exv10w1






Exhibit 10.1




Execution Copy




CREDIT AGREEMENT




dated as of




May 21, 2010




 






SPRINT NEXTEL CORPORATION,

as Borrower




 






J.P. MORGAN SECURITIES INC.

CITIGROUP GLOBAL MARKETS INC.,

as Joint Lead Arrangers and Joint Bookrunners




 






BANK OF AMERICA, N.A.

BARCLAYS CAPITAL

DEUTSCHE BANK SECURITIES INC.,

as Joint Bookrunners and Co-Documentation Agents




 






CITIBANK, N.A.,

as Syndication Agent




 






JPMORGAN CHASE BANK, N.A.,

as Administrative Agent





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	4	 
	SECTION 1.01 Defined Terms
	 	 	4	 
	SECTION 1.02 Classification of Loans and Borrowings
	 	 	22	 
	SECTION 1.03 Terms Generally
	 	 	22	 
	SECTION 1.04 Accounting Terms: GAAP
	 	 	22	 
	SECTION 1.05 Appointment of the Borrower as Obligor Representative
	 	 	23	 
	SECTION 1.06 Treatment of Hedging Agreements
	 	 	23	 
	ARTICLE II THE CREDITS
	 	 	23	 
	SECTION 2.01 Commitments
	 	 	23	 
	SECTION 2.02 Loans and Borrowings
	 	 	24	 
	SECTION 2.03 Requests for Borrowings
	 	 	24	 
	SECTION 2.04 Letters of Credit
	 	 	25	 
	SECTION 2.05 Competitive Bid Procedure
	 	 	30	 
	SECTION 2.06 Funding of Borrowings
	 	 	32	 
	SECTION 2.07 Interest Elections for Syndicated Borrowings
	 	 	32	 
	SECTION 2.08 Termination. Reduction and Incremental Facilities
	 	 	33	 
	SECTION 2.09 Repayment of Loans: Evidence of Debt
	 	 	36	 
	SECTION 2.10 Prepayment of Loans
	 	 	36	 
	SECTION 2.11 Fees
	 	 	38	 
	SECTION 2.12 Interest
	 	 	39	 
	SECTION 2.13 Alternate Rate of Interest
	 	 	40	 
	SECTION 2.14 Increased Costs
	 	 	40	 
	SECTION 2.15 Break Funding Payments
	 	 	42	 
	SECTION 2.16 Taxes
	 	 	42	 
	SECTION 2.17 Payments Generally: Pro Rata Treatment: Sharing of Set-Offs
	 	 	44	 
	SECTION 2.18 Mitigation Obligations: Replacement of Lenders
	 	 	46	 
	SECTION 2.19 Defaulting Lenders
	 	 	47	 
	ARTICLE III REPRESENTATIONS AND WARRANTIES
	 	 	48	 
	SECTION 3.01 Organization: Powers
	 	 	49	 
	SECTION 3.02 Authorization; Enforceability
	 	 	49	 
	SECTION 3.03 Governmental Approvals; No Conflicts
	 	 	49	 
	SECTION 3.04 Financial Condition: No Material Adverse Change
	 	 	49	 






i









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 3.05 Properties
	 	 	50	 
	SECTION 3.06 Litigation and Environmental Matters
	 	 	50	 
	SECTION 3.07 Compliance with Laws and Agreements
	 	 	50	 
	SECTION 3.08 Investment Company Status
	 	 	50	 
	SECTION 3.09 Taxes
	 	 	51	 
	SECTION 3.10 ERISA
	 	 	51	 
	SECTION 3.11 Disclosure
	 	 	51	 
	SECTION 3.12 Subsidiaries
	 	 	51	 
	ARTICLE IV CONDITIONS
	 	 	51	 
	SECTION 4.01 Effective Date
	 	 	51	 
	SECTION 4.02 Each Extension of Credit
	 	 	53	 
	ARTICLE V AFFIRMATIVE COVENANTS
	 	 	53	 
	SECTION 5.01 Financial Statements and Other Information
	 	 	53	 
	SECTION 5.02 Notices of Material Events
	 	 	55	 
	SECTION 5.03 Existence
	 	 	55	 
	SECTION 5.04 Payment of Obligations
	 	 	55	 
	SECTION 5.05 Maintenance of Properties; Insurance
	 	 	55	 
	SECTION 5.06 Books and Records; Inspection Rights
	 	 	56	 
	SECTION 5.07 Compliance with Laws
	 	 	56	 
	SECTION 5.08 Use of Proceeds
	 	 	56	 
	SECTION 5.09 Certain Obligations with respect to Subsidiaries
	 	 	56	 
	ARTICLE VI NEGATIVE COVENANTS
	 	 	57	 
	SECTION 6.01 Indebtedness
	 	 	57	 
	SECTION 6.02 Liens
	 	 	59	 
	SECTION 6.03 Fundamental Changes
	 	 	60	 
	SECTION 6.04 Transactions with Affiliates
	 	 	60	 
	SECTION 6.05 Financial Covenants
	 	 	61	 
	SECTION 6.06 Restricted Payments
	 	 	61	 
	SECTION 6.07 Intercompany Indebtedness
	 	 	62	 
	ARTICLE VII EVENTS OF DEFAULT
	 	 	62	 
	ARTICLE VIII THE ADMINISTRATIVE AGENT
	 	 	64	 
	ARTICLE IX MISCELLANEOUS
	 	 	66	 
	SECTION 9.01 Notices
	 	 	66	 
	SECTION 9.02 Waivers: Amendments
	 	 	67	 
	SECTION 9.03 Expenses: Indemnity: Damage Waiver
	 	 	69	 
	SECTION 9.04 Successors and Assigns
	 	 	70	 






ii









 






	 	 	 	 	 
	 	 	Page	 
	SECTION 9.05 Survival
	 	 	73	 
	SECTION 9.06 Counterparts; Integration; Effectiveness
	 	 	73	 
	SECTION 9.07 Severability
	 	 	74	 
	SECTION 9.08 Right of Setoff
	 	 	74	 
	SECTION 9.09 Governing Law: Jurisdiction; Consent to Service of Process
	 	 	74	 
	SECTION 9.10 WAIVER OF JURY TRIAL
	 	 	74	 
	SECTION 9.11 Headings
	 	 	75	 
	SECTION 9.12 Confidentiality
	 	 	75	 
	SECTION 9.13 USA PATRIOT Act
	 	 	75	 
	SECTION 9.14 [Reserved]
	 	 	76	 
	SECTION 9.15 Guarantee
	 	 	76	 






	 	 	 

	SCHEDULES:
	 	 
	 
	 	 
	Schedule 2.01

	 	— Commitments
	Schedule 3.06

	 	— Disclosed Matters
	Schedule 3.12

	 	— Subsidiaries
	Schedule 6.01

	 	— Existing Indebtedness
	Schedule 6.02

	 	— Existing Liens





EXHIBITS:



Exhibit A — Form of Assignment and Assumption



Exhibit B — Form of Joinder Agreement



Exhibit C — Form of Subordination Agreement



Exhibit D — Form of Foreign Lender Exemption Statement



Exhibit E — Form of Opinion of Special Counsel






iii









 








          CREDIT AGREEMENT dated as of May 21, 2010 among SPRINT NEXTEL CORPORATION (the
“Borrower”), the LENDERS party hereto and JPMORGAN CHASE BANK, N.A., as Administrative
Agent.




          The Borrower has requested that the Lenders extend credit, by means of loans and letters of
credit, to them in an aggregate amount up to but not exceeding $2,087,500,000 (which amount may,
subject to terms and conditions hereunder, be increased pursuant to Incremental Facilities (as
defined below)) to provide funds for general corporate purposes of the Borrower and its
Subsidiaries. The Lenders are willing to extend such credit upon the terms and conditions of this
Agreement and, accordingly, the parties hereto agree as follows:




ARTICLE I

DEFINITIONS




          SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings
specified below:




          “Accession Agreement” means an Accession Agreement substantially in the form of
Exhibit A to the Subordination Agreement.




          “Acquired Entity” has the meaning assigned to such term in Section 5.09(a).




          “Account” means an “account” (as such term is defined in Article 9 of the Uniform
Commercial Code as in effect from time to time in the State of New York).




          “Adjusted Base Rate” means, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1% and (c) the Adjusted LIBO Rate for a one month Interest Period on such day (or if
such day is not a Business Day, the immediately preceding Business Day) plus 1%. Any change in the
Adjusted Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the
Adjusted LIBO Rate shall be effective from and including the effective date of such change in the
Prime Rate, the Federal Funds Effective Rate or the Adjusted LIBO Rate, respectively.




          “Adjusted LIBO Rate” means (a) with respect to any Syndicated Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of
1%) equal to (i) the LIBO Rate for such Interest Period multiplied by (ii) the Statutory Reserve
Rate or (b) with respect to any Base Rate Borrowing for any day, an interest rate per annum equal
to (i) the LIBO Rate for a one month Interest Period commencing on such day (or if such day is not
a Business Day, the immediately preceding Business Day) multiplied by (ii) the Statutory Reserve
Rate.




          “Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as
Administrative Agent for the Lenders hereunder.




          “Administrative Questionnaire” means an Administrative Questionnaire in a form
supplied by the Administrative Agent.




          “Affiliate” means, with respect to a specified Person, another Person that directly,
or indirectly through one or more intermediaries, Controls or is Controlled by or is under common
Control with the Person specified.







4









 








          “Applicable Percentage” means (a) with respect to any Revolving Credit Lender for
purposes of Section 2.04 (or Section 9.03(c), to the extent relating to Letters of Credit), the
percentage of the total Revolving Credit Commitments represented by such Lender’s Revolving Credit
Commitment and (b) with respect to any Lender in respect of any indemnity claim under Section
9.03(c) arising out of an action or omission of the Administrative Agent under this Agreement, the
percentage of the total Commitments of all Classes hereunder represented by the aggregate amount of
such Lender’s Commitment of all Classes hereunder. If the Commitments hereunder have terminated or
expired, the Applicable Percentages shall be determined based upon the percentage of the total Term
Loans (if any) and Revolving Credit Exposure represented by the aggregate amount of such Lender’s
Term Loans and Revolving Credit Exposure hereunder. For purposes of Section 2.19, when a
Defaulting Lender shall exist, “Applicable Percentage” shall mean the percentage of the total
Revolving Credit Commitments (disregarding any Defaulting Lender’s Commitment) represented by such
Lender’s Commitment.




          “Applicable Rate” means (a) in the case of any Term Loan, for any day, the applicable
rate per annum as may be agreed among the Borrower and Term Loan Lenders in the applicable
Incremental Agreement and (b) in the case of Revolving Credit Loans, for any day, the applicable
rate per annum set forth below under the caption “Base Rate Loans” or “Eurodollar Loans”, as
applicable, based upon the applicable Rating set forth below opposite the respective Type of
Revolving Credit Loan and, in the case of the commitment fees payable hereunder, the applicable
rate per annum set forth below under the caption “Commitment Fee”:




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Level	 	Rating	 	Base Rate Loans	 	Eurodollar Loans	 	Commitment Fee
	Level I
	 	≥ BB+ and Ba1	 	 	1.75	%	 	 	2.75	%	 	 	0.375	%
	Level II
	 	≥ BB and Ba2 and not Level I	 	 	2.00	%	 	 	3.00	%	 	 	0.500	%
	Level III
	 	≥ BB- and Ba3 and not Level I or II	 	 	2.25	%	 	 	3.25	%	 	 	0.625	%
	Level IV
	 	≤ B+ or B1	 	 	2.50	%	 	 	3.50	%	 	 	0.625	%






          For the purposes of this Agreement, (i) any change in the Applicable Rate for any outstanding
Loan by reason of a change in the Moody’s Rating or the S&P Rating shall become effective on the
date of announcement or publication by the respective rating agency of a change in such Rating or,
in the absence of such announcement or publication, on the effective date of such changed Rating
and (ii) at any time at which the S&P Rating differs from the Moody’s Rating by one or more levels,
the Applicable Rate shall be determined by reference to the lower of the two Ratings.




          If the rating system of Moody’s or S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, the Borrower and the Lenders
shall negotiate in good faith to amend this definition to reflect such changed rating system or the
unavailability of ratings from such rating agency and, pending the effectiveness of any such
amendment, the Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation.




          “Approved Fund” means, with respect to any Lender that is a fund that invests in
commercial loans, any other fund that invests in commercial loans and is managed or advised by the
same investment advisor as such Lender or by an Affiliate of such investment advisor.




          “Arrangers” means J.P. Morgan Securities Inc. and Citigroup Global Markets Inc.




          “Asset Sale” means any Disposition of any property or assets by the Borrower or any of
its Subsidiaries to any other Person that is not the Borrower or a Subsidiary after the Effective
Date; provided that “Asset Sale” shall not include (i) any Disposition (or series of
related Dispositions) of assets






5









 







having a fair market value of less than $20,000,000, (ii) Dispositions in connection with Sale
and Leaseback Transactions, (iii) Dispositions in connection with Permitted Securitizations, (iv)
Dispositions of used, obsolete, worn-out or surplus assets or inventory in the ordinary course of
business, (v) Dispositions of cash and cash equivalents, (vi) the sale or discounting of overdue
Accounts in the ordinary course of business, (vii) licenses or sublicenses of Intellectual Property
in the ordinary course of business or to settle pending or threatened litigation so long as such
licenses or sublicenses of Intellectual Property could not reasonably be expected to result in a
Material Adverse Effect and (viii) leases and sub-leases of real property so long as such leases or
sub-leases of real property could not reasonably be expected to result in a Material Adverse
Effect.




          “Assignment and Assumption” means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section 9.04),
and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.




          “Assuming Lender” has the meaning assigned to such term in Section 2.08(d)(i).




          “Bankruptcy Event” means, with respect to any Lender or Parent of a Lender, such
Lender or Parent (as the case may be) becomes the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of
creditors or similar Person charged with reorganization or liquidation of its business or
custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent
to, approval of or acquiescence in any such proceeding or appointment, provided that a Bankruptcy
Event shall not result solely by virtue of the ownership, or the acquisition of any ownership
interest in such Lender or Parent of such Lender by a Governmental Authority or instrumentality
thereof, provided, further, that such ownership or interest by a Governmental Authority does not
result in or provide such Lender or Parent with immunity from the jurisdiction of courts within
the United States or from the enforcement of judgments or writs of attachment on its assets or
permit such Government Authority to reject, repudiate, disavow or disaffirm any contracts or
agreements made by such Lender or Parent.




          “Base Rate”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to the Adjusted Base Rate.




          “Board” means the Board of Governors of the Federal Reserve System of the United
States of America.




          “Borrower” has the meaning assigned to such term in the preamble to this Agreement.




          “Borrowing” means (a) all Base Rate Loans of the same Class made, converted or
continued on the same date or (b) all Syndicated Eurodollar Loans or Competitive Loans of the same
Class and Type that have the same Interest Period (or any single Competitive Loan that does not
have the same Interest Period as any other Competitive Loan of the same Type).




          “Borrowing Request” means a request by the Borrower for a Borrowing in accordance with
Section 2.03.




          “Business Day” means any day (a) that is not a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to remain closed; and (b) if
such day relates to a Competitive Bid Request or Competitive Bid for a Competitive Eurodollar Loan,
or to a borrowing of, a payment or prepayment of principal of or interest on, a continuation or
conversion of or






6









 







into, or the Interest Period for, a Eurodollar Borrowing, or to a notice by the Borrower with
respect to any such borrowing, payment, prepayment, continuation, conversion, or Interest Period,
that is also a day on which dealings in Dollar deposits are carried out in the London interbank
market.




          “Capital Lease Obligations” of any Person means the obligations of such Person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.




          “Change in Control” means either of the following: (i) any Person or two or more
Persons acting in concert shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934),
directly or indirectly, of voting stock of the Borrower (or other securities convertible into such
voting stock) representing 50% or more of the combined voting power of all voting stock of the
Borrower, or shall obtain the power (whether or not exercised) to elect a majority of the
Borrower’s board of directors; or (ii) any Person or two or more Persons (other than members of the
board of directors of the Borrower) acting in concert shall succeed in having a sufficient number
of its nominees elected to the board of directors of the Borrower such that such nominees, when
added to any existing director remaining on the board of directors of the Borrower after such
election who is a related person of such Person, shall constitute a majority of the board of
directors of the Borrower.




          “Change in Law” means (a) the adoption of any law, rule or regulation after the date
of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or (c)
compliance by any Lender or Issuing Bank (or, for purposes of Section 2.14(b), by any lending
office of such Lender or by such Lender’s or Issuing Bank’s holding company, if any) with any
request, guideline or directive (whether or not having the force of law) of any Governmental
Authority made or issued after the date of this Agreement.




          “Class”, when used in reference to any Loan, Borrowing or Commitment, refers to
whether such Loan, the Loans comprising such Borrowing or the Loans that a Lender holding such
Commitment is obligated to make, are Revolving Credit Loans, Competitive Loans or Term Loans.




          “Code” means the Internal Revenue Code of 1986, as amended from time to time, together
with the rules and regulations promulgated thereunder.




          “Commitments” means the Revolving Credit Commitments.




          “Competitive Bid” means an offer by a Lender to make a Competitive Loan in accordance
with Section 2.05.




          “Competitive Bid Rate” means, with respect to any Competitive Bid, the Margin or the
Fixed Rate, as applicable, offered by the Lender making such Competitive Bid.




          “Competitive Bid Request” means a request by the Borrower for Competitive Bids in
accordance with Section 2.05.




          “Competitive Loan” means a Loan made pursuant to Section 2.05.







7









 








          “Consolidated Net Tangible Assets” means the consolidated total assets of the Borrower
and its Subsidiaries as reflected in the Borrower’s most recent balance sheet preceding the date of
determination prepared in accordance with GAAP, less (i) current liabilities (excluding current
maturities of long-term debt and Capital Lease Obligations) and (ii) goodwill, tradenames,
trademarks, patents, minority interests of others, unamortized debt discount and expense and other
like intangible assets, (excluding any investments in permits or licenses issued, granted or
approved by the Federal Communications Commission or any successor thereto).




          “Control” means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through the ability to
exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings
correlative thereto.




          “Credit Party” means the Administrative Agent, each Issuing Bank or any other Lender.




          “Current Net Cash Proceeds” has the meaning assigned to such term in sub-clause (y) of
Section 2.10(b)(ii).




          “Declining Lender” has the meaning assigned to such term in Section 2.18(c).




          “Default” means any event or condition which constitutes an Event of Default or which
upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.




