1
Exhibit 10.2
EXECUTION COPY
SECURED LOAN AGREEMENT
dated as of
December 16, 1999
by and between
NEXTEL INTERNATIONAL, INC.,
THE LENDERS NAMED HEREIN,
and
MOTOROLA CREDIT CORPORATION,
as Administrative Agent and as Collateral Agent
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TABLE OF CONTENTS
PAGE
SECTION 1 DEFINITIONS...........................................................................................1
Section 1.1 Defined Terms..............................................................................1
Section 1.2 Interpretation............................................................................21
Section 1.3 Accounting Principles and Terms...........................................................22
SECTION 2 ADVANCES.............................................................................................22
Section 2.1 Commitment................................................................................22
Section 2.2 Procedure for Borrowing; Advances.........................................................23
Section 2.3 Evidence of Debt..........................................................................24
Section 2.4 Repayment of Principal of Advances........................................................25
Section 2.5 Prepayments...............................................................................25
Section 2.6 Interest; Fees............................................................................26
Section 2.7 Payments..................................................................................28
Section 2.8 Conversion and Continuation...............................................................28
Section 2.9 Use of Proceeds...........................................................................29
Section 2.10 Change in Law............................................................................29
Section 2.11 Illegality...............................................................................29
Section 2.12 Pro Rata Treatment.......................................................................30
Section 2.13 Sharing of Setoffs.......................................................................31
SECTION 3 FUNDING AND YIELD PROTECTION.........................................................................31
Section 3.1 Taxes, Duties, Fees and Charges...........................................................31
Section 3.2 Change in Circumstances...................................................................33
SECTION 4 EXPENSES; INDEMNIFICATION; FEES......................................................................35
Section 4.1 Expenses..................................................................................35
Section 4.2 Indemnification...........................................................................36
SECTION 5 SECURITY.............................................................................................37
Section 5.1 Security..................................................................................37
SECTION 6 REPRESENTATIONS AND WARRANTIES.......................................................................37
Section 6.1 Organization..............................................................................37
Section 6.2 Power; Authority..........................................................................38
Section 6.3 Governmental Approvals....................................................................38
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Section 6.4 Execution, Enforceability, Violation of Law and Agreements................................39
Section 6.5 Financial Statements; Business Plan.......................................................40
Section 6.6 Taxes.....................................................................................40
Section 6.7 Properties................................................................................41
Section 6.8 Compliance with Laws......................................................................41
Section 6.9 Intellectual Property.....................................................................42
Section 6.10 Burdensome Documents; Agreements with Affiliates; Other
Agreements...............................................................................42
Section 6.11 Security Documents.......................................................................43
Section 6.12 Judgments, Actions, Proceedings..........................................................43
Section 6.13 No Defaults..............................................................................43
Section 6.14 Strikes..................................................................................44
Section 6.15 Accuracy of Information..................................................................44
Section 6.16 Survival of Representations and Warranties...............................................44
Section 6.17 ERISA....................................................................................44
Section 6.18 Use of Proceeds..........................................................................46
Section 6.19 Investment Company.......................................................................46
SECTION 7 AFFIRMATIVE COVENANTS................................................................................46
Section 7.1 Performance of Obligations................................................................46
Section 7.2 Annual Financial Statements...............................................................47
Section 7.3 Quarterly Financial Statements............................................................47
Section 7.4 Other Information.........................................................................48
Section 7.5 Access to Books; Inspections..............................................................48
Section 7.6 Governmental Approvals....................................................................49
Section 7.7 Insurance.................................................................................49
Section 7.8 Continuance of Business...................................................................50
Section 7.9 Maintenance and Repairs...................................................................50
Section 7.10 Compliance with Law......................................................................50
Section 7.11 Notices..................................................................................51
Section 7.12 Security; Further Assurances.............................................................52
Section 7.13 Construction of the Systems..............................................................53
Section 7.14 Maintenance of Governmental Approvals....................................................53
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Section 7.15 Financial Covenants......................................................................53
SECTION 8 NEGATIVE COVENANTS...................................................................................55
Section 8.1 Indebtedness..............................................................................55
Section 8.2 Guaranties................................................................................55
Section 8.3 Transfer..................................................................................55
Section 8.4 Liens.....................................................................................56
Section 8.5 Mergers; Acquisitions.....................................................................56
Section 8.6 Distributions; Redemptions................................................................56
Section 8.7 Use of Proceeds...........................................................................57
Section 8.8 Amendment of Documents and Organization...................................................57
Section 8.9 Investments; Loans; Advances..............................................................58
Section 8.10 Transactions with Affiliates.............................................................60
Section 8.11 Changes in Business......................................................................60
Section 8.12 Prepayments..............................................................................60
Section 8.13 ERISA Obligations........................................................................60
Section 8.14 Sale and Leaseback Transactions..........................................................61
Section 8.15 New Subsidiaries.........................................................................61
Section 8.16 Restricted Subsidiaries..................................................................61
SECTION 9 CONDITIONS PRECEDENT.................................................................................62
Section 9.1 Conditions to Initial Advance.............................................................62
Section 9.2 Conditions to All Advances................................................................64
SECTION 10 EVENTS OF DEFAULT...................................................................................64
Section 10.1 Events of Default........................................................................64
Section 10.2 Remedies.................................................................................67
Section 10.3 Cumulative Rights........................................................................69
Section 10.4 Waiver of Demand; Setoff.................................................................69
Section 10.5 Waiver of Notice.........................................................................70
SECTION 11 The Administrative Agent and the Collateral Agent...................................................70
SECTION 12 MISCELLANEOUS.......................................................................................72
Section 12.1 Waiver of Sovereign Immunity.............................................................72
Section 12.2 Venue for Suit...........................................................................73
Section 12.3 Governing Law............................................................................74
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Section 12.4 Severability of Provisions...............................................................74
Section 12.5 Binding Effect; Assignment...............................................................74
Section 12.6 Entire Agreement; Amendments.............................................................75
Section 12.7 Notices..................................................................................75
Section 12.8 Right of Set-Off.........................................................................76
Section 12.9 Counterparts.............................................................................77
Section 12.10 Confidentiality.........................................................................77
Section 12.11 Term of Agreement.......................................................................77
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EXHIBITS
Exhibit A Form of Financing Note
Exhibit B Form of Company Pledge Agreement
Exhibit C Form of Cash Collateral Agreement
Exhibit D-1 Form of Opinion of United States Counsel
Exhibit D-2 Form of Opinion of Canadian Counsel
Exhibit E Form of Assignment and Acceptance
Exhibit F Initial Approved Business Plan
Exhibit G Form of Request for Financing
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SCHEDULES
Schedule 1.1(a) iDEN Equipment and Service Agreements
Schedule 1.1(b) Existing Indebtedness
Schedule 1.1(c) Additional Subordinated Debt Terms
Schedule 1.1(d) Wholly-Owned Subsidiaries
Schedule 2.1(a) Lenders; Initial Commitments
Schedule 6.1(a) Credit Party Structure; Ownership; Subsidiaries
Schedule 6.1(b) Qualification Jurisdictions
Schedule 6.4 Ownership and Pledge Restrictions; Violation of Law
Schedule 6.5 Recent Events; Contingent Liabilities; Taxes
Schedule 6.7 Existing Liens
Schedule 6.9 Intellectual Property
Schedule 6.10 Management Agreements; Affiliate Transactions
Schedule 6.12 Litigation
Schedule 7.11 Principal Place of Business
Schedule 8.6 Existing Put Agreements
Schedule 10.1(t) Change of Control Thresholds
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SECURED LOAN AGREEMENT, dated as of December 16, 1999 (as
amended, modified or supplemented in accordance with the terms hereof, this
"Agreement"), by and between NEXTEL INTERNATIONAL, INC., a corporation organized
under the laws of the State of Washington, U.S.A., with its principal office at
2001 Edmund Halley Drive, Reston Virginia, 20191 U.S.A. (the "Company"), the
LENDERS (hereinafter defined) and MOTOROLA CREDIT CORPORATION, a corporation
duly organized under the laws of the State of Delaware, U.S.A., with its
principal office at 1303 East Algonquin Road, Schaumburg, Illinois 60196-1065,
U.S.A. as administrative agent (in such capacity, the "Administrative Agent")
and as collateral agent (in such capacity, the "Collateral Agent") for the
Lenders.
W I T N E S S E T H:
WHEREAS, the Company has requested that the Lenders provide Advances
(as hereinafter defined) in the principal amount not exceeding $56,650,000 (the
"Maximum Commitment") to be used for supporting the Company's build-out
employing the products and services of Motorola Entities; and
WHEREAS, the Lenders are willing to make Advances to the Company upon
the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make the Advances and to induce the Lenders, the Administrative
Agent and the Collateral Agent to enter into the agreements referred to herein,
the parties agree as follows:
SECTION 1 DEFINITIONS
SECTION 1.1 DEFINED TERMS.
In addition to the terms defined above, when used in this Agreement,
the following terms shall have the following meanings:
"1997 Nextel Philippines Facility" means that certain Credit Agreement
dated June 18, 1997, as amended, by and between Nextel Philippines and Motorola,
Inc.
"additional amount" has the meaning ascribed to such term in subsection
3.1(a).
"Adjusted Paid-in Capital" means, at any time, (a) the paid-in capital
of the Company (including for this purpose the principal amount of any
outstanding Permitted Indebtedness owing to Nextel and incurred by the Company
of the type described under clause (h) of the definition thereof) reflected on
the most recent financial statements delivered pursuant to Section 7.2 or 7.3
(whichever is later) plus (b) any increases in paid-in capital (including for
this purpose the principal amount of any outstanding Permitted Indebtedness
owing to Nextel and incurred by the Company of the type described under clause
(h) of the definition thereof) since the end of the reporting period relating to
such financial statements minus (c) any decreases in paid-in capital since the
end of the reporting period relating to such financial statements minus (d) the
Utilized EBITDA Adjustment.
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"Adjusted Shareholders' Equity" means, at any time, the difference of
(a) (i) if the financial statements most recently delivered pursuant to Section
7.3 relate to a quarterly period occurring after the financial statements most
recently delivered pursuant to Section 7.2, the lesser of (A) the shareholders'
equity of the Company as reported in the most recent balance sheet delivered
pursuant to Section 7.3 and (B) the sum of (1) the shareholders' equity of the
Company as reported in the most recent balance sheet delivered pursuant to
Section 7.2 plus (2) 90% of the increase, if any, in the shareholders' equity of
the Company reflected in the most recent balance sheet delivered pursuant to
Section 7.3 from the shareholders' equity of the Company reflected on the
balance sheet delivered pursuant to Section 7.2, otherwise (ii) the
shareholders' equity of the Company as reported in the most recent balance sheet
delivered pursuant to Section 7.2 minus (b) the principal amount of Indebtedness
incurred prior to such time pursuant to clause (n) of the definition of
"Permitted Indebtedness" (whether or not then outstanding).
"Administrative Agent" has the meaning ascribed to such term in the
Preamble.
"Advance" has the meaning ascribed to such term in subsection 2.1(a)
hereof.
"Affected Party" has the meaning ascribed to such term in subsection
3.2(a).
"Affiliate" means with respect to any Person, any other Person (a)
which directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such first Person, (b) which
beneficially owns or holds 10% or more of any class of the Voting Stock of such
first Person, or (c) whereby 10% or more of the Voting Stock (or in the case of
a Person which is not a corporation, 10% or more of the equity interest) of such
other Person is beneficially owned or held by such first Person or by a
Subsidiary of such first Person. The term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of Voting
Stock, by contract or otherwise.
"Agents" has the meaning ascribed to such term in Section 11 hereof.
"Aggregate Collateral Value" means the sum of (i) the cash collateral
subject to the Cash Collateral Agreement plus (ii) the Aggregate Pledge
Collateral Value.
"Aggregate Pledge Collateral Value" means, as of any date, (i) except
as provided in clause (ii) below, the product of the Closing Price on such date
for a share of publicly-traded Class A Clearnet stock times the aggregate number
of the shares of publicly-traded Class A Clearnet stock into which the Clearnet
stock subject to the Company Pledge Agreement in which the Collateral Agent has
a perfected, first priority enforceable security interest are convertible and
(ii) solely with respect to the calculation in Section 7.12(d)(i), the product
of the Average Closing Price for a share of publicly-traded Class A Clearnet
stock times the aggregate number of the shares of publicly-traded Class A
Clearnet stock into which the Clearnet stock subject to the Company Pledge
Agreement in which the Collateral Agent has a perfected, first priority
enforceable security interest are convertible.
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"Agreement" means this Secured Loan Agreement, dated as of December 16,
1999, by and between the Company, the Collateral Agent, the Administrative Agent
and the Lenders, as the same may be amended, modified or supplemented from time
to time in accordance with the terms hereof.
"Applicable Margin" means (a) with respect to any LIBOR Advance, 5.00%
per annum, and (b) with respect to any Prime Advance, 2.50% per annum.
"Approved Business Plan" means the ten year business plan of the
Company, taken as a whole (including, without limitation, the Restricted
Subsidiaries.) The Approved Business Plan is attached hereto as Exhibit F (the
"Initial Plan").
"Arm's-Length Affiliate" has the meaning ascribed to such term in
Section 8.10 hereof.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an assignee, and accepted by the Administrative Agent, in
the form of Exhibit E or such other form as shall be approved by the
Administrative Agent.
"Authorized Officer" means (a) with respect to any Person that is a
corporation, the President, Vice President or Chief Financial Officer of such
Person, (b) with respect to any Person that is a partnership, the President,
Vice President or Chief Financial Officer of a general partner of such Person,
in each case whose names appear on a certificate of incumbency of such Person
delivered concurrently with the execution of this Agreement, or (c) with respect
to Person that is a limited liability company, the Person (or Authorized Officer
thereof, if not a natural Person) that is the managing member thereof.
"Available Commitment" means an amount equal to (a) the Maximum
Commitment minus (b) the aggregate principal amount of all Advances made to and
including the date of determination, including, without limitation, Advances
that have been repaid or prepaid.
"Availability Period" means the period beginning with the Closing Date
and ending on the Commitment Termination Date.
"Average Closing Price" shall mean, with respect to any security, the
average of the Closing Prices for such security over a period of 20 consecutive
Business Days ending on the day prior to the day as of which the "Average
Closing Price" is being determined. If at any time such security is not listed
on any securities exchange or quoted in The Nasdaq National Market System or the
over-the-counter market, the "Average Closing Price" will be the fair value
thereof determined jointly by the Company and the Administrative Agent. If such
parties are unable to reach agreement within five Business Days, such fair value
will be determined by an independent appraiser jointly selected by the Company
and the Administrative Agent and the fees and expenses of such independent
appraiser shall be borne by the Company.
"Borrowing" means a group of Advances of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in effect.
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"Business Day" means (a) any day other than Saturday, Sunday or any
other day on which commercial banks in Chicago are authorized or required under
the laws of the State of Illinois, or pursuant to other government action, to
close, and (b) with respect to all notices and determinations in connection with
any payment of principal and interest on LIBOR Advances, any day which satisfies
the conditions set forth in clause (a) above and which is also a day for trading
by and between banks for U.S. dollar deposits in the London interbank market.
"Capital Lease Obligations" means the obligations of a Person and its
Subsidiaries (determined on a consolidated basis (without duplication) in
accordance with GAAP) to pay rent or other amounts under any leases for real or
personal property which obligations are required to be classified and accounted
for as capital leases in accordance with GAAP.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether now outstanding or
issued after the Closing Date, including, without limitation, all common stock
and preferred stock.
"Cash Collateral Agreement" has the meaning ascribed to such term in
Section 5.1 hereof.
"Change of Control" means such time as (a) (i) prior to the occurrence
of a Public Market, a "person" or "group" (within the meaning of Section 13(d)
or 14(d)(2) of the Exchange Act) becomes the ultimate "beneficial owner" (as
defined in Rule 13d-3 of the Exchange Act) of Voting Stock representing a
greater percentage of the total voting power of the Voting Stock of the Company,
on a fully diluted basis, than is held by the Existing Stockholders and their
Affiliates on such date and (ii) after the occurrence of a Public Market, a
"person" or "group" (within the meaning of Section 13(d) and 14(d)(2) of the
Exchange Act) becomes the ultimate "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act) of more than 35% of the total voting power of the Voting
Stock of the Company on a fully diluted basis and such ownership is greater than
the amount of voting power of the Voting Stock, on a fully diluted basis, held
by the Existing Stockholders and their Affiliates on such date; or (b)
individuals who on the Closing Date constitute the Board of Directors (together
with any new directors whose election by the Board of Directors or whose
nomination for election by the Company's stockholders was approved by a vote of
at least two-thirds of the members of the Board of Directors then in office who
either were members of the Board of Directors on the Closing Date or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the members of the Board of Directors then in
office.
"Clearnet" means Clearnet Communications, Inc., a Canadian corporation.
"Closing Date" means December 16, 1999.
"Closing Price" means, with respect to any security at any time, the
average, as of the immediately preceding Business Day, of the closing prices of
such security's sale on all recognized securities exchanges (or The Nasdaq
National Market System) on which such security may at the time be listed, or, if
there has been no sale on any such exchange (or The
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Nasdaq National Market System) on any such immediately preceding business day,
the average of the highest bid and lowest asked prices on all such exchanges (or
The Nasdaq National Market System) at the end of such immediately preceding
business day, or, if on any such immediately preceding business day such
security is not so listed or quoted, the average of the representative bid and
asked prices quoted in The Nasdaq National Market System or the over-the-counter
market as of 4:00 P.M., New York time, or, if on any such immediately preceding
business day such security is not quoted in The Nasdaq National Market System or
the over-the-counter market, the average of the highest bid and lowest asked
prices on such immediately preceding Business Day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization. If at any time such
security is not listed on any securities exchange or quoted in The Nasdaq
National Market System or the over-the-counter market, the "Market Price" will
be the fair value thereof determined jointly by the Company and the
Administrative Agent. If such parties are unable to reach agreement within five
Business Days, such fair value will be determined by an independent appraiser
jointly selected by the Company and the Administrative Agent and the fees and
expenses of such independent appraiser shall be borne by the Company.
"Code" means the Internal Revenue Code of 1986, as it may be amended
from time to time, and the regulations promulgated thereunder.
"Collateral" means all property which is subject to the security
interests or Lien granted by the Company Pledge Agreement and the Cash
Collateral Agreement.
"Collateral Agent" has the meaning ascribed to such term in the
Preamble.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Advances hereunder as set forth on Schedule 2.1(a), or in the
Assignment and Acceptance pursuant to which such Lender assumed its Commitment,
as applicable, as the same may be (a) reduced from time to time pursuant to
Section 2.5(a)(ii) and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 12.5.
"Commitment Termination Date" means the earlier of (a) December 31,
2001 and (b) the date on which the obligations of the Lenders to make Advances
terminate in accordance with the terms of this Agreement.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Agreement, including, without limitation, all
series and classes of such common stock.
"Company" has the meaning ascribed to such term in the Preamble.
"Company Pledge Agreement" has the meaning ascribed to such term in
Section 5.1 hereof.
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"Consolidation" means the consolidation of the accounts of each of the
Restricted Subsidiaries with those of the Company, if and to the extent that the
accounts of each such Restricted Subsidiary would normally be consolidated with
those of the Company in accordance with GAAP; provided, however, that
"consolidation" shall not include consolidation of the accounts of any
Unrestricted Subsidiary, but the interest of the Company or any Restricted
Subsidiary in any Unrestricted Subsidiary shall be accounted for as an
investment. The term "consolidated" has a correlative meaning.
"Control" means at any time, the possession (on a fully diluted basis),
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of Voting
Stock, by contract or otherwise.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which as of the relevant date, together with the Company, are
treated as a single employer under Section 414(b) or 414(c) of the Code or
Section 4001(b)(1) of ERISA.
"could reasonably be expected" means as would be determined by a
prudent Person, familiar with the general substance at issue, in like
circumstances with the Person making the decision.
"Credit Documents" means, individually and collectively, this
Agreement, the Company Pledge Agreement, the Cash Collateral Agreement (if any)
and each other document entered into pursuant thereto.
"Credit Parties" collectively refers to the Company and the Restricted
Subsidiaries.
"Default" means any event, occurrence, factual or legal condition
which, if continued uncured or unchanged would, with the passage of time or the
giving of notice or both, become or constitute an Event of Default.
"Distributions" has the meaning ascribed to such term in subsection
8.6(a) hereof.
"Dollars" and the sign "$" mean the lawful money of the United States
of America.
"Drawdown Date" has the meaning ascribed to such term in subsection
2.2(a) hereof.
"EBITDA" means, as to any Person and for any period, net income of such
Person and its Subsidiaries as measured in accordance with GAAP on a
consolidated basis for such period adjusted as follows: (a) plus interest
expense for such period to the extent such amount was deducted in calculating
net income; (b) minus interest income for such period to the extent such amount
was added in calculating net income; (c) plus income taxes for such period to
the extent such amount was deducted in calculating net income; (d) minus income
tax benefits for such period to the extent such amount was added in calculating
net income; (e) plus amortization and depreciation expenses for such period to
the extent such amount was deducted in calculating net income; (f) plus all
other non-cash items for such period to the extent reducing net income; (vii)
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minus all non-cash items for such period to the extent increasing net income;
(g) minus extraordinary gains and gains on sales of assets to the extent such
amount was added in calculating net income; and (h) plus extraordinary and
non-recurring losses and charges to the extent such amount was deducted in
calculating net income.
"Environmental Laws" means any and all governmental statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, guidelines, interpretations,
policies, agreements or other restrictions or requirements (herein, "laws and
regulations") relating to Materials of Environmental Concern or protection of
human or animal health or the environment (including, without limitation,
ambient air, indoor air, surface water, ground water, land surface or
sub-surface strata), including, without limitation, laws and regulations
relating to emissions, discharges, health or safety, noise abatement, releases
or threatened releases of Materials of Environmental Concern or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, recycling, reporting or handling of Materials of
Environmental Concern, and all such laws and regulations that may be enacted in
the future.
"Environmental Matters" has the meaning ascribed to such term in
subsection 6.8(d) hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time, and the regulations promulgated thereunder.
"Escrow Agreement" means that certain Escrow Agreement, dated as of
October 17, 1994, between Lenbrook, Inc., Motorola Canada Limited, Nextel
Communications, Inc., Nextel Investment Company, Montreal Trust Company of
Canada and Clearnet Communications, Inc., as the same may heretofore have been
or may hereafter be amended, supplemented or otherwise modified.
"Event of Default" means any of the events specified in Section 10.1
hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
of the United States of America.
"Existing Stockholders" means Craig O. McCaw and Nextel.
"Financing Note" has the meaning ascribed to such term in subsection
2.3(d) hereof.
"Force Majeure" means any fire, explosion, accident, strike, lockout or
other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of
the public enemy or other casualty (whether or not covered by insurance) or
other event of force majeure which could reasonably be expected to have a
Material Adverse Effect.
"GAAP" means generally accepted accounting principles used, from time
to time, in the United States of America.
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"Governmental Approval" means any authorization, consent, approval,
license, (including the Licenses) franchise, concession, lease, ruling, permit,
certification, exemption, filing or registration by or with any Governmental
Authority or legal or administrative body material and necessary for the design,
location, construction, completion, ownership, operation, repair or maintenance
of a System or a Telecommunications Business, authority to conduct business, the
execution and delivery of the Credit Documents, the making of Advances or the
creation and perfection of the Liens contemplated by the Security Documents.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative authority or functions of or
pertaining to government.
"Governmental Rule" means any statute, law, regulation, ordinance,
rule, judgment, order, writ, decree, directive, guideline, policy or
requirement, or any similar form of decision of or determination by, or any
interpretation or administration of any of the foregoing by, any Governmental
Authority (including, without limitation, any Environmental Law), whether now or
hereafter in effect.
