EXHIBIT 10.64
AMENDMENT NO. 3 AND CONSENT TO CREDIT AGREEMENT
THIS AMENDMENT NO. 3 AND CONSENT TO CREDIT AGREEMENT, dated as of
January 21, 2002 (this "Amendment No. 3"), is made by and among NEXTEL PARTNERS
OPERATING CORP., a Delaware corporation (the "Borrower"), the various financial
institutions (collectively, the "Lenders") parties to the Credit Agreement
(defined below) which are parties hereto, the various other Obligors (as defined
in the Credit Agreement), CREDIT SUISSE FIRST BOSTON (as successor in interest
to DLJ Capital Funding, Inc.) as syndication agent, lead arranger and sole book
running manager (collectively the "Syndication Agent") for the Lenders under the
Credit Agreement, THE BANK OF NEW YORK, as the documentation agent (the
"Documentation Agent") for the Lenders under the Credit Agreement and BANK OF
MONTREAL ("BOM"), as the administrative agent (the "Administrative Agent") for
the Lenders under the Credit Agreement (the Syndication Agent, the Documentation
Agent and the Administrative Agent are collectively referred to herein as the
"Agents" and each as an "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Agents are current parties to
that certain Amended and Restated Credit Agreement, dated as of September 9,
1999 (as subsequently amended or modified, including pursuant to this Amendment
No. 3, the "Credit Agreement");
WHEREAS, pursuant to a commitment letter, dated December 4, 2001, among
the Borrower, Credit Suisse First Boston ("CSFB"), Deutsche Banc Alex. Xxxxx,
Inc. ("DBAB") and Deutsche Bank AG New York Branch ("DB"), CSFB and DB each
committed, severally (and not jointly), to provide $25,000,000 of additional
Term Loan Commitments to the Borrower (such Commitments being herein referred to
as "Term-D Loan Commitments" and such Term Loans being herein referred to as
"Term-D Loans");
WHEREAS, subject to the terms hereof, the parties hereto desire (i) to
consent to the making of the Term-D Loans and (ii) to amend the Credit Agreement
as set forth in this Amendment No. 3 solely for the purpose of accommodating the
making of the Term-D Loan Commitments and the Term-D Loans; and
WHEREAS, the parties desire to treat the Term-D Loan Commitments as if
they were additional Term Loan Commitments pursuant to Section 2.1.3 of the
Credit Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise defined herein, capitalized terms used herein shall
have the same meanings provided in the Credit Agreement. The following
additional terms, as used herein, shall have the following respective meanings:
"Administrative Agent" is defined in the preamble hereto.
"Agents" is defined in the preamble hereto.
"Amendment No. 3" is defined in the preamble hereto.
"Amendment No. 3 Effective Date" means the date on which all conditions
set forth in Article III hereof have been satisfied and the Term-D Loans have
been made.
"BOM" is defined in the preamble hereto.
"Borrower" is defined in the preamble hereto.
"CSFB" is defined in the second recital hereto.
"Credit Agreement" is defined in the first recital hereto.
"DB" is defined in the second recital hereto.
"DBAB" is defined in the second recital hereto.
"Documentation Agent" is defined in the preamble hereto.
"Guarantor" means any Obligor under any Guaranty.
"Guaranty" means, as the context may require, any Subsidiary Guaranty or
the Parent Guaranty and Pledge Agreement.
"Lenders" is defined in the preamble hereto.
"Security Documents" is defined in Subpart 4.1 hereto.
"Syndication Agent" is defined in the preamble hereto.
"Term-D Loan Commitments" is defined in the second recital hereto.
"Term-D Loan Fee Letter" means the confidential fee letter dated as of
December 4, 2001 among the Borrower, CSFB, DBAB and DB.
"Term-D Loans" is defined in the second recital hereto.