          “Defaulting Lender” means any Lender that has (a) failed, within two Business Days of
the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) fund any portion
of its participations in Letters of Credit or (iii) pay over to any Credit Party any other amount
required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies
the Administrative Agent in writing that such failure is the result of such Lender’s good faith
determination that a condition precedent to funding (specifically identified and with supporting
facts) has not been satisfied, or, in the case of clause (iii), such amount is the subject of a
good faith dispute; (b) notified the Borrower or any Credit Party in writing, or has made a public
statement, to the effect that it does not intend or expect to comply with any of its funding
obligations under this Agreement (unless such writing or public statement states that such position
is based on such Lender’s good faith determination that a condition precedent to funding a loan
under this Agreement cannot be met) or generally under other agreements in which it commits to
extend credit, (c) failed, within three Business Days after request by a Credit Party, acting in
good faith, to provide a certification in writing from an authorized officer of such Lender in the
jurisdiction of such Lender’s lending office that it will comply with its obligations to fund
prospective Loans and participations in then outstanding Letters of Credit under this Agreement,
provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon
such Credit Party’s receipt of such certification, or (d) become the subject of a Bankruptcy Event.




          “Disclosed Matters” means the actions, suits and proceedings and the environmental
matters disclosed in Schedule 3.06.




          “Disposition” means, with respect to any property or assets, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or disposition thereof.




          “Domestic Subsidiary” means any Subsidiary other than a Foreign Subsidiary.




          “EBITDA” means, for any period, net income (or net loss) of the Borrower and its
Subsidiaries (before discontinued operations for such period and exclusive of, without duplication,
(x) the income or loss resulting from extraordinary or non-recurring items, (y) the income or loss
of any Person






8









 







accounted for on the equity method and (z) non-cash, one-time charges) plus, without
duplication and to the extent already deducted (and not added back) in determining net income (or
net loss), the sum of (a) interest expense, (b) income tax expense, (c) depreciation expense, (d)
amortization expense and (e) cash severance charges, in each case in accordance with GAAP for such
period.




          “EDC Credit Agreement” means the Credit Agreement dated as of March 23, 2007 between
the Borrower, as borrower, and Export Development Canada, as lender, as amended to the date hereof,
as the same may be further amended, supplemented or modified hereafter, or replaced or refinanced.




          “EDC Indebtedness” means the Indebtedness of the Borrower under the EDC Credit
Agreement.




          “Effective Date” means the date on which the conditions specified in Section 4.01 are
satisfied (or waived in accordance with Section 9.02).




          “Environmental Laws” means all laws, rules, regulations, codes, ordinances, orders,
decrees, judgments, injunctions or binding agreements issued, promulgated or entered into by any
Governmental Authority, concerning the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous Material or to health and
safety matters with respect to any Hazardous Material, including FCC rules concerning human
exposure to RF Emissions.




          “Environmental Liability” means, for any Person, any liability, contingent or
otherwise (including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of such Person resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials or RF Emissions, (c) exposure to any Hazardous Materials or RF
Emissions, (d) the release or threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other binding arrangement pursuant to which liability is assumed or
imposed with respect to any of the foregoing.




          “Equity Interests” means shares of capital stock (whether common or preferred),
partnership interests, membership interests in a limited liability company (whether common or
preferred), beneficial interests in a trust or other equity ownership interests in a Person, and
any warrants, options or other rights entitling the holder thereof to purchase or acquire any such
equity interest.




          “Equity Rights” means, with respect to any Person, any subscriptions, options,
warrants, commitments, preemptive rights or agreements of any kind (including any shareholders’ or
voting trust agreements) for the issuance, sale, registration or voting of, or securities
convertible into, any additional shares of capital stock of any class, or partnership or other
ownership interests of any type in, such Person.




          “ERISA” means the Employee Retirement Income Security Act of 1974, as amended from
time to time.




          “ERISA Affiliate” means any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code
or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414(m) of the Code.







9









 








          “ERISA Event” means (a) any “reportable event”, as defined in Section 4043(c) of ERISA
or the regulations issued thereunder with respect to a Plan (other than an event for which the
30-day notice period referred to in Section 4043(a) is waived), (b) any failure by any Plan to
satisfy the minimum funding standards (within the meaning of Sections 412 or 430 of the Code or
Section 302 of ERISA) applicable to such Plan, whether or not waived, (c) the filing pursuant to
Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan, (d) the incurrence by any Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the termination of any Plan,
(e) the receipt by any Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan under Section 4042 of ERISA, (f) the incurrence by any Borrower or any of its
ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any
Plan or Multiemployer Plan, or (g) the receipt by any Borrower or any ERISA Affiliate of any
notice, or the receipt by any Multiemployer Plan from any Borrower or any ERISA Affiliate of any
notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer
Plan is, or is expected to be, insolvent within the meaning of Section 4245 of ERISA, or is in
reorganization within the meaning of Section 4241 of ERISA, or in endangered or critical status
(within the meaning of Section 432 of the Code or Section 305 or Title IV of ERISA).




          “Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such
Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by
reference to (a) in the case of a Syndicated Loan or a Syndicated Borrowing, the Adjusted LIBO
Rate, or (b) in the case of a Competitive Loan or a Competitive Borrowing, the LIBO Rate.




          “Event of Default” has the meaning assigned to such term in Article VII.




          “Excess Disposition Proceeds” has the meaning assigned to such term in sub-clause (y)
of Section 2.10(b)(ii).




          “Excess Funding Subsidiary Guarantor” has the meaning assigned to such term in Section
9.15(f).




          “Excess Subsidiary Guarantor Payments” has the meaning assigned to such term in
Section 9.15(f).




          “Excluded Subsidiary” means any Subsidiary of the Borrower (other than an Obligor), as
to which no holder or holders of any Indebtedness of any of the Obligors (other than Indebtedness
hereunder) shall have the right (upon notice, lapse of time or both), which right shall not have
been waived, to declare a default in respect of such Indebtedness of such Obligor, or to cause the
payment thereof to be accelerated or payable prior to its final scheduled maturity, by reason of
the occurrence of a default with respect to any Indebtedness of such Subsidiary.




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender, any
Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of
the Borrower hereunder, (a) income, net worth or franchise taxes imposed on (or measured by) its
net income or net worth by the United States of America, or by the jurisdiction under the laws of
which such recipient is organized or in which its principal office is located or, in the case of
any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed
by the United States of America or any similar tax imposed by any other jurisdiction in which the
Borrower is located and (c) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrower under Section 2.18(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party to this Agreement or
is attributable to such Foreign Lender’s failure or inability






10









 







to comply with Section 2.16(f), except to the extent that such Foreign Lender’s assignor (if
any) was entitled, at the time of assignment, to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.16(a).




          “Existing Credit Agreement” means the Credit Agreement dated as of December 19, 2005,
as amended, among the Borrower, Sprint Capital Corporation and Nextel Communications, Inc., the
lenders named therein, and JPMorgan Chase Bank, N.A., as Administrative Agent.




          “FCC” means the Federal Communications Commission or any United States Governmental
Authority substituted therefor.




          “Federal Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received
by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.




          “Financial Officer” means, with respect to the Borrower, the chief financial officer,
principal accounting officer, treasurer, assistant treasurer, controller or assistant controller of
the Borrower.




          “Fixed Rate” means, with respect to any Competitive Loan (other than a Eurodollar
Competitive Loan), the fixed rate of interest per annum specified by the Lender making such
Competitive Loan in its related Competitive Bid.




          “Fixed Rate Loan” means a Competitive Loan bearing interest at a Fixed Rate.




          “Foreign Lender” means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.




          “Foreign Subsidiary” means any Subsidiary that is organized under the laws of a
jurisdiction other than any state of the United States of America or the District of Columbia.




          “GAAP” means generally accepted accounting principles in the United States of America.




          “Governmental Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.




          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic effect of
guaranteeing any Indebtedness of any other Person (the “primary obligor”) in any manner,
whether directly or indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or to purchase (or to advance or supply funds for the purchase of) any security for
the payment thereof, (b) to purchase or lease property, securities or services






11









 







primarily for the purpose of assuring the owner of such Indebtedness of the payment thereof,
(c) to maintain working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or
(d) as an account party in respect of any letter of credit or letter of guaranty issued to support
such Indebtedness; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.




          “Guaranteed Parties” means, collectively, the Lenders (including as a counterparty
(either such Lender or an Affiliate thereof) to any Hedging Agreement with any Obligor), the
Issuing Banks and the Administrative Agent.




          “Hazardous Materials” means all explosive or radioactive substances or wastes and all
hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum
distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.




          “Hedging Agreement” means any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or currency exchange
rate or commodity price hedging arrangement.




          “Incremental Agreement” means an agreement, in form and substance satisfactory to the
Borrower and the Administrative Agent, pursuant to which an Assuming Lender or Increasing Lender
undertakes, effective as of the applicable Incremental Date, a Revolving Credit Commitment (or an
increase to an existing Revolving Credit Commitment, in the case of an Increasing Lender) or an
Incremental Term Facility, as applicable, duly executed by such Assuming Lender or Increasing
Lender, as applicable, and the Borrower and acknowledged by the Administrative Agent;
provided that each Incremental Agreement shall set forth the amount, terms and provisions
of each applicable Incremental Facility (including, with respect to an Incremental Term Facility,
the Applicable Rate relating thereto as may be agreed between the Borrower and such Assuming Lender
or Increasing Lender), which terms and provisions shall be, in the case of an Incremental Revolving
Facility, identical to those set forth herein applicable to Revolving Credit Loans and Revolving
Credit Commitments; provided further that each Incremental Agreement may, without
the consent of any other Lenders, effect such amendments to this Agreement and the other Loan
Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect
the provisions of Section 2.08.




          “Incremental Date” has the meaning assigned to such term in Section 2.08(d)(i) of this
Agreement.




          “Incremental Facilities” has the meaning assigned to such term in Section 2.08(d)(i)
of this Agreement.




          “Incremental Revolving Facility” has the meaning assigned to such term in Section
2.08(d)(i) of this Agreement.




          “Incremental Term Facility” has the meaning assigned to such term in Section
2.08(d)(i) of this Agreement.




          “Incremental Term Loans” has the meaning assigned to such term in Section 2.08(d)(i)
of this Agreement.




          “Increasing Lender” has the meaning assigned to such term in Section 2.08(d)(i).







12









 








          “Indebtedness” of any Person means, without duplication, (a) all obligations of such
Person for borrowed money (whether by loan, the issuance and sale of debt securities or the sale of
property to another Person subject to an understanding or agreement, contingent or otherwise, to
repurchase such property from such Person), (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person under conditional sale
or other title retention agreements relating to property acquired by such Person, (d) all
obligations of such Person in respect of the deferred purchase price of property or services
(excluding accounts payable incurred in the ordinary course of business), (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person of
Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h) all obligations,
contingent or otherwise, of such Person as an account party in respect of letters of credit and
letters of guaranty, and (i) all obligations, contingent or otherwise, of such Person in respect of
bankers’ acceptances, provided that, to the extent outstanding on the Effective Date and
identified in Schedule 6.01, all amounts paid or received by the Borrower and its Subsidiaries
pursuant to a Tower Transaction, whether in the form of sale proceeds, capital lease payments,
maintenance charges, prepaid rent or otherwise (and however characterized on the consolidated
balance sheet of the Borrower) shall not constitute Indebtedness. The Indebtedness of any Person
shall include the Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result of such Person’s
ownership interest in or other relationship with such entity, except to the extent the terms of
such Indebtedness provide that such Person is not liable therefor.




          “Indemnified Taxes” means all Taxes, including any interest, additions to tax or
penalties applicable hereto, other than (a) Excluded Taxes and Other Taxes and (b) amounts
constituting penalties or interest imposed with respect to Excluded Taxes or Other Taxes.




          “Indentures” means the Borrower’s existing Indenture, dated as of October 1, 1998, the
First Supplemental Indenture, dated as of January 15, 1999, the Second Supplemental Indenture,
dated as of October 15, 2001, and any other indentures of the Borrower or its Subsidiaries in
effect from time to time.




          “Indenture Pari Passu Debt” means the amount of any Indebtedness (assuming all
relevant commitments to lend are fully drawn) of any Subsidiary of the Borrower other than
Indebtedness which is permitted to be secured by a “Permitted Lien” (or equivalent term) under any
of the Indentures.




          “Intellectual Property” has the meaning assigned to such term in Section 3.05(b).




          “Intercompany Indebtedness” means Indebtedness of the Borrower owing to any of its
Subsidiaries and of any Subsidiary owing to the Borrower or any other Subsidiary.




          “Interest Election Request” means a request by the Borrower to convert or continue a
Syndicated Borrowing in accordance with Section 2.07.




          “Interest Payment Date” means (a) with respect to any Base Rate Loan, each Quarterly
Date, (b) with respect to any Eurodollar Loan, the last Business Day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing
with an Interest Period of more than three months’ duration, each Business Day prior to the last
day of such Interest Period that occurs at intervals of three months’ duration after the first day
of such Interest Period and (c) with respect to any Fixed Rate Loan, the last day of the Interest
Period applicable to the Borrowing of which such Loan is a part and, in the case of a Fixed Rate
Borrowing with an Interest Period of more than 90 days’ duration (unless otherwise specified in the
applicable Competitive Bid Request), each day prior






13









 







to the last day of such Interest Period that occurs at intervals of 90 days’ duration after
the first day of such Interest Period, and any other dates that are specified in the applicable
Competitive Bid Request as Interest Payment Dates with respect to such Borrowing.




          “Interest Period” means (a) with respect to any Syndicated Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically corresponding day in
the calendar month that is one, two, three or six months (or, with the consent of each Lender of
the relevant Class, twelve months or a period shorter than one month) thereafter, as the Borrower
may elect, (b) for any Competitive Eurodollar Loan or Borrowing, the period commencing on the date
of such Loan or Borrowing and ending on the numerically corresponding day in the calendar month
that is one, two, three or six months thereafter, as specified in the applicable Competitive Bid
Request and (c) with respect to any Fixed Rate Borrowing, the period (which shall not be less than
7 days or more than 360 days) commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Bid Request; provided, that (i) 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, in the case of a Eurodollar Borrowing only, 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 and (ii) any Interest Period pertaining to a
Eurodollar Borrowing that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of such Interest Period)
shall end on the last Business Day of the last calendar month of such Interest Period. For purposes
hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and, in
the case of a Syndicated Loan, thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing. Notwithstanding the foregoing:





     (x) if any Interest Period for any Revolving Credit Borrowing would otherwise end after
the Revolving Credit Termination Date, such Interest Period shall end on the Revolving
Credit Termination Date, and




     (y) notwithstanding the foregoing clause (x), except with the consent of each Lender of
the applicable Class, no Interest Period shall have a duration of less than one month and,
if the Interest Period for any Eurodollar Loan would otherwise be a shorter period, such
Loan shall not be available hereunder as a Eurodollar Loan for such period.



          “Issuing Banks” mean (a) JPMorgan Chase Bank, N.A., (b) Citibank, N.A., (c) the other
Issuing Banks identified in the schedule set forth in Section 2.04(b) in their capacity as issuers
of Letters of Credit hereunder and (d) each other Lender that has been designated by the Borrower
as an “Issuing Bank” hereunder pursuant to a written instrument in form and substance reasonably
satisfactory to the Administrative Agent, and that has executed and delivered such written
instrument and agreed to such designation and been approved as an “Issuing Bank” by the
Administrative Agent in its reasonable discretion, each in its capacity as an issuer of Letters of
Credit hereunder.




          “Joinder Agreement” means a Joinder Agreement substantially in the form of Exhibit B
by an entity that, pursuant to Section 5.09, is required to become a “Subsidiary Guarantor” under
this Agreement.




          “LC Applicable Percentage” means, with respect to any Issuing Bank, for purposes of
Section 2.04(b), the percentage of the total “Maximum LC Exposure” of all of the Issuing Banks
represented by such Issuing Bank’s “Maximum LC Exposure”.




          “LC Disbursement” means a payment made by an Issuing Bank pursuant to a Letter of
Credit.





14











 





          “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of
all outstanding Letters of Credit at such time plus (b) the aggregate amount of all LC
Disbursements that have not yet been reimbursed by or on behalf of the Borrower at such time. The
LC Exposure of any Revolving Credit Lender at any time shall be its Applicable Percentage of the
total LC Exposure at such time.




          “Lenders” means (a) the Persons listed on Schedule 2.01, (b) any Person that shall
agree to become a party hereto as an “Assuming Lender” hereunder with a commitment to make
Revolving Credit Loans or Term Loans hereunder pursuant to Section 2.08(d) and (c) any other Person
that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such
Person that ceases to be a party hereto pursuant to an Assignment and Assumption.




          “Letter of Credit” means any letter of credit issued pursuant to this Agreement.




          “LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period,
the rate appearing on the LIBOR01 Page published by Reuters (or on any successor or substitute
page, or service providing quotations of interest rates applicable to dollar deposits in the London
interbank market comparable to those currently provided on such page, as determined by the
Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days
prior to the commencement of such Interest Period, as the rate for U.S. dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not available at such
time for any reason, then the “LIBO Rate” with respect to such Eurodollar Borrowing for such
Interest Period shall be the rate at which U.S. dollar deposits of $5,000,000, and for a maturity
comparable to such Interest Period, are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.




          “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset and (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title
retention agreement (or any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset.




          “Loan Documents” means, collectively, this Agreement, any promissory notes evidencing
Loans hereunder, the Subordination Agreement, any Joinder Agreement, any Accession Agreement, and
any amendment, waiver, supplement or other modification to any of the foregoing.




          “Loans” means any loans made by the Lenders to the Borrower pursuant to this
Agreement.




          “Margin” means, with respect to any Competitive Loan bearing interest at a rate based
on the LIBO Rate, the marginal rate of interest, if any, to be added to or subtracted from the LIBO
Rate to determine the rate of interest applicable to such Loan, as specified by the Lender making
such Loan in its related Competitive Bid.




          “Material Adverse Effect” means a material adverse effect on (a) the business, assets,
operations, property or condition (financial or otherwise) of the Borrower and its Subsidiaries,
taken as a whole, (b) the ability of the Borrower to perform any of its obligations under this
Agreement or the other Loan Documents or (c) the rights of or benefits available to the Lenders
under this Agreement and the other Loan Documents.







15









 








          “Material Indebtedness” means (a) the EDC Indebtedness and (b) Indebtedness (other
than the Loans or Letters of Credit) or obligations in respect of one or more Hedging Agreements,
of the Borrower (or of any Subsidiary of the Borrower, other than an Excluded Subsidiary) in an
aggregate principal amount exceeding $200,000,000. For purposes of determining Material
Indebtedness, the “principal amount” of the obligations of any Person in respect of any Hedging
Agreement at any time shall be the maximum aggregate amount (giving effect to any netting
agreements) that such Person would be required to pay if such Hedging Agreement were terminated at
such time.




          “Moody’s” means Moody’s Investors Service, Inc.




          “Moody’s Rating” means, as of any date of determination thereof, the rating most
recently published by Moody’s as the senior implied rating for the Borrower.




          “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.




          “NCI” means Nextel Communications, Inc.




