<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
---------
Nextel Communications, Inc.
--------------------------------------------------------
(Name of Issuer)
Class A Common Stock
--------------------------------------------------------
(Title of Class of Securities)
65332V 10 3
--------------------------------------------------------
(CUSIP Number)
Dennis Weibling, Digital Radio, L.L.C.,
2320 Carillon Point, Kirkland, Washington 98033
--------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
July 28, 1995
--------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box / /.
Check the following box if a fee is being paid with this statement /X/. (A
fee is not required only if the reporting person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class
of securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(Continued on following page(s))
Page 1 of 235 Pages
Exhibit Index Appears on page 15
<PAGE>
CUSIP No. 65332V 10 3 13D Page of Pages
--------- --- ---
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Craig O. McCaw
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
BK
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
/ /
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
United States of America
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power
by Each Reporting 64,709,795
Person With --------------------------------------------------
(8) Shared Voting
Power
0
--------------------------------------------------
(9) Sole Dispositive
Power
64,709,795
--------------------------------------------------
(10) Shared Dispositive
Power
0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
64,709,795
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
28.3%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
2 of 7
<PAGE>
CUSIP No. 65332V 10 3 13D Page of Pages
--------- --- ---
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Digital Radio, L.L.C.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
BK
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
State of Washington
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power
by Each Reporting 64,709,795
Person With --------------------------------------------------
(8) Shared Voting
Power
0
--------------------------------------------------
(9) Sole Dispositive
Power
64,709,795
--------------------------------------------------
(10) Shared Dispositive
Power
0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
64,709,795
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
28.3%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
OO
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
2 of 7
<PAGE>
CUSIP No. 65332V 10 3 13D Page of Pages
--------- --- ---
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
Eagle River Investments, L.L.C.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
BK
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
State of Washington
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power
by Each Reporting 64,709,795
Person With --------------------------------------------------
(8) Shared Voting
Power
0
--------------------------------------------------
(9) Sole Dispositive
Power
64,709,795
--------------------------------------------------
(10) Shared Dispositive
Power
0
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
64,709,795
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
28.3%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
OO
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
2 of 7
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13d
(RULE 13D-101)
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
Nextel Communications, Inc.
--------------------------------------
(Name of Issuer)
Class A Common Stock
--------------------------------------
(Title of Class of Securities)
65332V 103
----------------------------
(CUSIP Number)
C. James Judson, Digital Radio, L.L.C.,
----------------------------------------------
2300 Carillon Point, Kirkland, WA 98033
----------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
July 28, 1997
--------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box. / /
Exhibit Index on Page 11
<PAGE>
CUSIP No. 13D Page 2
--------- ---
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
CRAIG O. MCCAW
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
BK
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
UNITED STATES
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 92,483,723
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power -0-
--------------------------------------------------
(9) Sole Dispositive
Power 92,483,723
--------------------------------------------------
(10) Shared Dispositive
Power -0-
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
92,483,723
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
29.9%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
IN
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 13D Page 3
--------- ---
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
DIGITAL RADIO, L.L.C.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
BK
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
STATE OF WASHINGTON
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 67,083,723
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power -0-
--------------------------------------------------
(9) Sole Dispositive
Power 67,083,723
--------------------------------------------------
(10) Shared Dispositive
Power -0-
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
67,083,723
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
23.7%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
00
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 13D Page 4
--------- ---
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
OPTION ACQUISITION, L.L.C.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
BK
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
STATE OF WASHINGTON
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 25,000,000
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power -0-
--------------------------------------------------
(9) Sole Dispositive
Power 25,000,000
--------------------------------------------------
(10) Shared Dispositive
Power -0-
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
25,000,000
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
9.5%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
00
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
CUSIP No. 13D Page 5
--------- ---
- -------------------------------------------------------------------------------
(1) Names of Reporting Persons. S.S. or I.R.S. Identification Nos. of Above
Persons
EAGLE RIVER INVESTMENTS, L.L.C.
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member (a) / /
of a Group* (b) / /
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds*
BK
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to
Items 2(d) or 2(e)
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
STATE OF WASHINGTON
- -------------------------------------------------------------------------------
Number of Shares (7) Sole Voting
Beneficially Owned Power 67,083,723
by Each Reporting --------------------------------------------------
Person With (8) Shared Voting
Power -0-
--------------------------------------------------
(9) Sole Dispositive
Power 67,083,723
--------------------------------------------------
(10) Shared Dispositive
Power -0-
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
67,083,723
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares*
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
23.7%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person*
00
- -------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
<PAGE>
ITEM 1. SECURITY AND ISSUER
This amended statement relates to the Class A Common Stock, par value $.001
per share ("Nextel Common Stock") of Nextel Communications, Inc., a Delaware
corporation, f/k/a ESMR, Inc. ("Nextel"). The principal executive offices of
Nextel are located at 1505 Farm Credit Drive, Suite 100, McLean, Virginia 22102.
Capitalized terms which are not defined in this amended statement have the
meanings defined in the statement filed on August 7, 1995.
ITEM 2. IDENTITY AND BACKGROUND
(a),(b),(c) The persons filing this statement are:
(1) Digital Radio, L.L.C., a limited liability company formed under the
laws of the State of Washington ("Digital"). Digital is the direct owner of a
portion of the securities of Nextel which are the subject of this statement.
The principal business of Digital is to invest in stock, options, securities,
notes, debentures, bonds of, and other business opportunities associated with,
Nextel. Eagle River Investments, L.L.C. has the exclusive management and
control of Digital under the terms of its Limited Liability Company Agreement.
The address for Digital's principal business and principal office is 2300
Carillon Point, Kirkland, Washington 98033.
(2) Option Acquisition, L.L.C., a limited liability company formed under
the laws of the State of Washington ("Option Acquisition"). Option Acquisition
is the direct holder of certain options to acquire the securities which are the
subject of this statement and was formed for the sole purpose of holding those
options. COM Management, Inc. has the exclusive management and control of
Option Acquisition under the terms of its Limited Liability Company Agreement.
The address for Option Acquisition's principal business and principal office is
2300 Carillon Point, Kirkland, Washington, 98033.
(3) Eagle River Investments, L.L.C., a limited liability company formed
under the laws of the State of Washington("Eagle River"). The principal
business of Eagle River is to build equity value for each of its members by
acquiring, investing, holding, dealing and disposing of securities, venture
opportunities or other investments. The address of Eagle River's principal
business and principal office is 2300 Carillon Point, Kirkland, Washington
98033.
(4) Craig O. McCaw, an individual ("Mr. McCaw"), who is the controlling
stockholder and director of Eagle River, Inc., and, as a result, has voting and
management control of Eagle River Investments, L.L.C., which in turn has voting
and management control of Digital. He is also the controlling stockholder and
director of COM Management, Inc. and, as a result, also has voting and
management control of Option Acquisition. Mr. McCaw's present principal
occupation is serving as Chairman of Digital and of Eagle River. In addition,
Mr. McCaw serves as Chairman of Eagle River, Inc., which also provides
management and consulting services to Nextel's senior management and Board of
Directors. Mr. McCaw's business address is 2300 Carillon Point, Kirkland,
Washington 98033.
6
<PAGE>
The executive officers of Digital, Option Acquisition and Eagle River are
as follows: Craig O. McCaw, Chairman; Dennis Weibling, President/Treasurer;
William A. Hoglund, Vice President and Chief Financial Officer; and C. James
Judson, Vice President, Secretary and General Counsel. Each of Mr. Weibling,
Mr. Hoglund and Mr. Judson serves in the foregoing capacities as his present
principal occupation. The business address of each of Mr. McCaw, Mr. Weibling,
Mr. Hoglund and Mr. Judson is 2300 Carillon Point, Kirkland, Washington 98033.
(d),(e) During the past five years, none of Digital, Option Acquisition,
Eagle River, Mr. McCaw or the other above-named executive officers of Digital
and Eagle River has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or has been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
(f) Mr. McCaw, Mr. Weibling, Mr. Hoglund and Mr. Judson are all citizens
of the United States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS AND OTHER CONSIDERATION
Digital borrowed the funds to acquire the securities which are the subject
of this amended statement pursuant to the Amended and Restated Multibank Credit
Agreement dated as of July 28, 1997 by and among Digital, the Banks signatories
thereto and The Chase Manhattan Bank (the "Amended Credit Agreement"), a copy of
which is attached hereto as EXHIBIT 11. The Amended Credit Agreement amended
and restated the July 28, 1995 Credit Agreement in its entirety. As of July 28,
1997, loans to Digital in the aggregate amount of $557,500,000 pursuant to the
Amended Credit Agreement were outstanding. A portion of those loan proceeds
were used to finance the acquisition of additional Nextel securities, as more
fully described in Item 4 below.
ITEM 4. PURPOSE OF TRANSACTION
ACQUISITION OF NEXTEL COMMON STOCK. Digital acquired 15 million shares of
Nextel Common Stock which are the subject of this amended statement by
exercising the first of the three separate options constituting the Nextel
Options at a price of $15.50 per share, or an aggregate purchase price of
$232,500,000. See EXHIBIT 5 to the original statement.
ACQUISITION OF CERTAIN OPTIONS. Option Acquisition acquired certain of the
securities which are the subject of this amended statement pursuant to an Option
Purchase Agreement (the "Option Purchase Agreement") dated as of June 16, 1997
by and among Nextel, its subsidiary, Unrestricted Subsidiary Funding Company
("USFC"), and Option Acquisition, a copy of which is attached hereto as EXHIBIT
12. Pursuant to the Option Purchase Agreement, Option Acquisition purchased, at
an aggregate purchase price of $25,000,000, two options (the "New Options") from
Nextel pursuant to which Option Acquisition may, at any time until July 28,
1998, purchase, for cash, up to 15 million shares of Nextel Common Stock for
$16.00 per share and up to 10 million shares of Nextel Common Stock for $18.00
per share. Copies of the Option
7
<PAGE>
Agreements evidencing the New Options are attached hereto as EXHIBITS 13 and 14.
The New Options, and any shares of Nextel Common Stock issued upon exercise
thereof, are transferable subject to certain limitations. In addition, one
direct transferee of Option Acquisition is entitled to designate one nominee for
election to Nextel's Board of Directors, provided that such party (i) has
exercised the transferred portion of the New Options and continues to own at
least 10 million shares of Nextel Common Stock obtained on such exercise, (ii)
is not an affiliate of Mr. McCaw and (iii) does not hold a 5% or greater equity
ownership interest in any entity that provides terrestrial-based wireless
communications services in competition with Nextel in any of its markets.
Shares issuable upon exercise of the New Options will be entitled to certain
demand and piggyback registration rights, which are assignable to transferees in
certain circumstances.
ITEM 5. INTEREST IN SECURITIES OF ISSUER
(a) The aggregate number of shares of Nextel Common Stock beneficially
owned by each reporting person covered by this amended statement is as follows:
Name Number of Shares(1) Percentage
---- ---------------- ----------
Digital Radio, L.L.C. 67,083,723(2) 23.7%
Eagle River Investments, L.L.C. 67,083,723(3) 23.7%
Option Acquisition, L.L.C. 25,000,000(4) 9.5%
Craig O. McCaw 92,483,723(5) 29.9%
-------------
(1) Based on 223,986,389 shares outstanding on May 1, 1997 as reported on
Nextel's Form 10-Q for the quarter ended March 31, 1997, plus
15,000,000 shares acquired by Digital on July 28, 1997.
(2) Includes (i) 20,593,846 shares of Nextel Common Stock owned by
Digital, (ii) an aggregate of 24,489,795 shares of Nextel Common Stock
upon the complete conversion of 8,163,265 shares of Class A Preferred
Stock, (iii) an aggregate of 82 shares of Nextel Common Stock upon the
complete conversion of 82 shares of Class B Preferred Stock, (iv) an
aggregate of 20,000,000 shares of Nextel Common Stock upon complete
exercise of the remaining Nextel Options, and (v) an aggregate of
2,000,000 shares of Nextel Common Stock upon complete exercise of the
first of three tranches of the Motorola Option.
(3) Includes (i) 20,593,846 shares of Nextel Common Stock owned by
Digital, (ii) an aggregate of 24,489,795 shares of Nextel Common Stock
upon the complete conversion of 8,163,265 shares of Class A Preferred
Stock owned by Digital, (iii) an aggregate of 82 shares of Nextel
Common Stock upon the complete conversion of 82 shares of Class B
Preferred Stock owned by Digital, (iv) an aggregate of 20,000,000
shares of Nextel Common Stock upon complete exercise of the remaining
Nextel Options owned by Digital, and (v) an aggregate of 2,000,000
shares of Nextel Common Stock upon complete exercise of the first of
three tranches of the Motorola
8
<PAGE>
Option owned by Digital.
(4) Includes an aggregate of 25,000,000 shares of Nextel Common Stock upon
complete exercise of the New Options owned by Option Acquisition.
(5) Includes (a)(i) 20,593,846 shares of Nextel Common Stock owned by
Digital, (ii) an aggregate of 24,489,795 shares of Nextel Common Stock
upon the complete conversion of 8,163,265 shares of Class A Preferred
Stock, (iii) an aggregate of 82 shares of Nextel Common Stock upon the
complete conversion of 82 shares of Class B Preferred Stock, (iv) an
aggregate of 20,000,000 shares of Nextel Common Stock upon complete
exercise of the remaining Nextel Options, and (v) an aggregate of
2,000,000 shares of Nextel Common Stock upon complete exercise of the
first of three tranches of the Motorola Option; (b) an aggregate of
25,000,000 shares of Nextel Common Stock upon complete exercise of the
New Options; and (c) 400,000 shares upon complete exercise of options
held by Eagle River, Inc. which become exercisable on April 4, 1997.
(b) Pursuant to the terms of the Limited Liability Company Agreements of
both Digital and Option Acquisition, the exclusive management and affairs of
Digital and Option Acquisition (including in each case investment decisions) are
vested with Eagle River and COM Management, Inc., respectively. Mr. McCaw is
the primary member of, and holder of the majority interest in, Eagle River and
is the primary stockholder and director of COM Management, Inc. As a result, he
has the voting and management control (including with respect to investment
decisions) of Digital and Option Acquisition.
(c) None.
(d) None.
(e) N/A.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF ISSUER
In connection with the July 28, 1997 loans pursuant to the Amended Credit
Agreement, and as a condition to making such loans, Digital was required to
pledge to the Agent, for the benefit of the Banks, as security for the payment
of Digital's obligations thereunder the 15 million shares of Nextel Common Stock
acquired by Digital on July 28, 1997. As a result of this additional pledge, a
total of 20,220,000 shares of Nextel Common Stock and 8,163,265 shares of Class
A Preferred Stock have been pledged by Digital.
9
<PAGE>
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
EXHIBIT
NO.
11. Amended and Restated Multibank Credit Agreement dated as of July 28,
1997 by and among Digital, the Banks signatory thereto and The Chase
Manhattan Bank
12. Option Purchase Agreement dated as of June 16, 1997 by and among
Nextel Communications, Inc., Unrestricted Subsidiary Funding Company
and Option Acquisition, L.L.C.
13. Option Agreement (First New Option) by and between Option Acquisition,
L.L.C. and Nextel Communications, Inc., dated as of June 18, 1997
14. Option Agreement (Second New Option) by and between Option
Acquisition, L.L.C. and Nextel Communications, Inc. dated as of June
18, 1997
15. Amended Schedule 13D Joint Filing Agreement dated August 12, 1997 by
and among Digital, Eagle River, Option Acquisition and Craig O. McCaw
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
DIGITAL RADIO, L.L.C.
Dated: August 15, 1997 /s/ C. James Judson
-------------------------------------------------
C. James Judson
Vice President, General Counsel and Secretary
Authorized Representative for
Eagle River Investments, L.L.C.
Authorized Representative for
Option Acquisition, L.L.C.
Authorized Representative for
Craig O. McCaw
10
<PAGE>
EXHIBIT INDEX
EXHIBIT
NO.
11. Amended and Restated Multibank Credit Agreement dated as of July 28,
1997 by and among Digital, the Banks signatory thereto and The Chase
Manhattan Bank
12. Option Purchase Agreement dated as of June 16, 1997 by and among
Nextel Communications, Inc., Unrestricted Subsidiary Funding Company
and Option Acquisition, L.L.C.
13. Option Agreement (First New Option) by and between Option Acquisition,
L.L.C. and Nextel Communications, Inc., dated as of June 18, 1997
14. Option Agreement (Second New Option) by and between Option
Acquisition, L.L.C. and Nextel Communications, Inc. dated as of June
18, 1997
15. Amended Schedule 13D Joint Filing Agreement dated August 12, 1997 by
and among Digital, Eagle River, Option Acquisition and Craig O. McCaw
11
<PAGE>
EXHIBIT 11
------------
AMENDED AND RESTATED MULTIBANK CREDIT AGREEMENT
dated as of July 28, 1997
among
DIGITAL RADIO, L.L.C.
the Banks signatory hereto
and
THE CHASE MANHATTAN BANK
as Agent
<PAGE>
Table of Contents
Page
ARTICLE 1. DEFINITIONS; ACCOUNTING TERMS . . . . . . . . . . . . . . 1
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Accounting Terms . . . . . . . . . . . . . . . . . 16
ARTICLE 2. THE CREDIT. . . . . . . . . . . . . . . . . . . . . . . . 16
Section 2.01. The Loans. . . . . . . . . . . . . . . . . . . . . 16
Section 2.02. The Notes. . . . . . . . . . . . . . . . . . . . . 18
Section 2.03. Purpose. . . . . . . . . . . . . . . . . . . . . . 18
Section 2.04. Borrowing Procedures . . . . . . . . . . . . . . . 18
Section 2.05. Mandatory Prepayments; Mark-to-Market; Release of
Collateral . . . . . . . . . . . . . . . . . . . . 19
Section 2.06. Optional Prepayments and Conversions . . . . . . . 20
Section 2.07. Interest Periods; Renewals . . . . . . . . . . . . 21
Section 2.08. Certain Notices. . . . . . . . . . . . . . . . . . 21
Section 2.09. Minimum Amounts. . . . . . . . . . . . . . . . . . 21
Section 2.10. Interest . . . . . . . . . . . . . . . . . . . . . 22
Section 2.11. Fees . . . . . . . . . . . . . . . . . . . . . . . 22
Section 2.12. Payments Generally . . . . . . . . . . . . . . . . 22
Section 2.13. Secondary Support. . . . . . . . . . . . . . . . . 23
Section 2.14. Proceeds Upon Foreclosure. . . . . . . . . . . . . 24
ARTICLE 3. YIELD PROTECTION; ILLEGALITY; ETC.. . . . . . . . . . . . 24
Section 3.01. Additional Costs . . . . . . . . . . . . . . . . . 24
Section 3.02. Limitation on Types of Loans . . . . . . . . . . . 26
Section 3.03. Illegality . . . . . . . . . . . . . . . . . . . . 26
Section 3.04. Certain Conversions Pursuant to Sections 3.01
and 3.03 . . . . . . . . . . . . . . . . . . . . . 26
Section 3.05. Certain Compensation . . . . . . . . . . . . . . . 27
Section 3.06. Substitution of Banks. . . . . . . . . . . . . . . 28
ARTICLE 4. CONDITIONS PRECEDENT; RESTATEMENT . . . . . . . . . . . . 28
Section 4.01. Documentary Conditions Precedent . . . . . . . . . 28
Section 4.02. Additional Conditions Precedent. . . . . . . . . . 30
Section 4.03. Deemed Representations . . . . . . . . . . . . . . 30
Section 4.04. Reallocation of Loans. . . . . . . . . . . . . . . 30
Section 4.05. Restatement. . . . . . . . . . . . . . . . . . . . 31
Section 4.06. Deletion of Banks. . . . . . . . . . . . . . . . . 31
Section 4.07. Non-Recourse to Departing Banks; No Warranty or
Representations; Independent Credit Analysis . . . 31
ARTICLE 5. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . 33
Section 5.01. Organization, Good Standing and Due Qualification. 33
Section 5.02. Power and Authority; No Conflicts. . . . . . . . . 33
Section 5.03. Legally Enforceable Agreements . . . . . . . . . . 33
i.
<PAGE>
Section 5.04. Litigation . . . . . . . . . . . . . . . . . . . . 33
Section 5.05. Financial Statements . . . . . . . . . . . . . . . 34
Section 5.06. Ownership and Liens. . . . . . . . . . . . . . . . 34
Section 5.07. Taxes. . . . . . . . . . . . . . . . . . . . . . . 34
Section 5.08. Credit and Other Arrangements. . . . . . . . . . . 34
Section 5.09. Operation of Business. . . . . . . . . . . . . . . 34
Section 5.10. No Default on Outstanding Judgments or Orders. . . 34
Section 5.11. No Defaults on Other Agreements. . . . . . . . . . 35
Section 5.12. Governmental Regulation. . . . . . . . . . . . . . 35
Section 5.13. No Forfeiture. . . . . . . . . . . . . . . . . . . 35
Section 5.14. Purchase Agreements; Nextel Certificate of
Incorporation. . . . . . . . . . . . . . . . . . . 35
ARTICLE 6. AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . 35
Section 6.01. Maintenance of Existence . . . . . . . . . . . . . 35
Section 6.02. Conduct of Business. . . . . . . . . . . . . . . . 35
Section 6.03. Maintenance of Properties. . . . . . . . . . . . . 36
Section 6.04. Maintenance of Records . . . . . . . . . . . . . . 36
Section 6.05. Maintenance of Insurance . . . . . . . . . . . . . 36
Section 6.06. Compliance with Laws . . . . . . . . . . . . . . . 36
Section 6.07. Right of Inspection. . . . . . . . . . . . . . . . 36
Section 6.08. Reporting Requirements . . . . . . . . . . . . . . 36
ARTICLE 7. NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . 37
Section 7.01. Debt . . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.02. Liens. . . . . . . . . . . . . . . . . . . . . . . 37
Section 7.03. Mergers, Etc.. . . . . . . . . . . . . . . . . . . 38
Section 7.04. No Activities Leading to Forfeiture. . . . . . . . 38
Section 7.05. Amendment of Certain Documents . . . . . . . . . . 38
Section 7.06. Nextel Stock . . . . . . . . . . . . . . . . . . . 39
ARTICLE 8. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . 39
Section 8.01. Events of Default. . . . . . . . . . . . . . . . . 39
Section 8.02. Remedies . . . . . . . . . . . . . . . . . . . . . 41
Section 8.03. Special Facility A Remedies. . . . . . . . . . . . 41
Section 8.04. Special Facility B Remedies. . . . . . . . . . . . 42
ARTICLE 9. THE AGENT; RELATIONS AMONG BANKS AND BORROWER . . . . . . 42
Section 9.01. Appointment, Powers and Immunities of Agent. . . . 42
Section 9.02. Reliance by Agent. . . . . . . . . . . . . . . . . 43
Section 9.03. Defaults . . . . . . . . . . . . . . . . . . . . . 43
Section 9.04. Rights of Agent as a Bank. . . . . . . . . . . . . 44
Section 9.05. Indemnification of Agent . . . . . . . . . . . . . 44
Section 9.06. Documents. . . . . . . . . . . . . . . . . . . . . 44
Section 9.07. Non-Reliance on Agent and Other Banks. . . . . . . 44
Section 9.08. Failure of Agent to Act. . . . . . . . . . . . . . 45
ii.
<PAGE>
Section 9.09. Resignation or Removal of Agent. . . . . . . . . . 45
Section 9.10. Amendments Concerning Agency Function. . . . . . . 45
Section 9.11. Liability of Agent . . . . . . . . . . . . . . . . 46
Section 9.12. Transfer of Agency Function. . . . . . . . . . . . 46
Section 9.13. Non-Receipt of Funds by the Agent. . . . . . . . . 46
Section 9.14. Withholding Taxes. . . . . . . . . . . . . . . . . 46
Section 9.15. Several Obligations and Rights of Banks. . . . . . 46
Section 9.16. Pro Rata Treatment of Loans, Etc.. . . . . . . . . 47
Section 9.17. Sharing of Payments Among Banks. . . . . . . . . . 47
Section 9.18. Notice of Certain Events . . . . . . . . . . . . . 47
ARTICLE 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 47
Section 10.01. Amendments and Waivers. . . . . . . . . . . . . . 47
Section 10.02. Usury . . . . . . . . . . . . . . . . . . . . . . 48
Section 10.03. Expenses; Indemnity; Damage Waiver. . . . . . . . 49
Section 10.04. Survival. . . . . . . . . . . . . . . . . . . . . 49
Section 10.05. Assignment; Participations. . . . . . . . . . . . 49
Section 10.06. Notices . . . . . . . . . . . . . . . . . . . . . 50
Section 10.07. Setoff. . . . . . . . . . . . . . . . . . . . . . 50
SECTION 10.08. JURISDICTION; IMMUNITIES. . . . . . . . . . . . . 51
Section 10.09. Table of Contents; Headings . . . . . . . . . . . 51
Section 10.10. Severability. . . . . . . . . . . . . . . . . . . 52
Section 10.11. Counterparts. . . . . . . . . . . . . . . . . . . 52
Section 10.12. Integration . . . . . . . . . . . . . . . . . . . 52
SECTION 10.13. GOVERNING LAW . . . . . . . . . . . . . . . . . . 52
Section 10.14. Confidentiality . . . . . . . . . . . . . . . . . 52
Section 10.15. Treatment of Certain Information. . . . . . . . . 52
Section 10.16. Other Relationships . . . . . . . . . . . . . . . 53
Section 10.17. Regarding Recourse. . . . . . . . . . . . . . . . 53
iii.
<PAGE>
EXHIBITS
Exhibit A-1 Facility A Note
Exhibit A-2 Facility B Note
Exhibit B Authorization Letter
Exhibit C-1 Borrower Pledge Agreement
Exhibit C-2 Third Party Pledge Agreement
Exhibit D Opinion of Morrison & Foerster
Exhibit E Opinion of Davis Wright Tremaine
Exhibit F Opinion of C. James Judson
Exhibit G Opinion of Perkins Coie
Exhibit H Opinion of Brobeck, Phleger & Harrison
Exhibit I Confidentiality Agreement
Exhibit J Nextel Collateral Agreement
Exhibit K Nextel Transfer Agreement
Exhibit L-1 Recourse Guaranty (Credit Limit)
Exhibit L-2 Recourse Guaranty (Deposited Assets)
Exhibit M Nextel Confirmation
SCHEDULES
Schedule 1 Commitments
Schedule 5.04 Litigation
Schedule 5.08 Credit Arrangements
iv.
<PAGE>
AMENDED AND RESTATED MULTIBANK CREDIT AGREEMENT dated as of July 28,
1997 among DIGITAL RADIO, L.L.C., a limited liability company organized under
the laws of the State of Washington (the "Borrower"), each of the banks which
is a signatory hereto (individually a "Bank" and collectively the "Banks")
and THE CHASE MANHATTAN BANK, as agent for the Banks (in such capacity,
together with its successors in such capacity, the "Agent").
WHEREAS, the Borrower, some of the Banks and the Agent are parties to
that certain Multibank Credit Agreement dated as of July 28, 1995 among the
Borrower, certain financial institutions and the Agent, as amended by a First
Amendment to Multibank Credit Agreement dated as of September 17, 1996 and as
further amended by a Second Amendment to Multibank Credit Agreement dated as
of May 5, 1997 (as so amended, the "Original Credit Agreement");
WHEREAS, the Borrower has requested that the Banks and the Agent agree
to amend and restate the Original Credit Agreement in order to, among other
things, (i) increase the aggregate Commitments of the Banks, (ii) change the
Banks party hereto, (iii) restructure the collateral coverage requirements
for the Borrower's obligations to the Banks and the Agent, and (iv) modify
the conditions upon which collateral security may be released from time to
time by the Agent on behalf of the Banks, in each case, as provided herein.
WHEREAS, the Banks and the Agent are willing to amend and restate the
Original Credit Agreement and the Remaining Banks (as defined below) are
willing to extend additional credit to the Borrower, in each case, as
provided herein;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE 1.
DEFINITIONS; ACCOUNTING TERMS
Section 1.01. DEFINITIONS. As used in this Agreement the following
terms have the following meanings (terms defined in the singular to have a
correlative meaning when used in the plural and VICE VERSA):
"Affiliate" means any Person: (a) which directly or indirectly
controls, or is controlled by, or is under common control with, the Borrower
or any of its Subsidiaries; (b) which directly or indirectly beneficially
owns or holds 5% or more of any class of voting stock or membership interests
of the Borrower or any such Subsidiary; (c) 5% or more of the voting stock or
membership interests of which is directly or indirectly beneficially owned or
held by the Borrower or such Subsidiary; or (d) which is a partnership in
which the Borrower or any of its Subsidiaries is a general partner. The term
"control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities or membership
1.
<PAGE>
interests, by contract, or otherwise. The spouse or former spouse of any
Person shall not be deemed an Affiliate of a Person or of any Affiliate of
such Person unless such spouse or former spouse meets the definition of
"Affiliate" without regard to his or her status as a spouse or former spouse.
"Agreement" means this Credit Agreement, as amended or supplemented from
time to time. References to Articles, Sections, Exhibits, Schedules and the
like refer to the Articles, Sections, Exhibits, Schedules and the like of
this Agreement unless otherwise indicated.
"Authorization Letter" means the letter agreement executed by the
Borrower in the form of Exhibit B.
"Banking Day" means any day on which commercial banks are not authorized
or required to close in New York City and whenever such day relates to a
Fixed Rate Loan or notice with respect to any Fixed Rate Loan, a day on which
dealings in Dollar deposits are also carried out in the London interbank
market.
"Borrower Group" means Borrower, Eagle River, the Third Party Pledgors
and any other Person which directly or indirectly controls the Borrower. A
spouse or former spouse of any Person shall not be deemed to directly or
indirectly control the Borrower unless such spouse or former spouse directly
or indirectly controls the Borrower without regard to his or her status as
the spouse or former spouse of a Person who directly or indirectly controls
the Borrower.
"Borrower Pledge Agreement" means the amended and restated pledge
agreement in the form of Exhibit C-1 to be delivered by the Borrower under
the terms of this Agreement, as it may be amended from time to time.
"Cash Collateral" means cash deposits in Dollars and any Permitted
Investments in which such cash may be invested from time to time, in each
case held by the Agent as security for the Notes free and clear of all Liens
other than those under a Cash Collateral Agreement.
"Cash Collateral Agreement" means any agreement, satisfactory in form
and substance to the Agent (including by amendment to any other Pledge
Agreement), pursuant to which Cash Collateral is pledged to the Agent for the
ratable benefit of the Banks, as any such agreement may be amended from time
to time.
"Cash Collateral Value" of any Cash Collateral on any day means 98% of
the market value of such Cash Collateral.
"Class A Preferred Stock" means the Class A Convertible Redeemable
Preferred Stock of Nextel.
2.
<PAGE>
"Class C Preferred Stock" means the Class C Convertible Redeemable
Preferred Stock of Nextel.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means the Pledged Collateral (as defined in each Pledge
Agreement).
"Collateral Maintenance Tests" means that the Eligible Maintenance
Collateral meets each of the following requirements:
(i) the sum of (w) the Facility A Cash Collateral
Value and (x) the Facility A Primary Collateral Value equals
or exceeds the aggregate principal amount of the Facility A
Loans outstanding,
(ii) the sum of (w) the Facility A Cash Collateral
Value, (x) 75% of the Facility A Primary Collateral Value
and (y) the Secondary Support Value (but only that portion
thereof which does not exceed 25% of the aggregate principal
amount of the Facility A Loans) equals or exceeds the
aggregate principal amount of the Facility A Loans
outstanding, and
(iii) the sum of (w) the Facility B Cash Collateral
Value, (x) 75% of the Facility B Primary Collateral Value
and (y) the Nextel Collateral Value equals or exceeds the
aggregate principal amount of the Facility B Loans
outstanding.
"Collateral Release Tests" means that the Eligible Maintenance
Collateral meets each of the following requirements:
(i) the sum of (w) the Facility A Cash Collateral
Value and (x) the Facility A Primary Collateral Value equals
or exceeds 105% of the aggregate principal amount of the
Facility A Loans outstanding,
(ii) the sum of (w) the Facility A Cash Collateral
Value, (x) 75% of the Facility A Primary Collateral Value
and (y) the Secondary Support Value (but only that portion
thereof which does not exceed 25% of the aggregate principal
amount of the Facility A Loans) equals or exceeds 105% of
the aggregate principal amount of the Facility A Loans
outstanding,
(iii) the sum of (w) the Facility B Cash Collateral
Value, (x) 75% of the Facility B Primary Collateral Value
and (y) the Nextel Collateral Value equals or exceeds 105%
of the aggregate principal amount of the Facility B Loans
outstanding.
3.
<PAGE>
"Collateral Value" means the Primary Collateral Value, the Secondary
Support Value, or the Nextel Collateral Value, or any thereof.
"Commitment" means, with respect to any Bank, such Bank's Facility A
Commitment plus its Facility B Commitment, and "Commitments" means the
Facility A Commitments and the Facility B Commitments.
"Credit Limit" with respect to any Third Party Pledgor shall mean the
Credit Limit established from time to time by the Banks for such Third Party
Pledgor under Section 2.13.
"Current Market Value" on any day means the closing price on the New
York Stock Exchange or the NASDAQ national market system for the preceding
trading day, in the case of (i) the Primary Collateral or Nextel Common Stock
and (ii) any Eligible Supplemental Collateral if such Eligible Supplemental
Collateral is traded on the New York Stock Exchange or the NASDAQ national
market system, or the "current market value," as such term is defined in
Regulation U, as determined by the Agent in its reasonable judgment, in the
case of any other Eligible Collateral; provided that the Current Market Value
of any Class A Preferred Stock or Class C Preferred Stock shall be the
Current Market Value of that number of shares of Nextel Common Stock into
which such Class A Preferred Stock or Class C Preferred Stock is at the time
convertible.
"Debt" means, with respect to any Person: (a) indebtedness of such
Person for borrowed money; (b) indebtedness for the deferred purchase price
of property or services (except trade payables in the ordinary course of
business); (c) the face amount of any outstanding letters of credit issued
for the account of such Person; (d) obligations arising under acceptance
facilities; (e) guaranties, endorsements (other than for collection in the
ordinary course of business) and other contingent obligations to purchase, to
provide funds for payment, to supply funds to invest in any Person, or
otherwise to assure a creditor against loss; (f) obligations secured by any
Lien on property of such Person; and (g) obligations of such Person as lessee
under capital leases.
"Default" means any event which with the giving of notice or lapse of
time, or both, would become an Event of Default.
"Default Rate" means, with respect to the principal of any Loan and, to
the extent permitted by law, any other amount payable by the Borrower under
this Agreement or any Note that is not paid when due (whether at stated
maturity, by acceleration or otherwise), a rate per annum during the period
from and including the due date, to but excluding the date on which such
amount is paid in full, equal to 1% above the Variable Rate as in effect from
time to time plus the Margin (if any) (provided that, if the amount so in
default is principal of a Fixed Rate Loan and the due date thereof is a day
other than the last day of the Interest Period therefor, the "Default Rate"
for such principal shall be, for the period from and including the due date
and to but excluding the last day of the Interest Period therefor, 2% above
the interest rate for such Loan as provided in Section 2.10 hereof and,
thereafter, the rate provided for above in this definition).
4.
<PAGE>
"Departing Bank" or "Departing Banks" means Bank of Tokyo-Mitsubishi
Trust Co.
"Dollars" and the sign "$" mean lawful money of the United States of
America.
"Drawdown Date" means the Effective Date and the Motorola Drawdown Date.
"Eagle River" means Eagle River Investments, L.L.C., a limited liability
company formed under the laws of the State of Washington.
"Effective Date" means the date on which each condition precedent set
forth in Section 4.01 and subsections (a), (b) and (d) of Section 4.02 is and
remains satisfied or is waived by the Remaining Banks in writing.
"Effective Date Collateral" means the sum of (x) 75% of the Primary
Collateral Value of the Primary Collateral held by the Agent under the Pledge
Agreements on the Effective Date, (y) the Secondary Support Value of any
Secondary Support held by the Agent on the Effective Date and (z) the Nextel
Collateral Value on the Effective Date.
"Effective Date Commitment" means, as to any Remaining Bank, (i)
94.73237% of the Commitment of such Remaining Bank LESS (ii) the principal
amount of Old Loans of such Remaining Bank outstanding immediately prior to
the Effective Date.
"Effective Date Commitment Percentage" means, as to any Remaining Bank
at any time, the percentage equivalent (expressed as a decimal, rounded to
the ninth decimal place) at such time of such Remaining Bank's Effective Date
Commitment divided by the aggregate Effective Date Commitments of all the
Remaining Banks.
"Effective Date Loans" means the New Loans requested by the Borrower to
be made on the Effective Date.
"Eligible Additional Collateral" means Cash Collateral, Primary
Collateral, or Eligible Nextel Qualified Collateral, or any combination
thereof.
"Eligible AT&T Collateral" means common stock of AT&T Corporation held
by the Third Party Pledgors free and clear of Liens other than under the
Pledge Agreements and subject to no Transfer Restrictions.
"Eligible Collateral" means the Collateral consisting of (a) Primary
Collateral, (b) Eligible Nextel Collateral and (c) Cash Collateral.
"Eligible Deposited Assets" means any one or more of the following, in
each case free and clear of any Liens:
(i) cash deposits in Dollars;
(ii) Permitted Investments; and
5.
