the Tranche A Loans held by it (other than any such assignment or participation
made on the basis of full recourse to Motorola) if after giving effect thereto,
Motorola would hold less than $50,000,000 of Tranche A Loans hereunder (or hold
less than such lesser amount as shall represent the amount to which such
$50,000,000 would be reduced ratably in accordance with the repayment schedule
set forth in Section 2.08(b)) and (iii) NTFC Capital may not assign or
participate any interest in any Tranche A Loan (other than the first $10,000,000
thereof) reallocated to it as Tranche C Loans hereunder pursuant to Section
2.01(d) prior to the date six months after the Effective Date (other than any
such assignment or participation made on the basis of full recourse to NTFC
Capital).
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Nothwithstanding the foregoing, in the event Motorola shall
not have reallocated to NTFC Capital at least $10,000,000 of the Tranche A
Loans as Tranche C Loans hereunder (as contemplated by Section 2.01(d)) within
thirty days of the Effective Date, Motorola shall be free to assign or shall
participations to any third party in the portion of such $10,000,000 not so
reallocated.
SECTION 10.05. Survival. All covenants, agreements,
representations and warranties made by the Credit Parties herein and in the
other Loan Documents, and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement and the other Loan Documents,
shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of this Agreement and the other Loan
Documents and the making of any Loans, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that either Vendor may
have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in
full force and effect so long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement or the other
Loan Documents is outstanding and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.15 and 10.03 shall survive and remain
in full force and effect regardless of the consummation of the transactions
contemplated hereby, the repayment of the Loans, the expiration or termination
of the Commitments or the termination of this Agreement or any other Loan
Document or any provision hereof or thereof.
SECTION 10.06. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement constitutes the entire
contract among the parties relating to the subject matter hereof and supersedes
any and all previous agreements and understandings, oral or written, relating to
the subject matter hereof.
SECTION 10.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
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SECTION 10.08. Right of Setoff. If an Event of Default shall
have occurred and be continuing, each Vendor is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all indebtedness at any time owing by such Vendor to or for the
credit or the account of the Borrower against any of and all the obligations of
the Borrower now or hereafter existing under this Agreement held by such Vendor,
irrespective of whether or not such Vendor shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each
Vendor under this Section 10.08 are in addition to any other rights and remedies
(including other rights of setoff) which such Vendor may have.
SECTION 10.09. Governing Law; Jurisdiction; Consent to
Service of Process.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) Each party hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State court (or, to the
extent permitted by law, in such Federal court). Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that either Vendor may otherwise have to bring any action or proceeding
relating to this Agreement against any Credit Party or its properties in the
courts of any jurisdiction.
(c) Each party hereto hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or the other
Loan Documents in any court referred to in paragraph (b) of this Section 10.09.
Each of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
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(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.01. Nothing
in this Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 10.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.10.
SECTION 10.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 10.12. Confidentiality. Each of the Vendors hereby
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates,
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to the execution and delivery of an agreement
containing provisions substantially the same as those of this Section 10.12, to
any assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement, (g) with the consent
of the Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section 10.12 or (ii)
becomes available to a Vendor on a nonconfidential basis from a source other
than the Borrower.
Vendor Financing Agreement
<PAGE> 98
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For the purposes of this Section 10.12, "Information" means
all information received from the Borrower relating to the Credit Parties or
their business, other than any such information that is available to either
Vendor on a nonconfidential basis prior to disclosure by the Borrower; provided
that, in the case of information received from the Borrower after the date
hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section 10.12 shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 10.13. Intentionally Left Blank. This Section
10.13 has been intentionally left blank.
SECTION 10.14. Existing Vendor Agreements. This
Agreement shall constitute, effective as of the Effective Date,an amendment,
restatement and consolidation of each of the following agreements to which the
Vendors are party:
(a) in the case of Motorola, (i) the Financing and Security
Agreement, dated November 1, 1991, by and between Motorola, SMART SMR
of California, Inc. and NCI, (ii) the Financing and Security Agreement,
dated November 1, 1991, by and between Motorola, SMART SMR of Illinois,
Inc. and NCI, (iii) the Financing and Security Agreement, dated
November 1, 1991, by and between Motorola, SMART SMR of Texas, Inc. and
NCI, (iv) the Financing and Security Agreement, dated November 1, 1991,
by and between Motorola, SMART SMR of New York, Inc. and NCI and (v)
the Financing and Security Agreement, dated July 28, 1995, by and
between Motorola, OneComm Corporation, N.A., and NCI; and
(b) in the case of NTFC Capital, (i) the Financing and
Security Agreement, dated November 1, 1991, by and between NTFC Capital
(formerly known as Northern Telecom Finance Corporation), SMART SMR of
California, Inc. and NCI, (ii) the Financing and Security Agreement,
dated November 1, 1991, by and between NTFC Capital, SMART SMR of
Illinois, Inc. and NCI, (iii) the Financing and Security Agreement,
dated November 1, 1991, by and between NTFC Capital, SMART SMR of
Texas, Inc. and NCI and (iv) the Financing and Security Agreement,
dated November 1, 1991, by and between NTFC Capital, SMART SMR of New
York, Inc. and NCI.
SECTION 10.15. Obligations Senior. The obligations of the
Restricted Companies hereunder and under the other Loan
Vendor Financing Agreement
<PAGE> 99
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Documents Constitute "senior Debt" for the Purposes of the second paragraph of
Section 10.12 of the January 1994 Indenture.
Vendor Financing Agreement
<PAGE> 100
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IN WITNESS WHEREOF, the parties hereto have caused this
Amended, Restated and Consolidated Credit Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
NEXTEL COMMUNICATIONS, INC.,
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
RESTRICTED COMPANIES
NEXTEL FINANCE COMPANY,
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
ADVANCED MOBILECOMM OF
NORTH CAROLINA, INC.
AIR LINK COMMUNICATIONS, INC.
AIRWAVE COMMUNICATIONS CORP.
(SEATTLE)
AMERICAN MOBILE SYSTEMS
INCORPORATED
C-CALL CORP.
COMQOR, INC.
CUSTOM RADIO/JOHNSON
COMMUNICATIONS, INC.
DIAL CALL, INC.
DIAL CALL ARKANSAS, INC.
DIAL CALL FLORIDA, INC.
DIAL CALL KENTUCKY, INC.
DIAL CALL LOUISIANA, INC.
DIAL CALL TEXAS, INC.
DIAL CALL VIRGINIA, INC.
DIAL CALL WEST VIRGINIA, INC.
DIAL DISTANCE, INC.
DISPATCH COMMUNICATIONS
OF ARIZONA, INC.
DISPATCH COMMUNICATIONS
OF MINNESOTA, INC.
DISPATCH COMMUNICATIONS
OF NEW ENGLAND, INC.
Vendor Financing Agreement
<PAGE> 101
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DISPATCH COMMUNICATIONS
OF MARYLAND, INC.
DISPATCH COMMUNICATIONS
OF PENNSYLVANIA, INC.
ESMR SUB, INC.
FC NEW YORK, INC.
FCI 900, INC.
FLEET CALL CORPORATION
FLEET CALL OF TEXAS, INC.
FLEET CALL OF UTAH, INC.
FLEET CALL WEST, INC.
F-M TOWER COMPANY
FORT WORTH COMMUNICATIONS, INC.
METRACOM TRUNKED RADIO
COMMUNICATION SYSTEMS, INC.
METROLINK COMMUNICATIONS
CORPORATION
MIJAC ENTERPRISES, INC.
MOBILE RADIO OF ILLINOIS, INC.
MOTOROLA SF, INC.
NATIONAL TOWER TRUNKING
SYSTEMS, INC.
NEXTEL COMMUNICATIONS
` OF THE MID-ATLANTIC, INC.
NEXTEL HAWAII ACQUISITION CORP.
NEXTEL OF TEXAS, INC.
NEXTEL UTAH ACQUISITION CORP.
NEXTEL WESTERN ACQUISITION CORP.
ONECOMM CORPORATION, N.A.
POWERFONE HOLDINGS, INC.
POWERFONE, INC.
SABER COMMUNICATIONS, INC.
SAFETY NET, INC.
SHORELAND COMMUNICATIONS, INC.
SMART SMR, INC.
SMART SMR OF CALIFORNIA, INC.
SMART SMR OF ILLINOIS, INC.
SMART SMR OF NEW YORK, INC.
SPECTRUM RESOURCES
OF THE MIDWEST, INC.
TRS, INC.
U.S. DIGITAL, INC.
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
Vendor Financing Agreement
<PAGE> 102
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FORT WORTH TRUNKED RADIO
LIMITED PARTNERSHIP
By Fort Worth Communications,
Inc., a General Partner
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
MOTOROLA, INC.
by /s/ Gary Tatje
-------------------------
Name: Gary Tatje
Title: Director, Worldwide Finance
NTFC CAPITAL CORPORATION
by /s/ L. W. Middleton
-------------------------
Name: L. W. Middleton
Title: Secretary
Vendor Financing Agreement
<PAGE> 103
EXHIBIT A
[Intentionally left blank]
<PAGE> 104
EXHIBIT B-1
[Intentionally Left Blank]
<PAGE> 105
EXHIBIT C
[Form of Restricted Company Guarantee and Security Agreement]
GUARANTEE AND SECURITY AGREEMENT
GUARANTEE AND SECURITY AGREEMENT dated as of September 27,
1996 between NEXTEL FINANCE COMPANY, a corporation duly organized and validly
existing under the laws of the State of Delaware (the "Borrower"); each of the
subsidiaries of Nextel Communications, Inc. listed on the signature pages hereto
under the caption "INITIAL GUARANTORS" (the "Initial Guarantors"); each of the
additional entities, if any, that becomes a "Guarantor" hereunder as
contemplated by Section 7.12 (each an "Additional Guarantor" and together with
the Initial Guarantors, the "Guarantors"; the Guarantors together with the
Borrower, being herein called the "Restricted Companies"); and The Chase
Manhattan Bank, as collateral agent for the Vendors and Lenders party to the
Loan Agreements referred to below (in such capacity, together with its
successors in such capacity, the "Collateral Agent").
Nextel Communications, Inc. and the Restricted Companies are
parties to (i) an Amended, Restated and Consolidated Credit Agreement dated as
of September 27, 1996 (as modified and supplemented and in effect from time to
time, the "Vendor Financing Agreement") with Motorola, Inc., a Delaware
corporation ("Motorola"), and NTFC Capital Corporation, a Delaware corporation
("NTFC Capital" and, together with Motorola, the "Vendors"), providing, subject
to the terms and conditions thereof, for loans to be made by Motorola and NTFC
Capital to the Borrower in an aggregate principal amount not exceeding
$345,000,000 and (ii) a Credit Agreement dated as of September 27, 1996 (as
modified and supplemented and in effect from time to time, the "Credit
Agreement" and, together with the Vendor Financing Agreement, the "Loan
Agreements"), providing, subject to the terms and conditions thereof, for
extensions of credit (by means of loans and letters of credit) to be made by the
Lenders named therein (collectively, together with any entity that becomes a
"Lender" party to the Credit Agreement after the date hereof as provided
therein, the "Lenders" and, together with the Vendors and any successors or
assigns of any of the foregoing, the "Secured Parties") to the Borrower in an
aggregate principal or face amount not exceeding $1,655,000,000 (which, in the
circumstances contemplated by Section 7.01(f) thereof, may be increased to
$1,905,000,000). In addition, the Borrower may from time to time be obligated to
one or more of the Lenders under the Credit Agreement in respect of Hedging
Agreements under and as
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defined in the Credit Agreement (collectively, the "Hedging Agreements").
To induce the Secured Parties to enter into the respective
Loan Agreements to which they are party and to extend credit thereunder, and to
induce the Lenders to extend credit to the Borrower under Hedging Agreements,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Guarantors have agreed to guarantee the
Guaranteed Obligations (as hereinafter defined), and the Restricted Companies
have agreed to pledge and grant a security interest in the Collateral (as so
defined) as security for the Secured Obligations (as so defined). Accordingly,
the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this
Agreement, the following terms have the meanings specified below:
"Accounts" has the meaning assigned to such term in
paragraph (d) of Article IV.
"Agents" means the Administrative Agent under the Credit
Agreement and the Collateral Agent hereunder.
"Authorizations" means all validations, exemptions,
franchises, waivers, approvals, orders or authorizations, consents, licenses,
certificates and permits from, the FCC, any PUC and any other Federal, state or
local regulatory or governmental bodies and authorities, including any
subdivision thereof.