ARTICLE II
CONSENT; AMENDMENTS TO CREDIT AGREEMENT
Subject to the terms and conditions set forth herein, and in reliance on
the representations and warranties of the Obligors contained herein, (i) the
Agents and the Lenders hereby consent to the making of the Term-D Loans to the
Borrower and the incurrence by the Borrower of the Indebtedness in respect
thereof, and (ii) the parties hereto agree that the Credit Agreement is
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hereby amended, as of the Amendment No. 3 Effective Date (or such later date as
may be specified in this Article II with respect to particular amendments), in
accordance with this Article II.
SUBPART 2.1. Amendments to Certain Definitions Set Forth in Section 1.1.
(a) The following definitions of the Credit Agreement are hereby amended
and restated to read in full as follows:
"Commitment" means, as the context may require, a Lender's
Term-B Loan Commitment, Term-C Loan Commitment, Term-D Loan
Commitment, Revolving Loan Commitment or Letter of Credit
Commitment.
"Commitment Amount" means, as the context may require, the
Term-B Loan Commitment Amount, the Term-C Loan Commitment Amount,
the Term-D Loan Commitment Amount, the Revolving Loan Commitment
Amount or the Letter of Credit Commitment Amount.
"Commitment Termination Date" means, as the context may
require, the Term-B Loan Commitment Termination Date, the Term-C
Loan Commitment Termination Date, the Term-D Loan Commitment
Termination Date or the Revolving Loan Commitment Termination
Date.
"Guarantor" means any Obligor under any Guaranty.
"Guaranty" means, as the context may require, any
Subsidiary Guaranty or the Parent Guaranty and Pledge Agreement.
"Loan Document" means this Agreement, Amendment No. 3, the
Notes, the Letters of Credit, each Rate Protection Agreement
under which the counterparty to such agreement is (or at the time
such Rate Protection Agreement was entered into, was) a Lender or
an Affiliate of a Lender relating to Hedging Obligations of the
Borrower or any of its Subsidiaries, each Borrowing Request, each
Issuance Request, the Fee Letter, the Term-C Loan Fee Letter, the
Term-D Loan Fee Letter, the Subsidiary Guaranty, each Mortgage
(upon execution and delivery thereof), each Security Document,
the Realco Agreement, the Management Agreement and each other
agreement, document or instrument delivered in connection with
this Agreement or any other Loan Document, whether or not
specifically mentioned herein or therein.
"Note" means, as the context may require, a Revolving
Note, a Term-B Note, a Term-C Note or a Term-D Note.
"Percentage" means (i) relative to any Lender holding
Term-B Loans, Term-C Loans or Revolving Loans, as the case may
be, the percentage set forth opposite its name on Schedule II A
hereto under the applicable column heading for such Loans, or, if
applicable, the percentage set forth in any Lender
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Assignment Agreement(s) relating to such Lender and any such
Loans under the applicable column heading for such Loans, in each
case as such percentages may have been adjusted from time to time
pursuant to Lender Assignment Agreement(s) executed by such
Lender and its Assignee Lender(s) and delivered pursuant to
Section 10.11; and (ii) relative to any Lender holding Term-D
Loans, the percentage set forth opposite the name of such Lender
on Schedule I of Amendment No. 3, as such percentage may be
adjusted from time to time pursuant to Lender Assignment
Agreement(s) executed by such Lender and its Assignee Lender(s)
and delivered pursuant to Section 10.11. A Lender shall not have
any Commitment to make Revolving Loans, Term-B Loans, Term-C
Loans or Term-D Loans (as the case may be) if its percentage
under the respective column heading is zero.
"Required Balance" means an amount equal to the lesser of
(a) $275,000,000 (as such amount may be increased through
additional Term Loan Commitments and/or Revolving Loan
Commitments pursuant to Section 2.1.3 or otherwise) and (b) the
aggregate outstanding principal amount of all Loans (other than
Term-C Loans and Term-D Loans) and Letter of Credit Outstandings.