<PAGE>
(iii) freely tradable common stock listed on the New York Stock
Exchange (other than Nextel Common Stock if it becomes listed on such
Exchange) and having a per share value of not less than $10.
"Eligible Lucent Collateral" means common stock of Lucent Technologies,
Inc. held by the Third Party Pledgors free and clear of Liens other than
under the Pledge Agreements and subject to no Transfer Restrictions.
"Eligible Maintenance Collateral" means at any time the aggregate Cash
Collateral, Primary Collateral, Eligible Nextel Qualified Collateral and
Eligible Supplemental Collateral subject to a first priority perfected
security interest in favor of Agent and the Banks under the Pledge Agreements.
"Eligible NCR Collateral" means common stock of NCR Corp. held by the
Third Party Pledgors free and clear of Liens other than under the Pledge
Agreements and subject to no Transfer Restrictions.
"Eligible Nextel Collateral" means the shares of Nextel Common Stock and
the Class A Preferred Stock (and any securities into which such shares may be
converted) held by the Borrower free and clear of Liens other than under the
Pledge Agreements and subject to no Transfer Restrictions other than under
Section 8.3(f) of the Nextel Purchase Agreement (and such Transfer
Restrictions are applicable to the Agent as a pledgee only to the extent that
they require compliance with applicable law), the terms of Sections 8.1 and
8.2 of the provisions in the Nextel Certificate of Incorporation pertaining
to the Class A Preferred Stock and Rule 144.
"Eligible Nextel Qualified Collateral" means Eligible Nextel Collateral
(i) in the case of any Class A Preferred Stock or Class C Preferred Stock, as
to which the Nextel Collateral Agreement and the Nextel Confirmation are in
full force and effect (except as may have been otherwise approved by the
Required Banks and the Required B Banks), (ii) which at the time it is
initially pledged to the Agent has a Current Market Value of at least $10 per
share, (iii) which has been owned by a Pledgor who has met the two-year
holding period for such Collateral under Rule 144(k), (iv) which has been
pledged to the Agent under a Pledge Agreement for at least two years, and (v)
which does not exceed 30,083,641 Nextel Common Stock Equivalents.
"Eligible Supplemental Collateral" means any other securities (other
than securities included in Cash Collateral) from time to time satisfactory
to all Banks in their sole discretion but shall not include any of the
Eligible Nextel Collateral; provided that, if the Opposing Banks at any time
determine that any such securities shall no longer be Eligible Supplemental
Collateral and notify the Agent and the Borrower of that decision, such
securities shall effective commencing with the second Banking Day after the
Borrower's receipt of such notice (and until decided otherwise by the Agent
and the Required Banks) no longer be Eligible Supplemental Collateral for the
purposes of future pledges under the Pledge Agreements (but any such
securities already pledged under the Pledge Agreements
6.
<PAGE>
shall continue to be Eligible Supplemental Collateral so long as they are
held under the Pledge Agreement).
"Event of Default" has the meaning given such term in Section 9.01.
"Facility" means either Facility A or Facility B.
"Facility A" means the credit facility under this Agreement evidenced by
the Facility A Commitments and the Facility A Loans.
"Facility A Bank" means any Bank which has a Facility A Commitment or is
owed a Facility A Loan.
"Facility A Cash Collateral" means Cash Collateral pledged to the Agent
under a Pledge Agreement and allocated to Facility A for the purpose of
meeting the Facility A Collateral Maintenance Tests.
"Facility A Cash Collateral Value" means the Cash Collateral Value of any
Facility A Cash Collateral.
"Facility A Collateral" means the Facility A Cash Collateral and the
Facility A Primary Collateral.
"Facility A Collateral Maintenance Tests" means the tests set forth in
clauses (i) and (ii) of the definition of Collateral Maintenance Tests.
"Facility A Commitment" means, with respect to each Facility A Bank, the
obligation of such Bank to make its Facility A Loans under this Agreement in the
principal amount set forth next to such Bank's name under "Facility A
Commitment" on Schedule 1 hereto, as such amount may be reduced or otherwise
modified from time to time; PROVIDED that the aggregate amount of the
Commitments shall not exceed either (a) the Maximum Loan Value or (b) the
Effective Date Collateral, with each Bank's Facility A Commitment as set forth
above being reduced proportionately in accordance with such aggregate limits.
"Facility A Loans" means the Loans designated as Facility A Loans under
Section 2.01(e).
"Facility A Note" mean a promissory note of the Borrower in the form of
Exhibit A-1 hereto evidencing the Facility A Loans made by a Bank hereunder.
"Facility A Primary Collateral" means Primary Collateral pledged to the
Agent under a Pledge Agreement and allocated to Facility A for the purpose of
meeting the Facility A Collateral Maintenance Tests.
"Facility A Primary Collateral Value" means the Primary Collateral Value
of any Facility A Primary Collateral.
7.
<PAGE>
"Facility A Pro Rata Share" means, when used with reference to any
Facility A Bank, (i) on either Drawdown Date, the "Facility A Percentage"
shown next to such Bank's name on Schedule 1 hereto and (ii) after the last
Drawdown Date, a fraction the numerator of which shall be such Bank's
Facility A Loans and the denominator of which shall be the aggregate Facility
A Loans outstanding for all Facility A Banks.
"Facility B" means the credit facility under this Agreement evidenced by
the Facility B Commitments and the Facility B Loans.
"Facility B Bank" means any Bank which has a Facility B Commitment or is
owed a Facility B Loan.
"Facility B Cash Collateral" means Cash Collateral pledged to the Agent
under a Pledge Agreement and allocated to Facility B for the purpose of
meeting the Facility B Collateral Maintenance Tests.
"Facility B Cash Collateral Value" means the Cash Collateral Value of any
Facility B Cash Collateral.
"Facility B Collateral" means the Nextel Collateral, the Facility B Cash
Collateral and the Facility B Primary Collateral.
"Facility B Collateral Maintenance Tests" means the tests set forth in
clause (iii) of the definition of Collateral Maintenance Tests.
"Facility B Commitment" means, with respect to each Facility B Bank, the
obligation of such Bank to make its Facility B Loans under this Agreement in
the principal amount set forth next to such Bank's name under "Facility B
Commitment" on Schedule 1 hereto, as such amount may be reduced or otherwise
modified from time to time; PROVIDED that the aggregate amount of the
Commitments shall not exceed either (a) the Maximum Loan Value or (b) the
Effective Date Collateral, with each Bank's Facility B Commitment as set
forth above being reduced proportionately in accordance with such aggregate
limits.
"Facility B Loans" means the Loans designated as Facility B Loans under
Section 2.01(e).
"Facility B Note" mean a promissory note of the Borrower in the form of
Exhibit A-2 hereto evidencing the Facility B Loans made by a Bank hereunder.
"Facility B Primary Collateral" means Primary Collateral pledged to the
Agent under a Pledge Agreement and allocated to Facility B for the purpose of
meeting the Facility B Collateral Maintenance Tests.
"Facility B Primary Collateral Value" means the Primary Collateral Value
of any Facility B Primary Collateral.
8.
<PAGE>
"Facility B Pro Rata Share" means, when used with reference to any
Facility B Bank, (i) on either Drawdown Date, the "Facility B Percentage"
shown next to such Bank's name on Schedule 1 hereto and (ii) after the last
Drawdown Date, a fraction the numerator of which shall be such Bank's
Facility B Loans and the denominator of which shall be the aggregate Facility
B Loans outstanding for all Facility B Banks.
"Facility Documents" means this Agreement, the Notes, the Authorization
Letter, the Borrower Pledge Agreement and the Third Party Pledge Agreement,
any Cash Collateral Agreement, the Nextel Confirmation Agreement and other
documents delivered under Section 4.01(c).
"FCC Provisions" means the provisions of the Federal Communications Act
of 1934, as amended, and the rules and regulations promulgated thereunder.
"Federal Funds Rate" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions as
published by the Federal Reserve Bank of New York for such day (or for any
day that is not a Banking Day, for the immediately preceding Banking Day).
"First Nextel Option" means the First Option (as defined in the Nextel
Purchase Agreement).
"First Motorola Option" means the First Tranche (as defined in the Motorola
Purchase Agreement).
"First Tranche Options" means the First Nextel Option and the First
Motorola Option.
"Fixed Base Rate" means with respect to any Interest Period for a Fixed
Rate Loan, the arithmetic mean, as calculated by the Agent, of the respective
rates per annum (rounded upwards, if necessary, to the nearest 1/16 of 1%)
quoted at approximately 11:00 a.m. London time by the principal London
branch of the Reference Bank two Banking Days prior to the first day of such
Interest Period for the offering to leading banks in the London interbank
market of Dollar deposits in immediately available funds, for a period, and
in an amount, comparable to the Interest Period and principal amount of the
Fixed Rate Loan which shall be made by the Reference Bank and outstanding
during such Interest Period.
"Fixed Rate" means, for any Fixed Rate Loan for any Interest Period
therefor, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Agent to be equal to the quotient of (i) the
Fixed Base Rate for such Loan for such Interest Period, divided by (ii) one
minus the Reserve Requirement for such Loan for such Interest Period.
"Fixed Rate Loan" means any Loan when and to the extent the interest rate
therefor is determined on the basis of the definition "Fixed Base Rate."
9.
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"Forfeiture Proceeding" means any action, proceeding or investigation
affecting the Borrower or any other member of the Borrower Group before any
court, governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or the receipt of notice by any such
party that any of them is a suspect in or a target of any governmental
inquiry or investigation, which could be reasonably expected to result in an
indictment of any of them or the seizure or forfeiture of any of the
Collateral or the creation of a Lien on the Collateral which would have
priority over or equal to the Lien in favor of the Agent under the Pledge
Agreements.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect from time to time, applied on a basis
consistent with those used in the preparation of the financial statements
referred to in Section 5.05 (except for changes concurred in by the
Borrower's independent public accountants).
"Interest Period" means, with respect to any Fixed Rate Loan, the period
commencing on the date such Loan is made, converted from another type of Loan
or renewed, as the case may be, and ending, as the Borrower may select
pursuant to Section 2.07, on the numerically corresponding day in the first,
second, third, or sixth calendar month thereafter, provided that each such
Interest Period which commences on the last Banking Day of a calendar month
(or on any day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall end on the last Banking Day of
the appropriate calendar month.
"Lending Office" means, for each Bank and for each type of Loan, the
lending office of such Bank (or of an affiliate of such Bank) designated as
such for such type of Loan on its signature page hereof or such other office
of such Bank (or of an affiliate of such Bank) as such Bank may from time to
time specify to the Agent and the Borrower as the office by which its Loans
of such type are to be made and maintained.
"Lien" means any lien (statutory or otherwise), security interest,
mortgage, deed of trust, priority, pledge, charge, conditional sale, title
retention agreement, financing lease or other encumbrance or similar right of
others, or any agreement to give any of the foregoing.
"LLC Agreement" means the Limited Liability Company Agreement of Digital
Radio, L.L.C. dated and effective as of March 17, 1995, as it may be amended
from time to time.
"Loan" means any loan made by a Bank pursuant to Section 2.01 of the
Original Credit Agreement or Section 2.01 of this Agreement as amended and
restated as of the Effective Date.
"Manager" means the person who is designated as the manager member under
the charter documents of the Borrower.
"Margin" means (a) for a Variable Rate Loan, 0%; and (b) for a Fixed
Rate Loan prior to the Effective Date, 0.5%, and on and after the Effective
Date:
10.
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(i) 0.375% on that portion of the Facility A Loans equal to
the Cash Collateral Value;
(ii) 0.5% on that portion of the Facility A Loans equal to the
lesser of (x) 75% of the Primary Collateral Value and (y) the
aggregate principal amount of the Facility A Loans minus the Cash
Collateral Value;
(iii) 1.25% on any portion of the aggregate principal amount of
the Facility A Loans which exceeds the sum of (x) the Cash Collateral
Value and (y) 75% of the Primary Collateral Value; and
(iv) 1.25% on the Facility B Loans.
For the purposes of determining the Margin on Fixed Rate Loans, the Cash
Collateral Value and the Primary Collateral Value shall be calculated as of
the close of business in New York, New York on the last Business Day of each
week and such values shall be used for purposes of interest calculations for
the ensuing week, unless during the ensuing week Cash Collateral or Primary
Collateral is added to, released from or substituted in the Collateral, in
which event the Cash Collateral Value and the Primary Collateral Value shall
also be calculated as of the date of such addition, release or substitution
and such calculations shall be controlling until the next applicable
calculation.
"Maximum Loan Value" at any time shall mean 50% of the aggregate Current
Market Value at such time of the Eligible Collateral.
"Motorola Drawdown Date" means the date on which the Borrower makes a
borrowing hereunder for the purpose of exercising the First Motorola Option
(which date may not be earlier than the Effective Date nor later than September
15, 1997).
"Motorola Drawdown Commitment" for any Bank means 5.26763% of such Bank's
Commitment.
"Motorola Purchase Agreement" means that certain Stock Purchase Agreement
between the Borrower and Motorola, Inc. dated as April 4, 1995, as it may be
amended from time to time.
"New Collateral" means, in the case of a substitution of Collateral under
Section 2.05, the Collateral which is being delivered to the Agent in
substitution for Collateral already held by the Agent.
"New Loans" means Loans made by the Remaining Banks on a Drawdown Date.
"New Loan Commitment" means the aggregate of the Commitments less the
aggregate principal amount of the Old Loans.
11.
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"New Notes" means Notes issued to the Remaining Banks to evidence the Loans
owed to them after the making of the New Loans and any purchase of Old Loans
under Section 4.04.
"Nextel" means Nextel Communications, Inc., a Delaware corporation.
"Nextel Certificate of Incorporation" means the Certificate of
Incorporation of Nextel, as amended to the date of this Agreement.
"Nextel Collateral" means any Collateral consisting of Nextel Stock.
"Nextel Collateral Agreement" means that certain Agreement substantially in
the form of Exhibit J executed or to be executed by Nextel, the Borrower and the
Agent, as the same may be amended from time to time.
"Nextel Collateral Value" on any day means one-third of the Current
Market Value of the Eligible Nextel Qualified Collateral held by the Agent as
security for the Notes free and clear of all Liens other than those under a
Pledge Agreement.
"Nextel Common Stock" means the Class A Common Stock of Nextel.
"Nextel Common Stock Equivalents" at any time means the sum of (i) the
number of shares of Nextel Common Stock held by the Agent under the Pledge
Agreements and (ii) the number of shares of Nextel Common Stock into which
the Class A Preferred Stock and the Class C Preferred Stock held by the Agent
under the Pledge Agreements may be converted at such time.
"Nextel Confirmation" means that certain Confirmation substantially in
the form of Exhibit M executed or to be executed by Nextel and the Borrower,
as an amendment to the Nextel Purchase Agreement.
"Nextel Options" means any and all of the Second Option and the Third
Option (each as defined in the Nextel Purchase Agreement) and the Option (as
defined in the Motorola Purchase Agreement) (other than the First Tranche
thereof) and any securities and other property issued from time to time in
respect thereof or upon the conversion, exercise or exchange thereof but
shall not include any of the Eligible Nextel Collateral held by the Agent
under the Pledge Agreements.
"Nextel Purchase Agreement" means that certain Securities Purchase
Agreement by and among Nextel, the Borrower and Craig O. McCaw dated as of
April 4, 1995, as it may be amended from time to time (including but not
limited to the Option Agreements executed pursuant thereto and the Option
Exercise and Lending Commitment Agreement by and among Nextel and the
Borrower dated as of June 16, 1997).
"Nextel Stock" means Nextel Common Stock, Class A Preferred Stock and
Class C Preferred Stock, or any thereof.
12.
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"Nextel Transferee" has the meaning set forth in Section 7.06.
"Nextel Transfer Agreement" means an agreement substantially in the form of
Exhibit K hereto.
"Note" means either a Facility A Note or a Facility B Note or both.
"Obligations" means all obligations of the Borrower to the Agent or the
Banks now or hereafter existing under the Facility Documents whether for
principal, interest, fees, expenses or otherwise.
"Old Collateral" means, in the case of a substitution of Collateral under
Section 2.05, the Collateral already held by the Agent for which the Borrower is
requesting a substitution.
"Old Loan Percentage" means, as to any Departing Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of such Departing Bank's Old Loans divided by the aggregate
Old Loans of all the Departing Banks.
"Old Loans" means the Loans outstanding immediately prior to the Effective
Date.
"Old Notes" means the Notes evidencing the Old Loans.
"Opposing Banks" means, at any time while no Loans are outstanding, Banks
having more than 30% of the aggregate amount of the Commitments and, at any time
while Loans are outstanding, Banks having more than 30% of the aggregate
principal amount of the Loans.
"Original Credit Agreement" has the meaning provided in the Recitals
hereof.
"Permitted Investments" means any of the following Dollar denominated
investments:
(i) marketable direct obligations issued or unconditionally
guaranteed by the United States government or issued by any agency
thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition;
and
(ii) money market funds organized under the laws of the United
States or any state thereof that invest solely in any of the
investments permitted under clause (i).
"Person" means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, governmental authority or other entity of whatever nature.
13.
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"Pledge Agreement" means the Borrower Pledge Agreement, any Third Party
Pledge Agreement and any Cash Collateral Agreement, as those agreements may be
amended from time to time.
"Pledgor" has the meaning given such term in each Pledge Agreement.
"Primary Collateral" means Eligible AT&T Collateral, Eligible Lucent
Collateral, Eligible NCR Collateral, Eligible Supplemental Collateral, or any
combination thereof.
"Primary Collateral Value" of any Primary Collateral means the Current
Market Value of such Primary Collateral if held by the Agent as security for
the Notes free and clear of all Liens other than those under a Pledge
Agreement; provided that if the Current Market Value of the Eligible NCR
Collateral allocated to a Facility exceeds one-ninth of the total Current
Market Value of the Eligible AT&T Collateral and Eligible Lucent Collateral
allocated to that Facility, then the amount of such excess shall not be
included in the Primary Collateral Value of the Primary Collateral allocated
under Section 2.01(g) to that Facility.
"Prime Rate" means that rate of interest from time to time announced by
the Agent at the Principal Office as its prime commercial lending rate. Such
rate is not tied to any external index and does not necessarily represent the
lowest or best rate of interest actually charged to any class or category of
customers.
"Principal Office" means the principal office of the Agent, presently
located at 270 Park Avenue, New York, New York 10017.
"Purchase Agreements" means the Nextel Purchase Agreement and the Motorola
Purchase Agreement.
"Purchased Amount" has the meaning provided in Section 2.04(b).
"Recourse Guaranty" means any guaranty provided by a Third Party Pledgors
and accepted by the Banks pursuant to Section 2.13 hereof.
"Reference Bank" means The Chase Manhattan Bank and any successor thereto.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as the same may be amended or supplemented from time to time.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as the same may be amended or supplemented from time to time.
"Regulatory Change" means, with respect to any Bank, any change after the
date of this Agreement in United States federal, state, municipal or foreign
laws or regulations (including without limitation Regulation D) or the adoption
or making after such date of any interpretations, directives or requests
applying to a class of banks including such Bank
14.
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of or under any United States federal, state, municipal or foreign laws or
regulations (whether or not having the force of law) by any court or
governmental or monetary authority charged with the interpretation or
administration thereof.
"Remaining Banks" means the Banks other than the Departing Banks and
includes any Bank signatory hereto which was not a party to the Original Credit
Agreement.
"Required Banks" means, at any time while no Loans are outstanding, Banks
having at least 70% of the aggregate amount of the Commitments and, at any time
while Loans are outstanding, Banks holding at least 70% of the aggregate
principal amount of the Loans.
"Required A Banks" means, at any time while no Facility A Loans are
outstanding, Banks having at least 70% of the aggregate amount of the Facility A
Commitments and, at any time while Facility A Loans are outstanding, Banks
holding at least 70% (or with respect to any action to foreclose upon any
Facility A Collateral or to collect on any Secondary Support or with respect to
any request to the Agent under Section 8.03, 60%) of the aggregate principal
amount of the Facility A Loans.
"Required B Banks" means, at any time while no Facility B Loans are
outstanding, Banks having at least 70% of the aggregate amount of the Facility B
Commitments and, at any time while Facility B Loans are outstanding, Banks
holding at least 70% (or with respect to any action to foreclose upon the
Facility B Collateral or with respect to any request to the Agent under Section
8.04, 60%) of the aggregate principal amount of the Facility B Loans.
"Reserve Requirement" means, for any Fixed Rate Loan for any Interest
Period therefor, the average maximum rate at which reserves (including any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the Federal
Reserve System in New York City with deposits exceeding $1,000,000,000
against "Eurocurrency liabilities" (as such term is used in Regulation D).
Without limiting the effect of the foregoing, the Reserve Requirement shall
reflect any other reserves required to be maintained by such member banks by
reason of any Regulatory Change against (i) any category of liabilities which
includes deposits by reference to which the Fixed Base Rate is to be
determined as provided in the definition of "Fixed Base Rate" in this Section
1.01 or (ii) any category of extensions of credit or other assets which
include Fixed Rate Loans.
"Rule 144" means Rule 144 promulgated by the SEC under the Securities Act,
as such Rule may be amended from time to time.
"SEC" means the Securities and Exchange Commission and any successor agency
thereto.
"Secondary Support" means guaranties, pledges or other arrangements meeting
the requirements of Sections 2.13(a), (b) or (c).
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"Secondary Support Value" on any day means:
(i) with respect to any Recourse Guaranty provided under
Section 2.13(a), the lesser of (x) the maximum amount which the Agent,
in the case of an Event of Default, could demand under such Recourse
Guaranty with respect to principal of the Facility A Loans and (y) the
Credit Limit of such Third Party Pledgor;
(ii) in the case of a Recourse Guaranty provided under Section
2.13(b), the lesser of (x) the maximum amount which the Agent, in the
case of an Event of Default, could demand under such Recourse Guaranty
with respect to principal of the Facility A Loans and (y) 50% of the
Current Market Value of the Eligible Deposited Assets of such Third
Party Pledgor; and
(iii) with respect to any other collateral (other than Cash
Collateral or Primary Collateral) pledged by a Third Party Pledgor,
such value as may have been determined by the Borrower and the Agent
at the time of the pledge of such collateral or, if no determination
had been made, such value as determined by the Agent in its reasonable
judgment.
provided that if any of the events specified in Section 8.01 (d), (e), (f), (g)
or (h) shall have occurred and be continuing with respect to a Third Party
Pledgor, the Secondary Support Value of any Recourse Guarantee provided by such
Third Party Pledgor shall be zero.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any corporation or other
entity of which at least a majority of the securities or other ownership
interests having ordinary voting power (absolutely or contingently) for the
election of directors or other persons performing similar functions are at the
time owned directly or indirectly by such Person; provided that Nextel shall not
be deemed a Subsidiary of the Borrower solely by reason of the power of the
Borrower to control the Operations Committee (as defined in the Nextel Purchase
Agreement).
"Termination Date" means July 28, 2000; provided that if such date is not a
Banking Day, the Termination Date shall be the next succeeding Banking Day (or,
if such next succeeding Banking Day falls in the next calendar month, the next
preceding Banking Day).
"Third Party Pledge Agreement" means each of the amended and restated
pledge agreements in the form of Exhibit C-2 to be delivered by the Third Party
Pledgors under the terms of this Agreement, as any of such agreements may be
amended from time to time.
"Third Party Pledgor" means each of Craig O. McCaw, Keith W. McCaw,
Bruce R. McCaw, John E. McCaw and Marion O. Williams.
16.
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"Transfer Restriction" means any limitation, whether imposed by law or
contract or otherwise, upon the record or beneficial owner of a security to
sell, pledge, transfer or otherwise dispose of such security or to exercise
any power to vote such security granted by law or the constituent documents
of the issuer of such security; provided that limitations on voting rights
generally applicable to a class of stock under the constituent documents
shall not be deemed a Transfer Restriction.
"Variable Rate" means, for any day, the higher of (a) the Federal Funds
Rate for such day plus 1/2 of 1% and (b) the Prime Rate for such day.
"Variable Rate Loan" means any Loan when and to the extent the interest
rate for such Loan is determined in relation to the Variable Rate.
Section 1.02. ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, and all financial
data required to be delivered hereunder shall be prepared in accordance with
GAAP.
ARTICLE 2.
THE CREDIT
Section 2.01. THE LOANS.
(a) Subject to the terms and conditions of this Agreement, each of
the Remaining Banks severally agrees (i) to make a New Loan to the Borrower
on the Effective Date in a principal amount up to such Remaining Bank's
Effective Date Commitment Percentage multiplied by the aggregate amount of
the Effective Date Loans, (ii) to continue its outstanding Loans made to the
Borrower under the Original Credit Agreement, and (iii) to purchase on the
Effective Date Old Loans from the Departing Banks in a principal amount up to
such Remaining Bank's Effective Date Commitment Percentage multiplied by the
aggregate of the Old Loans of the Departing Banks, all in a combined amount
not to exceed its Commitment. Upon the making of a New Loan by a Remaining
Bank on the Effective Date, such Remaining Bank's Effective Date Commitment
shall be terminated.
(b) Subject to the terms and conditions of this Agreement, each of
the Remaining Banks severally agrees to make a New Loan to the Borrower on
the Motorola Drawdown Date in a principal amount up to such Remaining Bank's
Motorola Drawdown Commitment. Any portion of the Commitment of each
Remaining Bank unborrowed on the earlier of the Motorola Drawdown Date or
September 15, 1997 shall be terminated.
(c) The Loans may be outstanding as Variable Rate Loans or Fixed
Rate Loans (each a "type" of Loan); provided that Fixed Rate Loans as to New
Loans made on a Drawdown Date may not be selected until the Drawdown Date has
occurred. The Loans of each type of each Bank shall be made and maintained
at such Bank's Lending Office for such type of Loan.
17.
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(d) The Loans shall be due and payable on the Termination Date,
when all principal outstanding on the Loans shall be due and payable in full,
together with all interest accrued thereon. Amounts paid or prepaid on the
Loans may not be reborrowed except by conversion or renewal under Sections
2.06 or 2.07.
(e) After the making of the New Loans on the Effective Date the
amount of the Loans shall be divided into Facility B Loans (constituting
25.4885302% of the principal amount of the Loans) and Facility A Loans
(constituting the remainder of the principal amount of the Loans), with each
Facility A Bank having its Facility A Pro Rata Share of the Facility A Loans
and each Facility B Bank having its Facility B Pro Rata Share of the Facility
B Loans. If New Loans are made on the Motorola Drawdown Date, the amount of
the Loans shall be redivided into Facility B Loans (constituting 25.4885302%
of the principal amount of the Loans) and Facility A Loans (constituting the
remainder of the principal amount of the Loans), with each Facility A Bank
having its Facility A Pro Rata Share of the Facility A Loans and each
Facility B Bank having its Facility B Pro Rata Share of the Facility B Loans.
(f) Each Variable Rate Loan and each Fixed Rate Loan shall be
allocated (i) between Facility A and Facility B in the same proportion that
the aggregate Facility A Loans and the aggregate Facility B Loans bear to the
total of all Loans and (ii) among the Facility A Banks and the Facility B
Banks respectively based upon their Facility A Pro Rata Shares and Facility B
Pro Rata Shares. Any Fixed Rate Loans constituting a part of the Old Loans
purchased by the Remaining Banks under Section 4.04 shall be allocated among
the Remaining Banks to the extent possible so that Fixed Rate Loans having
the same Interest Period shall be shared pro rata among the Remaining Banks
based upon their Commitments as of the Effective Date.
(g) Collateral may be "allocated" to Facility A or Facility B, but
such allocation is solely for purposes of (i) the Collateral Maintenance
Tests and (ii) the allocation of proceeds pursuant to Section 2.14; and any
such allocation shall not derogate from the requirement that all Collateral
secures all Obligations. All Cash Collateral and all Primary Collateral (on
an item by item basis) shall be allocated either to Facility A or to Facility
B but not to both. On the Effective Date, all Cash Collateral and Primary
Collateral shall be allocated to Facility A. Cash Collateral and Primary
Collateral may thereafter be reallocated from one Facility to the other
Facility only if such Collateral could first be released pursuant to the
provisions of Section 2.05 pertaining to the first Facility and repledged to
the other Facility and only upon the giving of the notice required under
Section 2.05(g); provided that any such reallocation shall not actually
constitute a release of Collateral.
Section 2.02. THE NOTES. The Facility A Loans of each Facility A Bank
shall be evidenced by a single Facility A Note, duly completed and executed by
the Borrower. The Facility B Loans of each Facility B Bank shall be evidenced
by a single Facility B Note, duly completed and executed by the Borrower.
18.
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Section 2.03. PURPOSE. The Borrower shall use the proceeds of the New
Loans solely to purchase shares of Nextel Common Stock upon exercise of the
First Tranche Options, in each case in compliance with Regulation U.
Section 2.04. BORROWING PROCEDURES.
(a) The Borrower shall make the borrowing of New Loans hereunder
on a Drawdown Date and shall give the Agent at least one Banking Day's notice
of the date of such borrowing (which shall be a Banking Day). Not later than
1:00 p.m. New York City time on the date of such borrowing, each Remaining
Bank shall, through its Lending Office and subject to the conditions of this
Agreement, make the amount of the New Loan to be made by it on such day
available to the Agent at the Principal Office and in immediately available
funds for the account of the Borrower. The amount so received by the Agent
shall, subject to the conditions of this Agreement, be made available to or
for the account of the Borrower, in immediately available funds, by the Agent
crediting or transmitting funds to one or more of the following as requested
by the Borrower in its notice of such borrowing: (i) an account of the
Borrower designated by the Borrower and maintained with the Agent at the
Principal Office, (ii) Nextel in payment of all or part of the purchase price
for securities under the Nextel Purchase Agreement, and (iii) Motorola, Inc.
in payment of all or part of the purchase price for securities under the
Motorola Purchase Agreement.
(b) Not later than 1:00 p.m. New York City time on the Effective
Date, each Remaining Bank shall, through its Lending Office and subject to
the conditions of this Agreement, make the amount of the Old Loans to be
purchased by it pursuant to Section 4.04 (such Remaining Bank's "Purchased
Amount") available to the Agent at the Principal Office and in immediately
available funds for the respective accounts of the Departing Banks. The
Purchased Amount so received by the Agent from each Remaining Bank shall,
subject to the conditions of this Agreement, be made available to or for the
account of each Departing Bank, in immediately available funds, by the Agent
crediting or transmitting funds to such Departing Bank in an amount equal to
such Purchased Amount multiplied by such Departing Bank's Old Loan Percentage
(such amount to be credited or transmitted to such account as such Departing
Bank shall specify to the Agent in writing).
Section 2.05. MANDATORY PREPAYMENTS; MARK-TO-MARKET; RELEASE OF
COLLATERAL.
(a) Notwithstanding anything to the contrary herein or in any
other agreement or instrument executed by the Borrower or any Third Party
Pledgor evidencing, or in connection with, the Loans, the Borrower hereby
covenants at all times (subject to the right to cure in Section 2.05(b)
below) to maintain or cause to be maintained with the Agent Eligible
Maintenance Collateral meeting the Collateral Maintenance Tests, regardless
of whether the Agent has given to the Borrower or to any Third Party Pledgor
any notice or demand with respect to compliance with Collateral Maintenance
Tests. On any date and at any time, the Agent may determine, at its option,
the Current Market Value of all or any of the Eligible Maintenance Collateral
held by the Agent pursuant to this Agreement as of such date and time and
compliance with Collateral Maintenance Tests.
19.
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(b) If on any day the Collateral Maintenance Tests are not met,
then within three (3) Banking Days (including the Banking Day upon which such
failure to satisfy such conditions occurs), at Borrower's option, either (i)
the Borrower shall deliver, or cause to be delivered by or on behalf of the
other Pledgors, to the Agent as additional Collateral to be held by the Agent
under the lien of the Pledge Agreements, Eligible Additional Collateral
(together with duly executed stock powers and other documents as reasonably
requested by Agent to fully perfect a first priority security interest in
such Collateral) or Secondary Support so that the Collateral Maintenance
Tests are met, or (ii), subject to Section 2.06(b), the Borrower shall pay or
prepay the Loans (including such payments or prepayments made with the
proceeds from the sale or other realization of the Pledged Collateral
conducted by the Agent on behalf of any Pledgor upon the request of the
Pledgor) in an amount such that, after giving effect to such payment or
prepayment, the Collateral Maintenance Tests are met. Any prepayments
required under this Section 2.05(b) shall be applied first to outstanding
Variable Rate Loans within the applicable Facility or Facilities and next to
such outstanding Fixed Rate Loans within the applicable Facility or
Facilities as may be requested by the Borrower at or prior to the time of
prepayment (and absent such request, to such outstanding Fixed Rate Loans
within the applicable Facility or Facilities as Agent in its sole discretion
shall determine).
(c) So long as no Default or Event of Default has occurred and is
continuing and subject to Section 2.05(g), to the extent permitted by
Regulation U, the Agent shall, if requested by the Borrower in writing,
release such portion of the Collateral or any Secondary Support as is not
needed to meet the Collateral Release Tests if for any period of at least 20
consecutive trading days (and thereafter on a continuous basis to the date of
release) the Collateral Release Tests would have been met without regard to
that portion of the Collateral or any Secondary Support requested to be
released. Unless otherwise agreed by the Required Banks, any release of
Primary Collateral under this Section 2.05(c) shall be first from any pledged
Eligible Supplemental Collateral.
(d) So long as no Default or Event of Default has occurred and is
continuing and subject to Section 2.05(g), to the extent permitted by
Regulation U, the Agent shall, if requested by the Borrower in writing,
release such portion of the Eligible NCR Collateral as is not included in the
calculation of Primary Collateral Value if for any period of at least 20
consecutive trading days (and thereafter on a continuous basis to the date of
release) such Eligible NCR Collateral requested to be released has not been
included in the calculation of Primary Collateral Value pursuant to the
definition thereof.
(e) So long as no Default or Event of Default has occurred and is
continuing and subject to Section 2.05(g), the Agent shall to the extent
permitted by Regulation U, if requested by the Borrower in writing, accept
Cash Collateral in substitution for all or a portion of the Eligible
Collateral or any Secondary Support held by the Agent as Collateral so long
as the Collateral Maintenance Tests are met immediately following such
substitution.
(f) So long as no Default or Event of Default has occurred and is
continuing and subject to Section 2.05(g), the Agent shall to the extent
permitted by
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Regulation U, if requested by the Borrower in writing, accept Primary
Collateral in substitution for all or a portion of any Cash Collateral, any
Nextel Collateral or other Primary Collateral held by the Agent as Collateral
or any Secondary Support, so long as for at least the 20 consecutive trading
days prior to the date of the request (and thereafter on a continuous basis
to the date of substitution), the Primary Collateral Value of the Primary
Collateral which would be held by the Agent as Collateral after such
substitution is such that the Collateral Maintenance Tests would have been
met assuming such substitution had already been in effect.
(g) The Borrower's request for substitution, release or
reallocation of Collateral under this Section 2.05 or Section 2.01(g) shall
specify (i) a date for the substitution, release or reallocation at least
three (3) Banking Days after Agent's receipt of the request and (ii) the
Collateral to be substituted, released or reallocated, both by the identity
and quantity of securities and by the identity of the Pledgor.
(h) In the event of any substitution of Collateral (or Secondary
Support) pursuant to Sections 2.05(e) or 2.05(f), the Agent shall release the
Old Collateral (or, to the extent applicable, release Secondary Support) to
the applicable Pledgor no later than the Banking Day following the Agent's
receipt of the New Collateral and confirmation that the Agent has a perfected
first priority lien in the New Collateral.
Section 2.06. OPTIONAL PREPAYMENTS AND CONVERSIONS.
(a) The Borrower shall have the right to make prepayments of
principal, or to convert one type of Loan into another type of Loan, at any
time and from time to time; provided that: (i) the Borrower shall give the
Agent notice of each such prepayment or conversion as provided in Section
2.08; (ii) Fixed Rate Loans may be prepaid or converted only on the last day
of an Interest Period for such Loans; and (iii) any notice to convert a Loan
to a Fixed Rate Loan may be given only on or after the Effective Date.
Subject to the foregoing, the Borrower (with the written consent of the
Pledgor who has pledged the Cash Collateral, which written consent shall have
been delivered to the Agent at least one Banking Day prior to such
prepayment) may use Cash Collateral to make prepayments of principal on the
Loans.
(b) Facility A Loans may not be converted into Facility B Loans,
and Facility B Loans may not be converted into Facility A Loans. Any
prepayments of principal shall be applied to the Facility A Loans and
Facility B Loans in such proportions as the Borrower may instruct the Agent
at the time of prepayment (or, in the absence of such instructions, on a
prorated basis); PROVIDED THAT no such allocation shall result in the
Facility B Loans exceeding 25.4885302% of the principal amount of the total
Loans outstanding; and PROVIDED FURTHER THAT, if at any time the Facility B
Loans exceed 25.4885302% of the principal amount of the total Loans
outstanding, all prepayments shall be applied to the Facility B Loans to the
extent of such excess.
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Section 2.07. INTEREST PERIODS; RENEWALS.