"Capital Expenditures" has the meaning assigned to such
term in the Loan Agreements.
"Casualty Event" means, with respect to any property of any
Restricted Company, any loss of or damage to, or any condemnation or other
taking of, such property for which such Restricted Company or any of its
subsidiaries receives insurance proceeds, or proceeds of a condemnation award or
other compensation.
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"Casualty Event Proceeds Account" has the meaning
assigned to such term in Section 5.01.
"Collateral" has the meaning assigned to such term in
Article IV.
"Collateral Accounts" has the meaning assigned to such
term in Section 5.01.
"Commitments" means the "Commitments" of the Lenders under the
Credit Agreement (including any commitment to provide "Tranche E Loans"
thereunder in the circumstances contemplated by Section 7.01(f) of the Credit
Agreement) and the "Commitments" of the Vendors under the Vendor Financing
Agreement.
"Concentration Account" has the meaning assigned to
such term in Section 5.01.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Enhanced SMR System" means a wide-area network of specialized
mobile radio base stations that employs digital and other advanced, spectrally
efficient communications technologies to provide a full range of communications
services including voice, dispatch, interconnected telephone and data services.
"Equipment" has the meaning assigned to such term in
paragraph (h) of Article IV.
"Equity Collateral" means, collectively, the Collateral
described in clauses (a) through (c) of Article IV and the proceeds of and to
any such property and, to the extent related to any such property or such
proceeds, all books, correspondence, credit files, records, invoices and other
papers.
"Event of Default" means, an "Event of Default" under and as
defined in the Credit Agreement or an "Event of Default" under and as defined in
the Vendor Financing Agreement.
"FCC" means the Federal Communications Commission or
any Governmental Authority substituted therefor.
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"FCC License" means any paging, mobile telephone, specialized
mobile radio, microwave or other license, permit, consent, certificate of
compliance, franchise, approval, waiver or authorization granted or issued by
the FCC, including any of the foregoing authorizing or permitting the
acquisition, construction or operation of an SMR System, radio paging system,
mobile telephone system or other radio communications system.
"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guaranteed Obligations" has the meaning assigned to
such term in Section 2.01.
"Hedging Agreements" has the meaning assigned to such
term in the preamble to this Agreement.
"Instruments" has the meaning assigned to such term in
paragraph (e) of Article IV.
"Intercreditor and Collateral Agency Agreement" means the
Intercreditor and Collateral Agency Agreement dated as of the date hereof
between the Restricted Companies, the Vendors, the Administrative Agent and the
Collateral Agent.
"Inventory" has the meaning assigned to such term in
paragraph (g) of Article IV.
"Issuing Bank" has the meaning assigned to such term in
the Credit Agreement.
"Issuers" means, collectively, (a) the respective corporations
identified beneath the names of the Securing Parties on Annex 1 under the
caption "Issuer" and (b) any other entity that shall at any time be a subsidiary
of any of the Restricted Companies.
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"LC Disbursement" has the meaning assigned to such term
in the Credit Agreement.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit under the Credit Agreement
at such time plus (b) the aggregate amount of all LC Disbursements that have not
yet been reimbursed by or on behalf of the Borrower at such time.
"Letter of Credit Account" has the meaning assigned to
such term in Section 5.01.
"Letters of Credit" means the "Letters of Credit" from time to
time issued under the Credit Agreement.
"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 and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Document" means the Loan Agreements, any promissory
notes evidencing Loans under any Loan Agreement and the Security Documents.
"Loans" means the "Loans" made by the Lenders to the Borrower
under the Credit Agreement (including any "Tranche E Loans" thereunder made in
the circumstances contemplated by Section 7.01(f) of the Credit Agreement) and
the "Loans" made by the Vendors to the Borrower under the Vendor Financing
Agreement.
"Mortgages" means, collectively, one or more assignments of
lease, mortgages, deeds of trust, deeds to secure debt and the like executed by
a Restricted Company in favor of the Collateral Agent (or a trustee for the
benefit of the Collateral Agent), and covering interests in real property held
by such Restricted Company as collateral security for the Secured Obligations,
in each case in such form as shall be satisfactory to the Collateral Agent.
"Part 90" means 47 CFR Part 90 of the Rules and Regulations of
the FCC in effect from time to time or such other
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<PAGE> 110
-6-
parts or subparts that may be substituted for or combined with said Part 90.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America),
in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from Standard and
Poor's Ratings Service or from Moody's Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money
market deposit accounts issued or offered by, any domestic office of
any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus
and undivided profits of not less than $250,000,000; and
(d) fully collateralized repurchase agreements with a term of
not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria
described in clause (c) above.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental authority or other entity.
"Pledged Equity" has the meaning assigned to such term
in paragraph (a) of Article IV.
"PUC" means any state regulatory agency or body that exercises
jurisdiction over the rates or services or the ownership, construction or
operation of any SMR System, cellular radio telecommunications system or
conventional mobile telephone system or over Persons who own, construct or
operate SMR Systems,
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cellular radio telecommunications systems or conventional mobile telephone
systems, in each case by reason of the nature or type of the business subject to
regulation and not pursuant to laws and regulations of general applicability to
Persons conducting business in said state.
"PUC Authorization" means any Authorization issued by a
PUC.
"Required Revolving Credit Lenders" has the meaning assigned
to such term in the Credit Agreement.
"Required Secured Parties" means, at any time, Secured Parties
having Loans, LC Exposure and unused Commitments under the respective Loan
Agreements representing at least 51% of the sum of the total Loans, LC Exposure
and unused Commitments at such time.
"Restricted Payments" has the meaning assigned to such
term in the Loan Agreements.
"Sale Proceeds Reinvestment Account" has the meaning
assigned to such term in Section 5.01.
"Secured Obligations" means, collectively, (a) in the case of
the Borrower, the principal of and interest on the Loans made by the Secured
Parties to the Borrower, all LC Disbursements and all other amounts from time to
time owing to the Secured Parties or the Agents by the Borrower under the Loan
Documents or any Hedging Agreement, (b) in the case of each Guarantor, all
obligations of such Guarantor in respect of its Guarantee under Article II and
(c) in the case of each Restricted Company, all other obligations of such
Restricted Company to the Secured Parties and the Agents hereunder.
"Security Documents" means this Agreement, the Intercreditor
and Collateral Agency Agreement, the Mortgages and all Uniform Commercial Code
financing statements required by any of such instruments to be filed with
respect to the security interests in personal property and fixtures created
pursuant hereto or thereto.
"SMR System" means a specialized mobile radio system licensed
under Part 90, together with such other facilities from time to time licensed or
otherwise authorized by the FCC as shall be necessary to provide the
communications services to be offered by the Restricted Companies. The term "SMR
System" shall include
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an Enhanced SMR System using FCC Licenses in the 800 MHz or 900 MHz band.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Tax Proceeds Account" has the meaning assigned to such
term in Section 5.01.
"Trademark Collateral" means all Trademarks, whether now owned
or hereafter acquired by any Restricted Company, including each Trademark
identified in Annex 2. Notwithstanding the foregoing, the Trademark Collateral
does not and shall not include any Trademark that would be rendered invalid,
abandoned, void or unenforceable by reason of its being included as part of the
Trademark Collateral.
"Trademarks" means all trade names, trademarks and service
marks, logos, trademark and service mark registrations, and applications for
trademark and service mark registrations, including all renewals of trademark
and service mark registrations, all rights corresponding thereto throughout the
world, the right to recover for all past, present and future infringements
thereof, all other rights of any kind whatsoever accruing thereunder or
pertaining thereto, together, in each case, with the product lines and goodwill
of the business connected with the use of, and symbolized by, each such trade
name, trademark and service mark.
"Uniform Commercial Code" means the Uniform Commercial Code as
in effect from time to time in the State of New York.
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SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections and Exhibits shall be construed to refer
to Articles and Sections of, and Exhibits to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
ARTICLE II
The Guarantee
SECTION 2.01. The Guarantee. The Guarantors hereby jointly and
severally guarantee to each Secured Party and the Agents and their respective
successors and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the principal of and interest on the
Loans made by the Secured Parties to the Borrower, all LC Disbursements and all
other amounts from time to time owing to the Secured Parties or either Agent by
the Borrower under the Loan Agreements or any other Loan Document, and all
obligations of the Borrower to any Secured Party under any Hedging Agreement, in
each case strictly in accordance with the terms thereof (such principal,
interest, other amounts and obligations being herein collectively called the
"Guaranteed Obligations"). The Guarantors hereby further jointly and severally
agree that if the Borrower shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) any of the Guaranteed
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Obligations, the Guarantors will promptly pay the same, without any demand or
notice whatsoever, and that in the case of any extension of time of payment or
renewal of any of the Guaranteed Obligations, the same will be promptly paid in
full when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal.
SECTION 2.02. Obligations Unconditional. The obligations of
the Guarantors under Section 2.01 are absolute and unconditional, joint and
several, irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of the Borrower under the Loan Agreements or
any other agreement or instrument referred to herein or therein, or any
substitution, release or exchange of any other guarantee of or security for any
of the Guaranteed Obligations, and, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a surety or
guarantor, it being the intent of this Section 2.02 that the obligations of the
Guarantors hereunder shall be absolute and unconditional, joint and several,
under any and all circumstances. Without limiting the generality of the
foregoing, it is agreed that the occurrence of any one or more of the following
shall not alter or impair the liability of the Guarantors hereunder which shall
remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to
the Guarantors, the time for any performance of or compliance with any
of the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions
of the Loan Agreements or any other agreement or instrument referred to
herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right under
the Loan Agreements or any other agreement or instrument referred to
herein or therein shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with; or
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(iv) any lien or security interest granted to, or in
favor of, either Agent or any Secured Party as security for any of the
Guaranteed Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that either Agent or any
Secured Party exhaust any right, power or remedy or proceed against the Borrower
under the Loan Agreements or any other agreement or instrument referred to
herein or therein, or against any other Person under any other guarantee of, or
security for, any of the Guaranteed Obligations.
SECTION 2.03. Reinstatement. The obligations of the Guarantors
under this Article shall be automatically reinstated if and to the extent that
for any reason any payment by or on behalf of the Borrower in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored by any holder
of any of the Guaranteed Obligations, whether as a result of any proceedings in
bankruptcy or reorganization or otherwise and the Guarantors jointly and
severally agree that they will indemnify each Agent and Secured Party on demand
for all reasonable costs and expenses (including fees of counsel) incurred by
such Agent or Secured Party in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law.
SECTION 2.04. Subrogation. Each Guarantor hereby waives all
rights of subrogation or contribution, whether arising by contract or operation
of law (including any such right arising under the Federal Bankruptcy Code of
1978, as amended) or otherwise by reason of any payment by it pursuant to the
provisions of this Article II and further agrees with the Borrower for the
benefit of each of its creditors (including each Agent and Secured Party) that
any such payment by it shall constitute a contribution of capital by such
Guarantor to the Borrower (or an investment by such Guarantor in the equity
capital of the Borrower).
SECTION 2.05. Remedies. The Guarantors jointly and severally
agree that, as between the Guarantors and the Secured Parties, the obligations
of the Borrower under the Loan Agreements may be declared to be forthwith due
and payable as provided in Article VIII of the respective Loan Agreements (and
shall be deemed to have become automatically due and payable in
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the circumstances provided in said Article VIII) for purposes of Section 2.01
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or such obligations from becoming automatically due and payable) as
against the Borrower and that, in the event of such declaration (or such
obligations being deemed to have become automatically due and payable), such
obligations (whether or not due and payable by the Borrower) shall forthwith
become due and payable by the Guarantors for purposes of said Section 2.01.
SECTION 2.06. Instrument for the Payment of Money. Each
Guarantor hereby acknowledges that the guarantee in this Article constitutes an
instrument for the payment of money, and consents and agrees that any Agent or
Secured Party, at its sole option, in the event of a dispute by such Guarantor
in the payment of any moneys due hereunder, shall have the right to bring
motion-action under New York CPLR Section 3213.
SECTION 2.07. Continuing Guarantee. The guarantee in
this Article is a continuing guarantee, and shall apply to all
Guaranteed Obligations whenever arising.
