Preview of our top selling Equipment Financing Agreement
Nextel / Motorola - Equipment Financing Agreement
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EQUIPMENT FINANCING AGREEMENT
dated as of
October 31, 1997
by and between
MCCAW INTERNATIONAL (BRAZIL), LTD.
and
MOTOROLA CREDIT CORPORATION
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TABLE OF CONTENTS
PAGE
---- SECTION 1. DEFINITIONS ..................................................... 2
Section 1.01 Defined Terms ............................................ 2
Section 1.02 Interpretation ...........................................25
Section 1.03 Accounting Principles and Terms ..........................25
SECTION 2. ADVANCES ........................................................26
Section 2.01 The Commitment ...........................................26
Section 2.02 Procedure for Borrowing ..................................26
Section 2.03 Financing Note ...........................................28
Section 2.04 Repayment of Principal of Advances .......................28
Section 2.05 Prepayments ..............................................29
Section 2.06 Interest .................................................31
Section 2.07 Payments .................................................32
Section 2.08 Use of Proceeds ..........................................33
Section 2.09 Change in Law ............................................33
Section 2.10 Illegality ...............................................33
SECTION 3. FUNDING AND YIELD PROTECTION ....................................34
Section 3.01 Taxes, Duties, Fees and Charges ..........................34
Section 3.02 Change in Circumstances ..................................34
SECTION 4. EXPENSES; INDEMNIFICATION; FEES .................................36
Section 4.01 Expenses .................................................36
Section 4.02 Indemnification ..........................................36
SECTION 5. STOCKHOLDER GUARANTIES ..........................................37
Section 5.01 Stockholder Guaranties ...................................37
Section 5.02 Foreign Affiliate Guaranties .............................38
SECTION 6. SECURITY ........................................................38
Section 6.01 Security .................................................38
SECTION 7. REPRESENTATIONS AND WARRANTIES ..................................42
Section 7.01 Organization .............................................42
Section 7.02 Power; Authority .........................................43
Section 7.03 Governmental Approvals; Licenses .........................43
Section 7.04 Execution, Enforceability, Violation of Law and
Agreements ...............................................45
Section 7.05 Financial Statements; Business Plan ......................46
Section 7.06 Taxes ....................................................47
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Section 7.07 Properties ...............................................47
Section 7.08 Compliance with Laws .....................................48
Section 7.09 Intellectual Property ....................................49
Section 7.10 Burdensome Documents; Agreements with Affiliates;
Other Agreements .........................................49
Section 7.11 Security Documents .......................................50
Section 7.12 Judgments, Actions, Proceedings ..........................50
Section 7.13 No Defaults ..............................................50
Section 7.14 Strikes ..................................................51
Section 7.15 Sufficiency of System Documents ..........................51
Section 7.16 Delivery of System Documents and Licenses ................51
Section 7.17 Accuracy of Information ..................................51
Section 7.18 Business .................................................52
Section 7.19 Survival of Representations and Warranties ...............52
Section 7.20 ERISA ....................................................52
Section 7.21 Regulation ...............................................54
Section 7.22 Use of Proceeds ..........................................54
Section 7.23 Investment Company .......................................54
Section 7.24 Capital Contributions ....................................54
Section 7.25 Bank Accounts ............................................55