(a) In the case of each Fixed Rate Loan, the Borrower shall select
an Interest Period of any duration in accordance with the definition of
Interest Period in Section 1.01, subject to the following limitations: (i)
no Interest Period may extend beyond the Termination Date; (ii)
notwithstanding clause (i) above, no Interest Period shall have a duration of
less than one month, and if any such proposed Interest Period would otherwise
be for a shorter period, such Interest Period shall not be available; (iii)
if an Interest Period would end on a day which is not a Banking Day, such
Interest Period shall be extended to the next Banking Day, unless, in the
case of a Fixed Rate Loan, such Banking Day would fall in the next calendar
month, in which event such Interest Period shall end on the immediately
preceding Banking Day; and (iv) only five Interest Periods may be outstanding
at any one time.
(b) Upon notice to the Agent as provided in Section 2.08, the
Borrower may renew any Fixed Rate Loan on the last day of the Interest Period
therefor as the same type of Loan with an Interest Period of the same or a
different duration in accordance with the limitations provided above. If the
Borrower shall fail to give notice to the Agent of such a renewal, such Fixed
Rate Loan shall automatically become a Variable Rate Loan on the last day of
the current Interest Period; provided that the foregoing shall not prevent
the conversion of any type of Fixed Rate Loan into another type of Loan in
accordance with Section 2.06.
Section 2.08. CERTAIN NOTICES. Notices by the Borrower to the Agent of
the borrowing pursuant to Section 2.04, and each prepayment or conversion
pursuant to Section 2.06 and each renewal pursuant to Section 2.07(b) shall
be irrevocable and shall be effective only if received by the Agent not later
than 12:00 noon New York City time, and in the case of the borrowing on a
Drawdown Date and prepayments of, conversions into and (in the case of Fixed
Rate Loans) renewals of (a) Variable Rate Loans, given one Banking Day prior
thereto; (b) Fixed Rate Loans, given four Banking Days prior thereto. Each
such notice shall specify the type of the Loan to be borrowed, or converted,
or prepaid or renewed (and, in the case of a conversion, the type of Loans to
result from such conversion and, in the case of a Fixed Rate Loan, the
Interest Period therefor), the date of the borrowing or prepayment, or
conversion or renewal (which shall be a Banking Day) and, if a prepayment,
whether of Facility A Loans or Facility B Loans or a combination thereof.
The Agent shall promptly (but no later than the close of the Banking Day on
which the Agent has received timely notice from the Borrower) notify the
Banks of the contents of each such notice.
Section 2.09. MINIMUM AMOUNTS. Except for prepayments or conversions
which result in the prepayment or conversion of a particular type or conversions
made pursuant to Section 3.04, each prepayment, conversion and renewal of
principal of the Loan of a particular type shall be in an amount at least equal
to $10,000,000 in the aggregate for all Banks (prepayments, conversions or
renewals of or into Loans of different types or, in the case of Fixed Rate
Loans, having different Interest Periods at the same time hereunder to be deemed
separate prepayments, conversions and renewals for the purposes of the
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foregoing, one for each type of Interest Period). Anything in this Agreement
to the contrary notwithstanding, the aggregate principal amount of Fixed Rate
Loans of each type having concurrent Interest Periods shall be at least equal
to $10,000,000 in the aggregate.
Section 2.10. INTEREST.
(a) Interest shall accrue on the outstanding and unpaid principal
amount of each Loan for the period from and including the date of such Loan
to but excluding the date such Loan is due at the following rates per annum:
(i) for a Variable Rate Loan, at a variable rate per annum equal to the
Variable Rate plus any Margin and (ii) for a Fixed Rate Loan, at a fixed rate
equal to the Fixed Rate plus the Margin. If the principal amount of any Loan
and any other amount payable by the Borrower hereunder or under the Note
shall not be paid when due (at stated maturity, by acceleration or
otherwise), interest shall accrue on such amount to the fullest extent
permitted by law from and including such due date to but excluding the date
such amount is paid in full at the Default Rate.
(b) The interest rate on each Variable Rate Loan shall change when
the Variable Rate changes and interest on each such Loan shall be calculated
on the basis of a year of 365/366 days for the actual number of days elapsed.
Interest on each Fixed Rate Loan shall be calculated on the basis of a year
of 360 days for the actual number of days elapsed. Promptly after the
determination of any interest rate provided for herein or any change therein,
the Agent shall notify the Borrower and the Banks.
(c) Accrued interest shall be due and payable in arrears upon any
payment of principal or conversion and (i) for each Variable Rate Loan, on
the first day of each quarter, commencing the first such date after such
Loan; (ii) for each Fixed Rate Loan, on the last day of the Interest Period
with respect thereto and, in the case of an Interest Period greater than
three months, at three-month intervals after the first day of such Interest
Period; provided that interest accruing at the Default Rate shall be due and
payable from time to time on demand of the Agent.
Section 2.11. FEES. The Borrower shall pay to the Agent as
compensation for its services hereunder an agency fee (in cash or such other
type of compensation as may be mutually agreed) in the amount (and on the
dates) heretofore mutually agreed.
Section 2.12. PAYMENTS GENERALLY. All payments under this Agreement or
the Notes shall be made in Dollars in immediately available funds not later
than 1:00 p.m. New York City time on the relevant dates specified above
(each such payment made after such time on such due date to be deemed to have
been made on the next succeeding Banking Day) to the Agent's account number
323504132 maintained at the Principal Office (or to such other account as the
Agent may specify from time to time by notice to all parties) for the account
of the applicable Lending Office of each Bank. The Agent, or any Bank for
whose account any such payment is to be made, may (but shall not be obligated
to) debit the amount of any such payment which is not made by such time to
any ordinary deposit account of the Borrower with the Agent or such Bank, as
the case may be, and any Bank so doing shall promptly notify the Agent.
Subject to Section 9.16, the Borrower shall, at the
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time of making each payment under this Agreement or the Notes, specify to the
Agent the principal or other amount payable by the Borrower under this
Agreement or the Loans to which such payment is to be applied (and in the
event that it fails to so specify, or if a Default or Event of Default has
occurred and is continuing, the Agent may apply such payment as it may elect
in its sole discretion). If the due date of any payment under this Agreement
or the Notes would otherwise fall on a day which is not a Banking Day, such
date shall be extended to the next succeeding Banking Day and interest shall
be payable for any principal so extended for the period of such extension.
Each payment received by the Agent hereunder or under any Note for the
account of a Bank shall be paid promptly to such Bank, in immediately
available funds, for the account of such Bank's Lending Office.
Section 2.13. SECONDARY SUPPORT.
In lieu of the pledge of additional Cash Collateral or Primary
Collateral to meet the Collateral Maintenance Tests, the Borrower may arrange
with one or more of the Third Party Pledgors to provide additional support or
collateral for the Loans as follows:
(a) A Third Party Pledgor may execute and deliver to the Agent for
the ratable benefit of the Banks a limited recourse guaranty substantially in
the form of Exhibit L-1 hereto (or in such other form as may be acceptable to
the Facility A Banks), with the guaranty being limited to an amount equal or
less than the credit limit established from time to time by all of the
Facility A Banks in their sole discretion for such Third Party Pledgor under
the following provisions of this subsection (a). Prior to any acceptance of
such guaranty by the Agent, the Third Party Pledgor shall have delivered to
each of the Facility A Banks such financial information as each of the
Facility A Banks may request in its sole discretion. The Agent shall
determine after consultation with the Facility A Banks what the highest
aggregate credit limit (the "Credit Limit") would be so that each Facility A
Bank's pro rata share thereof would not exceed such Facility A Bank's
designated credit limit for such Third Party Pledgor. Any acceptance by the
Facility A Banks of a guaranty under this subsection (a) may be conditioned
upon a requirement of updated financial information (in form and content
consistent with the financial information delivered prior to the acceptance
of the guaranty) concerning the Third Party Pledgor on an annual basis and
such adjustment to the Credit Limit for such Third Party Pledgor as may be
requested by the Facility A Banks in their sole discretion upon ten days'
notice, to be exercised in connection with the delivery or nondelivery of
required updated financial information and in addition, on a one time basis
upon 30 days' written notice from the Agent, at such other time as may be
chosen by the Required A Banks in their sole discretion.
(b) A Third Party Pledgor may execute and deliver to the Agent for
the ratable benefit of the Banks a limited recourse guaranty substantially in
the form of Exhibit L-2 hereto (or in such other form as may be acceptable to
the Facility A Banks) without the provision of any financial information
concerning the Third Party Pledgor so long as the Third Party Pledgor (i)
maintains on deposit with the Agent Eligible Deposited Assets
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having a market value as of the date of the execution of the guaranty of at
least 200% of the amount of the guaranty and (ii) provides the Agent with a
statement that the Third Party Pledgor is solvent and is not in default under
any credit agreements with other lenders.
(c) A Third Party Pledgor may make arrangements to pledge such
other collateral with the Agent for the ratable benefit of the Banks on such
terms and conditions and with such Secondary Support Value as the Third Party
Pledgor, the Agent and all of the Facility A Banks in their sole discretion
may determine.
Section 2.14. PROCEEDS UPON FORECLOSURE. The Banks agree that upon
disposition of any Collateral upon foreclosure (or any transfer to the Agent
in lieu thereof and disposition by the Agent thereafter) and any collections
from any Secondary Support, the proceeds of such disposition or collections
shall be applied first to any fees of the Agent and thereafter as follows:
(a) Any proceeds actually received by the Agent from the
disposition of any Facility B Collateral shall be applied and paid (i) first
to the payment of or provision for any expenses of such disposition and
collections of any Facility B Collateral, (ii) second to the Facility B Banks
with respect to amounts due and owing with respect to the Facility B Loans
according to each Facility B Bank's Facility B Pro Rata Share and (iii) third
to the Facility A Banks with respect to amounts due and owing with respect to
the Facility A Loans according to each Facility A Bank's Facility A Pro Rata
Share; and
(b) Any proceeds actually received by the Agent from the
disposition of any Facility A Collateral or from collections on Secondary
Support shall be applied and paid (i) first to the payment or or provision
for any expenses of such disposition and collection of any Facility A
Collateral or Secondary Support, (ii) second to the Facility A Banks with
respect to amounts due and owing with respect to the Facility A Loans
according to each Facility A Bank's Facility A Pro Rata Share and (iii) third
to the Facility B Banks with respect to amounts due and owing with respect to
the Facility B Loans according to each Facility B Bank's Facility B Pro Rata
Share.
Any surplus remaining after the payment of Obligations shall be paid over to
the Borrower or to whosoever may be lawfully entitled to receive such
surplus. In the event of the disposal of fungible Collateral of a class of
asset which is held as part of both the Facility A Collateral and the
Facility B Collateral, the proceeds of such fungible Collateral shall be
allocated to the Facility A Loans and Facility B Loans in the same proportion
as the amount of such fungible Collateral held as Facility A Collateral bears
to the amount of such fungible Collateral held as Facility B Collateral.
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ARTICLE 3.
YIELD PROTECTION; ILLEGALITY; ETC.
Section 3.01. ADDITIONAL COSTS.
(a) The Borrower shall pay directly to each Bank from time to time
on demand such amounts as such Bank may determine to be necessary to
compensate it for any costs which such Bank determines are attributable to
its making or maintaining any Fixed Rate Loans under this Agreement or its
Note or its obligation to make any such Loans hereunder, or any reduction in
any amount receivable by such Bank hereunder in respect of any such Loans or
such obligation (such increases in costs and reductions in amounts receivable
being herein called "Additional Costs"), resulting from any Regulatory Change
which: (i) changes the basis of taxation of any amounts payable to such Bank
under this Agreement or its Note in respect of any of such Loans (other than
taxes imposed on the overall net income of such Bank or of its Lending Office
for any of such Loans by the jurisdiction in which such Bank has its
principal office or such Lending Office); or (ii) imposes or modifies any
reserve, special deposit, deposit insurance or assessment, minimum capital,
capital ratio or similar requirements (other than those already reflected in
the Reserve Requirement) relating to any extensions of credit or other assets
of, or any deposits with or other liabilities of, such Bank (including any of
such Loans or any deposits referred to in the definition of "Fixed Base Rate"
in Section 1.01); or (iii) imposes any other condition affecting this
Agreement or its Note (or any of such extensions of credit or liabilities).
Each Bank will notify the Borrower of any event occurring after the date of
this Agreement which will entitle such Bank to compensation pursuant to this
Section 3.01(a) as promptly as practicable after it obtains knowledge thereof
and determines to request such compensation. If any Bank requests
compensation from the Borrower under this Section 3.01(a), or under Section
3.01(c), the Borrower may, by notice to such Bank (with a copy to the Agent),
require that such Bank's Loans of the type with respect to which such
compensation is requested be converted in accordance with Section 3.04.
(b) Without limiting the effect of the foregoing provisions of
this Section 3.01, in the event that, by reason of any Regulatory Change, any
Bank either (i) incurs Additional Costs based on or measured by the excess
above a specified level of the amount of a category of deposits or other
liabilities of such Bank which includes deposits by reference to which the
interest rate on Fixed Rate Loans is determined as provided in this Agreement
or a category of extensions of credit or other assets of such Bank which
includes Fixed Rate Loans or (ii) becomes subject to restrictions on the
amount of such a category of liabilities or assets which it may hold, then,
if such Bank so elects by notice to the Borrower (with a copy to the Agent),
the obligation of such Bank to make or renew, and to convert Loans of any
other type into, Loans of such type hereunder shall be suspended until the
date such Regulatory Change ceases to be in effect (and all Loans of such
type held by such Bank then outstanding shall be converted in accordance with
Section 3.04).
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(c) Without limiting the effect of the foregoing provisions of
this Section 3.01 (but without duplication), the Borrower shall pay directly
to each Bank from time to time on request such amounts as such Bank may
determine to be necessary to compensate such Bank for any costs which it
determines are attributable to the maintenance by it or any of its
affiliates, pursuant to any law or regulation of any jurisdiction or any
interpretation, directive or request (whether or not having the force of law
and whether in effect on the date of this Agreement or thereafter) of any
court or governmental or monetary authority regarding capital adequacy, of
capital in respect of its Loans hereunder or its obligation to make Loans
hereunder (such compensation to include, without limitation, an amount equal
to any reduction in return on assets or equity of such Bank to a level below
that which it could have achieved but for such law, regulation,
interpretation, directive or request). Each Bank will notify the Borrower if
it is entitled to compensation pursuant to this Section 3.01(c) as promptly
as practicable after it determines to request such compensation.
(d) Determinations and allocations by a Bank for purposes of this
Section 3.01 of the effect of any Regulatory Change pursuant to subsections
(a) or (b), or of the effect of capital maintained pursuant to subsection
(c), on its costs of making or maintaining Loans or its obligation to make
Loans, or on amounts receivable by, or the rate of return to, it in respect
of Loans or such obligation, and of the additional amounts required to
compensate such Bank under this Section 3.01, shall be conclusive, provided
that such determinations and allocations are made on a reasonable basis, but
in no event shall the Borrower be obligated to reimburse any costs incurred
for periods earlier than six months prior to the delivery of such Bank's
written request for such costs.
Section 3.02. LIMITATION ON TYPES OF LOANS. Anything herein to the
contrary notwithstanding, if:
(a) the Agent determines (which determination shall be conclusive)
that quotations of interest rates for the relevant deposits referred to in
the definition of "Fixed Base Rate" in Section 1.01 are not being provided in
the relevant amounts or for the relevant maturities for purposes of
determining the rate of interest for Fixed Rate Loans as provided in this
Agreement; or
(b) the Required Banks determine (which determination shall be
conclusive) and notify the Agent that the rate of interest referred to in the
definition of "Fixed Base Rate" in Section 1.01 does not adequately cover the
cost to the Banks of making or maintaining such Loans,
then the Agent shall give the Borrower and each Bank prompt notice thereof,
and so long as such condition remains in effect, the Banks shall be under no
obligation to make or renew Loans of such type or to convert Loans of any
other type into Loans of such type and the Borrower shall, on the last day(s)
of the then current Interest Period(s) for the outstanding Loans of the
affected type, either repay such Loans or convert such Loans into another
type of Loans in accordance with Section 2.06.
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Section 3.03. ILLEGALITY. Notwithstanding any other provision in this
Agreement, in the event that it becomes unlawful for any Bank or its Lending
Office to (a) honor its obligation to make or renew Fixed Rate Loans
hereunder or convert Loans of any type into Loans of such type, or (b)
maintain Fixed Rate Loans hereunder, then such Bank shall promptly notify the
Borrower thereof (with a copy to the Agent) and such Bank's obligation to
make or renew Fixed Rate Loans and to convert other types of Loans into Loans
of such type hereunder shall be suspended until such time as such Bank may
again make, renew, or convert and maintain such affected Loans and such
Bank's outstanding Fixed Rate Loans, as the case may be, shall be converted
in accordance with Section 3.04.
Section 3.04. CERTAIN CONVERSIONS PURSUANT TO SECTIONS 3.01 AND 3.03.
If the Loans of any Bank of a particular type (Loans of such type being
herein called "Affected Loans" and such type being herein called the
"Affected Type") are to be converted pursuant to Section 3.01 or 3.03, such
Bank's Affected Loans shall be automatically converted into Variable Rate
Loans on the last day(s) of the then current Interest Period(s) for the
Affected Loans (or, in the case of a conversion required by Section 3.01(b)
or 3.03, on such earlier date as such Bank may specify to the Borrower with a
copy to the Agent) and, unless and until such Bank gives notice as provided
below that the circumstances specified in Section 3.01 or 3.03 which gave
rise to such conversion no longer exist:
(a) to the extent that such Bank's Affected Loans have been so
converted, all payments and prepayments of principal which would otherwise be
applied to such Bank's Affected Loans shall be applied instead to its
Variable Rate Loans; and
(b) all Loans which would otherwise be made or renewed by such
Bank as Loans of the Affected Type shall be made instead as Variable Rate
Loans and all Loans of such Bank which would otherwise be converted into
Loans of the Affected Type shall be converted instead into (or shall remain
as) Variable Rate Loans.
If such Bank gives notice to the Borrower (with a copy to the Agent)
that the circumstances specified in Section 3.01 or 3.03 which gave rise to
the conversion of such Bank's Affected Loans pursuant to this Section 3.04 no
longer exist (which such Bank agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type are outstanding,
such Bank's Variable Rate Loans shall be automatically converted, on the
first day(s) of the next succeeding Interest Period(s) for such outstanding
Loans of the Affected Type to the extent necessary so that, after giving
effect thereto, all Loans held by the Banks holding Loans of the Affected
Type and by such Bank are held pro rata (as to principal amounts, types and
Interest Periods) in accordance with their respective outstanding Loans.
Section 3.05. CERTAIN COMPENSATION. The Borrower shall pay to the Agent
for the account of each Bank, upon the request of such Bank through the Agent,
such amount or amounts as shall be sufficient (in the reasonable opinion of such
Bank) to compensate it for any loss, cost or expense which such Bank determines
is attributable to:
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(a) any payment, prepayment, conversion or renewal of a Fixed Rate
Loan made by such Bank on a date other than the last day of an Interest
Period for such Loan (whether by reason of mandatory prepayment, acceleration
or otherwise); or
(b) any failure by the Borrower to borrow, convert into or renew a
Fixed Rate Loan to be made, converted into or renewed by such Bank on the
date specified therefor in the relevant notice under Section 2.04, 2.06 or
2.07, as the case may be.
Without limiting the foregoing, such compensation shall include an
amount equal to the excess, if any, of: (i) the amount of interest which
otherwise would have accrued on the principal amount so paid, prepaid,
converted or renewed or not borrowed, converted or renewed for the period
from and including the date of such payment, prepayment or conversion or
failure to borrow, convert or renew to but excluding the last day of the then
current Interest Period for such Loan (or, in the case of a failure to
borrow, convert or renew, to but excluding the last day of the Interest
Period for such Loan which would have commenced on the date specified
therefor in the relevant notice) at the applicable rate of interest (less the
Margin) for such Loan provided for herein; over (ii) the amount of interest
(as reasonably determined by such Bank) such Bank would have bid in the
London interbank market for Dollar deposits for amounts comparable to such
principal amount and maturities comparable to such period. A determination
of any Bank as to the amounts payable pursuant to this Section 3.05 shall be
conclusive absent manifest error, but in no event shall the Borrower be
obligated to reimburse any costs incurred for periods earlier than six months
prior to the delivery of such Bank's written request for such costs.
Section 3.06. SUBSTITUTION OF BANKS. Upon the receipt by the Borrower
from any Bank (an "Affected Bank") of a request for compensation under
Sections 3.01 or 3.05 or a notice under Section 3.03, the Borrower may: (i)
designate a replacement bank or financial institution (a "Replacement Bank")
to acquire and assume all or part of such Affected Bank's Loans and
Commitments; or (ii) request one or more of the other Banks to acquire and
assume all or part of such Affected Bank's Loans and Commitments. Any such
designation of a Replacement Bank under clause (i) shall be subject to the
prior written consent of the Agent, which consent shall not be unreasonably
withheld.
ARTICLE 4.
CONDITIONS PRECEDENT; RESTATEMENT
Section 4.01. DOCUMENTARY CONDITIONS PRECEDENT. The obligations of the
Remaining Banks to make New Loans hereunder and to purchase Old Loans from
the Departing Banks under Section 4.04, the obligations of the Departing
Banks to sell and assign their Old Loans to the Remaining Banks under Section
4.04, and the effectiveness of this Agreement, are subject to the condition
precedent that the Agent shall have received on or before the Effective Date
(which shall not be later than August 15, 1997) each of the following, in
form and substance satisfactory to the Agent and its counsel:
(a) the Notes duly executed by the Borrower;
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(b) the Authorization Letter duly executed by the Borrower;
(c) the Pledge Agreements duly executed by each Pledgor together
with: (i) transfer of the Pledged Collateral by means of (A) in the case of
Eligible Nextel Collateral, delivery of stock certificates with duly indorsed
stock powers and (B) in the case of Primary Collateral, appropriate
instructions to the relevant financial intermediary to transfer such Pledged
Collateral into an account at Depositary Trust Company in the name of the
Agent's nominee; (ii) custody agreements on the Agent's standard form duly
executed by the Borrower and the Third Party Pledgors; (iii) Forms U-1 duly
executed by the Borrower and the Third Party Pledgors; and (iv) such other
documents with respect thereto as the Agent shall reasonably request;
(d) a certificate of the Manager of the Borrower and the Secretary
or other similar officer of Eagle River, dated the Effective Date, attesting
to all action taken by the Borrower and Eagle River, including action by
their respective Managers authorizing the execution, delivery and performance
of the Facility Documents to which it is a party and each other document to
be delivered pursuant to this Agreement;
(e) a certificate of the Manager of the Borrower and the Secretary
or other similar officer of Eagle River, dated the Effective Date, certifying
the names and true signatures of the officers of the Borrower authorized to
sign the Facility Documents to which it is a party and the other documents to
be delivered by the Borrower under this Agreement;
(f) a certificate of the Manager of the Borrower, dated the
Effective Date, stating that the representations and warranties in Article 5
are true and correct on such date as though made on and as of such date and
that no event has occurred and is continuing which constitutes a Default or
Event of Default;
(g) a favorable opinion of Morrison & Foerster, counsel for the
Borrower, dated the Effective Date, in substantially the form of Exhibit D
and as to such other matters as the Agent or any Bank may reasonably request;
(h) a favorable opinion of Davis Wright Tremaine, counsel for the
Borrower, dated the Effective Date, in substantially the form of Exhibit E
and as to such other matters as the Agent or any Bank may reasonably request;
(i) a favorable opinion of C. James Judson, counsel for the Borrower,
dated the Effective Date, in substantially the form of Exhibit F and as to such
other matters as the Agent or any Bank may reasonably request;
(j) a favorable opinion of Perkins Coie, counsel for the Craig O.
McCaw, dated the Effective Date, in substantially the form of Exhibit G and as
to such other matters as the Agent or any Bank may reasonably request;
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(k) the Nextel Confirmation and the Nextel Collateral Agreement, each
dated the Effective Date and duly executed by the parties thereto;
(l) copies of the Purchase Agreements, the Borrower's Amended and
Restated Certificate of Formation and the LLC Agreement, each as amended to
and including the Effective Date, certified as true, correct and complete
copies by a duly authorized officer of the Borrower;
(m) a favorable opinion of Brobeck, Phleger & Harrison, counsel for
the Agent, dated the Effective Date, in substantially the form of Exhibit H; and
(n) such dividend orders and notices of conversion with respect to
the Nextel Collateral as the Agent may request consistent with the Pledge
Agreements.
Section 4.02. ADDITIONAL CONDITIONS PRECEDENT. The obligations of the
Banks to make any Loans on a Drawdown Date shall be subject to the further
conditions precedent that on the date of such Loans:
(a) the following statements shall be true:
(i) the representations and warranties contained in Article 5
of this Agreement and in Article 2 of each Pledge Agreement are true and
correct on and as of the date of such Loans as though made on and as of
such date; and
(ii) no Default or Event of Default has occurred and is
continuing, or would result from such Loans;
(b) in the case of the Effective Date, the purchase of shares of
Nextel Common Stock upon exercise of the First Nextel Option shall have occurred
simultaneously with the making of the New Loans on the Effective Date, and the
proceeds of such New Loans shall have been used for the purpose of funding such
exercise;
(c) in the case of the Motorola Drawdown Date, the purchase of shares
of Nextel Common Stock upon exercise of the First Motorola Option shall have
occurred simultaneously with the making of the New Loans on the Motorola
Drawdown Date, and the proceeds of such New Loans shall have been used for the
purpose of funding such exercise; and
(d) the Agent shall have received such approvals, opinions or
documents as the Agent or any Bank may reasonably request.
Section 4.03. DEEMED REPRESENTATIONS. The notice of the borrowing
hereunder and acceptance by the Borrower of the proceeds of such borrowing shall
constitute a representation and warranty that the statements contained in
Section 4.02(a) are true and correct both on the date of such notice and, unless
the Borrower otherwise notifies the Agent prior to such borrowing, as of the
date of such borrowing.
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Section 4.04. REALLOCATION OF LOANS.
(a) With effect on the Effective Date, except as otherwise
provided herein, the Commitment of each Bank shall be as set forth on
Schedule 1 hereto.
(b) On the Effective Date, each Departing Bank shall be deemed to
have sold and assigned, and shall sell and assign, without recourse, to each
Remaining Bank, and each Remaining Bank shall be deemed to have purchased,
and shall purchase, without recourse, an amount of the Old Loans of such
Departing Bank equal to the Old Loans of such Departing Bank multiplied by
the Effective Date Commitment Percentage of such Remaining Bank, such that
the total outstanding Loans of such Remaining Bank after giving effect to
such assignment and the making of New Loans by the Remaining Banks shall
equal 94.73237% of such Remaining Bank's Commitment. Each Departing Bank,
for itself and not for any other Departing Bank, represents and warrants to
each Remaining Bank purchasing any portion of an Old Loan from such Departing
Bank that such Departing Bank (i) is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and
clear of any Lien or other adverse claim; (ii) is duly organized and existing
and it has the full power and authority to take, and has taken, all action
necessary to execute and deliver this Agreement and any other documents
required or permitted to be executed or delivered by it in connection with
this Agreement and to fulfill its obligations hereunder; (iii) no notices to,
or consents, authorizations or approvals of, any Person are required for its
due execution, delivery and performance of this Agreement, and no further
action by, or notice to, or filing with, any Person is required of it for
such execution, delivery or performance; and (iv) this Agreement has been
duly executed and delivered by it and constitutes the legal, valid and
binding obligation of such Departing Bank, enforceable against such Departing
Bank in accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of general
application relating to or affecting creditors' rights and to general
equitable principles.
(c) By their execution of this Agreement, each of the Banks and
the Agent consents to the transactions described in the preceding subsections
(a) and (b), and the Agent waives the administrative processing fee, to the
extent that it is payable with respect to such transactions pursuant to
Section 10.05(a).
(d) Payments made by the Remaining Banks pursuant to this Section
4.04 shall be made to the Agent for the account of each Departing Bank as
provided in Section 2.04(b).
(e) The Borrower will pay on the Effective Date all accrued and
unpaid interest on the Old Notes, all amounts payable by the Borrower pursuant
to Section 3.05 of the Original Credit Agreement, and any other accrued and
unpaid fees under the Original Credit Agreement.
Section 4.05. RESTATEMENT. Upon the occurrence of the Effective Date
(i) the Original Credit Agreement shall be deemed to be restated in the form
hereof (except such
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provisions thereof which by their terms survive any termination thereof
(without duplicating the obligations of the Borrower under this Agreement))
and (ii) each of the Banks shall return to the Agent for forwarding to the
Borrower as promptly as practicable the Old Notes marked to show that the Old
Notes have been superseded in the case of the Remaining Banks and paid in the
case of the Departing Banks.
Section 4.06. DELETION OF BANKS. Upon the Effective Date, the
Departing Banks shall cease to be "Banks" under and for all purposes of the
Original Credit Agreement as amended and restated by this Agreement and shall
have no rights or obligations thereunder, except for (i) rights to receive
payment of indemnities, reimbursements and other similar amounts from the
Borrower (including, without limitation, rights under Section 10.03 of the
Original Credit Agreement), and (ii) obligations to indemnify, reimburse or
make payment to the Agent, any Bank or the Borrower with respect to actions,
failures to act, conditions, circumstances or events on or prior to the
Effective Date.
Section 4.07. NON-RECOURSE TO DEPARTING BANKS; NO WARRANTY OR
REPRESENTATIONS; INDEPENDENT CREDIT ANALYSIS. The payments to any of the
Departing Banks for purchases of Old Loans under Section 4.04 shall be
without recourse to the Agent, any of the Departing Banks, any of their
respective affiliates or any of their respective officers, directors, agents
or employees. Each of the Remaining Banks acknowledges that neither the Agent
nor any of the Departing Banks shall have any responsibility or liability,
express or implied, joint or several, with respect to the execution (other
than its own), legality, validity, enforceability, genuineness, sufficiency
or value of the New Notes of the Remaining Banks, the Original Credit
Agreement, this Agreement or any of the other Facility Documents; the
execution (other than its own), legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any
security interest in, any Collateral; or the adequacy, accuracy or
completeness of any information provided by the Borrower, or any of its
Affiliates or Subsidiaries, or the Third Party Pledgors, under or in
connection with the Original Credit Agreement, this Agreement or any of the
other Facility Documents or the transactions herein or therein contemplated
(whether or not such information has been or is hereafter distributed to such
party by the Agent or any of the Departing Banks). Neither the Agent nor,
except as set forth in Section 4.04(b), any of the Departing Banks makes any
warranty or representation or assumes any responsibility with respect to any
condition or fact or the enforceability of the Original Credit Agreement,
this Agreement (including the New Notes delivered hereunder) or any of the
other Facility Documents, or any provision of the Original Credit Agreement,
this Agreement or any of the other Facility Documents, or the performance or
observance by the Borrower or any other Person of any of their respective
obligations under the Original Credit Agreement, this Agreement or any of the
other Facility Documents, or with respect to the financial condition,
business, operations or credit standing of the Borrower, or any of its
Affiliates or Subsidiaries or any Third Party Pledgor, or with respect to the
condition or responsibility (financial or otherwise) of any insurer or the
adequacy of insurance coverage, or the accuracy or completeness of any
information, exhibit, certificate or report furnished hereunder or any
statements, warranties or representations (whether written or oral) made in
or in connection with the Original Credit Agreement, this Agreement or any of
the other Facility Documents. Each of the Remaining Banks hereby confirms to
the Agent and each of the Departing
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Banks that such Remaining Bank has received such documents and information as
it has deemed appropriate to make its own credit analysis and decision to
execute and deliver this Agreement and to remain a Bank hereunder and that
such Remaining Bank has been solely responsible for making its own
independent appraisal of and investigations into the financial conditions,
creditworthiness, conditions, affairs, status and nature of the Borrower, its
Affiliates and Subsidiaries, and the Third Party Pledgors. Accordingly, each
of the Remaining Banks hereby also confirms to the Agent and each of the
Departing Banks that such Remaining Bank has not relied on the Agent or any
of the Departing Banks to check or inquire on such Remaining Bank's behalf
into the adequacy, accuracy or completeness of any information provided by
the Borrower, its Affiliates and Subsidiaries or the Third Party Pledgors
under or in connection with the Original Credit Agreement, this Agreement or
any of the other Facility Documents or the transactions herein or therein
contemplated (whether or not such information has been or is hereafter
distributed to such party by the Agent or any of the Departing Banks).
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants as of the Effective Date that:
Section 5.01. ORGANIZATION, GOOD STANDING AND DUE QUALIFICATION. Each
of the Borrower and Eagle River is a limited liability company duly formed,
validly existing and in good standing under the laws of the State of
Washington, has the power and authority to own its assets and to transact the
business in which it is now engaged or proposed to be engaged, and is duly
qualified as a foreign company and in good standing under the laws of each
other jurisdiction in which such qualification is required. The Borrower has
no Subsidiaries. The Borrower has delivered to each of the Banks true,
correct and complete copies of its Amended and Restated Certificate of
Formation and the LLC Agreement and the Certificate of Formation of Eagle
River.
Section 5.02. POWER AND AUTHORITY; NO CONFLICTS. The execution, delivery
and performance by the Borrower of the Facility Documents to which it is a party
have been duly authorized by all necessary member action and do not and will
not: (a) contravene its Amended and Restated Certificate of Formation or the LLC
Agreement; (b) violate any provision of, or require any filing, registration,
consent or approval under, any law, rule, regulation (including, without
limitation, Regulation U), order, writ, judgment, injunction, decree,
determination or award presently in effect having applicability to the Borrower
or any other member of the Borrower Group; (c) result in a breach of or
constitute a default or require any consent under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which the
Borrower is a party or by which it or its properties may be bound or affected;
(d) result in, or require, the creation or imposition of any Lien (other than as
created under the Pledge Agreements), upon or with respect to any of the
properties now owned or hereafter acquired by the Borrower; or (e) cause the
Borrower or any other member of the Borrower Group to be in default under any
such law,
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rule, regulation, order, writ, judgment, injunction, decree, determination or
award or any such indenture, agreement, lease or instrument.
Section 5.03. LEGALLY ENFORCEABLE AGREEMENTS. Each Facility Document
to which the Borrower or any Pledgor is a party is, or when delivered under
this Agreement will be, a legal, valid and binding obligation of the Borrower
or such Pledgor, as the case may be, enforceable against the Borrower or such
Pledgor, as the case may be, in accordance with its terms, except to the
extent that such enforcement may be limited by applicable bankruptcy,
insolvency and other similar laws affecting creditors' rights generally.
Section 5.04. LITIGATION. Except as set forth on Schedule 5.04, there
are no actions, suits or proceedings pending or, to the knowledge of the
Borrower, threatened, against or affecting the Borrower or any Pledgor before
any court, governmental agency or arbitrator, which may, in any one case or
in the aggregate, materially adversely affect the financial condition,
operations, properties or business of the Borrower or any Pledgor or of the
ability of the Borrower or any Pledgor to perform its obligations under the
Facility Documents to which it is a party.
Section 5.05. FINANCIAL STATEMENTS. (i) The balance sheet of the
Borrower as of the end of each of the fiscal years ending December 31, 1995
and December 31, 1996 and a consolidated income statement and statements of
cash flows and changes in members' equity of the Borrower for each of such
fiscal years and (ii) the pro forma balance sheet of the Borrower showing the
results of the transactions contemplated to be effected on the Effective
Date, copies of all of which have been furnished to each of the Banks, are
complete and correct and fairly present the financial condition of the
Borrower as at such dates. There are no liabilities of the Borrower, fixed
or contingent, which are material but are not reflected in such balance sheet
or in the notes thereto. No information, exhibit or report furnished by the
Borrower to the Banks in connection with the negotiation of this Agreement
concerning the Borrower Group and terms of and restrictions upon the
Collateral contained any material misstatement of fact or omitted to state a
material fact or any fact necessary to make the statements contained therein
not materially misleading; but no representation or warranty is made with
respect to the condition (financial or otherwise), business, operations or
prospects of any Person other than members of the Borrower Group.
Section 5.06. OWNERSHIP AND LIENS. The Borrower has title to, or valid
leasehold interests in, all of its properties and assets, real and personal,
including the properties and assets, and leasehold interests reflected in the
financial statements referred to in Section 5.05 (other than any properties
or assets disposed of in the ordinary course of business), and none of the
properties and assets owned by the Borrower and none of its leasehold
interests is subject to any Lien, except as disclosed in such financial
statements or as may be permitted hereunder and except for the Liens created
by the Borrower Pledge Agreement.
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Section 5.07. TAXES. The Borrower has filed all tax returns (federal,
state and local) required to be filed and has paid all taxes, assessments and
governmental charges and levies thereon to be due, including interest and
penalties.
Section 5.08. CREDIT AND OTHER ARRANGEMENTS. Schedule 5.08 is a
complete and correct list of all credit agreements, indentures, purchase
agreements, guaranties, capital leases and other investments, agreements and
arrangements presently in effect providing for or relating to extensions of
credit (including agreements and arrangements for the issuance of letters of
credit or for acceptance financing) or purchase of securities in respect of
which the Borrower is in any manner directly or contingently obligated; and
the maximum principal or face amounts of the credit in question, outstanding
and which can be outstanding, are correctly stated, and all Liens of any
nature given or agreed to be given as security therefor are correctly
described or indicated in such Schedule.