"Hedge Agreement" means an interest rate swap, cap, floor or collar
agreement, any spot or forward contracts, interest rate future or option
contracts, currency swap agreements, commodities future contracts, currency
future or option contracts or other similar agreement or arrangement, as the
same shall be modified and supplemented and in effect from time to time.
"Hedge Termination Value" means, in respect of any one or more Hedge
Agreements, after taking into account the effect of any legally enforceable
netting agreement relating to such Hedge Agreements, (a) for any date on or
after the date such Hedge Agreements have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and (b)
for any date prior to the date referenced in clause (a) the amount(s) determined
as the mark-to-market value(s) for such Hedge Agreements, as determined by the
Company based upon one or more mid-market or other readily available quotations
provided by any recognized dealer in such Hedge Agreements (which may include
any Lender).
"iDEN" means the Integrated Digital Enhanced Network created by the
Motorola Entities.
"iDEN Equipment and Service Agreements" means each Integrated Digital
Enhanced Network Equipment Purchase Agreement and each Integrated Digital
Enhanced Network Installation and Optimization Agreement listed on Schedule
1.1(a) hereto, together with any amendments thereto or any other similar
agreements entered into from time to time between the Company, an Operating
Affiliate, and the Vendor for the purchases of iDEN Equipment and Services for
use in a Relevant Country.
"iDEN Equipment and Services" means iDEN infrastructure equipment and
related services supplied by the Motorola Entities (including ancillary products
and services such as switches which have been ordered from and provided by the
Motorola Entities but excluding
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subscriber equipment and accessories) and related transportation and shipping
costs, but excluding import taxes, duties and other like costs.
"iDEN System" means, with respect to each System, the wireless
communications system using iDEN technology which is being operated in
connection with such System.
"Indebtedness" means, with respect to any Person, without duplication
and on a consolidated basis (a) all indebtedness of such Person for borrowed
money (whether by loan or the issuance and sale of debt securities), (b) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services (excluding current trade payables incurred in the ordinary
course of business of such Person which are due no later than 90 days after the
date of invoice), (c) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (d) the obligations of such
Person under direct or indirect guaranties in respect of, and obligations
(contingent or otherwise) to purchase or otherwise acquire, or otherwise to
assure a creditor against loss in respect of, indebtedness or obligations of
others of the types referred to in clauses (a) and (c) above, (e) all
obligations of such Person in respect of letters of credit or similar
instruments issued or accepted by banks and other financial institutions for the
account of such Person, (including, without limitation, reimbursement
obligations with respect thereto but excluding (i) letters of credit (including
trade letters of credit) securing obligations (other than obligations described
in (a), (b), (c) and (d) above and (f) and (g) below), entered into in the
ordinary course of business of such Person to the extent such letters of credit
are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed
no later than the third Business Day following receipt by such Person of a
demand for reimbursement and (ii) letters of credit secured by cash in a manner
not in breach of this Agreement which is deposited in a segregated account held
by a non-affiliate of such Person), (f) all indebtedness of others secured by a
Lien on any asset of such Person whether or not such indebtedness is assumed by
such Person, provided, that, in the case where such Person has no obligation
with respect to the Indebtedness of such other Person other than such Lien, the
amount of Indebtedness shall be the lesser of (i) the fair market value of such
asset at such date of determination and (ii) the amount of such Indebtedness,
(g) all Capital Lease Obligations, and (h) to the extent not otherwise included
in this definition, the net payment obligations in respect of Hedge Agreements
(including, without limitation, Hedge Termination Values to the extent
consisting of liabilities of such Person).
"Indemnitees" has the meaning ascribed to such term in subsection
4.2(a) hereof.
"Information" has the meaning ascribed to such term in Section 12.10
hereof.
"Initial Funding Date" means the date upon which each of the conditions
precedent set forth in Section 9.1 and 9.2 have been satisfied (as required
thereunder) and the initial Advance is made.
"Initial Lender" means Motorola Credit Corporation, in its capacity as
initial lender hereunder.
"Initial Plans" has the meaning ascribed to such term in the definition
of "Approved Business Plan".
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17
"Intellectual Property" has the meaning ascribed to such term in
Section 6.9 hereof.
"Interest Payment Date" means, for all Advances, each March 31, June
30, September 30 and December 31 and, with respect to any LIBOR Advance, the
last day of the Interest Period applicable to the Advance, and, in addition, the
date of any prepayment of such Advance or conversion of such Advance to an
Advance of a different Type; provided that if any Interest Payment Date would be
a day other than a Business Day, such Interest Payment Date shall be the next
succeeding Business Day unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Payment Date shall be the
next preceding Business Day.
"Interest Period" means (a) as to any LIBOR Advance, the period
commencing on the date of such Advance and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the last
day) in the calendar month that is one, two, three or six months thereafter, as
the Company may elect, and (b) as to any Prime Advance, the period commencing on
the date of such Advance and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the Maturity Date, and
(iii) the date such Advance is converted to an Advance of a different Type in
accordance with Section 2.8 or repaid or prepaid in accordance with Section 2.5;
provided that if any Interest Period would end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar month,
in which case such Interest Period shall end on the next preceding Business Day.
Interest shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Investment" means, with respect to any Person, any loan or advance to
such Person, any purchase or other acquisition of any capital stock, obligations
or other securities of such Person, any capital contribution to such Person or
any other investment in or acquisition of any interest in such Person.
"IRS" means the Internal Revenue Service.
"knowledge" means as it applies to any Person, the actual knowledge of
a Vice President (or equivalent officer, as applicable) or more senior officer
of such Person, or any other officer or employee of such Person having
responsibility for the transactions contemplated by the Credit Documents.
"Lending Office" means, with respect to a Lender or the Administrative
Agent, any office, branch, subsidiary or affiliate of such Lender or the
Administrative Agent listed on the administrative information sheets provided to
the Administrative Agent by such Lender in connection herewith or otherwise
selected by such Lender or the Administrative Agent pursuant to subsection
3.1(f).
"Lender Party" means, as the context may require, the Administrative
Agent, the Collateral Agent, any Lender and each of their respective successors,
transferees and assigns.
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18
"Lenders" means (a) the financial institutions listed on Schedule
2.1(a) (other than any such financial institution that has ceased to be a party
hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance.
"LIBOR Advance" means each Advance the interest on which is determined
on the basis of rates referred to in the definition of LIBOR Base Rate.
"LIBOR Base Rate" means, during an Interest Period for LIBOR Advances,
the rate per annum equal to the rate determined by reference to the LIBOR Page
on the Reuter Monitor Money Rates Services, or any successor thereto as of 11:00
a.m., London, England time two Business Days prior to the beginning of such
Interest Period, for delivery on the first day of such Interest Period for the
number of days comprised therein and in an amount comparable to the amount of
the LIBOR Advances to be made by the Lenders for such Interest Period. If quotes
for the foregoing rates are not available on the Reuter Monitor Money Rates
Services or any successor thereto, the "LIBOR Base Rate" shall mean, during an
Interest Period for LIBOR Advances, the rate of interest per annum determined by
the Administrative Agent to be the weighted average (rounded upwards, if
necessary, to the nearest whole multiple of 1/100 of 1% per annum, if such
weighted average is not such a multiple) of the rates per annum at which
deposits in Dollars are offered to major money center banks in the London
interbank market at 11:00 a.m. London time two Business Days prior to the first
day of such Interest Period, in the approximate amount equal to the principal
amount of the LIBOR Advances to be made by the Lenders for such Interest Period
and for a period equal to such Interest Period.
"LIBOR Borrowing" shall mean a Borrowing comprised of LIBOR Advances.
"LIBOR Rate" means, with respect to a LIBOR Advance, for any Interest
Period therefor, the LIBOR Base Rate for such Advance for such Interest Period
divided by the difference of 1 minus the Reserve Requirement for such Advance
for such Interest Period.
"Licenses" means collectively all those licenses and concessions that
both (a) permit the Credit Parties to conduct a wide range of mobile radio
services, including but not limited to, radio dispatch service, paging,
telephone interconnect services, and other mobile communication, and personal
communication services; and (b) are materially necessary for the ownership,
operation or maintenance of the Systems as is contemplated by the Approved
Business Plan and the Telecommunications Businesses currently engaged in,
together with any amendments or changes to each such license or concession.
"Lien" means, with respect to any Person, any security interest, lien,
pledge, mortgage, deed, charge or encumbrance (including, without limitation,
any agreement to give any of the foregoing), conditional sale agreement, title
retention agreement, finance lease or trust receipt or a consignment or bailment
for security purposes, or other security arrangement or any other arrangement on
or with respect to any asset or revenue of such Person.
"Management Agreements" means collectively the Management Agreements
referred to on Schedule 6.10 hereto.
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19
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, property, condition (financial or otherwise), or prospects of
the Company and its Subsidiaries taken as a whole, (b) the legality, validity or
enforceability of any of the Credit Documents or the rights and remedies of the
Collateral Agent thereunder, or (c) the economic, political or regulatory
environment in any jurisdiction that would reasonably be expected to adversely
affect the business, operations, properties or prospects of the Company and its
Subsidiaries taken as a whole.
"Materials of Environmental Concern" means chemicals, pollutants,
polychlorinated biphenyls, contaminants, wastes, toxic or hazardous substances,
asbestos, petroleum and petroleum products.
"Maturity Date" means December 31, 2001; provided that if such date is
not a Business Day, then the Maturity Date shall be the immediately preceding
Business Day.
"Maximum Collateralized Amount" means the difference of (i) the Maximum
Commitment minus (ii) the principal portion of any Advances prepaid in
accordance with Section 2.5.
"Maximum Commitment" has the meaning ascribed to such term in the first
recital hereof.
"MEFA" means the Master Equipment Financing Agreement, dated as of
February 4, 1999, by and between the Company, as borrower, the lenders named
therein and Motorola Credit Corporation, as administrative and collateral agent,
as the same may heretofore have been or may hereafter be amended, supplemented
or otherwise modified from time to time in accordance with the terms and
provisions thereof and hereof.
"MEFA Collateral" means all of the "Collateral" (as such term is
defined in the MEFA as of the date hereof) securing, from time to time, the MEFA
Obligations; provided that "MEFA Collateral" shall in no event include the
Collateral hereunder.
"MEFA Obligations" means all of the "Obligations" (as such term is
defined in the MEFA) owing by the "Credit Parties" in respect of "Advances" (as
such terms are defined in the MEFA) under the MEFA.
"Motorola Entity" means Motorola, Inc., a corporation duly organized
and validly existing under the laws of the State of Delaware, United States of
America, and each of its Affiliates (other than Nextel and its Subsidiaries) and
Subsidiaries and their successors and assigns.
"Nexnet" means Nexnet Co., Ltd. (f/k/a "J-Com"), a corporation
organized under the laws of Japan.
"Nextel" means Nextel Communications, Inc., a Delaware corporation.
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20
"Nextel Argentina" means Nextel Argentina S.R.L., an Argentine sociedad
de responsibilidad limitada.
"Nextel Argentina Facility" means that certain Credit Agreement, dated
as of February 27, 1998, as amended, modified or supplemented, among Nextel
Argentina, The Chase Manhattan Bank, as administrative agent, and the lenders
party thereto.
"Nextel Brazil" means Nextel S.A., a Brazilian sociedad anonima.
"Nextel Brazil Facility" means that certain Equipment Financing Credit
Agreement dated as of October 31, 1997, as amended, by and between McCaw
International (Brazil), Ltd. and Motorola Credit Corporation.
"Nextel Mexico" means Communicaciones Nextel de Mexico S.A. de C.V., a
corporation organized under the laws of Mexico.
"Nextel Peru" means Communicaciones Nextel del Peru, S.A., a
corporation organized under the laws of Peru.
"Nextel Phlippines" means Nextel Communications Philippines Inc., a
company incorporated in the Philippines.
"Non-U.S. Lender" shall have the meaning ascribed to such term in
subsection 3.1(e).
"Normalization Amount" means, for any quarterly period, the amount set
forth on Schedule 1.1(e) opposite the quarter end date for such period.
"Normalized EBITDA" means, as to any Person and for any quarter, the
sum of (i) 4 times EBITDA for such quarter plus (ii) the Normalization Amount
for such quarter.
"Obligations" means collectively, all of the Indebtedness, liabilities
and obligations of the Company to the Lender Parties under the Credit Documents,
whether now existing or hereafter arising, whether or not currently
contemplated.
"Operating Affiliate" means collectively, Nexnet, Nextel Philippines,
Nextel Argentina, Nextel Brazil, Nextel Mexico and Nextel Peru, and their
respective Subsidiaries, and individually, each of the foregoing Persons.
"Other Taxes" shall have the meaning ascribed to such term in
subsection 3.1(b).
"Payment Location" means an office, branch or other place of business
of the Company.
"PBGC" means the Pension Benefit Guaranty Corporation or its successor.
"Permitted Indebtedness" means, collectively,
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21
(a) the Obligations;
(b) trade accounts payable which are due no later than 120 days
after invoice (or, in the case of trade accounts payable owed to a Motorola
Entity, on payment and other terms as agreed to from time to time between the
relevant obligor(s) and the Motorola Entity) and other similar Indebtedness of
the Credit Parties incurred in the ordinary course of business (including,
without limitation, subscriber equipment and accessories purchased in the
ordinary course of business) and as permitted in this Agreement; provided that
in addition to the foregoing, there shall be permitted to be outstanding at any
one time, up to $20,000,000 of trade accounts payable and other similar
Indebtedness of the Credit Parties incurred in the ordinary course of business
which in are due later than 120 days after invoice but no later than 180 days
after invoice;
(c) obligations under long-term real property leases of the Credit
Parties in respect of the cell sites, switch sites, retail space and office
space incurred in the ordinary course of business;
(d) short-term lease obligations of the Credit Parties in an
amount per annum not exceeding $5,000,000 in the aggregate;
(e) Indebtedness of the Credit Parties to be used for working
capital purposes and not exceeding $43,350,000 in the aggregate, having a
weighted average life to maturity longer than the Obligations for Advances made
under this Agreement and which may be secured by the MEFA Collateral on a pari
passu basis on terms and conditions reasonably satisfactory to the Required
Lenders;
(f) Indebtedness of the Credit Parties not exceeding $100,000,000
in the aggregate, having a weighted average life to maturity longer than each of
(i) the MEFA Obligations and (ii) the Obligations for Advances made under this
Agreement and which shall be unsecured and otherwise be on terms and conditions
reasonably satisfactory to the Required Lenders;
(g) Indebtedness of the Credit Parties pursuant to credit
facilities existing and as in effect on the Closing Date (without regard for
subsequent modifications or amendments increasing the same ) as identified on
Schedule 1.1(b) (including, without limitation, the MEFA Obligations, "Existing
Indebtedness");
(h) unsecured subordinated indebtedness of the Credit Parties,
having no principal payments, cash interest payments or fee payments permitted
or scheduled prior to the repayment in full of the Obligations and the MEFA
Obligations and in amounts and on other terms (including, without limitation,
payment and remedies subordination terms) as described on Schedule 1.1(c);
(i) swingline loans of the Company not exceeding $500,000 which
shall be pari passu with the MEFA Obligations and which may be secured by the
MEFA Collateral;
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(j) any refinancing, extension, renewal or refunding of any
Existing Indebtedness (or other "Permitted Indebtedness" hereunder, which, when
refinanced, extended, renewed or refunded, is incurred pursuant to and in
accordance with one or more of the clauses of this definition) not involving an
increase in the principal amount thereof or a reduction in the remaining
weighted average life to maturity thereof (computed in accordance with standard
financial practice);
(k) Indebtedness of the Credit Parties owing to Motorola Credit
Corporation; provided that, before and after giving effect to such Indebtedness,
the Credit Parties shall be in compliance with each of the financial covenants
set forth in Section 7.15;
(l) Indebtedness (i) in respect of performance, surety or appeal
bonds provided in the ordinary course of business, (ii) under Hedge Agreements;
provided that such Hedge Agreements (A) are designed solely to protect the
Credit Parties against fluctuations in foreign currency exchange rates or
interest rates and (B) do not increase the Indebtedness of the obligor
outstanding at any time other than as a result of fluctuations in foreign
currency exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder; and (C) arising from agreements providing for
indemnification, adjustment of purchase price or similar obligations, or from
Guarantees or letters of credit, surety bonds or performance bonds securing any
obligations of the Credit Parties pursuant to such agreements, in any case
incurred in connection with the disposition of any business, assets or
Restricted Subsidiary (other than Guarantees of Indebtedness incurred by any
Person acquiring all or any portion of such business, assets or Restricted
Subsidiary for the purpose of financing such acquisition), in a principal amount
not to exceed the gross proceeds actually received by the Credit Parties in
connection with such disposition;
(m) guaranties of Indebtedness of the Company by any Restricted
Subsidiary, so long as any such guaranty is subordinated to the prior
indefeasible payment in full in cash of the Obligations and the MEFA
Obligations;
(n) Indebtedness, incurred in an aggregate amount not to exceed
the lesser of $200,000,000 and the Adjusted Shareholders' Equity, having a
weighted average life to maturity longer than the Obligations for Advances of
the Company under this Agreement and which shall be unsecured and otherwise be
on terms and conditions reasonably satisfactory to the Required Lenders;
(o) guaranties of any of the foregoing; and
(p) up to $10,000,000 in deferred purchase price, due no later
than January 31, 2001, in respect of telecommunications concessions in Chile,
which obligations shall be unsecured.
"Permitted Investments" means:
(a) debt obligations maturing within twelve months of the time of
acquisition thereof which from time to time are accorded a rating of AA- or
better by S&P (or an equivalent rating
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by another recognized credit rating agency of similar standing if such division
is not then in the business of rating long term debt obligations);
(b) commercial paper with a maturity of 270 days or less which
from time to time is accorded a rating of A4 or better by S&P (or an equivalent
rating by another recognized credit rating agency of similar standing if such
division is not then in the business of rating commercial paper);
(c) certificates of deposit maturing within twelve months of the
time of acquisition thereof issued by commercial banks that are accorded a
rating by an internationally recognized rating service then in the business of
rating commercial banks which is in the first quartile of the rating categories
used by such service;
(d) obligations maturing within twelve months of the time of
acquisition thereof of any Governmental Authority which obligations from time to
time are accorded a rating of BBB or better by S&P (or an equivalent rating by
another recognized credit rating agency of similar standing if such division is
not then in the business of rating governmental obligations); and
(e) demand deposits, certificates of deposit, bankers acceptance
and time deposits (having a term of less than one year) of United States banks
having total assets in excess of $1,000,000,000.
"Permitted Liens" means, as of any particular time,
(a) with respect to property located in the United States, Liens
for taxes, assessments or governmental charges not then delinquent or which the
Company may, pursuant to the provisions of Section 7.1 hereof, permit to remain
unpaid;
(b) Liens created pursuant to the Security Documents (including
the second lien under the Company Pledge Agreement securing the MEFA
Obligations);
(c) with respect to property located in the United States, any
mechanic's, worker's, repairer's, materialmen's, supplier's, vendor's or like
Liens securing obligations arising in the ordinary course of business that (x)
are not mature and not overdue, or (y) are being contested in good faith and (1)
as to which adequate reserves have been established on the books of the Company
in accordance with GAAP or (2) that do not materially impair the value or
marketability of the security granted to the Collateral Agent, for the benefit
of the Lender Parties, pursuant to the Security Documents and could not result
in an aggregate liability in excess of $1,000,000;
(d) with respect to property located in the United States, all
utility, access and other similar easements, rights-of-way and restrictions
granted in the ordinary course of business;
(e) with respect to property located in the United States, pledges
or deposits by the Company under workers' compensation laws, unemployment
insurance laws, social security or pension obligations or similar legislation,
in respect of which adequate reserves shall have been
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24
established, or good faith deposits not to exceed $1,000,000 in the aggregate in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness of the Company) or leases to which the Company is permitted
hereunder to be a party, or deposits to secure public or statutory obligations
of the Company, or deposits of cash or bonds to secure surety or appeal bonds
which the Company is obligated to provide in accordance with activities
permitted of it hereunder, or deposits as security for contested taxes or import
duties or for the payment of rent;
(f) Liens upon tangible personal property (which was acquired
after the date hereof, and the cost of which, individually or in the aggregate,
does not exceed $100,000) granted by any Credit Party, each of which Liens was
created solely to secure Indebtedness representing, or incurred to finance,
refinance or refund, the cost of such property (provided that no such Lien shall
extend to cover any property of the applicable Credit Party other than the
property so acquired);
(g) with respect to property located in the United States,
inchoate rights reserved to or vested in any Governmental Authority as of the
date hereof to condemn, appropriate, control or regulate a System or any portion
thereof;
(h) Liens securing Permitted Indebtedness of the types described
in clauses (e), (g) (to the extent of the collateral therefor (including
after-acquired collateral) as of the Closing Date and excluding Liens with
respect to the Collateral under the Security Documents), (i), (j) (to the extent
of the collateral securing the Indebtedness being refinanced), and (k) of the
definition thereof so long as the subject Indebtedness is pari passu with, and
not senior to, the Obligations;
(i) Liens in foreign jurisdictions comparable to the Liens
permitted by clauses (a), (c), (d), (e) and (g) of this definition;
(j) leases or subleases of property of the Company and the
Restricted Subsidiaries granted to others in the ordinary course of business
that could not reasonably be expected to have a Material Adverse Effect;
(k) Liens encumbering property or assets under construction
arising from progress or partial payments by a customer of the Company or any
Restricted Subsidiary relating to such property subject to any Capitalized Lease
permitted hereunder or operating lease;
(l) Liens arising from filing Uniform Commercial Code financing
statements (or substantially equivalent filings outside the United States)
regarding operating leases;
(m) Liens on property of, or on shares of capital stock or
Indebtedness of, any Person existing at the time such Person becomes, or becomes
a part of, any Restricted Subsidiary; provided that such Liens do not extend to
or cover any property or assets of the Company or any Restricted Subsidiary
other than the property or assets acquired and were not created in connection
with or in contemplation of such Person becoming a Restricted Subsidiary (and
excluding Liens on the Collateral in favor of Persons other than Collateral
Agent for the benefit of the Lenders);
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25
(n) Liens in favor of the Company or any Restricted Subsidiary
subordinated to the Liens securing the Obligations and to the prior payment of
the Obligations;
(o) Liens arising from the rendering of a final judgment or order
against the Company or any Restricted Subsidiary that does not give rise to an
Event of Default and which attach to assets which, in the aggregate, have a fair
market value of less than $5,000,000;
(p) Liens securing reimbursement obligations with respect to
performance letters of credit that encumber documents and the property which is
the subject of such performance letters of credit and the products and proceeds
thereof;
(q) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(r) Liens encumbering customary initial deposits and margin
deposits, and other Liens that are either within the general parameters
customary in the industry and incurred in the ordinary course of business, in
each case, securing Indebtedness under Hedge Agreements;
(s) Liens arising out of conditional sale, title retention,
consignment or similar arrangements for the sale of goods entered into by the
Company or any Restricted Subsidiary in the ordinary course of business in
accordance with the past practices of the Company and its Subsidiaries prior to
the Closing Date, provided that the obligations secured by the liens described
in the foregoing clauses (k), (p), (q), (r) and (s) shall not at any time exceed
$5,000,000 in the aggregate; and
(t) Liens on the capital stock of Subsidiaries of the Company
which are not Restricted Subsidiaries.
A contest referred to in this definition shall be permitted only if the
execution or enforcement of the Lien being contested shall have been stayed or
is stayed as a result thereof and such contest could not reasonably be expected
to (i) have a Material Adverse Effect, or (ii) create or materially increase the
risk of imposition of any material penalties or liabilities, whether civil or
criminal, upon any Lender Party.