Section 7.26 Inactive Foreign Affiliates ..............................55
SECTION 8. AFFIRMATIVE COVENANTS ...........................................55
Section 8.01 Performance of Obligations ...............................55
Section 8.02 Annual Financial Statements ..............................56
Section 8.03 Quarterly Financial Statements ...........................57
Section 8.04 Other Information ........................................58
Section 8.05 Access to Books; Inspections .............................59
Section 8.06 Governmental Approvals ...................................60
Section 8.07 Insurance ................................................60
Section 8.08 Continuance of Business ..................................61
Section 8.09 Required Equity Investment ...............................61
Section 8.10 Maintenance and Repairs ..................................62
Section 8.11 Compliance with Law ......................................62
Section 8.12 Notices ..................................................64
Section 8.13 Security; Further Assurances .............................65
Section 8.14 Construction of the System ...............................67
Section 8.15 Restricted Assets; Option Companies ......................67
Section 8.16 Maintenance of Licenses ..................................68
Section 8.17 Financial Covenants ......................................68
Section 8.18 Proposed Consolidation ...................................69
Section 8.19 Failure to Perform of Stockholder Guarantor ..............70
Section 8.20 Adult Content ............................................70
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Section 8.21 Translation and Registration .............................70
Section 8.22 Foreign Resident Account .................................70
SECTION 9. NEGATIVE COVENANTS ..............................................70
Section 9.01 Indebtedness .............................................71
Section 9.02 Guaranties ...............................................71
Section 9.03 Transfer .................................................71
Section 9.04 Liens ....................................................71
Section 9.05 Mergers; Acquisitions ....................................72
Section 9.06 Distributions; Redemptions ...............................72
Section 9.07 Stock Issuance ...........................................73
Section 9.08 Amendment of Documents and Organization ..................73
Section 9.09 Loans; Advances ..........................................74
Section 9.10 Use of Funds .............................................75
Section 9.11 Transactions with Affiliates .............................75
Section 9.12 Changes in Business ......................................75
Section 9.13 Prepayments ..............................................76
Section 9.14 Additional System Documents ..............................76
Section 9.15 ERISA Obligations ........................................76
Section 9.16 Sale and Leaseback Transactions ..........................77
Section 9.17 New Subsidiaries .........................................77
Section 9.18 Restricted Assets and Option Companies ...................77
Section 9.19 Bank Accounts ............................................77
Section 9.20 Bankruptcy ...............................................77
SECTION 10. CONDITIONS PRECEDENT ...........................................78
Section 10.01 Conditions to Initial Advance ............................78
Section 10.02 Conditions to All Advances ...............................83
SECTION 11. EVENTS OF DEFAULT ..............................................85
Section 11.01 Events of Default ........................................85
Section 11.02 Remedies .................................................89
Section 11.03 Cumulative Rights ........................................92
Section 11.04 Waiver of Demand .........................................92
Section 11.05 Waiver of Notice .........................................92
SECTION 12. MISCELLANEOUS ..................................................92
Section 12.01 Waiver of Sovereign Immunity .............................92
Section 12.02 Venue for Suit ...........................................93
Section 12.03 Governing Law ............................................94