Section 5.09. OPERATION OF BUSINESS. The Borrower possesses all
licenses, permits, franchises, patents, copyrights, trademarks and trade
names, or rights thereto, necessary to conduct its business substantially as
now conducted and as presently proposed to be conducted, and the Borrower is
not in violation of any valid rights of others with respect to any of the
foregoing.
Section 5.10. NO DEFAULT ON OUTSTANDING JUDGMENTS OR ORDERS. Each of
the Borrower and the Pledgors has satisfied all judgments and none of the
Borrower and the Pledgors is in default with respect to any judgment, writ,
injunction, decree, rule or regulation of any court, arbitrator or federal,
state, municipal or other governmental authority, commission, board, bureau,
agency or instrumentality, domestic or foreign, except in the case of the
Third Party Pledgors matters which would not impair the ability of the Third
Party Pledgors to perform their obligations under the Pledge Agreements and
which do not relate to the transactions contemplated by this Agreement and
the Purchase Agreements.
Section 5.11. NO DEFAULTS ON OTHER AGREEMENTS. The Borrower is not a
party to any indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any charter or corporate restriction
which could have a material adverse effect on the business, properties,
assets, operations or conditions, financial or otherwise, of the Borrower, or
the ability of the Borrower to carry out its obligations under the Facility
Documents to which it is a party. The Borrower is not in default in any
respect in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any agreement or instrument
material to its business to which it is a party.
Section 5.12. GOVERNMENTAL REGULATION. Neither the Borrower nor any of
the Pledgors is subject to regulation under the Public Utility Holding
Company Act of 1935, the Investment Company Act of 1940, the Interstate
Commerce Act, the Federal Power Act or any statute or regulation limiting its
ability to incur indebtedness for money borrowed as contemplated hereby.
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Section 5.13. NO FORFEITURE. Neither the Borrower nor any other member
of the Borrower Group is engaged in or proposes to be engaged in the conduct
of any business or activity which could result in a Forfeiture Proceeding and
no Forfeiture Proceeding against any of them is pending or threatened.
Section 5.14. PURCHASE AGREEMENTS; NEXTEL CERTIFICATE OF INCORPORATION.
The Borrower has delivered to each of the Banks true, correct and complete
copies of the Purchase Agreements and the Nextel Certificate of
Incorporation. The Purchase Agreements are in full force and effect, and the
other parties thereto have no defense to the enforcement thereof.
ARTICLE 6.
AFFIRMATIVE COVENANTS
So long as any of the Notes shall remain unpaid, the Borrower shall:
Section 6.01. MAINTENANCE OF EXISTENCE. Preserve and maintain its
existence and good standing in the jurisdiction of its formation, and qualify
and remain qualified as a foreign entity in each jurisdiction in which such
qualification is required.
Section 6.02. CONDUCT OF BUSINESS. Continue to engage in an efficient
and economical manner in a business of the same general type as conducted by
it on the date of this Agreement.
Section 6.03. MAINTENANCE OF PROPERTIES. Maintain, keep and preserve
all of its properties (tangible and intangible) necessary or useful in the
proper conduct of its business in good working order and condition, ordinary
wear and tear excepted.
Section 6.04. MAINTENANCE OF RECORDS. Keep, and cause each of its
Subsidiaries to keep, adequate records and books of account, in which
complete entries will be made in accordance with GAAP, reflecting all
financial transactions of the Borrower and its Subsidiaries.
Section 6.05. MAINTENANCE OF INSURANCE. Maintain insurance with
financially sound and reputable insurance companies or associations in such
amounts and covering such risks as are usually carried by companies engaged
in the same or a similar business and similarly situated, which insurance may
provide for reasonable deductibility from coverage thereof.
Section 6.06. COMPLIANCE WITH LAWS. Comply in all respects with all
applicable laws, rules, regulations and orders, such compliance to include,
without limitation, paying before the same become delinquent all taxes,
assessments and governmental charges imposed upon it or upon its property.
Section 6.07. RIGHT OF INSPECTION. At any reasonable time and from
time to time, upon advance notice, permit the Agent or any Bank or any agent
or representative thereof,
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to examine and make copies and abstracts from the records and books of
account of, and visit the properties of, the Borrower and any of its
Subsidiaries, and to discuss the affairs, finances and accounts of the
Borrower and any such Subsidiary with any of their respective officers and
directors and the Borrower's independent accountants.
Section 6.08. REPORTING REQUIREMENTS. Furnish directly to each of the
Banks:
(a) as soon as available and in any event within 90 days after the
end of each fiscal year of the Borrower, (i) a consolidated balance sheet of
the Borrower and its consolidated Subsidiaries as of the end of such fiscal
year and a consolidated income statement and statements of cash flows and
changes in members' equity of the Borrower and its consolidated Subsidiaries
for such fiscal year and (ii) an unconsolidated balance sheet of the Borrower
as of the end of such fiscal year and an unconsolidated income statement and
statements of cash flows and changes in members' equity of the Borrower for
such fiscal year, all in reasonable detail and stating in comparative form
the respective consolidated and unconsolidated figures for the corresponding
date and period in the prior fiscal year and all prepared in accordance with
GAAP and certified by the chief financial officer of the Borrower;
(b) promptly upon receipt thereof, copies of any reports submitted
to the Borrower or any of its Subsidiaries by independent certified public
accountants in connection with examination of the financial statements of the
Borrower or any such Subsidiary made by such accountants;
(c) simultaneously with the delivery of the financial statements
referred to above, a certificate of the chief financial officer of the
Borrower certifying that to the best of his knowledge no Default or Event of
Default has occurred and is continuing or, if a Default or Event of Default
has occurred and is continuing, a statement as to the nature thereof and the
action which is proposed to be taken with respect thereto;
(d) simultaneously with the delivery of the annual financial
statements referred to in Section 6.08(a), a certificate signed by the
Borrower and each Third Party Pledgor, in form and substance satisfactory to
the Agent, to the effect that the representations of the Borrower in Sections
2.02 and 2.04 of the Borrower Pledge Agreement and by each Third Party
Pledgor in Sections 2.03 and 2.05 of each of the Third Party Pledge
Agreements continue to be true and complete in all material respects and that
such Collateral continues to be Eligible Collateral;
(e) promptly after the commencement thereof, notice of all
actions, suits, and proceedings before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign,
affecting the Borrower or any of its Subsidiaries which, if determined
adversely to the Borrower or such Subsidiary, could have a material adverse
effect on the financial condition, properties, or operations of the Borrower;
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(f) as soon as possible and in any event within five (5) Banking
Days after the Borrower knows of the occurrence of each Default or Event of
Default, a written notice setting forth the details of such Default or Event
of Default and the action which is proposed to be taken by the Borrower with
respect thereto;
(g) promptly after the commencement thereof or promptly after the
Borrower knows of the commencement or threat thereof (and in any event within
five (5) Banking Days of such knowledge) notice of any Forfeiture Proceeding;
and
(h) such other information respecting the condition or operations,
financial or otherwise, of the Borrower or any of its Subsidiaries as the
Agent or any Bank may from time to time reasonably request.
ARTICLE 7.
NEGATIVE COVENANTS
So long as any of the Notes shall remain unpaid, the Borrower shall not:
Section 7.01. DEBT. Create, incur, assume or suffer to exist any Debt,
except:
(a) Debt of the Borrower under this Agreement or the Notes;
(b) Accounts payable to trade creditors for goods or services; and
(c) Other unsecured Debt of the Borrower in an amount not exceeding
$10,000,000 at any time.
Section 7.02. LIENS. Create, incur, assume or suffer to exist any Lien,
upon or with respect to any of the Collateral, except:
(a) Liens in favor of the Agent on behalf of the Banks securing the
Loans hereunder;
(b) Liens for taxes or assessments or other government charges or
levies if not yet due and payable or if due and payable if they are being
contested in good faith by appropriate proceedings and for which appropriate
reserves are maintained; and
(c) Bankers' Liens and rights to offset with respect to deposit
accounts.
Section 7.03. MERGERS, ETC. Merge or consolidate with, or sell,
assign, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person, or acquire all or substantially
all of the assets or the business of any Person (or enter into any agreement
to do any of the foregoing), or permit any of its Subsidiaries to do so,
except that: (a) any such Subsidiary may merge into or consolidate with or
transfer assets to the
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Borrower or transfer assets to any other Person; and (b) the Borrower may
transfer the Nextel Options to any other Person; and (c) the Borrower or any
Subsidiary may effect any Acceptable Acquisition.
"Acceptable Acquisition" means any Acquisition which has been either (a)
approved by the Board of Directors of the corporation which is the subject of
such Acquisition or (b) recommended by such Board to the shareholders of such
corporation.
"Acquisition" means any transaction pursuant to which the Borrower or
any of its Subsidiaries (a) acquires equity securities (or warrants, options
or other rights to acquire such securities) of any corporation other than the
Borrower or any corporation which is not then a Subsidiary of the Borrower,
pursuant to a solicitation of tenders therefor, or in one or more negotiated
block, market or other transactions not involving a tender offer, or a
combination of any of the foregoing, or (b) makes any corporation a
Subsidiary of the Borrower, or causes any such corporation to be merged into
the Borrower or any of its Subsidiaries, in any case pursuant to a merger,
purchase of assets or any reorganization providing for the delivery or
issuance to the holders of such corporation's then outstanding securities, in
exchange for such securities, of cash or securities of the Borrower or any of
its Subsidiaries, or a combination thereof, or (c) purchases all or
substantially all of the business or assets of any corporation.
Section 7.04. NO ACTIVITIES LEADING TO FORFEITURE. Nor shall the
Borrower suffer any other member of the Borrower Group to, engage in or
propose to be engaged in the conduct of any business or activity which could
reasonably be expected to result in a Forfeiture Proceeding.
Section 7.05. AMENDMENT OF CERTAIN DOCUMENTS. Without the consent of
each Bank, permit any amendment, modification or termination to either of the
Purchase Agreements, the Borrower's Amended and Restated Certificate of
Formation or the LLC Agreement (i) on or prior to the Effective Date except
for those amendments or modifications which the Borrower has delivered to
each of the Banks prior to the execution of this Agreement and (ii) after the
Effective Date if such amendment, modification or termination would impair
the value of the Collateral or the rights of the Banks to foreclose on and
dispose of the Collateral.
Section 7.06. NEXTEL STOCK.
(a) Create, incur, assume or suffer to exist any Lien, upon or with
respect to any Nextel Stock owned by the Borrower (whether or not Collateral
hereunder) except in favor of the Agent under a Pledge Agreement; or
(b) sell or otherwise transfer to any member of the Borrower Group or
to any Subsidiary of the Borrower any Nextel Stock without obtaining from such
transferee (a "Nextel Transferee") and delivering to the Agent an executed
Nextel Transfer Agreement; or
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(c) sell or otherwise transfer any Nextel Stock after the
occurrence and during the continuance of an Event of Default; or
(d) sell or otherwise transfer any Nextel Stock except in
compliance with any applicable FCC Provisions; or
(e) enter into any amendment to the Nextel Purchase Agreement or
enter into any other agreement with Nextel affecting the Nextel Collateral,
or vote in favor of any amendment to Nextel's Certificate of Incorporation,
unless (i) prior thereto the Borrower has notified the Banks of such
amendment or agreement and (ii), if the Required Banks or the Required B
Banks have determined in their sole discretion (and so notified the Borrower
of such determination within 15 days after receipt by the Banks of the
notification under clause (i)) that such amendment or agreement would (x)
likely have an adverse impact upon the value of the Nextel Collateral (or any
Nextel Common Stock issued in conversion thereof) or (y) have an adverse
impact upon the ability of the Agent and the Banks to foreclose upon any
Nextel Collateral (or any Nextel Common Stock issued in conversion thereof),
the Borrower has obtained the prior written consent of the Required Banks and
the Required B Banks to such amendment or agreement (which consent shall not
be unreasonably withheld).
ARTICLE 8.
EVENTS OF DEFAULT
Section 8.01. EVENTS OF DEFAULT. Any of the following events shall be an
"Event of Default":
(a) the Borrower shall: (i) fail to pay the principal of any Note
as and when due and payable; or (ii) fail to pay interest on any Note or any
fee or other amount due hereunder as and when due and payable; provided that,
in either case, if such failure is due solely to an error in the transmission
of the wire transfer of funds with respect to such payment, or to a similar
banking system error, an "Event of Default" shall not be deemed to occur
unless such failure shall continue for three (3) Banking Days;
(b) any representation or warranty made or deemed made by the
Borrower in this Agreement or in any other Facility Document or by any Third
Party Pledgor in any Facility Document to which it is a party or which is
contained in any certificate, document, opinion, financial or other statement
furnished at any time under or in connection with any Facility Document shall
prove to have been incorrect in any material respect on or as of the date
made or deemed made;
(c) the Borrower shall: (i) fail to perform or observe any term,
covenant or agreement contained in Section 2.03, Section 2.05(a) or (b),
Section 6.08(f) or (g), or Article 7 of this Agreement or Sections 1.03,
3.02, 3.04 or 5.01 of the Borrower Pledge Agreement; or (ii) fail to perform
or observe any term, covenant or agreement on its part
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to be performed or observed (other than the obligations specifically referred
to elsewhere in this Section 8.01) in any Facility Document and such failure
shall continue for 30 consecutive days after notice from the Agent; or any
Third Party Pledgor shall (iii) fail to perform or observe any term, covenant
or agreement contained in Sections 1.03, 3.03, 3.05 or 5.01 of the Third
Party Pledge Agreements or (iv) fail to perform or observe any term, covenant
or agreement on its part to be performed or observed (other than the
obligations specifically referred to elsewhere in this Section 8.01) in any
Facility Document and such failure shall continue for 30 consecutive days
after notice from the Agent;
(d) the Borrower or any Third Party Pledgor: (i) shall generally
not, or be unable to, or shall admit in writing its inability to, pay its
debts as such debts become due; or (ii) shall make an assignment for the
benefit of creditors, petition or apply to any tribunal for the appointment
of a custodian, receiver or trustee for it or a substantial part of its
assets; or (iii) shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or
(iv) shall have had any such petition or application filed or any such
proceeding shall have been commenced, against it, in which an adjudication or
appointment is made or order for relief is entered, or which petition,
application or proceeding remains undismissed for a period of 30 days or
more; or shall be the subject of any proceeding under which its assets may be
subject to seizure, forfeiture or divestiture (other than a proceeding in
respect of a Lien permitted under Section 7.02(b)); or (v) by any act or
omission shall indicate its consent to, approval of or acquiescence in any
such petition, application or proceeding or order for relief or the
appointment of a custodian, receiver or trustee for all or any substantial
part of its property; or (vi) shall suffer any such custodianship,
receivership or trusteeship to continue undischarged for a period of 30 days
or more;
(e) one or more judgments, decrees or orders for the payment of
money in excess of $10,000,000 in the aggregate shall be rendered against the
Borrower or any Third Party Pledgor and such judgments, decrees or orders
shall continue unsatisfied and in effect for a period of 30 consecutive days
without being vacated, discharged, satisfied or stayed or bonded pending
appeal;
(f) (A) any Forfeiture Proceeding shall have been commenced or the
Borrower shall have given any Bank written notice of the commencement of any
Forfeiture Proceeding as provided in Section 6.08(g) or (B) any Bank has a
good faith basis to believe that a Forfeiture Proceeding has been threatened
or commenced, in each such case if at the time the Eligible Maintenance
Collateral or Secondary Support unaffected by events described in clauses
(f), (g) and (h) of this Section 8.01 does not meet the Collateral
Maintenance Tests;
(g) any Pledge Agreement or Recourse Guaranty shall at any time after
its execution and delivery and for any reason have ceased to be in full force
and effect or shall have been declared null and void, or the validity or
enforceability thereof shall be contested by the Pledgor or Guarantor thereunder
or such Pledgor or Guarantor shall deny it has any further liability or
obligation thereunder or shall fail to perform its obligations
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thereunder, in each such case if at the time the Eligible Maintenance
Collateral or Secondary Support unaffected by events described in clauses
(f), (g) and (h) of this Section 8.01 does not meet the Collateral
Maintenance Tests;
(h) any Pledge Agreement shall at any time after its execution and
delivery and for any reason cease to create a valid and perfected first
priority security interest in and to the property purported to be subject to
such Agreement, or any of the Pledged Collateral under any Pledge Agreement
shall cease to be Eligible Collateral, in each such case if at the time the
Eligible Maintenance Collateral or Secondary Support unaffected by events
described in clauses (f), (g) and (h) of this Section 8.01 does not meet the
Collateral Maintenance Tests;
(i) the Borrower shall dissolve or otherwise cease to exist; and
(j) any Nextel Transferee shall fail to perform or observe any terms,
covenant or agreement contained in a Nextel Transfer Agreement.
Section 8.02. REMEDIES. If any Event of Default shall occur and be
continuing, the Agent shall, upon request of the Required Banks, (a) by
notice to the Borrower, declare the outstanding principal of the Notes, all
interest thereon and all other amounts payable under this Agreement and the
Notes to be forthwith due and payable, whereupon the Notes, all such interest
and all such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower; provided that, in the case of an
Event of Default referred to in Section 8.01(d) above, the Notes, all
interest thereon and all other amounts payable under this Agreement shall be
immediately due and payable without notice, presentment, demand, protest or
other formalities of any kind, all of which are hereby expressly waived by
the Borrower and (b) exercise such rights and remedies available at law or
equity as instructed by the Required Banks.
Section 8.03. SPECIAL FACILITY A REMEDIES. If any Event of Default
shall occur and be continuing as a result of the Borrower's failure to
perform or observe any term, covenant or agreement under Section 2.05(a) or
(b) with respect to the Facility A Collateral Maintenance Tests or if the
Facility B Banks instruct the Agent to take action under Section 8.04, the
Agent shall, upon request of the Required A Banks, (a) by notice to the
Borrower, declare the outstanding principal of the Facility A Notes, all
interest thereon and all other amounts payable under the Facility A Notes to
be forthwith due and payable, whereupon the Facility A Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower, and (b) exercise such
rights and remedies available at law or equity with respect to the Facility A
Notes and the Facility A Collateral as instructed by the Required A Banks.
Section 8.04. SPECIAL FACILITY B REMEDIES. If any Event of Default shall
occur and be continuing as a result of the Borrower's failure to perform or
observe any term, covenant or agreement under Section 2.05(a) or (b) with
respect to the Facility B Collateral
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Maintenance Tests or if the Facility A Banks instruct the Agent to take
action under Section 8.03, the Agent shall, upon request of the Required B
Banks, (a) by notice to the Borrower, declare the outstanding principal of
the Facility B Notes, all interest thereon and all other amounts payable
under the Facility B Notes to be forthwith due and payable, whereupon the
Facility B Notes, all such interest and all such amounts shall become and be
forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower,
and (b) exercise such rights and remedies available at law or equity with
respect to the Facility B Notes and the Facility B Collateral as instructed
by the Required B Banks.
ARTICLE 9.
THE AGENT; RELATIONS AMONG BANKS AND BORROWER
Section 9.01. APPOINTMENT, POWERS AND IMMUNITIES OF AGENT. Each Bank
hereby irrevocably (but subject to removal by the Required Banks pursuant to
Section 9.09) appoints and authorizes the Agent to act as its agent hereunder
and under any other Facility Document with such powers as are specifically
delegated to the Agent by the terms of this Agreement and any other Facility
Document, together with such other powers as are reasonably incidental
thereto. The Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and any other Facility Document, and
shall not by reason of this Agreement be a trustee for any Bank. Without
limiting the generality of the foregoing, (a) the Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that the Agent
is required to exercise in writing by the Required Banks, the Required A
Banks or the Required B Banks (or such other number or percentage of the
Banks as shall be necessary under the circumstances as provided in Section
10.01), and (c) except as expressly set forth herein, the Agent shall not
have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its Affiliates
or any Third Party Pledgor that is communicated to or obtained by the bank
serving as Agent or any of its Affiliates in any capacity. The Agent shall
not be responsible to the Banks for any recitals, statements, representations
or warranties made by the Borrower or any officer or official of the Borrower
or any other Person contained in this Agreement or any other Facility
Document, or in any certificate or other document or instrument referred to
or provided for in, or received by any of them under, this Agreement or any
other Facility Document, or for the value, legality, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Facility Document or any other document or instrument referred to or provided
for herein or therein, for the perfection or priority of any collateral
security for the Loans or for any failure by the Borrower or any other Person
to perform any of its obligations hereunder or thereunder. The Agent may
employ agents and attorneys-in-fact and shall not be responsible, except as
to money or securities received by it or its authorized agents, for the
negligence or misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care. Neither the Agent nor any of its directors,
officers, employees or
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agents shall be liable or responsible for any action taken or omitted to be
taken by it or them hereunder or under any other Facility Document or in
connection herewith or therewith except for its or their own gross negligence
or willful misconduct. The Borrower shall pay any fee agreed to by the
Borrower and the Agent with respect to the Agent's services hereunder. Beyond
the exercise of reasonable care to assure the safe custody of Collateral in
the Agent's possession and the accounting for monies actually received by the
Agent hereunder, the Agent shall have no duty or liability to exercise or
preserve any rights, privileges or powers pertaining to the Collateral.
Section 9.02. RELIANCE BY AGENT. The Agent shall be entitled to rely
upon any certification, notice or other communication (including any thereof
by telephone, telex, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper Person
or Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Agent. The Agent may deem and
treat each Bank as the holder of the Loan made by it for all purposes hereof
unless and until a notice of the assignment or transfer thereof satisfactory
to the Agent signed by such Bank shall have been furnished to the Agent but
the Agent shall not be required to deal with any Person who has acquired a
participation in any Loan from a Bank. As to any matters not expressly
provided for by this Agreement or any other Facility Document, the Agent
shall in all cases be fully protected in acting, or in refraining from
acting, hereunder in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks and any action taken or
failure to act pursuant thereto shall be binding on all of the Banks and any
other holder of all or any portion of any Loan.
Section 9.03. DEFAULTS. The Agent shall not be deemed to have
knowledge of the occurrence of a Default or Event of Default (other than the
non-payment of principal of or interest on the Loans to the extent the same
is required to be paid to the Agent for the account of the Banks) unless the
Agent has received notice from a Bank or the Borrower specifying such Default
or Event of Default and stating that such notice is a "Notice of Default." In
the event that the Agent receives such a notice of the occurrence of a
Default or Event of Default, the Agent shall give prompt notice thereof to
the Banks (and shall give each Bank prompt notice of each such non-payment).
The Agent shall (subject to Section 9.08) take such action with respect to
such Default or Event of Default which is continuing as shall be directed by
the Required Banks, except that, after acceleration of any of the Notes, any
such directions shall be given (i) by the Required B Banks with respect to
any foreclosure on the Facility B Collateral or (ii) by the Required A Banks
with respect to any foreclosure on the Facility A Collateral or with respect
to the collection of any Secondary Support; provided that, unless and until
the Agent shall have received such directions, the Agent may take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interest of the
Banks; and provided further that the Agent shall not be required to take any
such action which it determines to be contrary to law.
Section 9.04. RIGHTS OF AGENT AS A BANK. With respect to its
Commitment and the Loan made by it, the Agent in its capacity as a Bank
hereunder shall have the same rights and powers hereunder as any other Bank
and may exercise the same as though it were not
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acting as the Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include the Agent in its capacity as a Bank. The Agent
and its affiliates may (without having to account therefor to any Bank)
accept deposits from, lend money to (on a secured or unsecured basis), and
generally engage in any kind of banking, trust or other business with, the
Borrower (and any of its Affiliates and Nextel) as if it were not acting as
the Agent, and the Agent may accept fees and other consideration from the
Borrower for services in connection with this Agreement or otherwise without
having to account for the same to the Banks. Although the Agent and its
affiliates may in the course of such relationships and relationships with
other Persons acquire information about the Borrower, its Affiliates, Nextel
and such other Persons, the Agent shall have no duty to disclose such
information to the Banks.
Section 9.05. INDEMNIFICATION OF AGENT. The Banks agree to indemnify
the Agent (to the extent not reimbursed under Section 10.03 or under the
applicable provisions of any other Facility Document, but without limiting
the obligations of the Borrower under Section 10.03 or such provisions),
ratably in accordance with the aggregate unpaid principal amount of the Loans
made by the Banks (without giving effect to any participations, in all or any
portion of such Loans, sold by them to any other Person) (or, if no Loans are
at the time outstanding, ratably in accordance with their respective
Commitments), for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of this Agreement,
any other Facility Document or any other documents contemplated by or
referred to herein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses which the Borrower is
obligated to pay under Section 10.03 or under the applicable provisions of
any other Facility Document but excluding, unless a Default or Event of
Default has occurred, normal administrative costs and expenses incident to
the performance of its agency duties hereunder) or the enforcement of any of
the terms hereof or thereof or of any such other documents or instruments;
provided that no Bank shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the party to be
indemnified.
Section 9.06. DOCUMENTS. The Agent will forward to each Bank, promptly
after the Agent's receipt thereof, a copy of each report, notice or other
document required by this Agreement or any other Facility Document to be
delivered to the Agent for such Bank.
Section 9.07. NON-RELIANCE ON AGENT AND OTHER BANKS. Each Bank agrees
that it has, independently and without reliance on the Agent or any other
Bank, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and its
Subsidiaries and decision to enter into this Agreement and that it will,
independently and without reliance upon the Agent or any other Bank, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions in taking or not taking
action under this Agreement or any other Facility Document. The Agent shall
not be required to keep itself informed as to the performance or observance
by the Borrower of this Agreement or any other Facility Document or any other
document referred to or provided for herein or therein or to inspect
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the properties or books of the Borrower or any Subsidiary. Except for
notices, reports and other documents and information expressly required to be
furnished to the Banks by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Bank with any credit or other
information concerning the affairs, financial condition or business of the
Borrower or any Subsidiary (or any of their Affiliates) which may come into
the possession of the Agent or any of its affiliates. The Agent shall not be
required to file this Agreement, any other Facility Document or any document
or instrument referred to herein or therein, for record or give notice of
this Agreement, any other Facility Document or any document or instrument
referred to herein or therein, to anyone.
Section 9.08. FAILURE OF AGENT TO ACT. Except for action expressly
required of the Agent hereunder, the Agent shall in all cases be fully
justified in failing or refusing to act hereunder unless it shall have
received further assurances (which may include cash collateral) of the
indemnification obligations of the Banks under Section 9.05 in respect of any
and all liability and expense which may be incurred by it by reason of taking
or continuing to take any such action.
Section 9.09. RESIGNATION OR REMOVAL OF AGENT. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent
may resign at any time by giving written notice thereof to the Banks and the
Borrower, and the Agent may be removed at any time with or without cause by
the Required Banks; provided that the Borrower and the other Banks shall be
promptly notified thereof. Upon any such resignation or removal, the
Required Banks, with the consent of the Borrower, shall have the right to
appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Banks and shall have accepted such appointment
within 30 days after the retiring Agent's giving of notice of resignation or
the Required Banks' removal of the retiring Agent, then the retiring Agent
may, on behalf of the Banks, after consulting with the Borrower, appoint a
successor Agent, which shall be a bank which has an office in New York, New
York and has a combined capital and surplus of at least $500,000,000. The
Required Banks or the retiring Agent, as the case may be, shall upon the
appointment of a successor Agent promptly so notify the Borrower and the
other Banks. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation or removal
hereunder as Agent, the provisions of this Article 9 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 the Agent.
Section 9.10. AMENDMENTS CONCERNING AGENCY FUNCTION. The Agent shall
not be bound by any waiver, amendment, supplement or modification of this
Agreement or any other Facility Document which affects its duties hereunder
or thereunder unless it shall have given its prior consent thereto.
Section 9.11. LIABILITY OF AGENT. The Agent shall not have any
liabilities or responsibilities to the Borrower on account of the failure of any
Bank to perform its
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obligations hereunder or to any Bank on account of the failure of the
Borrower to perform its obligations hereunder or under any other Facility
Document.
Section 9.12. TRANSFER OF AGENCY FUNCTION. Without the consent of the
Borrower or any Bank, the Agent may at any time or from time to time transfer
its functions as Agent hereunder to any of its offices wherever located,
provided that the Agent shall promptly notify the Borrower and the Banks
thereof.
Section 9.13. NON-RECEIPT OF FUNDS BY THE AGENT. Unless the Agent
shall have been notified by a Bank or the Borrower (either one as appropriate
being the "Payor") prior to the date on which such Bank is to make payment
hereunder to the Agent of the proceeds of a Loan or the Borrower is to make
payment to the Agent, as the case may be (either such payment being a
"Required Payment"), which notice shall be effective upon receipt, that the
Payor does not intend to make the Required Payment to the Agent, the Agent
may assume that the Required Payment has been made and may, in reliance upon
such assumption (but shall not be required to), make the amount thereof
available to the intended recipient on such date and, if the Payor has not in
fact made the Required Payment to the Agent, the recipient of such payment
(and, if such recipient is the Borrower and the Payor Bank fails to pay the
amount thereof to the Agent forthwith upon demand, the Borrower) shall, on
demand, repay to the Agent the amount made available to it together with
interest thereon for the period from the date such amount was so made
available by the Agent until the date the Agent recovers such amount at a
rate per annum equal to the average daily Federal Funds Rate for such period.
Section 9.14. WITHHOLDING TAXES. Each Bank represents that it is
entitled to receive any payments to be made to it hereunder without the
withholding of any tax and will furnish to the Agent such forms,
certifications, statements and other documents as the Agent may request from
time to time to evidence such Bank's exemption from the withholding of any
tax imposed by any jurisdiction or to enable the Agent to comply with any
applicable laws or regulations relating thereto. Without limiting the effect
of the foregoing, if any Bank is not created or organized under the laws of
the United States of America or any state thereof, in the event that the
payment of interest by the Borrower is treated for U.S. income tax purposes
as derived in whole or in part from sources from within the U.S., such Bank
will furnish to the Agent Form 4224 or Form 1001 of the Internal Revenue
Service, or such other forms, certifications, statements or documents, duly
executed and completed by such Bank as evidence of such Bank's exemption from
the holding of U.S. tax with respect thereto. The Agent shall not be
obligated to make any payments hereunder to such Bank in respect of any Loan
or such Bank's Commitment until such Bank shall have furnished to the Agent
the requested form, certification, statement or document.
Section 9.15. SEVERAL OBLIGATIONS AND RIGHTS OF BANKS. The failure of any
Bank to make any Loan to be made by it on the date specified therefor shall not
relieve any other Bank of its obligation to make its Loan on such date, but no
Bank shall be responsible for the failure of any other Bank to make a Loan to be
made by such other Bank. The amounts payable at any time hereunder to each Bank
shall be a separate and independent debt, and each Bank shall be entitled to
protect and enforce its rights arising out of this
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Agreement, and it shall not be necessary for any other Bank to be joined as
an additional party in any proceeding for such purpose.
Section 9.16. PRO RATA TREATMENT OF LOANS, ETC. Except to the extent
otherwise provided: (a) the borrowing under Section 2.04 shall be made from
the Banks, pro rata according to the amounts of their respective Commitments,
Facility A Commitments or Facility B Commitments, as the case may be; (b)
each conversion and renewal under Sections 2.06 and 2.07 of Loans of a
particular type (but not conversions provided for by Section 3.04), shall be
made pro rata among the Banks holding Loans of such type according to the
respective principal amounts of such Loans by such Banks; and (c) each
prepayment and payment of principal of or interest on Loans of a particular
type and a particular Interest Period, or under a particular Facility, shall
be made to the Agent for the account of the Banks holding Loans of such type
and Interest Period, or under a particular Facility, pro rata in accordance
with the respective unpaid principal amounts of such Loans of such Interest
Period or of such Facility held by such Banks.
Section 9.17. SHARING OF PAYMENTS AMONG BANKS. If a Bank shall obtain
payment of any principal of or interest on any Loan made by it through the
exercise of any right of setoff banker's lien, counterclaim, or by any other
means (including any payment obtained from or charged against any Third Party
Pledgor), it shall promptly purchase from the other Banks participations in
(or, if and to the extent specified by such Bank, direct interests in) the
Loans made by the other Banks in such amounts, and make such other
adjustments from time to time as shall be equitable to the end that all the
Banks shall share the benefit of such payment (net of any expenses which may
be incurred by such Bank in obtaining or preserving such benefit) pro rata in
accordance with the unpaid principal and interest on the Loans held by each
of them. To such end the Banks shall make appropriate adjustments among
themselves (by the resale of participations sold or otherwise) if such
payment is rescinded or must otherwise be restored. The Borrower agrees that
any Bank so purchasing a participation (or direct interest) in the Loans made
by other Banks may exercise all rights of setoff banker's lien, counterclaim
or similar rights with respect to such participation (or direct interest).
Nothing contained herein shall require any Bank to exercise any such right or
shall affect the right of any Bank to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness of the
Borrower.
Section 9.18. NOTICE OF CERTAIN EVENTS. The Agent shall give the Banks
prompt notice (but in any event within three Banking Days) of the acceptance
of any additional Collateral under Section 2.05, the release or substitution
of any Collateral under Section 2.05, the reallocation of any Collateral
under Section 2.01(g), the provision of additional Recourse Guarantees or
other Secondary Support, or the sale of any Collateral under the Pledge
Agreements.
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ARTICLE 10.
MISCELLANEOUS
Section 10.01. AMENDMENTS AND WAIVERS. Except as otherwise expressly
provided in this Agreement, any provision of this Agreement may be amended or
modified only by an instrument in writing signed by the Borrower, the Agent
and the Required Banks, or by the Borrower and the Agent acting with the
consent of the Required Banks and any provision of this Agreement may be
waived by the Required Banks or by the Agent acting with the consent of the
Required Banks; PROVIDED that no amendment, modification or waiver shall,
unless by an instrument signed by all of the Banks or by the Agent acting
with the consent of all of the Banks: (a) increase or extend the term, or
extend the time or waive any requirement for the reduction or termination, of
the Commitments, (b) extend the date fixed for the payment of principal of or
interest on any Loan or any fee payable hereunder, (c) alter the terms of
this Section 10.01, (d) amend the definition of any of the terms "Cash
Collateral," "Cash Collateral Value," "Collateral Maintenance Tests,"
"Collateral Release Tests," "Effective Date Collateral," "Eligible Additional
Collateral," "Eligible AT&T Collateral," "Eligible Collateral," "Eligible
Deposited Assets," "Eligible Lucent Collateral," "Eligible Maintenance
Collateral," "Eligible NCR Collateral," "Eligible Nextel Collateral",
Eligible Nextel Qualified Collateral", "Eligible Supplemental Collateral,"
"Facility A Cash Collateral," "Facility A Cash Collateral Value," "Facility A
Collateral," "Facility A Loans," "Facility A Primary Collateral," "Facility A
Primary Collateral Value," "Facility B Cash Collateral," "Facility B Cash
Collateral Value," "Facility B Collateral," "Facility B Loans," "Facility B
Primary Collateral," "Facility B Primary Collateral Value," "Nextel
Collateral Value", "Opposing Banks," "Primary Collateral," "Primary
Collateral Value," "Required A Banks," "Required B Banks," "Required Banks,"
"Secondary Support" and "Secondary Support Value", (e) waive any of the
documentary conditions precedent set forth in Section 4.01 hereof, (f) amend
Section 2.01(e), Section 2.01(g) or Section 2.05, or (g) release any
Collateral other than as expressly provided in this Agreement and the Pledge
Agreements, and PROVIDED, FURTHER that no amendment, modification or waiver
shall, unless an instrument signed by all of the Facility A Banks or all of
the Facility B Banks (as the case may be) or by the Agent acting with the
consent of all of the Banks under the relevant Facility, increase or extend
the term, or extend the time or waive any requirement for the reduction or
termination, of the Facility A Commitments or the Facility B Commitments, or
reduce the amount of any payment of principal on any Facility A Loan or
Facility B Loan or the rate at which interest is payable thereon or any fee
payment hereunder, and PROVIDED, FURTHER, that no amendment, modification or
waiver shall, unless an instrument signed by all of the Facility A Banks or
by the Agent acting with the consent of all of the Banks under Facility A,
increase the Credit Limit of any Third Party Pledgor, and PROVIDED, FURTHER,
that any amendment of Article 9 hereof or any amendment which increases the
obligations of the Agent hereunder shall require the consent of the Agent.
No failure on the part of the Agent or any Bank to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof or preclude
any other or further exercise thereof or the exercise of any other right.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
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Section 10.02. USURY. Anything herein to the contrary notwithstanding,
the obligations of the Borrower under this Agreement and the Notes shall be
subject to the limitation that payments of interest shall not be required to
the extent that receipt thereof would be contrary to provisions of law
applicable to a Bank limiting rates of interest which may be charged or
collected by such Bank.
Section 10.03. EXPENSES; INDEMNITY; DAMAGE WAIVER.
(a) The Borrower shall pay the Agent on demand for all
reasonable costs, expenses, and charges (including, without limitation, fees
and charges of external legal counsel for the Agent and costs allocated by
its internal legal department) incurred by the Agent in connection with the
preparation, execution and delivery of this Agreement, the other Facility
Documents and the other documents to be executed contemporaneously herewith.
In addition, the Borrower shall pay the Agent, and after any Event of Default
the Banks, on demand for all costs, expenses, and charges (including, without
limitation, fees and charges of external legal counsel for the Agent and each
Bank and costs allocated by their respective internal legal departments)
incurred by the Agent or the Banks in connection with the performance or
enforcement of, or preservation of rights under, this Agreement, the Notes
and any other Facility Documents.