          “Net Cash Proceeds” means, with respect to any Asset Sale or any Recovery Event, the
proceeds thereof (other than proceeds received by a Non-Guarantor Subsidiary that is prohibited
from transferring such proceeds to an Obligor pursuant to restrictions imposed by (i) any
applicable law or (ii) the terms of any agreement to which such Person is a party on the Effective
Date or, if such Person is an Acquired Entity, on the date on which such Person becomes a
Subsidiary) in the form of cash and cash equivalents (including any such proceeds received by way
of deferred payment of principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received), net of attorneys’ fees,
accountants’ fees, investment banking fees, amounts required to be applied to the repayment of
Indebtedness secured by a Lien expressly permitted hereunder on any asset that is the subject of
such Asset Sale or Recovery Event and other fees and expenses incurred in connection therewith and
net of taxes paid or reasonably estimated to be payable as a result thereof (after taking into
account any available tax credits or deductions and any tax sharing arrangements).




          “Net Cash Proceeds Statement” has the meaning assigned to such term in sub-clause (y)
of Section 2.10(b)(ii).




          “Non-Guarantor Subsidiary” means any Subsidiary of the Borrower that is not a
Subsidiary Guarantor.




          “Obligations” means, collectively, (i) the principal of and interest on the Loans and
all fees, indemnification payments and other amounts whatsoever, whether direct or indirect,
absolute or contingent, now or hereafter from time to time owing to any Guaranteed Party by the
Borrower under this Agreement and any other Loan Document and from time to time owing to any
Guaranteed Party by any Obligor under any of the Loan Documents (including any and all amounts in
respect of Letters of Credit), and all other obligations of the Obligors under the Loan Documents
(including the obligations of the Borrower under Section 9.14 and the obligations of the Subsidiary
Guarantors under Section 9.15) and (ii) at the election of the Obligor Representative, all
obligations of the Obligors to any Guaranteed Party (or any Affiliate thereof) under any Hedging
Agreement entered into in the ordinary course of business and not for speculative purposes, in each
case including all interest and expenses accrued or incurred subsequent to the commencement of any
bankruptcy or insolvency proceedings with respect to any Obligor, whether or not such interest or
expenses are allowed as a claim in such proceeding.







16









 








          “Obligor Representative” means the Borrower, in its capacity as Obligor Representative
pursuant to Section 1.05.




          “Obligors” means, collectively, the Borrower and the Subsidiary Guarantors.




          “Other Taxes” means any and all present or future stamp or documentary taxes or any
other excise or property taxes, charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement and
the other Loan Documents, including any interest, additions to tax or penalties applicable hereto,
provided that there shall be excluded from “Other Taxes” all Excluded Taxes.




          “Parent” means, with respect to any Lender, the Person as to which such Lender is,
directly or indirectly, a subsidiary.




          “Participant” has the meaning assigned to such term in Section 9.04(e)(i).




          “Participant Register” has the meaning assigned to such term in Section 9.04(e)(i).




          “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA
and any successor entity performing similar functions.




          “Permitted Encumbrances” means:





     (a) Liens imposed by law for taxes, assessments and governmental charges or levies that
are not yet due or are being contested in compliance with Section 5.04;




     (b) carriers’, warehousemen’s, mechanics’, landlord’s, lessor’s, materialmen’s,
repairmen’s and other Liens imposed by law, arising in the ordinary course of business that
(i) secure obligations that are not overdue by more than 60 days or (ii) are being contested
in compliance with Section 5.04;




     (c) pledges and deposits made in the ordinary course of business in compliance with
workers’ compensation, unemployment insurance and other social security laws or regulations
or to secure public or statutory obligations;




     (d) pledges and deposits to secure the performance of bids, trade contracts, leases,
statutory obligations, surety and appeal bonds, performance bonds and other obligations of a
like nature, in each case in the ordinary course of business;




     (e) easements, zoning restrictions, rights-of-way and similar encumbrances on real
property imposed by law or arising in the ordinary course of business that do not secure any
monetary obligations and do not materially detract from the value of the affected property
or interfere with the ordinary conduct of business of the Borrower and its Subsidiaries;




     (f) subleases of property with respect to which the Borrower or its Subsidiary is the
primary lessee, to the extent such subleases arise in the ordinary course of business and do
not interfere in any material respect with the business of the Borrower and its Subsidiaries
(taken as a whole);



17









 






     (g) licenses and sublicenses of Intellectual Property, to the extent such licenses and
sublicenses either exist as of the Effective Date or thereafter arise in the ordinary course
of business and are consistent in all material respects with prior practice; and




     (h) precautionary Uniform Commercial Code filings made with respect to equipment or
vehicles leased to the Borrower in the ordinary course of business under operating leases
(i.e. leases not giving rise to Capital Lease Obligations);


provided that the term “Permitted Encumbrances” shall not include any Lien securing
Indebtedness.




          “Permitted Securitization” means any transaction or series of transactions that may be
entered into by the Borrower or any of its Subsidiaries pursuant to which such Person may sell or
convey Accounts to any Receivables Entity, provided that (i) there shall be no recourse under any
such securitization to the Borrower or any of its Subsidiaries other than pursuant to Standard
Securitization Undertakings and (ii) no Default shall have occurred and be continuing either
immediately before or after giving effect to such securitization.




          “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental Authority or other entity.




          “Plan” means any employee pension benefit plan (other than a Multiemployer Plan)
subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA,
and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated,
would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of
ERISA.




          “Prime Rate” means the rate of interest per annum publicly announced from time to time
by the bank functioning as Administrative Agent hereunder, as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.




          “Pro Rata Subsidiary Guarantor Share” has the meaning assigned to such term in Section
9.15(f).




          “Quarterly Dates” means the last Business Day of March, June, September and December
in each year, the first of which shall be the first such day after the date of this Agreement.




          “Rating” means the Moody’s Rating or the S&P Rating.




          “Receivables Entity” means a special purpose Person that engages in no activities
other than in connection with the financing of Accounts pursuant to a Permitted Securitization.




          “Recovery Event” means any settlement of or payment in respect of any property or
casualty insurance claim or any condemnation proceeding arising after the Effective Date relating
to any asset of the Borrower or any of its Subsidiaries; provided that “Recovery Event” shall not
include (i) the proceeds of business interruption insurance and (ii) any Recovery Event (or series
of related Recovery Events) with respect to assets having a fair market value of less than
$20,000,000.




          “Register” has the meaning assigned to such term in Section 9.04.







18









 








          “Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, trustees, officers, employees, agents and advisors of such
Person and such Person’s Affiliates.




          “Required Lenders” means Lenders having Revolving Credit Exposures, outstanding Term
Loans (if any) and unused Commitments representing more than 50% of the sum of the total Revolving
Credit Exposures, outstanding Term Loans and unused Commitments at such time; provided
that, for purposes of declaring the Loans to be due and payable pursuant to Article VII, and for
all purposes after the Loans become due and payable pursuant to Article VII or the Revolving Credit
Commitments expire or terminate, the outstanding Competitive Loans of the Lenders shall be included
in their respective Revolving Credit Exposures in determining the Required Lenders. The “Required
Lenders” of a particular Class of Loans means Lenders having Revolving Credit Exposures,
outstanding Term Loans and unused Commitments of such Class representing more than 50% of the total
Revolving Credit Exposures, outstanding Term Loans and unused Commitments of such Class at such
time.




          “Restricted Payment” means any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests of the Borrower or any of its
Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such Equity Interests or any option, warrant or other right to
acquire any such Equity Interests.




          “Revolving Credit Availability Period” means the period from and including the
Effective Date to but excluding the earlier of (a) the Revolving Credit Termination Date and (b)
the date of termination of the Revolving Credit Commitments.




          “Revolving Credit Commitment” means, with respect to each Lender, the commitment of
such Lender to make Revolving Credit Loans and to acquire participations in Letters of Credit
hereunder, as such commitment may be (a) reduced or increased from time to time pursuant to
Sections 2.08 and 2.10 and (b) reduced or increased from time to time pursuant to assignments by or
to such Lender pursuant to Section 9.04. The amount of each Lender’s Revolving Credit Commitment as
of the Effective Date is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant
to which such Lender shall have assumed its Revolving Credit Commitment, as applicable. The
aggregate amount of the Revolving Credit Commitments as of the Effective Date is $2,087,500,000.




          “Revolving Credit Exposure” means, with respect to any Revolving Credit Lender at any
time, the sum of the outstanding principal amount of such Lender’s Revolving Credit Loans and its
LC Exposure at such time.




          “Revolving Credit Lender” means (a) a Lender that has a Revolving Credit Commitment
set forth opposite its name on Schedule 2.01 and (b) thereafter, the Lenders from time to time
holding Revolving Credit Loans and Revolving Credit Commitments, after giving effect to any
assignments thereof permitted by Section 9.04.




          “Revolving Credit Loan” means a Loan made pursuant to Section 2.01 that utilizes the
Revolving Credit Commitments.




          “Revolving Credit Termination Date” means October 31, 2013 (or, if such date is not a
Business Day, the next preceding Business Day).




          “RF Emissions” means radio frequency emissions governed by FCC rules.







19









 








          “S&P” means Standard & Poor’s Rating Services, a Division of The McGraw-Hill
Companies, Inc.




          “S&P Rating” means, as of any date of determination thereof, the rating most recently
published by S&P as the consolidated corporate credit rating for the Borrower.




          “Sale and Leaseback Transaction” means any transaction or arrangement by the Borrower
or any of its Subsidiaries, directly or indirectly, with any Person whereby such Borrower or such
Subsidiary shall sell or transfer any property, real or personal, used or useful in the business of
the Borrower or any Subsidiary thereof, whether now owned or hereafter acquired, and thereafter the
Borrower or any Subsidiary thereof rents or leases such property or other property intended to be
used for substantially the same purpose or purposes as the property being sold or transferred.




          “SCC” means Sprint Capital Corporation.




          “Significant Subsidiary” means (a) any Subsidiary that has consolidated assets or
revenues greater than or equal to 5% of the total consolidated assets or revenues of the Borrower
and its Subsidiaries determined as of the end of (or, with respect to such revenues, for the period
of four fiscal quarters ending with) the fiscal quarter or fiscal year most recently ended for
which financial statements are available and (b) each Subsidiary that directly or indirectly owns
or controls any other Significant Subsidiary.




          “Special Counsel” means Simpson Thacher & Bartlett LLP, in its capacity as special
counsel to the Administrative Agent and the Arrangers.




          “Standard Securitization Undertakings” means representations, warranties, covenants
and indemnities entered into by the Borrower or any of its Subsidiaries in connection with any
Permitted Securitization that are customary in non-recourse securitization transactions of
comparable receivables.




          “Statutory Reserve Rate” means for the Interest Period for any Syndicated Eurodollar
Borrowing, a fraction (expressed as a decimal), the numerator of which is the number one and the
denominator of which is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for eurocurrency funding
(currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve
percentages shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available from time to time
to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate
shall be adjusted automatically on and as of the effective date of any change in any reserve
percentage.




          “Subordinated Indebtedness” means Indebtedness of the Borrower or any of its
Subsidiaries that is subordinated in whole or in part to the Obligations.




          “Subordination Agreement” means the Subordination Agreement dated as of May 21, 2010
among the Borrower and each of its Subsidiaries from time to time substantially in the form of
Exhibit C.




          “Subordination Terms” has the meaning assigned to such term in the Subordination
Agreement.







20









 








          “Subsidiary” means, with respect to any Person (the “parent”) at any date, any
corporation, limited liability company, partnership, association or other entity (a) of which
securities or other ownership interests representing more than 50% of the ordinary voting power or,
in the case of a partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, 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. It is understood that unless otherwise noted herein, each reference to “Subsidiary”
shall be a reference to a Subsidiary of the Borrower. Notwithstanding the foregoing, each of the
WiMax Joint Venture Entities shall be deemed not to be a “Subsidiary” of the Borrower, unless and
until such time as any such WiMax Joint Venture Entity becomes a wholly owned direct or indirect
Subsidiary of the Borrower.




          “Subsidiary Guarantor” means each Person identified under the caption “SUBSIDIARY
GUARANTORS” on the signature pages hereto and each Person that becomes a “Subsidiary Guarantor”
after the Effective Date pursuant to Section 5.09 but excluding any Person that is released from
its guarantee obligations pursuant to Section 9.02 from the date of such release.




          “Syndicated”, when used in reference to any Loan or Borrowing, refers to whether the
Class of such Loan or Borrowing is Revolving Credit or Term, as opposed to Competitive.




          “Syndication Agent” means Citibank, N.A. in its capacity as syndication agent.




          “Taxes” means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental Authority.




          “Term Loan” means any Incremental Term Loans made pursuant to Section 2.08(b).




          “Term Loan Lender” means the Lenders from time to time holding Term Loans, pursuant to
any Incremental Term Facilities added in accordance with Section 2.08(d).




          “Total Indebtedness” means, as of any day, all Indebtedness of the Borrower and its
Subsidiaries, determined on a consolidated basis without duplication in accordance with GAAP.




          “Total Indebtedness Ratio” means, as of the last day of any fiscal quarter, the ratio
of (a) Total Indebtedness to (b) EBITDA for the period of four quarters ending on such day.




          “Total Interest Coverage Ratio” means, as of the last day of any fiscal quarter, the
ratio of (a) EBITDA for the period of four quarters ending on such day to (b) Total Interest
Expense for such period.




          “Total Interest Expense” means, for any period, interest expense of the Borrower and
its Subsidiaries with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries
as determined on a consolidated basis in accordance with GAAP, minus interest income received by
the Borrower or any Subsidiary in such period.




          “Tower Transaction” means a sale, lease or other disposition or transfer of wireless
telecommunications towers and the real property and other assets associated with such towers, and
the leasing by the Borrower or any of its Subsidiaries of space on such towers.




          “Transactions” means, with respect to the Obligors, the execution, delivery and
performance by the each Obligor of the Loan Documents to which it is a party, and, with respect to
the






21









 







Borrower, the borrowing of Loans and the use of the proceeds thereof and the issuance of
Letters of Credit hereunder.




          “Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of
interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the
Adjusted LIBO Rate or the Adjusted Base Rate or, in the case of a Competitive Loan or Borrowing,
the LIBO Rate or a Fixed Rate.




          “U.S. dollars” or “$” refers to lawful money of the United States of America.




          “WiMax Agreement” means the Equityholders’ Agreement, dated November 28, 2008, among
Clearwire Corporation, Sprint HoldCo, LLC, Eagle River Holdings, LLC, Intel Capital Wireless
Investment Corporation 2009A, Intel Capital Wireless Investment Corporation 2008B, Intel Capital
Wireless Investment Corporation 2008C, Intel Capital Corporation, Intel Capital (Cayman)
Corporation, Middlefield Ventures, Inc., Comcast Wireless Investment I, Inc., Comcast Wireless
Investment II, Inc., Comcast Wireless Investment III, Inc., Comcast Wireless Investment IV, Inc.,
Comcast Wireless Investment V, Inc., Google Inc., TWC Wireless Holdings I LLC, TWC Wireless
Holdings II LLC, TWC Wireless Holdings III LLC, BHN Spectrum Investments, LLC.




          “WiMax Joint Venture Entities” means each of Clearwire Corporation, Clearwire
Communications LLC and any of their respective subsidiaries.




          “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.




          SECTION 1.02 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be
classified and referred to by Class (e.g., a “Competitive Loan”), by Type (e.g., a “Eurodollar
Loan”) or by Class and Type (e.g., a “Competitive Eurodollar Loan”). Borrowings also may be
classified and referred to by Class (e.g., a “Competitive Borrowing”), by Type (e.g., a “Eurodollar
Borrowing”) or by Class and Type (e.g., a “Competitive Eurodollar Borrowing”).




          SECTION 1.03 Terms Generally. The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without limitation”. The word “will”
shall be construed to have the same meaning and effect as the word “shall”. Unless the context
requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference herein to any Person
shall be construed to include such Person’s successors and assigns, (c) the words “herein”,
“hereof’ and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of,
and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights.




          SECTION 1.04 Accounting Terms: GAAP. Except as otherwise expressly provided herein, all terms of
an accounting or financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided that, if the Borrower notifies the Administrative Agent that the






22









 







Borrower requests an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request
an amendment to any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such provision amended in
accordance herewith. Notwithstanding any other provision contained herein, all terms of an
accounting or financial nature used herein shall be construed, and all computations of amounts and
ratios referred to herein shall be made, without giving effect to any election under Statement of
Financial Accounting Standards 159 (or any other Financial Accounting Standard having a similar
result or effect) to value any Indebtedness or other liabilities of the Borrower or any Subsidiary
at “fair value”, as defined therein.




          SECTION 1.05 Appointment of the Borrower as Obligor Representative. For purposes of this Agreement
and the other Loan Documents, each Obligor (i) authorizes the Borrower to make such requests, give
such notices or furnish such certificates to the Administrative Agent or any Lender as may be
required or permitted by this Agreement and any other Loan Document for the benefit of such Obligor
and (ii) authorizes the Administrative Agent and each Lender to treat such requests, notices,
certificates or consents given or made by the Borrower to have been made, given or furnished by the
applicable Obligor for purposes of this Agreement and any other Loan Document. The Administrative
Agent and each Lender shall be entitled to rely on each such request, notice, certificate or
consent made, given or furnished by the Obligor Representative pursuant to the provisions of this
Agreement or any other Loan Document as being made or furnished on behalf of, and with the effect
of irrevocably binding, such Obligor. Each warranty, covenant, agreement and undertaking made on
its behalf by the Obligor Representative shall be deemed for all purposes to have been made by each
Obligor and shall be binding upon and enforceable against each Obligor to the same extent as if the
same had been made directly by each Obligor.




          SECTION 1.06 Treatment of Hedging Agreements. For purposes hereof, it is understood that any
obligations of the Borrower to a Person arising under a Hedging Agreement entered into at the time
such Person (or an Affiliate thereof) is a “Lender” party to this Agreement shall nevertheless
continue to constitute Obligations for purposes hereof (but only to the extent designated as
“Obligations” by the Obligor Representative pursuant to the definition of such term),
notwithstanding that such Person (or its Affiliate) may have assigned all of its Loans and other
interests in this Agreement and, therefore, at the time a claim is to be made in respect of such
obligations, such Person (or its Affiliate) is no longer a “Lender” party to this Agreement,
provided that neither such Person nor any such Affiliate shall be entitled to the benefits of this
Agreement (and such obligations shall not be Obligations hereunder) unless, at or prior to the time
it ceased to be a Lender hereunder, it shall have notified the Administrative Agent in writing of
the existence of such agreement.




ARTICLE II

THE CREDITS




          SECTION 2.01 Commitments. Revolving Credit Loans. Subject to the terms and conditions set
forth herein, each Revolving Credit Lender agrees to make Revolving Credit Loans to the Borrower
from time to time during the Revolving Credit Availability Period in an aggregate principal amount
that will not result in (i) such Lender’s Revolving Credit Loans exceeding such Lender’s Revolving
Credit Commitment or (ii) the sum of the total Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans exceeding the total Revolving Credit
Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein,
the Borrower may






23









 







borrow, prepay and reborrow Revolving Credit Loans. Notwithstanding any other provision of
this Agreement, more than one Syndicated Borrowing may be made on the same day.




