exv10w1



 





EXHIBIT 10.1




INCREMENTAL FACILITY AMENDMENT




     INCREMENTAL FACILITY AMENDMENT, dated as of November 2, 2007 (this “Amendment”) among
CLEARWIRE CORPORATION, a Delaware corporation (the “Borrower”), MORGAN STANLEY SENIOR
FUNDING, INC., as administrative agent (in such capacity, the “Administrative Agent”) and
as a Tranche C Term Lender (as defined below), WACHOVIA BANK N.A., as a Tranche C Term Lender, and
MORGAN STANLEY SENIOR FUNDING, INC. and WACHOVIA CAPITAL MARKETS, LLC, as lead arrangers (each a
“Lead Arranger” and collectively, the “Lead Arrangers”), to the Credit Agreement,
dated as of July 3, 2007 (the “Existing Credit Agreement”), among the Borrower, the several
banks and other financial institutions or entities from time to time parties thereto (the
“Lenders”), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and CITIGROUP GLOBAL MARKETS
INC., as co-documentation agents (in such capacities, the “Co-Documentation Agents”),
JPMORGAN CHASE BANK, N.A., as syndication agent (in such capacity, the “Syndication
Agent”), MORGAN STANLEY & CO. INCORPORATED, as collateral agent (in such capacity, the
“Collateral Agent”) and the Administrative Agent.



WITNESSETH




     WHEREAS, pursuant to the Existing Credit Agreement, the Lenders agreed to make, and have made,
certain loans and other extensions of credit to the Borrower;



     WHEREAS, pursuant to Section 2.18 of the Existing Credit Agreement, the Borrower has requested
that an additional tranche of term loans in the amount of $250,000,000 (the “Tranche C Term
Loans”) be made available to the Borrower, and the Tranche C Term Lenders (as defined below)
and the Administrative Agent have agreed, upon the terms and subject to the conditions set forth
herein, that (a) certain Lenders and certain additional Lenders (collectively, the “Tranche C
Term Lenders”) will make Tranche C Term Loans, (b) the proceeds of the Tranche C Term Loans
shall be utilized for general corporate purposes and to pay related fees and expenses and (c) as
permitted by Section 2.18 thereof, the Existing Credit Agreement will be amended as set forth
herein without additional consent or approval of the Lenders;



     NOW, THEREFORE, the parties hereto agree as follows:



     SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Existing Credit Agreement. As used in this Amendment,
“Lead Arrangers” means Morgan Stanley Senior Funding, Inc. and Wachovia Capital Markets,
LLC.



     SECTION 2. Amendment of the Existing Credit Agreement. (a) The Tranche C Term Loans
shall be deemed to be “Incremental Term Loans”, the Tranche C Term Lenders shall be deemed to be
“Lenders” and this Amendment shall be deemed to be an “Incremental Facility Amendment”, in each
case, for all purposes of the Existing Credit Agreement and the Loan Documents.



 









 





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     (b) Section 1 of the Existing Credit Agreement is hereby amended as follows:




     (i) by adding the following new definitions, to appear in proper alphabetical
order:




     “Incremental Facility Amendment Effective Date”: the date on
which the conditions precedent set forth in Section 3 of the Incremental
Facility Amendment dated as of November 2, 2007 to this Agreement shall have
been satisfied or waived, which date is November 2, 2007.




     “Tranche C Term Commitment”: as to any Lender, the obligation
of such Lender, if any, to make a Tranche C Term Loan to the Borrower in a
principal amount not to exceed the amount set forth under the heading
“Tranche C Term Commitment” opposite such Lender’s name in Schedule 1.1F.
The original aggregate amount of the Tranche C Term Commitments is
$250,000,000.




     “Tranche C Term Facility”: at any time, the aggregate amount of
the Lenders’ Tranche C Term Commitments at such time.




     “Tranche C Term Lender”: shall have the meaning provided in the
second paragraph of the Incremental Facility Amendment.




     “Tranche C Term Loan”: as defined in Section 2.1(c).