(b) The Borrower agrees to indemnify the Agent and each Bank and
their respective directors, officers, employees and agents (each such Person
being an "Indemnitee") from, and hold each of them harmless against, any and
all losses, liabilities, claims, damages or expenses (each an "Indemnified
Liability") incurred by any of them arising out of or by reason of any
investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to or arising out
of this Agreement or any actual or proposed use by the Borrower or any
Subsidiary of the proceeds of the Loans, including without limitation, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation or litigation or other proceedings, but excluding any
Indemnified Liability incurred by reason of the gross negligence or willful
misconduct of the Indemnitee. The Borrower agrees that any Indemnified
Liability will be promptly paid to the Indemnitee upon the written demand of
such Indemnitee.
(c) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, or 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 or any agreement or instrument contemplated
hereby, any Loan or the use of the proceeds thereof.
Section 10.04. SURVIVAL. The obligations of the Borrower under
Sections 3.01, 3.05 and 10.03 shall survive the repayment of the Loans and
the termination of the Commitments.
51.
<PAGE>
Section 10.05. ASSIGNMENT; PARTICIPATIONS.
(a) This Agreement shall be binding upon, and shall inure to the
benefit of, the Borrower, the Agent, the Banks and their respective
successors and assigns, except that the Borrower may not assign or transfer
its rights or obligations hereunder. Each Bank may assign (subject to the
prior written consent of the Borrower, which shall not be unreasonably
withheld), or sell participations in, all or any part of its commitment or
the Loan to another bank or other entity, in which event (i) in the case of
an assignment, upon notice thereof by the Bank to the Borrower with a copy to
the Agent, the assignee shall have, to the extent of such assignment (unless
otherwise provided therein), the same rights, benefits and obligations as it
would have if it were a Bank hereunder and the assigning Bank shall be
released from its obligations hereunder to the extent of such assignment; and
(ii) in the case of a participation, the participant shall have no rights
under the Facility Documents and all amounts payable by the Borrower under
Article 3 shall be determined as if such Bank had not sold such
participation. The agreement executed by such Bank in favor of the
participant shall not give the participant the right to require such Bank to
take or omit to take any action hereunder except action directly relating to
(i) the extension of the Termination Date, (ii) the extension of a payment
date with respect to any portion of the principal of or interest on any
amount outstanding hereunder allocated to such participant, (iii) the
reduction of the principal amount outstanding hereunder or (iv) the reduction
of the rate of interest payable on such amount or any amount of fees payable
hereunder to a rate or amount, as the case may be, below that which the
participant is entitled to receive under its agreement with such Bank. Such
Bank may furnish any information concerning the Borrower in the possession of
such Bank from time to time to assignees and participants (including
prospective assignees and participants); provided that such Bank shall
require any such prospective assignee or such participant (prospective or
otherwise) to agree in writing to maintain the confidentiality of such
information. In connection with any assignment pursuant to this paragraph
(a), an administrative fee shall be paid to the Agent for processing such
assignment in the amount of $3,000.
(b) In addition to the assignments and participations permitted
under paragraph (a) above, any Bank may assign and pledge all or any portion
of its Loans and Note to (i) any affiliate of such Bank or (ii) any Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank. No such assignment under clause (ii) of the
preceding sentence shall release the assigning Bank from its obligations
hereunder.
Section 10.06. NOTICES. Unless the party to be notified otherwise
notifies the other parties in writing as provided in this Section of a
different address or addresses, and except as otherwise provided in this
Agreement, notices shall be given to the Agent by telephone (confirmed by
telex, telecopy or other writing), ordinary mail, telex, hand delivery,
courier or facsimile, and to the Banks and to the Borrower by ordinary mail,
telex, hand delivery, courier or facsimile, in each case addressed to such
party at its address on the signature page of this Agreement. Notices shall
be effective: (a) if given by mail, 72 hours after deposit in the United
States mails with first class postage prepaid, addressed as aforesaid;
52.
<PAGE>
(b) if given by telex, when the telex is transmitted to the telex number as
aforesaid; and (c) otherwise upon receipt; provided that notices to the Agent
and the Banks under Articles 2 and 3 shall be effective upon receipt.
Section 10.07. SETOFF. The Borrower agrees that, in addition to (and
without limitation of) any right of setoff, banker's lien or counterclaim a
Bank may otherwise have, each Bank shall be entitled, at its option, to
offset balances (general or special, time or demand, provisional or final)
held by it for the account of the Borrower at any of such Bank's offices, in
Dollars or in any other currency, against any amount payable by the Borrower
to such Bank under this Agreement or such Bank's Note which is not paid when
due (regardless of whether such balances are then due to the Borrower), in
which case it shall promptly notify the Borrower and the Agent thereof;
provided that such Bank's failure to give such notice shall not affect the
validity thereof. Payments by the Borrower hereunder shall be made without
setoff or counterclaim.
SECTION 10.08. JURISDICTION; IMMUNITIES.
(a) THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY NEW YORK STATE OR UNITED STATES FEDERAL COURT SITTING IN NEW YORK COUNTY
OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE NOTES AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW
YORK STATE OR FEDERAL COURT. THE BORROWER IRREVOCABLY CONSENTS TO THE
SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES OF SUCH PROCESS TO THE BORROWER AT ITS ADDRESS SPECIFIED IN
SECTION 10.06. THE BORROWER 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. THE BORROWER
FURTHER WAIVES ANY OBJECTION TO VENUE IN SUCH STATE AND ANY OBJECTION TO AN
ACTION OR PROCEEDING IN SUCH STATE ON THE BASIS OF FORUM NON CONVENIENS. THE
BORROWER FURTHER AGREES THAT ANY ACTION OR PROCEEDING BROUGHT AGAINST THE
AGENT SHALL BE BROUGHT ONLY IN NEW YORK STATE OR UNITED STATES FEDERAL COURT
SITTING IN NEW YORK COUNTY. THE BORROWER WAIVES ANY RIGHT IT MAY HAVE TO
JURY TRIAL.
(b) Nothing in this Section 10.08 shall affect the right of the
Agent or any Bank to serve legal process in any other manner permitted by law
or affect the right of the Agent or any Bank to bring any action or
proceeding against the Borrower or its property in the courts of any other
jurisdictions.
(c) To the extent that the Borrower has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process
(whether from service or notice, attachment prior to judgment, attachment in
aid of execution, execution or
53.
<PAGE>
otherwise) with respect to itself or its property, the Borrower hereby
irrevocably waives such immunity in respect of its obligations under this
Agreement and the Notes.
Section 10.09. TABLE OF CONTENTS; HEADINGS. Any table of contents and
the headings and captions hereunder are for convenience only and shall not
affect the interpretation or construction of this Agreement.
Section 10.10. SEVERABILITY. The provisions of this Agreement are
intended to be severable. If for any reason any provision of this Agreement
shall be held invalid or unenforceable in whole or in part in any
jurisdiction, such provision shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without in any manner
affecting the validity or enforceability thereof in any other jurisdiction or
the remaining provisions hereof in any jurisdiction.
Section 10.11. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same instrument, and any party hereto may execute this Agreement by
signing any such counterpart.
Section 10.12. INTEGRATION. The Facility Documents set forth the
entire agreement among the parties hereto relating to the transactions
contemplated thereby and supersede any prior oral or written statements or
agreements with respect to such transactions.
SECTION 10.13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
INTERPRETED AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.
Section 10.14. CONFIDENTIALITY. Each Bank and the Agent agrees (on
behalf of itself and each of its affiliates, directors, officers, employees
and representatives) to use reasonable precautions to keep confidential, in
accordance with safe and sound banking practices, until the third anniversary
of the date on which the Loans are paid in full, any non-public information
supplied to it by the Borrower pursuant to this Agreement which is identified
by the Borrower as being confidential at the time the same is delivered to
the Banks or the Agent, provided that nothing herein shall limit the
disclosure of any such information (i) to the extent required by statute,
rule, regulation or judicial process, (ii) to counsel for any of the Banks or
the Agent, (iii) to bank examiners, auditors or accountants, (iv) in
connection with any litigation to which any one or more of the Banks is a
party or (v) to any assignee or participant (or prospective assignee or
participant) so long as such assignee or participant (or prospective assignee
or participant) first executes and delivers to the respective Bank a
Confidentiality Agreement in substantially the form of Exhibit I hereto;
provided further that in no event shall any Bank or the Agent be obligated or
required to return any materials furnished by the Borrower. With respect to
any judicial process under clauses (i) or (iv), if the Agent or a Bank (the
"Receiving Party") is requested or required to disclose any confidential
information, the Receiving Party will provide prompt written notice thereof
to the Borrower so that the Borrower may seek a protective order or other
appropriate remedy. The Receiving Party agrees to use its best efforts to
assist the
54.
<PAGE>
Borrower to obtain a protective order or other appropriate remedy. If such
protective order or other remedy is not obtained, the Receiving Party will
furnish only that portion and will exercise other reasonable efforts to
obtain other assurance that confidential treatment will be accorded to the
confidential information which is disclosed.
Section 10.15. TREATMENT OF CERTAIN INFORMATION. The Borrower
(a) acknowledges that services may be offered or provided to it (in connection
with this Agreement or otherwise) by each Bank or by one or more of their
respective subsidiaries or affiliates and (b) acknowledges that any
information delivered to each Bank or its subsidiaries or affiliates
regarding the Borrower may be shared among such Bank and such subsidiaries
and affiliates. This Section 10.15 shall survive the repayment of the Loans
and the termination of the Commitments.
Section 10.16. OTHER RELATIONSHIPS. The Borrower acknowledges that the
Agent and its affiliates and some or all of the Banks and their respective
affiliates (collectively "Lending Parties") may have and may in the future
have investment and commercial banking and other relationships with parties
other than the Borrower, including such relationships with Nextel, AT&T
Corporation, Lucent Technologies, Inc., NCR Corp., and Motorola, Inc.,
pursuant to which Lending Parties may acquire information about the Borrower,
Nextel, AT&T Corporation, Lucent Technologies, Inc., NCR Corp., Motorola,
Inc. or others. Although Lending Parties may acquire information about such
other parties in the course of such other relationships, Lending Parties have
strong policies in safeguarding the confidentiality of customer information
and accordingly Lending Parties shall have no obligation to disclose such
information to the Borrower. Any extension of credit for purposes of the
Borrower making any investment shall not be deemed a recommendation by the
Bank in its capacity as agent or lender that such investment is appropriate
or suitable for the Borrower.
Section 10.17. REGARDING RECOURSE. Notwithstanding any provision hereof
or of any other Facility Documents, neither the Agent, any Bank, nor any
Person claiming by or through any of them shall have, on account of the
obligations of the Third Party Pledgors or the Borrower hereunder or
thereunder, any claim against (1) the Nextel Options or (2) the equity
interest (whether stock, partnership interest, or membership interest) in any
Subsidiary of the Borrower that is capitalized with all or a portion of the
Nextel Options (and no other material assets), whether by levy, attachment,
execution of judgment, or any other method of realizing value therefrom.
Nothing contained in this Section 10.17, however, shall limit the Agent's or
any Bank's rights against any of the other assets of the Borrower, any
Collateral or any other Person obligated in respect of the Loans.
[rest of page left intentionally blank]
55.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
DIGITAL RADIO, L.L.C.
By /s/ Dennis M. Weibling
-------------------------------------
Name: Dennis M. Weibling
Title: President
Address for Notices:
P.O. Box 2908
Kirkland, WA 98083-2908
2320 Carillon Point
Kirkland, WA 98033-7353
Telephone No.: (206) 828-8068
Facsimile No.: (206) 828-8060
AGENT:
THE CHASE MANHATTAN BANK
By
-------------------------------------
Name:
Title:
Address for Notices:
New York Agency
One Chase Manhattan Plaza, 8th Floor
New York, NY 10081
Attn: Joseph Brusco
Telephone No.: (212) 552-7319
Telecopier No.: (212) 552-7500
<PAGE>
BANKS:
THE CHASE MANHATTAN BANK
By
-------------------------------------
Name:
Title:
Lending Offices:
270 Park Avenue
New York, New York 10017
Address for Notices:
New York Agency
One Chase Manhattan Plaza, 8th Floor
New York, NY 10081
Attn: Joseph Brusco
Telephone No.: (212) 552-7319
Telecopier No.: (212) 552-7500
1211 Avenue of the Americas
33rd Floor
New York, New York 10036
Attention: John Ferrante
Vice President
Telephone No.: (212) 789-4621
Telecopier No.: (212) 789-5993
<PAGE>
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ Jeffrey Westcott
-------------------------------------
Name: Jeffrey Westcott
Title: Vice President
Lending Office:
Morgan Guaranty Trust Company
of New York
60 Wall Street Branch
c/o J.P. Morgan Services Inc.
500 Stanton-Christiana Road
Loan Operations - 3rd Floor
Newark, Delaware 19713
Attention: Domestic Loan Servicing
Telex: 177615 MGT UT
Telecopier No.: (302) 634-5588
Address for Notices:
9 W. 57th Street
New York, NY 10019
Attn: Jeffrey Westcott
Telephone No.: (212) 837-3893
Telecopier No.: (212) 837-3800
<PAGE>
CITIBANK, N.A.
By /s/ Stephen Giannakakis
-------------------------------------
Name: Stephen Giannakakis
Title: Vice President
Lending Office:
Citibank, N.A.
Citicorp Center
153 E. 53rd St., 5th Floor
New York, NY 10022
Attn.: Stephen Giannakakis
Telephone No.: (212) 559-9303
Telecopier No.: (212) 793-1593 or 6232
Address for Notices:
Citibank, N.A.
Citicorp Center
c/o Citicorp North America
One Sansome Street
24th Floor
San Francisco, CA 94104
Attn.: Steven Carr
Telephone No.: (415) 627-6316
Telecopier No.: (415) 956-6345
<PAGE>
PNC BANK, NATIONAL ASSOCIATION
By /s/ Eileen S. Wood
-------------------------------------
Name: Eileen S. Wood
Title: Vice President
Lending Office:
PNC BANK, NATIONAL ASSOCIATION
1600 Market Street
29th Floor - Private Banking
Philadelphia, PA 19103
Attention: Eileen S. Wood
Vice President
Telephone No.: (215) 585-7577
Telecopier No.: (215) 585-8937
Address for Notices:
PNC BANK, NATIONAL ASSOCIATION
1600 Market Street
29th Floor - Private Banking
Philadelphia, PA 19103
Attention: Eileen S. Wood
Vice President
Telephone No.: (215) 585-7577
Telecopier No.: (215) 585-8937
<PAGE>
THE BANK OF NOVA SCOTIA
By /s/ Patrik G. Norris
-------------------------------------
Name: Patrik G. Norris
Title: Relationship Officer
Lending Office:
888 Southwest 5th Avenue, Suite 750
Portland, OR 97204-2078
Telephone No.: (503) 222-3148
Telecopier No.: (503) 222-5502
Telex: 650 572 4253 MCI UW
Address for Notices:
888 Southwest 5th Avenue, Suite 750
Portland, OR 97204-2078
Attention: Patrik G. Norris
Telephone No.: (503) 222-3148
Telecopier No.: (503) 222-5502
Telex: 650 572 4253 MCI UW
<PAGE>
THE BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/ John D. Judge
-------------------------------------
Name: John Judge
Title: Vice President
Lending Office:
1251 Avenue of the Americas
12th Floor
New York, NY 10020
Attention: John Judge
Telephone No.: (212) 782-4383
Telecopier No.: (212) 782-4935
Telex: 211 315 BOT UR
Address for Notices:
1251 Avenue of the Americas
12th Floor
New York, NY 10020
Attention: John Judge
Telephone No.: (212) 782-4383
Telecopier No.: (212) 782-4935
Telex: 211 315 BOT UR
<PAGE>
WELLS FARGO BANK, N.A.
By /s/ Craig E. Olson
-------------------------------------
Name: Craig Olson
Title: Vice President
Lending Office:
WELLS FARGO BANK, N.A.
Bellevue Private Client Services
225 108th Avenue, N.E.
Bellevue, WA 98004
Attention: Craig Olson
Telephone No.: (206) 462-5502
Telecopier No.: (206) 462-6775
Address for Notices:
WELLS FARGO BANK, N.A.
Bellevue Private Client Services
225 108th Avenue, N.E.
Bellevue, WA 98004
Attention: Craig Olson
Telephone No.: (206) 462-5502
Telecopier No.: (206) 462-6775
<PAGE>
U.S. BANK OF WASHINGTON, N.A.
By /s/ Garry Egbert
-------------------------------------
Name: Gary Egbert
Title: Vice President
Lending Office:
U.S. BANK OF WASHINGTON, N.A.
10800 N.E. 8th Street, Suite 1000
Bellevue, WA 98004
Attention: Gary Egbert
Telephone No.: (206) 450-5934
Telecopier No.: (206) 450-5989
Address for Notices:
U.S. BANK OF WASHINGTON, N.A.
10800 N.E. 8th Street, Suite 1000
Bellevue, WA 98004
Attention: Gary Egbert
Telephone No.: (206) 450-5934
Telecopier No.: (206) 450-5989
<PAGE>
CANADIAN IMPERIAL BANK
OF COMMERCE
By /s/ Eric Claus
-------------------------------------
Name: Eric Claus
Title: Vice President
Lending Office:
New York Agency
425 Lexington Avenue, 6th Floor
New York, NY 10017
Attention: Ronald Jost
Telephone No.: (212) 856-6591
Telecopier No.: (212) 885-4378
Address for Notices:
2 Paces West
2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
Attention: Vickie Rollins
Telephone No.: (770) 319-4802
Telecopier No.: (770) 319-4950
<PAGE>
EXHIBIT A-1
FACILITY A NOTE
$[Facility A Commitment of Bank x]
July 28, 1997
DIGITAL RADIO, L.L.C. (the "Borrower"), a limited liability company
organized under the laws of the State of Washington, for value received, hereby
promises to pay to the order of [BANK X] (the "Bank") at the principal office of
The Chase Manhattan Bank, at 270 Park Avenue New York, New York 10017 (the
"Agent"), for the account of the appropriate Lending Office of the Bank, the
principal sum of ($[Facility A Commitment amount of Bank X]) in lawful money of
the United States of America and in immediately available funds, on the date(s)
and in the manner provided in the Credit Agreement (as defined below). The
Borrower also promises to pay interest on the unpaid principal balance hereof or
the period such balance is outstanding, at said principal office for the account
of said Lending Office, in like money, at the rates of interest as provided in
the Credit Agreement on the date(s) and in the manner provided in the Credit
Agreement.
The date and amount of each type of Loan made by the Bank to the Borrower
under the Credit Agreement, and each payment of principal thereof, shall be
recorded by the Bank on its books and, prior to any transfer of this Note (or,
at the discretion of the Bank, at any other time), endorsed by the Bank on the
schedule attached hereto or any continuation thereof; PROVIDED, HOWEVER, that
the Bank's failure so to record on its books shall not limit or otherwise affect
the obligations of the Borrower hereunder and under the Credit Agreement to
repay the principal of and interest on the Loans.
This is one of the Facility A Notes referred to in that certain Amended and
Restated Multibank Credit Agreement dated as of July 28, 1997 among the
Borrower, the Banks named therein (including the Bank), and the Agent (as
amended, modified, restated or otherwise supplemented from time to time, the
"Credit Agreement") and evidences (to the extent such Loans constitute Facility
A Loans): (i) the Old Loans, if any, made by the Bank prior to date the date
hereof under the Multibank Credit Agreement dated as of July 28, 1995 among the
Borrower, the financial institutions named therein and the Agent (as amended
prior to July 28, 1997, the "Original Credit Agreement"), (ii) the Old Loans, if
any, purchased by the Bank under the Credit Agreement, and (iii) the New Loans,
if any, made by the Bank under the Credit Agreement. All terms not defined
herein shall have the meanings given to them in the Credit Agreement. With
respect to the Old Loans referenced in the preceding clause (i), this Note
replaces and supercedes the prior "Note", if any, made by the Borrower to the
order of the Bank under the Original Credit Agreement and evidences a
continuation and not a repayment of such Old Loans, if any, made by the Bank
under the Original Credit Agreement.
1.
<PAGE>
The Credit Agreement provides for the acceleration of the maturity of
principal upon the occurrence of certain Events of Default and for prepayments
on the terms and conditions specified therein. The Credit Agreement also
provides for limited recourse against certain assets of the Borrower.
The Borrower waives presentment, notice of dishonor, protest and any other
notice or formality with respect to this Note.
This Note shall be governed by, and interpreted and construed in accordance
with, the laws of the State of New York, without giving effect to any conflicts
of law principles of such State.
DIGITAL RADIO, L.L.C.
By
Name:
Title:
2.
<PAGE>
Amount Amount of Balance
Date of Loan Payment Outstanding Notation By
- ----------- ----------- ----------- ----------- -----------
3.
<PAGE>
EXHIBIT A-2
FACILITY B NOTE
$[Facility B Commitment of Bank x]
July 28, 1997
DIGITAL RADIO, L.L.C. (the "Borrower"), a limited liability company
organized under the laws of the State of Washington, for value received, hereby
promises to pay to the order of [BANK X] (the "Bank") at the principal office of
The Chase Manhattan Bank, at 270 Park Avenue New York, New York 10017 (the
"Agent'), for the account of the appropriate Lending Office of the Bank, the
principal sum of ($[Facility B Commitment amount of Bank X]) in lawful money of
the United States of America and in immediately available funds, on the date(s)
and in the manner provided in the Credit Agreement (as defined below). The
Borrower also promises to pay interest on the unpaid principal balance hereof or
the period such balance is outstanding, at said principal office for the account
of said Lending Office, in like money, at the rates of interest as provided in
the Credit Agreement on the date(s) and in the manner provided in the Credit
Agreement.
The date and amount of each type of Loan made by the Bank to the Borrower
under the Credit Agreement, and each payment of principal thereof, shall be
recorded by the Bank on its books and, prior to any transfer of this Note (or,
at the discretion of the Bank, at any other time), endorsed by the Bank on the
schedule attached hereto or any continuation thereof; PROVIDED, HOWEVER, that
the Bank's failure so to record on its books shall not limit or otherwise affect
the obligations of the Borrower hereunder and under the Credit Agreement to
repay the principal of and interest on the Loans.
This is one of the Facility B Notes referred to in that certain Amended and
Restated Multibank Credit Agreement dated as of July 28, 1997 among the
Borrower, the Banks named therein (including the Bank), and the Agent (as
amended, modified, restated or otherwise supplemented from time to time, the
"Credit Agreement")and evidences (to the extent such Loans constitute Facility B
Loans): (i) the Old Loans, if any, made by the Bank prior to date the date
hereof under the Multibank Credit Agreement dated as of July 28, 1995 among the
Borrower, the financial institutions named therein and the Agent (as amended
prior to July 28, 1997, the "Original Credit Agreement"), (ii) the Old Loans, if
any, purchased by the Bank under the Credit Agreement, and (iii) the New Loans,
if any, made by the Bank under the Credit Agreement. All terms not defined
herein shall have the meanings given to them in the Credit Agreement. With
respect to the Old Loans referenced in the preceding clause (i), this Note
replaces and supercedes the prior "Note", if any, made by the Borrower to the
order of the Bank under the Original Credit Agreement and evidences a
continuation and not a repayment of such Old Loans, if any, made by the Bank
under the Original Credit Agreement.
4.
<PAGE>
The Credit Agreement provides for the acceleration of the maturity of
principal upon the occurrence of certain Events of Default and for prepayments
on the terms and conditions specified therein. The Credit Agreement also
provides for limited recourse against certain assets of the Borrower.
The Borrower waives presentment, notice of dishonor, protest and any other
notice or formality with respect to this Note.
This Note shall be governed by, and interpreted and construed in accordance
with, the laws of the State of New York, without giving effect to any conflicts
of law principles of such State.
DIGITAL RADIO, L.L.C.
By
Name:
Title:
5.
<PAGE>
Amount Amount of Balance
Date of Loan Payment Outstanding Notation By
- ----------- ----------- ----------- ----------- -----------
6.
<PAGE>
EXHIBIT B
AUTHORIZATION LETTER
July ___, 1997
The Chase Manhattan Bank
1 Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attn: New York Agency
Re: Amended and Restated Multibank Credit Agreement dated as of July 28, 1997
(as amended, modified, restated or otherwise supplemented from time to
time, the "Credit Agreement") among Digital Radio, L.L.C., the Banks named
therein, and The Chase Manhattan Bank, as Agent for said Banks
Ladies and Gentlemen:
In connection with the captioned Credit Agreement, we hereby designate any
one of the following persons to give to you instructions, including notices
required pursuant to the Agreement, orally or by telephone or teleprocess:
NAME (Typewritten)
------------------
-----------------------------------
-----------------------------------
-----------------------------------
-----------------------------------
Instructions may be honored on the oral, telephonic or teleprocess
instructions of anyone purporting to be any one of the above designated persons
even if the instructions are for the benefit of the person delivering them. We
will furnish you with confirmation of each such instruction either by telex
(whether tested or untested) or in writing signed by any person designated above
(including any telecopy which appears to bear the signature of any person
designated above) on the same day that the instruction is provided to you but
your responsibility with respect to any instruction shall not be affected by
your failure to receive such confirmation or by its contents.
You shall be fully protected in, and shall incur no liability to us for,
acting upon any instructions which you in good faith believe to have been given
by any person designated
1.
<PAGE>
above, and in no event shall you be liable for special, consequential or
punitive damages. In addition, we agree to hold you and your agents harmless
from any and all liability, loss and expense arising directly or indirectly out
of instructions that we provide to you in connection with the Credit Agreement
except for liability, loss or expense occasioned by the gross negligence or
willful misconduct of you or your agents.
Upon notice to us, you may, at your option, refuse to execute any
instruction, or part thereof, without incurring any responsibility for any loss,
liability or expense arising out of such refusal if you in good faith believe
that the person delivering the instruction is not one of the persons designated
above or if the instruction is not accompanied by an authentication method that
we have agreed to in writing.
We will promptly notify you in writing of any change in the persons
designated above and, until you have actually received such written notice and
have had a reasonable opportunity to act upon it, you are authorized to act upon
instructions, even though the person delivering them may no longer be
authorized.
Very truly yours,
DIGITAL RADIO, L.L.C.
By *
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Name:
Title:
By *
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Name:
Title:
* In case the signor of this letter is authorized to deliver instructions in
the manner set forth above, this letter must also be signed by a second
officer of this corporation.
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EXHIBIT C-1
AMENDED AND RESTATED PLEDGE AGREEMENT
AMENDED AND RESTATED PLEDGE AGREEMENT dated July 28, 1997, made by Digital
Radio, L.L.C., a limited liability company organized under the laws of the State
of Washington (the "Pledgor"), in favor of THE CHASE MANHATTAN BANK, a state
chartered banking institution organized under the laws of New York, as agent
(the "Agent") for the Banks party to the Credit Agreement referred to below.
PRELIMINARY STATEMENTS:
The Pledgor is the owner of the shares (the "Pledged Shares") of stock
described in Part 1 of the Schedule hereto and issued by the corporations named
therein.
The Banks and the Agent have entered into a Multibank Credit Agreement
dated as of July 28, 1995 (said Multibank Credit Agreement, as it has been
amended and restated pursuant to an Amended and Restated Multibank Credit
Agreement dated as of even date herewith (the "Restated Credit Agreement") and
as it may hereafter be amended or otherwise modified from time to time, being
the "Credit Agreement," the terms defined therein and not otherwise defined
herein being used herein as therein defined) with the Pledgor. It is a condition
precedent to the making of the Loans by the Banks under the Credit Agreement
that the Pledgor shall have made the pledge contemplated by this Agreement.
The Pledgor has previously delivered to the Agent under the Credit
Agreement a Pledge Agreement dated as of July 28, 1995 (the "Original Pledge
Agreement") in connection with the original loans made under the Credit
Agreement.
It is a condition precedent to the making of New Loans by the Banks under
the Credit Agreement that the Pledgor shall have made the pledge contemplated by
this Agreement and that the Original Pledge Agreement be amended and restated as
set forth herein.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Banks to make the New Loans under the Credit Agreement, the Pledgor hereby
agrees that the Original Pledge Agreement be amended and restated, effective as
of the Effective Date under the Restated Credit Agreement, to read in full as
follows (with any pledge of Pledged Collateral under the Original Pledge
Agreement, as amended prior to the date hereof, being continued hereunder):
1.
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ARTICLE 1.
THE PLEDGE
Section 1.01. PLEDGE. The Pledgor hereby pledges to the Agent for the
ratable benefit of the Banks, and grants to the Agent for the ratable benefit of
the Banks a security interest in, the following (the "Pledged Collateral"):
(a) the Pledged Shares and the certificates representing the Pledged
Shares, and all dividends, cash, instruments, investment property, and other
property from time to time received, receivable or otherwise distributed in
respect of, in conversion of or in exchange for any or all of the Pledged
Shares;
(b) all additional shares of stock of any issuer of the Pledged
Shares or of any other issuer from time to time acquired by the Pledgor in any
manner and hereafter transferred and pledged to the Agent pursuant to this
Agreement, and the certificates representing such additional shares, and all
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such shares;
(c) such cash, bank accounts, certificates of deposit, investment
property, and instruments as may be pledged from time to time by the Pledgor
hereunder, together with any investments in which any such cash may be invested
from time to time;
(d) all rights to convert, redeem or exchange the Pledged Collateral,
all rights to request or cause the issuer thereof to register any or all of the
Pledged Collateral under federal and state securities laws to the maximum extent
possible under any agreement for such registration rights, and all put rights,
tag-along rights or other rights pertaining to the sale or other transfer of
such Pledged Collateral, together in each case with all rights under any
agreements, articles or certificates of incorporation or otherwise pertaining to
such rights; and
(e) all proceeds, products, renewals and substitutions of, and
general intangibles related to, any and all of the foregoing Pledged Collateral
(including the proceeds of any tort or other claims relating to any of the
foregoing Pledged Collateral) and, to the extent not otherwise included, all
payments under insurance or in connection with any indemnity, warranty or
guarantee payable by reason of loss or damage to or otherwise with respect to
any of the foregoing Pledged Collateral.
The inclusion of proceeds in this Agreement does not authorize the Pledgor
to sell, dispose of or otherwise use the Collateral in any manner not
specifically authorized hereby.
Section 1.02. SECURITY FOR OBLIGATIONS. This Agreement secures the
payment of all obligations of the Pledgor now or hereafter existing under the
Facility Documents
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whether for principal, interest, fees, expenses or otherwise (all such
obligations being the "Obligations").
Section 1.03. DELIVERY OF PLEDGED COLLATERAL. For the better perfection
of the Agent's rights in and to the Pledged Collateral, the Pledgor shall
forthwith, upon the pledge of any Pledged Collateral hereunder, cause such
Pledged Collateral (other than any Class A Preferred Stock) to be registered in
the name of such nominee or nominees of the Agent as the Agent shall direct,
subject only to the revocable rights specified in Section 5.01(a). The Agent is
hereby authorized: (i) to the extent permissible, to transfer to the account of
the Agent any Pledged Collateral (other than any Class A Preferred Stock)
whether in the possession of, or registered in the name of, The Depository Trust
Company (the "DTC") or other clearing corporation or held otherwise; (ii) to
transfer to the account of the Agent with any Federal Reserve Bank any Pledged
Collateral held in book entry form with any such Federal Reserve Bank; and
(iii) to exchange certificates representing or evidencing Pledged Collateral for
certificates of smaller or larger denominations. To the extent that the Pledged
Collateral has not already been transferred to the Agent in a manner sufficient
to perfect the Agent's security interest therein, the Pledgor shall promptly
deliver or cause to be delivered to the Agent all certificates or instruments
evidencing the Pledged Collateral, together with duly executed stock powers or
other appropriate endorsements.
With respect to any Pledged Collateral in the possession of or
registered in the name of a custodian bank or nominee therefor, the Pledgor
agrees to cause such custodian bank or nominee either to enter into an agreement
with the Agent satisfactory to the Agent in form and content confirming that the
Pledged Collateral is held for the account of the Agent, or at the discretion of
the Agent and subject to the written instructions of the Agent, deliver any such
Pledged Collateral to the Agent and/or cause any such Pledged Collateral to be
put in bearer form, registered in the name of the Agent or its nominee, or
transferred to the account of the Agent with any Federal Reserve Bank, the DTC,
or other clearing corporation.
With respect to any Pledged Collateral held in an account maintained
by the Agent as financial intermediary, the Pledgor hereby gives notice to the
Agent of the Agent's security interest in such Pledged Collateral. In addition,
the Pledgor agrees that in the event that any Pledged Collateral is held by the
Agent in a fiduciary capacity for or on behalf of the Pledgor as the beneficial
owner thereof, any agreements executed by the Pledgor in connection therewith
are hereby amended to authorize and direct the pledge, hypothecation and/or
transfer of such Pledged Collateral to the Agent as secured party by the Agent
as fiduciary in accordance with the terms, covenants and conditions of this
Agreement. The rights granted to the Agent pursuant to this Agreement are in
addition to the rights granted to the Agent pursuant to any such agreements. In
case of conflict between the provisions of this Agreement and those of any other
such agreement, the provisions hereof shall prevail.
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To the extent required to effect a pledge to the Agent, the Agent as
fiduciary hereby pledges, transfers and grants a security interest in the
Pledged Collateral to the Agent as secured party.
Section 1.04. AMENDMENTS TO SCHEDULE I. The Pledgor hereby authorizes the
Agent to update and amend SCHEDULE I hereto to reflect the delivery of Pledged
Collateral hereunder; PROVIDED, HOWEVER, that no error or omission by the Agent
in connection with such amendment shall in any way limit or impair the
effectiveness or priority of the Agent's security interest in any Pledged
Collateral.
Section 1.05. CONTINUING AGREEMENT. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall remain in full
force and effect until payment in full of the Obligations. Upon the payment in
full of the Obligations, the Pledgor shall be entitled to the return, upon its
request and at its expense, of such of the Pledged Collateral as shall not have
been sold or otherwise applied pursuant to the terms hereof.
Section 1.06. NEXTEL REGISTRATION RIGHTS. The Agent shall be the sole
contact party, vis--vis Nextel, to receive and give notices for, and to act on
behalf of and bind, all the Banks for purposes of any exercise of any
registration rights under that certain Registration Rights Agreement dated as of
July 28, 1995 between Nextel and the Pledgor as it may be amended from time to
time.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES
The Pledgor hereby represents and warrants as follows:
Section 2.01. ISSUANCE, ETC. The Pledged Shares have been duly authorized
and validly issued and are fully paid and non-assessable.
Section 2.02. OWNERSHIP AND LIENS. The Pledgor is the legal and
beneficial owner of the Pledged Collateral free and clear of any Lien or
Transfer Restriction, except for (i) the security interest created by this
Agreement, (ii) any limitations under the Nextel Collateral Agreement and (iii)
the restrictions disclosed on Schedule I hereto.
Section 2.03. PERFECTION. The pledge of the Pledged Collateral pursuant
to this Agreement creates, or upon the pledge thereof will create, a valid and
perfected first priority security interest in the Pledged Collateral, securing
the payment of the Obligations. No financing statement covering any of the
Pledged Collateral or any proceeds thereof is on file in any public office in
any jurisdiction, other than financing statements in favor of the Agent. At the
request of the Agent, the Pledgor will execute and deliver to the Agent one or
more financing statements in form and substance satisfactory to the Agent and
will pay the cost of filing the same in all public offices where filing is
deemed by the Agent to be necessary or desirable. The Pledgor
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authorizes the Agent to prepare and file financing statements without the
signature of the Pledgor where permitted by law and, if the Pledgor's signature
shall be required, the Pledgor irrevocably appoints the Agent as the Pledgor's
agent for the purpose of signing and filing such financing statements. The
Pledgor promises to pay to the Agent all fees and expenses incurred in filing
financing statements and any continuation statements or amendments thereto,
which fees and expenses shall become a part of the Obligations. A carbon,
photographic or other reproduction of this Agreement or any financing statement
covering the Pledged Collateral or any part thereof shall be sufficient as a
financing statement, and may be filed by the Agent in accordance with the
provisions of this Section 2.03.
Section 2.04. NO AUTHORIZATION REQUIRED. No authorization, approval, or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required either (a) for the pledge by the Pledgor of the
Pledged Collateral pursuant to this Agreement or for the execution, delivery or
performance of this Agreement by the Pledgor or (b) for the exercise by the
Agent of the voting or other rights provided for in this Agreement or the
remedies in respect of the Pledged Collateral pursuant to this Agreement except,
in the case of any Nextel Stock issued on or after July 28, 1997 or in the event
that the Agent is deemed to be an "affiliate" of Nextel within the meaning of
Rule 144 at the time of foreclosure because of reasons other than its holding of
Collateral under this Agreement or the other Pledge Agreements, as may be
required by the restrictions of Rule 144.
Section 2.05. PERCENTAGES. The Class A Preferred Stock constituting part
of the Pledged Shares constitutes all of the issued and outstanding shares of
Class A Preferred Stock.
ARTICLE 3.
COVENANTS
Section 3.01. FURTHER ASSURANCES. The Pledgor agrees that at any time and
from time to time, at the expense of the Pledgor, the Pledgor will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Agent may request, in
order to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Agent to exercise and enforce its rights and
remedies hereunder with respect to any Pledged Collateral.