"Stated Maturity Date" means (i) in the case of any
Revolving Loan, the eighth anniversary of the Closing Date, (ii)
in the case of any Term-B Loan, the ninth anniversary of the
Closing Date, (iii) in the case of any Term-C Loan, July 29,
2008, (iv) in the case of any Term-D Loan, July 29, 2008, or, in
the case of any such day that is not a Business Day, the first
Business Day following such day.
"Term-B Loan Commitment" means the commitment to make
Term-B Loans pursuant to Section 2.1.1 of the credit agreement,
dated January 29, 1999 among the Borrower, the Agents and the
Lenders.
"Term-B Loan Commitment Termination Date" means the date
on which the initial Borrowing of Term-B Loans is made.
"Term Loan" means a Term-B Loan, Term-C Loan or a Term-D
Loan.
"Term Loan Commitment" means, as the context may require,
a Term-B Loan Commitment, a Term-C Loan Commitment, a Term-D Loan
Commitment or a commitment to make term loans pursuant to Section
2.1.3.
"Term Note" means a Term-B Note, a Term-C Note or a Term-D
Note.
"Tranche" means, as the context may require, the Loans
constituting Term-B Loans, Term-C Loans, Term-D Loans or
Revolving Loans.
(b) Clause (b) of the definition of "Applicable Margin" set forth in
Section 1.1 of the Credit Agreement is hereby amended and restated to
read in full as follows:
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"(b) with respect to the unpaid principal amount of each
Term-C Loan or Term-D Loan maintained as a (i) Base Rate Loan,
3.25% per annum and (ii) LIBO Rate Loan, 4.25% per annum;".
(c) Upon the Amendment No. 3 Effective Date, DB shall, for all purposes
of the Credit Agreement and all other Loan Documents, be a "Lender"
thereunder. In addition, solely for the purposes of the Term-D Loan
Commitments and the Term-D Loans, each of CSFB and DBAB shall have the
titles as set forth opposite its respective name as set forth below:
CSFB: Joint Book Running Manager, Co-Lead Arranger and
Co-Syndication Agent for the Term-D Loans.
DBAB: Joint Book Running Manager, Co-Lead Arranger and
Co-Syndication Agent for the Term-D Loans.
SUBPART 2.2. Addition of Certain Definitions to Section 1.1. Section 1.1
of the Credit Agreement is hereby amended by inserting the following definitions
in such Section in the appropriate alphabetical sequence:
"Amendment No. 3" means that certain Consent and Amendment
No. 3 to Credit Agreement, dated as of January 21, 2002, among
the Borrower, the Agents and the Lenders.
"Amendment No. 3 Effective Date" means the date on which
all conditions set forth in Article III of Amendment No. 3 have
been satisfied and the Term-D Loans have been made.
"Term-D Loan Fee Letter" means the confidential fee
letter, dated December 4, 2001 among the Borrower, CSFB, DB and
DBAB.
"Term-D Loan" is defined in clause (c) of Section 2.1.1.
"Term-D Loan Commitment" is defined in clause (c) of
Section 2.1.1.
"Term-D Loan Commitment Amount" means $50,000,000.
"Term-D Loan Commitment Termination Date" means the
earliest of (i) [January 31, 2002] (if the Term-D Loans have not
been made on or prior to such date), (ii) the Amendment No. 3
Effective Date (immediately after the making of the Term-D Loans
on such date) and (iii) the date on which any Commitment
Termination Event occurs.
"Term-D Note" means a promissory note of the Borrower
payable to the order of any Lender, in the form of Exhibit A-4
hereto (as such promissory note may be amended, endorsed or
otherwise modified from time to time), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from
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outstanding Term-D Loans, and also means all other promissory
notes accepted from time to time in substitution therefore or
renewal thereof.