     “Tranche C Term Percentage”: as to any Lender at any time, the
percentage which the aggregate principal amount of such Lender’s Tranche C
Term Commitment and Tranche C Term Loans then outstanding then constitutes
of the aggregate Tranche C Term Commitments and Tranche C Term Loans then
outstanding.




     (ii) by deleting the definition of “Commitment” in its entirety and
substituting therefor the following:




     “Commitment”: as to any Lender, the sum of the Term Loan Commitment, the Tranche C
Term Commitment and the Delayed-Draw Term Loan Commitment of such Lender. The original aggregate
amount of the Commitments is $1,250,000,000.




     (iii) by inserting the phrase “, the Tranche C Term Facility” before the phrase “and the Term
Loan Facility” in the definition of “Facility”;




     (iv) by inserting the phrase “, the Tranche C Term Loans” before the phrase “or
Delayed-Draw Term Loans” in the definition of “Majority Facility Lenders”;










 





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     (v) by inserting the phrase “, Tranche C Term Loans” before the phrase “or
Delayed-Draw Term Loans” in the definition of “Notes”;




     (vi) by inserting the phrase “, the Tranche C Term Loans” before each
occurrence of the phrase “and Delayed-Draw Term Loan Commitments” in the definition
of “Percentage”; and




     (vii) by inserting the phrase “, the Tranche C Term Loans” before the phrase
“and Delayed-Draw Term Loan Commitments” in the definition of “Required
Lenders”.



     (c) Section 2.1 is hereby amended by inserting the following new clause (c):



     “(c) Subject to the terms and conditions hereof, each Tranche C Term Lender severally agrees
to make a tranche c term loan (each, a “Tranche C Term Loan” and, collectively, the
“Tranche C Term Loans”) to the Borrower pursuant to a single borrowing on the Incremental
Facility Amendment Effective Date in an amount not to exceed the amount of the Tranche C Term
Commitment of such Lender; provided, that no Tranche C Term Lender shall make any Tranche C
Term Loan if, after giving effect to such Tranche C Term Loan, the aggregate outstanding principal
amount of all Tranche C Term Loans would exceed the Tranche C Term Commitments of all the Lenders.
Amounts of Tranche C Term Loans repaid or prepaid may not be reborrowed. The Tranche C Term Loans
may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.2 and 2.6. Borrowings of Tranche C Term
Loans pursuant to the Tranche C Term Commitments shall be available only on the Incremental
Facility Amendment Effective Date.”.



     (d) Section 2.3 is hereby amended by inserting the following new clause (c):



     “(c) The Tranche C Term Loan of each Tranche C Term Lender shall mature in 19 consecutive
quarterly installments, commencing on December 31, 2007 each of which shall be in an amount equal
to such Lender’s Tranche C Term Percentage multiplied by the amount set forth below opposite such
installment:



	 	 	 	 	 
	Installment	 	Principal Amount
	 
	December 31, 2007

	 	 	625,000	 
	March 31, 2008

	 	 	625,000	 
	June 30, 2008

	 	 	625,000	 
	September 30, 2008

	 	 	625,000	 
	December 31, 2008

	 	 	625,000	 
	March 31, 2009

	 	 	625,000	 
	June 30, 2009

	 	 	625,000	 
	September 30, 2009

	 	 	625,000	 
	December 31, 2009

	 	 	625,000	 
	March 31, 2010

	 	 	625,000	 














 





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	Installment	 	Principal Amount
	 
	June 30, 2010

	 	 	625,000	 
	September 30, 2010

	 	 	625,000	 
	December 31, 2010

	 	 	625,000	 
	March 31, 2011

	 	 	625,000	 
	June 30, 2011

	 	 	625,000	 
	September 30, 2011

	 	 	625,000	 
	December 31, 2011

	 	 	625,000	 
	March 31, 2012

	 	 	625,000	 
	Maturity Date

	 	$	238,750,000”	 






     (e) Section 2.11 is hereby amended by inserting the phrase “, the Tranche C Term Loans” after
each occurrence of the phrase “Term Loans” in paragraph (b);



     (f) Section 4.16 is hereby amended by (i) deleting the word “and” from the end of clause (iii)
in paragraph (a), (ii) deleting the period from the end of paragraph (b) and substituting therefor
the phrase “; and” and (iii) adding the following new clause (c) at the end thereof:



     “(c) the proceeds of the Tranche C Term Loans shall be used for general corporate purposes of
the Loan Parties and to pay fees and expenses in connection with the Incremental Facility
Amendment.”;



     (g) The Schedules to the Existing Credit Agreement are hereby amended by supplementing such
Schedules with the information contained in Annex 1 hereto.