"Person" means an individual, corporation, partnership, limited
liability company, joint venture, unincorporated association, trust or other
juridical entity, or any Governmental Authority.
"Plan" means at any time an employee pension benefit plan as defined in
Section 3(2) of ERISA that is covered by Title IV of ERISA or that is subject to
the minimum funding standards under Section 412 of the Code and is either: (a)
maintained by the Company or any member of the Controlled Group for employees of
the Company, or by the Company or any other member of the Controlled Group for
employees of any member of the Controlled Group, or (b) maintained pursuant to a
collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which the Company or any member of the
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26
Controlled Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made or been obligated to make
contributions.
"Pledged Shares" means the shares of Clearnet pledged by the Company
pursuant to the Company Pledge Agreement.
"Post-Default Rate" means (a) in respect of any Advances not paid when
due (whether at stated maturity, by acceleration or otherwise), a rate per annum
during the period commencing on the due date until such Advances are paid in
full equal to: (i) if such Advances are Prime Advances, 2% above the Prime Rate
as in effect from time to time plus the Applicable Margin for Prime Advances
(but in no event less than the interest rate in effect on the due date), or (ii)
if such Advances are LIBOR Advances, 2% above the rate of interest in effect
thereon at the time of such default until the end of the then current Interest
Period therefor and, thereafter, 2% above the Prime Rate as in effect from time
to time plus the Applicable Margin for Prime Advances (but in no event less than
the interest rate in effect on the due date); and (b) in respect of other
amounts payable by the Company hereunder (other than interest) not paid when due
(whether at stated maturity, by acceleration or otherwise), a rate per annum
during the period commencing on the due date until such other amounts are paid
in full equal to 2% above the Prime Rate as in effect from time to time plus the
Applicable Margin for Prime Advances (but in no event less than the interest
rate in effect on the due date). In each case, the Post-Default Rate shall not
exceed the maximum post-default interest rate permitted by applicable law.
"Prime Advances" means Advances which bear interest at a rate based
upon the Prime Rate.
"Prime Rate" means the prime commercial lending rate from time to time
as published in The Wall Street Journal (United States edition). Each change in
any interest rate provided for herein based upon the Prime Rate resulting from a
change in the Prime Rate shall take effect on the beginning of the day of such
change in the Prime Rate.
"Prime Rate Borrowing" shall mean a Borrowing comprised of Prime
Advances.
"Public Equity Offering" means an underwritten primary public offering
of Common Stock of the Company pursuant to an effective registration statement
under the Securities Act.
A "Public Market" shall be deemed to exist if (a) a Public Equity
Offering has been consummated and (b) at least 15% of the total issued and
outstanding common stock of the Company has been distributed by means of an
effective registration statement under the Securities Act or sales pursuant to
Rule 144 under the Securities Act or any combination thereof.
"Rate" has the meaning ascribed to such term in the definition of
"Type".
"Redeemable Stock" means any class or series of capital stock of a
Person that by its terms or otherwise is (a) required to be redeemed prior to
the Maturity Date, (b) redeemable at the option of the holder thereof at any
time prior to the Maturity Date, (c) convertible into or exchangeable for
capital stock referred to in (a) or (b) above or Indebtedness having a scheduled
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27
maturity prior to the Maturity Date; provided that any capital stock that would
not constitute "Redeemable Stock" but for the provisions thereof giving holders
thereof the right to require such Person to repurchase or redeem such capital
stock upon the occurrence of an "asset sale" or "change of control" occurring
prior to the Maturity Date shall not constitute Redeemable Stock if the "asset
sale" or "change of control" provisions applicable to such stock specifically
provide that such Person will not repurchase or redeem any such stock pursuant
to such provision prior to the Company's indefeasible repayment in full in cash
of the Obligations.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be amended or supplemented from time to
time.
"Regulatory Change" means any change after the date of this Agreement
in United States federal, state or foreign laws or regulations (including,
without limitation, Regulation D and the laws or regulations that designate any
assessment rate relating to certificates of deposit or otherwise) or the
adoption or making after such date of any interpretations, directives or
requests applying to a class of banks of or under any United States federal,
state or foreign laws or regulations (whether or not having the force of law) by
any court or governmental or monetary authority charged with the interpretation
or administration thereof.
"Relevant Country" means each of Argentina, Brazil, Japan, Mexico,
Peru, the Philippines and each other country in which the Company and/or another
Credit Party is establishing or operating a System and related
Telecommunications Business.
"Request for Financing" means a request described in subsection 2.2(a)
hereof substantially in the form of Exhibit G hereto, duly completed and
executed by the Company.
"Required Lenders" shall mean, prior to an assignment by the Initial
Lender pursuant to Section 12.5, the Initial Lender, and thereafter, those
lenders hereunder having proportionate exposure with respect to remaining
Commitments, if any, and unpaid Advances, in excess of 50% of the total
remaining Commitments, if any, and unpaid Advances of all Lenders.
"Reserve Requirement" means, with respect to any Lender, for any LIBOR
Advances made or maintained by such Lender for any Interest Period as to which
interest is payable hereunder, the average rate at which reserves (including,
without limitation, any marginal, supplemental or emergency reserves) are
required to be maintained during such Interest Period by such Lender against
"Eurocurrency liabilities" (as such term in used in Regulation D).
"Restricted Subsidiary" means any Subsidiary of the Company (for this
purpose, including each of the Operating Affiliates, whether or not a Subsidiary
of the Company) other than an Unrestricted Subsidiary.
"SEC Reports" means the annual, quarterly or current reports and proxy
statements filed from time to time by the Company pursuant to the Securities and
Exchange Act of 1934, as amended.
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"S&P" means Standard & Poor's Rating Services Group, a division of The
McGraw Hill Companies, Inc.
"Securities Act" means the Securities Act of 1933, as amended, of the
United States of America.
"Security Documents" means individually and collectively the Company
Pledge Agreement, the Cash Collateral Agreement (if any) and any financing
statements, registrations or similar documents filed or recorded in connection
with, or in addition to, the foregoing.
"Subsidiary" shall mean, with respect to any Person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held by the parent, or (b) that is, at the
time any determination is made, otherwise Controlled by, the parent or one or
more Subsidiaries of the parent or by the parent and one or more Subsidiaries of
the parent.
"System" means each wireless communications system to be constructed
and operated in a Relevant Country by the Company and/or another Credit Party
utilizing an iDEN System.
"Taxes" means, with respect to the Administrative Agent, the Collateral
Agent and any Lender, any present or future taxes, levies, imposts, stamp
duties, fees, charges, deductions, withholding, restrictions or conditions of
any nature whatsoever imposed, levied, collected, assessed or withheld by or
within any Relevant Country or any political subdivisions or taxing authority
thereof or therein or by or within any jurisdiction from which payment is made
on account of the transactions contemplated by the Credit Documents or by or
imposed on the Administrative Agent, the Collateral Agent or any Lender (a) by
the jurisdiction under the laws of which the Administrative Agent (in the case
of payments to the Administrative Agent), the Collateral Agent (in the case of
payments to the Collateral Agent) or such Lender is organized or any
Governmental Authority or taxing authority thereof or therein, or (b) by any
jurisdiction in which the Administrative Agent's (in the case of payments to the
Administrative Agent), the Collateral Agent's (in the case of payments to the
Collateral Agent) or such Lender's applicable Lending Offices are located or any
Governmental Authority or taxing authority thereof or therein; excluding (i)
taxes imposed on the net income, gross revenues or net worth of the
Administrative Agent, the Collateral Agent or any Lender (or any transferee or
assignee thereof, including a participation holder (any such entity a
"Transferee")) and (ii) franchise taxes imposed on the net income of the
Administrative Agent, the Collateral Agent or any Lender (or Transferee), in
each case by the jurisdiction under the laws of which the Administrative Agent,
the Collateral Agent or such Lender (or Transferee) is organized or any
political subdivision thereof.
"Telecommunications Business" means, with respect to each System, the
radio paging, mobile communications, personal communications services and
related wireless services in the Relevant Country in which the Company and/or
another Credit Party are engaged.
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"Transfer Restriction Agreement" means the Transfer Restriction
Agreement, dated as of October 20, 1994, among certain holders of the capital
stock of Clearnet, as amended.
"Transferee" has the meaning ascribed to such term in the definition of
"Taxes".
"Type", when used in respect of any Advance, shall refer to the Rate by
reference to which interest on such Advance is determined. For purposes hereof,
the term "Rate" shall include the LIBOR Rate and the Prime Rate.
"Utilized EBITDA Adjustment" has the meaning set forth in Section
7.15(d).
"Unrestricted Subsidiary" means a Subsidiary of the Company designated
as an "Unrestricted Subsidiary" pursuant to and in accordance with the terms of
Section 8.16.
"Vendor" means Motorola, Inc., a Delaware corporation.
"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Wholly-Owned Subsidiary" of any Person shall mean a Subsidiary of such
Person of which securities (except for directors' qualifying shares) or other
ownership interests representing 100% of the equity or 100% of the ordinary
voting power or 100% of the general partnership interests are, at the time any
determination is being made, owned, controlled or held by such Person or one or
more Wholly-Owned Subsidiaries of such Person or by such Person and one or more
Wholly-Owned Subsidiaries of such Person. Without regard to the foregoing,
"Wholly-Owned Subsidiary" shall include each of the entities set forth on
Schedule 1.1(d).
SECTION 1.2 INTERPRETATION.
In this Agreement the singular includes the plural and the plural the
singular; words importing any gender include the other gender; references to
statutes or regulations are to be construed as including all statutory or
regulatory provisions consolidating, amending or replacing the statute or
regulation referred to; references to "writing" include printing, typing,
lithography and other means of reproducing words in a tangible visible form,
references to articles, sections (or subdivisions of sections), exhibits,
annexes or schedules are to this Agreement unless otherwise indicated;
references to agreements and other contractual instruments shall be deemed to
include all schedules and exhibits to such agreement and all subsequent
amendments and other modifications to such agreements and contractual
instruments, but only to the extent such amendments and other modifications are
not prohibited by the terms of this Agreement, unless otherwise indicated; and
references to Persons include their respective permitted successors and assigns
and, in the case of Governmental Authorities, Persons succeeding to their
respective functions and capacities.
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SECTION 1.3 ACCOUNTING PRINCIPLES AND TERMS.
Except as otherwise provided in this Agreement: (a) all computations
and determinations as to financial matters, and all financial statements to be
delivered under this Agreement, shall be made or prepared in accordance with
GAAP (including, without limitation, principles of consolidation where
appropriate) applied on a consistent basis; and (b) all accounting terms used in
this Agreement shall have the meanings respectively ascribed to such terms by
such principles; provided, however, that if the Company notifies the
Administrative Agent that the Company wishes to amend any covenant in Section
7.15 or any related definition as a result of a change in GAAP or its
application to the Company or any Restricted Subsidiary after the date of this
Agreement to eliminate the effect of such change on the operation of such
covenant (or if the Administrative Agent notifies the Company that the Required
Lenders wish to amend Section 7.15 or any related definition for such purpose),
then the Company's compliance with such covenant shall be determined on the
basis of GAAP and its application in effect immediately before the relevant
change in generally accepted accounting principles or their application became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Company and the Required Lenders.
SECTION 2 ADVANCES
SECTION 2.1 COMMITMENT.
(a) Upon the terms and subject to the conditions hereinafter set
forth, each Lender agrees, severally but not jointly, to make credit available
in Dollars to the Company during the period from the Closing Date through and
including the Commitment Termination Date in an aggregate principal amount up to
but not exceeding the Available Commitment (each such advance being referred to
as an "Advance"; and collectively as the "Advances"); provided that no Lender
shall have any obligation to make any requested Advance if, after giving effect
thereto, the aggregate amount of all Advances made by the Lender would exceed
its Commitment. Each Lender represents, warrants and covenants that no part of
the funds to be used by it to make or hold any Advance constitutes, directly and
indirectly, the assets of an "employee benefit plan", within the meaning of
Section 3(3) of ERISA, or a "plan", within the meaning of Section 4975(e)(1) of
the Code.
(b) Subject to and upon the terms and conditions of this
Agreement, the Company may, at its option, avail itself of the Available
Commitment in one or more drawdowns in increments of $5,000,000 or integral
multiples of $1,000,000 in excess thereof or such lesser or greater amount which
constitutes the entirety of the remaining Available Commitment, but in any event
not in excess of the remaining aggregate amount of the Available Commitment and
in all cases subject to the limitations in subsections 2.1(a) and 2.2(a).
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SECTION 2.2 PROCEDURE FOR BORROWING; ADVANCES.
(a) In order to request a Borrowing, the Company shall hand
deliver or telecopy to the Administrative Agent a duly completed Request for
Financing (or telephone the Administrative Agent, promptly confirmed with a
written and duly completed Request for Financing) (i) in the case of a LIBOR
Borrowing not later than 1:00 p.m., Chicago time, three Business Days before a
proposed Borrowing, and (ii) in the case of a Prime Rate Borrowing, not later
than 2:00 p.m., Chicago time, one Business Day before a proposed Borrowing. Each
Request for Financing (including a telephonic Request for Financing) shall be
irrevocable, shall be signed by or on behalf of the Company and shall specify
the following information: (i) whether such Borrowing is to be a LIBOR Borrowing
or a Prime Rate Borrowing; (ii) the date of such Borrowing (which shall be a
Business Day and is defined herein as the "Drawdown Date"); (iii) the number and
location of the account to which funds are to be disbursed (which shall be an
account that complies with the requirements of subsection 2.2(d)); (iv) the
amount of such Borrowing; and (v) if such Borrowing is to be a LIBOR Borrowing,
the initial Interest Period with respect thereto. If no election as to the Type
of Borrowing is specified in any such notice, then the requested Borrowing shall
be a Prime Rate Borrowing. If no Interest Period with respect to any LIBOR
Borrowing is specified in any such notice, then the Company shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall promptly advise the Lenders of any notice given pursuant to this
Section 2.2 (and the contents thereof), of each Lender's portion of the
requested Borrowing and the account to which Advances made in connection with
the requested Borrowing are to be wired. The aggregate amount to be advanced by
the Lenders pursuant to a Request for Financing satisfying the foregoing shall
be limited to a principal amount which shall equal the lesser of (x) the amount
requested as an Advance pursuant to such Request for Financing, or (y) subject
to Section 2.1 hereof, the Available Commitment.
(b) Each Advance shall be made as part of a Borrowing consisting
of Advances made by the Lenders ratably in accordance with their applicable
Commitments; provided that the failure of any Lender to make any Advance shall
not in itself relieve any other Lender of its obligation to lend hereunder (it
being understood, however, that no Lender shall be responsible for the failure
of any other Lender to make any Advance required to be made by such other
Lender).
(c) Subject to Section 2.11, each Borrowing shall be comprised
entirely of Prime Advances or LIBOR Advances as the Company may request pursuant
to subsection 2.1(a). Each Lender may at its option make any LIBOR Advance by
causing any domestic or foreign branch of such Lender to make such Advance;
provided that any exercise of such option shall not affect the obligation of the
Company to repay such Advance in accordance with the terms of this Agreement.
Borrowings of more than one Type may be outstanding at the same time; provided
that the Company shall not be entitled to request any Borrowing which, if made,
would result in more than ten LIBOR Borrowings outstanding hereunder at any
time. For purposes of the foregoing, Borrowings having different Interest
Periods, regardless of whether they commence on the same date, shall be
considered separate Borrowings.
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(d) Each Lender shall make each Advance to be made by it hereunder
on the Drawdown Date thereof by wire transfer of immediately available funds to
such account in Chicago as the Administrative Agent may designate not later than
12:00 p.m., Chicago time, and the Administrative Agent shall, promptly upon
receipt thereof, credit the amounts so received to an account as designated by
the Company, in the applicable Request for Financing, or, if a Borrowing shall
not occur on such date because any condition precedent herein specified shall
not have been met, return the amounts so received to the respective Lenders.
(e) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with subsection 2.2(d) above and the Administrative Agent may, in
reliance upon such assumption make available to the Company on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such portion
available to the Administrative Agent, such Lender and the Company severally
agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Company until the date such amount is
repaid to the Administrative Agent at (i) in the case of the Company, the
interest rate(s) applicable at the time to the Advances comprising such
Borrowing and (ii) in the case of such Lender, a rate determined by the
Administrative Agent to represent its cost of overnight or short-term funds
(which determination shall be conclusive absent manifest error). If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
shall constitute such Lender's Advance as part of such Borrowing for purposes of
this Agreement. If the Company shall repay to the Administrative Agent such
corresponding amount, such amount shall be deemed not to have been borrowed
hereunder for purposes of utilization of the Maximum Commitment.
(f) Notwithstanding any other provision of this Agreement, the
Company shall not be entitled to request any Interest Period with respect to any
LIBOR Borrowing that would end after the Maturity Date.
SECTION 2.3 EVIDENCE OF DEBT
(a) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Company to
such Lender resulting from each Advance made by such Lender from time to time,
including the amounts of principal and interest payable and paid such Lender
from time to time under this Agreement.
(b) The Administrative Agent shall maintain accounts in which it
will record (i) the amount of each Advance made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Company to each
Lender hereunder and (iii) the
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amount of any sum received by the Administrative Agent hereunder from the
Company and each Lender's share thereof.
(c) The entries made in the accounts maintained pursuant to
subsections 2.3(a) and 2.3(b) above shall be prima facie evidence of the
existence and amounts of the obligations therein recorded; provided, however,
that the failure of any Lender or the Administrative Agent to maintain such
accounts or any error therein shall not in any manner affect the obligations of
the Company to repay the Advances in accordance with their terms.
(d) Any Lender may request that Advances made by it be evidenced
by a promissory note. In such event, the Company shall execute and deliver to
such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns)
substantially in the form of Exhibit A hereto (each a "Financing Note").
SECTION 2.4 REPAYMENT OF PRINCIPAL OF ADVANCES.
(a) The Company shall pay to the Administrative Agent on the
Maturity Date the principal of the Advances made by the Lenders outstanding at
the close of business on the Commitment Termination Date.
(b) The Advances shall be repaid as and when necessary to cause
the aggregate principal amount of the Advances outstanding not to exceed the
Available Commitment.
SECTION 2.5 PREPAYMENTS.
(a) Optional Prepayment; Voluntary Reduction of Commitment.
(i) The Company may prepay Advances, in whole or in part,
in integral multiples of $500,000 upon not less than three Business
Days prior written notice to the Administrative Agent of the principal
amount to be prepaid and the date of such prepayment. On the date
specified for prepayment, the Company shall pay such principal amount
plus accrued interest on such principal amount prepaid to the date of
such prepayment. Notwithstanding the foregoing, unless the conditions
set forth in subsection 2.5(b) hereof shall be simultaneously
satisfied, LIBOR Advances may be only repaid on the last day of the
Interest Period for such LIBOR Advance.
(ii) The Company shall have the right, at any time and
from time to time, without premium or penalty, to permanently reduce
the Maximum Commitment hereunder by an amount of not less than $500,000
or integral multiples thereof (or such lesser or greater amount
representing the entirety of the remaining Available Commitment);
provided, that any such reduction in the Maximum Commitment shall
reduce the respective Commitment of each Lender pro rata; and, provided
further, that no such reduction shall reduce the Maximum Commitment to
an amount less than the sum of the then outstanding Advances.
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The right of the Company to voluntarily reduce the Maximum Commitment
shall be exercisable by delivery of written notice (including by
facsimile) or telephonic notice (thereafter promptly confirmed in
writing) to the Administrative Agent prior to 12:00 p.m., Chicago time,
at least three Business Days prior to the proposed permanent reduction
in the Maximum Commitment, which notice shall specify the amount by
which the Company proposes to permanently reduce the Maximum Commitment
and the proposed date of such reduction.
(b) Broken Funding Indemnification.
The Company shall pay to the Agents and each Lender, such
amount or amounts as shall compensate the Agents and each Lender for any loss,
cost or expense incurred by an Agent or a Lender (as reasonably determined and
documented by affected Agent or Lender) as a result of:
(i) prepayment or repayment of a LIBOR Advance on a date
other than the last day of the Interest Period for such LIBOR Advance;
or
(ii) any failure by the Company to borrow a LIBOR Advance
on the Drawdown Date specified in the relevant Request for Financing
under Section 2.2 hereof, such compensation to include, without
limitation, an amount equal to: (y) any actual loss or expense suffered
by either Agent or any Lender during the period from such failure to
borrow to the last day of such Interest Period if the rate of interest
obtainable by such Lender or Agent upon the redeployment of an amount
of funds equal to the amount not borrowed is less than the rate of
interest applicable to such LIBOR Advance for such Interest Period
(excluding any margin) or (z) any loss or expense suffered by the any
Agent or any Lender in liquidating deposits in respect of LIBOR
Advances prior to maturity.
The Company shall pay any amount due hereunder no later than
seven days after receipt of an invoice therefor from the affected Agent or
Lender.
(c) Effect of Prepayment.
All Advances prepaid (other than pursuant to Section 2.2(e)),
whether by mandatory or optional prepayment, may not be reborrowed. All
prepayments shall be applied to the principal balance of then outstanding
Advances.
SECTION 2.6 INTEREST; FEES.
(a) The Company shall pay to the Administrative Agent for the
ratable benefit of the Lenders interest on the outstanding principal amount of
each Advance made by the Lenders, for the period commencing on the date of such
Advance until such Advance is paid in full, at the following rate per annum:
(i) if such Advance is a Prime Advance, a rate per annum
equal to the Prime Rate (as in effect from time to time) plus the
Applicable Margin; and
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(ii) if such Advance is a LIBOR Advance, for each Interest
Period relating thereto, the LIBOR Rate for such Advance plus the
Applicable Margin.
Accrued interest on each Advance shall be paid in arrears on the
Interest Payment Dates. Notwithstanding the foregoing, interest that is payable
at the Post-Default Rate shall be payable from time to time on demand of the
Administrative Agent or the Required Lenders.
(b) Anything herein to the contrary notwithstanding, if, on or
prior to the determination of an interest rate for any LIBOR Advance for any
Interest Period therefor, any Lender reasonably determines (which determination
shall be conclusive absent manifest error):
(i) by reason of any event affecting the money markets in
the United States of America or the London interbank market, quotations
of interest rates for the relevant deposits are not being provided in
the relevant amounts or for the relevant maturities for purposes of
determining the rate of interest for such LIBOR Advances under this
Agreement; or
(ii) the rates of interest referred to in the definition
of "LIBOR Base Rate" in Section 1.1 hereof upon the basis of which the
rate of interest on any LIBOR Advance for such period is determined, do
not accurately reflect the cost to such Lender of making or maintaining
such LIBOR Advance for such period, then, in addition to the Lender's
rights under Sections 2.11 and 3.2,
such Lender shall give the Company and the Administrative prompt notice thereof
(and shall thereafter give the Company prompt notice of the cessation, if any,
of such condition), and so long as such condition remains in effect, such Lender
shall be under no obligation to make LIBOR Advances or to convert Prime Advances
into LIBOR Advances pursuant to subsection 2.2(a) or Section 2.8 hereof and the
Company shall, on the last day(s) of the then current Interest Period(s) for the
outstanding LIBOR Advances either prepay such LIBOR Advances in accordance with
subsection 2.5(a) hereof or convert such LIBOR Advances into Prime Advances.
(c) Without prejudice to the provisions of Section 10.2 hereof, in
the event of default by the Company in payment of any principal amount of the
Advances or interest thereon when due (whether at the stated maturity, by
acceleration or otherwise), the Company shall pay to the Lenders interest on
such past due and unpaid principal amount and (to the extent permitted by
applicable law) on such defaulted interest from the due date until the date of
payment in full (both before as well as after judgment), at the Post-Default
Rate. Each determination of any loss or expense by a Lender or an Agent under
this subsection 2.6(c) shall be conclusive in the absence of manifest error.