SUBPART 2.3. Amendment to Section 2.1.1. Section 2.1.1 of the Credit
Agreement is hereby amended by (a) inserting the words "and Term-D Loan
Commitments" in the heading thereto following the word "Commitments" and (b) by
inserting the following as a new clause (c) to read as follows:
"(c) In addition, subject to compliance by the Borrower with the
terms of Sections 2.1.5, 5.1 and 5.2, on (but solely on) the
Amendment No. 3 Effective Date (which shall be a Business Day),
each Lender that has a Percentage in excess of zero of the Term-D
Loan Commitment will make loans (relative to such Lender, its
"Term-D Loans") to the Borrower equal to such Lender's Percentage
of the aggregate amount of the Borrowing or Borrowings of Term-D
Loans requested by the Borrower to be made on the Amendment No. 3
Effective Date (with the commitment of each such Lender described
in this clause (c) herein referred to as its "Term-D Loan
Commitment"). The extension of the Term-D Loan Commitments shall
be deemed to constitute the making of additional Term Loan
Commitments for purposes of Section 2.1.3 of the Credit
Agreement. No amounts repaid or prepaid with respect to Term-D
Loans may be reborrowed."
SUBPART 2.4. Amendment to Section 2.1.5. Clause (a) of Section 2.1.5 of
the Credit Agreement is hereby amended in its entirety to read as follows:
"(a) any Term-C Loan or Term-D Loan, as the case may be, if,
after giving effect thereto, the aggregate original principal
amount of all Term-C Loans or Term-D Loans, as applicable, of
such Lender would exceed such Lender's Percentage of the Term-C
Loan Commitment Amount or Term-D Loan Commitment Amount, as the
case may be; or"
SUBPART 2.5. Amendments to Section 3.1.1.
(a) Clause (a)(i) of Section 3.1.1 of the Credit Agreement is hereby
amended by replacing each occurrence of the phrase "Term-B Loans and
Term-C Loans" with the phrase "Term-B Loans, Term-C Loans and Term-D
Loans" and by replacing each occurrence of the phrase "Term-B Loans or
Term-C Loans" with the phrase "Term-B Loans, Term-C Loans or Term-D
Loans".
(b) Section 3.1.1 of the Credit Agreement is hereby further amended by
(i) inserting semi-colons (";") at the end of clauses (h) and (i)
thereof, (ii) redesignating existing clause "(j)" thereof as new clause
"(k)" and (iii) inserting the following as a new clause (j):
"(j) shall, on the Stated Maturity Date and on each Quarterly
Payment Date occurring during any period set forth below, make a
scheduled repayment of the
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outstanding principal amount, if any, of Term-D Loans in an
aggregate amount equal to the amount set forth opposite such
Stated Maturity Date or period, as applicable (as such amounts
may have otherwise been increased or reduced pursuant to this
Agreement):
----------------------------------------------------------------
Scheduled
Period Principal Amount
----------------------------------------------------------------
01/01/04-07/31/07 $125,000.00
----------------------------------------------------------------
08/01/07 to the Stated Maturity Date $12,031,250.00
for Term-D Loans
----------------------------------------------------------------
SUBPART 2.6. Amendment to Section 6.17. Section 6.17 of the Credit
Agreement is hereby amended by (i) replacing the word "and" the first time it
appears in the first parenthetical of such Section with a comma (","), (ii)
inserting the words ", the making of Term-D Loans on the Amendment No. 3
Effective Date" after the word "Guaranty" appearing in such parenthetical and
(iii) inserting the following sentence at the end of such Section:
"After giving effect to the making of the Term-D Loans, and after
giving effect to the application of the proceeds thereof, the
Borrower and each Subsidiary Guarantor is Solvent."
SUBPART 2.7. Amendment to Article VII. Section 7.1.9 of the Credit
Agreement is hereby amended by (i) deleting the parenthetical "(i)", (ii)
replacing the term "Term-C Loans" each time it appears therein with the term
"Term Loans" and (iii) inserting a new clause (d) immediately following clause
(c) thereof to read in its entirety as follows:
"(d) apply the proceeds of the Term-D Loans to finance the
continued build-out and expansion of the Network, the exercise of
options to acquire spectrum licenses for additional markets from
Nextel and future acquisitions of additional frequencies and
spectrum licenses, to pay reasonable fees and expenses and for
general corporate and working capital purposes of the Borrower
and its Subsidiaries."