     SECTION 3. Conditions to Effectiveness of Amendment. The effectiveness of this
Amendment and the obligations of each Tranche C Term Lender to make a Tranche C Term Loan hereunder
on the Incremental Facility Amendment Effective Date are subject to the satisfaction or waiver on
or prior to the Incremental Facility Amendment Effective Date of each of the following conditions:



     (a) The Administrative Agent shall have received (i) a counterpart of this Amendment, executed
and delivered by a duly authorized officer of the Borrower and the Tranche C Term Lenders, (ii) an
executed Acknowledgement and Consent, in the form set forth at the end of this Amendment, from each
Loan Party and (iii) for the account of each Tranche C Term Lender that has requested Notes
pursuant to the Existing Credit Agreement, Notes with respect to the Tranche C Term Loans
conforming to the requirements hereof and executed by a duly Authorized Officer of the Borrower.



     (b) The Administrative Agent shall have received opinions, addressed to the Administrative
Agent and each of the Lenders and dated the Incremental Facility Amendment Effective Date, from (i)
Kirkland & Ellis LLP, special New York counsel to the Borrower and (ii) Broady R. Hodder, which
opinion shall cover the matters covered in Exhibit E-2 to the Existing Credit Agreement, after
giving affect to this Amendment.












 





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     (c) The Administrative Agent shall have received from the Borrower, a certificate, dated the
Incremental Facility Amendment Effective Date, signed by the Chief Executive Officer, President or
any Vice-President and the Secretary of the Borrower in the form of Exhibit C to the Existing
Credit Agreement with appropriate insertions and deletions, together with (x) copies of the
resolutions, or such other administrative approval, of the Borrower approving the Tranche C Term
Loans to be reasonably satisfactory to the Administrative Agent and (y) a statement that all of the
applicable conditions set forth in Sections 3(f) and 3(g) of this Amendment have been satisfied as
of such date.



     (d) The Administrative Agent shall have received from the President, Chief Financial Officer
or another senior financial or accounting officer of the Borrower a reasonably satisfactory
solvency certificate that shall document the solvency of the Borrower and its Subsidiaries on a
consolidated basis after giving effect to the transactions contemplated hereby.



     (e) The Tranche C Term Lenders, the Administrative Agent and each Lead Arranger shall have
received all fees required to be paid, and all expenses required to be paid for which invoices have
been presented, on or before the Incremental Facility Amendment Effective Date.



     (f) All representations and warranties contained in the Existing Credit Agreement (as amended
by this Amendment) or in the other Loan Documents in effect on the Incremental Facility Amendment
Effective Date both before and after giving effect to the Tranche C Term Loans shall be true and
correct in all material respects with the same effect as though such representations and warranties
had been made on and as of the Incremental Facility Amendment Effective Date, except to the extent
that such representations and warranties expressly relate to an earlier date and except to the
extent already qualified by materiality, in which case such representations and warranties shall be
true and correct in all respects.



     (g) After giving effect to this Amendment, no Default or Event of Default shall have occurred
and be continuing.



     SECTION 4. Effects on Loan Documents. (a) Except as specifically amended herein, all
Loan Documents shall continue to be in full force and effect and are hereby in all respects
ratified and confirmed.



     (b) The execution, delivery and effectiveness of this Amendment shall not operate as a waiver
of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver of any provision of the Loan Documents.



     (c) The Borrower and the other parties hereto acknowledge and agree that this Amendment shall
constitute a Loan Document.



     (d) On and after the Incremental Facility Amendment Effective Date the Schedules to the
Existing Credit Agreement shall be amended to reflect the Tranche C Term Commitments.