Section 12.04 Severability of Provisions ...............................94
Section 12.05 Binding Effect; Assignment ...............................94
Section 12.06 Entire Agreement; Amendments .............................95
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Section 12.07 Notices ..................................................95
Section 12.08 Right of Set-Off .........................................96
Section 12.09 Counterparts .............................................96
Section 12.10 Proposed Consolidation ...................................96
Section 12.11 Termination of Stockholder Guarantor's Obligations .......97
Section 12.12 Confidentiality ..........................................97
Section 12.13 Term of Agreement ........................................98
Exhibit A - Approved Business Plan Exhibit B - Form of Consent to Assignment Exhibit C - Form of Drawdown Certificate Exhibit D - Form of Request for Financing Exhibit E - Invested Capital Schedule Exhibit F - Form of Financing Note Exhibit G - Form of Waiver of Lessor Lien Language to be inserted in
Lease Exhibit H - Intentionally Omitted Exhibit I-1 - Form of Nextel International Guaranty Exhibit I-2 - Form of Motorola do Brasil Guaranty Exhibit J - Form of Foreign Affiliate Guaranty Exhibit K - Form of Company Security Agreement Exhibit L - Form of Company Security Deposit Agreement Exhibit M-1 - Form of Lease Assignment Agreement MSO Site Exhibit M-2 - Form of Lease Assignment Agreement for Future Leases Exhibit N-1 - Form of Company Quota Pledge Agreement Exhibit N-2(a) - Form of Company Share Pledge Agreement (AirLink) Exhibit N-2(b) - Form of Company Share Pledge Agreement (Butler Gorge) Exhibit N-3 - Form of Company Promise to Pledge Quotas Exhibit N-4 - Form of Amendment to Company Quota Pledge Agreement Exhibit N-5 - Form of Amendment to Company Share Pledge Agreement Exhibit O - Form of Guarantor Pledge Agreement Exhibit P - Form of Telcom Pledge Agreement Exhibit Q-1 - Form of Foreign Affiliate Security Agreement Exhibit Q-2 - Form of Amendment to Foreign Affiliate Security Agreement Exhibit R - Form of Foreign Affiliate Trademark Assignment Agreement Exhibit S-1 - Form of Foreign Affiliate Quota Pledge Agreement Exhibit S-2 - Form of Butler Gorge Promise to Pledge Quotas Exhibit S-3 - Form of Amendment to Foreign Affiliate Quota Pledge
Agreement Exhibit S-4 - Form of AirLink Promise to Pledge Quotas Exhibit T - Form of AirLink Security Deposit Agreement Exhibit U - Form of Conditional Sale Agreement Exhibit V-1 - Opinion of Brazilian Counsel to the Company Exhibit V-2 - Opinion of Special U.S. Counsel to the Company Exhibit W - Intentionally Omitted
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Exhibit X-1(a) - Form of Company Quota Voting Agreement Exhibit X-1(b) - Form of Company Share Voting Agreement Exhibit X-2 - Form of Foreign Affiliate Voting Agreement Exhibit Y-1 - Form of Foreign Affiliate Assignment of Rights and
Obligations (Management Agreements) Exhibit Y-2 - Form of Foreign Affiliate Assignment of Rights and
Obligations (Conditional Sale Agreements)
Schedule 1.01(a) - Material Leases Schedule 1.01(b) - Foreign Affiliates Schedule 1.0 - Restricted Assets Schedule 7.01(a) - States of Incorporation and Qualification and Capitalization
and Ownership of Stock of the Company and each other Credit
Party Schedule 7.01(b) - Jurisdictions Schedule 7.03(a) - Governmental Approvals Schedule 7.03(b) - Licenses Schedule 7.04 - Violations of Governmental Rules by Operative Documents Schedule 7.09 - Intellectual Property Schedule 7.10 - Burdensome Documents; Transactions with Affiliates Schedule 7.12 - Outstanding Judgments and Actions Schedule 7.25 - The Company's and Foreign Affiliates' Bank Accounts Schedule 8.04(d) - List of Line Items for Approved Business Plan (and
containing the "Use of Funds Schedule") Schedule 8.07(a) - General Insurance Requirement Schedule 8.07(b) - Political Risk Insurance Requirement
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EQUIPMENT FINANCING AGREEMENT, dated as of October 31, 1997 (this "AGREEMENT"), by and between MCCAW INTERNATIONAL (BRAZIL), LTD., a corporation organized under the laws of the State of Virginia, with its principal office at 1191 Second Avenue, Suite 1600, Seattle, Washington 98101, U.S.A. (the "COMPANY") 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. (the "CREDITOR").