SECTION 2.08. Rights of Contribution. The Guarantors hereby
agree, as between themselves, that if any Guarantor shall become an Excess
Funding Guarantor (as defined below) by reason of the payment by such Guarantor
of any Guaranteed Obligations, each other Guarantor shall, on demand of such
Excess Funding Guarantor (but subject to the next sentence), pay to such Excess
Funding Guarantor an amount equal to such Guarantor's Pro Rata Share (as defined
below and determined, for this purpose, without reference to the properties,
debts and liabilities of such Excess Funding Guarantor) of the Excess Payment
(as defined below) in respect of such Guaranteed Obligations. The payment
obligation of a Guarantor to any Excess Funding Guarantor under this Section
2.08 shall be subordinate and subject in right of payment to the prior payment
in full of the obligations of such Guarantor under the other provisions of this
Article and such Excess Funding Guarantor shall not exercise any right or remedy
with respect to such excess until payment and satisfaction in full of all of
such obligations.
For purposes of this Section 2.08, (a) "Excess Funding
Guarantor" means, in respect of any Guaranteed Obligations, a Guarantor that has
paid an amount in excess of its Pro Rata Share of such Guaranteed Obligations,
(b) "Excess Payment" means, in respect of any Guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
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Guaranteed Obligations and (c) "Pro Rata Share" means, for any Guarantor, the
ratio (expressed as a percentage) of (i) the amount by which the aggregate
present fair saleable value of all properties of such Guarantor (excluding any
shares of stock of any other Guarantor) exceeds the amount of all the debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder and any obligations of any other Guarantor that have been Guaranteed
by such Guarantor) to (ii) the amount by which the aggregate fair saleable value
of all properties of all of the Restricted Companies exceeds the amount of all
the debts and liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities, but excluding the obligations of the Restricted
Companies hereunder and under the other Loan Documents) of all of the Restricted
Companies, determined (A) with respect to any Guarantor that is a party hereto
on the Effective Date, as of the Effective Date, and (B) with respect to any
other Guarantor, as of the date such Guarantor becomes a Guarantor hereunder.
SECTION 2.09. General Limitation on Guarantee Obligations. In
any action or proceeding involving any state corporate law, or any state or
Federal bankruptcy, insolvency, reorganization or other law affecting the rights
of creditors generally, if the obligations of any Guarantor under Section 2.01
would otherwise, taking into account the provisions of Section 2.08, be held or
determined to be void, invalid or unenforceable, or subordinated to the claims
of any other creditors, on account of the amount of its liability under said
Section 2.01, then, notwithstanding any other provision hereof to the contrary,
the amount of such liability shall, without any further action by such
Guarantor, any Agent or Secured Party or any other Person, be automatically
limited and reduced to the highest amount that is valid and enforceable and not
subordinated to the claims of other creditors as determined in such action or
proceeding.
ARTICLE III
Representations and Warranties
Each Restricted Company represents and warrants to each Agent
and Secured Party that:
(a) Such Restricted Company is the sole beneficial
owner of the Collateral in which it purports to grant a security
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interest pursuant to Article IV and no Lien exists or will exist upon such
Collateral at any time (and no right or option to acquire the same exists in
favor of any other Person), except for Liens permitted under Section 7.02 of the
respective Loan Agreements and except for the pledge and security interest in
favor of the Collateral Agent for the benefit of the Secured Parties created or
provided for herein and in the other Security Documents, which pledge and
security interest will, upon perfection under the applicable provisions of the
Uniform Commercial Code (but subject in any event to such Liens permitted under
said Section 7.02) constitute a first priority perfected pledge and security
interest in and to all of such Collateral, to the extent such pledge and
security interest can be perfected under the Uniform Commercial Code.
(b) The Pledged Equity identified under the name of such
Restricted Company in Annex 1 is, and all other Pledged Equity in which such
Restricted Company shall hereafter grant a security interest pursuant to Article
IV will be, duly authorized, validly existing, fully paid and non-assessable (in
the case of any equity interest in a corporation) and duly issued and
outstanding (in the case of any equity interest in any other entity), and none
of such Pledged Equity is or will be subject to any contractual restriction, or
any restriction under the charter, by-laws, partnership agreement or other
organizational document of the respective Issuer of such Pledged Equity, upon
the transfer of such Pledged Equity (except for any such restriction contained
herein or identified in Annex 1).
(c) The Pledged Equity identified under the name of such
Restricted Company in Annex 1 constitutes all of the issued and outstanding
shares of capital stock, partnership or other ownership interest of any class or
character of the Issuers beneficially owned by such Restricted Company on the
date hereof (whether or not registered in the name of the such Restricted
Company) and Annex 1 correctly identifies, as at the date hereof, the respective
Issuers of such Pledged Equity and (in the case of any corporate Issuer) the
respective class and par value of the shares comprising such Pledged Equity and
the respective number of shares (and registered owners thereof) represented by
each such certificate.
(d) Annex 2 sets forth under the name of such Restricted
Company a complete and correct list of all Trademarks owned by such Restricted
Company on the date hereof.
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ARTICLE IV
Collateral
As collateral security for the prompt payment in full when due
(whether at stated maturity, by acceleration or otherwise) of the Secured
Obligations, each Restricted Company hereby pledges and grants to the Collateral
Agent, for the benefit of the Secured Parties as hereinafter provided, a
security interest in all of such Restricted Company's right, title and interest
in the following property, whether now owned by such Restricted Company or
hereafter acquired and whether now existing or hereafter coming into existence
(all being collectively referred to herein as "Collateral"):
(a) the shares of common and preferred stock of, or
partnership and other ownership interest in, the Issuers identified in
Annex 1 under the name of such Restricted Company (as the same shall be
supplemented from time to time under a Joinder Agreement executed
pursuant to Section 7.12) and all other shares of capital stock, or
partnership or other ownership interest, of whatever class or character
of the Issuers, now or hereafter owned by such Restricted Company, in
each case together with the certificates evidencing the same
(collectively, the "Pledged Equity");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Equity, or representing a distribution
or return of capital upon or in respect of the Pledged Equity, or
resulting from a split-up, revision, reclassification or other like
change of the Pledged Equity or otherwise received in exchange
therefor, and any subscription warrants, rights or options issued to
the holders of, or otherwise in respect of, the Pledged Equity;
(c) without affecting the obligations of such Restricted
Company under any provision prohibiting such action hereunder or under
the Loan Agreements, in the event of any consolidation or merger in
which an Issuer is not the surviving entity, all ownership interests of
any class or character of the successor entity (unless such successor
entity is such Restricted Company itself) formed by or resulting from
such consolidation or merger (the Pledged Equity, together with all
other certificates, shares, securities, properties or moneys as may
from time to time be pledged hereunder pursuant to clause (a) or (b)
above and
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this clause (c) being herein collectively called the "Equity
Collateral");
(d) all accounts and general intangibles (each as defined in
the Uniform Commercial Code) of such Restricted Company constituting
any right to the payment of money, including all moneys due and to
become due to such Restricted Company in respect of any loans or
advances or for Inventory or Equipment or other goods sold or leased or
for services rendered, all moneys due and to become due to such
Restricted Company under any guarantee (including a letter of credit)
of the purchase price of Inventory or Equipment sold by such Restricted
Company and all tax refunds (such accounts, general intangibles and
moneys due and to become due being herein called collectively
"Accounts");
(e) all instruments, chattel paper or letters of credit (each
as defined in the Uniform Commercial Code) of such Restricted Company
evidencing, representing, arising from or existing in respect of,
relating to, securing or otherwise supporting the payment of, any of
the Accounts, including promissory notes, drafts, bills of exchange and
trade acceptances (herein collectively called "Instruments");
(f) all Trademark Collateral of such Restricted Company and
all other accounts or general intangibles of such Restricted Company
not constituting Trademark
Collateral or Accounts;
(g) all inventory (as defined in the Uniform Commercial Code)
of such Restricted Company (including all handsets, telephones and
other similar equipment held by such Restricted Company for sale or
lease to customers), all goods obtained by such Restricted Company in
exchange for such inventory, and any products made or processed from
any inventory including all substances, if any, commingled therewith or
added thereto (herein collectively called "Inventory");
(h) all equipment (as defined in the Uniform Commercial Code)
of such Restricted Company, including all transmitter, switch and
related equipment (herein collectively called "Equipment");
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(i) each contract and other agreement of such Restricted
Company relating to the sale or other disposition of Inventory or
Equipment; all documents of title (as defined in the Uniform Commercial
Code) or other receipts of such Restricted Company covering, evidencing
or representing Inventory or Equipment; and all rights, claims and
benefits of such Restricted Company against any Person arising out of,
relating to or in connection with Inventory or Equipment purchased by
such Restricted Company, including any such rights, claims or benefits
against any Person storing or transporting Inventory or Equipment;
(j) all customer lists, customer contracts and sales agent
agreements with respect to the operation of the Mobile Communications
Business by such Restricted Company;
(k) to the maximum extent permitted under the applicable
instrument pursuant to which such easements, rights of way and leases
arise, all easements and rights of way, and all right, title and
interest of such Restricted Company in, to and under any leases entered
into by such Restricted Company for transmitter sites, switching
stations and other locations in connection with the operation of the
Mobile Communications Business by such Restricted Company; and
(l) all rights of such Restricted Company under or relating to
FCC Licenses and PUC Authorizations and the proceeds from the sale of
any FCC Licenses or PUC Authorizations or any goodwill or other
intangible rights or benefits associated therewith, provided that such
security interest does not include at any time any FCC Licenses to the
extent (but only to the extent) that at such time the Collateral Agent
may not validly possess a security interest therein pursuant to the
Communications Act of 1934, as amended, and the regulations promulgated
thereunder, as in effect at such time, but such security interest does
include, to the maximum extent permitted by law, all rights incident or
appurtenant to FCC Licenses and the right to receive all proceeds
derived from or in connection with the sale, assignment or transfer of
the FCC Licenses;
(m) the balance from time to time in the Collateral
Accounts; and
(n) all other tangible and intangible personal
property and fixtures of such Restricted Company, including
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all proceeds, products, offspring, accessions, rents, profits, income,
benefits, substitutions and replacements of and to any of the property
of such Restricted Company described in the preceding clauses of this
Article IV (including any proceeds of insurance thereon and all causes
of action, claims and warranties now or hereafter held by such
Restricted Company in respect of any of the items listed above) and, to
the extent related to any property described in said clauses or such
proceeds, products and accessions, all books, correspondence, credit
files, records, invoices and other papers, including all tapes, cards,
computer runs and other papers and documents in the possession or under
the control of such Restricted Company or any computer bureau or
service company from time to time acting for such Restricted Company
provided that in the case of any of the foregoing that consists of general or
limited partnership interests in a general or limited partnership, the security
interest hereunder shall be deemed to be created only to the maximum extent
permitted under the applicable organizational instrument pursuant to which such
partnership is formed.
ARTICLE V
Collateral Accounts
SECTION 5.01. Collateral Account. There is hereby established
with The Chase Manhattan Bank, as Collateral Agent, five segregated deposit
accounts (respectively, the "Sale Proceeds Reinvestment Account", the "Casualty
Event Proceeds Account", the "Tax Proceeds Account", the "Letter of Credit
Account" and the "Concentration Account"; collectively, the "Collateral
Accounts"), each in the name and under the control of the Collateral Agent into
which there shall be deposited all cash generated by the Restricted Companies
(whether or not in the ordinary course of business) as follows:
(a) the Restricted Companies shall deposit into the Sale
Proceeds Reinvestment Account, the Net Cash Payments of any Disposition
(as each of such capitalized terms is defined in the respective Loan
Agreements on the date hereof) that, pursuant to clause (y) of Section
2.09(b)(ii) of the respective Loan Agreements, the Restricted Companies
elect to deliver to the Collateral Agent pending
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reinvestment of such Net Cash Payments into replacement assets;
(b) the Restricted Companies shall deposit into the Casualty
Event Proceeds Account, if such proceeds exceed $5,000,000, the
proceeds (inclusive of such $5,000,000) of any insurance, condemnation
award or other compensation received as a result of any Casualty Event
in respect Collateral hereunder;
(c) the Restricted Companies shall deposit into the Tax
Proceeds Account, that portion of the cash payment received by the
Restricted Companies directly or indirectly in connection with any
Disposition (as such term in defined in the respective Loan Agreements
on the date hereof) that represents the income or other taxes estimated
to be payable by the Restricted Companies as a result of such
Disposition and that are deducted in determining the amount of "Net
Cash Payments" (as so defined) with respect to such Disposition;
(d) the Restricted Companies shall deposit into the Letter of
Credit Account monies required to be deposited therein from time to
time pursuant to Section 2.04(i) of the Credit Agreement; and
(e) the Restricted Companies shall deposit into the
Concentration Account all other cash generated or received by the
Restricted Companies (whether or not in the ordinary course of
business), including the cash proceeds of all sales or other
dispositions of Collateral, the proceeds of all service charges, fees
and lease payments received from customers in the ordinary course of
business and any proceeds of any insurance, condemnation award or other
compensation received as a result of any Casualty Event in respect
Collateral hereunder that is not deposited into the Casualty Event
Proceeds Account.