Section 3.02. TRANSFERS AND OTHER LIENS. The Pledgor agrees that it will
not (i) sell or otherwise dispose of, or grant any option with respect to, any
of the Pledged Collateral except in compliance with Section 7.06 of the Credit
Agreement, or (ii) create or permit to exist any Lien upon or with respect to
any of the Pledged Collateral, except for the security interest under this
Agreement.
5.
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Section 3.03. ACTIONS UNDER SECURITIES LAWS. The Pledgor agrees that it
will not take any action (or fail to take any action within the Pledgor's
commercially reasonable power to take) if the result of such action or failure
to act is to create or otherwise cause any restriction under any State or
federal securities laws on the ability of the Agent (or any designee, assignee
or transferee of the Agent) to sell or otherwise transfer any of the Pledged
Collateral upon or after a foreclosure or a transfer in lieu of foreclosure in
respect of any of the Pledged Collateral, where such restriction did not exist
before the action or inaction of the Pledgor.
Section 3.04. CONVERSION OF NEXTEL STOCK. If any of the Pledged
Collateral consists of any convertible Nextel Stock and if Nextel issues a
notice of redemption with respect to such Nextel Stock, the Pledgor shall
exercise any rights that it has to convert such Nextel Stock into Nextel Common
Stock by no later than the fifteenth day prior to the last day permitted for
such conversion before the noticed redemption (or if later, on the third day
after receipt by the Pledgor of notice of such redemption) if the aggregate
Current Market Value of the Nextel Common Stock into which such Nextel Stock may
be converted exceeds the amount which the Pledgor would be entitled to receive
upon redemption of such Nextel Stock. In addition, if any of the Pledged
Collateral consists of any convertible Nextel Stock and if a Default or an Event
of Default shall have occurred and be continuing, then upon the written request
of the Agent the Pledgor shall promptly convert such Nextel Stock into Nextel
Common Stock. If the Pledgor fails to convert such shares of Nextel Stock as
required by the preceding sentences, the Agent shall have full authority,
pursuant to Sections 4.01 and 4.02, to cause the conversion of such Nextel Stock
into Nextel Common Stock.
ARTICLE 4.
THE AGENT
Section 4.01. AGENT APPOINTED ATTORNEY-IN-FACT. The Pledgor hereby
irrevocably appoints the Agent the Pledgor's attorney-in-fact, with full
authority in the place and stead of the Pledgor and in the name of the Pledgor
or otherwise, from time to time in the Agent's discretion to take any action and
to execute any instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation (but
subject to Section 5.01(a)), to receive, indorse and collect all instruments
made payable to the Pledgor representing any dividend, interest payment or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same.
Section 4.02. AGENT MAY PERFORM. If the Pledgor fails to perform any
agreement contained herein, the Agent may itself perform, or cause performance
of, such agreement, and the expenses of the Agent incurred in connection
therewith shall be payable by the Pledgor under Section 6.02.
Section 4.03. REASONABLE CARE. The Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged
Collateral in its
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possession if the Pledged Collateral is accorded treatment substantially equal
to that which it accords its own property, it being understood that neither the
Agent nor any Bank shall have responsibility for (a) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Pledged Collateral, whether or not the Agent or
any Bank has or is deemed to have knowledge of such matters, or (b) taking any
necessary steps to preserve rights against any parties with respect to any
Pledged Collateral.
ARTICLE 5.
DEFAULT
Section 5.01. VOTING RIGHTS; DIVIDENDS; ETC.
(a) Except as set forth in Section 5.01(c), so long as no Default or
Event of Default shall have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged Collateral or
any part thereof for any purpose not inconsistent with the terms of this
Agreement or the Credit Agreement; provided, however, that the Pledgor
shall not exercise or refrain from exercising any such right if, in the
Agent's judgment, such action would have a material adverse effect on the
value of the Pledged Collateral or any part thereof, and, provided,
further, that the Pledgor shall give the Agent at least five days' written
notice of the manner in which it intends to exercise, or the reasons for
refraining from exercising, any such right.
(ii) The Pledgor shall be entitled to receive and retain any
and all dividends and interest paid in respect of the Pledged Collateral,
provided, however, that any and all
(A) dividends and interest paid or payable other than in
cash in respect of, and instruments and other property received,
receivable or otherwise distributed in respect of, in conversion of,
or in exchange for, any Pledged Collateral,
(B) dividends and other distributions paid or payable in
cash in respect of any Pledged Collateral in connection with a partial
or total liquidation or dissolution or in connection with a reduction
of capital, capital surplus or paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in
respect of principal of, or in redemption of, or in exchange for, any
Pledged Collateral,
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shall be, and shall be forthwith delivered to the Agent to hold as, Pledged
Collateral and shall, if received by the Pledgor, be received in trust for
the benefit of the Agent, be segregated from the other property or funds of
the Pledgor, and be forthwith delivered to the Agent as Pledged Collateral
in the same form as so received (with any necessary indorsement).
(iii) The Agent shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to exercise the voting and other rights which it is
entitled to exercise pursuant to paragraph (i) above and to receive the
dividends or interest payments which it is authorized to receive and retain
pursuant to paragraph (ii) above.
(iv) The Pledgor shall be entitled to instruct the Agent from
time to time (x) to invest any cash held as part of the Pledged Collateral
in Permitted Investments, (y) in compliance with the Credit Agreement, to
pay or prepay any of the Loans under the Credit Agreement and (z) to sell
any Pledged Collateral for the purpose of applying the proceeds of such
sale as set forth in clauses (x) and (y).
(b) Except as set forth in Section 5.01(c), upon the occurrence and
during the continuance of a Default or Event of Default:
(i) All rights of the Pledgor to exercise the voting and other
consensual rights which it would otherwise be entitled to exercise pursuant
to Section 5.01(a)(i) and to receive the dividends and interest payments
which it would otherwise be authorized to receive and retain pursuant to
Section 5.01(a)(ii) shall cease, and all such rights shall thereupon become
vested in the Agent, who shall thereupon have the sole right to exercise
such voting and other consensual rights and to receive and hold as Pledged
Collateral such dividends and interest payments.
(ii) All dividends and interest payments which are received by
the Pledgor contrary to the provisions of Section 5.01(b)(i) shall be
received in trust for the benefit of the Agent and shall be segregated from
other funds of the Pledgor and shall be forthwith paid over to the Agent as
Pledged Collateral in the same form as so received (with any necessary
indorsement).
(iii) The Agent may invest any cash held as part of the Pledged
Collateral in Permitted Investments as the Agent in its sole discretion
deems appropriate.
(c) Whether or not a Default or Event of Default shall have occurred
and be continuing, the Pledgor shall retain and be entitled to exercise any and
all voting and other consensual rights pertaining to any Nextel Stock which is
part of the Pledged Collateral until such shares of Nextel Stock are sold or
otherwise transferred upon a
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foreclosure or a transfer in lieu of foreclosure, and such rights shall not vest
in the Agent before such time.; provided, however, that the Pledgor shall not
exercise or refrain from exercising any such right if such action would change
the rights, preferences, privileges or restrictions of the Pledged Collateral or
would intentionally have a material adverse affect on the value of the Pledged
Collateral or any part thereof or would be for any purpose inconsistent with the
terms of this Agreement or the Credit Agreement.
Section 5.02. REMEDIES UPON DEFAULT. If any Event of Default shall have
occurred and be continuing:
(a) The Agent may exercise in respect of the Pledged Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party on default under the
Uniform Commercial Code (the "UCC") in effect in the State of New York at that
time, and the Agent may also, without notice except as specified below, sell the
Pledged Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange, broker's board or at any of the Agent's offices
or elsewhere, for cash, on credit or for future delivery, and at such price or
prices and upon such other terms as the Agent may deem commercially reasonable.
The Pledgor agrees that, to the extent notice of sale shall be required by law,
at least 10 days' notice to the Pledgor of the time and place of any public sale
or the time after which any private sale is to be made shall constitute
reasonable notification. The Agent shall not be obligated to make any sale of
Pledged Collateral regardless of notice of sale having been given. The Agent may
adjourn any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
(b) Any cash held by the Agent as Pledged Collateral and all cash
proceeds received by the Agent in respect of any sale or collection from or
other realization upon all or any part of the Pledged Collateral may, in the
discretion of the Agent, be held by the Agent as collateral for, and/or then or
at any time thereafter applied (after payment of any amounts payable to the
Agent pursuant to Section 6.02) in whole or in part by the Agent for the ratable
benefit of the Banks against, all or any part of the Obligations in such order
as the Agent shall elect. Any surplus of such cash or cash proceeds held by the
Agent and remaining after payment in full of all the Obligations shall be paid
over to the Pledgor or to whosoever may be lawfully entitled to receive such
surplus.
Section 5.03. REGISTRATION RIGHTS. If the Agent shall determine to
exercise its right to sell all or any of the Pledged Collateral pursuant to
Section 5.02, the Pledgor agrees that, upon request of the Agent, the Pledgor
will, at its own expense:
(a) execute and deliver, and cause each issuer of the Pledged
Collateral contemplated to be sold and the directors and officers thereof to
execute and deliver, all such instruments and documents, and to do or cause to
be done all such other acts and things, as may be necessary or, in the opinion
of the Agent, advisable to register such
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Pledged Collateral under the provisions of the Securities Act of 1933, as from
time to time amended (the "Securities Act"), and to cause the registration
statement relating thereto to become effective and to remain effective for such
period as prospectuses are required by law to be furnished, and to make all
amendments and supplements thereto and to the related prospectus which, in the
opinion of the Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission applicable thereto;
(b) use its best efforts to qualify the Pledged Collateral under the
state securities or "Blue Sky" laws and to obtain all necessary governmental
approvals for the sale of the Pledged Collateral, as requested by the Agent;
(c) cause each such issuer to make available to its security holders,
as soon as practicable, an earning statement which will satisfy the provisions
of Section 11(a) of the Securities Act; and
(d) do or cause to be done all such other acts and things as may be
necessary to make such sale of the Pledged Collateral or any part thereof valid
and binding and in compliance with applicable law.
Section 5.04. CERTAIN REGULATORY REQUIREMENTS. Pledgor has disclosed to
the Agent that any sale of Nextel Stock constituting Pledged Collateral may be
subject to applicable requirements (if any) of the FCC Provisions, as well as
any other federal, state or local laws, rules and regulations of other
regulatory or governmental bodies applicable to or having jurisdiction over the
Pledgor, any Third Party Pledgor or the issuer of such item of Pledged
Collateral, as the case may be (the "Relevant Party") (or any entity under the
control of the Relevant Party). Pledgor agrees that upon request from time to
time by the Agent after the occurrence and during the continuance of an Event of
Default, it will use its best efforts to obtain any governmental, regulatory or
third party consents, approvals or authorizations required by applicable law.
ARTICLE 6.
MISCELLANEOUS
Section 6.01. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement nor consent to any departure by the Pledgor herefrom shall in any
event be effective unless the same shall be in writing and signed by the Agent,
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
Section 6.02. EXPENSES. The Pledgor will upon demand pay to the Agent the
amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, which the Agent may incur
in connection with (a) the administration of this Agreement, (b) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Pledged Collateral, (c) the
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exercise or enforcement of any of the rights of the Agent or the Banks hereunder
or (d) the failure by the Pledgor to perform or observe any of the provisions
hereof.
Section 6.03. NOTICES. Unless the party to be notified otherwise notifies
the other party in writing, notices shall be given by ordinary mail or telex,
addressed to such party at its address on the signature page of the Credit
Agreement.
Section 6.04. TRANSFER OF FACILITY DOCUMENTS. This Agreement shall (a) be
binding upon the Pledgor, its successors and assigns, and (b) inure, together
with the rights and remedies of the Agent hereunder, to the benefit of the
Agent, the Banks and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (b), any Bank may assign
or otherwise transfer the Facility Documents, or grant participations therein to
any other person or entity, and such other person or entity shall thereupon
become vested with all the benefits in respect thereof granted to such Bank
herein or otherwise, subject, however, to the provisions of Article 9
(concerning the Agent) and Section 10.05 of the Credit Agreement.
Section 6.05. GOVERNING LAW; TERMS. This Agreement shall be governed by
and the construed in accordance with the laws of the State of New York, except
as required by mandatory provisions of law and except to the extent that the
validity or perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular Pledged Collateral are governed by the
laws of a jurisdiction other than the State of New York. Unless otherwise
defined herein or in the Credit Agreement, terms defined in Article 9 of the
Uniform Commercial Code in the State of New York are used herein as therein
defined.
Section 6.06. RELATIONSHIP TO CUSTODY AGREEMENT. In the event that the
Pledgor has entered into, or in the future enters into, a custody agreement with
the Agent with respect to any securities which constitute a part of the Pledged
Collateral, any such Pledged Collateral held in the custody agreement shall be
held subject to the terms of this Pledge Agreement. In the event of any
conflict between the terms of such a custody agreement and this Pledge
Agreement, the terms of this Pledge Agreement shall govern.
Section 6.07. NEXTEL PREFERRED STOCK. By acceptance of the pledge under
this Agreement, the Agent agrees to give a written notice to the chairman,
president and secretary of Nextel not less than five business days before the
Agent takes any action to sell or otherwise realize on any shares of the Class A
Preferred Stock or the Class C Preferred Stock issued by Nextel and held as
Pledged Collateral. Such notice shall be effective when received by the
designated officers of Nextel. Also by acceptance of this Agreement, the Agent
agrees as follows (terms not defined in the Credit Agreement having the meanings
ascribed thereto in the Certificate of Amendment if defined therein): (i) to
sell (whether on behalf of the Pledgor or otherwise) to a Person designated by
Nextel, upon the request of Nextel, all (but not less than all) of any shares of
the Class C Preferred Stock held by it that Nextel is entitled to call for
redemption pursuant to the provisions in the Certificate of Amendment contained
in Section 6.1 under the heading Class C Convertible Redeemable Preferred Stock
for a cash purchase
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price equal to the Class C Redemption Price, provided that such sale shall not
occur earlier than the date of the Change of Control relating to Nextel's right
to call the Class C Preferred Stock for redemption and until such purchase the
Agent (whether on behalf of the Pledgor or otherwise) shall be entitled to
convert any such shares of Class C Preferred Stock into shares of Voting Common
(which conversion may be conditioned upon the consummation of such Change of
Control) and (ii) to transfer any shares of Class A Preferred Stock or Class C
Preferred Stock, or any interest therein, only to a Person that has agreed, by
written agreement in form and substance reasonably satisfactory to Nextel, (A)
to comply with (i) above with respect to any interest in any shares of Class A
Preferred Stock or Class C Preferred Stock held by such transferee and (B) not
to transfer any interest in Shares of Class A Preferred Stock or Class C
Preferred Stock unless the transferee agrees, by written agreement in form and
substance reasonably satisfactory to Nextel, to comply with the terms of this
clause (ii) with respect to any interest in any shares of Class A Preferred
Stock or Class C Preferred Stock held by such transferee. The Pledgor consents
to any disposition of the Class A Preferred Stock or the Class C Preferred Stock
pursuant to the provisions of this Section 6.07.
*****
[Remainder of this page left intentionally blank]
12.
<PAGE>
IN WITNESS WHEREOF, the Pledgor and the Agent have caused this Agreement to
be duly executed and delivered by an officer thereunto duly authorized as of the
date first above written.
DIGITAL RADIO, L.L.C.
By
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, as Agent for
the Banks party to the Credit Agreement
By
------------------------------
Name:
Title:
13.
<PAGE>
SCHEDULE to PLEDGE AGREEMENT
<TABLE>
<CAPTION>
Stock
Certificate Number of
Stock Issuer Class of Stock No(s). Shares
- ------------------------------- ---------------------------- ----------- ---------
<S> <C> <C> <C>
A. Nextel Communications, Inc. Common 5,220,000
B. Nextel Communications, Inc. Class A Preferred
(and, without limiting
Section 1.01, shares of
Common or Class C Preferred
into which the Class A
Preferred may be converted) 8,163,265
C. Nextel Communications, Inc. Common 15,000,000
</TABLE>
Restrictions on Transfer (see Section 2.02):
a. With respect to the Common Stock described in Item A above, those
restrictions on transfer of paragraphs (c), (e), (f), (g) and (h) of
Rule 144
b. With respect to the Class A Preferred Stock and the Class C Preferred
Stock:
1. Those restrictions on transfer contained in Sections 8.1 and 8.2 of
the provisions of the Certificate of Incorporation of Nextel
pertaining to the Class A Preferred Stock
2. Those restrictions on transfer contained in Sections 8.3(f) of the
Nextel Purchase Agreement (which are not applicable to the Agent as
pledgee)
3. Those restrictions on transfer contained in paragraphs (c), (e), (f),
(g) and (h) of Rule 144
c. With respect to the Common Stock described in Item C above, those
restrictions on transfer of paragraphs (c), (d), (e), (f), (g) and (h) of
Rule 144
14.
<PAGE>
EXHIBIT C-2
AMENDED AND RESTATED THIRD PARTY PLEDGE AGREEMENT
AMENDED AND RESTATED THIRD PARTY PLEDGE AGREEMENT dated as of July __,
1997, made by _________________________ (the "Pledgor"), in favor of THE CHASE
MANHATTAN BANK, a state chartered banking institution organized under the laws
of the State of New York, as agent (the "Agent") for the Banks party to the
Credit Agreement referred to below.
PRELIMINARY STATEMENTS:
The Pledgor is the owner of the shares (the "Pledged Shares") of stock
described in Part 1 of the Schedule hereto and issued by the corporations named
therein.
The Banks and the Agent have entered into a Multibank Credit Agreement
dated as of July 28, 1995 (said Multibank Credit Agreement, as it has been
amended and restated pursuant to an Amended and Restated Multibank Credit
Agreement dated as of even date herewith (the "Restated Credit Agreement") and
as it may hereafter be amended, restated or otherwise modified from time to
time, being the "Credit Agreement," the terms defined therein and not otherwise
defined herein being used herein as therein defined) with Digital Radio, L.L.C.,
a limited liability company organized under the laws of the State of Washington
(the "Borrower").
The Pledgor has previously delivered to the Agent under the Credit
Agreement a Third Party Pledge Agreement dated as of July 28, 1995 (the
"Original Pledge Agreement") in connection with the original loans made under
the Credit Agreement.
It is a condition precedent to the making of New Loans by the Banks under
the Credit Agreement that the Pledgor shall have made the pledge contemplated by
this Agreement and that the Original Pledge Agreement be amended and restated as
set forth herein.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Banks to make the New Loans under the Credit Agreement, the Pledgor hereby
agrees that the Original Pledge Agreement be amended and restated, effective as
of the Effective Date under the Restated Credit Agreement, to read in full as
follows (with any pledge of Pledged Collateral under the Original Pledge
Agreement, as amended prior to the date hereof, being continued hereunder):
1.
<PAGE>
ARTICLE 1.
THE PLEDGE
Section 1.01. PLEDGE. The Pledgor hereby pledges to the Agent for the
ratable benefit of the Banks, and grants to the Agent for the ratable benefit of
the Banks a security interest in, the following (the "Pledged Collateral"):
(a) the Pledged Shares and the certificates representing the
Pledged Shares, and all dividends, cash, instruments, investment property, and
other property from time to time received, receivable or otherwise distributed
in respect of, in conversion of or in exchange for any or all of the Pledged
Shares;
(b) all additional shares of stock of any issuer of the Pledged
Shares or of any other issuer from time to time acquired by the Pledgor in any
manner and hereafter transferred and pledged to the Agent pursuant to this
Agreement, and the certificates representing such additional shares, and all
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such shares;
(c) such cash, bank accounts, certificates of deposit,
investment property, and instruments as may be pledged from time to time by the
Pledgor hereunder, together with any investments in which any such cash may be
invested from time to time;
(d) all rights to convert, redeem or exchange the Pledged
Collateral, all rights to request or cause the issuer thereof to register any or
all of the Pledged Collateral under federal and state securities laws to the
maximum extent possible under any agreement for such registration rights, and
all put rights, tag-along rights or other rights pertaining to the sale or other
transfer of such Pledged Collateral, together in each case with all rights under
any agreements, articles or certificates of incorporation or otherwise
pertaining to such rights; and
(e) all proceeds, products, renewals and substitutions of, and
general intangibles related to, any and all of the foregoing Pledged Collateral
(including the proceeds of any tort or other claims relating to any of the
foregoing Pledged Collateral) and, to the extent not otherwise included, all
payments under insurance or in connection with any indemnity, warranty or
guarantee payable by reason of loss or damage to or otherwise with respect to
any of the foregoing Pledged Collateral.
The inclusion of proceeds in this Agreement does not authorize the
Pledgor to sell, dispose of or otherwise use the Collateral in any manner not
specifically authorized hereby.
Section 1.02. SECURITY FOR OBLIGATIONS. This Agreement secures the
payment of all obligations of the Borrower now or hereafter existing under the
Facility Documents whether for principal, interest, fees, expenses or otherwise
and the obligations of the
2.
<PAGE>
Pledgor under this Agreement and under any Recourse Guaranty given by the
Pledgor (all such obligations being the "Obligations").
Section 1.03. DELIVERY OF PLEDGED COLLATERAL. For the better perfection
of the Agent's rights in and to the Pledged Collateral, the Pledgor shall
forthwith, upon the pledge of any Pledged Collateral hereunder, cause such
Pledged Collateral (other than any Class A Preferred Stock) to be registered in
the name of such nominee or nominees of the Agent as the Agent shall direct,
subject only to the revocable rights specified in Section 5.01(a). The Agent is
hereby authorized: (i) to transfer to the account of the Agent any Pledged
Collateral whether in the possession of, or registered in the name of, The
Depository Trust Company (the "DTC") or other clearing corporation or held
otherwise; (ii) to transfer to the account of the Agent with any Federal Reserve
Bank any Pledged Collateral held in book entry form with any such Federal
Reserve Bank; and (iii) to exchange certificates representing or evidencing
Pledged Collateral for certificates of smaller or larger denominations. To the
extent that the Pledged Collateral has not already been transferred to the Agent
in a manner sufficient to perfect the Agent's security interest therein, the
Pledgor shall promptly deliver or cause to be delivered to the Agent all
certificates or instruments evidencing the Pledged Collateral, together with
duly executed stock powers or other appropriate endorsements.
With respect to any Pledged Collateral in the possession of or
registered in the name of a custodian bank or nominee therefor, the Pledgor
agrees to cause such custodian bank or nominee either to enter into an agreement
with the Agent satisfactory to the Agent in form and content confirming that the
Pledged Collateral is held for the account of the Agent, or at the discretion of
the Agent and subject to the written instructions of the Agent, deliver any such
Pledged Collateral to the Agent and/or cause any such Pledged Collateral to be
put in bearer form, registered in the name of the Agent or its nominee, or
transferred to the account of the Agent with any Federal Reserve Bank, the DTC,
or other clearing corporation.
With respect to any Pledged Collateral held in an account
maintained by the Agent as financial intermediary, the Pledgor hereby gives
notice to the Agent of the Agent's security interest in such Pledged
Collateral. In addition, the Pledgor agrees that in the event that any
Pledged Collateral is held by the Agent in a fiduciary capacity for or on
behalf of the Pledgor as the beneficial owner thereof, any agreements
executed by the Pledgor in connection therewith are hereby amended to
authorize and direct the pledge, hypothecation and/or transfer of such
Pledged Collateral to the Agent as secured party by the Agent as fiduciary in
accordance with the terms, covenants and conditions of this Agreement. The
rights granted to the Agent pursuant to this Agreement are in addition to the
rights granted to the Agent pursuant to any such agreements. In case of
conflict between the provisions of this Agreement and those of any other such
agreement, the provisions hereof shall prevail.
To the extent required to effect a pledge to the Agent, the Agent
as fiduciary hereby pledges, transfers and grants a security interest in the
Pledged Collateral to the Agent as secured party.
3.
<PAGE>
Section 1.04. OBLIGATION TO MAINTAIN PLEDGED COLLATERAL AT MINIMUM
LEVELS; MARK-TO-MARKET.
(a) MARK-TO-MARKET. The Pledgor acknowledges that the Credit
Agreement contains provisions requiring the Borrower to deliver, or to cause
others (including the Pledgor) to deliver, additional Collateral to the Agent
under certain circumstances and that the failure to deliver such additional
Collateral may constitute an Event of Default which would enable the Agent to
exercise its remedies against the Pledged Collateral hereunder. The Pledgor
further acknowledges that, pursuant to the provisions of Section 1.06 below, the
mark-to-market provisions in the Credit Agreement may be amended, modified or
waived without notice to, or the consent of, the Pledgor.
(b) The Pledgor hereby authorizes the Agent to update and amend
the Schedule hereto to reflect the delivery of Pledged Collateral hereunder;
PROVIDED, HOWEVER, that no error or omission by the Agent in connection with
such amendment shall in any way limit or impair the effectiveness or priority of
the Agent's security interest in any Pledged Collateral.
Section 1.05. CONTINUING AGREEMENT. This Agreement shall create a
continuing security interest in the Pledged Collateral and shall remain in full
force and effect until payment in full of the Obligations. Upon the payment in
full of the Obligations, the Pledgor shall be entitled to the return, upon its
request and at its expense, of such of the Pledged Collateral as shall not have
been sold or otherwise applied pursuant to the terms hereof.
Section 1.06. SECURITY INTEREST ABSOLUTE. All rights of the Agent and
security interests hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional irrespective of any defenses whatsoever
available to the Borrower or the Pledgor or any other Third Party Pledgor.
(a) The Pledgor hereby unconditionally consents and agrees
that, without notice to or further assent from the Pledgor:
(i) the principal amount of the Obligations may be
increased or decreased and additional indebtedness or obligations of the
Borrower under the Facility Documents may be incurred, by one or more
amendments, modifications, renewals or extensions of any Facility Document or
otherwise;
(ii) the time, manner, place or terms of any payment
under any Facility Document may be extended or changed, including by an increase
or decrease in the interest rate on any Obligation or any fee or other amount
payable under any Facility Document, by an amendment, modification or renewal of
any Facility Document or otherwise;
(iii) the time for Borrower's or any other Third Party
Pledgor's performance of or compliance with any term, covenant or agreement on
its part to be
4.
<PAGE>
performed or observed under any Facility Document may be extended, or such
performance or compliance waived, or failure in or departure from such
performance or compliance consented to, all in such manner and upon such
terms as the Agent or the Banks may deem proper;
(iv) the Agent or the Banks may discharge or release, in
whole or in part, the Borrower or any other Third Party Pledgor liable for the
payment and performance of all or any part of the Obligations, and may permit or
consent to any such action or any result of such action, and shall not be
obligated to demand or enforce payment upon any security for the Obligations,
nor shall the Agent or any Bank be liable to the Pledgor for any failure to
collect or enforce payment or performance of the Obligations from any person
(including the Borrower or any other Third Party Pledgor) or to realize on any
security therefor;
(v) in addition to the Collateral, the Agent and the
Banks may take and hold other security (legal or equitable) of any kind, at any
time, as collateral for the Obligations, and may, from time to time, in whole or
in part, exchange, sell, surrender, release, subordinate, modify, waive,
rescind, compromise or extend such security and may permit or consent to any
such action or the result of any such action, and may apply such security and
direct the order or manner of sale thereof;
(vi) the Agent and the Banks may request and accept
guaranties of the Obligations and any other indebtedness, obligations or
liabilities of the Borrower or any Third Party Pledgor to the Agent or any Bank
and may, from time to time, in whole or in part, surrender, release,
subordinate, modify, waive, rescind, compromise or extend any such guaranty and
may permit or consent to any such action or the result of any such action; and
(vii) the Agent and the Banks may exercise, or waive or
otherwise refrain from exercising, any other right, remedy, power or privilege
granted by any Facility Document or other security document or agreement, or
otherwise available to the Agent and the Banks, with respect to the Obligations,
any security for any or all of the Obligations, even if the exercise of such
right, remedy, power or privilege affects or eliminates any right of subrogation
or any other right of the Pledgor against the Borrower or any other Third Party
Pledgor;
all as the Agent and the Banks may deem advisable, and all without impairing,
abridging, releasing or affecting the Pledgor's obligations under this Agreement
or the other Facility Documents.
(b) The Pledgor waives and agrees not to assert:
(i) any right to require the Agent or any Bank to
marshal assets in favor of the Pledgor, the Borrower, any other Third Party
Pledgor, any other guarantor or any other person; to proceed against the
Borrower, any other Third Party Pledgor, any guarantor or any other person; to
proceed against or exhaust any of the
5.
<PAGE>
security held for the Obligations; except as may be required by applicable
law, to give notice of the terms, time and place of any public or private
sale of personal property security constituting any collateral for the
Obligations or comply with any other provisions of Section 9-504 of the
Uniform Commercial Code as adopted in New York or in any other relevant
jurisdiction (or any equivalent provision of any other applicable law); or to
pursue any other right, remedy, power or privilege of the Agent or any Bank
whatsoever;
(ii) the defense of the statute of limitations in any
action hereunder or for the collection or performance of the Obligations;
(iii) any defense arising by reason of any lack of
corporate or other authority or any other defense of the Borrower or any other
Third Party Pledgor, any guarantor or any other person;
(iv) any defense based upon the Agent's or any Bank's
errors or omissions in the administration of the Obligations;
(v) any rights to set-offs and counterclaims;
(vi) all rights and defenses arising out of an election
of remedies by the Agent or any Bank, even though that election of remedies,
such as a nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed the Pledgor's rights of subrogation and reimbursement
against the Borrower or any other Third Party Pledgor by the operation of law or
otherwise; and
(vii) without limiting the generality of the foregoing, to
the fullest extent permitted by law, any defenses or benefits that may be
derived from or afforded by applicable law limiting the liability of or
exonerating guarantors or sureties, or which may conflict with the terms of this
Section 1.06.
(c) The Pledgor shall have no right to require the Agent or any
Bank to obtain or disclose any information with respect to: (i) the financial
condition or character of the Borrower or any other Third Party Pledgor or the
ability of the Borrower or any other Third Party Pledgor to pay and perform the
Obligations; (ii) the security for any or all of the Obligations; (iii) the
existence or nonexistence of any guarantees of all or any part of the
Obligations; (iv) any action or inaction on the part of the Agent or Banks or
any other person; or (v) any other matter, fact or occurrence whatsoever.
(d) Unless at the time no additional collateral of any kind has
been pledged, transferred or granted to the Agent or any of the Banks by any
Person after the Drawdown Date to secure the Obligations, the Pledgor shall not
have, nor shall it directly or indirectly exercise, and the Pledgor hereby
waives (i) any rights that it may acquire by way of subrogation under this
Agreement, by any payment hereunder or otherwise, (ii) any rights of
contribution, indemnification, reimbursement or similar
6.
<PAGE>
suretyship claims arising out of this Agreement or the other Facility
Documents or (iii) any other right which it might otherwise have or acquire
(in any way whatsoever) which could entitle it at any time to share or
participate in any right, remedy or security of the Banks or the Agent as
against any other Third Party Pledgor or any guarantor, whether in connection
with this Agreement, any of the other Facility Documents or otherwise. If
any amount shall be paid to the Pledgor on account of the foregoing rights at
any time, such amount shall be held in trust for the benefit of the Agent and
the Banks and shall forthwith be paid to the Agent to be credited and applied
to the Obligations, whether matured or unmatured, in accordance with the
terms of the Facility Documents.
(e) The Pledgor agrees that each of the waivers set forth above
is made with the Pledgor's full knowledge of their significance and
consequences, and the Pledgor agrees that, under the circumstances, the waivers
are reasonable and not contrary to public policy or law. If any of said waivers
are determined to be contrary to any applicable law or public policy, such
waivers shall be effective only to the extent permitted by law.
Section 1.07. NON-RECOURSE OBLIGATIONS. Except as may be otherwise
specifically provided in any separate agreement executed by the Pledgor, the
liability of the Pledgor hereunder with respect to Obligations of the Borrower
shall be limited to the Pledged Collateral, the Agent's and the Banks' recourse
against the Pledgor and the other Third Party Pledgors with respect to the
Obligations of the Borrower shall be limited to the Collateral available under
this Agreement and the other Pledge Agreements and the Pledgor shall have no
personal liability with respect to the Obligations of the Borrower. The Pledgor
shall have no personal liability for his Obligations under this Agreement except
for (A) any damages, costs or other expense suffered by the Agent or the Banks
as a result of the lack of authenticity or genuineness of any of the Pledged
Collateral delivered to the Agent hereunder or the failure of the Pledgor to
deliver the items specified in Sections 5.01(a)(ii) or 5.01(b)(ii) or as a
result of the Pledgor's failure to comply with Section 3.04 or (B) the payment
of expenses under Section 6.02 arising from any litigation in which the Agent is
the prevailing party; provided that the Agent and the Banks shall have recourse
against the Pledged Collateral for any amounts which would be owing to the Agent
or the Banks from the Pledgor absent the operation of the foregoing provisions
of this Section 1.07.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES
The Pledgor hereby represents and warrants as follows:
Section 2.01. PLACE OF RESIDENCE AND NAME. Pledgor is a resident of the
State of Washington. Pledgor has had no name other than the name set forth
below Pledgor's signature below. Pledgor will not change his name or his place
of residence without
7.
<PAGE>
giving at least thirty (30) days' prior written notice to Agent of any such
proposed change.
Section 2.02. ISSUANCE, ETC. The Pledged Shares have been duly
authorized and validly issued and are fully paid and non-assessable.
Section 2.03. OWNERSHIP AND LIENS. The Pledgor is the legal and
beneficial owner of the Pledged Collateral free and clear of any Lien or
Transfer Restriction, except for (i) the security interest created by this
Agreement, (ii) any limitations under the Nextel Collateral Agreement and
(iii) the requirements of Rule 144.
Section 2.04. PERFECTION. The pledge of the Pledged Collateral pursuant
to this Agreement creates, or upon the pledge thereof will create, a valid and
perfected first priority security interest in the Pledged Collateral, securing
the payment of the Obligations. No financing statement covering any of the
Pledged Collateral or any proceeds thereof is on file in any public office in
any jurisdiction, other than financing statements in favor of the Agent. At the
request of the Agent, the Pledgor will execute and deliver to the Agent one or
more financing statements in form and substance satisfactory to the Agent and
will pay the cost of filing the same in all public offices where filing is
deemed by the Agent to be necessary or desirable. The Pledgor authorizes the
Agent to prepare and file financing statements without the signature of the
Pledgor where permitted by law and, if the Pledgor's signature shall be
required, the Pledgor irrevocably appoints the Agent as the Pledgor's agent for
the purpose of signing and filing such financing statements. The Pledgor
promises to pay to the Agent all fees and expenses incurred in filing financing
statements and any continuation statements or amendments thereto, which fees and
expenses shall become a part of the Obligations. A carbon, photographic or
other reproduction of this Agreement or any financing statement covering the
Pledged Collateral or any part thereof shall be sufficient as a financing
statement, and may be filed by the Agent in accordance with the provisions of
this Section 2.04.
Section 2.05. NO AUTHORIZATION REQUIRED. No authorization, approval, or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required either (a) for the pledge by the Pledgor of the
Pledged Collateral pursuant to this Agreement or for the execution, delivery or
performance of this Agreement by the Pledgor or (b) for the exercise by the
Agent of the voting or other rights provided for in this Agreement or the
remedies in respect of the Pledged Collateral pursuant to this Agreement,
except, in the case of any Nextel Stock issued on or after July 28, 1997 or in
the event that the Agent is deemed to be an "affiliate" of Nextel within the
meaning of Rule 144 at the time of foreclosure because of reasons other than its
holding of Collateral under this Agreement or the other Pledge Agreements, as
may be required by the restrictions of Rule 144.
Section 2.06. COMPLIANCE WITH OTHER AGREEMENTS. The Pledgor is not a
party to any indenture, loan, or credit agreement, or to any lease or other
agreement or instrument, which prohibits the Pledgor from entering into this
Agreement or granting a
8.
<PAGE>
security interest in the Pledged Collateral or entering into the transactions
contemplated by this Agreement. The Pledgor is not, and would not by
entering into this Agreement be, in default in any respect in the
performance, observance, or fulfillment of any of the obligations, covenants,
or conditions contained in any agreement or instrument to which the Pledgor
is a party.
ARTICLE 3.
COVENANTS
Section 3.01. FURTHER ASSURANCES. The Pledgor agrees that at any time
and from time to time, at the expense of the Pledgor, the Pledgor will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Agent may request, in
order to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Agent to exercise and enforce its rights and
remedies hereunder with respect to any Pledged Collateral.
Section 3.02. REPORTING REQUIREMENTS. The Pledgor agrees that it will
prepare and deliver to the Agent, upon the request of the Agent from time to
time and in any event not less frequently than once a year on July 31, a
certificate signed by the Pledgor, in form and substance satisfactory to the
Agent, to the effect that the representations set forth in Sections 2.03 and
2.05 remain true as to all of the Pledged Collateral pledged under this
Agreement and that such Collateral continues to be Eligible Collateral.
Section 3.03. TRANSFERS AND OTHER LIENS. The Pledgor agrees that it
will not (i) sell or otherwise dispose of, or grant any option with respect to,
any of the Pledged Collateral except in compliance with Section 7.06 of the
Credit Agreement or any applicable Nextel Transfer Agreement, or (ii) create or
permit to exist any Lien upon or with respect to any of the Pledged Collateral,
except for the security interest under this Agreement.