          SECTION 2.02 Loans and Borrowings.




          (a) Obligation of Lenders. Each Syndicated Loan of a particular Class shall be made
as part of a Borrowing consisting of Loans of such Class made by the Lenders ratably in accordance
with their respective Commitments of such Class. Each Competitive Loan shall be made in accordance
with the procedures set forth in Section 2.05. The failure of any Lender to make any Loan required
to be made by it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments and Competitive Bids of the Lenders are several and no Lender shall be
responsible for any other Lender’s failure to make Loans as required.




          (b) Type of Loans. Subject to Section 2.13, (i) each Syndicated Borrowing shall be
comprised entirely of Base Rate Loans or Eurodollar Loans as the Borrower may request in accordance
herewith and (ii) each Competitive Borrowing shall be comprised entirely of Eurodollar Loans or
Fixed Rate Loans as the Borrower may request in accordance herewith. Each Lender at its option may
make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to
make such Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this Agreement.




          (c) Minimum Amounts. At the commencement of each Interest Period for a Eurodollar
Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $10,000,000. At the time that each Base Rate Borrowing is made, such
Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less
than $5,000,000; provided that (i) a Base Rate Borrowing of Loans of any Class may be in an
aggregate amount that is equal to the entire unused balance of the total Commitments of such Class
and (ii) a Revolving Credit Base Rate Borrowing may be in an amount that is required to finance the
reimbursement of an LC Disbursement as contemplated by Section 2.04(e). Each Competitive Borrowing
shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than
$5,000,000. Borrowings of more than one Type and Class may be outstanding at the same time.




          SECTION 2.03 Requests for Borrowings. To request a Syndicated Borrowing, the Borrower shall notify
the Administrative Agent of such request by telephone (a) in the case of a Syndicated Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of
the proposed Borrowing (except that in the case of a Eurodollar Borrowing on the Effective Date,
such notice shall be given not later than 1:00 p.m., New York City time, two Business days before
the date of the proposed Borrowing) or (b) in the case of a Base Rate Borrowing, not later than
11:00 a.m., New York City time, on the Business Day of the proposed Borrowing. Each such telephonic
Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy
to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative
Agent and signed by the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:





     (i) the aggregate amount of such Borrowing;




     (ii) the date of such Borrowing, which shall be a Business Day;




     (iii) whether such Borrowing is to be a Base Rate Borrowing or a Eurodollar Borrowing;



24









 






     (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be
applicable thereto, which shall be a period contemplated by the definition of the term
“Interest Period”; and




     (v) the location and number of the account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.06.


If no election as to the Type of Syndicated Borrowing is specified, then the requested Borrowing
shall be a Base Rate Borrowing. If no Interest Period is specified with respect to any requested
Syndicated Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest
Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance
with this Section 2.03, the Administrative Agent shall advise each Lender of the details thereof
and of the amount of such Lender’s Loan to be made as part of the requested Borrowing.




          Anything herein to the contrary notwithstanding, the initial Borrowing hereunder shall be a
Base Rate Borrowing, except to the extent that this Agreement shall have been duly executed and
delivered by each of the parties hereto at least three Business Days prior to the Effective Date
and the Borrower has given timely notice of a Eurodollar Borrowing after such execution and
delivery (or, alternatively, the Borrower shall have executed and delivered to the Administrative
Agent a pre-funding letter in form and substance satisfactory to the Administrative Agent pursuant
to which the Borrower has agreed to reimburse the Lenders for any costs of the type described in
Section 2.15 in the event that, for any reason, the Effective Date and initial Loans do not occur
on the date specified in such pre-funding letter).




          SECTION 2.04 Letters of Credit.




          (a) General. Subject to the terms and conditions set forth herein, in addition to the
Revolving Credit Loans provided for in Section 2.01, the Borrower may request the issuance of
Letters of Credit for the Borrower’s or any Subsidiary’s account by any Issuing Bank (or, if agreed
to by the respective Issuing Banks, by more than one Issuing Bank under a Letter of Credit
providing for several liability of the Issuing Banks issuing such Letter of Credit), in a form
reasonably acceptable to the relevant Issuing Bank(s), at any time and from time to time during the
Revolving Credit Availability Period. Letters of Credit issued hereunder shall constitute
utilization of the Revolving Credit Commitments. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Obligor Representative on behalf of the Borrower or
Subsidiary to, or entered into by the Borrower or any Subsidiary with, one or more Issuing Banks
relating to any Letters of Credit, the terms and conditions of this Agreement shall control.




          (b) Notice of Issuance, Amendment, Renewal. Extension; Certain Conditions. To request
the issuance of a Letter of Credit (or the amendment, renewal or extension of an outstanding Letter
of Credit), the Borrower shall hand deliver or telecopy (or transmit by electronic communication,
if arrangements for doing so have been approved by the respective Issuing Bank(s)) to one or more
Issuing Bank(s) selected by it and to the Administrative Agent (reasonably in advance of the
requested date of issuance, amendment, renewal or extension) a notice requesting the issuance of a
Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, the date
of issuance, amendment, renewal or extension, the date on which such Letter of Credit is to expire
(which shall comply with paragraph (c) of this Section 2.04), the amount of such Letter of Credit,
the identity of the Borrower or Subsidiary for whose account such Letter of Credit is to be issued,
the name and address of the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the respective Issuing
Bank(s), the Borrower also shall submit a letter of credit application on the standard form of such
Issuing Bank(s) in connection with any request






25









 







for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only
if (and upon issuance, amendment, renewal or extension of each Letter of Credit the Borrower shall
be deemed to represent and warrant that), after giving effect to such issuance, amendment, renewal
or extension (i) the aggregate LC Exposure of all of the Issuing Banks (determined for these
purposes without giving effect to the participations therein of the Revolving Credit Lenders
pursuant to paragraph (d) of this Section 2.04) shall not exceed $1,770,000,000 (or if the
Revolving Credit Commitments have been increased to a higher amount pursuant to Section 2.08(d),
such higher amount), (ii) the sum of the total Revolving Credit Exposure plus the aggregate
principal amount of outstanding Competitive Loans shall not exceed the total Revolving Credit
Commitments and (iii) the aggregate LC Exposure of each Issuing Bank (so determined) shall not
exceed the amount that such Issuing Bank has agreed shall be its “Maximum LC Exposure”. Any Issuing
Bank listed in the table below hereby agrees that its “Maximum LC Exposure” shall be the amount set
forth opposite the name of such Issuing Bank in such table:




	 	 	 	 	 
	Issuing Bank	 	Maximum LC Exposure	 
	JPMorgan Chase Bank, N.A.
	 	$	557,550,000	 
	Citibank, N.A.
	 	$	557,550,000	 
	Bank of America, N.A.
	 	$	252,667,500	 
	Barclays Bank PLC
	 	$	252,667,500	 
	Wells Fargo
	 	$	149,565,000	 





The “Maximum LC Exposure” of any Issuing Bank that becomes such after the date hereof pursuant to a
designation by the Borrower as contemplated in the definition of “Issuing Banks” shall be the
amount specified in the written instrument contemplated by said definition. The “Maximum LC
Exposure” of any Issuing Bank may be increased at any time pursuant to a written instrument
executed and delivered between the Borrower, such Issuing Bank and the Administrative Agent. In no
event shall any Revolving Credit Lender be obligated to increase its Maximum LC Exposure upon an
increase of Revolving Credit Commitments pursuant to Section 2.08(d). Concurrently with any
reduction of the Revolving Credit Commitments pursuant to Section 2.10, the “Maximum LC Exposure”
of each Issuing Bank shall be automatically reduced by an amount equal to such Issuing Bank’s LC
Applicable Percentage of the amount of such reduction.




          (c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of
business on the date that is five Business Days prior to the Revolving Credit Termination Date,
provided that in the case of any Letter of Credit having a term of longer than 12 months,
the respective Issuing Bank(s) may request that such Letter of Credit include customary early
termination rights (which shall in any event permit the respective beneficiary thereof to draw the
full amount of such Letter of Credit upon receipt of notice of termination from such Issuing
Bank(s)).




          (d) Participations. By the issuance of a Letter of Credit (or an amendment to a
Letter of Credit increasing the amount thereof) by any Issuing Bank(s), and without any further
action on the part of such Issuing Bank(s) or the Lenders, such Issuing Bank(s) hereby grant(s) to
each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from such Issuing
Bank(s), a participation in such Letter of Credit equal to such Revolving Credit Lender’s
Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely
and unconditionally agrees to pay to the Administrative Agent, for the account of such Issuing
Bank(s), such Revolving Credit Lender’s Applicable Percentage of each LC Disbursement made by such
Issuing Bank(s) and not reimbursed by the Borrower on the date due as provided in paragraph (e) of
this Section 2.04, or of any reimbursement payment required to be refunded to the Borrower for any
reason. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is absolute and
unconditional and shall not be affected by any circumstance






26









 







whatsoever, including any amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or termination of the Commitments, and that
each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.




          (e) Reimbursement. If an Issuing Bank shall make any LC Disbursement in respect of a
Letter of Credit, the Borrower shall reimburse such Issuing Bank in respect of such LC Disbursement
by paying to the Administrative Agent an amount equal to such LC Disbursement (together with
interest on the amount of such LC Disbursement for the period from the date of such LC Disbursement
to but excluding the date of such reimbursement at a rate per annum equal to the Adjusted Base Rate
plus the Applicable Rate) not later than 12:00 noon, New York City time, (i) for any Letter
of Credit with a face amount of $20,000,000 or more, on the Business Day that the Borrower receives
notice of such LC Disbursement if such notice is received prior to 10:00 a.m., New York City time,
or the Business Day immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time or (ii) for any other Letter of Credit, on the second
Business Day immediately following the day that the Borrower receives notice of such LC
Disbursement, provided that, if such LC Disbursement is not less than $1,000,000, the
Borrower may, subject to the conditions to borrowing set forth herein, request in accordance with
Section 2.03 that such payment be financed with a Revolving Credit Base Rate Borrowing in an
equivalent amount and, to the extent so financed, the Borrower’s obligation to make such payment
shall be discharged and replaced by the resulting Revolving Credit Base Rate Borrowing.




          If the Borrower fails to make such payment when due, the Administrative Agent shall notify
each Revolving Credit Lender of the applicable LC Disbursement, the payment then due from the
Borrower in respect thereof and such Revolving Credit Lender’s Applicable Percentage thereof.
Promptly following receipt of such notice, each Revolving Credit Lender shall pay to the
Administrative Agent its Applicable Percentage of the payment then due from the Borrower, in the
same manner as provided in Section 2.06 with respect to Revolving Credit Loans made by such Lender
(and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of the Revolving Credit
Lenders), and the Administrative Agent shall promptly pay to the respective Issuing Bank the
amounts so received by it from the Revolving Credit Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this paragraph, the
Administrative Agent shall distribute such payment to the respective Issuing Bank or, to the extent
that the Revolving Credit Lenders have made payments pursuant to this paragraph to reimburse such
Issuing Bank, then to such Lenders and such Issuing Bank as their interests may appear. Any
payment made by a Revolving Credit Lender pursuant to this paragraph to reimburse the Issuing Bank
for any LC Disbursement shall not constitute a Loan and shall not relieve the Borrower of its
obligation to reimburse such LC Disbursement. Notwithstanding anything to the contrary in this
paragraph, if the Borrower fails to make a payment in respect of an LC Disbursement when due, or if
the Borrower so instructs the Administrative Agent, the Administrative Agent shall apply the funds
provided as cash collateral pursuant to Section 2.04(i) or Section 2.19(c) to reimburse the Issuing
Banks and Revolving Credit Lenders hereunder, as applicable.




          (f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as
provided in paragraph (e) of this Section 2.04 shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any
Letter of Credit, or any term or provision therein, (ii) any draft or other document presented
under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any
statement therein being untrue or inaccurate in any respect, (iii) payment by the respective
Issuing Bank(s) under a Letter of Credit against presentation of a draft or other document that
does not comply strictly with the terms of such Letter of Credit and (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the
provisions of this Section 2.04, constitute a legal or equitable discharge of the Borrower’s
obligations hereunder.







27









 








          Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their Related
Parties, shall have any liability or responsibility by reason of or in connection with the issuance
or transfer of any Letter of Credit by such Issuing Bank or any payment or failure to make any
payment thereunder (irrespective of any of the circumstances referred to in the preceding
sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the respective Issuing Bank;
provided that the foregoing shall not be construed to excuse an Issuing Bank from liability
to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by such Issuing Bank’s gross negligence or willful
misconduct when determining whether drafts and other documents presented under a Letter of Credit
comply with the terms thereof. The parties hereto expressly agree that:





     (i) each Issuing Bank may accept documents that appear on their face to be in
substantial compliance with the terms of a Letter of Credit without responsibility for
further investigation, regardless of any notice or information to the contrary, and may make
payment upon presentation of documents that appear on their face to be in substantial
compliance with the terms of such Letter of Credit;




     (ii) each Issuing Bank shall have the right, in its sole discretion, to decline to
accept such documents and decline to make such payment if such documents are not in strict
compliance with the terms of such Letter of Credit; and




     (iii) this sentence shall establish the standard of care to be exercised by an Issuing
Bank when determining whether drafts and other documents presented under a Letter of Credit
comply with the terms thereof (and the parties hereto hereby waive, to the extent permitted
by applicable law, any standard of care inconsistent with the foregoing).



          (g) Disbursement Procedures. The Issuing Bank(s) for any Letter of Credit shall,
promptly following its receipt thereof, examine all documents purporting to represent a demand for
payment under such Letter of Credit. Such Issuing Bank(s) shall promptly notify the Administrative
Agent and the Borrower by telephone (confirmed by telecopy) of such demand for payment and whether
such Issuing Bank(s) have made or will make an LC Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the Borrower of its obligation
to reimburse such Issuing Bank(s) and the Revolving Credit Lenders with respect to any such LC
Disbursement.




          (h) Interim Interest. If the Issuing Bank(s) for any Letter of Credit shall make any
LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date
such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and
including the date such LC Disbursement is made to but excluding the date that the Borrower
reimburses such LC Disbursement, at the rate per annum then applicable to Revolving Credit Base
Rate Loans; provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section 2.04, then Section 2.12(d) shall apply. Interest accrued
pursuant to this paragraph shall be for the account of such Issuing Bank(s), except that interest
accrued on and after the date of payment by any Revolving Credit Lender pursuant to paragraph (e)
of this Section 2.04 to reimburse such Issuing Bank(s) shall be for the account of such Lender to
the extent of such payment.





     (i) Cash Collateralization. If:



28









 






     (i) an Event of Default shall occur and be continuing and the Borrower receives notice
from the Administrative Agent or the Required Lenders for the Lenders having Revolving
Credit Exposures demanding the deposit of cash collateral pursuant to this paragraph, or




     (ii) the Borrower shall be required to provide cover for LC Exposure pursuant to
Section 2.10(b),




then, in each case, the Borrower shall immediately deposit into a cash collateral account in
the name and under the control of the Administrative Agent an amount in cash equal to, in
the case of an Event of Default, the LC Exposure as of such date plus any accrued and unpaid
interest thereon and, in the case of cover pursuant to Section 2.10(b), the amount required
under Section 2.10(b); provided that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately due and
payable, without demand or other notice of any kind, upon the occurrence of any Event of
Default with respect to the Borrower described in clause (h) or (i) of Article VII. Such
deposit shall be held by the Administrative Agent as collateral for the LC Exposure under
this Agreement.




For purposes of this Agreement, providing “cash collateral” or to “cash collateralize” the
Letters of Credit means to pledge and deposit with or deliver to the Administrative Agent,
for the benefit of the Issuing Banks and the Revolving Credit Lenders, as collateral for the
LC Exposure, cash or deposit account balances in the currency in which the Letters of Credit
are denominated and in an amount equal to the amount required to be cash collateralized
pursuant to this Section 2.04(i) and pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent and the Borrower. The Borrower hereby
grants to the Administrative Agent, for the benefit of each Issuing Bank and the Revolving
Credit Lenders, a security interest in all such cash, deposit accounts and all balances
therein and all proceeds of the foregoing. All cash collateral shall be maintained in
blocked, interest bearing deposit account with the Administrative Agent.



          (j) Existing Letters of Credit. Pursuant to Section 2.04 of the Existing Credit
Agreement, the Issuing Banks have issued various “Letters of Credit” under and as defined in the
Existing Credit Agreement. On the Effective Date, subject to the satisfaction of the conditions
precedent set forth in Article IV, each of such “Letters of Credit” under the Existing Credit
Agreement shall automatically, and without any action on the part of any Person, become a Letter of
Credit hereunder (the Borrower hereby assuming the obligations of any “Borrower” under the Existing
Credit Agreement in respect of such “Letters of Credit”), and each of the “Issuing Banks” under the
Existing Credit Agreement that is an Issuing Bank hereunder hereby unconditionally releases each
“Revolving Credit Lender” under the Existing Credit Agreement from any liability under such
“Revolving Credit Lender’s” participation under the Existing Credit Agreement in respect of such
Letter of Credit.




          (k) Issuing Bank Agreements; Quarterly Reports to Lenders. Unless otherwise requested
by the Administrative Agent, each Issuing Bank shall report in writing to the Administrative Agent
(i) on the first Business Day of each week, the daily activity (set forth by day) in respect of
Letters of Credit during the immediately preceding week, including all issuances, extensions,
amendments and renewals, all expirations and cancellations and all disbursements and
reimbursements, (ii) on or prior to each Business Day on which such Issuing Bank expects to issue,
amend, renew or extend any Letter of Credit, the date of such issuance, amendment, renewal or
extension, and the aggregate face amount of the Letters of Credit to be issued, amended, renewed or
extended by it and outstanding after giving effect to such issuance, amendment, renewal or
extension (and whether the amount thereof changed), it being understood that such Issuing Bank
shall not permit any issuance, renewal, extension or amendment resulting in an increase in the
amount of any Letter of Credit to occur without first obtaining written






29









 







confirmation from the Administrative Agent that it is then permitted under this Agreement,
(iii) on each Business Day on which such Issuing Bank makes any LC Disbursement, the date of such
LC Disbursement and the amount of such LC Disbursement, (iv) on any Business Day on which the
Borrower fails to reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on
such day, the date of such failure, and the amount of such LC Disbursement and (v) on any other
Business Day, such other information as the Administrative Agent shall reasonably request.




          Promptly following the end of each fiscal quarter, the Administrative Agent shall furnish to
the Lenders information regarding all outstanding Letters of Credit as of the end of such fiscal
quarter.




          SECTION 2.05 Competitive Bid Procedure.