To implement the provisions of the foregoing clause (e), each Restricted Company
shall instruct all account debtors and other Persons obligated in respect of all
Accounts of such Restricted Company to make all payments in respect of such
Accounts either (i) directly to the Collateral Agent by instructing that such
payments be remitted to a post office box which shall be in the name and under
the control of the Collateral Agent (and the Collateral Agent agrees, upon
receipt of any such payments, to immediately deposit the same into the
Concentration Account) or (ii) to one or more other banks in the United States
of America
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(by instructing that such payments be remitted to a post office box
which shall be in the name and under the control of the Collateral Agent) under
arrangements, in form and substance satisfactory to the Collateral Agent
pursuant to which such Restricted Company shall have irrevocably instructed such
other bank (and such other bank shall have agreed) to remit allproceeds of such
payments directly to the Collateral Agent for deposit into the Concentration
Account.
In addition to the foregoing, each Restricted Company agrees
that if the proceeds of any Collateral hereunder (including any payments made in
respect of Accounts) shall be received by it, such Restricted Company shall as
promptly as possible deposit such proceeds into the appropriate Collateral
Account. Until so deposited, all such proceeds shall be held in trust by such
Restricted Company for and as the property of the Collateral Agent and shall not
be commingled with any other funds or property of such Restricted Company.
SECTION 5.02. Application of Monies in Collateral Accounts.
The balance from time to time in the Collateral Accounts shall constitute part
of the Collateral hereunder, shall not constitute payment of the Secured
Obligations until applied to the Secured Obligations as hereinafter provided and
shall be released to the Restricted Companies (or otherwise be subject to
withdrawal) only as follows:
(a) monies and investments in the Sale Proceeds Reinvestment
Account may be withdrawn only in connection with a reinvestment
transaction permitted under Section 2.09(b)(ii) of the respective Loan
Agreements, or for application to the prepayment of Loans (or cover for
Letters of Credit) as contemplated by said Section 2.09(b)(ii),
provided that (without the consent of the Required Secured Parties) the
Collateral Agent shall not be obligated to release such monies for
application to a reinvestment transaction at any time after the
occurrence and during the continuance of any Event of Default;
(b) monies and investments in the Casualty Event Proceeds
Account may be withdrawn only in connection with the replacement,
restoration and repair of the property affected by such Casualty Event
(the "Damaged Property"), or for application to the prepayment of Loans
(or cover for Letters of Credit) pursuant to Section 2.09(a) of the
Loan Agreements (in such manner as the Borrower shall elect), and if
the respective Restricted Company elects to so replace or
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restore and repair Damaged Property, any such monies shall be advanced
to such Restricted Company by the Collateral Agent in periodic
installments upon compliance by such Restricted Company with such
reasonable conditions to disbursement as may be imposed by the
Collateral Agent, including, but not limited to, reasonable retention
amounts and receipt of lien releases, provided that (without the
consent of the Required Secured Parties) the Collateral Agent shall not
be obligated to release such monies for application to any such
replacement, restoration, repair or prepayment at any time after the
occurrence and during the continuance of any Event of Default;
(c) monies and investments in the Tax Proceeds Account may be
withdrawn only in connection with the payment of taxes as contemplated
by the definition of "Net Cash Payments" in the respective Loan
Agreements, or for application to the prepayment of Loans (or cover for
Letters of Credit) as contemplated by said Section 2.09(b)(ii),
provided that (without the consent of the Required Secured Parties) the
Collateral Agent shall not be obligated to release such monies for
application to the payment of taxes at any time after the occurrence
and during the continuance of any Event of Default;
(d) monies and investments in the Letter of Credit Account may
be applied only to the payment of LC Disbursements for which the
respective Issuing Banks have not been reimbursed by the Borrower or,
but only with the consent of the Required Revolving Credit Lenders, to
the payment of other Secured Obligations and, after the payment in full
of all LC Disbursements and the expiration or termination of all
Letters of Credit, to the payment of any other Secured Obligations as
shall at the time be payable hereunder; and
(e) monies and investments in the Concentration Account may be
withdrawn only in connection with remitting the same to bank deposit
accounts (such as payroll and other accounts) maintained by the
Restricted Companies for use in the ordinary course of business, to
make Capital Expenditures, to make acquisitions and investments
permitted under Section 7.04 of the respective Loan Agreements, to make
Restricted Payments permitted under Section 7.05 of the respective Loan
Agreements, or to make payments or prepayments of principal, interest
or other amounts in
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respect of Indebtedness (including Loans) or Hedging Agreements
permitted under the respective Loan Agreements.
In connection with any release of monies in any of the Collateral Accounts
described above, the Collateral Agent shall be entitled to rely upon a
certificate of a Financial Officer (and upon such other evidence, if any, as the
Collateral Agent shall deem appropriate). At any time following the occurrence
and during the continuance of an Event of Default, the Collateral Agent may
(and, if instructed by the Required Secured Parties shall) in its (or their)
discretion apply or cause to be applied (subject to collection) the balance from
time to time outstanding to the credit of any of the Collateral Accounts to the
payment of the Secured Obligations in the manner specified in Section 6.09.
SECTION 5.03. Investment of Balances in Collateral Accounts.
Amounts on deposit in the Collateral Accounts shall be invested from time to
time in such Permitted Investments as the Borrower (or, after the occurrence and
during the continuance of a Default, the Collateral Agent) shall determine,
which Permitted Investments shall be held in the name and be under the control
of the Collateral Agent, provided that at any time after the occurrence and
during the continuance of an Event of Default, the Collateral Agent may (and, if
instructed by the Required Secured Parties shall) in its (or their) discretion
at any time and from time to time elect to liquidate any such Permitted
Investments and to apply or cause to be applied the proceeds thereof to the
payment of the Secured Obligations in the manner specified in Section 6.09.
ARTICLE VI
Further Assurances; Remedies
In furtherance of the grant of the pledge and security
interest pursuant to Article IV, each Restricted Company hereby agrees with each
Agent and Secured Party as follows:
SECTION 6.01. Delivery and Other Perfection. Such
Restricted Company shall:
(a) if any of the shares, securities, moneys or property
required to be pledged by such Restricted Company under clauses (a),
(b) and (c) of Article IV are received by such Restricted Company,
forthwith either (x) transfer and deliver to the Collateral Agent such
shares or securities so
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received by such Restricted Company (together with the certificates
for any such shares and securities duly endorsed in blank or
accompanied by undated stock powers duly executed in blank), all of
which thereafter shall be held by the collateral Agent, pursuant to
the terms of this Agreement, as part of the Collateral or (y) take
such other action as the Collateral Agent reasonably shall deem
necessary or appropriate to duly record the Lien created hereunder in
such shares, securities, moneys or property in said clauses (a), (b)
and (c);
(b) deliver and pledge to the Collateral Agent any and all
Instruments, endorsed and/or accompanied by such instruments of
assignment and transfer in such form and substance as the Collateral
Agent may reasonably request; provided, that so long as no Event of
Default shall have occurred and be continuing, such Restricted Company
may retain for collection in the ordinary course any Instruments
received by such Restricted Company in the ordinary course of business
and the Collateral Agent shall, promptly upon request of such
Restricted Company, make appropriate arrangements for making any
Instrument pledged by such Restricted Company available to such
Restricted Company for purposes of presentation, collection or renewal
(any such arrangement to be effected, to the extent deemed appropriate
by the Collateral Agent, against trust receipt or like document);
(c) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the reasonable judgment of the
Collateral Agent) to create, preserve, perfect or validate the security
interest granted pursuant hereto or to enable the Collateral Agent to
exercise and enforce its rights hereunder with respect to such pledge
and security interest, including causing any or all of the Equity
Collateral to be transferred of record into the name of the Collateral
Agent or its nominee (and the Collateral Agent agrees that if any
Equity Collateral is transferred into its name or the name of its
nominee, the Collateral Agent will thereafter promptly give to such
Restricted Company copies of any notices and communications received by
it with respect to the Equity Collateral), provided that notices to
account debtors in respect of any Accounts or Instruments shall be
subject to the provisions of clause (f) below;
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(d) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise mark such books and records in such
manner as the Collateral Agent may reasonably require in order to
reflect the security interests granted by this Agreement;
(e) permit representatives of the Collateral Agent, upon
reasonable notice, at any time during normal business hours to inspect
and make abstracts from its books and records pertaining to the
Collateral, and permit representatives of the Collateral Agent to be
present at such Restricted Company's place of business to receive
copies of all communications and remittances relating to the
Collateral, and forward copies of any notices or communications
received by such Restricted Company with respect to the Collateral, all
in such manner as the Collateral Agent may reasonably require; and
(f) upon the occurrence and during the continuance of any
Event of Default, upon request of the Collateral Agent, promptly notify
(and such Restricted Company hereby authorizes the Collateral Agent so
to notify) each account debtor in respect of any Accounts or
Instruments of such Restricted Company that such Collateral has been
assigned to the Collateral Agent hereunder, and that any payments due
or to become due in respect of such Collateral are to be made directly
to the Collateral Agent.
SECTION 6.02. Other Financing Statements and Liens. Except as
otherwise permitted under Section 7.02 of the respective Loan Agreements,
without the prior written consent of the Collateral Agent (granted with the
authorization of the Required Secured Parties), no Restricted Company shall file
or suffer to be on file, or authorize or permit to be filed or to be on file, in
any jurisdiction, any financing statement or like instrument with respect to the
Collateral in which the Collateral Agent is not named as the sole secured party
for the benefit of the Secured Parties.
SECTION 6.03. Preservation of Rights. The Collateral
Agent shall not be required to take steps necessary to preserve
any rights against prior parties to any of the Collateral.
SECTION 6.04. Special Provisions Relating to Equity
Collateral.
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(a) So long as no Event of Default shall have occurred and be
continuing, each Restricted Company shall have the right to exercise all voting,
consensual and other powers of ownership pertaining to the Equity Collateral for
all purposes not inconsistent with the terms of this Agreement, the Loan
Agreements, the other Loan Documents or any other instrument or agreement
referred to herein or therein, provided that such Restricted Company agrees that
it will not vote the Equity Collateral in any manner that is inconsistent with
the terms of this Agreement, the Loan Agreements, the other Loan Documents or
any such other instrument or agreement; and the Collateral Agent shall execute
and deliver to such Restricted Company or cause to be executed and delivered to
such Restricted Company all such proxies, powers of attorney, dividend and other
orders, and all such instruments, without recourse, as such Restricted Company
may reasonably request for the purpose of enabling such Restricted Company to
exercise the rights and powers that it is entitled to exercise pursuant to this
Section 6.04(a).
(b) Unless and until an Event of Default has occurred and is
continuing, such Restricted Company shall, subject to Article V, be entitled to
receive and retain any dividends or distributions in respect of the Equity
Collateral.
SECTION 6.05. Events of Default, Etc. During the
period during which an Event of Default shall have occurred and
be continuing:
(a) each Restricted Company shall, at the request of the
Collateral Agent, assemble the Collateral owned by it at such place or
places, reasonably convenient to both the Collateral Agent and such
Restricted Company, designated in its request;
(b) the Collateral Agent may make any reasonable compromise or
settlement deemed desirable with respect to any of the Collateral and
may extend the time of payment, arrange for payment in installments, or
otherwise modify the terms of, any of the Collateral;
(c) the Collateral Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party under the
Uniform Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled
under the laws in effect in any jurisdiction where any rights and
remedies
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hereunder may be asserted, including the right, to the maximum extent
permitted by law, to exercise all voting, consensual and other powers
of ownership pertaining to the Collateral as if the Collateral Agent
were the sole and absolute owner thereof (and each Restricted Company
agrees to take all such action as may be appropriate to give effect to
such right);
(d) the Collateral Agent in its discretion may, in its name or
in the name of the Restricted Companies or otherwise, demand, sue for,
collect or receive any money or property at any time payable or
receivable on account of or in exchange for any of the Collateral, but
shall be under no obligation to do so; and
(e) the Collateral Agent may, upon ten business days' prior
written notice to the Restricted Companies of the time and place, with
respect to the Collateral or any part thereof that shall then be or
shall thereafter come into the possession, custody or control of the
Collateral Agent, the Secured Parties or any of their respective
agents, sell, lease, assign or otherwise dispose of all or any part of
such Collateral, at such place or places as the Collateral Agent deems
best, and for cash or for credit or for future delivery (without
thereby assuming any credit risk), at public or private sale, without
demand of performance or notice of intention to effect any such
disposition or of the time or place thereof (except such notice as is
required above or by applicable statute and cannot be waived), and the
Collateral Agent or any Secured Party or anyone else may be the
purchaser, lessee, assignee or recipient of any or all of the
Collateral so disposed of at any public sale (or, to the extent
permitted by law, at any private sale) and thereafter hold the same
absolutely, free from any claim or right of whatsoever kind, including
any right or equity of redemption (statutory or otherwise), of the
Restricted Companies, any such demand, notice and right or equity being
hereby expressly waived and released. The Collateral Agent may, without
notice or publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the time and
place fixed for the sale, and such sale may be made at any time or
place to which the sale may be so adjourned.