SUBPART 2.8. Amendment to Schedules, Exhibits, etc. to Credit Agreement.
The Credit Agreement is hereby amended by (i) inserting Exhibit A-1 to this
Amendment No. 3 as a new Exhibit A-4 to the Credit Agreement and (ii) inserting
Schedule I hereto as Schedule IIA to the Credit Agreement.
ARTICLE III
CONDITIONS PRECEDENT
The effectiveness of this Amendment No. 3 (and the amendments,
modifications and waivers of and to the Credit Agreement contained herein and
contemplated hereby) shall be conditioned upon the making of the Term-D Loans
and the prior or con-current satisfaction of each of the conditions set forth in
this Article III.
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SUBPART 3.1. Counterparts and Lender Consents. The Agents shall have
received counterparts hereof executed on behalf of the Borrower, each other
Obligor, the Required Lenders, CSFB, DBAB and DB.
SUBPART 3.2. Delivery of Term-D Notes. The Administrative Agent shall
have received a Term-D Note for the account of each Lender of Term-D Loans
requesting such Note prior to the Amendment No. 3 Effective Date.
SUBPART 3.3. Delivery of Borrowing Request. The Agents shall have
received a Borrowing Request relating to the Term-D Loans, duly executed and
delivered by the Borrower.
SUBPART 3.4. Payment of Fees and Expenses. The Borrower shall have paid
(i) all fees and expenses due and payable pursuant to the Term-D Loan Fee Letter
and the Credit Agreement, if any, (ii) all reasonable fees, costs and expenses
of the Agents incurred in connection with the negotiation, preparation,
execution and delivery of this Amendment No. 3 and related documents, including
all reasonable fees and disbursements of counsel to the Agents and (iii) all
other reasonable fees, costs and expenses due and payable pursuant to Sections
3.3 and 10.3 of the Credit Agreement to the extent then invoiced.
SUBPART 3.5. Amendment No. 3 Effective Date Certificate. The
Administrative Agent shall have received, with counterparts for each Lender, a
certificate, dated the Amendment No. 3 Effective Date, in form and substance
satisfactory to the Syndication Agent and duly executed and delivered by an
Authorized Officer of each Obligor and substantially in the form of Annex I
hereto, in which certificate each Obligor shall agree and acknowledge that the
statements made therein with respect to such Obligor or any Loan Document to
which it is a party are true and correct representations and warranties of such
Obligor as of such date, and, at the time such certificate is delivered, such
statements shall in fact be true and correct. All documents and agreements
required to be appended to such certificate shall be in form and substance
reasonably satisfactory to the Agents.
SUBPART 3.6. Opinion of Counsel. The Agents shall have received one or
more legal opinions, dated the Amendment No. 3 Effective Date and addressed to
the Agents and all of the Lenders, from legal counsel to the Obligors, in form
and substance satisfactory to the Agents.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SUBPART 4.1. Representations and Warranties. In order to induce the
Lenders to consent to the amendments and waivers contained herein and to enter
into this Amendment No. 3, each Obligor, jointly and severally, represents and
warrants as set forth below:
(a) After giving effect to this Amendment No. 3, (i) the obligations of
the Borrower under and in respect of the Term-D Loans and the Term-D
Loan Commitments constitute "Obligations" under the Credit Agreement and
each other Loan Document, and (ii) the amendment, waiver and
modification of certain terms and provisions of the Credit Agreement
resulting from the effectiveness of this Amendment No. 3 do not and will
not impair the validity, effectiveness or priority of the Liens granted
pursuant to any Loan
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Documents entered into by any Obligor (the "Security Documents"), and
such Liens continue as first priority, perfected Liens on the assets and
property of the Obligors secured thereby, securing repayment of all
Obligations, including the Term-D Loans, whether heretofore or hereafter
incurred. The amendment, waiver and modification of certain terms and
provisions of the Credit Agreement resulting from the effectiveness of
this Amendment No. 3 do not and will not require that any new filings be
made or other action taken (x) to perfect or to maintain the perfection
of such Liens or (y) to record, perfect or create any Lien, or cause any
Lien to attach, in respect of any Obligations resulting from or in
respect of the Term-D Loans or the Term-D Loan Commitments. The position
of the Lenders (including the Lenders of the Term-D Loans) with respect
to such Liens, the Collateral (as defined in the Security Documents) in
which a security interest was granted pursuant to the Security
Documents, and the ability of the Administrative Agent to realize upon
such Liens pursuant to the terms of the Security Documents have not been
adversely affected in any respect by the amendment, waiver and
modification of certain terms and provisions of the Credit Agreement
resulting from the effectiveness of this Amendment No. 3 or by the
execution, delivery, performance or effectiveness of this Amendment No.