          (a) Requests for Bids by the Borrower. Subject to the terms and conditions set forth
herein, from time to time during the Revolving Credit Availability Period, the Borrower may request
Competitive Bids and may (but shall not have any obligation to) accept Competitive Bids and borrow
Competitive Loans; provided that the sum of the total Revolving Credit Exposures
plus the aggregate principal amount of outstanding Competitive Loans at any time shall not
exceed the total Revolving Credit Commitments. To request Competitive Bids, the Borrower shall
notify the Administrative Agent of such request by telephone, in the case of a Eurodollar
Borrowing, not later than 11:00 a.m., New York City time, four Business Days before the date of the
proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York
City time, one Business Day before the date of the proposed Borrowing; provided that the
Borrower may submit up to (but not more than) three Competitive Bid Requests on the same day, but a
Competitive Bid Request shall not be made within five Business Days after the date of any previous
Competitive Bid Request, unless any and all such previous Competitive Bid Requests shall have been
withdrawn or all Competitive Bids received in response thereto rejected. Each such telephonic
Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Competitive Bid Request in a form approved by the Administrative
Agent and signed by the Borrower. Each such telephonic and written Competitive Bid Request shall
specify the following information in compliance with Section 2.03:





     (i) the aggregate amount of the requested Borrowing;




     (ii) the date of such Borrowing, which shall be a Business Day;




     (iii) whether such Borrowing is to be a Eurodollar Borrowing or a Fixed Rate Borrowing;




     (iv) the initial Interest Period for such Borrowing, which shall be a period
contemplated by the definition of the term “Interest Period”; and




     (v) the location and number of the account to which funds are to be disbursed, which
shall comply with the requirements of Section 2.06(a).


Promptly following receipt of a Competitive Bid Request in accordance with this Section, the
Administrative Agent shall notify the Revolving Credit Lenders of the details thereof by telecopy,
inviting the Revolving Credit Lenders to submit Competitive Bids.




          (b) Making of Bids by Lenders. Each Revolving Credit Lender may (but shall not have
any obligation to) make one or more Competitive Bids to the Borrower in response to a Competitive
Bid Request. Each Competitive Bid by a Revolving Credit Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by telecopy, in the case of a






30









 







Eurodollar Competitive Borrowing, not later than 9:30 a.m., New York City time, three Business
Days before the proposed date of such Competitive Borrowing, and in the case of a Fixed Rate
Borrowing, not later than 9:30 a.m., New York City time, on the proposed date of such Competitive
Borrowing. Competitive Bids that do not conform substantially to the form approved by the
Administrative Agent may be rejected by the Administrative Agent, and the Administrative Agent
shall notify the applicable Revolving Credit Lender as promptly as practicable. Each Competitive
Bid shall specify (i) the principal amount (which shall be a minimum of $5,000,000 and an integral
multiple of $1,000,000 and which may equal the entire principal amount of the Competitive Borrowing
requested by the Borrower) of the Competitive Loan or Loans that the Lender is willing to make,
(ii) the Competitive Bid Rate or Rates at which the Lender is prepared to make such Loan or Loans
(expressed as a percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last day thereof.




          (c) Notification of Bids by Administrative Agent. The Administrative Agent shall
promptly notify the Borrower by telecopy of the Competitive Bid Rate and the principal amount
specified in each Competitive Bid and the identity of the Revolving Credit Lender that shall have
made such Competitive Bid.




          (d) Acceptance of Bids by the Borrower. Subject only to the provisions of this
paragraph, the Borrower may accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by the Administrative
Agent, whether and to what extent it has decided to accept or reject each Competitive Bid, in the
case of a Eurodollar Competitive Borrowing, not later than 10:30 a.m., New York City time, three
Business Days before the date of the proposed Competitive Borrowing, and in the case of a Fixed
Rate Borrowing, not later than 11:00 a.m., New York City time, on the proposed date of the
Competitive Borrowing; provided that (i) the failure of the Borrower to give such notice
shall be deemed to be a rejection of each Competitive Bid, (ii) the Borrower shall not accept a
Competitive Bid made at a particular Competitive Bid Rate if the Borrower rejects a Competitive Bid
made at a lower Competitive Bid Rate, (iii) the aggregate amount of the Competitive Bids accepted
by the Borrower shall not exceed the aggregate amount of the requested Competitive Borrowing
specified in the related Competitive Bid Request, (iv) to the extent necessary to comply with
clause (iii) above, the Borrower may accept Competitive Bids at the same Competitive Bid Rate in
part, which acceptance, in the case of multiple Competitive Bids at such Competitive Bid Rate,
shall be made pro rata in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) above, no Competitive Bid shall be accepted for a Competitive Loan unless
such Competitive Loan is in a minimum principal amount of $5,000,000 and an integral multiple of
$1,000,000; provided further that if a Competitive Loan must be in an amount less
than $5,000,000 because of the provisions of clause (iv) above, such Competitive Loan may be for a
minimum of $1,000,000 or any integral multiple thereof, and in calculating the pro rata allocation
of acceptances of portions of multiple Competitive Bids at a particular Competitive Bid Rate
pursuant to clause (iv) above, the amounts shall be rounded to integral multiples of $1,000,000 in
a manner determined by the Borrower. A notice given by the Borrower pursuant to this paragraph
shall be irrevocable.




          (e) Notification of Acceptances by the Administrative Agent. The Administrative Agent
shall promptly notify each bidding Revolving Credit Lender by telecopy whether or not its
Competitive Bid has been accepted (and, if so, the amount and Competitive Bid Rate so accepted),
and each successful bidder will thereupon become bound, subject to the terms and conditions hereof,
to make the Competitive Loan in respect of which its Competitive Bid has been accepted.




          (f) Bids by the Administrative Agent. If the Administrative Agent shall elect to
submit a Competitive Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the





31












 




Borrower at least one quarter of an hour earlier than the time by which the other Lenders are
required to submit their Competitive Bids to the Administrative Agent pursuant to paragraph (b) of
this Section.




          SECTION 2.06 Funding of Borrowings.



          (a) Funding by Lenders. Each Lender shall make each Loan to be made by it hereunder
on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, New
York City time, to the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an account of the
Borrower maintained with the Administrative Agent in New York City and designated by the Borrower
in the applicable Borrowing Request or Competitive Bid Request; provided that Revolving
Credit Base Rate Loans made to finance the reimbursement of an LC Disbursement under any Letter of
Credit as provided in Section 2.04(e) shall be remitted by the Administrative Agent to the
respective Issuing Bank for such Letter of Credit.



          (b) Presumption by Administrative Agent. Unless the Administrative Agent shall have
received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender’s share of such Borrowing, the
Administrative Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section 2.06 and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made
its share of the applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including the date such amount is
made available to the Borrower to but excluding the date of payment to the Administrative Agent, at
the Federal Funds Effective Rate. If such Lender pays such amount to the Administrative Agent, then
such amount shall constitute such Lender’s Loan included in such Borrowing.



          SECTION 2.07 Interest Elections for Syndicated Borrowings.



          (a) Elections by Borrower. Each Syndicated Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Syndicated Eurodollar
Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.
Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Syndicated Eurodollar Borrowing, may elect Interest Periods
therefor, all as provided in this Section 2.07. The Borrower may elect different options for
continuations and conversions with respect to different portions of the affected Borrowing, in
which case each such portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Competitive Borrowings, which may not be
converted or continued.



          (b) Notice of Elections. To make an election pursuant to this Section 2.07, the
Borrower shall notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower was requesting a Borrowing
of the Type resulting from such election to be made on the effective date of such election. Each
such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by
hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a
form approved by the Administrative Agent and signed by the Borrower.



32









 





          (c) Information in Election Notices. Each telephonic and written Interest Election
Request shall specify the following information in compliance with Section 2.03:




     (i) the Borrowing to which such Interest Election Request applies and, if different
options for continuations or conversions are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which
case the information to be specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);




     (ii) the effective date of the election made pursuant to such Interest Election
Request, which shall be a Business Day;




     (iii) whether the resulting Borrowing is to be a Base Rate Borrowing or a Eurodollar
Borrowing; and




     (iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period to be
applicable thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term “Interest Period”.


If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an
Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one
month’s duration.




          (d) Notice by Administrative Agent to Lenders. Promptly following receipt of an
Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof
and of such Lender’s portion of each resulting Borrowing.



          (e) Presumption if No Notice. If the Borrower fails to deliver a timely Interest
Election Request with respect to a Syndicated Eurodollar Borrowing prior to the end of the Interest
Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of
such Interest Period such Borrowing shall be converted to a Base Rate Borrowing. Notwithstanding
any contrary provision hereof, if the Borrower shall default in the payment of any principal of or
interest on any Loan, or any reimbursement obligation in respect of any LC Disbursement, and the
Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so
long as such default is continuing (i) no outstanding Syndicated Borrowing may be converted to or
continued as a Syndicated Eurodollar Borrowing and (ii) unless repaid, each Syndicated Eurodollar
Borrowing shall be converted to a Base Rate Borrowing at the end of the Interest Period applicable
thereto.



          SECTION 2.08 Termination. Reduction and Incremental Facilities.



          (a) Termination of Commitments. Unless previously terminated, the Revolving Credit
Commitments shall terminate at the close of business on the Revolving Credit Termination Date.



          (b) Voluntary Termination or Reduction. The Borrower may at any time terminate, or
from time to time reduce, the Revolving Credit Commitments; provided that (i) each
reduction of the Revolving Credit Commitments shall be in an amount that is an integral multiple of
$1,000,000 and not less than $5,000,000 and (ii) the Borrower shall not terminate or reduce the
Revolving Credit Commitments if, after giving effect to any concurrent prepayment of Loans in
accordance with Section 2.10, the sum of the Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans would exceed the total Revolving Credit
Commitments.



33









 





          (c) Notice of Termination or Reduction. The Borrower shall notify the Administrative
Agent of any election to terminate or reduce Commitments under paragraph (b) of this Section 2.08
at least three Business Days prior to the effective date of such termination or reduction,
specifying such election and the effective date thereof. Promptly following receipt of any notice,
the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by
the Borrower pursuant to this Section 2.08 shall be irrevocable; provided that a notice of
termination of Commitments delivered by the Borrower may state that such notice is conditioned upon
the effectiveness of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if
such condition is not satisfied. Any termination or reduction of Commitments shall be permanent.
Each reduction of Commitments of any Class shall be made ratably among the Lenders in accordance
with their respective Commitments of such Class.



          (d) Increase of Revolving Credit Commitments; Addition of Incremental Term Loans.




     (i) Requests for Incremental Facilities. The Borrower may, at any time,
request that the existing Lenders or other lending entities provide additional revolving
commitments hereunder (any such increase, an “Incremental Revolving Facility”)
and/or add one or more term loan facilities hereunder (each, an “Incremental Term
Facility”; any term loans thereunder, “Incremental Term Loans”; the Incremental
Term Facilities, together with any Incremental Revolving Facility, the “Incremental
Facilities”), (x) by having an existing Lender (each an “Increasing Lender”)
agree to increase its then existing Revolving Credit Commitment or to provide Incremental
Term Loans and/or (y) by adding as a new Lender hereunder (each an “Assuming
Lender”) any Person which shall agree to provide a Revolving Credit Commitment or
Incremental Term Loans hereunder, in each case with the consent of the Administrative Agent
and, in the case of any Incremental Revolving Facility, each Issuing Bank. For avoidance of
doubt, no existing Lender shall be required to agree to provide or participate in any
Incremental Facility. Any request for an Incremental Facility shall be made by notice to
the Administrative Agent given by the Borrower specifying the amount and type of the
relevant Incremental Facility, the existing or new Lender or Lenders providing such
Incremental Facility and the date on which such increase is to be effective (the
“Incremental Date”), which shall be a Business Day at least three Business Days
after delivery of such notice; provided that:




     (A) the minimum amount of Incremental Term Loans or the increase in Revolving
Credit Commitments on any Incremental Date shall be $50,000,000 (and integral
multiples of $25,000,000 in excess thereof);




     (B) immediately after giving effect to any Incremental Facility, the sum of (i)
the total amount of Revolving Commitments then in effect, (ii) the outstanding
principal balance of any Incremental Term Loans, (iii) the outstanding principal
balance of the EDC Indebtedness and (iv) any other Indebtedness (assuming all
relevant commitments to lend are fully drawn) incurred after the Effective Date and
permitted to exist under Section 6.01 (excluding Indebtedness permitted pursuant to
paragraphs (c), (g), (i), (j) and (o) thereof) that is Indenture Pari Passu Debt,
shall not exceed the amount equal to 15% of Consolidated Net Tangible Assets;




     (C) no Default shall have occurred and be continuing on such Incremental Date
or shall result from the proposed Incremental Facility;



34









 






     (D) the representations and warranties contained in this Agreement shall be
true and correct on and as of the Incremental Date as if made on and as of such date
(or, if any such representation or warranty is expressly stated to have been made as
of a specific date, as of such specific date);




     (E) the Borrower shall be in pro forma compliance with the financial covenants
set forth in Section 6.05 on and as of the Incremental Date; and




     (F) (i) in the case of any Incremental Term Facility, the maturity date thereof
shall not be earlier than 90 days following the Revolving Credit Termination Date
and the amortization payable thereunder shall not exceed 1% per annum of the
principal amount of the Incremental Term Loans thereunder and (ii) in the case of
any Incremental Revolving Facility, the maturity date or commitment termination date
thereof shall not be earlier than the Revolving Credit Termination Date and such
Incremental Revolving Facility shall not require any scheduled commitment reductions
prior to the Revolving Credit Termination Date (other than such reductions as are
applicable to the Revolving Credit Loans as in effect prior to such Incremental
Revolving Facility).




     (ii) Effectiveness of Incremental Facilities. Each Assuming Lender, if any,
shall become a Lender hereunder as of the Incremental Date; the Revolving Credit Commitment
of each Increasing Lender and Assuming Lender shall be increased or effective, if and as
applicable, on the Incremental Date; and each Increasing Lender and Assuming Lender shall be
obligated to make Incremental Term Loans, if applicable, on the Incremental Date; in each
case, provided that:




     (x) the Administrative Agent shall have received on or prior to 1:00 p.m., New
York City time, on such Incremental Date a certificate of a Financial Officer of the
Borrower stating that each of the applicable conditions to such Incremental
Facilities set forth in this Section 2.08(d) has been satisfied; and




     (y) with respect to each Assuming Lender and each Increasing Lender, the
Administrative Agent shall have received, on or prior to 1:00 p.m., New York City
time, on such Incremental Date, an executed Incremental Agreement.




     (iii) Recordation into Register. Upon its receipt of an agreement referred to
in clause (ii)(y) above executed by an Assuming Lender or Increasing Lender, as applicable,
together with the certificate referred to in clause (ii)(x) above, the Administrative Agent
shall, if such agreement has been completed, (x) accept such agreement, (y) record the
information contained therein in the Register and (z) give prompt notice thereof to the
Borrower.




     (iv) Adjustments of Borrowings upon Effectiveness of Incremental Facilities.
If any Revolving Credit Loans shall be outstanding, the Borrower will borrow from each of
the Increasing Lenders and Assuming Lenders providing the applicable Incremental Revolving
Facility, and such Increasing Lenders and Assuming Lenders shall have made Revolving Credit
Loans to the Borrower (in the case of Revolving Credit Eurodollar Loans, with Interest
Period(s) ending on the date(s) of any then outstanding Interest Period(s)), and
(notwithstanding the provisions in this Agreement requiring that borrowings and prepayments
be made ratably in accordance with the principal amounts of the Loans of any Class held by
the Lenders) the Borrower shall prepay the Revolving Credit Loans held by the other
Revolving Credit Lenders (other than the Increasing Lenders and Assuming Lenders) in such
amounts as may be necessary, together with any amounts payable under Section 2.15 as a
result of such prepayment, so that



35









 







after giving effect to such Revolving Credit Loans and prepayments, the Revolving
Credit Loans (and Interest Period(s) of Revolving Credit Eurodollar Loan(s)) shall be held
by the Revolving Credit Lenders pro rata in accordance with the respective amounts of their
Revolving Credit Commitments (as modified hereby).



          SECTION 2.09 Repayment of Loans: Evidence of Debt.



          (a) Revolving Credit Loans. The Borrower hereby unconditionally promises to pay to
the Administrative Agent for the account of each Revolving Credit Lender the then unpaid principal
amount of such Lender’s Revolving Credit Loans in full on the Revolving Credit Termination Date.



          (b) Incremental Term Loans. The Borrower hereby unconditionally promises to pay to
the Administrative Agent for the account of any Increasing Lender or Assuming Lender providing
Incremental Term Loans the principal of the Incremental Term Loans on the applicable maturity date.



          (c) Competitive Loans. The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of the applicable Lender or Lenders that made the Competitive
Bid Loans the then unpaid principal amount of each Competitive Loan on the last day of the Interest
Period applicable to such Loan.



          (d) Maintenance of Loan Accounts by Lenders. Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan held by such Lender, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder.



          (e) Maintenance of Loan Accounts by Administrative Agent. The Administrative Agent
shall maintain accounts in which it shall record (i) the amount of each Loan outstanding hereunder,
the Class and 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 Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the
account of the Lenders and each Lender’s share thereof.



          (f) Effect of Loan Accounts. The entries made in the accounts maintained pursuant to
paragraph (d) or (e) of this Section 2.09 shall be prima facie evidence of the existence and
amounts of the obligations recorded therein, provided 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 obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement.



          (g) Promissory Notes. Any Lender may request that Loans held by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, 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) and in a form approved by the Administrative Agent. Thereafter,
the Loans evidenced by such promissory note and interest thereon shall at all times (including
after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such
form payable to the order of the payee named therein (or, if such promissory note is a registered
note, to such payee and its registered assigns).



          SECTION 2.10 Prepayment of Loans.



          (a) Optional Prepayment. The Borrower shall have the right at any time and from time
to time to prepay any Borrowing of any Class in whole or in part, subject to prior notice in



36









 




accordance with paragraph (c) of this Section 2.10, provided that the Borrower shall
not have the right to prepay any Competitive Loan without the prior consent of the Lender thereof.
Revolving Credit Loans may be prepaid by the Borrower in aggregate amounts that are (x) in the case
of Eurodollar Loans, an integral multiple of $1,000,000 and not less than $10,000,000 and (y) in
the case of Adjusted Base Rate Loans, an integral multiple of $500,000 and not less than
$5,000,000.




          (b) Mandatory Prepayments. The Borrower shall prepay the Loans hereunder and the
Commitments shall be subject to automatic reduction, as follows:




     (i) Revolving Credit Loans. The Borrower shall from time to time prior to the
Revolving Credit Termination Date prepay the Revolving Credit Loans and Competitive Loans
(and/or provide cover for LC Exposure as specified in Section 2.04(i)) in such amounts as
shall be necessary so that at all times the sum of the total Revolving Credit Exposures plus
the aggregate principal amount of all Competitive Loans do not exceed the total Revolving
Credit Commitments. Any prepayment pursuant to this paragraph shall be applied, first, to
Revolving Credit Loans outstanding, second, as cover for LC Exposure as specified in Section
2.04(i) and third, to Competitive Loans outstanding.




     (ii) All Loans, etc. The Borrower shall prepay the Loans hereunder and the
Commitments shall be subject to automatic permanent reduction, as follows:




     (x) Change in Control. Upon the occurrence of any Change in Control,
unless the Required Lenders of the respective Class shall elect otherwise, the
Borrower shall prepay the Loans hereunder in full (and provide cover for LC Exposure
as specified in Section 2.04(i)) plus any accrued and unpaid interest thereon, and
the Commitments hereunder of such Class shall be automatically terminated.