The proceeds of each collection, sale or other disposition under this Section
6.05 shall be applied in accordance with Section 6.09.
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The Restricted Companies recognize that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and applicable
state securities laws, the Collateral Agent may be compelled, with respect to
any sale of all or any part of the Collateral, to limit purchasers to those who
will agree, among other things, to acquire the Collateral for their own account,
for investment and not with a view to thedistribution or resale thereof. The
Restricted Companies acknowledge that any such private sales may be at prices
and on terms less favorable to the Collateral Agent than those obtainable
through a public sale without such restrictions, and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner and that the Collateral Agent shall
have no obligation to engage in public sales and no obligation to delay the sale
of any Collateral for the period of time necessary to permit the respective
Issuer or issuer thereof to register it for public sale.
SECTION 6.06. Deficiency. If the proceeds of sale, collection
or other realization of or upon the Collateral pursuant to Section 6.05 are
insufficient to cover the costs and expenses of such realization and the payment
in full of the Secured Obligations, the Restricted Companies shall remain liable
for any deficiency.
SECTION 6.07. Removals, Etc. Without at least 30 days' prior
written notice to the Collateral Agent, no Restricted Company shall (i) maintain
any of its books and records with respect to the Collateral at any office or
maintain its principal place of business other than at the address for notices
to the Borrower specified in Section 10.01 of the respective Loan Agreements or
at one of the locations identified in Annex 3 or in transit from one of such
locations to another or (ii) change its name, or the name under which it does
business, from the name shown on the signature pages hereto.
SECTION 6.08. Private Sale. Neither Agent nor any Secured
Party shall incur any liability as a result of the sale of the Collateral, or
any part thereof, at any private sale pursuant to Section 6.05 conducted in a
commercially reasonable manner. So long as such sale is conducted in a
commercially reasonable manner, each Restricted Company hereby waives any claims
against the Agents and the Secured Parties arising by reason of the fact that
the price at which the Collateral may have been sold at such a private sale was
less than the price that might have been obtained at a public sale or was less
than
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the aggregate amount of the Secured Obligations, even if the Collateral
Agent accepts the first offer received and does not offer the Collateral to more
than one offeree.
SECTION 6.09. Application of Proceeds. Except as otherwise
herein expressly provided, the proceeds of any collection, sale or other
realization of all or any part of the Collateral pursuant hereto, and any other
cash at the time held by the Collateral Agent under Article V or this Article
VI, shall be applied by the Collateral Agent:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable
out-of-pocket costs and expenses of the Collateral Agent and the fees
and expenses of its agents and counsel, and all expenses incurred and
advances made by the Collateral Agent in connection therewith;
Next, to the payment in full of the Secured Obligations, in
each case equally and ratably in accordance with the respective amounts
thereof then due and owing or as the Secured Parties holding the same
may otherwise agree; and
Finally, to the payment to the respective Restricted Company,
or their respective successors or assigns, or as a court of competent
jurisdiction may direct, of any surplus then remaining.
As used in this Article VI, "proceeds" of Collateral shall
mean cash, securities and other property realized in respect of, and
distributions in kind of, Collateral, including any thereof received under any
reorganization, liquidation or adjustment of debt of the Restricted Companies or
any issuer of or obligor on any of the Collateral.
SECTION 6.10. Attorney-in-Fact. Without limiting any rights or
powers granted by this Agreement to the Collateral Agent while no Event of
Default has occurred and is continuing, upon the occurrence and during the
continuance of any Event of Default the Collateral Agent is hereby appointed the
attorney-in-fact of the Restricted Companies for the purpose of carrying out the
provisions of this Article and taking any action and executing any instruments
that the Collateral Agent may deem necessary or advisable to accomplish the
purposes hereof, which appointment as attorney-in-fact is irrevocable and
coupled with an interest. Without limiting the generality of the foregoing,
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so long as the Collateral Agent shall be entitled under this Article to make
collections in respect of the Collateral, the Collateral Agent shall have the
right and power to receive, endorse and collect all checks made payable to the
order of any Restricted Company representing any dividend, payment or other
distribution in respect of the Collateral or any part thereof and to give full
discharge for the same.
SECTION 6.11. Perfection. Prior to or concurrently with the
execution and delivery of this Agreement, each Restricted Company shall (i) file
such financing statements and other documents in such offices as the Collateral
Agent may request to perfect the security interests granted by Article IV and
(ii) deliver to the Collateral Agent all certificates identified in Annex 1
hereto, accompanied by undated stock powers duly executed in blank.
SECTION 6.12. Termination. When all Secured Obligations shall
have been paid in full and the Commitments of the Secured Parties under the
respective Loan Agreements shall have expired or been terminated, this Agreement
shall terminate, and the Collateral Agent shall forthwith cause to be assigned,
transferred and delivered, against receipt but without any recourse, warranty or
representation whatsoever, any remaining Collateral and money received in
respect thereof, to or on the order of the respective Restricted Company. The
Collateral Agent shall also execute and deliver to respective Restricted Company
upon such termination such Uniform Commercial Code termination statements and
such other documentation as shall be reasonably requested by the respective
Restricted Company to effect the termination and release of the Liens on the
Collateral.
SECTION 6.13. Further Assurances. Each Restricted Company
agrees that, from time to time upon the written request of the Collateral Agent,
such Restricted Company will execute and deliver such further documents and do
such other acts and things as the Collateral Agent may reasonably request in
order fully to effect the purposes of this Agreement. Without limiting the
generality of the foregoing, the Restricted Companies will take such action from
time to time as shall be necessary so that all leasehold and other real property
interests of the Restricted Companies are subjected to Liens in favor of the
Collateral Agent as collateral security for the Secured Obligations (and in that
connection will obtain appropriate consents of landlords, in form and substance
satisfactory to the Collateral Agent, with respect to any such leasehold
interest arising after the date hereof and
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ARTICLE VII
Miscellaneous
will use its best efforts to obtain such consents with respect to all such
leasehold interests existing on the date hereof).
SECTION 7.01. Notices. All notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to the Borrower, to it at 1505 Farm Credit
Drive, Suite 100, McLean, Virginia 22102, Attention Steven
Shindler, Senior Vice President and Chief Financial Officer
(Telecopy No. 703-394-3011);
(b) if to any Restricted Company other than the Borrower, to
such Restricted Company care of the Borrower at the address for notices
indicated in clause (a) above; and
(c) if to the Collateral Agent, to it at One Chase
Manhattan Plaza, 4th Floor, Attention Tracy Navin, (Telecopy
No. 212-552-4905).
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 7.02. Waivers; Amendments.
(a) No failure or delay by either Agent or any Secured Party
in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Agents and the Secured Parties
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Restricted Companies therefrom shall in any
event be effective unless the same shall be permitted by paragraph (b) of
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this Section 7.02, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given.
(b) Neither this Agreement nor any other Security Document nor
any provision hereof or thereof may be waived, amended or modified except
pursuant to an agreement or agreements in writing entered into by the Restricted
Companies party thereto, and by the Collateral Agent with the consent of the
appropriate Secured Parties as more particularly provided in Section 5.02(c) of
the Intercreditor and Collateral Agency Agreement.
SECTION 7.03. Expenses.
(a) The Restricted Companies shall pay, or reimburse the
Agents or the Secured Parties for paying, (i) all amounts that the Collateral
Agent is required to make under any indemnity issued to any bank with which lock
box or segregated deposit arrangements are entered into pursuant to Section
5.01((i) of the respective Loan Agreements or this Agreement and (ii) all
out-of-pocket expenses incurred by either Agent or any Secured Party, including
the fees, charges and disbursements of any counsel for either Agent or any
Secured Party, in connection with the enforcement or protection of its rights in
connection with this Agreement, including its rights under this Section 7.03,
including in connection with any workout, restructuring or negotiations in
respect thereof.
(b) All amounts due under this Section 7.03 shall be payable
promptly after written demand therefor.
SECTION 7.04. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the respective
successors and assigns of the Restricted Companies, the Agents, the Secured
Parties and each holder of the Secured Obligations, except that no Restricted
Company may assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of the Collateral Agent (and any
attempted assignment or transfer by any Restricted Company without such consent
shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, the
Secured Parties and the respective successors and assigns of the Restricted
Companies, the Agents, the Secured Parties and each holder of the Secured
Obligations) any legal or equitable right, remedy or claim under or by reason of
this Agreement.
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SECTION 7.06. Counterparts. This Agreement may be
executed in counterparts (and by the parties hereto on different counterparts),
each of which shall constitute an original, but all of which when taken together
shall constitute a single contract.
SECTION 7.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 7.08. Governing Law. This Agreement shall be
construed in accordance with and governed by the law of the State
of New York.
SECTION 7.09. Headings. Article and Section headings used
herein are for convenience of reference only, are not part of this Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Agreement.
SECTION 7.10. Agents and Attorneys-in-Fact. The Collateral
Agent may employ agents and attorneys-in-fact in connection herewith and shall
not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
SECTION 7.11. Certain Regulatory Requirements.
(a) Each Restricted Company shall take all action that the
Collateral Agent may reasonably request in the exercise of its rights and
remedies hereunder, which include the right to require such Restricted Company
to transfer or assign the FCC Licenses or the PUC Authorizations to any party or
parties. In furtherance of this right, each Restricted Company shall (i)
cooperate fully with the Collateral Agent in obtaining all approvals and
consents from the FCC and each other Governmental Authority that the Collateral
Agent may deem necessary or advisable to accomplish any such transfer or
assignment of the FCC Licenses or the PUC Authorizations and (ii) prepare,
execute and file with the FCC and any other Governmental Authority any
application, request for consent, certificate or instrument that the Collateral
Agent may deem necessary or advisable to accomplish any such transfer or
assignment of the FCC Licenses or
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the PUC Authorizations. If any Restricted Company fails to execute such
applications, requests for consent, certificates or instruments, the clerk of
any court that has jurisdiction over the Loan Documents may, upon an ex parte
request by the Collateral Agent, execute and file the same on behalf of such
Restricted Company.
(b) To enforce the provisions of Section 6.05, the Collateral
Agent is authorized to request the consent or approval of the FCC or any other
Governmental Authority to a voluntary or an involuntary transfer of control of
any Restricted Company or the voluntary or involuntary assignment of any FCC
Licenses or PUC Authorizations held by any Restricted Company. In connection
with the exercise of its remedies under this Agreement, the Collateral Agent may
obtain the appointment of a trustee or receiver to assume, control of any
Restricted Company, subject to any required prior approval of the FCC or any
other Governmental Authority. Such trustee or receiver shall have all rights and
powers provided to it by law or by court order or provided to the Collateral
Agent under this Agreement.
(c) Notwithstanding anything to the contrary contained
in this Agreement,
(i) the Collateral Agent will not take any action
hereunder that would constitute or result in any transfer of control or
assignment of the FCC Licenses or any Restricted Company without
obtaining all necessary FCC and other Governmental Authority approvals.
The Collateral Agent, the Administrative Agent and the Secured Parties
shall be entitled to rely on the advice of FCC counsel selected by the
Collateral Agent to determine whether FCC approval or other
Governmental Authority approvals are required, and
(ii) the Collateral Agent shall not foreclose on, sell,
assign, transfer or otherwise dispose of, or exercise any right to
control the FCC Licenses as provided herein or take any other action
that would affect the operational, voting, or other control of any
Restricted Company, unless such action is taken in accordance with the
provisions of the Communications Act of 1934, as from time to time
amended, and the rules, regulations and policies of the FCC and any
other Governmental Authority.