W I T N E S S E T H:
WHEREAS, the Company has entered into the Integrated Digital Enhanced Network Equipment Purchase Agreements dated as of March 21, 1997, by and between Motorola, Inc. (the "VENDOR") and the Company (as amended, modified and supplemented from time to time, the "iDEN EQUIPMENT AGREEMENTS"), along with the Integrated Digital Enhanced Network Installation and Optimization Agreements dated as of March 21, 1997, by and between the Company and the Vendor (as amended, modified and supplemented from time to time, the "iDEN SERVICE AGREEMENTS"; and together with the iDEN Equipment Agreements, the "iDEN EQUIPMENT AND SERVICE AGREEMENTS");
WHEREAS, the Company has entered into (i) a Conditional Sale Agreement dated as of the date hereof, by and between the Company and AirLink S.A., a corporation organized under the laws of Brazil ("AIRLINK"), pursuant to which the Company has agreed to extend credit to AirLink for the purchase of certain iDEN and non-iDEN equipment in an aggregate amount not exceeding $31,250,000 (as amended, modified and supplemented, the "CONDITIONAL SALE AGREEMENT NO. 1"), and (ii) a Conditional Sale Agreement, dated as of the date hereof, by and between the Company and AirLink pursuant to which the Company has agreed to extend credit to AirLink for the purchase of certain iDEN and non-iDEN equipment in an aggregate amount not exceeding $125,000,000 (as amended, modified and supplemented from time to time, the "CONDITIONAL SALE AGREEMENT NO. 2");
WHEREAS, AirLink is a Subsidiary of the Company;
WHEREAS, the Company has requested that the Creditor provide Advances (as hereinafter defined) in the principal amount not exceeding the least of (i) $125,000,000, (ii) the aggregate purchase price (excluding import taxes and/or duties) for all equipment and services purchased pursuant to the iDEN Equipment and Service Agreements, (iii) the Maximum Total Advance Cap, and (iv) the Maximum Total Foreign Advance Cap (as such terms are hereinafter defined) (such lesser amount being the "COMMITMENT") solely to finance the Company's purchase of iDEN (as hereinafter defined) equipment and services pursuant to the iDEN Equipment and Service Agreements; and
WHEREAS, the Creditor is 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 Creditor to make the Advances and the Creditor to enter into the agreements referred to herein, the parties agree as follows:
SECTION 1. DEFINITIONS
SECTION 1.01 DEFINED TERMS.
In addition to the terms defined above, when used in this Agreement, the following terms shall have the following meanings:
"ACCEPTABLE GUARANTOR" means a guarantor who is a shareholder of AirLink and whose creditworthiness is equivalent to, or better than, the creditworthiness of Nextel International as determined on the Closing Date or on the date of the proposed assignment of the Nextel International Guaranty pursuant to Section 15 thereof (whichever is better) in the Creditor's sole determination. It being understood that in no event may Nextel International make any assignment of its rights and obligations that would result in it guaranteeing less than 70% of the Obligations.
"ADDITIONAL SYSTEM DOCUMENTS" means all contracts and agreements related to the construction, maintenance, repair or operation of the System or the Telecommunications Business entered into by the Company, Nextel International or any Foreign Affiliate subsequent to the Closing Date (i) in replacement of an existing System Document or (ii) which, if terminated, could reasonably be expected to have a Material Adverse Effect or (iii) having an aggregate net present value or cost in excess of $10,000,000.
"ADVANCE" has the meaning ascribed to such term in subsection 2.01(a) hereof.
"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 5% or more of any class of the Voting Stock of such first Person, or (c) whereby 5% or more of the Voting Stock (or in the case of a Person which is not a corporation, 5% 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.
"AFFILIATED COMPANIES" means Nextel, Nextel International, Infocom, the Company, the Foreign Affiliates, any other Subsidiary or Affiliate of Nextel or any combination thereof.
"AGREEMENT" means this Equipment Financing Agreement, dated as of the date hereof, by and between the Company and the Creditor.
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"AIG" means American International Group.
"AIG POLICY" means [_____________________________].
"AIRFONE" means Air Fone Comercio e Servicos de Radiofonia Movel Ltda., a Brazilian limited liability quota company.
"AIRFONE HOLDINGS" means Air Fone Holdings, Inc.
"AIRFONE PARTICIPACAO" means Air Fone Participacao e Empreendimentos S/C Ltda.
"AIRLINK" has the meaning ascribed to such term in the second preamble hereof.
"AIRLINK ACCOUNTS" means the AirLink Receipt Account and the AirLink Debt Service Account.
"AIRLINK DEBT SERVICE ACCOUNT" has the meaning ascribed to such term in Section 1 of the AirLink Security Deposit Agreement.
"AIRLINK INTERCOMPANY SERVICES AGREEMENT" has the meaning ascribed to such term in Section 7.10(d) hereof.