     (y) Asset Sales. Together with each delivery of financial statements
pursuant to Section 5.01(a) or 5.01(b), the Borrower shall deliver to the
Administrative Agent a statement (a “Net Cash Proceeds Statement”) setting
forth in reasonable detail the aggregate amount of Net Cash Proceeds received during
the last fiscal quarter covered by such financial statements (the “Current Net
Cash Proceeds”). If the aggregate amount of the Current Net Cash Proceeds when
taken together with the aggregate amount of Net Cash Proceeds received in prior
fiscal quarters as to which a prepayment of the Indebtedness hereunder or the EDC
Indebtedness has not yet been made under this paragraph (other than as a result of
the proviso hereto or the requirement to only use 50% of Excess Disposition Proceeds
to make prepayments) shall exceed $1,000,000,000 in the aggregate (such excess
amount, the “Excess Disposition Proceeds”) then, not later than five
Business Days after the delivery of the applicable Net Cash Proceeds Statement (or
if such Net Cash Proceeds Statement shall not be delivered in conformity with the
terms hereof, five Business Days after the date such Net Cash Proceeds Statement was
required to be delivered), the Borrower shall apply 50% of such Excess Disposition
Proceeds towards the prepayment of (A) the Loans and the reduction of the
Commitments as set forth in sub-clause (z) of this paragraph (and/or provide cover
for LC Exposure as specified in Section 2.04(i)) and (B) the EDC Indebtedness (but
only to the extent required under the EDC Credit Agreement), pro rata based on their
respective outstanding principal amount of loans thereunder as of the end of the
period covered by the applicable financial statements (treating, for such purpose,
as outstanding loans, the aggregate outstanding LC Exposure and the unused portion
of the Commitments); provided that the Borrower shall not be required to
make a prepayment under this sub-clause (y) to the extent that (1) the Borrower
states in the applicable Net Cash Proceeds



37









 







Statement that all or any portion of such Net Cash Proceeds (or an equivalent
amount) is to be reinvested (or has been reinvested) in any assets used or to be
used by the Borrower and its Subsidiaries in the same or similar or related line of
business, and (2) such Net Cash Proceeds (or an equivalent amount) are or have been
or will be in fact so applied to such reinvestment within twelve months of the
related Asset Sale or Recovery Event.




     (z) Application. All amounts to be applied in connection with
prepayments and Commitment reductions hereunder made pursuant to sub-clause (x) and
(y) of this paragraph shall be applied to the permanent reduction of the aggregate
amount of the Revolving Credit Commitments whether or not any Loans are outstanding
(and to the extent that, after giving effect to such reduction, the sum of the total
Revolving Credit Exposures plus the aggregate outstanding principal amount of all
Competitive Loans would exceed the total Revolving Credit Commitments, the Borrower
shall first, prepay Revolving Credit Loans, second, provide cover for LC Exposure as
specified in Section 2.04(i) and third, prepay Competitive Loans in an aggregate
amount equal to such excess).



          (c) Notification of Prepayments. The Borrower shall notify the Administrative Agent
by telephone (confirmed by telecopy) of any prepayment under paragraph (a) of this Section 2.10 (i)
in the case of prepayment of a Syndicated Eurodollar Borrowing or of a Competitive Borrowing, not
later than 11:00 a.m., New York City time, three Business Days before the date of prepayment or
(ii) in the case of prepayment of a Base Rate Borrowing, not later than 11:00 a.m., New York City
time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid;
provided that, if a notice of prepayment is given in connection with a conditional notice
of termination of Commitments as contemplated by Section 2.08, then such notice of prepayment may
be revoked if such notice of termination is revoked in accordance with Section 2.08. Promptly
following receipt of any such notice relating to a Syndicated Borrowing or Competitive Borrowing,
the Administrative Agent shall advise the Lenders holding Loans of such Class of the contents
thereof.



          (d) Prepayments Accompanied by Interest. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.12.



          SECTION 2.11 Fees.



          (a) Commitment Fee. The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee, which shall accrue at the a rate per annum equal to the
Applicable Rate, on the daily average unused amount of the Revolving Credit Commitment of such
Lender during the period from and including the Effective Date to but excluding the date on which
such Revolving Credit Commitment terminates. Accrued commitment fees shall be payable in arrears on
each Quarterly Date and on the date on which the Revolving Credit Commitments terminate, commencing
on the first such date to occur after the date hereof. All commitment fees shall be computed on
the basis of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).



          (b) Letter of Credit Fees. The Borrower agrees to pay with respect to Letters of
Credit outstanding hereunder the following fees:




     (i) to the Administrative Agent for the account of each Revolving Credit Lender a
participation fee with respect to its participations in Letters of Credit, which shall
accrue at a rate per annum equal to the Applicable Rate used in determining interest on
Revolving Credit



38









 







Eurodollar Loans, on the average daily amount of such Lender’s LC Exposure (excluding
any portion thereof attributable to unreimbursed LC Disbursements) during the period from
and including the Effective Date to but excluding the later of the date on which such
Lender’s Revolving Credit Commitment terminates and the date on which there shall no longer
be any Letters of Credit outstanding hereunder; and




     (ii) to each Issuing Bank (x) a fronting fee, which shall accrue at the rate of 1/4 of
1% per annum on the average daily amount of the LC Exposure of such Issuing Bank (determined
for these purposes without giving effect to the participations therein of the Revolving
Credit Lenders pursuant to paragraph (d) of Section 2.04, and excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date of termination of the Revolving Credit
Commitments and the date on which there shall no longer be any Letters of Credit of such
Issuing Bank outstanding hereunder, and (y) such Issuing Bank’s standard fees with respect
to the issuance, amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder.


Accrued participation fees and fronting fees shall be payable in arrears on each Quarterly Date and
on the date the Revolving Credit Commitments terminate, commencing on the first such date to occur
after the date hereof, provided that any such fees accruing after the date on which the
Revolving Credit Commitments terminate shall be payable on demand. All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last day).




          (c) Agency Fees. The Borrower agrees to pay to the Administrative Agent, for its own
respective account, fees payable in the amounts and at the times separately agreed upon in writing
upon between the Borrower and the Administrative Agent.



          (d) Payment of Fees. All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution to the Lenders entitled
thereto. Fees paid shall not be refundable under any circumstances, absent manifest error in the
determination thereof.



          SECTION 2.12 Interest.



          (a) Base Rate Borrowings. The Loans comprising each Base Rate Borrowing shall bear
interest at a rate per annum equal to the Adjusted Base Rate plus the Applicable Rate.



          (b) Eurodollar Borrowings. The Loans comprising each Eurodollar Borrowing shall bear
interest at a rate per annum equal to (i) in the case of a Revolving Credit Loan, the Adjusted LIBO
Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate; (ii) in
the case of an Incremental Term Facility, the Adjusted LIBO Rate for the Interest Period in effect
for such Borrowing plus the Applicable Rate, or (iii) in the case of a Competitive Loan,
the LIBO Rate for the Interest Period in effect for such Borrowing plus (or minus
as applicable) the Margin applicable to such Loan.



          (c) Fixed Rate Borrowings. Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.



          (d) Default Interest. Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by the Obligors hereunder is not paid when due,
whether at stated maturity, upon acceleration, by mandatory prepayment or otherwise, such overdue
amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue



39









 




principal of any Loan, 2.00% plus the rate otherwise applicable to such Loan as
provided above, (ii) in the case of any interest on any Loan, 2.00% plus the rate
applicable to the Loan in respect of which such interest is payable and (iii) in the case of any
fee or other amount that does not relate to a Loan of a particular type, at a rate per annum equal
to 2.00% plus the Adjusted Base Rate.




          (e) Payment of Interest. Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to
paragraph (d) of this Section 2.12 shall be payable on demand, (ii) in the event of any repayment
or prepayment of any Eurodollar Loan, accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment, (iii) in the event of any conversion
of any Syndicated Eurodollar Loan prior to the end of the current Interest Period therefor, accrued
interest on such Loan shall be payable on the effective date of such conversion and (iv) all
accrued interest on Revolving Credit Loans shall be payable upon termination of the Revolving
Credit Commitments.



          (f) Computation. All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Adjusted Base Rate at times when the
Adjusted Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days
(or 366 days in a leap year), and in each case shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). The applicable Adjusted Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.



          SECTION 2.13 Alternate Rate of Interest. If prior to the commencement of any Interest
Period for a Eurodollar Borrowing:




     (a) the Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining the
Adjusted LIBO Rate (in the case of a Syndicated Eurodollar Borrowing) or the LIBO Rate (in
the case of a Competitive Eurodollar Borrowing) for such Interest Period; or




     (b) if such Borrowing is of a particular Class of Loans, the Administrative Agent is
advised by the Required Lenders of such Class (or, in the case of a Competitive Eurodollar
Loan, any Lender that is required to make such Loan) that the Adjusted LIBO Rate (in the
case of a Syndicated Eurodollar Borrowing) or the LIBO Rate (in the case of a Competitive
Eurodollar Borrowing), as applicable, for such Interest Period will not adequately and
fairly reflect the cost to such Lenders of making or maintaining their respective Loans (or
its Loan) of such Class included in such Borrowing for such Interest Period;


then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by
telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent
notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer
exist, (i) any Interest Election Request that requests the conversion of any Syndicated Borrowing
to, or continuation of any Syndicated Borrowing as, a Syndicated Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Syndicated Eurodollar Borrowing, such
Syndicated Borrowing shall be made as a Base Rate Borrowing and (iii) any request by the Borrower
for a Eurodollar Competitive Borrowing shall be ineffective; provided that if the
circumstances giving rise to such notice do not affect all the Lenders, then requests by the
Borrower for Competitive Eurodollar Borrowings may be made to Lenders that are not affected
thereby.




          SECTION 2.14 Increased Costs.



40









 






     (a) Increased Costs Generally. If any Change in Law shall:




     (i) impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit extended by,
any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate) or
Issuing Bank; or




     (ii) impose on any Lender or Issuing Bank or the London interbank market any other
condition affecting this Agreement or Eurodollar Loans or Fixed Rate Loans made by such
Lender or any Letter of Credit or participation therein; or


and the result of any of the foregoing shall be to increase the cost to such Lender (or, in the
case of (ii) to such Lender or Issuing Bank) of making or maintaining any Eurodollar Loan or Fixed
Rate Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such
Lender or any Issuing Bank of participating in, issuing or maintaining any Letter of Credit or to
reduce the amount of any sum received or receivable by such Lender or such Issuing Bank hereunder
(whether of principal, interest or otherwise), then the Borrower will pay to such Lender or such
Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender
or such Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered.




          (b) Capital Requirements. If any Lender or Issuing Bank reasonably determines that
any Change in Law regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender’s or such Issuing Bank’s capital or on the capital of such Lender’s or
Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such
Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or
Issuing Bank’s holding company could have achieved but for such Change in Law (taking into
consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or Issuing
Bank’s holding company with respect to capital adequacy), then from time to time the Borrower will
pay to such Lender or Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or Issuing Bank, or such Lender’s or Issuing Bank’s holding company, for any
such reduction suffered.



          (c) Certificates from Lenders. A certificate of a Lender or Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or Issuing Bank or its holding
company, as the case may be, as specified in paragraph (a) or (b) of this Section 2.14 shall be
delivered to the Borrower and shall be conclusive so long as it reflects a reasonable basis for the
calculation of the amounts set forth therein and does not contain any manifest error. The Borrower
shall pay such Lender or Issuing Bank the amount shown as due on any such certificate within 10
days after receipt thereof.



          (d) Delay in Requests. Failure or delay on the part of any Lender or Issuing Bank to
demand compensation pursuant to this Section 2.14 shall not constitute a waiver of such Lender’s or
Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be
required to compensate a Lender or Issuing Bank pursuant to this Section 2.14 for any increased
costs or reductions incurred more than six months prior to the date that such Lender or Issuing
Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender’s or Issuing Bank’s intention to claim compensation
therefor; provided further that, if the Change in Law giving rise to such increased
costs or reductions is retroactive, then the six-month period referred to above shall be extended
to include the period of retroactive effect thereof.



          (e) Competitive Loans. Notwithstanding the foregoing provisions of this Section, a
Lender shall not be entitled to compensation pursuant to this Section in respect of any Competitive
Loan



41









 




if the Change in Law that would otherwise entitle it to such compensation shall have been
publicly announced prior to submission of the Competitive Bid pursuant to which such Loan was made.




          SECTION 2.15 Break Funding Payments. In the event of (a) the payment of any principal
of any Eurodollar Loan or Fixed Rate Loan other than on the last day of an Interest Period
applicable thereto (including as a result of an Event of Default), (b) the conversion of any
Syndicated Eurodollar Loan other than on the last day of the Interest Period applicable thereto,
(c) the failure to borrow, convert, continue or prepay any Syndicated Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice is permitted to be
revocable and is revoked in accordance herewith), (d) the failure to borrow any Competitive Loan
after accepting the Competitive Bid to make such Loan or (e) the assignment of any Syndicated
Eurodollar Loan other than on the last day of the Interest Period applicable thereto or of any
Competitive Loan as a result of a request by the Borrower pursuant to Section 2.18, then, in any
such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable
to such event.



          In the case of a Eurodollar Loan, the loss to any Lender attributable to any such event shall
be deemed to include an amount determined by such Lender to be equal to the excess, if any, of (i)
the amount of interest that such Lender would pay for a deposit equal to the principal amount of
such Loan for the period from the date of such payment, conversion, failure or assignment to the
last day of the then current Interest Period for such Loan (or, in the case of a failure to borrow,
convert or continue, the duration of the Interest Period that would have resulted from such
borrowing, conversion or continuation) if the interest rate payable on such deposit were equal to
the Adjusted LIBO Rate (in the case of a Syndicated Eurodollar Loan) or the LIBO Rate (in the case
of a Competitive Eurodollar Loan) for such Interest Period, over (ii) the amount of interest that
such Lender would earn on such principal amount for such period if such Lender were to invest such
principal amount for such period at the interest rate that would be bid by such Lender (or an
affiliate of such Lender) for U.S. dollar deposits from other banks in the eurodollar market at the
commencement of such period. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section 2.15 shall be delivered to the Borrower
and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown
as due on any such certificate within 10 days after receipt thereof.



          SECTION 2.16 Taxes.



          (a) Payments Free of Taxes. Any and all payments by or on account of any obligation
of the Obligors hereunder or under any other Loan Document shall be made free and clear of, and
without deduction for any Indemnified Taxes or Other Taxes (except to the extent that, after
request by the Obligor Representative, the respective Lender shall have failed to deliver the
documents referred to in paragraph (f) of this Section 2.16); provided that if the Obligors
shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the
sum payable shall be increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.16) the Administrative Agent,
Lender or Issuing Bank (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Obligors shall make such deductions and (iii)
the Obligors shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.



          (b) Other Taxes. In addition the Obligors shall pay, or at the option of the
Administrative Agent reimburse it for the payment of, any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.



          (c) Indemnification by Obligors. The Obligors shall indemnify the Administrative
Agent, each Lender and each Issuing Bank, within 30 days after written demand therefor, for the
full



42









 




amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section 2.16) paid by the
Administrative Agent, such Lender or Issuing Bank, as the case may be (and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto during the period prior to the
Obligors making the payment demanded under this paragraph (c)), whether or not such Indemnified
Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered to the Obligor
Representative by a Lender or an Issuing Bank, or by the Administrative Agent on its own behalf or
on behalf of a Lender or an Issuing Bank, shall be conclusive absent manifest error.




          (d) Indemnification of the Administrative Agent. Each Lender shall indemnify the
Administrative Agent within 10 days after the demand thereof, for the full amount of any Excluded
Taxes attributable to such Lender that are payable or paid by the Administrative Agent, and
together with all interest, penalties, reasonable costs and expenses arising therefrom or with
respect thereto, whether or not such Excluded Taxes were correctly or legally imposed or asserted
by the relevant Government Authority. A certificate as to the amount of such payment or liability
delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.



          (e) Receipt for Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Obligors to a Governmental Authority, the Obligor Representative shall
deliver to the Administrative Agent the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting such payment or
other evidence of such payment reasonably satisfactory to the Administrative Agent.



          (f) Forms Requirements.




     (i) Each Foreign Lender (or assignee or Participant, as applicable) shall deliver to
the Obligor Representative and the Administrative Agent (or, in the case of a Participant,
to the Lender from which the related participation shall have been purchased) two copies of
either U.S. Internal Revenue Service (“IRS”) Form W-8BEN, Form W-8ECI or Form W-8IMY
(together with any applicable underlying IRS forms), or, in the case of a Foreign Lender
claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the
Code with respect to payments of “portfolio interest”, a statement substantially in the form
of Exhibit D and the applicable IRS Form W-8, or any subsequent versions thereof or
successors thereto, properly completed and duly executed by such Foreign Lender claiming
complete exemption from, or a reduced rate of, U.S. federal withholding tax on payments
under this Agreement and the other Loan Documents. Such forms shall be delivered by each
Foreign Lender on or before the date it becomes a party to this Agreement (or, in the case
of any Participant, on or before the date such Participant purchases the related
participation) and from time to time thereafter upon the request of the Obligor
Representative or the Administrative Agent. In addition, each Foreign Lender shall deliver
such forms promptly upon the obsolescence or invalidity of any form previously delivered by
such Foreign Lender. Each Foreign Lender shall promptly notify the Obligor Representative
and the Administrative Agent at any time it determines that it is no longer in a position to
provide any previously delivered certificate to the Obligor Representative (or any other
form of certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Foreign Lender shall not be
required to deliver any form pursuant to this paragraph that such Foreign Lender is not
legally able to deliver.




     (ii) Any Lender that is entitled to an exemption from or reduction of non-U.S.
withholding tax under the law of the jurisdiction in which the Obligors are located, or any
treaty to which such jurisdiction is a party, with respect to payments under this Agreement
shall deliver



43









 







to the Obligor Representative (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law or reasonably requested by the Obligor Representative,
such properly completed and executed documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate; provided that such
Lender is legally entitled to complete, execute and deliver such documentation and in such
Lender’s judgment such completion, execution or submission would not materially prejudice
the legal or commercial position of such Lender.



          (g) Treatment of Certain Refunds. If the Administrative Agent, a Lender or an Issuing
Bank determines, in its reasonable discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by any Obligor or with respect to which any Obligor have
paid additional amounts pursuant to this Section, it shall pay to such Obligor an amount equal to
such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such
Obligor under this Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent, such Lender or such Issuing Bank, as
the case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that such Obligor, upon the request of the
Administrative Agent, such Lender or such Issuing Bank, agree to repay the amount paid over to such
Obligor (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or such Issuing Bank in the event the
Administrative Agent, such Lender or such Issuing Bank is required to repay such refund to such
Governmental Authority. This paragraph shall not be construed to require the Administrative Agent,
any Lender or any Issuing Bank to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to the Borrower or any other Person.