(d) Each Restricted Company acknowledges that the approval of
the FCC and of each other appropriate Governmental Authority to the assignment
of the FCC Licenses or the transfer
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of control of such Restricted Company is integral to the Collateral Agent's
realization of the value of the Collateral, including the FCC Licenses, that
there is no adequate remedy at law for failure by such Restricted Company to
comply with the provisions of this Section 7.11 and that such failure could not
be adequately compensable in damages. Therefore, each Restricted Company agrees
that the provisions of this Section 7.11 may be specifically enforced.
SECTION 7.12. Additional Guarantors. As contemplated by
Section 6.11(a) of the respective Loan Agreements, in the event that any
Restricted Company shall form or acquire any new subsidiary after the date
hereof, such Restricted Company will cause such new subsidiary to execute and
deliver to the Collateral Agent a Joinder Agreement in the form of Exhibit E to
the respective Loan Agreements (and, thereby, to become a party to the Loan
Agreements as a "Restricted Company" thereunder, and to this Agreement and the
Intercreditor and Collateral Agency Agreement, as a "Guarantor" hereunder and
thereunder, and to pledge and grant a security interest in its property pursuant
to this Agreement to the Collateral Agent for the benefit of the Secured
Parties). Accordingly, upon the execution and delivery of any such Joinder
Agreement by any such new subsidiary, such new subsidiary shall automatically
and immediately, and without any further action on the part of any Person,
become a "Guarantor" under and for all purposes of this Agreement, and Annexes
1, 2 and 3 hereto shall be deemed to be supplemented in the manner specified in
said Joinder Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Guarantee and Security Agreement to be duly executed by their respective
authorized officers as of the day and year first above written.
NEXTEL FINANCE COMPANY,
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
INITIAL GUARANTORS
ADVANCED MOBILECOMM OF
NORTH CAROLINA, INC.
AIR LINK COMMUNICATIONS, INC.
AIRWAVE COMMUNICATIONS CORP.
(SEATTLE)
AMERICAN MOBILE SYSTEMS
INCORPORATED
C-CALL CORP.
COMQOR, INC.
CUSTOM RADIO/JOHNSON
COMMUNICATIONS, INC.
DIAL CALL, INC.
DIAL CALL ARKANSAS, INC.
DIAL CALL FLORIDA, INC.
DIAL CALL KENTUCKY, INC.
DIAL CALL LOUISIANA, INC.
DIAL CALL TEXAS, INC.
DIAL CALL VIRGINIA, INC.
DIAL CALL WEST VIRGINIA, INC.
DIAL DISTANCE, INC.
DISPATCH COMMUNICATIONS
OF ARIZONA, INC.
DISPATCH COMMUNICATIONS
OF MINNESOTA, INC.
DISPATCH COMMUNICATIONS
OF NEW ENGLAND, INC.
DISPATCH COMMUNICATIONS
OF MARYLAND, INC.
DISPATCH COMMUNICATIONS
OF PENNSYLVANIA, INC.
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ESMR SUB, INC.
FC NEW YORK, INC.
FCI 900, INC.
FLEET CALL CORPORATION
FLEET CALL OF TEXAS, INC.
FLEET CALL OF UTAH, INC.
FLEET CALL WEST, INC.
F-M TOWER COMPANY
FORT WORTH COMMUNICATIONS, INC.
METRACOM TRUNKED RADIO
COMMUNICATION SYSTEMS, INC.
METROLINK COMMUNICATIONS
CORPORATION
MIJAC ENTERPRISES, INC.
MOBILE RADIO OF ILLINOIS, INC.
MOTOROLA SF, INC.
NATIONAL TOWER TRUNKING
SYSTEMS, INC.
NEXTEL COMMUNICATIONS
OF THE MID-ATLANTIC, INC.
NEXTEL HAWAII ACQUISITION CORP.
NEXTEL OF TEXAS, INC.
NEXTEL UTAH ACQUISITION CORP.
NEXTEL WESTERN ACQUISITION CORP.
ONECOMM CORPORATION, N.A.
POWERFONE HOLDINGS, INC.
POWERFONE, INC.
SABER COMMUNICATIONS, INC.
SAFETY NET, INC.
SHORELAND COMMUNICATIONS, INC.
SMART SMR, INC.
SMART SMR OF CALIFORNIA, INC.
SMART SMR OF ILLINOIS, INC.
SMART SMR OF NEW YORK, INC.
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SPECTRUM RESOURCES
OF THE MIDWEST, INC.
TRS, INC.
U.S. DIGITAL, INC.
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
FORT WORTH TRUNKED RADIO
LIMITED PARTNERSHIP
By Fort Worth Communications,
Inc., a General Partner
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
COLLATERAL AGENT
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by /s/ Tracey A. Navin
-------------------------
Name: Tracey A. Navin
Title: Vice President
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Guarantee and Security Agreement
<PAGE> 142
EXHIBIT D
[Form of Intercreditor and Collateral Agency Agreement]
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT dated as of
September 27, 1996 between NEXTEL FINANCE COMPANY, a corporation duly organized
and validly existing under the laws of the State of Delaware (the "Borrower");
each of the subsidiaries of Nextel Communications, Inc. listed on the signature
pages hereto under the caption "INITIAL GUARANTORS" (the "Initial Guarantors");
each of the additional entities, if any, that becomes a "Guarantor" hereunder as
contemplated by Section 7.12 of the below-referenced Restricted Company
Guarantee and Security Agreement (each an "Additional Guarantor" and together
with the Initial Guarantors, the "Guarantors"; the Guarantors together with the
Borrower, being herein called the "Restricted Companies"); MOTOROLA, INC., a
Delaware corporation ("Motorola"); NTFC CAPITAL CORPORATION, a Delaware
corporation ("NTFC Capital" and, together with Motorola, the "Vendors"); TORONTO
DOMINION (TEXAS) INC., as administrative agent for the Lenders referred to below
(in such capacity, together with its successors in such capacity, the
"Administrative Agent"); and THE CHASE MANHATTAN BANK, as collateral agent for
the Vendors and for the Lenders referred to below (in such capacity, together
with its successors in such capacity, the "Collateral Agent").
Nextel Communications, Inc. ("NCI") and the Restricted
Companies are parties to (i) an Amended, Restated and Consolidated Credit
Agreement dated as of September 27, 1996 (as modified and supplemented and in
effect from time to time, the "Vendor Financing Agreement") with the Vendors,
providing, subject to the terms and conditions thereof, for loans to be made by
Motorola and NTFC Capital to the Borrower in an aggregate principal amount not
exceeding $345,000,000 and (ii) a Credit Agreement dated as of September 27,
1996 (as modified and supplemented and in effect from time to time, the "Credit
Agreement" and, together with the Vendor Financing Agreement, the "Loan
Agreements"), providing, subject to the terms and conditions thereof, for
extensions of credit (by means of loans and letters of credit) to be made by the
Lenders named therein (collectively, together with any entity that becomes a
"Lender" party to the Credit Agreement after the date hereof as provided
therein, the "Lenders" and, together with the Vendors and any successors or
assigns of any of the foregoing, the "Secured Parties") to the Borrower in an
aggregate principal or face amount not exceeding $1,655,000,000 (which, in the
circumstances contemplated by Section 7.01(f) thereof, may be increased to
$1,905,000,000). In addition, the Borrower may from time to time be obligated to
one or more of the Lenders under the Credit
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Agreement in respect of Hedging Agreements under and as defined in the Credit
Agreement (collectively, the "Hedging Agreements").
In connection with the foregoing, the parties hereto wish to
provide for the appointment of the Collateral Agent by the Vendors and for
certain arrangements with respect to the priority of security interests in favor
of the Secured Parties. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this
Agreement, the following terms have the meanings specified below:
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agents" means the Administrative Agent under the Credit
Agreement and the Collateral Agent hereunder.
"Applicable Percentage" means with respect to any Vendor in
respect of any indemnity claim under Section 7.03(a) of the Restricted Company
Guarantee and Security Agreement arising out of an action or omission of the
Collateral Agent under any Loan Document, the percentage of the total
Commitments under the Credit Agreement and under the Vendor Financing Agreement
represented by the aggregate amount of such Vendor's Commitments under the
Vendor Financing Agreement. If the Commitments under the Credit Agreement or
under the Vendor Financing Agreement have terminated or expired, the Applicable
Percentages shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.
"Commitments" means the "Commitments" of the Lenders under the
Credit Agreement (including any commitment to provide "Tranche E Loans"
thereunder in the circumstances contemplated by Section 7.01(f) of the Credit
Agreement) and the "Commitments" of the Vendors under the Vendor Financing
Agreement.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise
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voting power, by contract or otherwise. "Controlling" and "Controlled" have
meanings correlative thereto.
"Credit Parties" means NCI and the Restricted
Companies.
"Default" means any event or condition which constitutes an
Event of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Event of Default" means any "Event of Default" under the
Credit Agreement or any "Event of Default" under the Vendor Financing Agreement.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Hedging Agreements" has the meaning assigned to such
term in the preamble to this Agreement.
"LC Disbursement" has the meaning assigned to such term
in the Credit Agreement.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit under the Credit Agreement
at such time plus (b) the aggregate amount of all LC Disbursements that have not
yet been reimbursed by or on behalf of the Borrower at such time.
"Letters of Credit" means the "Letters of Credit" from time to
time issued under the Credit Agreement.
"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 and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
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<PAGE> 145
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"Loan Documents" means the Loan Agreements, any promissory
notes evidencing Loans under any Loan Agreement and the Security Documents.
"Loans" means the "Loans" made by the Lenders to the Borrower
under the Credit Agreement (including any "Tranche E Loans" thereunder made in
the circumstances contemplated by Section 7.01(f) of the Credit Agreement) and
the "Loans" made by the Vendors to the Borrower under the Vendor Financing
Agreement.
"Mortgages" means, collectively, one or more assignments of
lease, mortgages, deeds of trust, deeds to secure debt and the like executed by
a Restricted Company in favor of the Collateral Agent (or a trustee for the
benefit of the Collateral Agent), and covering interests in real property held
by such Restricted Company as collateral security for the Secured Obligations,
in each case in such form as shall be satisfactory to the Collateral Agent.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental authority or other entity.
"Public Note Indentures" means (a) the Indenture dated as of
August 15, 1993 between NCI and The Bank of New York, as Trustee, (b) the
Indenture dated as of December 22, 1993 between NCI (as successor to Dial Call
Communications, Inc.) and The Bank of New York, as Trustee, (c) the Indenture
dated as of January 13, 1994 between NCI (as successor to CenCall Communications
Corp.) and The Bank of New York, as Trustee, (d) the Indenture dated as of
February 15, 1994 between NCI and The Bank of New York, as Trustee and (e) the
Indenture dated as of April 24, 1994 between NCI (as successor to Dial Call
Communications, Inc.) and The Bank of New York, as Trustee.
"Required Secured Parties" means, at any time, Secured Parties
having Loans, LC Exposure and unused Commitments under the respective Loan
Agreements representing at least 51% of the sum of the total Loans, LC Exposure
and unused Commitments at such time.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Restricted Company Guarantee and Security Agreement"
means the Restricted Company Guarantee and Security Agreement
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dated as of the date hereof between the Restricted Companies, the Secured
Parties and the Collateral Agent.
"Secured Obligations" means, collectively, (a) in the case of
the Borrower, the principal of and interest on the Loans made by the Secured
Parties to the Borrower, all LC Disbursements and all other amounts from time to
time owing to the Secured Parties or the Agents by the Borrower under the Loan
Documents or any Hedging Agreement, (b) in the case of each Guarantor, all
obligations of such Guarantor in respect of its Guarantee under Article II of
the Restricted Company Guarantee and Security Agreement and (c) in the case of
each Restricted Company, all other obligations of such Restricted Company to the
Secured Parties and the Agents under the Restricted Company Guarantee and
Security Agreement.
"Security Documents" means this Agreement, the Restricted
Company Guarantee and Security Agreement, the Mortgages and all Uniform
Commercial Code financing statements required by any of such instruments to be
filed with respect to the security interests in personal property and fixtures
created pursuant thereto.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership interests
representing more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Tranche E Loans" has the meaning assigned to such term in
Section 7.02(f) of the respective Loan Agreements.