(d) Interest on all Prime Advances shall be computed on the basis
of a year of 365/366 days and actual days elapsed (including the first day but
excluding the last) occurring in the period for which payable and interest on
all LIBOR Advances shall be
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computed on the basis of 360 days and actual days elapsed (including the first
day but excluding the last) occurring in the period for which payable.
(e) The Company agrees to pay quarterly in arrears to the
Administrative Agent on behalf of the Lenders on each March 31, June 30,
September 30, and December 31, commencing with December 31, 1999 through and
including December 31, 2001, and, if earlier, on the date the Obligations are
paid in full, a commitment fee equal to 0.50% per annum of the average daily
unused amount of the Commitments. The commitment fees required hereunder shall
be computed on the basis of the actual number of days elapsed in a year of 360
days.
SECTION 2.7 PAYMENTS
(a) Except as otherwise provided herein, all payments whatsoever
by the Company to the Administrative Agent hereunder or in respect of any
Financing Note shall be made in Dollars in same-day funds to the order of the
Motorola Credit Corporation at BankOne, Chicago, Illinois, USA, ABA#
071-000-013, for the account of the Administrative Agent, Account #5201748 (or
such other place as the Administrative Agent shall have designated in writing to
the Company at least five Business Days prior to the scheduled payment date),
not later than 2:00 p.m. Chicago time, on the day on which such payment shall
become due. Any amounts received after such time on any date shall be deemed to
have been received on the next succeeding Business Day for purposes of
calculating interest thereon.
(b) If any payment hereunder or in respect of any Financing Note
would otherwise be due on a day that is not a Business Day, such payment shall
be made on the next succeeding day that is a Business Day and including the
additional days elapsed in the computation of the interest payable on such next
succeeding Business Day.
SECTION 2.8 CONVERSION AND CONTINUATION.
The Company shall have the right at any time upon prior irrevocable
notice to the Administrative Agent (a) not later than 12:00 p.m., Chicago time,
one Business Day prior to conversion, to convert any LIBOR Advance into a Prime
Advance, (b) not later than 11:00 a.m., Chicago time, three Business Days prior
to conversion or continuation, to convert any Prime Advance into a LIBOR Advance
or to continue any LIBOR Advance as a LIBOR Advance for an additional Interest
Period, and (c) not later than 11:00 a.m., Chicago time, three Business Days
prior to conversion, to convert the Interest Period with respect to any LIBOR
Advance to another permissible Interest Period, subject in each case to the
following:
(i) each conversion shall be effected by each of the
Lenders by recording for the account of such Lender the continued
Advance of such Lender resulting from such conversion and reducing the
Advance being converted by an equivalent principal amount; accrued
interest on any Advance (or portion thereof) being converted shall be
paid by the Company at the time of conversion;
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(ii) if any LIBOR Advance is converted at a time other
than the end of the Interest Period applicable thereto, the Company
shall pay, upon demand, any amounts due to the Lenders pursuant to
subsection 2.5(b);
(iii) any portion of an Advance maturing or required to be
repaid in less one month may not be converted or continued as a LIBOR
Advance with an Interest Period ending after the date such repayment is
required; and
(iv) upon notice to the Company from the Administrative
Agent, after the occurrence and during the continuance of a Default or
Event of Default, (A) no outstanding Advance may be converted into, or
continued as, a LIBOR Advance, and (B) unless repaid, each LIBOR
Advance shall be converted to a Prime Advance at the end of the
Interest Period applicable thereto.
Each notice pursuant to this Section 2.8 shall be irrevocable and shall
refer to this Agreement and specify (i) the identity and amount of the Advance
that the Company requests be converted or continued, (ii) whether such Advance
is to be converted to or continued as a LIBOR Advance or a Prime Advance, (iii)
if such notice requests a conversion, the date of such conversion (which shall
be a Business Day) and (iv) if such Advance is to be converted to or continued
as a LIBOR Advance, the Interest Period with respect thereto. If no Interest
Period is specified in any such notice with respect to any conversion to or
continuation as a LIBOR Advance, the Company shall be deemed to have selected an
Interest Period of one month's duration. If the Company shall not have given
notice in accordance with this Section 2.8 to continue any Advance into a
subsequent Interest Period (and shall not otherwise have given notice in
accordance with this Section 2.8 to convert such Advance), such Advance shall,
at the end of the Interest Period applicable thereto (unless repaid pursuant to
the terms hereof), automatically be continued into a new Interest Period as a
Prime Advance.
SECTION 2.9 USE OF PROCEEDS.
The Company agrees to use the proceeds of the Advances for the purpose
of supporting the Company's build-out or operation of its network and employing
primarily the products and services of Motorola Entities.
SECTION 2.10 CHANGE IN LAW.
If any change in any applicable Governmental Rule has made (or has made
it apparent that it is) unlawful for the Company to perform any of its
obligations under any of the Credit Documents and such change could reasonably
be expected to have a Material Adverse Effect then (a) the Lenders shall be
discharged from all obligations to make, renew or maintain the Advances, and (b)
the Company shall on demand pay to the Administrative Agent for the benefit of
the Lenders, without premium or penalty except as provided in subsection 2.5(b),
the outstanding principal amount of the Advances together with accrued interest
thereon and all other moneys due to the Lenders hereunder; provided, that for so
long as the Company is diligently pursuing the contest of the same by
appropriate proceedings and such contest could not reasonably be expected to
have a Material Adverse Effect and adequate reserves have been established in
accordance with GAAP, then the Lenders shall not be so discharged and the
Company shall not be required to so pay upon demand.
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SECTION 2.11 ILLEGALITY.
(a) Notwithstanding any other provision of this Agreement, if,
after the date hereof, any change in any Governmental Rule shall make it
unlawful for any Lender to make or maintain any LIBOR Advance or to give effect
to its obligations as contemplated hereby with respect to any LIBOR Advance,
then, by written notice to the Company and to the Administrative Agent:
(i) such Lender may declare that LIBOR Advances will not
thereafter (for the duration of such unlawfulness) be made by such
Lender hereunder (or be continued for additional Interest Periods and
Prime Advances will not thereafter (for such duration) be converted
into LIBOR Advances), whereupon any request for a LIBOR Borrowing (or
to convert a Prime Rate Borrowing to a LIBOR Borrowing or to continue a
LIBOR Borrowing for an additional Interest Period) shall, as to such
Lender only, be deemed a request for a Prime Advance (or a request to
continue a Prime Advance as such for an additional Interest Period or
to convert a LIBOR Advance into a Prime Advance), unless such
declaration shall be subsequently withdrawn; and
(ii) such Lender may require that all outstanding LIBOR
Advances made by it be converted to Prime Advances in which event all
such LIBOR Advances shall be automatically converted to Prime Advances
as of the effective date of such notice as provided in subsection
2.11(b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied to
repay the LIBOR Advances that would have been made by such Lender or the
converted LIBOR Advances of such Lender shall instead be applied to repay the
Prime Advances made by such Lender in lieu of, or resulting from the conversion
of, such LIBOR Advances.
(b) For purposes of this Section 2.11, a notice to the Company by
any Lender shall be effective as to each LIBOR Advance made by such Lender, if
lawful, on the last day of the Interest Period(s) currently applicable to LIBOR
Advances of such Lender; in all other cases such notice shall be effective on
the date of receipt by the Company.
SECTION 2.12 PRO RATA TREATMENT.
Except as required under Sections 2.7 and 2.11, each Borrowing, each
payment or prepayment of principal of any Borrowing, each payment of interest on
the Advances, each payment of the fees required under the Fee Letter or under
Section 2.6, each reduction of the Commitments and each conversion of any
Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall
be allocated pro rata among the Lenders in accordance with their respective
applicable Commitments (or, if such Commitments shall have expired or been
terminated, in accordance with the respective principal amounts of their
outstanding Advances). Each Lender agrees that in computing such Lender's
portion of any Borrowing to be made
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hereunder, the Administrative Agent may, in its discretion, round each Lender's
percentage of such Borrowing to the next higher or lower whole Dollar amount.
SECTION 2.13 SHARING OF SETOFFS.
Each Lender agrees that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim against the Company or any other Credit
Party, or pursuant to a secured claim under Section 506 of Title 11 of the
United States Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Advance or Advances as a
result of which the unpaid principal portion of its Advances shall be
proportionately less than the unpaid principal portion of the Advances of any
other Lender, it shall be deemed simultaneously to have purchased from such
other Lender at face value, and shall promptly pay to such other Lender the
purchase price for, a participation in the Advances of such other Lender, so
that the aggregate unpaid principal amount of the Advances and participation in
Advances held by each Lender shall be in the same proportion to the aggregate
unpaid principal amount of all Advances then outstanding as the principal amount
of its Advances prior to such exercise of banker's lien, setoff or counterclaim
or other event was to the principal amount of all Advances outstanding prior to
such exercise of banker's lien, setoff or counterclaim or other event; provided,
however, that if any such purchase or purchases or adjustments shall be made
pursuant to this Section 2.13 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustment restored without interest. The Company expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in an
Advance deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by the Company to such Lender by reason thereof as fully as if such Lender had
made an Advance directly to the Company in the amount of such participation.
SECTION 3 FUNDING AND YIELD PROTECTION
SECTION 3.1 TAXES, DUTIES, FEES AND CHARGES.
(a) Any and all payments by or on behalf of the Company hereunder
and under any other Credit Document shall be made, in accordance with Section
2.7, free and clear of and without deduction for any and all current or future
Taxes. If the Company shall be required to deduct any Taxes from or in respect
of any sum payable hereunder or under any other Credit Document to any Agent or
any Lender (or any Transferee), (i) the sum payable shall be increased by the
amount (an "additional amount") necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 3.1) such Agent or such Lender (or Transferee), as the case may be,
shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Company shall make such deductions and (iii) the
Company shall pay the full amount deducted to the relevant Governmental
Authority in accordance with applicable law.
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(b) In addition, the Company agrees to pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies (including, without limitation, mortgage recording taxes and similar
fees) that arise from any payment made hereunder or under any other Credit
Document or from the execution, delivery, enforcement or registration of, or
otherwise with respect to, this Agreement or any other Credit Document imposed
by any Governmental Authority in the United States or the jurisdiction of any
Payment Location ("Other Taxes").
(c) The Company will indemnify each of the Agents and each Lender
(or Transferee) for the full amount of Taxes and Other Taxes paid by such Agent
or such Lender (or Transferee), as the case may be, and any liability (including
penalties, interest and expenses (including reasonable attorney's fees and
expenses)) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability prepared
by the Administrative Agent, the Collateral Agent or a Lender (or Transferee),
or the Administrative Agent on its behalf, absent manifest error, shall be
final, conclusive and binding for all purposes. Such indemnification shall be
made within 30 days after the date the Administrative Agent, the Collateral
Agent or any Lender (or Transferee), as the case may be, makes written demand
therefor.
(d) As soon as practicable after the date of any payment of Taxes
or Other Taxes by the Company to the relevant Governmental Authority, the
Company will deliver to the Administrative Agent, at its address referred to in
Section 12.7, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing payment thereof.
(e) Each Lender (or Transferee) that is organized under the laws
of a jurisdiction other than the United States, any State thereof or the
District of Columbia (a "Non-U.S. Lender") that is entitled to an exemption from
or reduction of, withholding tax under the law of the jurisdiction in which the
Company is located, or any treaty to which such jurisdiction is a party, with
respect to payments by the Company under this Agreement and the other Credit
Documents shall deliver to the Company (with a copy to the Administrative
Agent), at the time or times prescribed by applicable law, such properly
completed and executed documentation prescribed by applicable law or reasonably
requested by the Company as will permit such payments to be made without
withholding or at a reduced rate. In addition, each Non-U.S. Lender shall
deliver such documentation promptly upon the obsolescence or invalidity of any
documentation previously delivered by such Non-U.S. Lender. Notwithstanding any
other provision of this subsection 3.1(e), a Non-U.S. Lender shall not be
required to deliver any documentation pursuant to this subsection 3.1(e) that
such Non-U.S. Lender is not legally able to deliver.
(f) The Company shall not be required to indemnify any Non-U.S.
Lender or to pay any additional amounts to any Non-U.S. Lender, in respect of
United States Federal withholding tax pursuant to subsection 3.1(a) or (c) above
to the extent that (i) the obligation to withhold amounts with respect to United
States Federal withholding tax
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existed and would apply to payments made to such Non-U.S. Lender on the date
such Non-U.S. Lender became a party to this Agreement (or, in the case of a
Transferee that is a participation holder, on the date such participation holder
became a Transferee hereunder) or, with respect to payments to a new Lending
Office, the date such Non-U.S. Lender designated such new Lending Office with
respect to an Advance; provided, however, that this subsection 3.1(f) shall not
apply (x) to any Transferee or new Lending Office that becomes a Transferee or
new Lending Office as a result of an assignment, participation, transfer or
designation made at the request of the Company and (y) to the extent the
indemnity payment or additional amounts any Transferee, or any Lender (or
Transferee), acting through a new Lending Office, would be entitled to receive
(without regard to this subsection 3.1(f)) do not exceed the indemnity payment
or additional amounts that the person making the assignment, participation or
transfer to such Transferee, or Lender (or Transferee) making the designation of
such new Lending Office, would have been entitled to receive in the absence of
such assignment, participation, transfer or designation or (ii) the obligation
to pay such additional amounts would not have arisen but for a failure by such
Non-U.S. Lender to comply with the provisions of subsection 3.1(e) above.
(g) Nothing contained in this Section 3.1 shall require any Lender
(or any Transferee) or the Administrative Agent or the Collateral Agent to make
available any of its tax returns (or any other information that it deems to be
confidential or proprietary).
SECTION 3.2 CHANGE IN CIRCUMSTANCES.
(a) In the event that there shall hereafter occur any change in
any Governmental Rule which increases or will increase (i) the cost to any Agent
or any Lender of maintaining any reserves or special deposits against the LIBOR
Advances or (ii) any other cost of any Agent or any Lender of complying with any
law, regulation or condition with respect to the LIBOR Advances, and the result
of any of the foregoing is or will be to increase the cost to any Agent or any
Lender (each such affected party being referred to as an "Affected Party") of
making or maintaining such Affected Party's LIBOR Advances or to reduce the
amount of any payment (whether of principal, interest or otherwise) receivable
by the Affected Party hereunder, then upon receipt of a request from the
Affected Party, the Company shall pay or reimburse to the Affected Party, such
amount as will compensate the Affected Party for such additional cost or
reduction of payment; provided that the Company shall only be liable for such
costs applicable to LIBOR Advances then outstanding. Amounts payable hereunder
shall be due three (3) days after invoice therefor.
(b) The protection of subsection 3.2(a) hereof shall apply to
voluntary compliance by the Agents and the Lenders with restraints, guidelines
or policies not having the force of law and shall apply if any Agent or any
Lender shall comply with any law, regulation or condition irrespective of any
possible contention of invalidity or non-applicability thereof.
(c) The Affected Party will promptly (but in no event later than
forty-five (45) days after actual knowledge of the occurrence of the event
described in subsection 3.2(a) hereof) inform the Company and the Administrative
Agent by facsimile of its intention to
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claim indemnification under this Section 3.2. The facsimile statement of the
Affected Party as to the amount sufficient to indemnify the Affected Party
against any increased cost, reduction or payment incurred, suffered or made by
the Affected Party supported by the computations made by the Affected Party in
arriving at such figure, shall, in the absence of manifest error, be conclusive
as to the amount thereof and binding on Company.
A claim made under this Section 3.2 may be made before or after the end
of the Interest Period to which such claim relates and before or after any
repayment of all or part of the Advance to which such Interest Period relates.
An increased cost shall be an increased cost for the purpose of subsection
3.2(a) hereof even if the payment or quantification of such increased cost is
not or cannot be made until after the expiry of any Interest Period to which it
relates.
(d) In the event of any such change or request as is contemplated
by subsection 3.2(a) hereof, the Affected Party will use reasonable efforts to
mitigate the effect or likely effect of such change or request by transferring
its LIBOR Advances to another jurisdiction or otherwise; provided that the
Affected Party shall be under no obligation to transfer the LIBOR Advances to
another jurisdiction or to take any other action to mitigate the effect or
likely effect of such change or request if, in the reasonable opinion of the
Affected Party, such transfer or other action could reasonably be expected to
have an adverse effect upon the Affected Party, whether as a result of taxes,
credit policies, political considerations or otherwise; provided further, that
the Company shall reimburse the Affected Party on demand for all expenses
(including, without limitation, attorney's fees) incurred by the Affected Party
in effecting such transfer and the Affected Party shall have no obligation to
effect any such transfer unless the Affected Party is satisfied that it will not
suffer any adverse consequences as a result of such transfer for which it has
not been indemnified by the Company. If any Affected Party is entitled to
reimbursement under this subsection 3.2(d) for any cost, the Affected Party
shall deliver to the Company a statement of the nature and amount of such cost
which statement shall constitute prima facie evidence as to the amount due to
the Affected Party under this subsection 3.2(d).
(e) If the Company elects (which election shall be irrevocable) by
giving at least two Business Days prior written notice to the Affected Party,
the Company may, without penalty or premium, prepay to any Affected Party any of
such Affected Party's Advances outstanding Advances on any Interest Payment Date
applicable to such Advances with respect to which the Company has received a
claim under this Section 3.2 together with accrued interest thereon and all
other sums due to the Affected Party (including, without limitation, amounts
accrued or due under this Section 3.2).
(f) If any Lender requests compensation under this section 3.2, or
if the Company is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to this Section
3.2, or if any Lender defaults in its obligation to fund Advances hereunder,
then the Company may, at its sole expense and effort, upon Notice to such Lender
and the Agents, require such Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 12.5), all
of its interests, rights and obligations under this Agreement
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to an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Company
shall have received the prior written consent of the Administrative Agent if
such assignee is not a Lender at the time of assignment, which consent shall not
be unreasonably withheld or delayed, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Advances, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder,
from the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Company (in the case of all other amounts), and (iii)
in the case of any such assignment resulting from a claim for compensation under
this Section 3.2 or payments required to be made under Section 3.1, such
assignment will result in a reduction in such compensation or payments. A Lender
shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Company to require such assignment or delegation cease to apply.
SECTION 4 EXPENSES; INDEMNIFICATION; FEES
SECTION 4.1 EXPENSES.
The Company agrees to pay, whether or not any Advance is made hereunder,
on demand: (a) all reasonable out-of-pocket costs and expenses of the Agents
incurred in connection with the negotiation, preparation, execution and delivery
of the Credit Documents (including, without limitation, all costs and expenses
of registering, recording and perfecting the security interests contemplated by
the Security Documents) and the review prior to the Initial Funding Date of any
other documents, agreements and instruments referred to in this Agreement or
relating to the transactions contemplated hereby; (b) the reasonable fees and
expenses of the Agents' expert consultants; (c) the reasonable fees and
disbursements of McDermott, Will & Emery, counsel to the Agents, and of local
counsel to the Agents in Canada, incurred in connection with such negotiation,
preparation, execution and delivery of the Credit Documents, and any of the
other documents, agreements and instruments referred to in this Agreement or
relating to the transactions contemplated hereby; (d) all reasonable
out-of-pocket costs and expenses of the Lenders and the Agents (including,
without limitation, the reasonable fees and disbursements of counsel) incurred
in connection with the negotiation, preparation, execution and delivery of any
amendment or waiver of, or supplement or modification to, the Credit Documents
and not solely requested by the Lenders; (e) all costs and expenses (including,
without limitation, legal fees and disbursements of counsel) incident to the
enforcement, protection or preservation of any right or claim of the Lenders or
the Agents under any of the Credit Documents; and (f) all transfer, stamp,
documentary or other similar taxes, assessments or charges, if any, upon any of
the Credit Documents; provided the Company's aggregate obligations with respect
to clauses (a), (b) and (c) above (and to the extent incurred prior to the
Initial Funding Date, clause (f) above) shall not exceed $50,000. Fees shall be
deemed reasonable to the extent they are reviewed and approved by the
Administrative Agent.
SECTION 4.2 INDEMNIFICATION.
(a) Without in any way limiting the applicability of subsection
4.2(b) hereof, and without regard to whether the Company or any other Person has
disclosed any fact to
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the Agents or the Lenders, the Company hereby indemnifies and holds harmless the
Agents, the Lenders and each of their respective officers, directors, employees,
consultants, advisors and agents (collectively, the "Indemnitees") from and
against any and all actions, suits, claims, damages, demands, judgments, losses,
liabilities, costs or expenses whatsoever, including, without limitation,
reasonable attorneys' fees, which any Indemnitee may sustain or incur (or which
may be claimed against the Indemnitee by any Person or entity whatsoever) to the
extent arising by reason of or in connection with the execution and delivery of
the Credit Documents, or payment or failure to pay the Obligations, or the
occurrence of an Event of Default or the pursuit by the Agents, the Lenders or
any one of them, of any legal remedy in connection with an Event of Default or
arising out of or in connection with the Agents' or the Lenders' entering into
this Agreement or the Security Documents, or enforcing their remedies hereunder
or thereunder; provided that, the Company shall not be required to indemnify an
Indemnitee for any actions, suits, claims, damages, demands, judgments, losses,
liabilities, costs or expenses to the extent, but only to the extent, caused by
the Indemnitee's willful misconduct or gross negligence. Fees shall be deemed
reasonable to the extent they are reviewed and approved by the Administrative
Agent.
(b) Notwithstanding anything in subsection 4.2(a) hereof to the
contrary, and without regard to whether the Company or any other Person has
disclosed any fact to an Indemnitee, the Company agrees to indemnify, defend and
hold the Indemnitees free and harmless from and against any and all actions,
suits, claims, demands, judgments, liabilities, losses, costs, damages and
expenses (including, without limitation, reasonable attorneys' fees and expenses
and other expenses incurred in connection with environmental compliance and
clean-up obligations imposed under any Environmental Laws) any such Indemnitee
may sustain by reason of the assertion against it by any party of any claim
(including, without limitation, claims for indemnification or contribution and
claims by third parties for death, personal injury, illness or loss of or damage
to property or economic loss) in connection with any Materials of Environmental
Concern used, generated, treated, stored, recycled, disposed of, handled,
discharged or otherwise located or released in, on, under or from the Systems,
the Telecommunications Businesses, the Collateral or related property, except to
the extent resulting from such Indemnitee's grossly negligent act or willful
misconduct with respect to such Materials of Environmental Concern.
SECTION 5 SECURITY
SECTION 5.1 SECURITY.
In order to secure the due payment and performance by the Company of
the Obligations, simultaneously with the execution and delivery of this
Agreement, the Company shall:
(a) (i) Grant to the Collateral Agent (for the benefit of the
Lender Parties) a Lien on and pledge with the Collateral Agent, all of the
issued and outstanding shares or other forms or evidences of ownership owned by
it (whether now owned or hereafter acquired) of Clearnet, by the execution and
delivery to the Collateral Agent of a Pledge Agreement in the form of Exhibit B
hereto (the "Company Pledge Agreement"), or (ii)
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grant to the Collateral Agent (for the benefit of the Lender Parties) a Lien on
and pledge an amount of unencumbered cash equal to the Maximum Commitment (as
the same may have been reduced pursuant to Section 2.5(a)(ii)) less any
prepayments made pursuant to Section 2.5(a)(i), by executing and delivering to
the Collateral Agent a Cash Collateral Agreement in the form of Exhibit C hereto
(the "Cash Collateral Agreement"); and
(b) Execute and deliver or cause to be executed and delivered such
other agreements, instruments and documents as the Collateral Agent may
reasonably require in order to effect the purposes of the Company Pledge
Agreement, the Cash Collateral Agreement, this Section 5 and this Agreement.