3.
(b) Each Obligor acknowledges, reaffirms and agrees that, as of the
Amendment No. 3 Effective Date (i) such Person's respective covenants
and agreements contained in the Credit Agreement and each other Loan
Document to which such Person is a party, including, in each case, as
such covenants and agreements may be modified by this Amendment No. 3
remain in full force and effect, except to the extent expressly modified
hereby; and (ii) in the case of each such Obligor which has delivered a
Guaranty or Security Document, Obligations of such Obligor under and in
respect of each such Loan Document remain in full force and effect and
continue in favor and for the benefit of all Obligations created under
and in connection with the Loan Documents (as modified by this Amendment
No. 3), including the Term-D Loans. Each such Obligor further confirms
that each such Loan Document to which such Person is a party (both
before and after giving effect to this Amendment No. 3) is and shall
continue to be in full force and effect and the same are hereby
ratified, approved and confirmed in all respects, except that upon the
occurrence of the Amendment No. 3 Effective Date, all references in such
Loan Documents to the "Credit Agreement", "Loan Documents",
"thereunder", "thereof", "therein" or words of like or similar import
shall mean and be a reference to the Credit Agreement and the Loan
Documents as amended or otherwise modified hereby.
(c) Both immediately before and immediately after giving effect to this
Amendment No. 3, the representations and warranties set forth in this
Amendment No. 3, the Credit Agreement and each other Loan Document are,
in each case, true and correct with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as of such
earlier date).
(d) Both immediately before and immediately after giving effect to this
Amendment No. 3, no Default has occurred and is continuing, and no
Obligor is in material violation of any law, rule or regulation or any
court order or decree.
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SUBPART 4.2. Validity, etc. This Amendment No. 3, the Credit Agreement
and each other Loan Document, in each case as modified as a result of the
effectiveness of this Amendment No. 3, each constitutes the legal, valid and
binding obligation of the Obligors party hereto or thereto enforceable in
accordance with its terms subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
SUBPART 4.3. No Default. Both immediately before and after giving effect
to this Amendment No. 3, no Default has occurred and is continuing.
SUBPART 4.4. Solvency. Neither the making of the Term-D Loans, nor the
guaranty of the Loans (including the Term-D Loans) or any other Obligations
under or in respect of any Loan Documents by the Guarantors pursuant to the
Guarantees nor any other transaction contemplated to occur on the Amendment No.
3 Effective Date will involve or result in any fraudulent transfer or fraudulent
conveyance under the provisions of Section 548 of the Bankruptcy Code (11 U.S.C.
Section 101 et seq., as from time to time hereafter amended, and any successor
or similar statute) or any applicable state law respecting fraudulent transfers
or fraudulent conveyances. On the Amendment No. 3 Effective Date, after giving
effect to the making of the Term-D Loans, the Borrower and its Subsidiaries
taken as a whole, are Solvent.
ARTICLE V
MISCELLANEOUS PROVISIONS
SUBPART 5.1. Ratification of and References to the Credit Agreement.