"AIRLINK LEASE ASSIGNMENT" has the meaning ascribed to such term in subsection 6.01(f) hereof.
"AIRLINK PROMISE TO PLEDGE QUOTAS" has the meaning ascribed to such term in subsection 6.01(g) hereof.
"AIRLINK RECEIPT ACCOUNT" has the meaning ascribed to such term in Section 1 of the AirLink Security Deposit Agreement.
"AIRLINK SECURITY DEPOSIT AGREEMENT" has the meaning ascribed to such term in subsection 6.01(f) hereof.
"AIRLINK SHAREHOLDERS AGREEMENT" means the AirLink S.A. Shareholders Agreement, dated as of September 26, 1997, by and among the Company, Motorola do Brasil and AirLink S.A.
"APPLICABLE MARGIN" means (i) with respect to any LIBOR Advance 4.63% per annum, and (ii) with respect to any Prime Advance 2.5% per annum.
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"APPROVED BUSINESS PLAN" means the quarterly business plan of the Company for a nationwide iDEN system in Brazil dated September 24, 1997 (and delivered to the Creditor prior to the Closing Date) as may be modified pursuant to Section 8.04 hereof.
"ARM'S-LENGTH AFFILIATE" has the meaning ascribed to such term in Section 9.11 hereof.
"ART CONSULT" means Art Consult Global International S/A.
"AUTHORIZED OFFICER" means (a) with respect to any Person that is a corporation, the President, Vice President or Treasurer of such Person, (b) with respect to any Person that is a Partnership, the President, Vice President or Treasurer 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 Brazilian limited liability companies, the delegate manager or managing quotaholder.
"AVAILABLE COMMITMENT" means an amount equal to (x) the Commitment MINUS (y) the aggregate principal amount of all Advances made to the date of determination, including without limitation Advances that have been prepaid but excluding those Advances which have been prepaid in accordance with subsections 2.05(a)(ii) and 2.05(a)(iii) hereof and are available to be reborrowed pursuant to Section 2.05(a)(v) hereof.
"AVAILABILITY PERIOD" means the period beginning with the Closing Date and ending on the earlier of (i) Commitment Termination Date or (ii) the date on which the obligation of the Creditor to make Advances hereunder terminates in accordance with the terms of this Agreement.
"BUSINESS DAY" means (i) any day other than Saturday, Sunday or any other day on which commercial banks in New York City or Sao Paulo, are authorized or required under the laws of the State of New York or Brazil, respectively, or pursuant to other government action to close, and (ii) 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 (i) above and which is also a day for trading by and between banks for U.S. dollar deposits in the London interbank market.
"BUTLER GORGE" means Butler Gorge International Corporation.
"BUTLER GORGE PROMISE TO PLEDGE QUOTAS" has the meaning ascribed to such term in subsection 6.01(f)(i) hereof.
"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.
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"CLASS B REDEMPTION" has the meaning ascribed to such term in subsection 9.06(b) hereof.
"CLOSING DATE" means October 31, 1997.
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"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 real and personal property, whether owned or leased (including, without limitation, the System Documents (excluding the Excluded Leases), the Licenses and Governmental Approvals) which are subject to the security interests or Lien granted by any of the Security Documents in each case except to the extent they are Restricted Assets or Immaterial Assets.
"COMMITMENT" has the meaning ascribed to such term in the fourth preamble hereof.
"COMMITMENT TERMINATION DATE" means the date twenty-four (24) months from the Closing Date.
"COMPANY" means McCaw International (Brazil), Ltd., a corporation organized under the laws of the State of Virginia.
"COMPANY PROMISE TO PLEDGE QUOTAS" has the meaning ascribed to such term in subsection 6.01(a)(i)(B) hereof.
"COMPANY QUOTA PLEDGE AGREEMENT" has the meaning ascribed to such term in subsection 6.01(a)(i)(B) hereof.
"COMPANY QUOTA VOTING AGREEMENT" has the meaning ascribed to such term in subsection 6.01(a)(i)(B) hereof.