          SECTION 2.17 Payments Generally: Pro Rata Treatment: Sharing of Set-Offs.




          (a) Payments by Obligors. The Obligors shall make each payment required to be made by
it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or under
Section 2.14, 2.15 or 2.16, or otherwise) or under any other Loan Document prior to 12:00 noon, New
York City time, on the date when due, in immediately available funds, without set-off or
counterclaim. Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding Business Day for
purposes of calculating interest thereon. All such payments shall be made to the Administrative
Agent at such of its offices in New York City as shall be notified to the relevant parties from
time to time, except payments to be made directly to an Issuing Bank as expressly provided herein
and except that payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly to
the Persons entitled thereto. The Administrative Agent shall distribute any such payments received
by it for the account of any other Person to the appropriate recipient promptly following receipt
thereof, and the Obligors shall have no liability in the event timely or correct distribution of
such payments is not so made. If any payment hereunder shall be due on a day that is not a Business
Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case
of any payment accruing interest, interest thereon shall be payable for the period of such
extension. All payments hereunder shall be made in U.S. dollars.




          (b) Application if Payments Insufficient. If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to
pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then
due to such parties.







44









 








          (c) Pro Rata Treatment. Except to the extent otherwise provided herein. (i) each
Syndicated Borrowing of a particular Class from the Lenders under Section 2.01 hereof shall be made
from the relevant Lenders, each payment of commitment fees under Section 2.11 hereof in respect of
Commitments of a particular Class shall be made for account of the relevant Lenders, and each
termination or reduction of the amount of the Commitments of a particular Class under Section 2.08
hereof shall be applied to the respective Commitments of such Class of the relevant Lenders, pro
rata according to the amounts of their respective Commitments of such Class; (ii) Syndicated
Eurodollar Loans of any Class having the same Interest Period shall be allocated pro rata among the
relevant Lenders according to the amounts of their Commitments of such Class (in the case of the
making of Syndicated Loans) or their respective Loans of such Class (in the case of conversions and
continuations of Syndicated Loans); (iii) each payment or prepayment by the Borrower of principal
of Syndicated Loans of a particular Class shall be made for account of the relevant Lenders pro
rata in accordance with the respective unpaid principal amounts of the Syndicated Loans of such
Class held by them; (iv) each payment by the Borrower of interest on Syndicated Loans of a
particular Class shall be made for account of the relevant Lenders pro rata in accordance with the
amounts of interest on such Syndicated Loans then due and payable to the respective Lenders; and
(v) each payment by the Borrower of participation fees in respect of Letters of Credit shall be
made for the account of the Revolving Credit Lenders pro rata in accordance with the amount of
participation fees then due and payable to the Revolving Credit Lenders.




          (d) Sharing of Payments by Lenders. If, at any time after the occurrence and during
the continuance of an Event of Default hereunder, any Lender shall, by exercising any right of
set-off or counterclaim or otherwise (including through voluntary prepayment by the Borrower),
obtain payment in respect of any principal of or interest on any of its Syndicated Loans (or
participations in LC Disbursements) of any Class resulting in such Lender receiving payment of a
greater proportion of the aggregate principal amount of its Syndicated Loans (and participations in
LC Disbursements) of such Class and accrued interest thereon than the proportion of such amounts
received by any other Lender of such Class or any other Class, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the Syndicated Loans
(and LC Disbursements) of the other Lenders to the extent necessary so that the benefit of such
payments shall be shared by all the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Syndicated Loans (and participations in LC
Disbursements); provided that (i) if any such participations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest, and (ii) the
provisions of this paragraph shall not be construed to apply to any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its Loans (or
participations in LC Disbursements) to any assignee or participant, other than to the Borrower or
any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The
Obligors consent to the foregoing and agree, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements
may exercise against the Obligors’ rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of the Obligors in the amount of
such participation.




          (e) Presumptions of Payment. Unless the Administrative Agent shall have received
notice from the Obligor Representative prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or any Issuing Bank entitled thereto (the
“Applicable Recipient”) hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Applicable Recipient the
amount due. In such event, if the Borrower has not in fact made such payment, then each Applicable
Recipient severally agrees to repay to the Administrative Agent forthwith on demand the amount so
distributed to such Applicable






45









 







Recipient with interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative Agent, at the Federal
Funds Effective Rate.




          (f) Certain Deductions by Administrative Agent. If any Lender shall fail to make any
payment required to be made by it pursuant to Section 2.04(d), 2.04(e), 2.06(b) or 2.17(e), then
the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the account of such Lender to
satisfy such Lender’s obligations under such Section until all such unsatisfied obligations are
fully paid.




          SECTION 2.18 Mitigation Obligations: Replacement of Lenders.




          (a) Designation of Different Lending Office. If any Lender requests compensation
under Section 2.14, or if the Obligors are required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 2.16, then such Lender
shall, if requested by the Obligor Representative, use reasonable efforts to designate a different
lending office for funding or booking its Loans (or participations in LC Disbursements) hereunder
or to assign its rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the future and
(ii) would not subject such Lender to any unreimbursed cost or expense and would not cause such
Lender and its lending office(s) to suffer any economic, legal or regulatory disadvantage;
provided, that nothing in this Section shall affect or postpone any of the obligations of
the Obligors or the rights of any Lender pursuant to Section 2.14 or 2.16. The Obligors hereby
agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.




          (b) Replacement of Lenders — Increased Costs. Etc. If any Lender requests
compensation under Section 2.14, or if the Obligors are required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.16, or
if any Lender becomes a Defaulting Lender, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent given by the Obligor Representative,
require such Lender to assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all its interests, rights and obligations under this
Agreement (other than any outstanding Competitive Loans held by it) to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior written consent
of the Administrative Agent (and, if a Revolving Credit Commitment is being assigned, each Issuing
Bank), which consents shall not unreasonably be withheld or delayed, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans, other than
Competitive Loans (and participations in LC Disbursements), 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 Obligors (in the case of all other amounts) and
(iii) in the case of any such assignment resulting from a claim for compensation under Section 2.14
or payments required to be made pursuant to Section 2.16, such assignment will result in a
reduction in such compensation or payments; provided, further, that until such time as such
replacement shall be consummated, the Obligor shall pay all additional amounts (if any) required
pursuant to Section 2.14 or 2.16, as the case may be. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease
to apply. No assignment pursuant to this Section 2.18(b) shall be deemed to impair any claim that
the Borrower may have against any Lender that defaults in its obligation to fund Loans hereunder.







46









 








          (c) Replacement of Lenders — Amendments. If, in connection with a request by the
Borrower to obtain the consent of the Lenders to a waiver, amendment or modification of any of the
provisions of this Agreement that requires the consent of all of the Lenders or all affected
Lenders under Section 9.02, one or more Lenders (the “Declining Lenders”) having Loans, LC
Exposure and unused Commitments representing not more than 50% of the sum of the total Loans, LC
Exposure and unused Commitments at such time have declined to agree to such request, then the
Borrower may, at its sole expense and effort, upon notice to such Lender(s) and the Administrative
Agent given by the Borrower, require all (but not less than all) of such Declining Lenders to
assign and delegate, without recourse (in accordance with and subject to the restrictions contained
in Section 9.04), all their interests, rights and obligations under this Agreement to one or more
assignees that shall assume such obligations (any of which assignees may be another Lender, if a
Lender accepts such assignment); provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent (and, if a Revolving Credit Commitment is being
assigned, each Issuing Bank), which consents shall not unreasonably be withheld or delayed, (ii)
each such Declining Lender shall have received payment of an amount equal to the outstanding
principal of its Loans (and participations in LC Disbursements), accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and under any other Loan Document, from the
assignee (to the extent of such outstanding principal and accrued interest and fees) or the
Obligors (in the case of all other amounts) and (iii) the Obligors shall have paid to each of the
Lenders compensation in an amount equivalent (taking into account the total Commitments, LC
Exposure and Loans of such other Lenders) to any compensation required to induce the assignees to
take such assignment from the Declining Lenders.




          SECTION 2.19 Defaulting Lenders. Notwithstanding any provision of this Agreement to
the contrary, if any Revolving Lender becomes a Defaulting Lender, then the following provisions
shall apply for so long as such Lender is a Defaulting Lender:




          (a) fees shall cease to accrue on the unfunded portion of the Commitment of such Defaulting
Lender pursuant to Section 2.11;




          (b) the Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be
included in determining whether all Lenders or the Required Lenders have taken or may take any
action hereunder (including any consent to any amendment or waiver pursuant to Section 9.02);
provided, that this clause (b) shall not apply in the case of a waiver, amendment or
modification requiring the consent of all Lenders or each Lender affected thereby (other than with
respect to Section 9.02(b)(iii));




          (c) if LC Exposure exists at the time a Lender becomes a Defaulting Lender then:





     (i) all or any part of such LC Exposure shall be reallocated among the non-Defaulting
Lenders in accordance with their respective Applicable Percentages but only to the extent
(x) the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting
Lender’s LC Exposure does not exceed the total of all non-Defaulting Lenders’ Revolving
Commitments and (y) the conditions set forth in Section 4.02 are satisfied at the time such
Lender becomes a Defaulting Lender and its LC Exposure is reallocated;




     (ii) if the reallocation described in clause (i) above cannot, or can only partially,
be effected, the Borrower shall within one Business Day following notice by the
Administrative Agent (which notice shall be promptly delivered by the Administrative Agent
upon the failure of the reallocation in clause (i) above to be fully effected) cash
collateralize such Defaulting Lender’s LC Exposure (after giving effect to any partial
reallocation pursuant to clause (i) above), which cash collateral shall be deposited into a
cash collateral account in the name of and under



47









 







the control of the Administrative Agent, in accordance with the procedures set forth in
Section 2.04(i) for so long as such LC Exposure is outstanding;




     (iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC
Exposure pursuant to this Section 2.19(c), the Borrower shall not be required to pay any
fees to such Defaulting Lender pursuant to Section 2.11(b) with respect to such Defaulting
Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash
collateralized;




     (iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to
Section 2.19(c), then the fees payable to the Lenders pursuant to Section 2.11(a) and
Section 2.11(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable
Percentages; or




     (v) if any Defaulting Lender’s LC Exposure is neither cash collateralized nor
reallocated pursuant to Section 2.19(c), then, without prejudice to any rights or remedies
of the Issuing Bank or any Lender hereunder, all commitment fees that otherwise would have
been payable to such Defaulting Lender (solely with respect to the portion of such
Defaulting Lender’s Commitment that was utilized by such LC Exposure) and letter of credit
fees payable under Section 2.11(b) with respect to such Defaulting Lender’s LC Exposure
shall be payable to the Issuing Bank until such LC Exposure is cash collateralized and/or
reallocated;



          (d) so long as any Revolving Lender is a Defaulting Lender, the Issuing Bank shall not be
required to issue, amend or increase any Letter of Credit, unless it is satisfied that 100% of the
related exposure will be covered by the Commitments of the non-Defaulting Lenders and/or cash
collateral will be provided by the Borrower in accordance with Section 2.19(c), and participating
interests in any such newly issued or increased Letter of Credit shall be allocated among
non-Defaulting Lenders in a manner consistent with Section 2.19(c)(i) (and Defaulting Lenders shall
not participate therein); and




          (e) (i) if a Bankruptcy Event with respect to the Parent of any Revolving Lender shall occur
following the date hereof and for so long as such event shall continue or (ii) the Issuing Bank has
a good faith belief that any Revolving Lender has defaulted in fulfilling its obligations under one
or more other agreements in which such Revolving Lender commits to extend credit, the Issuing Bank
shall not be required to issue, amend or increase any Letter of Credit, unless the Issuing Bank
shall have entered into arrangements with the Borrower or such Revolving Lender, satisfactory to
the Issuing Bank, to defease any risk to the Issuing Bank in respect of such Revolving Lender
hereunder.




          In the event that the Administrative Agent, the Borrower and each Issuing Bank each agrees
that a Defaulting Lender has adequately remedied all matters that caused such Revolving Lender to
be a Defaulting Lender, then the LC Exposure of the Revolving Lenders shall be readjusted to
reflect the inclusion of such Revolving Lender’s Commitment and on such date such Revolving Lender
shall purchase at par such of the Revolving Credit Loans of the other Revolving Lenders (other than
Competitive Loans) as the Administrative shall determine may be necessary in order for such
Revolving Lender to hold such Revolving Credit Loans in accordance with its Applicable Percentage.




ARTICLE III

REPRESENTATIONS AND WARRANTIES




          The Borrower represents and warrants to the Lenders and the Administrative Agent, as to itself
and each of its Subsidiaries, that:







48









 








          SECTION 3.01 Organization: Powers. The Borrower is duly organized, validly existing
and in good standing under the laws of the State of Kansas. Each Obligor is duly organized,
validly existing and in good standing under the laws of its jurisdiction of organization, except
where the failure to be in good standing or to be so qualified could not reasonably be expected to
result in a Material Adverse Effect. Each Obligor has all requisite power and authority under its
respective organizational documents to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.




          SECTION 3.02 Authorization; Enforceability. The Transactions are within the corporate
or other equivalent power of each Obligor and have been duly authorized by all necessary corporate
and, if required, stockholder or other action on the part of such Obligor. Each Loan Document to
which any Obligor is a party has been duly executed and delivered by such Obligor and constitutes a
legal, valid and binding obligation of such Obligor, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.




          SECTION 3.03 Governmental Approvals; No Conflicts. The Transactions (a) do not
require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, (b) will not violate any applicable law, policy or regulation or the
charter, by-laws or other organizational documents of any Obligor or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture, agreement or other
instrument binding upon the Borrower, or any of its assets, or give rise to a right thereunder to
require any payment to be made by the Borrower, (d) will not violate or result in a default under
any material indenture, agreement or other instrument binding upon any Subsidiary Guarantor, or any
of its assets, or give rise to a right thereunder to require any payment to be made by any
Subsidiary Guarantor, and (e) will not result in the creation or imposition of any Lien on any
asset of the Obligors.




          SECTION 3.04 Financial Condition: No Material Adverse Change.




          (a) Financial Statements. The Borrower has heretofore delivered to the Lenders the
following financial statements:





     (i) the audited consolidated balance sheet and statements of operations, changes in
stockholders’ equity and cash flows of the Borrower and its Subsidiaries as of and for the
fiscal years ended December 31, 2008 and December 31, 2009, reported on by KPMG LLP,
independent public accounts; and




     (ii) the unaudited interim consolidated balance sheet and statements of operations,
changes in stockholders’ equity and cash flows of the Borrower and its Subsidiaries as of
and for the three-, six- and nine-month periods ended March 31, 2009, June 30, 2009 and
September 30, 2009, respectively, certified by a Financial Officer of the Borrower, prepared
on an actual basis.


Such financial statements present fairly, in all material respects, the actual and pro forma
consolidated financial position and results of operations and cash flows of the Borrower and its
Subsidiaries as of such dates and for such periods in each case (other than with respect to such
pro forma statements) in accordance with GAAP, subject to year-end audit adjustments and the
absence of footnotes in the case of all interim balance sheets of the Borrower.







49









 








          (b) No Material Adverse Change. Since December 31, 2009, there has been no material
adverse change in the business, assets, operations or financial condition of the Borrower and its
Subsidiaries, taken as a whole.




          (c) No Material Undisclosed Liabilities. The Borrower does not have on the Effective
Date any contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments in each case that are material,
except as referred to or reflected or provided for in the balance sheets as at December 31, 2009
referred to above and the footnotes thereto.




          SECTION 3.05 Properties.




          (a) Title Generally. The Borrower and the Subsidiary Guarantors have good title to,
or valid leasehold interests in, all of their real and personal property, except for defects in
title that, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect.




          (b) Intellectual Property. The Borrower and its Subsidiaries own, or are licensed to
use, all of their trademarks, trade names, copyrights, patents and other intellectual property,
except where the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, and the use thereof by the Borrower and its
Subsidiaries 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 result in
a Material Adverse Effect.




          SECTION 3.06 Litigation and Environmental Matters.




          (a) Litigation Generally. There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Subsidiaries (i) as to which there is a
reasonable possibility of an adverse determination and that, if adversely determined, could
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect
(other than the Disclosed Matters) or (ii) that involve any of the Loan Documents or the
Transactions.




          (b) Environmental Matters. Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, neither the Borrower nor any of its Subsidiaries (i) has
failed to comply with any Environmental Law or any obligation to obtain, maintain or comply with
any permit, license or other approval required under any Environmental Law, (ii) is subject to any
Environmental Liability, or (iii) has received written, or to the knowledge of the Borrower, oral
notice of any claim with respect to any unsatisfied Environmental Liability or has received any
ongoing inquiry, allegation, notice or other communication from any Governmental Authority
concerning its compliance with any Environmental Law.




          SECTION 3.07 Compliance with Laws and Agreements. The Borrower and its Subsidiaries
and their respective ERISA affiliates are in compliance with all laws, regulations, policies and
orders of any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where the failure to do
so, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse Effect.




          SECTION 3.08 Investment Company Status. Neither the Borrower nor any of its
Subsidiaries is an “investment company” as defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended.







50









 








          SECTION 3.09 Taxes. The Borrower and its Subsidiaries have timely filed or caused to
be filed all Tax returns and reports required to have been filed and have paid or caused to be paid
all Taxes shown thereon to be due, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower has set aside on its books adequate reserves
with respect thereto in accordance with GAAP or (b) to the extent that the failure to do so could
not reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.10 ERISA. No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which liability is reasonably
expected to occur, could reasonably be expected to result in a Material Adverse Effect.




          SECTION 3.11 Disclosure. None of the reports, financial statements, certificates or
other information (other than forward-looking statements, projections and statements of a general
industry nature, as to which no representation or warranty is made) furnished by or on behalf of
any Obligor to the Administrative Agent or any Lender in connection with the negotiation of this
Agreement or any amendment hereto or delivered hereunder or thereunder (as modified or supplemented
by other information so furnished) taken together with any information contained in the public
filings made by the Borrower with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, as amended, contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the circumstances under
which they were made, not materially misleading.



SECTION 3.12 Subsidiaries. As of the Effective Date, set forth in Schedule 3.12 is a
complete and correct list of all of the Subsidiaries together with, for each such Subsidiary, (i)
the full and correct legal name, (ii) the type of organization, (iii) the jurisdiction of
organization, (iv) if applicable, whether it is a Subsidiary Guarantor on the Effective Date and
(v) each Person holding ownership interests in such Subsidiary and the percentage of ownership of
such Subsidiary and voting rights with respect thereto represented by such ownership interest.