SECTION 6 REPRESENTATIONS AND WARRANTIES
The Company makes the representations and warranties attributed to it
as a Credit Party in this Section 6 and the Company makes, on behalf of each of
the other Credit Parties, the representations and warranties attributable to
such Credit Party in this Section 6.
SECTION 6.1 ORGANIZATION.
(a) Each Credit Party that is not a natural Person is duly
organized and validly existing under the laws of its state or jurisdiction of
organization. Schedule 6.1(a) hereto accurately and completely lists, as to the
Company and the Operating Affiliates (excluding the Subsidiaries of the Persons
explicitly referenced in the definition thereof): (i) the jurisdiction of
incorporation or organization of each such entity, and the type of legal entity
that each of them is, (ii) as to each such Person that is a corporation, the
classes and number of authorized and outstanding shares of capital stock of each
such corporation, and the owners of such outstanding shares of capital stock,
and (iii) as to each such Person that is a legal entity other than a corporation
(but not a natural Person), the type and amount of equity interests authorized
and outstanding of each such entity, and the owners of such equity interests.
All of the shares, quota shares or other equity interests of the Company and the
Operating Affiliates (excluding the Subsidiaries of the Persons explicitly
referenced in the definition thereof) that are issued and outstanding have been
duly and validly issued and are fully paid and non-assessable, and are owned by
the Persons referred to on Schedule 6.1(a) hereto, and, to the extent owned by
the Company or any Restricted Subsidiary, are owned free and clear of any Lien
except for Permitted Liens. Except as set forth on Schedule 6.1(a) hereto, there
are no outstanding warrants, options, contracts or commitments of any kind
entitling any Person to purchase or otherwise acquire any shares of capital
stock or other equity interests of any Credit Party, nor are there outstanding
any securities that are convertible into or exchangeable for any shares of
capital stock or other equity interests of such Credit Party. Except as set
forth on Schedule 6.1(a) hereto, no Credit Party (other than the Company) has
any Subsidiaries. The Company has no Subsidiaries other than those listed on
Schedule 6.1(a) hereof and after the Closing Date any additional Subsidiaries to
the extent permitted hereunder.
(b) Each Credit Party is in good standing (to the extent that such
jurisdiction recognizes the legal concept of good standing) in its state or
jurisdiction of organization
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and in each state or jurisdiction in which it is qualified to do business. There
are no jurisdictions in which the character of the properties owned or proposed
to be owned by any Credit Party or in which the transaction of the business of
any Credit Party as now conducted or as proposed to be conducted requires or
will require such Credit Party to qualify to do business and as to which failure
so to qualify could reasonably be expected to have a Material Adverse Effect.
SECTION 6.2 POWER; AUTHORITY.
(a) Each Credit Party has full legal right, power and authority to
carry on its respective present business, to own its respective properties and
assets, to incur the obligations thereunder, to execute and deliver each Credit
Document to which it is a party, and, to the extent it is a party thereto, to
perform and observe the terms and conditions thereof.
(b) All appropriate and necessary corporate, partnership and legal
actions have been taken by the Company to authorize the execution, delivery and
performance of each Credit Document, and the Company is duly authorized to
execute and deliver and to perform its obligations under each of the Credit
Documents.
SECTION 6.3 GOVERNMENTAL APPROVALS.
(a) All Governmental Approvals under all applicable Governmental
Rules in connection with (i) the due execution, delivery and performance by the
Company of its obligations, and the exercise of its rights, under the Credit
Documents, and (ii) the grant by the Company of the assignments and security
interests granted by the Security Documents and the validity and enforceability
thereof and for the perfection of and the exercise by the Lender Parties of
their respective rights and remedies thereunder, have been duly obtained on or
before the Closing Date and are final, in full force and effect and all
administrative appeal periods with respect thereto have terminated. The Credit
Parties have obtained, and are in compliance in all material respects with, all
Governmental Approvals under all applicable Governmental Rules which are
necessary or required for the operation of the Systems and the conduct of the
Telecommunications Businesses, except for those Governmental Approvals the
failure to have or to be in compliance with could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. There is no
proceeding pending or (to the Credit Parties' knowledge after due inquiry)
threatened, that could reasonably be expected to rescind, terminate, modify or
suspend any Governmental Approval the termination, rescission, modification or
suspension of which could reasonably be expected to have a Material Adverse
Effect, and no such disclosed matter could reasonably be expected to have a
Material Adverse Effect. None of the Credit Parties, respectively, has any
knowledge that the information set forth in any application submitted by any
Credit Party in connection with any Governmental Approval (the termination,
rescission, modification or suspension of which could reasonably be expected to
have a Material Adverse Effect) is inaccurate or incomplete in any material
respect as of the date submitted and as of the Closing Date and true and
complete copies of such Governmental Approvals have been
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(to the extent requested by the Administrative Agent) delivered to the
Administrative Agent.
SECTION 6.4 EXECUTION, ENFORCEABILITY, VIOLATION OF LAW AND AGREEMENTS.
Each of the Credit Documents has been duly executed and delivered by
the Company and constitutes, the legal, valid and binding contract, agreement
and obligation of the Company enforceable in accordance with its terms except as
(x) the enforceability of the Credit Documents may be limited by bankruptcy,
insolvency or similar laws relating or affecting creditors' rights generally,
(y) the availability of equitable remedies, and (z) rights to indemnification
and contribution as they may be limited by public policy; provided, however,
that such exceptions shall not materially interfere with the practical
realization of the benefits of the Security Documents or the Liens created
thereby, except for: (i) possible delay, (ii) situations that may arise under
Chapter 11 of the Bankruptcy Code and comparable statutes of Canada, and (iii)
equitable orders of the Bankruptcy Court and comparable courts in Canada. The
execution, delivery and performance of the terms of each of the Credit Documents
by the Company and the payment by the Company of all amounts due on the dates
and in the currency provided for therein (a) will not, except as is set forth on
Schedule 6.4 hereto, violate or contravene any Governmental Rule or other
provision of law or other governmental directive, whether or not having the
force of law, which is applicable to the Company, which violation or
contravention thereof individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect; (b) will not, except as is set forth
on Schedule 6.4 hereto, contravene any governmental guideline or policy
statement applicable to the Company but not having the force of law, which
contravention thereof individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect; (c) will not conflict with, violate
or breach the Articles of Incorporation or By-laws (or any other organizational
documents), as the case may be, of the Company; (d) will not conflict with or
result in the breach of any provision of, or result in the creation or
imposition of any Lien or other preferential arrangement under, any other
indenture, agreement, mortgage, contract or other undertaking, or instrument to
which the Company is a party or by which it or any of its properties or assets
is bound other than the Credit Documents; and (e) will not constitute a default
or an event that, with the giving of notice or the passing of time, or both,
would constitute a default under any such agreement or instrument. To the extent
the representations and warranties contained in this Section 6.4 relate to any
law, Governmental Rule, governmental directive or other matter related to an
"employee benefit plan", within the meaning of Section 3(3) of ERISA, or a
"plan", within the meaning of Section 4975(e)(1) of the Code, such
representations and warranties are made assuming the truth of the
representation, warranty and covenant contained in the last sentence of
subsection 2.1(a).
SECTION 6.5 FINANCIAL STATEMENTS; BUSINESS PLAN.
(a) The consolidated audited balance sheets of the Company and its
Subsidiaries and consolidated statements of operations, changes in stockholders'
equity and cash flows of the Company and its Subsidiaries each as of December
31, 1998, and all other information and data heretofore furnished by the
Company, or any agent of the Company on behalf of the Company to the
Administrative Agent, including, the quarterly consolidated balance sheets and
consolidated statements of operations, changes in stockholders' equity and cash
flows (each as at March 31, 1999), have been prepared in
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accordance with GAAP and fairly present the condition and results of operations
of the Company and its Subsidiaries as of such dates or for such periods. Except
for those matters (i) set forth in the Company's SEC Reports filed on or prior
to the Closing Date or (ii) as set forth on Schedule 6.5, since December 31,
1998, no event that could reasonably be expected to have a Material Adverse
Effect has occurred. None of the Company or any of its Subsidiaries has
contingent obligations, liabilities for taxes or other outstanding financial
obligations which are material either individually or in the aggregate.
(b) The financial and business projections contained in the
Approved Business Plan submitted to the Administrative Agent were prepared in
good faith and based upon assumptions believed to be reasonable by the Company
(as of the date of the Approved Business Plan). The Approved Business Plan has
been accompanied by a summary of the key assumptions utilized in preparing the
Approved Business Plans.
SECTION 6.6 TAXES.
Each Credit Party has timely paid all required taxes, duties, fees and
assessments of any kind with respect to, or in connection with, its respective
income, business, properties and certificates of stock and each is current with
all the tax returns required to be filed by it except such taxes, if any, as are
being contested in good faith and by proper proceedings and as to which either
(x) adequate reserves have been established in accordance with GAAP on the books
of such Credit Party or (y) the aggregate amount of such taxes, duties, fees and
assessments is less than $5,000,000 and the non-payment of which would not
reasonably be expected to have a Material Adverse Effect under such
circumstances. There are no tax liens against any of the Credit Parties or any
of their respective properties. No Credit Party is party to any action or
proceeding by any Governmental Authority for the assessment or collection of
taxes, nor has any claim for assessment or collection of taxes been asserted
against any of the Credit Parties or any of their respective properties.
SECTION 6.7 PROPERTIES.
All property and assets (including, without limitation, leasehold and
other non-fee simple property interests) owned by each Credit Party, including,
without limitation, contracts, Governmental Approvals currently held by such
Credit Party, entitlements and other rights, titles or interest of such Credit
Party relating or incidental to the Systems or the Telecommunications Businesses
are owned by it free and clear of all Liens other than Permitted Liens.
SECTION 6.8 COMPLIANCE WITH LAWS.
(a) Each Credit Party complies and has complied in all material
respects with all applicable Governmental Rules, except to the extent such
non-compliance could not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect. To the extent the representations
and warranties contained in the preceding sentence relate to any Governmental
Rule related to an "employee benefit plan", within the meaning, of Section 3(3)
of ERISA, or a "plan", within the meaning of Section 4975(e)(1) of the Code,
such representations and warranties are made assuming the truth
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of the representation, warranty and covenant contained in the last sentence of
subsection 2.1(a). Except as previously disclosed to the Administrative Agent
and the Lenders in writing or disclosed in the Company's SEC Reports, no Credit
Party has received any communication of which the Company has not made the
Administrative Agent and the Lenders aware in writing promptly after the Company
becoming aware thereof, from a Governmental Authority that alleges that any
Credit Party is not in full compliance in all material respects with all
applicable Governmental Rules, and to the Credit Parties' knowledge, after due
inquiry, there are no circumstances that may prevent or interfere with such full
compliance in all material respects in the future.
(b) Each Credit Party is in compliance with all applicable laws
relating to the employment of labor, wages, hours and conditions of work,
collective bargaining, withholding tax and the payment of social security
contributions and other labor-related taxes, except to the extent any
non-compliances cannot, individually or in the aggregate, be reasonably expected
to have a Material Adverse Effect. No Credit Party is liable for any arrears in
wages, compensation, benefits, premiums, taxes or penalties for failure to
comply with any of the foregoing laws except to the extent that the same are
being contested in good faith and by proper proceedings and as to which either
(y) adequate reserves have been established in accordance with GAAP on the books
of such Credit Party or (z) nonpayment of which could not have a Material
Adverse Effect under such circumstances and could not result in an aggregate
liability in excess of $5,000,000. To the extent the representations and
warranties contained in this Section 6.8(b) relate to any law related to an
"employee benefit plan", within the meaning of Section 3(3) of ERISA, or a
"plan", within the meaning of Section 4975(e)(1) of the Code, such
representations and warranties are made assuring the truth of the
representation, warranty and covenant contained in the last sentence of
subsection 2.1(a).
(c) The operations of each Credit Party comply in all material
aspects with all applicable Environmental Laws.
(d) There are no claims, investigations, litigation,
administrative proceedings, whether pending or, to the knowledge of the Company,
threatened, or judgments or orders, relating to any Materials of Environmental
Concern or alleging, the violation of any Environmental Laws (collectively
"Environmental Matters") relating IN any way to any property or to the
operations of such Credit Party.
(e) No Materials of Environmental Concern are presently stored or
otherwise located on, in or under real estate owned or leased by any Credit
Party except in compliance in all material respects with all Environmental Laws,
and, no part of such real estate or adjacent parcels of real estate, including,
without limitation, the groundwater located thereon, is to the knowledge of the
Credit Parties after due inquiry, presently contaminated by any Materials of
Environmental Concern in any material respect.
(f) No Credit Party has any material contingent liability in
connection with any release of any Materials of Environmental Concern into the
environment.
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SECTION 6.9 INTELLECTUAL PROPERTY.
Each of the Credit Parties owns, or is licensed to use, all trademarks,
tradenames, copyrights, patents and other intellectual property material to its
business (the "Intellectual Property"), and the use of the Intellectual Property
by the Credit Parties does not infringe upon the rights of any other Person,
except for any such infringements that, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect. All material fees
which are due in respect of the Intellectual Property have been paid.
SECTION 6.10 BURDENSOME DOCUMENTS; AGREEMENTS WITH AFFILIATES; OTHER AGREEMENTS.
(a) Except as set forth on Schedule 6.10, no Credit Party is a
party to or bound by, nor are any of the properties or assets owned by any
Credit Party used in the conduct of its businesses affected by, any agreement,
bond, note, indenture, order or judgment, including, without limitation, any of
the foregoing relating to any Environmental Matter, that a violation thereof
could reasonably be expected to have a Material Adverse Effect.
(b) No Credit Party is party to any agreement with any
Arm's-Length Affiliate or any of the officers, directors or stockholders of such
Arm's-Length Affiliate except as set forth on Schedule 6.10 (including, without
limitation, the management agreements listed thereon) and except for agreements
(i) with any Restricted Subsidiary of the Company, or (ii) made on commercially
reasonable or more advantageous terms to such Credit Party.
(c) No Credit Party is a party to nor is any of its respective
property subject to or bound by any lease, forward purchase contract or futures
contract, covenant not to compete, or other agreement which restricts such
Credit Party's ability to conduct its respective business as presently conducted
in such a way as could reasonably be expected to have a Material Adverse Effect
or otherwise could reasonably be expected to have a Material Adverse Effect.
(d) No material purchase or other commitment of any Credit Party
is in excess of the normal ordinary and usual requirements of its respective
business, or was made at any price in excess of the then current market price,
or contains terms and conditions more onerous than those usual and customary in
the applicable industry.
SECTION 6.11 SECURITY DOCUMENTS.
The Security Documents create in favor of the Collateral Agent (for the
benefit of the Lender Parties) legal, valid and, upon proper recording,
registration or filing for those documents or instruments that require such
filing registration or recording, and possession for those security interests
perfected by possession, perfected security interests in the Collateral. All
filings, recordations, registrations and other actions necessary to perfect and
protect such security interests have been duly effected or taken, and a
perfected Lien on the Collateral, prior and superior to all other Liens (except
for Permitted Liens) has been created in favor of the Collateral Agent.
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SECTION 6.12 JUDGMENTS, ACTIONS, PROCEEDINGS.
Except as set forth on Schedule 6.12 hereto, there are no actions,
suits or proceedings by or before any arbitrator or Governmental Authority
pending against or, to the knowledge of any of the Credit Parties after due
inquiry, threatened against or affecting any of the Credit Parties (a) as to
which an adverse determination could reasonably be expected and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect or (b) that involve any of the
Credit Documents or Licenses or the transactions contemplated thereby, nor is
there any reasonable basis for the institution of any such action or proceeding.
SECTION 6.13 NO DEFAULTS.
No Default or Event of Default has occurred and is continuing. No Credit
Party is in default under or with respect to any agreement, lease or instrument
to which any Credit Party is a party or by which it or its properties or assets
may be bound which could reasonably be expected to have a Material Adverse
Effect.
SECTION 6.14 STRIKES.
There are no strikes, work stoppages or controversies pending or
threatened between any Credit Party and its employees, other than employee
grievances arising in the ordinary course of business which would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
SECTION 6.15 ACCURACY OF INFORMATION.
Each of the foregoing representations and warranties attributed to the
Credit Parties (or any group or one of them) and all information heretofore
furnished by the Credit Parties (or any group or one of them) to the Lender
Parties (or any group or one of them) for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such information
hereafter furnished by the Credit Parties (or any group or one of them) to the
Lender Parties (or any group or one of them) will be, true and accurate in all
material respects on the date of this Agreement and as of the date on which such
information is stated or certified; provided that, with respect to projected
financial information the Credit Parties represent only that such information
was prepared in good faith and based upon assumptions believed to be reasonable
by such Credit Party of performance for the forecast periods. The Company has
disclosed to the Administrative Agent in writing or in the Company's SEC Reports
any and all facts which have or could reasonably be expected to have a Material
Adverse Effect.
No representation or warranty of the Credit Parties (or any group or
one of them) herein, and no certification, document or statement furnished or to
be furnished to Lender Parties (or any group or one of them) contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements of fact contained herein not misleading.
SECTION 6.16 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
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Each of the representations and warranties set forth in Section 6
hereof shall be deemed repeated on the date of each Advance and on the first day
of each Interest Period as fully as if made on each such date with respect to
the circumstances of the relevant Person existing at such time, except that the
representations and warranties set forth in subsections 6.5(a) and (b) hereof as
to the financial statements of the Company (other than the representation that
no Material Adverse Effect has occurred since December 31, 1998) shall be deemed
a reference to the audited and unaudited financial statements of the Company
most recently delivered to the Administrative Agent pursuant to Sections 7.2 and
7.3 hereof.
SECTION 6.17 ERISA.
(a) Each Plan is operated and administered in all material
respects in accordance with applicable laws including, but not limited to, all
material applicable provisions of ERISA and the Code, and each Credit Party has
timely made all requisite premium payments to the PBGC.
(b) No "Reportable Event", as defined in Section 4043, that is
subject to a 30-day notice requirement under Section 4043 of ERISA (e.g., for
which such 30-day notice requirement has not been waived by statute, regulation
or otherwise) in respect of any Plan has occurred, except for any such
Reportable Event as could not reasonably be expected to have a Material Adverse
Effect. No Credit Party has received any notice from the PBGC that any Plan is
being involuntarily terminated or from the Secretary of the Treasury that any
partial or full termination of any Plan has occurred and to the knowledge of the
Credit Parties, respectively, after due inquiry, no event shall have occurred
and there shall exist as of the date hereof no condition or set of circumstances
that present a material risk of the involuntary termination of any Plan where
such termination could reasonably be expected to have a Material Adverse Effect.
(c) No material unpaid or contingent liability to the PBGC has
been or is expected to be incurred by any Credit Party (other than for payment
of PBGC premiums in the ordinary course) with respect to any Plan. To the
knowledge of the Credit Parties, respectively, after due inquiry, no event has
occurred and there exists no condition or set of circumstances, that presents a
material risk of the termination or partial termination of any Plan that could
reasonably be expected to result in a material liability on the part of any
Credit Party to the PBGC with respect to any Plan.
(d) No non-exempt "prohibited transaction" as defined in Section
406 of ERISA or Section 4975 of the Code that could reasonably be expected to
have a Material Adverse Effect has occurred with respect to any Plan.
(e) Each Credit Party has made all material required contributions
under the Plans for all periods through and including January 1, 1999, or
adequate accruals therefor have been provided for in the financial statements
referred to in subsection 6.5(a) and (b). No material "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA
whether or not waived, has occurred with respect to any Plan.
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(f) The actuarial value of vested benefits required to be funded
by each Credit Party, or with respect to which such Credit Party is liable,
under the Plans, determined using the actuarial methods and assumptions used by
the relevant Plan's actuary as of the last valuation date for which an actuarial
valuation was completed to determine such Plan's funded status, did not as of
the last valuation date as of which an actuarial valuation has been completed,
which in the case of any individual Plan was not earlier than January 1, 1998,
exceed the actuarial value of the assets of the Plans allocable to such vested
and non-vested benefits by a material amount.
(g) No Credit Party is a participating employer in: (i) any Plan
under which more than one unrelated employer makes contributions as described in
Section 4063 and 4064 of ERISA, or (ii) a multiemployer plan as defined in
Section 4001 (a)(3) of ERISA.
(h) Subject to the first paragraph of Section 6, all references to
a Credit Party in this Section 6.17 or in any other Section of this Agreement
relating to ERISA (other than references relating to the knowledge or awareness
of the Company) shall be deemed to refer to such Credit Party and all other
entities that are part of a Controlled Group as of the relevant date.
SECTION 6.18 USE OF PROCEEDS.
No part of the proceeds received by the Company from the Advances will
be used directly or indirectly for: (a) any purpose other than as is set forth
in Section 2.9 hereof, or (b) the purpose of purchasing or carrying, or for
payment in full or in part of Indebtedness that was incurred for the purposes of
purchasing or carrying, any margin stock (within the meaning of Regulation U or
X of the Board of Governors of the Federal Reserve System).
SECTION 6.19 INVESTMENT COMPANY.
Neither the Company nor any of the other Credit Parties is an
"Investment Company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 7 AFFIRMATIVE COVENANTS
Until termination of the Commitments and payment in full of the
Advances, any interest due thereon and all other amounts due hereunder, and so
long as this Agreement remains in effect, the Company covenants and agrees that,
unless the Required Lenders shall otherwise consent in writing, it shall comply
in all respects with each of the following covenants and agreements. In
addition, the Company agrees to cause each other Credit Party to comply in all
respects with each covenant and agreement set forth below and attributed to such
Credit Party.
SECTION 7.1 PERFORMANCE OF OBLIGATIONS.
(a) The Company shall punctually pay all amounts due by it under
each of the Credit Documents at the times, on the dates and in the places
specified therein, and shall timely perform all of its other obligations,
undertakings and covenants under each of the Credit Documents.
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(b) The Company shall, and shall cause each other Credit Party to,
punctually pay all its respective Indebtedness and shall perform promptly all
its respective contractual obligations (except those being diligently contested
in good faith by appropriate proceedings) pursuant to agreements to which it is
a party or by which it is bound at all times during the term of this Agreement.
(c) The Company shall, and shall cause each other Credit Party to,
pay and discharge all taxes, assessments and governmental charges levied upon it
or against any of its respective properties or assets prior to the date after
which penalties attach for failure to pay, except for such taxes, assessments
and governmental charges that are being contested in good faith and so long as
such Credit Party has established adequate reserves therefor on the books of
such Credit Party in accordance with GAAP or as to which the aggregate amount of
such taxes, assessments and governmental charges is less than (i) in the case of
any Credit Party, $5,000,000, and (ii) in the case of the Credit Parties in the
aggregate, $5,000,000 and the nonpayment of which would not reasonably be
expected to have a Material Adverse Effect under the circumstances. The Company
shall, and shall cause each other Credit Party to, make timely filings of all
tax returns and material governmental reports required to be filed or submitted
by any of them under any applicable laws or regulations. If any such Person pays
any tax or charge as provided herein or makes any deductions or withholding from
amounts paid hereunder, the Company shall promptly forward to the Administrative
Agent official receipts or other evidence acceptable to the Administrative Agent
establishing payment of such amounts.
SECTION 7.2 ANNUAL FINANCIAL STATEMENTS.