"COMPANY SECURITY AGREEMENT" has the meaning ascribed to such term in subsection 6.01(a)(i)(A) hereof.
"COMPANY SECURITY DEPOSIT AGREEMENT" has the meaning ascribed to such term in subsection 6.01(a)(i)(A) hereof.
"COMPANY SHARE PLEDGE AGREEMENTS" has the meaning ascribed to such term in subsection 6.01(a)(i)(B) hereof.
"COMPANY SHARE VOTING AGREEMENT" has the meaning ascribed to such term in subsection 6.01(a)(i)(B) hereof.
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"CONDITIONAL SALE AGREEMENT NO. 1" has the meaning ascribed to such term in the second preamble hereof.
"CONDITIONAL SALE AGREEMENT NO. 2" has the meaning ascribed to such term in the second preamble hereof.
"CONDITIONAL SALE AGREEMENTS" means collectively the Conditional Sale Agreement No. 1 and the Conditional Sale Agreement No. 2.
"CONDITIONAL SALE NOTES" means collectively (i) (a) the iDEN promissory note dated the Initial Funding Date issued by AirLink in favor of the Company in connection with the Conditional Sale Agreement No. 1 in the principal amount of $25,000,000 and (b) the non-iDEN promissory note dated the Initial Funding Date issued by AirLink in favor of the Company in connection with the Conditional Sale Agreement No. 1 in the principal amount of $6,125,000, and (ii) (a) the iDEN promissory note dated the Initial Funding Date issued by AirLink in favor of the Company in connection with the Conditional Sale Agreement No. 2 in the principal amount of $100,000,000 and (b) the non-iDEN promissory note dated the Initial Funding Date issued by AirLink in favor of the Company in connection with the Conditional Sale Agreement No. 2 in the principal amount of $25,000,000.
"CONSENTS TO ASSIGNMENTS" means a collective reference to each consent executed and delivered by a System Party (other than an Option Company) in connection with each System Document other than the Excluded Leases.
"CONSOLIDATED ENTITY" means the Foreign Affiliate holding all of the Licenses after the consummation of the Proposed Consolidation which entity (x) has no creditors except to the extent permitted by the definition of Permitted Indebtedness, and (y) the Company shall directly own (on a fully diluted basis) more than 50% of the Voting Stock, more than 50% of the economic interests and otherwise Controls.
"CONSOLIDATED FIXED CHARGES" means, as to any Person and for any period, without duplication, the sum of (a) (i) the total interest expense for such Person and its Subsidiaries on a consolidated basis for such period (including, without limitation, all interest expense on Capital Lease Obligations), (ii) the scheduled principal amount of all amortization payments on all Indebtedness for borrowed money of such Person and its Subsidiaries on a consolidated basis for such period, (iii) all payments made under capitalized leases, and (iv) all payments made under Hedge Agreements, minus (b) all payments received under Hedge Agreements.
"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.
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"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 Financing Note, the Security Documents, the Foreign Affiliate Guaranties, the Nextel Side Letter and the Stockholder Guaranties and each other document entered into pursuant thereto.
"CREDITOR" means Motorola Credit Corporation, a corporation organized under the laws of the State of Delaware, United States of America.
"CREDIT PARTY" means the Company, any Foreign Affiliate, any Stockholder Guarantor, Telcom and any of the Telcom Entities.
"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.
"DOLLARS" and the sign "$" mean the lawful money of the United States of America.
"DRAWDOWN CERTIFICATE" means a certificate of the Company in the form of Exhibit C hereto.
"DRAWDOWN DATE" has the meaning ascribed to such term in subsection 2.02(a) hereof.