This Amendment No. 3 shall be deemed to be an amendment to the Credit Agreement,
and the Credit Agreement, as amended hereby, and each other Loan Document is
hereby ratified, approved and confirmed in each and every respect. All
references to the Credit Agreement in any Loan Document or other document,
instrument, agreement or writing shall hereafter be deemed to refer to the
Credit Agreement as amended hereby. Other than as specifically provided herein,
this Amendment No. 3 shall not operate as a waiver or amendment of any right,
power or privilege of any Agent or any Lender under the Credit Agreement or any
other Loan Document or of any other term or condition of the Credit Agreement or
any other Loan Document, nor shall the entering into of this Amendment No. 3
preclude any Agent and/or any Lender from refusing to enter into any further
waivers or amendments with respect thereto.
SUBPART 5.2. Headings. The various headings of this Amendment No. 3 are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment No. 3 or any provisions hereof.
SUBPART 5.3. Execution in Counterparts. This Amendment No. 3 may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement. A counterpart hereof executed and delivered by facsimile
shall be effective as an original.
SUBPART 5.4. Successors and Assigns. This Amendment No. 3 shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
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SUBPART 5.5. Governing Law; Entire Agreement. THIS AMENDMENT NO. 3 SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK. This Amendment No. 3 and the other Loan Documents constitute
the entire understanding among the parties hereto with respect to the subject
matter hereof and supersede any prior agreements, written or oral, with respect
thereto.
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IN WITNESS WHEREOF, the signatories hereto have caused this Amendment
No. 3 to be executed by their respective officers thereunto duly authorized as
of the day and year first above written.
NEXTEL PARTNER OPERATING CORP.
By: /s/ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Treasurer
and Chief Operating Officer
NEXTEL PARTNERS, INC.
By: /s/ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Treasurer
and Chief Operating Officer
NPCR, INC.
By: /s/ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Treasurer
and Chief Operating Officer
NEXTEL PARTNERS OF UPSTATE NEW YORK,
INC.
By: /s/ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Treasurer
and Chief Operating Officer
NEXTEL WIP LEASE CORP.
By: /s/ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Treasurer
and Chief Operating Officer
NEXTEL WIP LICENSE CORP.
By: /s/ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Treasurer
and Chief Operating Officer
NEXTEL PARTNERS EQUIPMENT CORP.
By: /s/ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Treasurer
and Chief Operating Officer
NPFC INC.
By: /s/ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Treasurer
and Chief Operating Officer
NEXTEL WIP EXPANSION CORP.
By: /s/ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Treasurer
and Chief Operating Officer
NEXTEL WIP EXPANSION TWO CORP.
By: /s/ XXXX X. XXXXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Treasurer
and Chief Operating Officer
CREDIT SUISSE FIRST BOSTON,
as Co-Syndication Agent and as Lender
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
By: /s/ XXXX X'XXXX
----------------------------------
Name: Xxxx X'Xxxx
Title: Director
DEUTSCHE BANC ALEX. XXXXX INC.,
as Co-Syndication Agent
By: /s/ XXXXXXXX XXXXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Director
THE BANK OF NEW YORK,
as Documentation Agent
By: /s/ XXXXX X. BRASIN
----------------------------------
Name: Xxxxx X. Brasin
Title: AVP
DEUTSCHE BANK AG NEW YORK BRANCH,
as Lender
By: /s/ XXXX XXXXXX
----------------------------------
Name: Xxxx Xxxxxx
Title: Director
AIMCO CDO SERIES 2000-A
as Lender
By: /s/ XXXXX X. XXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
By: /s/ XXXXX XXXXX
----------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
ALLSTATE LIFE INSURANCE COMPANY
as Lender
By: /s/ XXXXX X. XXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Signatory
By: /s/ XXXXX XXXXX
----------------------------------
Name: Xxxxx Xxxxx
Title: Authorized Signatory
APEX (IDM) CDO I, LTD.
as Lender
By: /s/ XXXXXXXX XXXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
APEX (TRIMARAN) CDO I, LTD.