Section 3.04. ACTIONS UNDER SECURITIES LAWS. The Pledgor agrees that it
will not take any action (or fail to take any action within the Pledgor's
commercially reasonable power to take) if the result of such action or failure
to act is to create or otherwise cause any restriction under any State or
federal securities laws on the ability of the Agent (or any designee, assignee
or transferee of the Agent) to sell or otherwise transfer any of the Pledged
Collateral upon or after a foreclosure or a transfer in lieu of foreclosure in
respect of any of the Pledged Collateral, where such restriction did not exist
before the action or inaction of the Pledgor.
Section 3.05. CONVERSION OF NEXTEL STOCK. If any of the Pledged
Collateral consists of any convertible Nextel Stock and if Nextel issues a
notice of redemption with respect to such Nextel Stock, the Pledgor shall
exercise any rights that it has to convert such Nextel Stock into Nextel Common
Stock by no later than the fifteenth day prior to the last day permitted for
such conversion before the noticed redemption (or if later, on
9.
<PAGE>
the third day after receipt by the Pledgor of notice of such redemption) if
the aggregate Current Market Value of the Nextel Common Stock into which such
Nextel Stock may be converted exceeds the amount which the Pledgor would be
entitled to receive upon redemption of such Nextel Stock. In addition, if
any of the Pledged Collateral consists of any convertible Nextel Stock and if
a Default or an Event of Default shall have occurred and be continuing, then
upon the written request of the Agent the Pledgor shall promptly convert such
Nextel Stock into Nextel Common Stock. If the Pledgor fails to convert such
shares of Nextel Stock as required by the preceding sentences, the Agent
shall have full authority, pursuant to Sections 4.01 and 4.02, to cause the
conversion of such Nextel Stock into Nextel Common Stock.
ARTICLE 4.
THE AGENT
Section 4.01. AGENT APPOINTED ATTORNEY-IN-FACT. The Pledgor hereby
irrevocably appoints the Agent the Pledgor's attorney-in-fact, with full
authority in the place and stead of the Pledgor and in the name of the Pledgor
or otherwise, from time to time in the Agent's discretion to take any action and
to execute any instrument which the Agent may deem necessary or advisable to
accomplish the purposes of this Agreement, including, without limitation (but
subject to Section 5.01(a)), to receive, indorse and collect all instruments
made payable to the Pledgor representing any dividend, interest payment or other
distribution in respect of the Pledged Collateral or any part thereof and to
give full discharge for the same.
Section 4.02. AGENT MAY PERFORM. If the Pledgor fails to perform any
agreement contained herein, the Agent may itself perform, or cause performance
of, such agreement, and the expenses of the Agent incurred in connection
therewith shall be payable by the Pledgor under Section 6.02.
Section 4.03. REASONABLE CARE. The Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if the Pledged Collateral is accorded treatment
substantially equal to that which it accords its own property, it being
understood that neither the Agent nor any Bank shall have responsibility for
(a) ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged Collateral, whether
or not the Agent or any Bank has or is deemed to have knowledge of such matters,
or (b) taking any necessary steps to preserve rights against any parties with
respect to any Pledged Collateral.
10.
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ARTICLE 5.
DEFAULT
Section 5.01. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Default or Event of Default shall have
occurred and be continuing:
(i) The Pledgor shall be entitled to exercise any and
all voting and other consensual rights pertaining to the Pledged
Collateral or any part thereof for any purpose not inconsistent with the
terms of this Agreement or the Credit Agreement; provided, however, that
the Pledgor shall not exercise or refrain from exercising any such right
if, in the Agent's judgment, such action would have a material adverse
effect on the value of the Pledged Collateral or any part thereof, and,
provided, further, that the Pledgor shall give the Agent at least five
days' written notice of the manner in which it intends to exercise, or
the reasons for refraining from exercising, any such right.
(ii) The Pledgor shall be entitled to receive and retain
any and all dividends and interest paid in respect of the Pledged
Collateral, provided, however, that any and all
(A) dividends and interest paid or payable other
than in cash in respect of, and instruments and other property
received, receivable or otherwise distributed in respect of, in
conversion of, or in exchange for, any Pledged Collateral,
(B) dividends and other distributions paid or
payable in cash in respect of any Pledged Collateral in connection
with a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or paid-
in-surplus, and
(C) cash paid, payable or otherwise distributed
in respect of principal of, or in redemption of, or in exchange
for, any Pledged Collateral,
shall be, and shall be forthwith delivered to the Agent to hold as,
Pledged Collateral and shall, if received by the Pledgor, be received in
trust for the benefit of the Agent, be segregated from the other property
or funds of the Pledgor, and be forthwith delivered to the Agent as
Pledged Collateral in the same form as so received (with any necessary
indorsement).
(iii) The Agent shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to exercise the voting and other rights which it is
entitled to exercise pursuant to
11.
<PAGE>
paragraph (i) above and to receive the dividends or interest payments
which it is authorized to receive and retain pursuant to paragraph (ii)
above.
(iv) The Pledgor shall be entitled to instruct the Agent
from time to time (x) to invest any cash held as part of the Pledged
Collateral in Permitted Investments, (y) with the concurrence of the
Borrower and in compliance with the Credit Agreement, to pay or prepay
any of the Loans under the Credit Agreement and (z) to sell any Pledged
Collateral for the purpose of applying the proceeds of such sale as set
forth in clauses (x) and (y).
(b) Upon the occurrence and during the continuance of a Default
or Event of Default:
(i) All rights of the Pledgor to exercise the voting and
other consensual rights which it would otherwise be entitled to exercise
pursuant to Section 5.01(a)(i) and to receive the dividends and interest
payments which it would otherwise be authorized to receive and retain
pursuant to Section 5.01(a)(ii) shall cease, and all such rights shall
thereupon become vested in the Agent who shall thereupon have the sole
right to exercise such voting and other consensual rights and to receive
and hold as Pledged Collateral such dividends and interest payments;
PROVIDED, HOWEVER, that, notwithstanding the occurrence and continuance
of an Event of Default, all rights of the Pledgor in respect of any
capital stock of Nextel Communications, Inc. ("Nextel") constituting
Pledged Collateral hereunder to exercise the voting and other consensual
rights which Pledgor is entitled to exercise pursuant to
Section 5.01(a)(i) shall continue until such shares of capital stock of
Nextel are sold or otherwise transferred upon a foreclosure or a transfer
in lieu of foreclosure, and such rights shall not vest in the Agent
before such time.
(ii) All dividends and interest payments which are
received by the Pledgor contrary to the provisions of Section 5.01(b)(i)
shall be received in trust for the benefit of the Agent and shall be
segregated from other funds of the Pledgor and shall be forthwith paid
over to the Agent as Pledged Collateral in the same form as so received
(with any necessary indorsement).
(iii) The Agent may invest any cash held as part of the
Pledged Collateral in Permitted Investments as the Agent in its sole
discretion deems appropriate.
Section 5.02. REMEDIES UPON DEFAULT. If any Event of Default shall have
occurred and be continuing:
(a) The Agent may exercise in respect of the Pledged
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party on
default under the Uniform Commercial Code (the "UCC") in effect in the State of
New York at that time, and the Agent may
12.
<PAGE>
also, without notice except as specified below, sell the Pledged Collateral
or any part thereof in one or more parcels at public or private sale, at any
exchange, broker's board or at any of the Agent's offices or elsewhere, for
cash, on credit or for future delivery, and at such price or prices and upon
such other terms as the Agent may deem commercially reasonable. The Pledgor
agrees that, to the extent notice of sale shall be required by law, at least
10 days' notice to the Pledgor of the time and place of any public sale or
the time after which any private sale is to be made shall constitute
reasonable notification. The Agent shall not be obligated to make any sale
of Pledged Collateral regardless of notice of sale having been given. The
Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
(b) Any cash held by the Agent as Pledged Collateral and all
cash proceeds received by the Agent in respect of any sale or collection from or
other realization upon all or any part of the Pledged Collateral may, in the
discretion of the Agent, be held by the Agent as collateral for, and/or then or
at any time thereafter applied (after payment of any amounts payable to the
Agent pursuant to Section 6.02) in whole or in part by the Agent for the ratable
benefit of the Banks against, all or any part of the Obligations in such order
as the Agent shall elect. Any surplus of such cash or cash proceeds held by the
Agent and remaining after payment in full of all the Obligations shall be paid
over to the Pledgor or to whosoever may be lawfully entitled to receive such
surplus.
Section 5.03. CERTAIN REGULATORY REQUIREMENTS. Pledgor has disclosed to
the Agent that any sale of Nextel Stock constituting Pledged Collateral may be
subject to applicable requirements (if any) of the FCC Provisions, as well as
any other federal, state or local laws, rules and regulations of other
regulatory or governmental bodies applicable to or having jurisdiction over the
Borrower, any Third Party Pledgor or the issuer of such item of Pledged
Collateral, as the case may be (the "Relevant Party") (or any entity under the
control of the Relevant Party). Pledgor agrees that upon request from time to
time by the Agent after the occurrence and during the continuance of an Event of
Default, it will use its best efforts to obtain any governmental, regulatory or
third party consents, approvals or authorizations required by applicable law.
ARTICLE 6.
MISCELLANEOUS
Section 6.01. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement nor consent to any departure by the Pledgor herefrom shall in
any event be effective unless the same shall be in writing and signed by the
Agent, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
13.
<PAGE>
Section 6.02. EXPENSES. The Pledgor will upon demand pay to the Agent
the amount of any and all reasonable expenses, including the reasonable fees and
expenses of its counsel and of any experts and agents, which the Agent may incur
in connection with (a) the administration of this Agreement, (b) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Pledged Collateral, (c) the exercise or enforcement of any of the rights
of the Agent or the Banks hereunder or (d) the failure by the Pledgor to perform
or observe any of the provisions hereof.
Section 6.03. NOTICES. Unless the party to be notified otherwise
notifies the other party in writing, notices shall be given by ordinary mail or
telex, addressed to (a) the Agent at its address on the signature page of the
Credit Agreement or (b) to the Pledgor at its address set forth below its
signature below.
Section 6.04. TRANSFER OF FACILITY DOCUMENTS. This Agreement shall
(a) be binding upon the Pledgor, its successors and assigns, and (b) inure,
together with the rights and remedies of the Agent hereunder, to the benefit of
the Agent, the Banks and their respective successors, transferees and assigns.
Without limiting the generality of the foregoing clause (b), any Bank may assign
or otherwise transfer the Facility Documents, or grant participations therein to
any other person or entity, and such other person or entity shall thereupon
become vested with all the benefits in respect thereof granted to such Bank
herein or otherwise, subject, however, to the provisions of Article 9
(concerning the Agent) and Section 10.05 of the Credit Agreement.
Section 6.05. RELATIONSHIP TO CUSTODY AGREEMENT. In the event that the
Pledgor has entered into, or in the future enters into, a custody agreement with
the Agent with respect to any securities which constitute a part of the Pledged
Collateral, any such Pledged Collateral held in the custody agreement shall be
held subject to the terms of this Pledge Agreement. In the event of any
conflict between the terms of such a custody agreement and this Pledge
Agreement, the terms of this Pledge Agreement shall govern.
Section 6.06. GOVERNING LAW; TERMS. This Agreement shall be governed by
and the construed in accordance with the laws of the State of New York, except
as required by mandatory provisions of law and except to the extent that the
validity or perfection of the security interest hereunder, or remedies
hereunder, in respect of any particular Pledged Collateral are governed by the
laws of a jurisdiction other than the State of New York. Unless otherwise
defined herein or in the Credit Agreement, terms defined in Article 9 of the
Uniform Commercial Code in the State of New York are used herein as therein
defined.
Section 6.07. NEXTEL PREFERRED STOCK. By acceptance of the pledge under
this Agreement, the Agent agrees to give a written notice to the chairman,
president and secretary of Nextel not less than five business days before the
Agent takes any action to sell or otherwise realize on any shares of the Class A
Preferred Stock or the Class C Preferred Stock issued by Nextel and held as
Pledged Collateral. Such notice shall be effective when received by the
designated officers of Nextel. Also by acceptance of this Agreement, the Agent
agrees as follows (terms not defined in the Credit Agreement
14.
<PAGE>
having the meanings ascribed thereto in the Certificate of Amendment if
defined therein): (i) to sell (whether on behalf of the Pledgor or
otherwise) to a Person designated by Nextel, upon the request of Nextel, all
(but not less than all) of any shares of the Class C Preferred Stock held by
it that Nextel is entitled to call for redemption pursuant to the provisions
in the Certificate of Amendment contained in Section 6.1 under the heading
Class C Convertible Redeemable Preferred Stock for a cash purchase price
equal to the Class C Redemption Price, provided that such sale shall not
occur earlier than the date of the Change of Control relating to Nextel's
right to call the Class C Preferred Stock for redemption and until such
purchase the Agent (whether on behalf of the Pledgor or otherwise) shall be
entitled to convert any such shares of Class C Preferred Stock into shares of
Voting Common (which conversion may be conditioned upon the consummation of
such Change of Control) and (ii) to transfer any shares of Class A Preferred
Stock or Class C Preferred Stock, or any interest therein, only to a Person
that has agreed, by written agreement in form and substance reasonably
satisfactory to Nextel, (A) to comply with (i) above with respect to any
interest in any shares of Class A Preferred Stock or Class C Preferred Stock
held by such transferee and (B) not to transfer any interest in Shares of
Class A Preferred Stock or Class C Preferred Stock unless the transferee
agrees, by written agreement in form and substance reasonably satisfactory to
Nextel, to comply with the terms of this clause (ii) with respect to any
interest in any shares of Class A Preferred Stock or Class C Preferred Stock
held by such transferee. The Pledgor consents to any disposition of the
Class A Preferred Stock or the Class C Preferred Stock pursuant to the
provisions of this Section 6.07.
IN WITNESS WHEREOF, the Pledgor has executed and delivered this Third
Party Pledge Agreement as of the date first above written.
[NAME OF PLEDGOR]
___________________________________
Address for Notices:
15.
<PAGE>
SCHEDULE to PLEDGE AGREEMENT
Stock Issuer Class of Stock Number of Shares
- ---------------------------- -------------------- --------------------------
16.
<PAGE>
EXHIBIT I
CONFIDENTIALITY AGREEMENT
[Date]
[Insert Name and
Address of Prospective
Participant or Assignee]
Re: Amended and Restated Multibank Credit Agreement dated as of
July 28, 1997 among Digital Radio, L.L.C., the banks party
thereto, and The Chase Manhattan Bank, as Agent
Dear _________________:
As a Bank party to the above-referenced Amended and Restated Multibank
Credit Agreement (as the same may be amended, modified, restated or otherwise
supplemented from time to time, the "CREDIT AGREEMENT"), we have agreed with
Digital Radio, L.L.C. (the "Borrower") pursuant to Section 10.14 of the Credit
Agreement to use reasonable precautions to keep confidential, except as
otherwise provided therein, all non-public information identified by the
Borrower as being confidential at the time the same is delivered to us pursuant
to the Credit Agreement.
As provided in said Section 10.14, we are permitted to provide you, as a
prospective [holder of a participation in the Loans (as defined in the Credit
Agreement)] [assignee Bank], with certain of such non-public information subject
to the execution and delivery by you, prior to receiving such non-public
information, of a Confidentiality Agreement in this form. Such information will
not be made available to you until your execution and return to us of this
Confidentiality Agreement.
Accordingly, in consideration of the foregoing, you agree (on behalf of
yourself and each of your affiliates, directors, officers, employees and
representatives) that until the third anniversary of the date on which all the
Loans under the Credit Agreement are paid in full (A) such information will not
be used by you except in connection with the proposed [participation]
[assignment] mentioned above and (B) you shall use reasonable precautions, in
accordance with your customary procedures for handling confidential information
and in accordance with safe and sound banking practices, to keep such
information confidential, provided that nothing herein shall limit the
disclosure of any such information (i) to the extent required by statute, rule,
regulation or judicial process, (ii) to your counsel or to counsel for any of
the Banks or the Agent, (iii) to bank examiners, auditors or accountants,
3.
<PAGE>
(iv) in connection with any litigation to which you or any one or more of the
Banks is a party; provided further that in no event shall you be obligated to
return any materials furnished to you pursuant to this Confidentiality
Agreement. With respect to any judicial process under clauses (i) or (iv), if
you are requested or required to disclose any confidential information, you will
provide prompt written notice thereof to the Borrower so that the Borrower may
seek a protective order or other appropriate remedy. You agree to use your best
efforts to assist the Borrower to obtain a protective order or other appropriate
remedy. If such protective order or other remedy is not obtained, you will
furnish only that portion and will exercise other reasonable efforts to obtain
other assurance that confidential treatment will be accorded to the confidential
information which is disclosed.
Would you please indicate your agreement to the foregoing by signing at the
place provided below on the enclosed copy of this Confidentiality Agreement.
Very truly yours,
[Insert Name of Bank]
By: _____________________________
The foregoing is agreed to
as of the date of this letter.
[Insert name of prospective
participant or assignee]
By: _____________________________
4.
<PAGE>
EXHIBIT J
AGREEMENT
This Agreement ("Agreement") dated as of July 28, 1997 is made by and among
Nextel Communications, Inc., a Delaware corporation ("Nextel"), Digital Radio,
L.L.C., a Washington limited liability company ("Digital"), Craig O. McCaw
("McCaw") and The Chase Manhattan Bank, as Agent for itself and the other
financial institutions party from time to time under the Credit Facility (as
defined below) (together with any successor Agent, the "Lender").
RECITALS
A. Pursuant to that certain Securities Purchase Agreement by and among
Nextel, Digital and McCaw dated as of April 4, 1995 (the "Securities Purchase
Agreement"), Nextel has issued to Digital certain Units (the "Units") consisting
of Class A Convertible Redeemable Preferred Stock of Nextel (the "Class A
Preferred Stock"), Class B Convertible Redeemable Preferred Stock of Nextel and
certain options. In addition, on or about April 4, 1995, under the Securities
Purchase Agreement, Nextel issued to Digital 1,220,000 shares of Class A Common
Stock of Nextel ("Nextel Common Stock"). Nextel has been advised by Digital
that Digital has also purchased 4,000,000 shares of Nextel Common Stock from
Motorola, Inc. pursuant to a Stock Purchase Agreement between Digital and
Motorola, Inc. dated April 4, 1995. Pursuant
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<PAGE>
to the Option Exercise and Lending Commitment Agreement dated as of June 16,
1997, between Nextel and Digital (the "Option Exercise Agreement"), Digital has
committed to exercise in full its option to acquire 15,000,000 shares of Nextel
Common Stock on July 28, 1997.
B. Lender and certain other financial institutions extended or will be
extending credit to Digital pursuant to certain financing arrangements (the
"Credit Facility") pursuant to which Digital will pledge to Lender the Class A
Preferred Stock (together with any shares of Nextel Common Stock or Class C
Convertible Redeemable Preferred Stock of Nextel (the "Class C Preferred Stock")
which may be issued to Digital in conversion of the Class A Preferred Stock
(collectively, the "Pledged Shares")), to secure the obligations of Digital to
Lender under the Credit Facility.
C. Lender and Digital have advised Nextel that pursuant to the terms of
the Credit Facility, and so long as Digital retains record ownership of the
Pledged Shares, (i) Digital retains all rights and powers of a record holder
of the Pledged Shares, including the right to vote the Pledged Shares and to
receive any dividends with respect to the Pledged Shares, (ii) Digital
retains all rights and powers of a record holder of the Pledged Shares under,
and the authority to take any and all actions in such capacity with respect
to, the Securities Purchase Agreement, and (iii) notwithstanding the
foregoing clauses (a) and (b), Digital has agreed with Lender (A) that the
Pledged Shares and any distributions or exchanges with respect to the Pledged
Shares (other than regular cash dividends) are to be delivered by Digital to
Lender and held in custody pending the maturity of the Credit Facility, but
will continue to be registered in the name of Digital, (B) that Digital may
2
<PAGE>
take certain actions (to the extent consistent with the Securities Purchase
Agreement, the Certificate and this Agreement) with respect to the Pledged
Shares at Lender's request or direction while such Pledged Shares continue to be
registered in the name of Digital and (C) that such agreements between Digital
and Lender do not involve Nextel and Nextel shall have no liability or
responsibility of any type therefor or in connection therewith, except to the
extent that Nextel has expressly agreed, pursuant and subject to the terms and
conditions of this Agreement, to take certain actions set forth herein.
D. The parties wish to enter into this Agreement to confirm certain
matters with respect to the Securities Purchase Agreement, certain related
documents and the Pledged Shares and to enter into certain agreements concerning
the Pledged Shares held by Lenders as collateral under the Credit Facility.
NOW THEREFORE, in consideration of the covenants contained in this
Agreement and for good and valuable consideration, the receipt of which is
acknowledged, the parties represent, acknowledge and agree as follows:
1. SECURITIES PURCHASE AGREEMENT. (a) Nextel confirms to Lender that, as
of the date hereof, the Securities Purchase Agreement is in full force and
effect and has not been amended or modified (subject to the matters described in
clause (c) below) except as described in clause (b) below and as follows:
(i) Letter dated June 26, 1995 from Nextel to Digital regarding
Securities Purchase Agreement;
3
<PAGE>
(ii) Letter dated June 27, 1995 from McCaw to Nextel regarding
amendments to Securities Purchase Agreement;
(iii) Letter dated July 26, 1995 from Nextel to Digital regarding
certain FCC licenses under Securities Purchase Agreement;
(iv) Letter as of July 28, 1995 from Nextel to Digital and McCaw
regarding Section 2.2(f) of the Securities Purchase Agreement; and
(v) Confirmation dated as of July 28, 1997 by and among Nextel,
Digital Radio and McCaw.
(b) Nextel confirms to Lender that upon the consummation of the
transactions contemplated by the Option Exercise Agreement, in addition to the
amendments and modifications detailed above, the Securities Purchase Agreement
shall be further amended and modified as set forth in Article 7 of the Option
Exercise Agreement, which amendments and modifications include the deletion of
Section 8.3(g) of the Securities Purchase Agreement.
(c) Lender confirms to Nextel that it has been advised by Digital that
Digital (i) has agreed, pursuant to the Option Exercise Agreement, to exercise
the option to purchase 15,000,000 shares of Nextel Common Stock that expires on
July 28, 1997 (which option was issued pursuant to the Securities Purchase
Agreement); (ii) has agreed (pursuant to a letter dated July 10, 1997) to waive
certain rights pursuant to the terms of the Securities Purchase Agreement as
such terms relate to the creation and issuance of shares of Series D
Exchangeable Preferred Stock of Nextel and to certain contingent rights of the
holders of shares of such Series D Exchangeable Preferred Stock to obtain
representation on
4
<PAGE>
Nextel's Board of Directors; and (iii) has, on a number of occasions prior to
the date hereof, waived certain anti-dilutive and other rights pursuant to the
Securities Purchase Agreement.
2. TRANSFER RESTRICTIONS. As of the date hereof, Nextel confirms to the
Lender that (a) the only transfer restrictions imposed upon the Pledged Shares
by agreements to which Nextel or any of its affiliates is a party or by Nextel's
organizational documents are set forth in the Securities Purchase Agreement
(including the amendments and modifications thereto referred to in Section 1
above) and in the Restated Certificate of Incorporation of Nextel
Communications, Inc. (the "Certificate"); and (b) a true and correct copy of
such Certificate, on file with the Secretary of State of Delaware on the date
hereof, is attached hereto as Exhibit A.
3. TRANSFER NOTICE REQUIREMENTS. The Certificate requires, among other
things, that any pledgee of the Class A Preferred Stock give notice to specified
officers of Nextel five (5) business days prior to taking any action to sell or
otherwise realize on the Class A Preferred Stock held as collateral, and
provides that such notice shall be effective when received. Until otherwise
advised in writing by Nextel, any such notice may be addressed to the attention
of the specified officers at Nextel's current principal office address at 1505
Farm Credit Drive, McLean, Virginia 22102.
4. PLEDGE PERMITTED. Assuming the Lender has entered into, and continues
to be a party to and bound by, this Agreement, pledge arrangements relating to
the Pledged Shares having the characteristics as described herein (including
specifically those set forth in Recital Paragraph C), and any foreclosure by
Lender or transfer to Lender in lieu
5
<PAGE>
of foreclosure relating thereto, will not be regarded by Nextel as resulting in
a sale or other disposition of the Pledged Shares prohibited by the Securities
Purchase Agreement or the Certificate; provided that any exercise of secured
party rights or foreclosure action (including any transfer in lieu of
foreclosure) affecting the Pledged Shares, or any modification of such pledge
arrangements, or any sale or other disposition of the Pledged Shares pursuant to
or following any exercise of secured party rights or foreclosure action must be
effected in compliance with the applicable terms of the Securities Purchase
Agreement, of the Certificate and of Section 5 of this Agreement. If such sale
or other disposition of the Pledged Shares pursuant to or following the exercise
of secured party rights or foreclosure action is effected in compliance with the
applicable terms of the Securities Purchase Agreement, of the Certificate, and
of the Section 5 of this Agreement, any purchase of such shares upon foreclosure
or any subsequent transferee from Lender or from such purchaser (other than a
member of the Investor Group (as defined in the Securities Purchase Agreement)),
will take such shares free and clear of any transfer restriction imposed by the
Securities Purchase Agreement or the Certificate, other than those that require
compliance with applicable securities laws and those required to be
acknowledged and agreed to by such purchaser or transferee in connection with
their purchase or other acquisition of such shares as contemplated by Section 5
of this Agreement and as provided under the definition of "Eligible Secured
Party" in the Certificate.
6
<PAGE>
5. LENDER ACKNOWLEDGMENTS AND AGREEMENTS CONCERNING PLEDGED SHARES.
Lender acknowledges and agrees that (a) the Pledged Shares have not been
registered under the Securities Act of 1933, as amended (the "Securities
Act"), or under any applicable state laws and may not be transferred sold or
otherwise disposed of except while such a registration is in effect or
pursuant to an exemption from registration under the Securities Act or
applicable state law requirements, (b) that the certificates representing the
Pledged Shares (other than shares referred to in the parenthetical phrase in
the final sentence of this Section 5) will bear a legend with respect to the
matters described in clause (a) and with respect to the transfer and voting
restrictions contained in the Securities Purchase Agreement, (c) that the
Class A Preferred Stock is subject to mandatory conversion into shares of
Nextel Common Stock, and to mandatory conversion into shares of Class C
Preferred Stock, in certain circumstances as specified in the Certificate,
(d) that the Class C Preferred Stock is subject to mandatory conversion into
shares of Nextel Common Stock in certain circumstances as specified in the
Certificate and (e) that the Class A Preferred Stock and Class C Preferred
Stock are subject to redemption in certain circumstances as specified in the
Certificate. Lender agrees that in connection with any transfer or other
disposition of the Pledged Shares or any interest therein (other than a
transfer or disposition of Nextel Common Stock pursuant to Rule 144
promulgated under the Securities Act or upon registration of such Nextel
Common Stock as contemplated by Section 7 below) it will obtain from the
7
<PAGE>
assignee or transferee, as applicable, an acknowledgment and agreement in form
and substance reasonably satisfactory to Nextel, with respect to the matters
specified in this Section 5.
6. ELIGIBLE SECURED PARTY UNDERTAKINGS. In accordance with the
Certificate and in order to qualify as an "Eligible Secured Party" as
contemplated by the Certificate, Lender agrees (a) to sell to a Person ( as
defined in the Certificate) designated by Nextel, upon the request of Nextel,
all (but not less than all) shares of Class C Preferred Stock held by Lender
that Nextel is entitled to call for redemption pursuant to Section 6.1 under
the heading CLASS C CONVERTIBLE REDEEMABLE PREFERRED STOCK in the Certificate
for a cash purchase price equal to the Class C Redemption Price (as defined
in the Certificate), provided that such sale shall not occur earlier than
the date of the Change of Control (as defined in the Certificate) relating to
Nextel's right to call the Class C Preferred Stock for redemption and until
such purchase Lender shall be entitled to convert any such shares of Class C
Preferred Stock into shares of Nextel Common Stock (which conversion may be
conditioned upon the consummation of such Change of Control), (b) to transfer
any shares of Class A Perferred Stock or Class C Preferred Stock, or any
interest therein, only to a Person that has agreed, by written agreement in
form and substance reasonably satisfactory to Nextel, (i) to comply with
clause (a) above with respect to any interest in any shares of Class A
Preferred Stock or Class C Preferred Stock held by such transferee and (ii)
not to transfer any interest in shares of Class A Preferred Stock or Class C
Preferred Stock unless the transferee agrees, by written agreement in form
and substance reasonably satisfactory to Nextel, to comply with the terms of
this clause (b) with respect
8
<PAGE>
to any interest in any shares of Class A Preferred Stock or Class C Preferred
Stock held by such transferee, and (c) to give written notice to the Chairman,
President and Secretary of Nextel at the address specified in Section 13
hereof not less than five (5) business days before Lender takes any action to
sell or otherwise realize on the Class A Preferred Stock held as collateral.
Lender agrees to be bound by the foregoing requirements for it to be an
"Eligible Secured Party," and Nextel agrees that such agreement and the
foregoing requirements with respect thereto are in form and substance reasonably
satisfactory to Nextel.
7. REGISTRATION RIGHTS. Nextel agrees that it will enter into an
amendment to the Registration Rights Agreement dated as of July 28, 1995
between Nextel and Digital (the "Registration Rights Agreement") to permit
Digital to assign to Lender, as collateral for the Credit Facility, the
right, following Lender's foreclosure on the Pledged Shares and the
conversion of such Pledged Shares into the Registerable Securities (as
defined in the Registered Rights Agreement), to request Nextel to effect one
(1) Requested Registration (as defined and provided for in the Registration
Rights Agreement) of such Registerable Securities held of record by Lender or
its nominee, provided, however, that (a) such Requested Registration shall
only be effected in connection with a distribution of such Registratable
Securities by means of an underwritten offering as contemplated by
Section 2.2(b) of the Registration Rights Agreement, (b) Lender agrees that
such Requested Registration shall be exercised and fulfilled on the terms
contemplated by such Registration Rights Agreement (including specifically
Sections 2.4, 2.5 and 2.6 thereof), (c) the collateral documents between
Lender and Digital shall reflect the irrevocable
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<PAGE>
appointment of a single collateral agent for all lenders under the Credit
Facility and all other secured parties that are or may become pledgors of
Registrable Securities (or securities that may be convertible into or
exercisable for Registerable Securities) as the sole contact party to receive
and give notices for, and to act on behalf of and bind, all such lenders and
secured parties for purposes of any exercise of such Requested Registration
Right and shall provide that only one Requested Registration shall have been
assigned for the benefit of all such Lenders and secured parties and (d) such
Requested Registered Right may not be assigned or otherwise transferred, in
whole or in part, by Lender to any other party (other than transfers to Digital
of the unused Requested Registration Right following Nextel's receipt of the
notice contemplated by Section 11).
8. DISTRIBUTIONS: MERGER CONSIDERATION. Digital hereby notifies and
instructs Nextel that all distributions or dividends with respect to the Pledged
Shares held of record in its name (excluding regular cash dividends, but
including any distributions upon liquidation or dissolution of Nextel) and any
property into which any of such Pledged Shares are converted, whether pursuant
to Section 9 hereof or otherwise, including in connection with a merger or
consolidation of Nextel, are to be delivered to Digital at the following
address: c/o The Chase Manhattan Bank, New York Agency, One Chase Manhattan
Plaza - 8th Floor, New York, NY 10081 (the "Distribution and Notice Address")
or such other address as is designated by Digital in accordance with the last
sentence of this Section 8. Nextel shall instruct its transfer agent or other
agent responsible for making any such distribution to deliver any such
distribution with respect to such Pledged Shares held of record by Digital on
the record date for such distribution
10
<PAGE>
or conversion to the Distribution and Notice Address. The designation of the
Distribution and Notice Address by Digital shall not be changed by Digital
prior to the date on which Nextel receives the notice contemplated by Section 11
except by written notice signed by Digital and consented to in writing by Lender
and delivered to Nextel.
9. CONVERSION OF PREFERRED SHARES. Concurrent with the execution of this
Agreement, Digital has delivered to Lender one or more notices or requests for
conversion with respect to the shares of Class A Preferred Stock held of record
in its name and with respect to shares of Class C Preferred Stock into which
such shares of Class A Preferred Stock may be converted pursuant to the
Certificate. Nextel agrees that it shall instruct its transfer agent to honor
any such notices or requests for conversion delivered by Lender with respect to
shares of Class A Preferred Stock or Class C Preferred Stock held of record in
the name of Digital, provided that such notices or requests shall comply with
the Class A Preferred Provisions or the Class C Preferred Provisions (as such
terms are defined below), as the case may be. As used herein, the term "Class A
Preferred Provisions" means those provisions in the Certificate under the
caption "Class A Convertible Redeemable Preferred Stock," and the term "Class C
Preferred Provisions" means those provisions in the Certificate under the
caption "Class C Convertible Redeemable Preferred Stock." Digital hereby agrees
that Nextel may instruct its transfer agent to honor such notices or requests
for conversion delivered by Lender, without any necessity of Nextel or such
transfer agent confirming or otherwise establishing Lender's right (vis-a-vis
Digital or its successors and assigns) to deliver such notices or requests for
conversion.
11
<PAGE>
10. CERTAIN NOTICES. Digital hereby directs Nextel to deliver any
notice sent by Nextel pursuant to Sections 7 and 10.2 of the Class A
Preferred Provisions and Sections 6 and 7.2 of the Class C Preferred
Provisions with respect to shares of Class A Preferred Stock held of record
in its name at the time of such notice to Digital at the Distribution and
Notice Address. Nextel shall instruct its transfer agent that, so long as
the Pledged Shares are in certificated form, such transfer agent shall effect
any requested transfers of such shares only after ascertaining that all
transfer restrictions reflected in the restrictive legends placed on such
certificates are either inapplicable to the requested transfer or have been
complied with, and if Nextel takes action that would result in the Class A
Preferred Stock, Class C Preferred Stock or Nextel Common Stock constituting
the Pledged Shares becoming uncertificated securities, such transfer agent
shall provide notice of such action to Digital at the Distribution and Notice
Address.
11. TERMINATION OF LENDER'S SECURITY INTEREST. Lender agrees to give
notice to Nextel promptly after the release by Lender of its security interest
in the Pledged Shares at which time all obligations of Nextel pursuant to
Sections 7 through 10 above shall terminate.
12. TRANSFER AGENT NOTIFICATION: LIMITATION ON LIABILITY. Nextel agrees
to deliver to its transfer agent a letter in substantially the form attached to
this Agreement as Exhibit B ("Instruction Letter"), and Digital and Lender agree
that the delivery of such Instruction Letter shall be deemed to satisfy Nextel's
obligations to provide instructions to its transfer agent as contemplated by
Sections 8 through 10 of this Agreement. Each of Lender and Digital also
irrevocably agree that, at and after delivery of the Instruction Letter as
comtemplated by the preceding sentence, Nextel shall have no further or
12
<PAGE>
additional liability or responsibility to Digital, Lender or any third party
(including any transferee or assignee of the Pledged Shares), or any other party
claiming by or through Digital or Lender, with respect to any actual or alleged
failure by Nextel or any agent of Nextel to comply with the provisions of
Sections 8 through 10 of this Agreement or with the terms of the related
Instruction Letter. Upon request of Digital and/or Lender, Nextel shall
provide reasonable and customary assistance to resolve issues or problems that
may arise in connection with the services provided by its transfer agent.
Additionally, Nextel shall advise Digital and Lender if it appoints a new
transfer agent and shall deliver a signed copy of the Instruction Letter to any
such new transfer agent.
13. Notices. All notices, demands, requests, certificates or other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given when received and, except as otherwise provided herein,
shall be addressed as follows:
(i) if to Nextel:
Nextel Communications, Inc.
1505 Farm Credit Drive
McLean, Virginia 22102
Attention: Thomas J. Sidman, General Counsel
Telecopier (703) 394-3763
with a copy to:
Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, OH 44114
Attention: Jeanne M. Rickert, Esq.
Telecopier: (216) 579-0212
13
<PAGE>
(ii) if to Digital:
Digital Radio, L.L.C.
2320 Carillon Point
Kirkland, WA 94104-2675
Attention: Dennis Weibling, President
Telecopier: (206) 828-8060
with a copy to:
C. James Judson, Esq.
Digital Radio, L.L.C.
2320 Carillon Point
Kirkland, WA 94104-2675
Telecopier: (206) 828-8060
and
Morrison & Foerster, LLP
425 California Street
San Francisco, CA 94105-2482
Attention: Bruce Alan Mann, Esq.
Telecopier: (415) 268-7522
(iii) if to Lender:
The Chase Manhattan Bank
New York Agency
One Chase Manhattan Plaza-8th Floor
New York, New York 10081
Attention: Joseph Brusco
Telecopier: (212) 552-7500
14
<PAGE>
with a copy to:
Russell P. Daulton
The Chase Manhattan Private Banking Capital
Group
101 California Street, Suite 2725
San Francisco, CA 94111-5830
Telecopier: (415) 693-8836
and
Brobeck, Phelger & Harrison
One Market Spear Street Tower
San Francisco, CA 94105
Attention: George A. Hisert, Esq.