"Vendor Equipment Agreements" means (a) the following
agreements (i) the Enhanced Specialized Mobile Radio System Equipment Purchases
Agreement dated as of November 1, 1991 between Motorola and NCI; (ii) the letter
agreement dated as of November
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4, 1991 between Motorola and NCI; (iii) Amendment to Purchase Agreements dated
as of August 4, 1994 between Motorola and NCI; (iv) Second Amendment to
Purchase Agreements dated as of April 5, 1995 between Motorola and NCI; (v)
Amendment 003 to Enhanced Specialized Mobile Radio System Purchase Agreement
dated as of March 25, 1995 between Motorola and NCI; and (vi) Amendment 004 to
Enhanced Specialized Mobile Radio System Purchase Agreement dated as of April
28, 1996 between Motorola and NCI; each of which agreements and Amendments is,
pursuant to the assignment referred to in Seciton 5.01(m) of the respective
Loan Agreements, being assigned to the Borrower on the Effective Dated and (b)
any other agreement providing for the sale by either Vendor (or any of its
Affiliates) of equipment or other property to any of the Restricted Companies.
SECTION 1.02. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections and Exhibits shall be construed to refer
to Articles and Sections of, and Exhibits to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
ARTICLE II
The Collateral Agent; Appointment by Vendors
Each of the Vendors hereby irrevocably appoints the Collateral
Agent as its agent and authorizes the Collateral Agent
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to take such actions on its behalf and to exercise such powers as are delegated
to the Collateral Agent by the terms of this Agreement and the other Security
Documents, together with such actions and powers as are reasonably incidental
thereto.
The Chase Manhattan Bank shall have the same rights and
powers in its capacity as a Lender under the Credit Agreement as any other
Lender and may exercise the same as though it were not the Collateral Agent,
and The Chase Manhattan Bank and its Affiliates may accept deposits from, lend
money to and generally engage in any kind of business with any Credit Party or
any subsidiary or other Affiliate of any thereof as if it were not the
Collateral Agent hereunder.
The Collateral Agent shall not have any duties or obligations
except those expressly set forth in this Agreement and the other Security
Documents. Without limiting the generality of the foregoing, (a) the Collateral
Agent shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default has occurred and is continuing, (b) the Collateral Agent
shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by this Agreement and the other Security Documents that the
Collateral Agent is required to exercise in writing by the Required Secured
Parties, and (c) except as expressly set forth herein and in the other Security
Documents, the Collateral Agent shall not have any duty to disclose, and shall
not be liable for the failure to disclose, any information relating to any
Credit Party or any of their respective subsidiaries that is communicated to or
obtained by The Chase Manhattan Bank or any of its Affiliates in any capacity.
The Collateral Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Secured Parties, or in the
absence of its own gross negligence or wilful misconduct. The Collateral Agent
shall not be deemed to have knowledge of any Default unless and until written
notice thereof is given to the Collateral Agent by the Borrower, a Secured Party
or the Administrative Agent, and the Collateral Agent shall not be responsible
for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or the other
Security Documents, (ii) the contents of any certificate, report or other
document delivered hereunder or under any of the other Security Documents or in
connection herewith of therewith, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or in
any other Security Document, (iv) the validity, enforceability, effectiveness or
genuineness of this
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Agreement, the other Security Documents or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article V of
the respective Loan Agreements.
The Collateral Agent shall not, except to the extent expressly
instructed by the Required Secured Parties with respect to collateral security
under the Security Documents, be required to initiate or conduct any litigation
or collection proceedings hereunder or under any other Loan Document.
The Collateral Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Collateral
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Collateral Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Collateral Agent may perform any and all of its duties,
and exercise its rights and powers, by or through any one or more sub-agents
appointed by the Collateral Agent. The Collateral Agent and any such sub-agent
may perform any and all of its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Collateral Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for in the Credit Agreement as well as activities as the Collateral Agent.
Subject to the appointment and acceptance of a successor
Collateral Agent as provided in this paragraph, the Collateral Agent may resign
at any time by notifying the Secured Parties, the Borrower and the
Administrative Agent. Upon any such resignation, the Required Secured Parties
shall have the right, in consultation with the Borrower, to appoint, in
consultation with the Borrower, a successor Collateral Agent. If no successor
shall have been so appointed and shall have accepted such appointment within 30
days after such retiring Collateral Agent gives notice of its resignation, then
such retiring Collateral Agent may, on behalf of the Secured Parties, appoint a
successor Collateral Agent, which shall be a bank with an office
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in New York, New York, or an Affiliate of any such bank. Upon the acceptance of
its appointment as Collateral Agent by a successor, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent, and the retiring Collateral Agent shall be
discharged from its duties and obligations hereunder and under the other
Security Documents. The fees payable by the Borrower to a successor Collateral
Agent shall be the same as those payable to its predecessor unless otherwise
agreed between the Borrower and such successor. After a Collateral Agent's
resignation hereunder, the provisions of this Article and Section 7.03 of the
Restricted Company Guarantee and Security Agreement shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Collateral Agent.
Each Vendor acknowledges that it has, independently and
without reliance upon the Collateral Agent, or any other Secured Party and based
on such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into the Vendor Financing Agreement. Each
Vendor also acknowledges that it will, independently and without reliance upon
the Collateral Agent or any other Secured Party and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement
and the other Security Documents, any related agreement or any document
furnished hereunder or thereunder.
ARTICLE III
The Collateral Agent; Appointment by Lenders
Pursuant to Article IX of the Credit Agreement, each of the
Lenders has appointed The Chase Manhattan Bank as Collateral Agent for purposes
of this Agreement and the other Security Documents. Each of the Lenders party to
the Credit Agreement has authorized the Administrative Agent to execute and
deliver this Agreement pursuant to said Article IX of the Credit Agreement.
ARTICLE IV
Priority of Liens
It is the intent of the Agents and the Secured Parties that
the Liens created pursuant to the Security Documents in
Intercreditor and Collateral Agency Agreement
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favor of the Collateral Agent shall secure equally and ratably the obligations
of the Restricted Companies under the Loan Documents and the Hedging
Agreements, without priority of any such obligation over any other such
obligation. Accordingly, anything in any of the Loan Documents, or any other
agreement or instrument between any of the Restricted Companies and any of the
Secured Parties (including, without limitation, any of the "Motorola
Agreements" or "Northern Telecom Agreements" under and as defined in the Public
Note Indentures), to the contrary notwithstanding:
(a) each of the Vendors hereby assigns to the Collateral Agent
any Liens upon any property of any of the Restricted Companies that it
may now hold or which may hereafter arise by operation of law or
otherwise (excluding, however, any such Lien arising pursuant to the
Security Documents);
(b) each of the Vendors hereby agrees with the Administrative
Agent for the benefit of the Administrative Agent and the Lenders that
the only Liens securing obligations of any of the Restricted Companies
to the Vendors under the Loan Documents shall be the Liens arising
under the Security Documents, and that the obligations of the
Restricted Companies under the Vendor Equipment Agreements shall not be
entitled to the benefits of any Liens; and
(c) the Administrative Agent (on behalf of itself and each of
the Lenders) hereby agrees with the Vendors that the only Liens
securing obligations of any of the Restricted Companies to the Lenders
under the Loan Documents or the Hedging Agreements shall be the Liens
arising under the Security Documents.
Nothwithstanding the foregoing, it is understood that the Vendors are not
waiving, renouncing or sharing the benefit of any rights of reclamation or
other remedies accorded a manufacturer, supplier or distributor they may have
under State law, common law or otherwise arising out of the sale of equipment
or other goods by the Vendors to the Restricted Companies.
In addition to the foregoing if, as contemplated by Section
2.16(d) of any Loan Agreement, any payment received by any Secured Party must be
rescinded as therein contemplated, each of the Vendors on behalf of itself, and
the Administrative Agent on behalf of each of the Lenders, hereby agrees to make
such
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adjustments as shall be necessary in order to effect such rescission.
NTFC Capital hereby represents and warrants to each Agent and
each of the other Secured Parties that its former name (and the name in which
various Uniform Commercial Code financing statements filings by the Restricted
Companies in its favor have been effected) is "Northern Telecom Finance
Coropration".
ARTICLE V
Miscellaneous
SECTION 5.01. Notices. All notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to the Borrower, to it at 1505 Farm Credit
Drive, Suite 100, McLean, Virginia 22102, Attention Steven
Shindler, Senior Vice President and Chief Financial Officer
(Telecopy No. 703-394-3011);
(b) if to any Restricted Company other than the Borrower, to
such Restricted Company care of the Borrower at the address for notices
indicated in clause (a) above;
(c) if to Motorola, to it at 1301 East Algonquin Road,
Schaumburg, Illinois 60196, Attention Vice President, Director of
Financing (Telecopy No. 847-538-2491), with a copy to Gary Tatje at
such address and to the General Counsel and Secretary at 1303 East
Algonquin Road, Schaumburg, Illinois 60196;
(d) if to NTFC Capital Corporation, to it at 220
Athens Way, Nashville, Tennessee 37228, Attention Legal
Counsel (Telecopy No. 615-734-5283);
(e) if to the Administrative Agent, to it at 909
Fannin Street, Suite 1700, Houston, Texas 77010, Attention
Sophia Sgarbi (Telecopy No. 713-951-9921);
(f) if to any Lender, to such Lender care of the
Administrative Agent at the address for notices indicated in
clause (e) above; and
Intercreditor and Collateral Agency Agreement
<PAGE> 153
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(g) if to the Collateral Agent, to it at One Chase
Manhattan Plaza, 4th Floor, Attention Tracy Navin, (Telecopy
No. 212-552-4905).
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 5.02. Waivers; Amendments.
(a) No failure or delay by either Agent or any Secured Party
in exercising any right or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of Agents and the Secured Parties
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by any party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section 5.02, and
then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given.
(b) Neither this Agreement not any provision hereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Restricted Companies, the Agents and each Secured
Party.
(c) No Security Document (other than this Agreement, as to
which paragraph (b) above shall control) nor any provision thereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Restricted Companies party thereto, and by the
Collateral Agent with the consent of the Required Secured Parties; provided
that, (i) without the written consent of each Secured Party, no such agreement
shall release any Restricted Company from its obligations under any Security
Document and (ii) without the written consent of each Secured Party, no such
agreement shall release any collateral or otherwise terminate any Lien under any
Security Document, agree to additional obligations being secured by such
collateral security (unless either (x) the Lien for such additional obligations
shall be junior to the Lien in favor of the other obligations secured by such
Security Document, in which
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event the Collateral Agent may consent to such junior Lien provided that it
obtains the consent of the Required Secured Parties thereto, or (y) such
additional obligations result from an increase in the Vendor Financing
Agreement as permitted under Section 7.01((b) of the Credit Agreement or from
the designation of Tranche E Loans in accordance with Section 7.01(f) of the
respective Loan Agreements, in which event the Collateral Agent may consent to
such additional obligations being secured by such collateral, without the
consent of any Secured Party thereto), alter the relative priorities of the
obligations entitled to the benefits of the Liens created under the Security
Documents or release any Guarantor under the Restricted Company Guarantee and
Security Agreement from its guarantee obligations thereunder, except that no
such consent shall be required, and the Collateral Agent is hereby authorized,
to release any Lien covering property (and to release any such Guarantor) that
is the subject of either a disposition of property permitted under the
respective Loan Agreements or a disposition to which the "Required Lenders" and
"Required Vendors" under the respective Loan Agreements have consented;
provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Collateral Agent without the prior written
consent of the Collateral Agent.
SECTION 5.03. Indemnification. To the extent that the Credit
Parties fail to pay any amount required to be paid by them to the Collateral
Agent under Section 7.03(a) of the Restricted Company Guarantee and Security
Agreement, each Vendor severally agrees to pay to the Collateral Agent such
Vendor's Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Collateral Agent in its capacity as such.
SECTION 5.04. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the respective
successors and assigns of the Restricted Companies, the Agents, the Secured
Parties and each holder of the Secured Obligations. Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, the Secured Parties and the respective successors and
assigns of the Restricted Companies, the Agents, the Secured Parties and each
holder of the Secured Obligations) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
Intercreditor and Collateral Agency Agreement
<PAGE> 155
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SECTION 5.05. Counterparts. This Agreement may be executed in
counterparts (and by the parties hereto on different counterparts), each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract.
SECTION 5.06. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 5.07. Governing Law. This Agreement shall be
construed in accordance with and governed by the law of the State
of New York.
SECTION 5.08. Headings. Article and Section headings used
herein are for convenience of reference only, are not part of this Agreement
and shall not affect the construction of, or be taken into consideration in
interpreting, this Agreement.