As soon as available, but not later than 120 days after the end of its
fiscal year the Company shall deliver to the Administrative Agent, and if
requested, a sufficient number of additional copies for each Lender and the
Administrative Agent, (a) the consolidated annual financial statements of the
Company and the Subsidiaries (including, without limitation, its balance sheet,
statement of income, statement of changes in stockholders' equity and statement
of cash flows and related earnings for such fiscal year, each with related notes
specifying significant accounting practices and their impact on such financial
statements and with related schedules) as at and for the fiscal year then ended
and (b) copies of the Governmental Approvals not previously delivered to the
Administrative Agent as described in Section 7.6, such consolidated financial
statements to be audited and reported on by Deloitte & Touche LLP or other
internationally recognized independent certified public accountants of
recognized standing selected by the Company, without going concern or like
exception or qualification and without qualification as to scope of such audit
and prepared in accordance with GAAP. In addition, the chief financial officer
of the Company shall deliver a certificate stating that at the date of such
certificate (i) no Default or Event of Default has occurred and is continuing,
or if such Default or an Event of Default has occurred and is continuing, with a
reasonably detailed description thereof and the actions the Company is taking
with respect thereto, and (ii) there is no material litigation, initiated or
filed by or against the Company or the other Credit Parties and, except for
Permitted Liens, no Lien against any of the Collateral has been created,
voluntarily or by operation of law, or if there is any such material litigation
or Lien, a description thereof and the actions the Company or any such other
Credit Party, as the case may be, is taking with respect thereto. In
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addition, the foregoing certificate shall set forth in reasonable detail the
calculations required to establish compliance with the financial covenants set
forth in Section 7.15 hereof.
SECTION 7.3 QUARTERLY FINANCIAL STATEMENTS.
As soon as available but not later than 60 days after the end of each
fiscal quarter occurring within its fiscal year (other than the fourth fiscal
quarter, which will be deemed delivered with the financial statements required
under Section 7.2), the Company shall deliver to the Administrative Agent, and
if requested, a sufficient number of additional copies for each Lender and the
Administrative Agent of the consolidated unaudited financial statements of the
Company and its Subsidiaries for such quarterly period (including, without
limitation, its balance sheet, statement of income, statement of changes in
stockholders' equity and statement of cash flows and related earnings, for such
quarter) which shall be certified by the chief financial officer of the Company
as having been prepared in accordance with GAAP. In addition, the chief
financial officer of the Company shall deliver a certificate stating that at the
date of such certificate (a) no Default or Event of Default has occurred and is
continuing, or if such Default or an Event of Default has occurred and is
continuing, with a reasonably detailed description thereof and the actions being
undertaken by the Company with respect thereto, and (b) there is no material
litigation, initiated or filed by or against the Credit Parties, and except for
Permitted Liens, no Lien against any of the Collateral has been created,
voluntarily or by operation of law, or if there is any such material litigation
or Lien, a description thereof and the actions the Company or any other such
Credit Party as the case may be, is taking with respect thereto. In addition,
the foregoing certificate shall set forth in reasonable detail the calculations
required to establish compliance with the financial covenants set forth in
Section 7.15 hereof.
SECTION 7.4 OTHER INFORMATION.
(a) Promptly upon their becoming available, the Company shall
deliver to the Administrative Agent, copies of all material notices or material
documents (the effect, substance, absence or breach of which could reasonably be
expected to have a Material Adverse Effect) given or received by any Credit
Party in connection with any of the Systems.
(b) From time to time, the Company shall deliver to the
Administrative Agent, such other information regarding the business of the
Company, the Operating Affiliates, any System or any Telecommunications Business
as the Administrative Agent may reasonably request.
(c) The officers of the Company (including, without limitation,
the chief financial officer thereof) shall, at the reasonable request of the
Administrative Agent, make themselves reasonably available following the
Administrative Agent's receipt of the financial information required to be
delivered by the Company pursuant to Sections 7.2 or 7.3 hereof (commencing with
the information delivered for the period ending March 31, 1999), in order to
discuss and review the Credit Parties' respective results shown on such
financial statements with representatives of the Administrative Agent.
SECTION 7.5 ACCESS TO BOOKS; INSPECTIONS.
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(a) The Company shall, and shall cause each other Credit Party to,
permit the Lender Parties and their respective representatives, at all
reasonable times, but prior to an Event of Default at the Lender Parties' own
expense and with prior written notice to the Company and the relevant other
Credit Parties, and after an Event of Default at the expense of the Company, to
inspect the facilities, activities, books of account and records of the Company
and the other Credit Parties and make copies thereof, and shall cause its
representatives, employees and accountants to give their full cooperation and
assistance in connection with any such visits of inspection or any financial
conferences called by a Lender. The Company shall promptly supply to the Lender
Parties copies of any reports on its or any Credit Party's business and
activities which are publicly distributed, and will give notice of and make
available to the Lender Parties copies of any other reports on its or any other
Credit Party's activities and reports made to the government, or any
governmental agency or council as the Lender Parties may from time to time
reasonably request. The Company shall also make available such further
information concerning its or any other Credit Party's business and affairs in
the Relevant Countries as any Lender Party may from time to time reasonably
request.
(b) The Company shall, and shall cause each other Credit Party to,
maintain an adequate accounting system, including, without limitation, books,
accounts and records, prepare all financial statements required hereunder in
accordance with GAAP, consistently applied, and in compliance with the
regulations of any Governmental regulatory body having jurisdiction thereof.
SECTION 7.6 GOVERNMENTAL APPROVALS.
The Company shall, and shall (in the case of clause (a)) cause each
other Credit Party to, promptly from time to time obtain or cause to be obtained
all Governmental Approvals as shall now or hereafter be necessary (a) for the
construction, ownership, completion, operation and maintenance of the relevant
Systems and the related Telecommunications Businesses (except where failure to
obtain such Governmental Approvals could not reasonably be expected to have a
Material Adverse Effect), and (b) for the grant of the assignments and security
interests granted by the Security Documents or the validity and enforceability
thereof or for the perfection of or the exercise by the Collateral Agent of its
rights and remedies thereunder.
SECTION 7.7 INSURANCE.
The Company shall, and shall cause each other Credit Party to, (a)
maintain or cause to be maintained, to the extent available on commercially
reasonable terms, in full force and effect at all times on and after the Closing
Date and continuing until the Maturity Date, with responsible insurance
companies having, a Best Insurance Reports rating of "A-" or better and a
financial size category of "IX" or higher (and other companies and ratings
services reasonably acceptable to the Required Lenders) such insurance on such
of its properties, in such amounts and against such risks and with such
deductibles as a Person conducting a similar business under similar conditions
as the Credit Parties would customarily maintain coverage, (b) along with the
deliveries made pursuant to Section 7.3 hereof, deliver a certificate to the
Administrative Agent setting forth all insurance then in effect and stating the
names of the insurance companies, the
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amounts of the insurance, the dates of the expiration thereof and the properties
and risks covered thereby and specifically listing the special provisions
enumerated for such insurance required by this Section 7.7, and (c) obtain such
additional insurance, to the extent available on commercially reasonable terms,
as the Required Lenders may reasonably request to cover risks not foreseen prior
to the Closing Date. The certificates of insurance referred to in clause (b)
hereof shall be executed by an authorized representative of each insurer. Upon
request, the Company will promptly furnish the Agents with evidence of such
insurance relating to each System and each Telecommunications Business.
SECTION 7.8 CONTINUANCE OF BUSINESS.
The Company shall, and shall cause each other Credit Party to, maintain
its respective corporate existence, rights, licenses and privileges in good
standing under and in compliance with all applicable laws and regulations,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect and shall maintain,
subject to the provisions of Section 8.5 hereof, the present character of its
respective business.
SECTION 7.9 MAINTENANCE AND REPAIRS.
The Company shall, and shall cause each other Credit Party to, conduct
its respective business in a manner consistent with prudent industry standards,
keep all its respective material assets and properties in good working order and
condition, and from time to time make all needful and proper repairs, renewals,
replacements and improvements thereof so that the business carried on in
connection therewith may be properly and prudently conducted at all times.
SECTION 7.10 COMPLIANCE WITH LAW.
(a) The Company shall, and shall cause each other Credit Party to,
comply with the requirements of all applicable Governmental Rules except those
Governmental Rules that are being contested in good faith by appropriate
proceedings and except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect. In particular, and without
application of any materiality standard, the Company, on its own behalf and on
behalf of the other Credit Parties, agrees that its activities in connection
with the Systems and the Telecommunications Businesses shall be conducted in
full compliance under the United States Foreign Corrupt Practices Act and any
other applicable law dealing with improper or illegal payments, gifts or
gratuities. Notwithstanding the foregoing, the covenants contained in this
Section 7.10 shall not be deemed to have been violated to the extent any failure
to comply with any Governmental Rule or any other requirement of this Section
7.10 is attributable to a breach of the representation, warranty or covenant
contained in the last sentence of subsection 2.1(a) hereto.
(b) Notwithstanding anything in the foregoing subsection 7.10(a)
or in this Agreement to the contrary, the Company shall, and shall cause each
other Credit Party to,
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keep the relevant Systems and the assets of the related Telecommunications
Businesses free of any Lien imposed pursuant to any Environmental Law; and will
pay or cause to be paid when due any and all costs in connection with the
foregoing (except where the same are being contested in good faith by proper
procedures and as to which either (x) adequate reserves have been established in
accordance with GAAP on the books of such Person or (y) non-payment of which
would not reasonably be expected to have a Material Adverse Effect), including,
without limitation, the cost of identifying the nature and extent of the
presence of any Materials of Environmental Concern in, on or from such System
and the assets of such Telecommunications Business or on any real property owned
or leased by the Company or any other Credit Party, and the cost of delineation,
removal, treatment and disposal of any such Materials of Environmental Concern.
The Company will, and will cause each other Credit Party to, give to the
Collateral Agent and its agents and employees reasonable access to the Systems,
the assets of the Telecommunications Businesses and the Collateral to effect the
foregoing, including, without limitation, following such failure the periodic
conduct of an environmental audit, the cost of such audit to be paid by the
Company, to ensure compliance with this Section 7.10.
SECTION 7.11 NOTICES.
(a) The Company shall promptly, but in no event later ten Business
Days (unless otherwise indicated below) after the occurrence of the following
events, give notice to the Administrative Agent of the occurrence of any of the
following:
(i) a Default or an Event of Default;
(ii) a default by any Credit Party under any material
agreement or document relating to a System which would reasonably be
expected to have a Material Adverse Effect, together with a statement
of action proposed to be taken by such Credit Party to cure such
default;
(iii) any (A) written claim, litigation, investigation or
proceeding which arises at any time involving any Credit Party which,
if adversely determined, could reasonably be expected to have a
Material Adverse Effect; or (B) the issuance by any court or
Governmental Authority of any injunction, order, decision or other
restraint prohibiting, or having the effect of prohibiting, the making
of Advances hereunder, or invalidating, or having the effect of
invalidating, any provision of this Agreement or any of the other
Credit Documents, including but not limited to, provisions regarding
the granting of security interests in the Collateral or the priority of
such security interests, or the initiation of any litigation or similar
proceeding seeking any-such injunction, order, decision or other
restraint;
(iv) any development in the business or affairs of any
Credit Party which has resulted in or could reasonably be expected to
result in a Material Adverse Effect or the occurrence of any other
event, such as a Force Majeure, which, if adversely determined (if
applicable) or otherwise, could reasonably be expected to have a
Material Adverse Effect;
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(b) 30 days prior written notice thereof, any notice received by
any Credit Party from any other Governmental Authority regarding events which,
if determined adversely, could reasonably be expected to have a Material Adverse
Effect, including, without limitation, the rejection, termination or revocation
of any Governmental Approval; and
(c) promptly, upon their becoming available (and any Credit Party
becoming aware of their existence), copies of: (i) all correspondence with any
representative of PBGC, the Secretary of Labor or the IRS with respect to any
Plan, relating to an actual or threatened change or development that could
reasonably be expected to have a Material Adverse Effect; and (ii) copies of any
notices of Plan termination filed by any Plan Administrator (as those terms are
used in ERISA) with the PBGC and of any notices from the PBGC to the Company
with respect to the intent of the PBGC to institute involuntary termination
proceedings where such termination could reasonably be expected to have a
Material Adverse Effect.
Each notice shall be accompanied by a statement of the principal
financial officer of the Company setting forth details of the occurrence
referred to therein and stating, what action the Company proposes to take with
respect thereto.
SECTION 7.12 SECURITY; FURTHER ASSURANCES
(a) The Company shall register or record each of the Credit
Documents (or a copy thereof) required to be registered or recorded and execute
and file and cause to be filed in such offices as shall be required or
appropriate under any applicable Uniform Commercial Code or mortgage recording
or other statute in any state or jurisdiction (including, without limitation,
all necessary or desirable registrations with any central banking, registrar of
companies or other applicable Governmental Authority in Canada), and, in each
such case, in such manner and form as the Collateral Agent may reasonably
require or as may be necessary under applicable governmental laws, any financing
statement, registration, mortgage or other instrument that may be necessary, or
that the Collateral Agent may reasonably request, in order to create, perfect,
preserve, validate or satisfy the Liens granted to the Collateral Agent (for the
benefit of the Lender Parties) pursuant to the Security Documents and shall pay
(except to the extent resulting solely from an act or omission of the Collateral
Agent) all costs, charges and expenses of and incidental to the registration and
recordation of the Credit Documents and the filing or recording of such
financing statements, mortgages or other instruments.
(b) The Company shall at all times and at the Company's cost,
warrant and defend its title in and to the Collateral.
(c) From time to time and at all times hereafter upon the
reasonable request of the Collateral Agent and (except to the extent are caused
solely by a change in circumstance related to the Collateral Agent) at the cost
of the Company, the Company shall execute and cause to be done and executed all
such acts, deeds and assurances to perfect, reserve or protect the rights of the
Collateral Agent with respect to the Collateral as the Collateral Agent may
reasonably request.
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(d) Notwithstanding anything to the contrary contained herein or
in the other Credit Documents:
(i) If as of the last Business Day of each calendar month
the Aggregate Pledge Collateral Value is greater than 130% of the
Maximum Collateralized Amount, then all cash collateral then on deposit
and subject to the Cash Collateral Agreement shall be released at the
written direction of the Company. If as of the last Business Day of
each calendar month the Aggregate Collateral Value is less than 125% of
the Maximum Collateralized Amount, then, within five Business Days of
such date, the Company shall deposit into the account subject to the
Cash Collateral Agreement such amount of cash necessary, if any, so
that, after giving effect thereto, the Aggregate Collateral Value
(determined as of the date of such deposit and using the Closing Price
rather than the Average Closing Price for such determination) is at
least 125% of the Maximum Collateralized Amount. Along with the
deliveries made pursuant to Sections 7.2 and 7.3 hereof, the Company
shall deliver a certificate to the Administrative Agent setting forth
(with calculations) the Aggregate Collateral Value and the Aggregate
Pledge Collateral Value as of the last Business Day of each calendar
month during the applicable period.
(ii) The Collateral Agent may require the deposit of
additional cash by the Company to be subject to the Cash Collateral
Agreement if the Aggregate Collateral Value at any time, including as
of the last Business Day of a calendar month, is less than 125% of the
Maximum Collateralized Amount by giving written notice thereof to the
Company. Such deposit shall be made within 5 days of the giving of such
notice and shall be in an amount sufficient to make the Aggregate
Collateral Value (as of the date of such deposit) at least 125% of the
Maximum Collateralized Amount.
(iii) Provided that the Company has not elected to deposit
cash as cash collateral subject to the Cash Collateral Agreement in the
amount and as provided in Section 5.1(a)(ii), the Company may request
(which request shall be in writing and delivered to the Agents) that
the cash on deposit and subject to the Cash Collateral Agreement be
released per the written direction of the Company if, at any time, the
Aggregate Pledge Collateral Value is greater than 130% of the Maximum
Collateralized Amount. Such cash shall be released upon the written
direction of the Company to the extent that, after giving effect to the
release, the Aggregate Collateral Value (including any cash collateral
not released) is at least 125% of the Maximum Collateralized Amount
(determined as of the date of the release).
SECTION 7.13 CONSTRUCTION OF THE SYSTEMS.
The Company shall proceed, together with the Operating Affiliates,
diligently to construct the Systems in the Relevant Countries as required and
permitted (to the extent necessary to achieve the Approved Business Plan)
pursuant to the Governmental Approvals obtained in connection therewith.
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SECTION 7.14 MAINTENANCE OF GOVERNMENTAL APPROVALS
Except to the extent loss or proposed modification of, or
non-compliance with, a Governmental Approval could not reasonably be expected to
have a Material Adverse Effect, the Company shall, and shall cause each other
Credit Party to: (a) comply in all material respects with the terms and
conditions of the its Governmental Approvals, preserve and maintain each such
Governmental Approval in full force and effect and shall not permit or suffer to
exist any default under its Governmental Approvals which could give rise to a
revocation or termination thereof; (b) enforce and maintain in all material
respects its respective rights under such Governmental Approvals; and (c) not
permit or consent to the modification or waiver (adverse to the license holder
or related Operating Affiliate) of any provision of such Governmental Approvals.
SECTION 7.15 FINANCIAL COVENANTS.
The Company and the other Credit Parties shall have or maintain, on a
consolidated basis, and at all times:
(a) a ratio of Indebtedness to Normalized EBITDA of not greater
than the ratios set forth below at all times for the calendar quarters specified
below:
Quarter end date Maximum Indebtedness to Normalized EBITDA ratio
6/30/00 38 : 1
9/30/00 38 : 1
12/31/00 38 : 1
3/31/01 38 : 1
6/30/01 38 : 1
9/30/01 38 : 1
(b) The product of (i) four times (ii) EBITDA, measured for the
most recently ended fiscal quarter commencing with the fiscal quarter ending
September 30, 1999, of not less than the amount on the quarter end dates set
forth below:
Quarter end date Minimum EBITDA
12/31/99 (166,000,000)
3/31/00 (172,000,000)
6/30/00 (166,000,000)
9/30/00 (152,000,000)
12/31/00 (135,000,000)
3/31/01 (114,000,000)
6/30/01 (75,000,000)
9/30/01 (27,000,000)
(c) In addition, in the event that any compliance certificate
delivered pursuant to Section 7.2 or 7.3 reflects the failure of the Company to
satisfy the EBITDA-related covenant under clauses (a) and (b) above for the most
recently ended quarterly period
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certified thereon, the calculation of EBITDA for such covenants for such period
shall include as income, to the extent necessary for compliance with such
covenants for such period, an amount equal to the positive difference, if any,
of Adjusted Paid-in Capital as of the end of such quarterly period minus the
Adjusted Paid-in Capital Amount set forth in the table below as of the end of
such quarterly period (the amount of such excess which is included as income for
purposes of compliance with clauses (a) and (b) above, together with all
previous income adjustments under this clause (c), is referred to as the
"Utilized EBITDA Adjustment"); provided that adjustments to income under this
clause (c) for a quarterly period shall not be permitted if an adjustment under
this clause (c) was made with respect to the immediately preceding quarterly
period; provided, further, the Utilized EBITDA Adjustment shall not be treated
as income for any other calculation of EBITDA under the Credit Documents.
Quarter end date Adjusted Paid-in Capital Amount
9/30/99 595,460,000
12/31/99 606,000,000
3/31/00 606,000,000
6/30/00 861,000,000
9/30/00 861,000,000
12/31/00 1,117,000,000
3/31/01 1,117,000,000
6/30/01 1,296,000,000
9/30/01 1,296,000,000
SECTION 8 NEGATIVE COVENANTS
Until the termination of the Commitments and payment in full of the
Advances, any interest due thereon and all other amounts due hereunder, and so
long as this Agreement remains in effect, the Company covenants and agrees that,
unless the Required Lenders shall otherwise consent in writing, it shall comply
in all respects with each of the following covenants and agreements. In
addition, the Company agrees to cause each of the other Credit Parties to comply
in all respects with each covenant and agreement set forth below and attributed
to such Credit Party.
SECTION 8.1 INDEBTEDNESS.
The Company shall not, and shall not permit any other Credit Party to,
at any time, incur, create, assume or suffer to exist any Indebtedness
(howsoever incurred, created, assumed or existing, directly or indirectly) other
than Permitted Indebtedness.
SECTION 8.2 GUARANTIES.
The Company shall not, and shall not permit any other Credit Party to,
assume, endorse, be or become liable for, or guarantee, the obligations of any
Person (other than the "Borrowing Affiliate Guaranties" and "Parent Guaranties"
under and as defined in the MEFA) except (a) by the endorsement of negotiable
instruments for deposit or collection in the ordinary course of business, and
(b) in respect of the Permitted Indebtedness of the Credit Parties. For the
purposes hereof, the term "guarantee" shall include any agreement, whether such
agreement is on a
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contingency or otherwise, to purchase, repurchase or otherwise acquire
Indebtedness of any other Person, or to purchase, sell or lease, as lessee or
lessor, property or services, in any such case primarily for the purpose of
enabling another Person to make payment of Indebtedness, or to make any payment
(whether as an advance, capital contribution, purchase of any equity interest or
otherwise) to assure a minimum equity, asset base, working capital or other
balance sheet or financial condition, in connection with the Indebtedness of
another Person, or to supply funds to or in any manner invest in another Person
in connection with such Person's Indebtedness.
SECTION 8.3 TRANSFER.
(a) Except as otherwise permitted by Section 8.5, the Company
shall not, and shall not permit any other Credit Party to, without the prior
written consent of the Required Lenders, sell, lease, transfer, assign or
otherwise dispose of (whether in one transaction or in a series of related
transactions) all or any material part of its assets (except (x) in the ordinary
course of business, and (y) if the value of the asset is less than 10% of the
total assets of the Company on a consolidated basis (excluding Subsidiaries of
the Company which are not Restricted Subsidiaries) as listed on the most recent
balance sheet delivered in accordance with subsections 7.2(a) or 7.3(a) hereof,
as the case may be, or the aggregate value of assets disposed of in any year
does not exceed 10% of the total assets of the Company on a consolidated basis
(excluding Subsidiaries of the Company which are not Restricted Subsidiaries) as
listed on the most recent balance sheet delivered in accordance with subsections
7.2(a) and 7.3(a) hereof, as the case may be, or such disposition is for the
replacement of obsolete, worn or defective equipment for which such Credit Party
shall have received adequate and fair consideration), whether now owned or
hereafter acquired.
(b) Notwithstanding the second parenthetical in subsection 8.3(a)
above, the Company shall not, and shall not permit any other Credit Party to,
without the prior written consent of the Required Lenders, sell, lease,
transfer, assign or otherwise dispose of, or transfer out of the Relevant
Country to which it was originally shipped, any equipment acquired pursuant to
the iDEN Equipment and Service Agreements or any ancillary switches or products
to be used in connection with the Systems.
SECTION 8.4 LIENS.
The Company shall not, and shall not permit any other Credit Party to,
create or suffer to exist any Lien upon or with respect to any of such Person's
assets or property, whether now owned or hereafter acquired, other than
Permitted Liens and the Liens in existence on the Closing Date as set forth on
Schedule 8.4.
SECTION 8.5 MERGERS; ACQUISITIONS.
The Company shall not, and shall not permit any other Credit Party to,
(a) merge or consolidate with any Person (except that a wholly-owned Restricted
Subsidiary of the Company may merge into any other wholly-owned Restricted
Subsidiary of the Company), or (b) except as permitted by Section 8.9 or Section
8.10 hereof, acquire all or substantially all of the assets or any of the
capital stock or the partnership interests of any Person.
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SECTION 8.6 DISTRIBUTIONS; REDEMPTIONS.
(a) The Company shall not, and shall not permit any other Credit
Party to, declare or pay any dividends or make any distribution of any kind on
such Person's outstanding stock, or set aside any sum for such purposes (all of
the foregoing, "Distributions") except to the extent that 100% of such
Distributions are immediately applied to prepay (i) first, the MEFA Obligations
and (ii) second, the Obligations.