Telecopier: (415) 442-1010
Any communication delivered after business hours or on a Saturday, Sunday or
legal holiday at the place designated in such delivery shall be deemed for
purposes of computing any time period hereunder to have been delivered on the
next business day.
14. EXPENSES. Each party shall bear its own expenses, including the fees
and expenses of any attorneys, accountants, investment bankers, brokers, finders
or other intermediaries or other persons engaged by such party, incurred in
connection with this Agreement.
15. HEADINGS. The headings in this Agreement are for convenience only and
shall not affect the construction hereof.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT
TO ANY CONFLICTS OF LAW PRINCIPLES OF SUCH STATE.
15
<PAGE>
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or account for more than
one such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
NEXTEL COMMUNICATIONS, INC.
By: /s/ Steven Shindler
----------------------------
Name: STEVEN SHINDLER
----------------------
Title: VICE PRESIDENT
-----------------------
DIGITAL RADIO, L.L.C.
By: /s/ C. James Judson
----------------------------
Name:
----------------------
Title:
-----------------------
/s/ Craig O. McCaw
--------------------------------
Craig O. McCaw, for his sole and
separate estate
THE CHASE MANHATTAN BANK,
as agent under the Credit Facility
By: /s/ John Ferrante
----------------------------
Name: John Ferrante
----------------------
Title: Vice President
-----------------------
16
<PAGE>
EXHIBIT A
RESTATED CERTIFICATES OF INCORPORATION
OF
NEXTEL COMMUNICATIONS, INC.
[TEXT INTENTIONALLY OMITTED]
<PAGE>
EXHIBIT K
NEXTEL TRANSFER AGREEMENT
[Date]
The Chase Manhattan Bank
1 Chase Manhattan Plaza
8th Floor
New York, New York 10081
Attn: New York Agency
Re: Amended and Restated Multibank Credit Agreement dated as of
July 28, 1997 (as amended, modified, restated or otherwise
supplemented from time to time, the "Credit Agreement")
among Digital Radio, L.L.C. (the "Borrower"), the banks
party thereto, and The Chase Manhattan Bank, as Agent
Ladies and Gentlemen:
Pursuant to Section 7.06 of the Credit Agreement and in connection with the
transfer of Nextel Stock from the Borrower to the undersigned,
_______________________ ("Transferee"), [a Subsidiary of the Borrower] [a member
of the Borrower Group], Transferee hereby agrees as follows:
(i) Transferee shall not create, incur, assume or suffer to exist
any Lien upon or with respect to any Nextel Stock owned by
Transferee;
(ii) Transferee shall not sell or otherwise transfer to any member
of the Borrower Group or to any Subsidiary of the Borrower any
Nextel Stock without obtaining from such transferee and
delivering to the Agent an executed Nextel Transfer Agreement
in substantially the form hereof; and
(iii) Transferee shall not sell or otherwise transfer any Nextel
Stock after the occurrence and during the continuance of an
Event of Default.
All terms used and not otherwise defined herein shall have the meanings
given to such terms in the Credit Agreement.
Very truly yours,
[Insert name of transferee]
By: ___________________________
1.
<PAGE>
EXHIBIT L-1
LIMITED RECOURSE GUARANTY
(CREDIT LIMIT)
GUARANTY dated as of _________________, 19__ made by the undersigned
(the "GUARANTOR") in favor of The Chase Manhattan Bank (the "AGENT") for the
ratable benefit of the financial institutions from time to time party to the
Credit Agreement described below (each such financial institution a "Bank"
and collectively the "Banks").
PRELIMINARY STATEMENTS: Digital Radio, L.L.C., a limited liability
company organized under the laws of the State of Washington (the "BORROWER"),
the Agent and the financial institutions named therein have entered into an
Amended and Restated Multibank Credit Agreement dated as of July 28, 1997 (as
the same may be amended, modified, restated or otherwise supplemented, the
"CREDIT AGREEMENT") pursuant to which the Banks have made certain loans and
extended credit to the Borrower (such loans and credit extensions being the
"FACILITIES" and any writing evidencing, supporting or securing the
Facilities, including but not limited to this Guaranty, being a "FACILITY
DOCUMENT"). The Guarantor owns directly or indirectly a substantial amount
of the ownership interests of the Borrower and/or is financially interested
in its affairs. All terms used and not otherwise defined in this Guaranty
shall have the meanings given to such terms in the Credit Agreement.
THEREFORE, in order to induce the Banks to extend credit or give
financial accommodation under the Facilities, the Guarantor agrees as follows:
Section 1. GUARANTY OF PAYMENT. The Guarantor unconditionally and
irrevocably (but subject to the provisions on the release of Secondary
Support under Section 2.05 of the Credit Agreement) guarantees to the Agent
for the ratable benefit of the Banks the punctual payment of all sums now
owing or which may in the future be owing by the Borrower under the
Facilities, when the same are due and payable, whether on demand, at stated
maturity, by acceleration or otherwise, and whether for principal, interest,
fees, expenses, indemnification or otherwise; PROVIDED that the liability of
the Guarantor shall not, subject to Section 7 hereof, exceed (a)
$_____________ in principal amount, or (b) such equal or lesser amount as may
be established from time to time (which may be by increase or decrease) as
the Guarantor's Credit Limit (as defined in the Credit Agreement), PLUS, in
each case, a proportionate share (based on the ratio that the amount
determined by clauses (a) and (b) above bears to the aggregate outstanding
principal of the Loans under the Credit Agreement at the time payment is made
under this Guaranty) of interest, fees, expenses, indemnification or other
amounts due under the Facilities at the time payment of the principal amount
of this Guaranty is made by the Guarantor (each of the foregoing amounts
described in the preceding clauses (a) and (b), together with the applicable
proportionate share of interest, fees, expenses, indemnification and other
amounts due under the Facilities, being the "LIABILITIES"). It is
1.
<PAGE>
understood that the obligations of the Borrower to the Agent and the Banks
may at any time or from time to time exceed the liability of the Guarantor
hereunder without impairing this Guaranty. The Guarantor and the Agent
agree, as between themselves, that regardless of the manner of the
application of payments made by the Borrower to the Agent and the Banks, all
such payments shall be deemed to be applied first to the portion of the
obligations of the Borrower to the Agent and the Banks which are not
guaranteed hereunder and last to the portion of such obligations which are
guaranteed hereunder. The Liabilities include, without limitation, interest
accruing after the commencement of a proceeding under bankruptcy, insolvency
or similar laws of any jurisdiction at the rate or rates provided in the
Facility Documents. This Guaranty is a guaranty of payment and not of
collection only. The Agent and the Banks shall not be required to exhaust
any right or remedy or take any action against the Borrower or any other
person or entity or any collateral. The Guarantor agrees that, as between
the Guarantor and the Agent, the Liabilities may be declared to be due and
payable for the purposes of this Guaranty notwithstanding any stay,
injunction or other prohibition which may prevent, delay or vitiate any
declaration as regards the Borrower and that in the event of a declaration or
attempted declaration, the Liabilities shall immediately become due and
payable by the Guarantor for the purposes of this Guaranty.
Section 2. GUARANTY ABSOLUTE. The Guarantor guarantees that the
Liabilities shall be paid strictly in accordance with the terms of the
Facilities. The liability of the Guarantor under this Guaranty is absolute
and unconditional irrespective of: (a) any change in the time, manner or
place of payment of, or in any other term of, all or any of the Facility
Documents or Liabilities, or any other amendment or waiver of or any consent
to departure from any of the terms of any Facility Document or Liability; (b)
any release or amendment or waiver of, or consent to departure from, any
other guaranty or support document, or any exchange, release or
non-perfection of any collateral, for all or any of the Facility Documents or
Liabilities; (c) any present or future law, regulation or order of any
jurisdiction (whether of right or in fact) or of any agency thereof
purporting to reduce, amend, restructure or otherwise affect any term of any
Facility Document or Liability; (d) without being limited by the foregoing,
any lack of validity or enforceability of any Facility Document or Liability;
and (e) any other defense, setoff or counterclaim whatsoever with respect to
the Facility Documents or the transactions contemplated thereby which might
constitute a defense available to, or discharge of, the Borrower or a
guarantor.
Section 3. GUARANTY IRREVOCABLE. This Guaranty is a continuing
guaranty of all Liabilities now or hereafter existing under the Facilities
and shall remain in full force and effect until payment in full of all
Liabilities and other amounts payable under this Guaranty and until the
Facilities are no longer in effect.
Section 4. REINSTATEMENT. This Guaranty shall continue to be effective
or be reinstated, as the case may be, if at any time any payment of any of
the Liabilities is rescinded or must otherwise be returned by the Agent or
any Bank on the insolvency,
2.
<PAGE>
bankruptcy or reorganization of the Borrower or otherwise, all as though the
payment had not been made.
Section 5. SUBROGATION. The Guarantor shall not exercise any rights
which it may acquire by way of subrogation to the rights of the Agent or any
Bank, by any payment made under this Guaranty or otherwise, until all the
Liabilities have been paid in full and the Facilities are no longer in
effect. If any amount is paid to the Guarantor on account of such
subrogation rights under this Guaranty at any time when all the Liabilities
have not been paid in full, the amount shall be held in trust for the benefit
of the Agent and the Banks and shall be promptly paid to the Agent for the
ratable benefit of the Banks to be credited and applied to the Liabilities,
whether matured or unmatured or absolute or contingent, in accordance with
the terms of the Facilities. If the Guarantor makes payment to the Agent or
any Bank of all or any part of the Liabilities and all the Liabilities are
paid in full and the Facilities are no longer in effect, the Agent shall, at
the Guarantor's request, execute and deliver to the Guarantor appropriate
documents, without recourse and without representation or warranty, necessary
to evidence the transfer by subrogation to the Guarantor of an interest in
the Liabilities resulting from the payment.
Section 6. SUBORDINATION. Without limiting the Agent's and the Banks'
rights under any other agreement, any liabilities owed by the Borrower to the
Guarantor in connection with any extension of credit or financial
accommodation by the Guarantor to or for the account of the Borrower,
including but not limited to interest accruing at the agreed contract rate
after the commencement of a bankruptcy or similar proceeding, are hereby
subordinated to the Liabilities, and such liabilities of the Borrower to the
Guarantor, if the Agent so requests, shall be collected, enforced and
received by the Guarantor as trustee for the Agent and shall be paid over to
the Agent for the ratable benefit of the Banks on account of the Liabilities
but without reducing or affecting in any manner the liability of the
Guarantor under the other provisions of this Guaranty.
Section 7. PAYMENTS GENERALLY. All payments by the Guarantor shall be
made in the manner, at the place and in the currency (the "PAYMENT CURRENCY")
required by the Facility Documents; PROVIDED, HOWEVER, that (if the Payment
Currency is other than U.S. dollars) the Guarantor may, at its option (or, if
for any reason whatsoever the Guarantor is unable to effect payments in the
foregoing manner, the Guarantor shall be obligated to) pay to the Agent for
the ratable benefit of the Banks at the Agent's principal office the
equivalent amount in U.S. dollars computed at the selling rate of the Agent
or a selling rate chosen by the Agent, most recently in effect on or prior to
the date the Liability becomes due, for cable transfers of the Payment
Currency to the place where the Liability is payable. In any case in which
the Guarantor makes or is obligated to make payment in U.S. dollars, the
Guarantor shall hold the Agent and the Banks harmless from any loss incurred
by the Agent or any Bank arising from any change in the value of U.S. dollars
in relation to the Payment Currency between the date the Liability becomes
due and the date the Agent is actually able, following the conversion of the
3.
<PAGE>
U.S. dollars paid by the Guarantor into the Payment Currency and remittance
of such Payment Currency to the place where such Liability is payable, to
apply such Payment Currency to such Liability.
Section 8. CERTAIN TAXES. The Guarantor further agrees that all
payments to be made hereunder shall be made without setoff or counterclaim
and free and clear of, and without deduction for, any taxes, levies, imposts,
duties, charges, fees, deductions, withholdings or restrictions or conditions
of any nature whatsoever now or hereafter imposed, levied, collected,
withheld or assessed by any country or by any political subdivision or taxing
authority thereof or therein, other than income or franchise taxes imposed by
the federal government or the jurisdiction of any Bank's head office or
Lending Office or any other state or local jurisdiction based on the tax base
apportioned to such jurisdiction (such non-excluded amounts, being "Taxes").
If any Taxes are required to be withheld from any amounts payable to the
Agent hereunder, the amounts so payable to the Agent shall be increased to
the extent necessary to yield to the Agent for the ratable benefit of the
Banks (after payment of all Taxes) the amounts payable hereunder in the full
amounts so to be paid. Whenever any Tax is paid by the Guarantor, as promptly
as possible thereafter, the Guarantor shall send the Agent an official
receipt showing payment thereof, together with such additional documentary
evidence as may be required from time to time by the Agent.
Section 9. FINANCIAL INFORMATION. The Guarantor shall deliver to the
Agent on or before the date which is eleven (11) months after the date hereof
(the "Initial Information Date") and on or before each succeeding anniversary
of the Initial Information Date (each such date, including the Initial
Information Date, an "Information Date") thereafter while this Guaranty
remains in effect or is otherwise reinstated (a) cash flow statements for the
preceding twelve months and projected cash flow statements for the next
twelve months, (b) a balance sheet in respect of the Guarantor's assets and
liabilities as of a recent date no more than 60 days prior to the applicable
Information Date and (c) such other financial information in respect of the
Guarantor's financial condition as the Agent (or any Bank through the Agent)
may reasonably request, all in form and content consistent with the financial
information delivered prior to the acceptance of this Guaranty.
Section 10. REMEDIES GENERALLY. The remedies provided in this Guaranty
are cumulative and not exclusive of any remedies provided by law.
Section 11. SETOFF. The Guarantor agrees that, in addition to (and
without limitation of) any right of setoff, banker's lien or counterclaim the
Agent or any Bank may otherwise have, the Agent and each Bank shall be
entitled, at its option, to offset balances (general or special, time or
demand, provisional or final) held by it for the account of the Guarantor at
any of the Agent's or such Bank's offices, in U.S. dollars or in any other
currency, against any amount payable by the Guarantor under this Guaranty
which is not paid when due (regardless of whether such balances are then due
to the
4.
<PAGE>
Guarantor), in which case it shall promptly notify the Guarantor thereof;
PROVIDED that the Agent's or such Bank's failure to give such notice shall
not affect the validity thereof.
Section 12. FORMALITIES. The Guarantor waives presentment, notice of
dishonor, protest, notice of acceptance of this Guaranty or incurrence of any
Liability and any other formality with respect to any of the Liabilities or
this Guaranty.
Section 13. AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Guaranty, nor consent to any departure by the Guarantor
therefrom, shall be effective unless it is in writing and signed by the
Agent, and then the waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No failure on the
part of the Agent to exercise, and no delay in exercising, any right under
this Guaranty shall operate as a waiver or preclude any other or further
exercise thereof or the exercise of any other right.
Section 14. EXPENSES. If not promptly reimbursed by the Borrower, the
Guarantor shall reimburse the Agent on demand for all costs, expenses and
charges (including without limitation fees and charges of external legal
counsel for the Agent and costs allocated by its internal legal department)
incurred by the Agent in connection with the preparation, performance or
enforcement of this Guaranty. The obligations of the Guarantor under this
Section shall survive the termination of this Guaranty.
Section 15. ASSIGNMENT. This Guaranty shall be binding on, and shall
inure to the benefit of the Guarantor, the Agent, the Banks and their
respective successors and assigns; PROVIDED that the Guarantor may not assign
or transfer its rights or obligations under this Guaranty. Without limiting
the generality of the foregoing: (a) the obligations of the Guarantor under
this Guaranty shall continue in full force and effect and shall be binding on
the estate of the Guarantor; and (b) the Agent and each Bank may assign, sell
participations in or otherwise transfer its rights under the Facilities to
any other person or entity, and the other person or entity shall then become
vested with all the rights granted to the Agent or such Bank, as the case may
be, in this Guaranty or otherwise.
Section 16. CAPTIONS. The headings and captions in this Guaranty are
for convenience only and shall not affect the interpretation or construction
of this Guaranty.
Section 17. GOVERNING LAW, ETC. THIS GUARANTY SHALL BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK. THE GUARANTOR CONSENTS TO THE NONEXCLUSIVE
JURISDICTION AND VENUE OF THE STATE OR FEDERAL COURTS LOCATED IN THE CITY OF
NEW YORK. SERVICE OF PROCESS BY THE AGENT OR ANY BANK IN CONNECTION WITH ANY
SUCH DISPUTE SHALL BE BINDING ON THE GUARANTOR IF SENT TO THE GUARANTOR BY
REGISTERED MAIL AT THE ADDRESS SPECIFIED BELOW OR AS OTHERWISE SPECIFIED BY
THE GUARANTOR FROM TIME TO TIME. THE GUARANTOR
5.
<PAGE>
WAIVES ANY RIGHT THE GUARANTOR MAY HAVE TO JURY TRIAL IN ANY ACTION RELATED
TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY AND FURTHER WAIVES
ANY RIGHT TO INTERPOSE ANY COUNTERCLAIM RELATED TO THIS GUARANTY OR THE
TRANSACTIONS CONTEMPLATED HEREBY IN ANY SUCH ACTION. TO THE EXTENT THAT THE
GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER FROM SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OF A JUDGMENT, EXECUTION OR
OTHERWISE), THE GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT
OF HIS/HER OBLIGATIONS UNDER THIS GUARANTY.
[SIGNATURE PAGE FOLLOWS.]
6.
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
duly executed and delivered as of the date first above written.
___________________________________
[If applicable: Guarantor may limit to
bind only separate property]
Address:
7.
<PAGE>
EXHIBIT L-2
LIMITED RECOURSE GUARANTY
(DEPOSITED ASSETS)
GUARANTY dated as of _________________, 19__ made by the undersigned
(the "GUARANTOR") in favor of The Chase Manhattan Bank (the "AGENT") for the
ratable benefit of the financial institutions from time to time party to the
Credit Agreement described below (each such financial institution a "Bank"
and collectively the "Banks").
PRELIMINARY STATEMENTS: Digital Radio, L.L.C., a limited liability
company organized under the laws of the State of Washington (the "BORROWER"),
the Agent and the financial institutions named therein have entered into an
Amended and Restated Multibank Credit Agreement dated as of July 28, 1997 (as
the same may be amended, modified, restated or otherwise supplemented, the
"CREDIT AGREEMENT") pursuant to which the Banks have made certain loans and
extended credit to the Borrower (such loans and credit extensions being the
"FACILITIES" and any writing evidencing, supporting or securing the
Facilities, including but not limited to this Guaranty, being a "FACILITY
DOCUMENT"). The Guarantor owns directly or indirectly a substantial amount
of the ownership interests of the Borrower and/or is financially interested
in its affairs. All terms used and not otherwise defined in this Guaranty
shall have the meanings given to such terms in the Credit Agreement.
THEREFORE, in order to induce the Banks to extend credit or give
financial accommodation under the Facilities, the Guarantor agrees as follows:
Section 1. GUARANTY OF PAYMENT. The Guarantor unconditionally and
irrevocably (but subject to the provisions on the release of Secondary
Support under Section 2.05 of the Credit Agreement) guarantees to the Agent
for the ratable benefit of the Banks the punctual payment of all sums now
owing or which may in the future be owing by the Borrower under the
Facilities, when the same are due and payable, whether on demand, at stated
maturity, by acceleration or otherwise, and whether for principal, interest,
fees, expenses, indemnification or otherwise; PROVIDED that the liability of
the Guarantor shall not, subject to Section 7 hereof, exceed $_____________
in principal amount (the "Principal Limit") PLUS a proportionate share (based
on the ratio that the Principal Limit bears to the aggregate outstanding
principal of the Loans under the Credit Agreement at the time payment is made
under this Guaranty) of interest, fees, expenses, indemnification or other
amounts due under the Facilities at the time payment of the principal amount
of this Guaranty is made by the Guarantor (the foregoing principal amount,
together with the proportionate share of interest, fees, expenses,
indemnification and other amounts due under the Facilities, being the
"LIABILITIES"). It is understood that the obligations of the Borrower to the
Agent and the Banks may at any time or from time to time exceed the liability
of the Guarantor hereunder without impairing this Guaranty. The Guarantor
and the Agent agree, as between themselves, that regardless
1.
<PAGE>
of the manner of the application of payments made by the Borrower to the
Agent and the Banks, all such payments shall be deemed to be applied first to
the portion of the obligations of the Borrower to the Agent and the Banks
which are not guaranteed hereunder and last to the portion of such
obligations which are guaranteed hereunder. The Liabilities include, without
limitation, interest accruing after the commencement of a proceeding under
bankruptcy, insolvency or similar laws of any jurisdiction at the rate or
rates provided in the Facility Documents. This Guaranty is a guaranty of
payment and not of collection only. The Agent and the Banks shall not be
required to exhaust any right or remedy or take any action against the
Borrower or any other person or entity or any collateral. The Guarantor
agrees that, as between the Guarantor and the Agent, the Liabilities may be
declared to be due and payable for the purposes of this Guaranty
notwithstanding any stay, injunction or other prohibition which may prevent,
delay or vitiate any declaration as regards the Borrower and that in the
event of a declaration or attempted declaration, the Liabilities shall
immediately become due and payable by the Guarantor for the purposes of this
Guaranty.
Section 2. GUARANTY ABSOLUTE. The Guarantor guarantees that the
Liabilities shall be paid strictly in accordance with the terms of the
Facilities. The liability of the Guarantor under this Guaranty is absolute
and unconditional irrespective of: (a) any change in the time, manner or
place of payment of, or in any other term of, all or any of the Facility
Documents or Liabilities, or any other amendment or waiver of or any consent
to departure from any of the terms of any Facility Document or Liability; (b)
any release or amendment or waiver of, or consent to departure from, any
other guaranty or support document, or any exchange, release or
non-perfection of any collateral, for all or any of the Facility Documents or
Liabilities; (c) any present or future law, regulation or order of any
jurisdiction (whether of right or in fact) or of any agency thereof
purporting to reduce, amend, restructure or otherwise affect any term of any
Facility Document or Liability; (d) without being limited by the foregoing,
any lack of validity or enforceability of any Facility Document or Liability;
and (e) any other defense, setoff or counterclaim whatsoever with respect to
the Facility Documents or the transactions contemplated thereby which might
constitute a defense available to, or discharge of, the Borrower or a
guarantor.
Section 3. GUARANTY IRREVOCABLE. This Guaranty is a continuing
guaranty of all Liabilities now or hereafter existing under the Facilities
and shall remain in full force and effect until payment in full of all
Liabilities and other amounts payable under this Guaranty and until the
Facilities are no longer in effect.
Section 4. REINSTATEMENT. This Guaranty shall continue to be effective
or be reinstated, as the case may be, if at any time any payment of any of
the Liabilities is rescinded or must otherwise be returned by the Agent or
any Bank on the insolvency, bankruptcy or reorganization of the Borrower or
otherwise, all as though the payment had not been made.
2.
<PAGE>
Section 5. SUBROGATION. The Guarantor shall not exercise any rights
which it may acquire by way of subrogation to the rights of the Agent or any
Bank, by any payment made under this Guaranty or otherwise, until all the
Liabilities have been paid in full and the Facilities are no longer in
effect. If any amount is paid to the Guarantor on account of such
subrogation rights under this Guaranty at any time when all the Liabilities
have not been paid in full, the amount shall be held in trust for the benefit
of the Agent and the Banks and shall be promptly paid to the Agent for the
ratable benefit of the Banks to be credited and applied to the Liabilities,
whether matured or unmatured or absolute or contingent, in accordance with
the terms of the Facilities. If the Guarantor makes payment to the Agent or
any Bank of all or any part of the Liabilities and all the Liabilities are
paid in full and the Facilities are no longer in effect, the Agent shall, at
the Guarantor's request, execute and deliver to the Guarantor appropriate
documents, without recourse and without representation or warranty, necessary
to evidence the transfer by subrogation to the Guarantor of an interest in
the Liabilities resulting from the payment.
Section 6. SUBORDINATION. Without limiting the Agent's and the Banks'
rights under any other agreement, any liabilities owed by the Borrower to the
Guarantor in connection with any extension of credit or financial
accommodation by the Guarantor to or for the account of the Borrower,
including but not limited to interest accruing at the agreed contract rate
after the commencement of a bankruptcy or similar proceeding, are hereby
subordinated to the Liabilities, and such liabilities of the Borrower to the
Guarantor, if the Agent so requests, shall be collected, enforced and
received by the Guarantor as trustee for the Agent and shall be paid over to
the Agent for the ratable benefit of the Banks on account of the Liabilities
but without reducing or affecting in any manner the liability of the
Guarantor under the other provisions of this Guaranty.
Section 7. PAYMENTS GENERALLY. All payments by the Guarantor shall be
made in the manner, at the place and in the currency (the "PAYMENT CURRENCY")
required by the Facility Documents; PROVIDED, HOWEVER, that (if the Payment
Currency is other than U.S. dollars) the Guarantor may, at its option (or, if
for any reason whatsoever the Guarantor is unable to effect payments in the
foregoing manner, the Guarantor shall be obligated to) pay to the Agent for
the ratable benefit of the Banks at the Agent's principal office the
equivalent amount in U.S. dollars computed at the selling rate of the Agent
or a selling rate chosen by the Agent, most recently in effect on or prior to
the date the Liability becomes due, for cable transfers of the Payment
Currency to the place where the Liability is payable. In any case in which
the Guarantor makes or is obligated to make payment in U.S. dollars, the
Guarantor shall hold the Agent and the Banks harmless from any loss incurred
by the Agent or any Bank arising from any change in the value of U.S. dollars
in relation to the Payment Currency between the date the Liability becomes
due and the date the Agent is actually able, following the conversion of the
U.S. dollars paid by the Guarantor into the Payment Currency and remittance
of such Payment Currency to the place where such Liability is payable, to
apply such Payment Currency to such Liability.
3.
<PAGE>
Section 8. CERTAIN TAXES. The Guarantor further agrees that all
payments to be made hereunder shall be made without setoff or counterclaim
and free and clear of, and without deduction for, any taxes, levies, imposts,
duties, charges, fees, deductions, withholdings or restrictions or conditions
of any nature whatsoever now or hereafter imposed, levied, collected,
withheld or assessed by any country or by any political subdivision or taxing
authority thereof or therein, other than income or franchise taxes imposed by
the federal government or the jurisdiction of any Bank's head office or
Lending Office or any other state or local jurisdiction based on the tax base
apportioned to such jurisdiction (such non-excluded amounts, being "Taxes").
If any Taxes are required to be withheld from any amounts payable to the
Agent hereunder, the amounts so payable to the Agent shall be increased to
the extent necessary to yield to the Agent for the ratable benefit of the
Banks (after payment of all Taxes) the amounts payable hereunder in the full
amounts so to be paid. Whenever any Tax is paid by the Guarantor, as promptly
as possible thereafter, the Guarantor shall send the Agent an official
receipt showing payment thereof, together with such additional documentary
evidence as may be required from time to time by the Agent.
Section 9. ELIGIBLE DEPOSITED ASSETS. As of the date hereof, the
Guarantor maintains on deposit with the Agent Eligible Deposited Assets
having a market value of at least 200% of the maximum liability of the
Guarantor hereunder (as provided in Section 1 hereof). The Guarantor
acknowledges and agrees that a decrease in the value of the Eligible
Deposited Assets on deposit with the Agent (as a result of a decrease in the
market value of such assets, the Guarantor's withdrawal of such assets or
otherwise) may result in the Borrower's noncompliance with the Collateral
Maintenance Tests set forth in the Credit Agreement and a consequent Event of
Default thereunder.
Section 10. REMEDIES GENERALLY. The remedies provided in this Guaranty
are cumulative and not exclusive of any remedies provided by law.
Section 11. SETOFF. The Guarantor agrees that, in addition to (and
without limitation of) any right of setoff, banker's lien or counterclaim the
Agent or any Bank may otherwise have, the Agent and each Bank shall be
entitled, at its option, to offset balances (general or special, time or
demand, provisional or final) held by it for the account of the Guarantor at
any of the Agent's or such Bank's offices, in U.S. dollars or in any other
currency, against any amount payable by the Guarantor under this Guaranty
which is not paid when due (regardless of whether such balances are then due
to the Guarantor), in which case it shall promptly notify the Guarantor
thereof; PROVIDED that the Agent's or such Bank's failure to give such notice
shall not affect the validity thereof.
Section 12. FORMALITIES. The Guarantor waives presentment, notice of
dishonor, protest, notice of acceptance of this Guaranty or incurrence of any
Liability and any other formality with respect to any of the Liabilities or this
Guaranty.
4.
<PAGE>
Section 13. AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Guaranty, nor consent to any departure by the Guarantor
therefrom, shall be effective unless it is in writing and signed by the
Agent, and then the waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. No failure on the
part of the Agent to exercise, and no delay in exercising, any right under
this Guaranty shall operate as a waiver or preclude any other or further
exercise thereof or the exercise of any other right.
Section 14. EXPENSES. If not promptly reimbursed by the Borrower, the
Guarantor shall reimburse the Agent on demand for all costs, expenses and
charges (including without limitation fees and charges of external legal
counsel for the Agent and costs allocated by its internal legal department)
incurred by the Agent in connection with the preparation, performance or
enforcement of this Guaranty. The obligations of the Guarantor under this
Section shall survive the termination of this Guaranty.
Section 15. ASSIGNMENT. This Guaranty shall be binding on, and shall
inure to the benefit of the Guarantor, the Agent, the Banks and their
respective successors and assigns; PROVIDED that the Guarantor may not assign
or transfer its rights or obligations under this Guaranty. Without limiting
the generality of the foregoing: (a) the obligations of the Guarantor under
this Guaranty shall continue in full force and effect and shall be binding on
the estate of the Guarantor; and (b) the Agent and each Bank may assign, sell
participations in or otherwise transfer its rights under the Facilities to
any other person or entity, and the other person or entity shall then become
vested with all the rights granted to the Agent or such Bank, as the case may
be, in this Guaranty or otherwise.
Section 16. CAPTIONS. The headings and captions in this Guaranty are
for convenience only and shall not affect the interpretation or construction
of this Guaranty.
Section 17. GOVERNING LAW, ETC. THIS GUARANTY SHALL BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK. THE GUARANTOR CONSENTS TO THE NONEXCLUSIVE
JURISDICTION AND VENUE OF THE STATE OR FEDERAL COURTS LOCATED IN THE CITY OF
NEW YORK. SERVICE OF PROCESS BY THE AGENT OR ANY BANK IN CONNECTION WITH ANY
SUCH DISPUTE SHALL BE BINDING ON THE GUARANTOR IF SENT TO THE GUARANTOR BY
REGISTERED MAIL AT THE ADDRESS SPECIFIED BELOW OR AS OTHERWISE SPECIFIED BY
THE GUARANTOR FROM TIME TO TIME. THE GUARANTOR WAIVES ANY RIGHT THE
GUARANTOR MAY HAVE TO JURY TRIAL IN ANY ACTION RELATED TO THIS GUARANTY OR
THE TRANSACTIONS CONTEMPLATED HEREBY AND FURTHER WAIVES ANY RIGHT TO
INTERPOSE ANY COUNTERCLAIM RELATED TO THIS GUARANTY OR THE TRANSACTIONS
CONTEMPLATED HEREBY IN ANY SUCH ACTION. TO THE EXTENT THAT THE GUARANTOR HAS
OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM
ANY LEGAL PROCESS (WHETHER
5.
<PAGE>
FROM SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OF A JUDGMENT, EXECUTION OR OTHERWISE), THE GUARANTOR HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF HIS/HER OBLIGATIONS UNDER THIS
GUARANTY.
[SIGNATURE PAGE FOLLOWS.]
6.
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered as of the date first above written.
___________________________________
[If applicable: Guarantor may limit to bind
only separate property]
Address:
7.
<PAGE>
EXHIBIT M
CONFIRMATION
THIS CONFIRMATION ("Confirmation") dated as of July 28, 1997, by and
among Nextel Communications, Inc. ("Nextel"), Digital Radio, L.L.C. ("Digital
Radio") and Craig O. McCaw ("Mr. McCaw"; and Mr. McCaw and Digital Radio
collectively, the "McCaw Parties"), relates to the intended operation of
certain provisions of that certain Securities Purchase Agreement, dated as of
April 4, 1995, as amended (the "SPA") by and among the parties hereto, as
more fully set forth below.
BACKGROUND
The parties to this Confirmation acknowledge their mutual recognition
that it is desirable for such parties to confirm their respective intentions
concerning certain actions and procedures that will be applicable to
circumstances where Section 3.1(j) of the SPA would be applicable and also to
indicate to each other that, to the extent such actions and procedures would
not otherwise be deemed revelant to the application and operation of the
provisions of Section 3.1(j) if the SPA, the parties expressly intend that
this Confirmation supplement, and, to the extent required to implement the
terms of this Confirmation, amend, the provisions of Section 3.1(j) of the
SPA (and that Section 3.1(j), as so supplemented and amended, shall be
applied for purposes of the interpretation of Section 3.5(a) of the SPA).
NOW, THEREFORE, for good and valuable consideration received by each of the
parties, the parties hereto agree as follows:
1. The rights and obligations of the parties set forth in Section 3.1
of the SPA shall automatically terminate, and the Investor Group shall cause
all Investor Directors to resign, if the Directors (other than the Investor
Directors) determine by majority vote, at a meeting of the Board held
following any sale, transfer or other disposition of Voting Securities by any
member of the Investor Group that causes the Voting Power Ownership
Percentage of the Investor Group to be less than 5% ("Triggering Transfer"),
that the Board does not desire that the Operations Committee continue to
exist. The McCaw Parties agree that they will, and will cause each other
member of the Investment Group at and after the time of such a Triggering
Transfer to (i) comply with each obligation of the Investor Group under
Section 3.1 if the SPA unless and until such Section 3.1 is terminated in
accordance with the preceding sentence and (ii) to refrain from calling any
meeting of the Operations Committee, and to cause each Investor Director to
refrain from taking any action in such Investor Director's capacity as a
member of such Operations Committee, except as consented to by a majority of
the Directors (other than the Investor Directors) at or prior to the meeting
of the Board held following such Triggering Transfer. From and after the
execution and delivery hereof, the parties confirm their mutual intention
that the reference to Section 3.1(j) appearing in Section 3.5(a) of the
<PAGE>
SPA be deemed to refer to Section 3.1(j) if the SPA as supplemented and amended
by this Confirmation.
2. Section 8.3(f) of the SPA does not and is deemed by the parties not to
bar foreclosure against Class A Preferred Shares, Class B Preferred Shares,
Class C Preferred Shares or shares of Common Stock by a bank or banks which have
a perfected security interest in such shares, nor realization by such bank or
banks against such shares.
3. The Confirmation may be executed in any number of counterparts, each
of which shall be deemed an original and all of which together shall constitute
but one and the same Confirmation. All terms used herein that are defined in
the SPA, unless expressly defined otherwise herein, are used herein as defined
in the SPA. This Confirmation shall be binding upon the parties hereto and
their respective successors and paragraph captioned "BACKGROUND" above.
4. THIS CONFIRMATION SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY
CONFLICTS OF LAWS PRINCIPLES OF SUCH STATE.
IN WITNESS WHEREOF, the parties hereto have caused this Confirmation to be
duly executed and delivered as of the day and year first above written.
NEXTEL COMMUNICATIONS, INC.
By:/s/ Thomas J. Sidman
-----------------------
DIGITAL RADIO, L.L.C.
By: /s/ C. James Judson
------------------------
/s/ Craig O. McCaw
-------------------------
CRAIG O. McCAW, for his sole and
seperate estate
<PAGE>
SCHEDULE 1
COMMITMENTS
<TABLE>
<CAPTION>
FACILITY A BANKS FACILITY A FACILITY A
- ------------------ COMMITMENT PERCENTAGE
----------- -----------
<S> <C> <C>
The Chase Manhattan Bank $ 134,646,878.20 30.7062436%
Morgan Guaranty Trust Company of 71,811,668.37 16.3766633%
New York
Citibank N.A. 71,811,668.37 16.3766633%
PNC Bank, National Association 71,811,688.37 16.3766633%
The Bank of Nova Scotia 52,512,282.51 11.9754350%
Wells Fargo Bank, N.A. 17,952,917.09 4.0941658%
U.S. Bank of Washington, N.A. $ 17,952,917.09 4.0941658%
------------------ --------------
TOTAL $ 438,500,000.00 100%
<CAPTION>
FACILITY B BANKS FACILITY B FACILITY B
- ------------------ COMMITMENT PERCENTAGE
------------ -----------
<S> <C> <C>
The Chase Manhattan Bank $ 15,353,121.80 10.2354154%
Morgan Guaranty Trust Company of 8,188,331.63 5.4588878%
New York
Citibank, N.A. 8,188,331.63 5.4588878%
PNC Bank, National Association 8,188,331.63 5.4588878%
The Bank of Nova Scotia 5,987,717.49 3.9918117%
Wells Fargo Bank, N.A. 2,047,082.91 1.3647219%
U.S. Bank of Washington, N.A. 2,047,082.91 1.3647219%
Canadian Imperial Bank of Commerce 100,000,000.00 66.6666666%
--------------- -------------
TOTAL $ 150,000,000.00 100%
</TABLE>
S-1