Intercreditor and Collateral Agency Agreement
<PAGE> 156
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IN WITNESS WHEREOF, the parties hereto have caused this
Intercreditor and Collateral Agency Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
NEXTEL FINANCE COMPANY,
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
INITIAL GUARANTORS
ADVANCED MOBILECOMM OF
NORTH CAROLINA, INC.
AIR LINK COMMUNICATIONS, INC.
AIRWAVE COMMUNICATIONS CORP.
(SEATTLE)
AMERICAN MOBILE SYSTEMS
INCORPORATED
C-CALL CORP.
COMQOR, INC.
CUSTOM RADIO/JOHNSON
COMMUNICATIONS, INC.
DIAL CALL, INC.
DIAL CALL ARKANSAS, INC.
DIAL CALL FLORIDA, INC.
DIAL CALL KENTUCKY, INC.
DIAL CALL LOUISIANA, INC.
DIAL CALL TEXAS, INC.
DIAL CALL VIRGINIA, INC.
DIAL CALL WEST VIRGINIA, INC.
DIAL DISTANCE, INC.
DISPATCH COMMUNICATIONS
OF ARIZONA, INC.
DISPATCH COMMUNICATIONS
OF MINNESOTA, INC.
DISPATCH COMMUNICATIONS
OF NEW ENGLAND, INC.
DISPATCH COMMUNICATIONS
OF MARYLAND, INC.
DISPATCH COMMUNICATIONS
OF PENNSYLVANIA, INC.
ESMR SUB, INC.
Intercreditor and Collateral Agency Agreement
<PAGE> 157
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FC NEW YORK, INC.
FCI 900, INC.
FLEET CALL CORPORATION
FLEET CALL OF TEXAS, INC.
FLEET CALL OF UTAH, INC.
FLEET CALL WEST, INC.
F-M TOWER COMPANY
FORT WORTH COMMUNICATIONS, INC.
METRACOM TRUNKED RADIO
COMMUNICATION SYSTEMS, INC.
METROLINK COMMUNICATIONS
CORPORATION
MIJAC ENTERPRISES, INC.
MOBILE RADIO OF ILLINOIS, INC.
MOTOROLA SF, INC.
NATIONAL TOWER TRUNKING
SYSTEMS, INC.
NEXTEL COMMUNICATIONS
OF THE MID-ATLANTIC, INC.
NEXTEL HAWAII ACQUISITION CORP.
NEXTEL OF TEXAS, INC.
NEXTEL UTAH ACQUISITION CORP.
NEXTEL WESTERN ACQUISITION CORP.
ONECOMM CORPORATION, N.A.
POWERFONE HOLDINGS, INC.
POWERFONE, INC.
SABER COMMUNICATIONS, INC.
SAFETY NET, INC.
SHORELAND COMMUNICATIONS, INC.
SMART SMR, INC.
SMART SMR OF CALIFORNIA, INC.
SMART SMR OF ILLINOIS, INC.
SMART SMR OF NEW YORK, INC.
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SPECTRUM RESOURCES
OF THE MIDWEST, INC.
TRS, INC.
U.S. DIGITAL, INC.
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
FORT WORTH TRUNKED RADIO
LIMITED PARTNERSHIP
By Fort Worth Communications,
Inc., a General Partner
by /s/ Steven Shindler
-------------------------
Name: Steven Shindler
Title: Senior Vice President
VENDORS
MOTOROLA, INC.
by /s/ Gary Tatje
-------------------------
Name: Gary Tatje
Title: Director, Worldwide
Finance
NTFC CAPITAL CORPORATION
by /s/ L. W. Middleton
-------------------------
Name: L. W. Middleton
Title: Secretary
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THE AGENTS
TORONTO DOMINION (TEXAS) INC., as
Administrative Agent,
by /s/ Jessica Laxman
-------------------------
Name: Jessica Laxman
Title: Director
THE CHASE MANHATTAN BANK, as
Collateral Agent,
by /s/ Tracey A. Navin
-------------------------
Name: Tracey A. Navin
Title: Vice President
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EXHIBIT E
[Form of Joinder Agreement]
JOINDER AGREEMENT
JOINDER AGREEMENT dated as of ____________, 19__ by
____________, a ___________ corporation (the "Additional Guarantor"), in favor
of The Chase Manhattan Bank, as collateral agent for the Vendors and Lenders
party to the Loan Agreements referred to below (in such capacity, together with
its successors in such capacity, the "Collateral Agent").
Nextel Communications, Inc. and Nextel Finance Company, a
Delaware corporation (the "Borrower"), and certain subsidiaries and affiliates
of the Borrower (collectively, the "Existing Guarantors") are parties to (i) an
Amended, Restated and Consolidated Credit Agreement dated as of September 27,
1996 (as amended and in effect on the date hereof, the "Vendor Financing
Agreement") with Motorola, Inc., a Delaware corporation ("Motorola"), and NTFC
Capital Corporation, a Delaware corporation ("NTFC Capital" and, together with
Motorola, the "Vendors"), providing, subject to the terms and conditions
thereof, for loans to be made by Motorola and NTFC Capital to the Borrower in an
aggregate principal amount not exceeding $345,000,000 and (ii) a Credit
Agreement dated as of September 27, 1996 (as amended and in effect on the date
hereof, the "Credit Agreement" and, together with the Vendor Financing
Agreement, the "Loan Agreements"), providing, subject to the terms and
conditions thereof, for extensions of credit (by means of loans and letters of
credit) to be made by the Lenders named therein (collectively, together with any
entity that becomes a "Lender" party to the Credit Agreement after the date
hereof as provided therein, the "Lenders" and, together with the Vendors and any
successors or assigns of any of the foregoing, the "Secured Parties") to the
Borrower in an aggregate principal or face amount not exceeding $1,655,000,000
(which, in the circumstances contemplated by Section 7.01(f) thereof, may be
increased to $1,905,000,000). In addition, the Borrower may from time to time be
obligated to one or more of the Lenders under the Credit Agreement in respect of
Hedging Agreements under and as defined in the Credit Agreement (collectively,
the "Hedging Agreements").
In connection with the Loan Agreements, the Borrower, the
Existing Guarantors and the Collateral Agent are parties to a Guarantee and
Security Agreement dated as of September 27, 1996 (the "Restricted Company
Guarantee and Security Agreement")
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<PAGE> 161
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pursuant to which the Existing Guarantors have, inter alia, guaranteed the
Guaranteed Obligations (as defined in the Restricted Company Guarantee and
Security Agreement) and granted a security interest in the Collateral (as so
defined) as collateral security for the Secured Obligations (as so defined).
Terms defined in the Restricted Company Guarantee and Security Agreement are
used herein as defined therein.
To induce the Secured Parties to enter into the respective
Loan Agreements to which they are party, and to extend credit thereunder and to
extend credit to the Borrower under Hedging Agreements, and for other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Additional Guarantor has agreed to become a party to each Loan
Agreement as a "Restricted Company" thereunder, and to the Restricted Company
Guarantee and Security Agreement and Intercreditor and Collateral Agency
Agreement (as defined in the Restricted Company Guarantee and Security
Agreement) as a "Guarantor" thereunder, and to pledge and grant a security
interest in the Collateral (as defined in the Restricted Company Guarantee and
Security Agreement).
Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the
Restricted Company Guarantee and Security Agreement are used herein as defined
therein.
Section 2. Joinder to Agreements. Effective upon the execution
and delivery hereof, the Additional Guarantor hereby agrees that it shall become
a "Restricted Company" under and for all purposes of each Loan Agreement with
all the rights and obligations of a Restricted Company thereunder, and a
"Guarantor" under the Restricted Company Guarantee and Security Agreement and
Intercreditor and Collateral Agency Agreement with all of the rights and
obligations of a Guarantor thereunder. Without limiting the generality of the
foregoing, the Additional Guarantor hereby:
(i) jointly and severally with the other Guarantors
party to the Restricted Company Guarantee and Security Agreement
guarantees to each Agent and Secured Party and their respective
successors and assigns the prompt payment in full when due (whether at
stated maturity, by acceleration or otherwise) of all Guaranteed
Obligations in the same manner and to the same extent as is provided in
Article II of the Restricted Company Guarantee and Security Agreement;
Joinder Agreement
<PAGE> 162
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(ii) pledges and grants the security interests in all
right, title and interest of the Additional Guarantor in all Collateral
now owned or hereafter acquired by the Additional Guarantor and whether
now existing or hereafter coming into existence provided for by Article
IV of the Restricted Company Guarantee and Security Agreement as
collateral security for the Secured Obligations and agrees that Annexes
1, 2 and 3 thereof shall be supplemented as provided in Appendix A
hereto;
(iii) makes the representations and warranties set forth
in Article III of each Loan Agreement and the Restricted Company
Guarantee and Security Agreement, to the extent relating to the
Additional Guarantor or to the Pledged Equity evidenced by the
certificates, if any, identified in Appendix A hereto; and
(iv) submits to the jurisdiction of the courts, and
waives jury trial, as provided in Sections 10.09 and 10.10 of the
respective Loan Agreements.
The Additional Guarantor hereby instructs its counsel to
deliver the opinions referred to in Section 6.11(a)(iii) of the Credit Agreement
to the Agents and the Secured Parties.
Joinder Agreement
<PAGE> 163
-4-
IN WITNESS WHEREOF, the Additional Guarantor has caused this
Joinder Agreement to be duly executed and delivered as of the day and year first
above written.
[ADDITIONAL GUARANTOR]
By________________________
Title:
Accepted and agreed:
THE CHASE MANHATTAN BANK,
as Collateral Agent
By ________________________
Title:
Joinder Agreement
<PAGE> 1
EXHIBIT 99.3
NEWS RELEASE
Nextel Communications Inc.
1505 Farm Credit Drive
McLean, VA 22102
703 394-3000
[NEXTEL LOGO]
For Immediate Release
Contact: Media:
Bob Ratliffe (206) 979-4254
Analysts and Investors: Paul Blalock
(703) 394-3500
NEXTEL SUCCESSFULLY OVERSUBSCRIBES BANK FINANCING
-- COMPANY POSITIONED FOR NATIONAL NETWORK CONSTRUCTION --
McLEAN, VA - September 30, 1996 - Nextel Communications, Inc. (NASDAQ: CALL)
announced today that it has closed the transactions involved in the successful
syndication of $1.655 billion in bank financing. The funds will be used to
finance the nationwide expansion of Nextel's integrated wireless communications
network which enables customers access to a unique combination of digital
cellular, two-way instant conferencing and paging in one handset.
"The combination of the recent successful launch of our new technology in
Chicago, with this important completion of our financing, puts all the pieces
in place to execute the national roll-out of our unique capabilities," said Dan
Akerson, Nextel's chairman and chief executive officer. "We will launch our
enhanced digital technology in four additional markets before year's end to
aggressively offer business customers a new and unique alternative to
traditional wireless communications, one that goes beyond basic cellular and
has all the features and functionality of PCS plus a powerful way for teams of
people to communicate instantly."
The $1.655 billion senior secured bank credit facility is divided into a $1.085
billion revolving loan, a $250 million term loan, and a $320 million term loan
for institutional investors. The credit facility includes more than 30 lending
institutions and was arranged by Chase Securities Inc., J.P. Morgan Securities
Inc., and Toronto-Dominion Securities (USA) Inc. The terms of these new
financing arrangements, combined with currently outstanding or committed vendor
financing from Motorola, Inc. and NTFC Financial Corporation, provide Nextel
with more than $2 billion of available capital.
Steve Shindler, Nextel's senior vice president and chief financial officer
said, "Assuming a conservative ramp-up in new customers, this financing and
other available capital commitments essentially fulfill our financial needs for
our base business through our network construction phase. By the end of 1998,
we intend to reach areas of the U.S. where over 85 percent of the country's
population live or work. We are extremely pleased at the overwhelming support
we have received from the banks resulting in an oversubscription, which enabled
us to increase the size of the loan package by more than $100 million from our
original target."
Nextel, which recently relocated its headquarters to McLean, Virginia, is the
nation's leading provider of fully integrated wireless communications with the
largest geographic footprint of any wireless carrier in North America. The
company is focused on providing business telecommunications customers with the
ability to stay in touch with wireless services that go beyond cellular and PCS
by combining the basic voice communications needs with unique instant
conferencing capability along with messaging and eventual data services.
###
Nextel, and "Beyond Cellular" are trademarks and/or service marks of Nextel
Communications, Inc.