(b) The Company shall not, and shall not permit any other Credit
Party to, purchase, redeem, retire or otherwise acquire, directly or indirectly,
or make any sinking fund payment with respect to, any shares of any class of
stock of any such Person now or hereafter outstanding or set apart any sum for
any such purpose (each of the foregoing actions being referred to herein as a
"Restricted Payment"), other than (i) redemptions or repurchases with respect to
employee option shares, (ii) redemptions or repurchases with respect to stock
held by those with minority positions, (iii) the repurchase, redemption or other
acquisition of capital stock of the Company (or options, warrants or other
rights to acquire such capital stock) in exchange for, or out of the proceeds of
a substantially concurrent offering of, shares of capital stock of the Company;
(iv) payments or distributions to dissenting stockholders pursuant to applicable
law, pursuant to or in connection with a consolidation, merger or transfer of
assets that complies with the provisions of this Agreement; (v) the repurchase,
redemption or other acquisition for value of capital stock of the Company to the
extent necessary to prevent the loss or secure the renewal or reinstatement of
any license or franchise held by the Company or any of its Subsidiaries from any
governmental agency; (vi) repurchases of Warrants issued pursuant to the Warrant
Agreement dated as of March 6, 1997 between the Company and The Bank of New York
as Warrant Agent; (vii) payments or distributions to dissenting stockholders
pursuant to applicable law, pursuant to or in connection with a consolidation,
merger or transfer of assets that complies with the provisions of this Agreement
applicable to mergers, consolidations and transfers of all or substantially all
of the property and assets of the Company; and (viii) redemptions pursuant to
the exercise by the holders thereof of the "put" rights identified on Schedule
8.6 hereto; provided, that, the redemptions, repurchases and payments described
in the foregoing clauses (i) - (vii) shall not exceed $5,000,000 in the
aggregate; provided, further, that the payments in respect of clause (i) shall
be excluded from the $5,000,000 limitation in the preceding proviso to the
extent of the sum of (A) the net cash proceeds received by the Company in
respect of the exercise of the options pursuant to which such shares were issued
and (B) the net cash proceeds of Capital Stock (other than Redeemable Stock)
issued by the Company and the net cash proceeds of any capital contributed to
the Company which, in each case, are being or have been used to redeem or
repurchase such shares.
SECTION 8.7 USE OF PROCEEDS.
The Company shall not use any of the proceeds of any Advance for: (a)
any purpose other than as is set forth in Section 2.9 hereof, or (b) the purpose
of purchasing or carrying, or for payment in full or in part of Indebtedness
that was incurred for the purposes of purchasing or
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carrying, any margin stock (within the meaning of Regulation U or X of the Board
of Governors of the Federal Reserve System).
SECTION 8.8 AMENDMENT OF DOCUMENTS AND ORGANIZATION.
(a) The Company shall not, and shall not permit any other Credit
Party to, (i) amend, waive or modify, or agree to any amendment, waiver,
supplement or modification of, or fail to perform its obligations under any
document or agreement relating to a System to which it is a party or any other
agreement, contract or instrument, the result of which could reasonably be
expected to have a Material Adverse Effect, (ii) cancel or terminate, or agree
to any cancellation, termination or assignment of, any material agreement or
document relating to a System the cancellation, termination or assignment of
which could reasonably be expected to have a Material Adverse Effect, or grant
consents with respect to any material obligation thereunder, (iii) exercise any
options or remedies or make any elections under any such material agreement or
document relating to a System which exercise or election could reasonably be
expected to have a Material Adverse Effect, or (iv) fail to exercise promptly
and diligently each and every material right which it may have under any
material agreement or document relating to a System (other than any right of
termination) the result of which could reasonably be expected to have a Material
Adverse Effect.
(b) The Company shall not, and shall not permit any other Credit
Party to, amend, supplement, or otherwise modify or waive compliance with any of
the provisions of their respective articles of incorporation or by-laws or
shareholders agreement (or any other constitutive documents) except for
amendments, supplements, modifications or waivers that could not reasonably be
expected to have a Material Adverse Effect or could not otherwise materially and
adversely affect the Company's ability to perform its obligations under the
Credit Documents.
SECTION 8.9 INVESTMENTS; LOANS; ADVANCES.
The Company shall not, and shall not permit any other Credit Party to,
make any Investment, loan or advance to any Person except as follows:
(a) loans or advances to the extent permitted by Section 8.11
hereof;
(b) Permitted Investments;
(c) Investments permitted by Section 8.5;
(d) loans or advances by the Company to the Credit Parties;
(e) Investments in Hedge Agreements not entered for a speculative
purpose;
(f) any endorsement of a check or other medium of payment for
deposit or collection, or any similar transaction in the
ordinary course of business;
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(g) receivables acquired and owing in the ordinary course of
business and payable or dischargeable in accordance with
customary trade terms;
(h) Investments acquired by a Person (i) in exchange for any other
Investment held by such Person in connection with or as a
result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other Investment or
(ii) as a result of a foreclosure by such Person with respect
to any secured Investment or other transfer of title with
respect to any secured Investment in default;
(i) payroll, travel and similar advances to cover matters that are
expected at the time of such advances ultimately to be treated
as expenses in accordance with GAAP, including loans and
advances to employees for business related travel expenses,
moving expenses, costs of replacement homes and other similar
expenses, in each case incurred in the ordinary course of
business;
(j) additional Investments in the capital of any Restricted
Subsidiary, so long as all of the Capital Stock of the
Restricted Subsidiary owned by the Company or a Restricted
Subsidiary has been pledged to the "Collateral Agent" under
the MEFA and is not subject to any other Lien, except for
Permitted Liens;
(k) to the extent not permitted by the foregoing clauses, equity
investments existing on the Closing Date in any Subsidiaries
(and any increases thereof attributable to increases in
retained earnings);
(l) [Reserved];
(m) Investments by a Credit Party in a Person which will, upon the
making of such Investment, become a Restricted Subsidiary of
the Company or be merged or consolidated with or into or
transfer or convey all or substantially all its assets to, the
Company or a Restricted Subsidiary of the Company; provided
that (i) such Person's primary business is related, ancillary
or complementary to the businesses of the Company and its
Restricted Subsidiaries on the date of such Investment and
(ii) none of the Capital Stock of such Person owned by the
Company or a Restricted Subsidiary shall be subject to any
other Lien, except for Permitted Liens;
(n) Investments acquired as a capital contribution to the Company
or in exchange for capital stock (other than Redeemable Stock)
of the Company;
(o) Investments in a Person which has ceased to be a Restricted
Subsidiary or ceases to observe any of the provisions of the
covenants applicable to it as a result of an event similar to
those described in Section 10.1(l), (m) or (n); provided (i)
such Investment is made solely with the proceeds of a
substantially concurrent capital contribution to, or sale of
capital stock
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(other than Redeemable Stock) of, the Company and (ii) after
such Investment such event shall no longer continue and such
Person shall be a Restricted Subsidiary; and
(p) additional Investments, loans and advances not to exceed
$10,000,000 in the aggregate.
Notwithstanding anything contained in this Section 8.9 to the contrary, the
Company may make, with the consent of the Required Lenders, which consent shall
not be unreasonably withheld or delayed, equity Investments in Persons engaged
in businesses in which the Company is permitted to engage under Section 8.11;
provided that (A) all such Persons shall be deemed to be "Restricted
Subsidiaries" for all purposes of this Agreement, and (B) the Company shall have
and maintain while such Investment exists, directly or indirectly, the requisite
and assignable (for the benefit of the Lenders) control over such Person to
prevent it from incurring Indebtedness, or taking any other action at any time,
which is in contravention of any of the provisions of this Agreement which are
applicable to Restricted Subsidiaries.
SECTION 8.10 TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any other Credit Party to,
except as expressly permitted under the Credit Documents, transfer, sell, assign
or otherwise dispose of, directly or indirectly, any of its assets to any
Affiliate other than a Credit Party (any such Affiliate other than a Credit
Party, an "Arm's-Length Affiliate"), or enter into any transaction directly or
indirectly with or for the benefit of any Arm's-Length Affiliate; provided, that
the Credit Parties may enter into transactions with an Arm's-Length Affiliate so
long as the monetary or business consideration arising therefrom would be as
advantageous to the Credit Parties as the monetary or business consideration
which the Credit Parties would obtain in a comparable arm's length transaction
with a Person not an Affiliate.
SECTION 8.11 CHANGES IN BUSINESS.
(a) The Company shall not , and shall not permit any other Credit
Party to, enter into or engage in any business other than the ownership and
operation of the Systems; provided that, such Persons may (x) continue to engage
in a Telecommunications Business in which it is engaged on the Closing Date and
(y) enter into or engage in a Telecommunications Business (including, without
limitation, by way of purchase of assets or stock, by merger or consolidation)
other than ownership and operation of the Systems if, with respect to a new
Telecommunications Business, the entering into thereof could not reasonably be
expected to have a Material Adverse Effect.
(b) The Company shall not, and shall not permit any other Credit
Party to, (i) make any material change in its business or the Systems in the
Relevant Countries, or (ii) wind-up or liquidate or dissolve itself (or suffer
any liquidation or dissolution) or discontinue its business.
SECTION 8.12 PREPAYMENTS.
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The Company shall not, and shall not permit any other Credit Party to,
make any voluntary or optional prepayment of any Indebtedness for borrowed money
incurred or permitted to exist under the terms of this Agreement, other than the
Indebtedness under this Agreement, Indebtedness under the MEFA.
SECTION 8.13 ERISA OBLIGATIONS.
The Company shall not, and shall not permit any other Credit Party to,
do, agree to do, or permit to be done, any of the following with respect to any
Plan:
(a) be or become obligated to the PBGC in excess of $1,000,000
other than with respect to timely paid annual premium payments; and
(b) be or become obligated to the IRS or the Secretary of Labor in
excess of $1,000,000 with respect to excise taxes or other penalties provided
for in Sections 4971 through 4980B of the Code or Section 502 of ERISA.
SECTION 8.14 SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any other Credit Party to,
directly or indirectly, enter into any sale and leaseback transaction or any
other arrangement with any Person providing for any such Credit Party to lease
or rent property that any such Credit Party has sold or will sell or otherwise
transfer to such Person, except as permitted to be incurred as Indebtedness
under Section 8.l.
SECTION 8.15 NEW SUBSIDIARIES.
The Company shall not, and shall not permit any other Credit Party to,
directly or indirectly, organize, create, acquire or permit to exist any
Subsidiary other than those Subsidiaries in existence on the Closing Date and
listed on Schedule 6.1(a) hereof and those Subsidiaries permitted by Section 8.9
and 8.11 hereof.
SECTION 8.16 RESTRICTED SUBSIDIARIES.
The Company shall not designate any Restricted Subsidiary as an
Unrestricted Subsidiary, and shall not itself, and shall not permit any
Restricted Subsidiary to, sell, convey, transfer or otherwise dispose of any
assets, other than in the ordinary course of business, to any Unrestricted
Subsidiary or any Person that becomes an Unrestricted Subsidiary as part of such
transaction, unless such Subsidiary does not own any stock of, and does not own
or hold any Lien on any property of, the Company or any Restricted Subsidiary;
provided, that (a) any guarantee by the Company or any Restricted Subsidiary of
the Company of any Indebtedness of the Subsidiary being designated as an
Unrestricted Subsidiary shall be deemed an incurrence of such Indebtedness or an
Investment by the Company or such Restricted Subsidiary (or both, if
applicable); (b) either (i) the Subsidiary to be deemed an Unrestricted
Subsidiary has total gross assets of $1,000 or less, or (ii) if the Subsidiary
to be deemed an Unrestricted Subsidiary has total gross assets greater than
$1,000, then such designation shall, for all purposes of Section 8.6 (including
clause (b) thereof), be deemed to be a Restricted Payment of an amount equal to
the fair market value of the Company's ownership interest in such Subsidiary
(including, without
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duplication, such indirect ownership interest in all Subsidiaries of such
Subsidiary), as determined by the Board (as defined below) in good faith; and
(c) if applicable, the incurrence of Indebtedness and the Investment referred to
in clause (a) of this proviso would be permitted under Sections 8.1 and 8.6,
respectively.
The Company's Board of Directors (the "Board") may designate any
existing Unrestricted Subsidiary or any Person that is about to become a
Subsidiary of the Company as a Restricted Subsidiary if, after giving effect to
such action (and, if such designation is made in connection with the acquisition
of a Person or an operating business that is about to become a Subsidiary of the
Company, after giving effect to all terms of such acquisition) (a) on a pro
forma basis, on the date of such action, the Liens and Indebtedness, if any, of
such Unrestricted Subsidiary or Person outstanding immediately prior to such
designation would have been permitted to be incurred (and shall be deemed to
have been incurred) for all purposes of this Agreement; and (b) no Default or
Event of Default shall have occurred and be continuing.
Notwithstanding the foregoing provisions of this Section 8.16, the
Board may not designate any of the Operating Affiliates to be an Unrestricted
Subsidiary.
The Board, from time to time, may designate any Person that is about to
become a Subsidiary of the Company as an Unrestricted Subsidiary, and may
designate any newly-created Subsidiary as an Unrestricted Subsidiary, if at the
time such Subsidiary is created it contains no assets (other than such de
minimis amount of assets then required by law for the formation of corporations)
and no Indebtedness.
Subsidiaries of the Company that are not designated by the Board as
Restricted or Unrestricted Subsidiaries shall be deemed to be Restricted
Subsidiaries. Notwithstanding any provisions of this Section 8.16, all
Subsidiaries of an Unrestricted Subsidiary shall be Unrestricted Subsidiaries.
SECTION 9 CONDITIONS PRECEDENT
SECTION 9.1 CONDITIONS TO INITIAL ADVANCE.
The obligations of the each Lender to make its initial Advance
hereunder shall be subject to the fulfillment of the following conditions
precedent to the satisfaction of the Administrative Agent and the Lenders on or
prior to the date of the initial Advance:
(a) All representations and warranties in Section 6 hereof shall
be true and correct as of the date made and as of the date of the initial
Advance (except to the extent they relate to an earlier date in which case such
representations and warranties shall be true as of such date).
(b) Company Documents. The Company shall have:
(i) executed and delivered to the Administrative Agent
this Agreement and, to the extent requested by one or more of the
Lenders, the Financing Note(s);
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(ii) delivered to the Agents: (A) copies of, or
certificates of the issuing companies with respect to, policies of
insurance owned by the Company complying with the provisions of Section
7.7 hereof; (B) evidence of the Company's liability insurance policies,
and (C) evidence that such insurance is in full force and effect;
(iii) executed and delivered to the Collateral Agent the
Company Pledge Agreement or the Cash Collateral Agreement, together
with, in the case of the Company Pledge Agreement (A) the certificates
evidencing the capital stock pledged by it accompanied by stock powers
endorsed in blank and irrevocable proxies relating thereto; (B) any
written consents and acknowledgements from the holders of the capital
stock of Clearnet, any amendments to Clearnet's organizational
documents (including, without limitation, an amendment to Clearnet's
articles of incorporation which provides that the Collateral Agent
shall be a "permitted transferee" under Clearnet's articles of
incorporation given the purposes for which Advances are being made
hereunder as set forth in Section 2.9), and any and all other
agreements that are necessary to allow for (1) the execution of the
Company Pledge Agreement, (2) the enforcement of remedies by the
Collateral Agent under the Company Pledge Agreement, (3) the transfer
or conversion by the Collateral Agent of the Pledged Shares in
accordance with the Company Pledge Agreement, and (4) the enjoyment by
the Collateral Agent of any rights relating to the Pledged Shares,
including, without limitation, the rights granted under the Transfer
Restriction Agreement; and (C) evidence reasonably satisfactory to the
Collateral Agent that Clearnet's Class D shares have been released from
the escrow established pursuant to the terms of the Escrow Agreement;
(iv) duly complied with all of the terms and conditions of
the Company Pledge Agreement or the Cash Collateral Agreement, as
applicable;
(v) made all necessary registrations under the law of the
United States and Canada, including, without limitation, those
necessary to perfect a first priority security interest in the
Collateral and evidence thereof;
(vi) paid documentary taxes and registration fees which
may be payable on the Security Documents attributed to the Company; and
(vii) otherwise duly complied with all of the terms and
conditions of the Security Documents to be executed by it.
(c) The Administrative Agent shall have received the following
documents:
(i) copies, certified by an Authorized Officer of the
Company, of the Articles of Incorporation (including, without
limitation, any amendments thereto) and Bylaws of the Company, each as
amended to date, along with evidence establishing the existence and
good standing of the Credit Parties incorporated in the United States
of America;
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(ii) certificates of an Authorized Officer of the Company
certifying (A) the resolutions of the Board of Directors or other
governing body of the Company authorizing the execution, delivery and
performance of the Credit Documents, and (B) the authority, name, title
and specimen signature of each individual authorized to execute the
Credit Documents, and any other documents in relation thereto on behalf
of the Company and to bind the Company thereby;
(iii) a copy of the Company's most recent audited and of
the Company's most recent unaudited financial statements in conformity
with Sections 7.2 and 7.3 hereof, and
(iv) the opinion of Canadian local counsel to the Company
and the opinion of special United States counsel to the Company, each
dated the Initial Funding Date and addressed to the Agents and the
Lenders (and to be relied upon by their respective assigns), in the
form attached hereto as Exhibits D-1 and D-2, respectively.
(d) The Administrative Agent shall have received the Approved
Business Plan for the Company.
(e) All fees payable in connection with the transactions
contemplated by this Agreement shall have been paid.
(f) The Company shall have otherwise complied with the collateral
security requirements in Section 5 of this Agreement.
SECTION 9.2 CONDITIONS TO ALL ADVANCES.
The obligation of the Lenders to make any Advance to the Company upon
the occasion of each financing hereunder (including, without limitation, the
initial Advance) is subject to the further conditions precedent that:
(a) The Administrative Agent shall have received a Request for
Financing pursuant to Section 2.2 hereof.
(b) On and as of the date of such Advance, (i) no Default, Event
of Default or default under any Credit Document shall have occurred and be
continuing, (ii) the representations and warranties made by the Company in the
Credit Documents are true and correct in all material respects (other than those
representations and warranties that are expressly made only as of an earlier
date), and (iii) the Administrative Agent shall have received a certificate of a
duly Authorized Officer of the Company certifying as to the foregoing matters.
SECTION 10 EVENTS OF DEFAULT
SECTION 10.1 EVENTS OF DEFAULT.
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Each of the following events shall constitute an Event of Default
hereunder:
(a) The Company shall have defaulted in the payment of principal
of any Advance payable under any of Credit Documents when and as the same shall
become due and payable.
(b) The Company shall have defaulted in the payment of any
interest on any Advance or any other amount (other than an amount referred to in
clause (a) of this Section 10.1) payable under this Agreement, when and as the
same shall become due and payable, and such failure shall continue unremedied
for a period of five or more days.
(c) Any representation or warranty made by the Company herein or
in any other Credit Document or otherwise in connection herewith or therewith
shall prove to have been incorrect or misleading in any material respect as of
time it was made or deemed to have been made or any certificate furnished
pursuant to any of the Credit Documents proves to have been false or misleading
in any material respect as of its date.
(d) Any Credit Party shall fail to observe or perform any
covenant, condition or agreement covered (whether directly or by
cross-reference) in Sections 7.6, 7.11, 7.14 and 7.15 and Section 8 of this
Agreement attributed to it.
(e) The Company or any other Credit Party shall have failed to
perform or comply with any other term, obligation or covenant contained in any
of the Credit Documents to which it is a party or which is attributed to it
(other than those specified above) and such failure shall have continued
unremedied for 30 days after written notice thereof has been given by the
Administrative Agent.
(f) Any Governmental Approval necessary to enable the Company or
any other Credit Party to comply with its obligations under the Credit Documents
shall have been revoked, suspended, withdrawn, withheld, terminated, modified or
restricted and such revocation, termination, withdrawal, suspension,
modification, withholding or cessation could reasonably be expected to have a
Material Adverse Effect, or any proceeding which could reasonably be expected to
have a Material Adverse Effect shall have been commenced by or before any
Governmental Authority for the purpose of so revoking, terminating withdrawing,
suspending, modifying or withholding any such Governmental Approval such
proceeding shall not have been contested within ten Business days by proper
proceedings and dismissed or stayed within 30 days, or notice shall have been
given by such Governmental Authority for such purpose and shall have remained
uncontested for ten Business Days.
(g) Any Credit Party shall have failed to pay money due under any
other agreement or document evidencing, securing, guarantying or otherwise
relating to Indebtedness of such Credit Party outstanding in the aggregate
principal amount equal to or greater than $5,000,000, or there shall have
occurred any other event of default or breach on the part of the Company under
any such agreement or document, the effect of which is to accelerate or to
permit the acceleration of the maturity of such Indebtedness.
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(h) The issuance of any final arbitration award, judgment or
decree which is not subject to appeal, or any award, judgment or decree shall
not have been appealed within 30 days from the date thereof, or a fine or
penalty aggregating for all such cases in excess of (i) with respect to the
Company, $5,000,000, or its equivalent in any currency and (ii) with respect to
the Credit Parties other than the Company taken as a whole, $5,000,000, shall
have been entered against any Credit Party and not paid and discharged,
dismissed or stayed within 30 days.
(i) Any Credit Party shall have made an assignment for the benefit
of the creditors, filed a petition in bankruptcy, been adjudicated insolvent,
petitioned or applied to any tribunal for the appointment of a receiver,
custodian, or any trustee for it or a substantial part of its assets, or shall
have commenced any proceeding under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect, or such Credit Party shall
have taken any corporate action to authorize any of the foregoing actions; or
there shall have been filed any such petition or application, or any such
proceeding shall have been commenced against it, that remains undismissed for a
period of 60 days or more; or any order for relief shall have been entered in
any such proceeding or the Company, by any act or omission, shall have indicated
its consent to, approval of or acquiescence in any such petition, application or
proceeding; or the appointment of a custodian, receiver or any trustee for it or
any substantial part of any of its properties, or shall have suffered any
custodianship, receivership or trusteeship to continue undischarged for a period
of 60 days or more.
(j) Any Credit Party shall become unable, admit in writing or fail
generally to pay its debts as they become due.
(k) Any Credit Party shall have concealed, removed or permitted to
be concealed or removed, any part of its property, with intent to hinder, delay
or defraud its creditors or any of them or made or suffered a transfer of any of
its property that may be fraudulent under any bankruptcy, fraudulent conveyance
or similar law; or shall have made any transfer of its property to or for the
benefit of a creditor at a time when other creditors similarly situated have not
been paid, or shall have suffered or permitted, while insolvent, any creditor to
obtain a Lien upon any of its property through legal proceedings or distraint
that is not vacated within 60 days from the date thereof.
(l) Any Governmental Authority shall have taken any action to
condemn, seize, requisition, nationalize or otherwise appropriate any portion of
the properties or assets of any Credit Party (without payment of adequate
compensation), or shall have taken any action to dispute the management of such
Credit Party or to curtail such Credit Party's authority to conduct its
business, which prevents any Credit Party from fulfilling its obligations under
any of the Credit Documents.
(m) The Collateral Agent shall fail at any time to have a valid
and perfected Lien on, subject to no prior or equal Liens other than Permitted
Liens, any portion of the Collateral other than pursuant to a failure by the
Collateral Agent.
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(n) The termination of any Plan or the institution by the PBGC of
proceedings for the involuntary termination of any Plan, that, in either case,
could reasonably be expected to result in a liability on the part of the Company
or any Credit Party to the PBGC in excess of $5,000,000.
(o) The occurrence of any event or condition that results or could
reasonably be expected to result in a material "accumulated funding deficiency"
under Section 412 of the Code with respect to any Plan.