 





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     SECTION 5. Expenses. The Borrower agrees to pay or reimburse the Administrative
Agent and the Lead Arrangers for all their reasonable documented out-of-pocket costs and expenses
incurred in connection with this Amendment, and any other documents prepared in connection herewith
and the transactions contemplated hereby, including, without limitation, the reasonable documented
fees and disbursements of counsel to the Administrative Agent, in each case to the extent required
by Section 10.5 of the Existing Credit Agreement.



     SECTION 6. Non-Reliance on Administrative Agent. (a) Each Tranche C Term Lender
represents to the Administrative Agent and the Lead Arrangers that it has, independently and
without reliance upon either Lead Arranger, any Agent or any Lender, and based on such documents
and information as it has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and creditworthiness of the Loan
Parties and their affiliates and made its own decision to make its Tranche C Term Loans hereunder
and enter into this Amendment. Each Tranche C Term Lender also represents that it will,
independently and without reliance upon any Lead Arranger, any Agent or any other Lender, and based
on such documents and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action under this Agreement
and the other Loan Documents, and to make such investigation as it deems necessary to inform itself
as to the business, operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates.



     (b) Each party hereto acknowledges that Morgan Stanley & Co. Incorporated and/or its
affiliates are engaged in providing investment banking and financial advisory services, as well as
securities trading, securities brokerage and financing activities, including to the Borrower. Each
party hereto acknowledges that none of Morgan Stanley & Co. Incorporated or any affiliate thereof
involved in such services or activities has any obligation to use in connection with the
transactions contemplated by this Amendment, or to furnish to you, confidential information
obtained by them in connection with such services or activities.



     SECTION 7. Joinder. From and after the Incremental Facility Amendment Effective
Date, each Tranche C Term Lender executing and delivering a signature page to this Amendment shall
become a party to the Existing Credit Agreement as amended hereby and shall have the rights and
obligations of a Lender thereunder and under the other Loan Documents and shall be bound by the
provisions thereof.



     SECTION 8. Amendments; Execution in Counterparts. (a) This Amendment shall not
constitute an amendment of any other provision of the Existing Credit Agreement not referred to
herein and shall not be construed as a waiver or consent to any further or future action on the
part of the Borrower that would require a waiver or consent of the Lenders or the Administrative
Agent. Except as expressly amended hereby, the provisions of the Existing Credit Agreement are
and shall remain in full force and effect.



     (b) This Amendment may not be amended nor may any provision hereof be waived except pursuant
to a writing signed by the Borrower, the Administrative Agent and the Tranche C Term Lenders. This
Amendment may be executed in any number of counterparts and by the different parties hereto on
separate counterparts, including by means of facsimile, each of












 





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which when so executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument.



     SECTION 9. GOVERNING LAW; WAIVER OF JURY TRIAL. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE
LAW OF THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY AGREES AS SET FORTH FURTHER IN SECTION
10.11 OF THE EXISTING CREDIT AGREEMENT AS IF SUCH SECTION WERE SET FORTH IN FULL HEREIN.



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     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered by their respective proper and duly authorized officers as of the day and year first
above written.



	 	 	 	 	 
	 	CLEARWIRE CORPORATION

 	 
	 	By:  	/s/
 John A. Butler	 
	 	 	Name:  	John A. Butler	 
	 	 	Title:  	Executive Vice President
& Chief Financial Officer	 



 









 






	 	 	 	 	 
	 	MORGAN STANLEY SENIOR FUNDING, INC.,
as
Administrative Agent, Lead Arranger and
Tranche C
Term Lender

 	 
	 	By:  	/s/
 ANDREW EARLS	 
	 	 	Name:  	Andrew Earls 	 
	 	 	Title:  	VP	 



 









 







	 	 	 	 	 
	 	WACHOVIA CAPITAL MARKETS, LLC, as Lead Arranger

 	 
	 	By:  	/s/ Marc Birenbaum	 
	 	 	Name:  	Marc Birenbaum	 
	 	 	Title:  	Director	 
	 
	 	WACHOVIA BANK N.A., as Tranche C Term Lender

 	 
	 	By:  	/s/ Marc Birenbaum	 
	 	 	Name:  	Marc Birenbaum	 
	 	 	Title  	Director