"EBITDA" means, as to any Person and for any period, the net income of such Person and its Subsidiaries as measured in accordance with GAAP on a consolidated basis for such period, plus interest expense, minus interest income, plus (or minus, in the case of income tax benefits) provision for taxes, minus (or plus, in the case of a loss) extraordinary gains or losses, to the extent not covered by U.S. GAAP, minus (or plus, in the case of a loss) financial gains or losses, or gains or losses from sales of assets (other than sales of inventory in the ordinary course of their respective businesses), plus amortization and depreciation charges plus (or minus, in the case of losses) minority interest in the net income or losses of consolidated Subsidiaries, minus (or plus, in the case of a loss) income or losses from equity method investments, minus (or plus, in the case of a loss) any inflationary adjustments, to the extent not covered by U.S. GAAP, including (i) monetary correction gain or loss, (ii) foreign exchange gain or loss, and (iii) inflationary income statement adjustments to revenues or expenses.
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"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 7.08(d) hereof.
"EQUITY INVESTOR" has the meaning ascribed to such term in subsection 8.09(a) 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.
"EVENT OF ABANDONMENT" means the abandonment of the System or the Telecommunications Business or cessation of the operation of the System or the Telecommunications Business which reasonably indicates to the Creditor that the Company intends to abandon the System or the Telecommunications Business.
"EVENT OF DEFAULT" means any of the events specified in Section 11.01 hereof.
"EXCESS CASH FLOW" means, for any period, an amount equal to (i) the Free Cash Flow (excluding actual cash equity contributions) of the Company, less (ii) the sum of aggregate Consolidated Fixed Charges, taxes accrued and voluntary prepayments made hereunder, during such period.
"EXCLUDED LEASES" means those Leases entered into prior to the date hereof (other than those Leases described on Schedule 1.01(a) hereto), and any other Leases which Nextel International, the Company or any Foreign Affiliate shall not be permitted to assign to the Creditor, notwithstanding their exercise of good faith and commercially reasonable efforts in accordance with the provisions of Section 8.13 hereof.
"FINANCING NOTE" has the meaning ascribed to such term in Section 2.03 hereof.
"FIXED CHARGE COVERAGE RATIO" means, as at any date, the ratio of (i) Free Cash Flow to (ii) Consolidated Fixed Charges.
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"FOREIGN AFFILIATE" means, with respect to the Company, those Affiliates listed on Schedule 1.01(b) hereto, each entity created or acquired pursuant to Section 9.05 or 9.12 hereof, and any other Affiliate of the Company that executes a Credit Document.
"FOREIGN AFFILIATE ASSIGNMENT OF RIGHTS AND OBLIGATIONS" has the meaning ascribed to such term in subsection 6.01(d)(i) hereof.
"FOREIGN AFFILIATE GUARANTIES" has the meaning ascribed to such term in Section 5.02 hereof.
"FOREIGN AFFILIATE PLEDGE AGREEMENTS" has the meaning ascribed to such term in subsection 6.01(f)(i) hereof.
"FOREIGN AFFILIATE SECURITY AGREEMENTS" has the meaning ascribed to such term in subsection 6.01(d)(i) hereof.
"FOREIGN AFFILIATE TRADEMARK ASSIGNMENT AGREEMENT" has the meaning ascribed to such term in subsection 6.01(d)(i) hereof.
"FOREIGN AFFILIATE VOTING AGREEMENT" has the meaning ascribed to such term in subsection 6.01(f)(i) hereof.
"FOREIGN PROJECTS" means the iDEN systems operated by Nextel International or its Affiliates outside the United States.
"FOREIGN RESIDENT ACCOUNT" has the meaning ascribed to such term in Section 8.22 hereof.
"FREE CASH FLOW" means, for any period, EBITDA for such period MINUS actual capital expenditures (excluding those financed with Permitted Indebtedness) for such period PLUS actual cash equity contributions to the Company, AirLink or the other Foreign Affiliates for such period.
"GAAP" means generally accepted accounting principles used, from time to time, in the United States of America.
"GOVERNMENTAL APPROVAL" means any authorization, consent, approval, license, franchise, concession, lease, ruling, permit, certification, exemption, filing or registration by or with any Governmental Authority or legal or administrative body reasonably desirable, or necessary, for the design, location, construction, completion, ownership, operation, repair or maintenance of the System or the 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.
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"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, an...
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