BY: TRIMARAN ADVISORS, LLC
as Lender
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
BARCLAYS BANK PLC
as Lender
By: /s/ XXXXXXX X. XXXXXXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Director
CARAVELLE INVESTMENT FUND, LLC
BY: TRIMARAN ADVISORS, LLC
as Lender
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
CARAVELLE INVESTMENT FUND II, LLC
BY: TRIMARAN ADVISORS, LLC
as Lender
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
CARLYLE HIGH YIELD PARTNERS, L.P.
as Lender
By: /s/ XXXXX X. XXXX
----------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
CARLYLE HIGH YIELD PARTNERS II, L.P.
as Lender
By: /s/ XXXXX X. XXXX
----------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
CARLYLE HIGH YIELD PARTNERS III, L.P.
as Lender
By: /s/ XXXXX X. XXXX
----------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
DRESDNER BANK AG, NEW YORK
AND GRAND CAYMAN BRANCHES
as Lender
By: /s/ XXXXXXX X. XXXXXXXXX
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Associate
By: /s/ XXXXX X. XXXXXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Associate
ELC (CAYMAN) LTD.
as Lender
By: /s/ XXXXXXXX XXXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
ELC (CAYMAN) LTD. CDO SERIES 1999-I
as Lender
By: /s/ XXXXXXXX XXXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
ELC (CAYMAN) LTD. 1999-II
as Lender
By: /s/ XXXXXXXX XXXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
ELC (CAYMAN) LTD. 1999-III
as Lender
By: /s/ XXXXXXXX XXXXXXX
----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
ELC (CAYMAN) LTD. 2000-I
as Lender
By: /s/ XXXXXXXX XXXXXXX
--------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
FIRST UNION NATIONAL BANK
as Lender
By: /s/ XXXX X. XXXX
--------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
FRANKLIN CLO II, LIMITED
FRANKLIN FLOATING RATE TRUST
as Lender
By: /s/ XXXXXXXX XXXXXX
--------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
GALAXY CLO 1999-1, LTD.
as Lender
By: /s/ XXXXXX OH
--------------------------
Name: Xxxxxx Oh
Title: Authorized Agent
GENERAL ELECTRIC CAPITAL
CORPORATION
as Lender
By: /s/ XXXXX X. XXXXXXXXX
--------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Manager - Operations
MUIRFIELD TRADING LLC
as Lender
By: /s/ XXXXX X. XXXXXXX
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Asst. Vice President
NATIONAL CITY BANK
as Lender
By: /s/ XXXXXXX X. XXXXXXX
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
OLYMPIC FUNDING TRUST, SERIES 1999-1
as Lender
By: /s/ XXXXX X. XXXXXXX
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Authorized Agent
PRESIDENT & FELLOWS OF HARVARD COLLEGE
BY: REGIMENT CAPITAL MANAGEMENT, LLC
AS ITS INVESTMENT ADVISOR
REGIMENT CAPITAL ADVISORS, LLC
ITS MANAGER AND PURSUANT TO
DELEGATED AUTHORITY
as Lender
By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
ROSEMONT CLO, LTD.
BY: DEERFIELD CAPITAL MGMT., LLC
AS ITS COLLATERAL MANAGER
as Lender
By: /s/ XXXX X. XXXXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Sr. Vice President
SEQUILS-CUMBERLAND I, LTD.
BY: DEERFIELD CAPITAL MGMT., LLC
AS ITS COLLATERAL MANAGER
as Lender
By: /s/ XXXX X. XXXXXXXXX
------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Sr. Vice President
XXXXX CLO LTD. 2000-1
as Lender
By: /s/ XXXXXXXX XXXXXXX
------------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Director
ACCEPTED BY:
BANK OF MONTREAL,
as Administrative Agent
By /s/ XXXXX XXXXXXX
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
SCHEDULE I
TERM-D LOAN COMMITMENT
Lender Percentage
------ ----------
Credit Suisse First Boston 50%
Deutsche Bank AG New York Branch 50%
EXHIBIT A-1
Term-D Note
ANNEX I
Amendment No. 3 Effective Date Certificate