(p) The failure by any Credit Party to make required
contributions, in accordance with the applicable provisions of ERISA, to each of
the Plans maintained or hereafter established or assumed by it where such
failure could reasonably be expected to have a Material Adverse Effect.
(q) The Company shall have ceased to own, free of any liens (other
than Liens arising under the Credit Documents or, in the case of the Operating
Affiliates, Permitted Liens), and maintain, directly or indirectly, the number
of shares of the Class D common stock of Clearnet (or such number of shares of
the publicly-traded Class A common stock of Clearnet into which such Class D
common stock is convertible) and the capital stock of the Operating Affiliates
specified in Schedule 10.1(q) hereto, with the numbers thereon to be promptly
adjusted to reflect stock dividends, stock splits, reclassifications, and
similar events requiring adjustment.
(r) The Company shall have ceased to have and to exercise actual
control of the day to day operations of any of Nextel Mexico, Nextel Peru,
Nextel Argentina or Nextel Brazil.
(s) This Agreement, the Financing Note, the Security Documents, or
any other Credit Document shall, at any time after their respective execution
and delivery, and for any reason, shall be declared null and void, or be revoked
or terminated, or the validity or enforceability thereof or hereof shall be
contested by the Company or the Company shall deny that it has any or further
liability thereunder or hereunder as the case may be.
(t) Any event constituting a default or event of default which
would permit acceleration under the Nextel Argentina Facility or the Nextel
Brazil Facility as each of the same is in effect on the date hereof or as
amended with the consent of the Required Lenders.
(u) The occurrence of any Change of Control.
SECTION 10.2 REMEDIES.
(a) Except as described in the immediately succeeding sentence, if
an Event of Default described in subsections 10.1(i), (j), (k), (l) and (m)
hereof shall have occurred, then (i) the Commitments shall automatically be
terminated and the obligation of the Lenders shall forthwith terminate, and (ii)
the entire unpaid principal amount of the Advances hereunder shall automatically
and immediately become due and payable
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together with all interest accrued and unpaid thereon and all other amounts
payable hereunder to be forthwith due and payable without presentment, demand,
test or further notice of any kind, all of which are hereby expressly waived by
the Company. If any other Event of Default shall have occurred, then at any time
thereafter, if any such event shall then be continuing, the Required Lenders or
the Administrative Agent may, by written notice to the Company, (A) declare the
Commitments to be terminated whereupon the obligation of the Lenders to make or
maintain the Advances hereunder shall forthwith terminate, and (B) declare the
entire unpaid principal amount of the Advances, all interest accrued and unpaid
thereon and all other amounts payable hereunder to be forthwith due and payable
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Company. Upon the occurrence of any Event of
Default, the Lender Parties shall have, in addition to any other rights and
remedies contained in this Agreement and the other Credit Documents, all of the
rights and remedies of a secured party under the laws of the United States and
the laws of Canada or other applicable laws, all of which rights and remedies
shall be cumulative and non-exclusive, to the extent permitted by law.
(b) The Company agrees, in case an Event of Default shall be
existing and upon the Lender Party's request, to pay all of such Lender Party's
costs of collection of all amounts due, and enforcement of all rights hereunder,
including, without limitation, reasonable attorney's fees and legal expenses.
(c) The Collateral Agent may, upon the occurrence and during, the
continuance of an Event of Default, without demand and without advertisement or
notice, all of which the Company waives at any time or times, sell and deliver,
any or all Collateral held by or for it at public or private sale, for cash,
upon credit, or otherwise, at such prices and upon such terms as the Collateral
Agent deems advisable, in its sole discretion and/or collect or enforce the
collection of, the Collateral; provided, however that method, manner, time,
place and terms of any sale must be commercially reasonable and the Collateral
Agent shall make a reasonable attempt to receive fair market value for any
Collateral subject to such sale. In addition to all other sums due to the
Collateral Agent, the Company shall pay the Collateral Agent all reasonable
costs and expenses incurred by the Collateral Agent including, without
limitation, attorney's fees and court costs, to obtain, liquidate and/or enforce
payment of Collateral obligations or in the prosecution or defense of any action
or proceeding against the Collateral Agent in connection with any matter arising
out of or connected with the Credit Documents or the Collateral.
(d) In connection with the foregoing remedies, the Company shall
take such further actions and execute all such instruments as the Collateral
Agent or the Required Lenders deem necessary. The Company agrees, for itself and
on behalf of the other Credit Parties, that the Collateral Agent or the Required
Lenders may enforce any obligations of the Credit Parties as set forth in this
Agreement and the other Credit Documents by an action for specific performance.
(e) The Lender Parties may (but shall not be obligated to) make
advances to preserve, protect or obtain any of the Collateral, and all such
advances shall become part
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of the obligations owing to the Lender Parties hereunder and shall be repayable
to the Lender Parties with interest thereon from the date of such advance until
paid at the rate per annum of 2% above the average interest rate applicable
(including the Applicable Margin thereon) to the Financing Note on the date of
such advance.
(f) All moneys received by the Collateral Agent pursuant to any
right given or action taken under Section 11 of this Agreement shall be applied
as follows:
FIRST - To the reimbursement to the Lender Parties of all
reasonable expenses and costs of litigation and of any proceedings resulting in
the collection of such moneys, including, without limitation, attorney's fees,
receivership, collection, maintenance, improvements and other acts of
administration and sale of properties;
SECOND - To the payment of the unpaid principal of and
interest on any Advance which shall have become due and payable and other fees,
costs and expenses which the Company is required to pay from time to time to the
Lender Parties under or pursuant to this Agreement or any other Credit Document,
as well as all other obligations, covenants, undertakings and liabilities of the
Company to the Lender Parties arising out of or in connection with this
Agreement or any other Credit Document, which shall have become due and payable
in such order as the Lenders may decide; and
THIRD - The balance, if any, shall be delivered and paid to
the Company.
(g) The Lender Parties shall not proceed to liquidate the
Collateral in excess of the amount which the Required Lenders reasonably
determines will be necessary to satisfy the outstanding obligations which have
become due and payable, provided, that the Lender Parties may continue so to
liquidate until all outstanding obligations which have become due and payable
have been satisfied in full.
(h) The Agents may exercise any and all of their remedies under
the Security Documents contemporaneously or separately from the exercise of any
other remedies hereunder or with respect to any Collateral.
SECTION 10.3 CUMULATIVE RIGHTS.
No failure or delay on the part of any Lender Party in exercising any
right, power or remedy accruing to it upon any breach or default of the Company
under any of the Credit Documents shall impair any such right, power or remedy
nor shall it be construed as a waiver of any such breach or default thereafter
occurring, nor shall a waiver of any single breach or default be deemed a waiver
of any other breach or default theretofore or thereafter occurring, nor shall
any single or partial exercise of any such right or power preclude any other or
further exercise thereof or the exercise of any other right or power hereunder.
To the fullest extent permitted by law, all remedies, either under the Credit
Documents or by law otherwise afforded the Lender Parties shall be cumulative
and not alternative.
SECTION 10.4 WAIVER OF DEMAND; SETOFF.
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DEMAND, PRESENTMENT, PROTEST AND NOTICE OF DEMAND, PRESENTMENT, PROTEST
AND NONPAYMENT ARE HEREBY WAIVED TO THE EXTENT PERMITTED BY LAW BY THE COMPANY.
THE COMPANY ALSO WAIVES THE BENEFIT OF ALL RIGHTS OF SETOFF AND ALL VALUATION,
APPRAISAL AND EXEMPTION LAWS TO THE EXTENT PERMITTED BY LAW.
SECTION 10.5 WAIVER OF NOTICE.
IN THE EVENT OF AN EVENT OF DEFAULT, THE COMPANY HEREBY WAIVES TO THE
EXTENT PERMITTED BY LAW ALL RIGHTS TO NOTICE AND HEARING OF ANY KIND PRIOR TO
THE EXERCISE BY THE CREDITOR OF ITS RIGHTS TO REPOSSESS ANY COLLATERAL WITHOUT
JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY UPON ANY COLLATERAL WITHOUT PRIOR
NOTICE OR HEARING. THE COMPANY ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY COUNSEL
OF ITS CHOICE WITH RESPECT TO THIS TRANSACTION AND THIS AGREEMENT.
SECTION 11 THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
In order to expedite the transactions contemplated by this Agreement,
Motorola Credit Corporation is hereby appointed to act as Administrative Agent
and Collateral Agent on behalf of the Lenders (for purposes of this Section 11,
the Administrative Agent and the Collateral Agent are referred to collectively
as the "Agents"). Each of the Lenders and each assignee of any such Lender,
hereby irrevocably authorizes the Agents to take such actions on behalf of such
Lender or assignee and to exercise such powers as are specifically delegated to
the Agents by the terms and provisions hereof and of the other Credit Documents,
together with such actions and powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Lenders, without
hereby limiting any implied authority, (a) to receive on behalf of the Lenders
all payment of principal of and interest on the Advances and all other amounts
due to the Lenders hereunder, and promptly to distribute to each Lender its
proper share of each payment so received; (b) to give notice on behalf of each
of the Lenders to the Company of any Event of Default specified in this
Agreement of which the Administrative Agent has actual knowledge acquired in
connection with its agency hereunder; and (c) to distribute to each Lender
copies of all notices, financial statements and other materials delivered by the
Company or any other Credit Party pursuant to this Agreement or the other Credit
Documents as received by the Administrative Agent. Without limiting the
generality of the foregoing, the Agents are hereby expressly authorized to
execute any and all documents (including releases) with respect to the
Collateral and the rights of the parties secured thereby with respect thereto,
as contemplated by and in accordance with the provisions of this Agreement and
the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or willful misconduct, or
be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by the
Company or any other Credit Party of any of the terms, conditions, covenants or
agreements contained in any Credit Document. The Agents shall not be responsible
to the Lenders for the
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due execution, genuineness, validity, enforceability or effectiveness of this
Agreement or any other Credit Documents, instruments or agreements. The Agents
shall in all cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Required Lenders and, except
as otherwise specifically provided herein, such instructions and any action or
inaction pursuant thereto shall be binding on all the Lenders. Each Agent shall,
in the absence of knowledge to the contrary, be entitled to rely on any
instrument or document believed by it in good faith to be genuine and correct
and to have been signed or sent by the proper person or persons. Neither the
Agents nor any of their respective directors, officers, employees or agents
shall have any responsibility to the Company or any other Credit Party on
account of the failure of or delay in performance or breach by any Lender of any
of its obligations hereunder or to any Lender on account of the failure of or
delay in performance or breach by any other Lender or the Company or any other
Credit Party of any of their respective obligations hereunder or under any other
Credit Document or in connection herewith or therewith. Each of the Agents may
execute any and all duties hereunder by or through agents or employees and shall
be entitled to rely upon the advice of legal counsel selected by it with respect
to all matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders and
Company. Upon any such resignation, the Required Lenders shall have the right to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Agent gives notice of its resignation, then the retiring Agent may,
on behalf of the Lenders, appoint a successor Agent which shall be a bank with
an office in New York, New York, having a combined capital and surplus of at
least $500,000,000 or an Affiliate of any such bank. Upon acceptance of any
appointment as Agent hereunder by a successor bank, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent and the retiring Agent shall be discharged from its duties and
obligations hereunder. After the Agent's resignation hereunder, the provisions
of this Article and Section 8.5 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
With respect to the Advances made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Company or any Subsidiary or
other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on its aggregate Commitment hereunder) of
any expenses incurred for the benefit of the Lenders by the Agents, including
counsel fees and compensation of agents and employees paid for services rendered
on behalf of the Lenders, that shall not have been reimbursed by the
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Company and (b) to indemnify and hold harmless each Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by or asserted against it in its capacity as Agent or any of them in any way
relating to or arising out of this Agreement or any other Credit Document or any
action taken or omitted by it or any of them under this Agreement or any other
Credit Document, to the extent the same shall not have been reimbursed by the
Company or any other Credit Party; provided that no Lender shall be liable to an
Agent or any such other indemnified person for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the gross negligence or
willful misconduct of such Agent or any of its directors, officers, employees or
agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender and
based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Credit Document, any related
agreement or any document furnished hereunder or thereunder.
The Collateral Agent shall be deemed to have exercised reasonable care
in the custody and preservation of any of the Collateral in its possession if it
takes such action for that purpose as the Company requests in writing, but
failure of the Collateral Agent to comply with any such request shall not of
itself be deemed a failure to exercise reasonable care, and no failure of the
Collateral Agent to preserve or protect any rights with respect to such
Collateral against prior parties, or to do any act with respect to the
preservation of such Collateral not so requested by the Company, shall be deemed
a failure to exercise reasonable care in the custody or preservation of such
Collateral.
SECTION 12 MISCELLANEOUS
SECTION 12.1 WAIVER OF SOVEREIGN IMMUNITY.
To the extent that the Company or any of its respective assets has or
hereafter may acquire any right to immunity from suit, setoff, legal proceedings
generally, attachment prior to judgment, attachment in aid of execution or other
attachment or execution of judgment on the rounds of sovereignty or otherwise,
the Company hereby irrevocably waives such rights to immunity for itself and its
assets in respect of its obligations arising under or relating to any of the
Credit Documents or any related documentation.
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SECTION 12.2 VENUE FOR SUIT.
The Company and the Lender Parties each irrevocably hereby expressly
waives all right to object to jurisdiction or execution in any legal action or
proceeding relating to this Agreement, the Financing Note or any other Credit
Document which it may now or hereafter have by reason of its domicile or by
reason of any subsequent or other domicile and hereby irrevocably consents that
any legal action, suit or proceeding arising out of or relating to any of the
Credit Documents and any other document or instrument required to be executed in
relation thereto may be instituted in the federal courts of the United States
District Court of the Southern District of New York and the courts of the State
of New York, and by execution and delivery of this Agreement, the Company and
the Lender Parties submits to and accepts and consents with regard to any such
action or proceeding for itself and in respect of its properties and assets,
generally and unconditionally, the jurisdiction of any such court. The Company
hereby waives any objection it may now or hereafter have to the laying of the
venue of any such action, suit or proceeding, and further waives any claim that
any such action, suit or proceeding brought in any of the aforesaid courts has
been brought in any inconvenient forum.
The Company hereby irrevocably designates, appoints and empowers CT
Corporation System with offices at 1633 Broadway, New York, New York, 10019, and
successors as the designee, appointee and agent of the Company to receive,
accept and acknowledge, for and on behalf of the Company and its properties,
service of any and all legal process, summons, notices and documents which may
be served in such action, suit or proceeding relating to the Financing Note or
this Agreement or any other Credit Document in the case of the courts of the
United States District Court of the Southern District of New York or of the
courts of the State of Illinois, which service may be made on any such designee,
appointee and agent in accordance with legal prescribed for such courts. The
Company agrees to take any and all action necessary to continue such designation
in full force and effect and should such designee, appointee and agent become
unavailable for this purpose for any reason, the Company will forthwith
irrevocably designate a new designee, appointee and agent with offices in New
York, New York, which shall irrevocably agree to act as such, with the powers
and for purposes specified in this Section 12.2. The Company further irrevocably
consents and agrees to service of any and all legal process, summons, notices
and documents out of any of the aforesaid courts in any such action, suit or
proceeding relating to the Financing Note or this Agreement or any other Credit
Document delivered to the Company in accordance with this Section 12.2 or to its
then designee, appointee or agent for service. If service is made upon such
designee, appointee and agent, a copy of such process, summons, notice or
document shall also be provided to the Company by registered or certified mail,
or overnight express air courier, provided that failure to provide such copy to
the Company shall not impair or affect in any way the validity of such service
or any judgement rendered in such action or proceedings. The Company agrees that
service upon the Company or any such designee, appointee and agent as provided
for herein shall constitute valid and effective personal service upon the
Company with respect to matters contemplated in this Section 12.2 and that the
failure of any such designee, appointee and agent to give any notice of such
service to the Company shall not impair or affect in any way the validity of
such service or any judgment rendered in any action or proceeding based thereon.
Nothing herein shall limit or be construed to limit the rights of the Lender
Parties to commence proceedings against the Company in any other venue where
assets of the Company may be found.
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SECTION 12.3 GOVERNING LAW.
THIS AGREEMENT AND THE FINANCING NOTE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (EXCLUDING ALL
CHOICE-OF-LAW AND CONFLICTS-OF-LAWS RULES).
SECTION 12.4 SEVERABILITY OF PROVISIONS.
If any one or more of the provisions contained in this Agreement or any
documents executed in connections herewith shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired.
SECTION 12.5 BINDING EFFECT; ASSIGNMENT.
(a) This Agreement shall be binding upon and shall inure to the
benefit of the Company, the Lender Parties and their respective successors and
assigns, provided, that the Company shall not have the right to assign or
transfer its rights or obligations hereunder except with the prior written
consent of the Required Lenders and, absent a continuing Event of Default, the
Lenders shall not have the right, following the Syndication, to assign their
respective obligations hereunder without the prior written consent of the
Company (not to be unreasonably withheld or delayed).
(b) The Initial Lender may assign its rights and obligations under
this Agreement (including all or a portion of the Commitment and the Advances at
the time owing to it) without the consent of the Company (the "Syndication").
The Initial Lender may request the Company to assist in the Syndication as
contemplated by this Section.
(c) In addition to and without limiting the foregoing, each Lender
may, without the consent of the Company, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of the Lender's
rights and obligations under this Agreement (including all or a portion of the
Commitment and the Advances owing to it); provided that, in the case of
participations under this subsection 12.5(c), (i) the Lender's obligations under
this Agreement shall remain unchanged, (ii) the Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Company shall continue to deal solely and directly with the Lender
in connection with the Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that the Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement.
(d) The Company agrees to cooperate with the Initial Lender in
connection with any syndication. Such cooperation will include, if requested by
the Initial Lender, (i) making senior officers of the Company available for a
meeting with prospective assignees, the Initial Lender and its agents, and (ii)
providing such other assistance as may be reasonably requested by the Initial
Lender and such agents (including, without
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limitation, providing information to and responding to questions from
prospective assignees with respect to the operations, business plans and other
matters relating to the Company's business on a timely basis and in any manner
reasonably requested by the Initial Lender).
SECTION 12.6 ENTIRE AGREEMENT; AMENDMENTS.
(a) This Agreement, the documents referred to herein and those
signed contemporaneously herewith constitute the entire agreement of the parties
with respect to the subject matter hereof and shall supersede any prior
expressions of intent or understanding with respect to this transaction.
(b) No waiver of any provision of this Agreement or any other
Credit Document or consent to any departure by the Company therefrom shall in
any event be effective unless the same shall be permitted by paragraph
subsection 12.6(c) below, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given. No notice or
demand on the Company in any case shall entitle the Company to any other or
further notice or demand in similar or other circumstances.
(c) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Company and the Required Lenders; provided, however, that no
such agreement shall (i) decrease the principal amount of, or extend the
maturity of or any scheduled principal payment date or date for the payment of
any interest on any Advance, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Advance, without the prior
written consent of each Lender affected thereby, (ii) change or extend the
Commitments or decrease or extend the date for payment of the fees of any Lender
payable under Section 2.6 without the prior written consent of such Lender, or
(iii) amend or modify the provisions of Section 2.12 or 12.5, the provisions of
this Section, the definition of the term "Required Lenders", increase the total
Commitments or release any Guarantor or all or any substantial part of the
Collateral, without the prior written consent of each Lender; provided, further
that no such agreement shall amend, modify or otherwise affect the rights or
duties of the Administrative Agent or the Collateral Agent, hereunder or under
any other Credit Document without the prior written consent of the
Administrative Agent or the Collateral Agent, as applicable.
SECTION 12.7 NOTICES.
All communications and notices provided for hereunder shall be in
writing and shall be personally delivered or transmitted by postage prepaid
registered mail (airmail if international) or by telefax as follows:
To the Company: Nextel International, Inc.
2001 Edmund Halley Drive
Reston, Virginia 20191
Attention: Chief Financial Officer
Fax No.: (703) 433-8435
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with a copy to: Jones, Day, Reavis & Pogue
North Point
901 Lakeside Avenue
Cleveland, OH 44114
Attention: Jeanne M. Rickert
Fax No.: (216) 579-0212
To the Administrative Agent: Motorola Credit Corporation
1301 East Algonquin Road
Schaumburg, Illinois 60196-1065
Attention: Gary B. Tatje
Fax No.: (847) 538-2279
with a copy to: Motorola, Inc.
1303 East Algonquin Road
Schaumburg, Illinois 60196-1065
Attention: Law Department, Global
Finance Group
Fax No.: (847) 576-3628
To the Lenders: At the address
specified on the signature
pages hereto or in the
applicable Assignment
Agreement or as otherwise
specified in writing to the
Company and the
Administrative Agent by
such Lender.
Except as otherwise specified herein, all notices shall be deemed duly
given on the date of receipt, if personally delivered or transmitted by telefax,
and the date 5 days after posting if mailed.
SECTION 12.8 RIGHT OF SET-OFF.
The Lender Parties shall, to the fullest extent permitted by applicable
law, have the right to apply and all amounts on deposit or on account with it or
with any of its branches, Subsidiaries or affiliates (general or special, time
or demand, matured or unmatured, in whatever currency) in reduction of amounts
past due (whether such amounts became due at schedule maturity, by acceleration
or otherwise) under the Credit Documents.
SECTION 12.9 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be an original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of copies thereof, each
signed by less than all, but together signed by all, of the parties hereto.
SECTION 12.10 CONFIDENTIALITY.
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Each of the Company and the Lender Parties hereby agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its Affiliates (on a need to know basis),
directors, offices, employees and agents and potential assignees and
participants, including, without limitation, accountants, legal counsel and
other advisors (it being understood that the Persons to whom such disclosure is
made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority, (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process, (d) to any other party
to this Agreement, (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder, (f) subject to the execution and delivery of an agreement
containing provisions substantially the same as those of this Section 12.10, to
any assignee of or participant in, or any prospective assignee of or participant
in, any of its rights or obligations under this Agreement, (g) with the consent
of the other parties hereto, or (h) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section 12.10 or
(ii) becomes available to such party on a non-confidential basis from a source
other than the other parties hereto.
For the purposes of this Section 12.10, "Information" means all
information received from any of the parties hereto relating to any of the
Credit Parties, the Lender Parties or their respective businesses, other than
any such information that is available to the parties hereto on a
non-confidential basis prior to disclosure by any party hereto; provided that,
in the case of information received from any party hereto after the date hereof,
such information is clearly identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided
in this Section 12.10 shall be considered to have complied with its obligation
to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 12.11 TERM OF AGREEMENT.
This Agreement shall continue in full force and effect, and be binding
upon the Company, until all of the Obligations have been fully and indefeasibly
paid and performed whereupon this Agreement shall terminate. Notwithstanding the
foregoing, all the indemnification provisions shall survive and all other
provisions which by their terms survive termination shall so survive.
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IT WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized signatories as of the day and year
first written above.
COMPANY: NEXTEL INTERNATIONAL, INC.
By: /s/ Byron Siliezar
------------------
Name: Byron Siliezar
-------------------------
Title: Chief Financial Officer
------------------------
INITIAL LENDER: MOTOROLA CREDIT CORPORATION
By: /s/ Gary Tatje
------------------
Name: Gary B. Tatje
Title: Vice President
ADMINISTRATIVE AGENT: MOTOROLA CREDIT CORPORATION
By: /s/ Gary Tatje
------------------
Name: Gary B. Tatje
Title: Vice President
COLLATERAL AGENT: MOTOROLA CREDIT CORPORATION
By: /s/ Gary Tatje
------------------
Name: Gary B. Tatje
Title: Vice President
[SIGNATURE PAGE TO SECURED LOAN AGREEMENT]