ARTICLE IV

CONDITIONS




          SECTION 4.01 Effective Date. The effectiveness of this Agreement and of the
obligations of the Lenders to make Loans, and of any Issuing Bank to issue Letters of Credit,
hereunder is subject to the conditions precedent that each of the following conditions shall have
been satisfied (or waived in accordance with Section 9.02):





     (a) Counterparts of Agreement. The Administrative Agent (or Special Counsel)
shall have received from the Borrower, from each Lender and from JPMorgan Chase Bank, N.A.,
as Administrative Agent, either (i) a counterpart of this Agreement signed on behalf of such
party or (ii) written evidence satisfactory to the Administrative Agent (which may include
telecopy transmission of a signed signature page of this Agreement) that such party has
signed a counterpart of this Agreement.




     (b) Opinion of Counsel to the Borrower. The Administrative Agent (or Special
Counsel) shall have received favorable written opinions (addressed to the Administrative
Agent and the Lenders and dated the Effective Date) of Jones Day and Polsinelli Shughart
P.C., each as counsel to the Borrower, covering such matters relating to the Borrower, this
Agreement, the other Loan Documents or the Transactions as the Administrative Agent shall
request (and the Borrower hereby requests such counsel to deliver such opinions).



51









 






     (c) Opinion of Special Counsel. The Administrative Agent shall have received a
favorable written legal opinion (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of Special Counsel, substantially in the form of Exhibit E (and
the Administrative Agent hereby requests Special Counsel to deliver such opinion).




     (d) Corporate Matters. The Administrative Agent (or Special Counsel) shall
have received such documents and certificates as the Administrative Agent or Special Counsel
may reasonably request relating to the organization, existence and good standing of the
Borrower and the authorization of the Transactions, all in form and substance reasonably
satisfactory to the Administrative Agent.




     (e) Financial Officer Certificate; Solvency Certificate. The Administrative
Agent (or Special Counsel) shall have received (i) a certificate, dated the Effective Date
and signed by the President, a Vice President or a Financial Officer of the Borrower,
confirming compliance with the conditions set forth in paragraphs (a) and (b) of Section
4.02 and (ii) a solvency certificate, dated the Effective Date and signed by the chief
financial officer of the Borrower, documenting the solvency of the Borrower and its
Subsidiaries, taken as a whole, immediately after giving effect to this Agreement and the
transactions contemplated hereby.




     (f) Notes. The Administrative Agent (or Special Counsel) shall have received
for each Lender that shall have requested a promissory note, a duly completed and executed
promissory note for such Lender.




     (g) Release by Issuing Banks. To the extent that any “Issuing Bank” under the
Existing Credit Agreement is not an Issuing Bank hereunder, such “Issuing Bank” shall have
unconditionally released each “Revolving Credit Lender” under the Existing Credit Agreement
from any liability under such “Revolving Credit Lender’s” participation in respect of each
“Letter of Credit” under the Existing Credit Agreement, pursuant to an instrument in form
satisfactory to the Administrative Agent.




     (h) Intercompany Indebtedness. The Administrative Agent shall have received
the Subordination Agreement, duly executed and delivered by each Obligor.




     (i) Evidence of Repayment of Loans under Existing Credit Agreement. The
Borrower shall have repaid in full the principal of and interest on all of the “Loans”
outstanding under the Existing Credit Agreement and all other amounts owing thereunder and
all commitments under the Existing Credit Agreement shall have been terminated and all
letters of credit issued and outstanding under the Existing Credit Agreement shall have been
continued hereunder.




     (j) Evidence of Amendment to the EDC Credit Agreement. The Administrative
Agent shall have received evidence satisfactory to it that the EDC Credit Agreement has been
amended to the extent required to permit the transactions contemplated herein.




     (k) Fees and Expenses. The Lenders, the Administrative Agent and the Arrangers
shall have received all fees and other amounts due and payable on or prior to the Effective
Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the Borrower hereunder.


Notwithstanding the foregoing, the obligations of the Lenders to make Loans, and of the Issuing
Banks to issue Letters of Credit, hereunder shall not become effective unless each of the foregoing
conditions is






52









 







satisfied (or waived pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on May
31, 2010 (and, in the event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).




          SECTION 4.02 Each Extension of Credit. The obligation of each Lender to make a Loan
on the occasion of any Borrowing, and of any Issuing Bank to issue, amend, renew or extend any
Letter of Credit, is subject to the satisfaction of the following conditions:





     (a) Representations and Warranties. The representations and warranties of the
Borrower as to itself and each other Obligor set forth in this Agreement shall be true and
correct on and as of the date of such Borrowing, or (as applicable) the date of issuance,
amendment, renewal or extension of such Letter of Credit, both before and after giving
effect thereto and to the use of the proceeds thereof (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, such representation or
warranty shall be true and correct as of such specific date).




     (b) No Defaults. At the time of and immediately after giving effect to such
Borrowing, or (as applicable) the date of issuance, amendment, renewal or extension of such
Letter of Credit, no Default shall have occurred and be continuing.


Each Borrowing Request, Competitive Bid Request or request for issuance, amendment, renewal or
extension of a Letter of Credit, shall be deemed to constitute a representation and warranty by the
Borrower (both as of the date of such Borrowing Request, or request for issuance, amendment,
renewal or extension, and as of the date of the related Borrowing or issuance, amendment, renewal
or extension) as to the matters specified in paragraphs (a) and (b) of this Section 4.02.




ARTICLE V

AFFIRMATIVE COVENANTS




          Until the Commitments have expired or been terminated and the principal of and interest on
each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit
shall have expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:




          SECTION 5.01 Financial Statements and Other Information. The Borrower will furnish to
the Administrative Agent (which shall promptly furnish to the Lenders):





     (a) within 75 days after the end of each fiscal year, the audited consolidated
statements of operations, changes in stockholders’ equity and cash flows of the Borrower and
its Subsidiaries for such fiscal year, and the related audited consolidated balance sheet
for the Borrower and its Subsidiaries as of the end of such fiscal year, setting forth in
each case in comparative form the corresponding figures for the previous fiscal year, all
reported on by KPMG LLP, or other independent public accountants of recognized national
standing (without a “going concern” or like qualification or exception and without any
qualification or exception as to the scope of such audit), to the effect that such audited
consolidated financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP consistently applied;




     (b) within 45 days after the end of the first three fiscal quarters of each fiscal
year:



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     (i) the unaudited interim consolidated statements of operations of the Borrower
and its Subsidiaries for such fiscal quarter (the “current fiscal quarter”)
and for the then elapsed portion of the fiscal year,




     (ii) the unaudited interim consolidated statements of changes in stockholders’
equity and cash flows of the Borrower and its Subsidiaries for the then elapsed
portion of the fiscal year, and




     (iii) the unaudited interim consolidated balance sheet for the Borrower and its
Subsidiaries as at the end of such fiscal quarter,




setting forth in each case in comparative form the figures for the corresponding period or
periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal
year, all certified by a Financial Officer of the Borrower as presenting fairly, in all
material respects, the financial condition and results of operations of the Borrower and its
Subsidiaries on a consolidated basis in each case in accordance with GAAP, subject to
year-end audit adjustments and the absence of footnotes in the case of all interim balance
sheets of the Borrower;




     (c) concurrently with any delivery of financial statements under clause (a) or (b)
above, a certificate of a Financial Officer of the Borrower:




     (i) certifying as to whether a Default has occurred and, if a Default has
occurred, specifying the details thereof and any action taken or proposed to be
taken with respect thereto;




     (ii) setting forth reasonably detailed calculations demonstrating compliance
with Sections 6.01(o), 6.01(p), 6.02(k) and 6.05; and




     (iii) stating whether any change in GAAP or in the application thereof has
occurred since the later of the date of the financial statements as at December 31,
2009 referred to in Section 3.04 and the date of the last certificate delivered
pursuant to this clause (c) and, if any such change has occurred, specifying the
effect of such change on the financial statements accompanying such certificate;




     (d) promptly after the same become publicly available, furnish all periodic and other
reports, proxy statements and other materials filed by any Obligor with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or all of the functions
of said Commission or distributed by such Obligor to the holders of its securities; and




     (e) promptly following any request therefor, such other information regarding the
operations, business affairs and financial condition of any Obligor, or compliance with the
terms of this Agreement and other Loan Documents, as the Administrative Agent or any Lender
(through the Administrative Agent) may reasonably request.



          Documents required to be delivered pursuant to this Section 5.01 (to the extent any such
documents are included in materials otherwise filed with the Securities and Exchange Commission)
may be delivered electronically and if so delivered, shall be deemed to have been delivered on the
date (i) on which the Borrower posts such documents, or provides a link thereto, on the Borrower’s
website; or (ii) on which such documents are posted on the Obligors’ behalf on IntraLinks or
another relevant website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent).
Notwithstanding anything contained herein,






54









 







in every instance (i) the Borrower shall be required to provide paper copies of the
certificates required by Section 5.01(c) to the Administrative Agent and (ii) the Borrower shall
notify any Lender when documents required to be delivered pursuant to this Section 5.01 have been
delivered electronically to the extent that such Lender has requested the Borrower to be notified.
Except for such certificates, the Administrative Agent shall have no obligation to request the
delivery or to maintain copies of the documents referred to above, and in any event shall have no
responsibility to monitor compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such
documents.




          SECTION 5.02 Notices of Material Events. The Borrower will furnish to the
Administrative Agent (which shall promptly notify the Lenders) prompt written notice of the
following:





     (a) the occurrence of any Default;




     (b) the filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting the Borrower or any of its
Subsidiaries that, if adversely determined, could reasonably be expected to result in a
Material Adverse Effect; and




     (c) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability of the
Borrower or any of its Subsidiaries in an aggregate amount exceeding $200,000,000.


Each notice delivered under this Section 5.02 shall be accompanied by a statement of a Financial
Officer or other executive officer of the Borrower setting forth a reasonable description of the
event or development requiring such notice and any action taken or proposed to be taken with
respect thereto.




          SECTION 5.03 Existence. The Borrower will do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence and the rights, licenses,
permits, privileges and franchises material to the conduct of its business; provided that the
foregoing shall not prohibit any merger, consolidation, liquidation or dissolution, sale or
disposition of assets or other transactions permitted under Section 6.03. The Borrower will cause
each of its Subsidiaries to do or cause to be done all things necessary to preserve, renew and keep
in full force and effect its legal existence and, except where the failure to do so, individually
or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, the
rights, licenses, permits, privileges and franchises material to the conduct of its business;
provided that the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution, sale or disposition of assets or other transactions permitted under Section 6.03.




          SECTION 5.04 Payment of Obligations. The Borrower will, and will cause each of the
Subsidiary Guarantors to, pay its obligations, including Tax liabilities, that, if not paid, could
result in a Material Adverse Effect before the same shall become delinquent or in default, except
where (a) the validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary Guarantor has set aside on its books adequate
reserves with respect thereto in accordance with GAAP and (c) the failure to make payment pending
such contest could not reasonably be expected to result in a Material Adverse Effect.




          SECTION 5.05 Maintenance of Properties; Insurance. The Borrower will (a) keep and
maintain all property material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customarily maintained by
companies engaged in the same or similar businesses operating in the same or similar locations. The
Borrower will






55









 







cause each of its Subsidiaries to (a) except where the failure to do so, individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect, keep and
maintain all property material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and reputable insurance
companies, insurance in such amounts and against such risks as are customarily maintained by
companies engaged in the same or similar businesses operating in the same or similar locations.




          SECTION 5.06 Books and Records; Inspection Rights. The Borrower will keep proper
books of record and account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will cause each of its
Subsidiaries to keep proper books of record and account in which full, true and correct entries are
made of all dealings and transactions in relation to its business and activities, except where the
failure to do so, individually or in the aggregate, could not reasonably be expected to result in a
Material Adverse Effect. The Borrower will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts from its books and records, and
to discuss its affairs, finances and condition with its officers and independent accountants, all
at such reasonable times and as often as reasonably requested.




          SECTION 5.07 Compliance with Laws. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse Effect.




          SECTION 5.08 Use of Proceeds.




          (a) Loans. The proceeds of the Loans hereunder will be used for general corporate
purposes of the Borrower and its Subsidiaries.




          (b) Regulations U and X. No part of the proceeds of any Loan will be used, whether
directly or indirectly, for any purpose that entails a violation of any of the Regulations of the
Board, including Regulations U and X.




          SECTION 5.09 Certain Obligations with respect to Subsidiaries.




          (a) In the event that (a) the Borrower or any of its Subsidiaries shall form or acquire any
new Subsidiary that is a Domestic Subsidiary (such acquired Subsidiary, an “Acquired
Entity”) or (b) any Subsidiary which is prohibited from guaranteeing the Obligations pursuant
to the terms of any agreement to which such Person is a party on the Effective Date is released
from the relevant restrictions, in each such case, the Borrower will, and will cause each of its
Subsidiaries to, promptly (and in any event within 30 days or such longer period that the
Administrative Agent may approve) take such action to cause any such Subsidiary to:





     (i) become a “Subsidiary Guarantor” hereunder pursuant to a Joinder Agreement;




     (ii) in the case of a newly-formed Subsidiary (other than the WiMax Joint Venture
Entities) or an Acquired Entity, become a party to the Subordination Agreement pursuant to
an Accession Agreement; and




     (iii) deliver such proof of corporate action, incumbency of officers, opinions of
counsel and other documents (A) as is consistent with those delivered by the Subsidiary



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Guarantors pursuant to Section 4 of the Credit Agreement on the Effective Date (unless
waived by the Administrative Agent) or (B) as the Administrative Agent shall reasonably
request;


provided that an Acquired Entity shall not be required to take any of the foregoing actions
to the extent it is prohibited from so doing pursuant to the terms of any agreement to which such
Person is a party prior to it becoming an Acquired Entity, provided further that, in the event such
Acquired Entity is released from the relevant restrictions, the Borrower will, and will cause each
of its Subsidiaries to, take such action to cause such Acquired Entity to become a “Subsidiary
Guarantor” hereunder in accordance with this Section 5.09.




          (b) The Borrower covenants that if the total assets (considering, for purposes of determining
the total assets of the Subsidiary Guarantors, all unrestricted cash and cash equivalents held by
the Borrower as assets of the Subsidiary Guarantors) or revenues of the Subsidiary Guarantors
represent less than 80% of the consolidated total assets or revenues of the Borrower and its
Subsidiaries (excluding from the calculation of consolidated net assets or revenues for the
purposes of this clause (b) of Section 5.09, the assets or revenues of any Acquired Entity to the
extent that (but only for so long as) it is prohibited from becoming a Subsidiary Guarantor
pursuant to the terms of any agreement to which such Person is a party prior to it becoming an
Acquired Entity), determined as of the end of (or, with respect to such revenues, for the period of
four fiscal quarters ending with) the fiscal quarter or fiscal year most recently ended for which
financial statements are available, the Borrower will cause Subsidiaries to become Subsidiary
Guarantors as necessary to eliminate such deficiency. The Borrower may from time to time cause any
Subsidiary to become a Subsidiary Guarantor.




ARTICLE VI

NEGATIVE COVENANTS




          Until the Commitments have expired or terminated and the principal of and interest on each
Loan and all fees payable hereunder have been paid in full and all Letters of Credit shall have
expired or terminated and all LC Disbursements shall have been reimbursed, the Borrower covenants
and agree with the Lenders that:




          SECTION 6.01 Indebtedness. The Borrower will not permit any Subsidiary to create,
incur, issue, assume or permit to exist any Indebtedness, except:





     (a) Indebtedness hereunder;




     (b) Indebtedness existing on the Effective Date and set forth in Schedule 6.01 (and any
extensions, renewals or refinancings thereof);




     (c) Indebtedness of SCC and NCI existing on the Effective Date (which for the avoidance
of doubt includes any such Indebtedness of SCC and NCI permitted pursuant to paragraph
6.01(b) and listed on Schedule 6.01) and any extensions, renewals or refinancings thereof,
provided that any such extensions, renewals or refinancing of such Indebtedness shall be
restricted to the Obligors who are obligated on the Indebtedness being extended, renewed or
refinanced;




     (d) Indebtedness of any Receivables Entity pursuant to a Permitted Securitization and
Indebtedness under any Standard Securitization Undertaking;




     (e) Indebtedness incurred in connection with Sale and Leaseback Transactions;



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     (f) Indebtedness incurred after the Effective Date to finance the acquisition,
construction or improvement of any fixed or capital assets or inventory, including Capital
Lease Obligations, and extensions, renewals and replacements of any such Indebtedness that
do not increase the outstanding principal amount thereof; provided that such Indebtedness is
incurred concurrently with or within 90 days after such acquisition or the completion of
such construction or improvement;




     (g) Intercompany Indebtedness, provided that any Intercompany Indebtedness of an
Obligor owing to any Subsidiary of the Borrower which is required to be party to the
Subordination Agreement is subordinated to the Obligations in accordance with the
Subordination Terms;




     (h) Guarantees by any Subsidiary Guarantor of the EDC Indebtedness;




     (i) Indebtedness comprised of unsecured guarantees that are expressly subordinated to
the Obligations hereunder, which guarantees are made by Subsidiary Guarantors in respect of
other Indebtedness of the Borrower or its Subsidiaries in an aggregate amount not to exceed
$3,000,000,000 at any time;




     (j) Indebtedness of any Person that becomes a Subsidiary after the Effective Date,
provided that such Indebtedness exists at the time such Person becomes a Subsidiary and is
not created in contemplation of or in connection with such Person becoming a Subsidiary;




     (k) Guarantees by any Subsidiary Guarantor of the obligations of the Borrower under
Hedging Agreements entered into with a Lender or any Affiliate of a Lender in the ordinary
course of business and not for speculative purposes;




     (l) Guarantees resulting from the endorsement of negotiable instruments in the ordinary
course of business;




     (m) Indebtedness, if any, in respect of surety, stay, customs and appeal bonds,
performance bonds and performance and completion guarantees required in the ordinary course
of business or in connection with the enforcement of rights or claims of the Subsidiary
Guarantors or their Subsidiaries or in connection with judgments that have not resulted in
an Event of Default under clause (k) of Article VII;




     (n) Indebtedness constituting reimbursement obligations with respect to letters of
credit issued in the ordinary course of business in respect of workers compensation claims,
health, disability or other employee benefits or property, casualty or liability insurance
or self-insurance, other Indebtedness with respect to reimbursement-type obligations
regarding workers compensation claims and other Indebtedness in respect of bankers’
acceptance, letter of credit, warehouse receipts or similar facilities entered into in the
ordinary course of business, provided that upon the drawing of such letters of credit or the
incurrence of such Indebtedness, such obligations are reimbursed within five Business Days
following such drawing or incurrence;




     (o) other Indebtedness in an aggregate principal amount that, taken together with the
aggregate amount of obligations secured by the Liens permitted under Section 6.02(k) at the
time of incurrence thereof (or of any extension, renewal or refinancing thereof) and after
giving effect thereto, does not exceed $250,000,000 at any time outstanding; and



58









 






     (p) other Indebtedness, provided that the amount of such Indebtedness which is
Indenture Pari Passu Debt, when taken together with (i) the total amount of Revolving
Commitments then in effect, (ii) the outstanding principal balance of any Incremental Term
Loans, (iii) the outstanding principal balance of the EDC Indebtedness and (iv) any other
Indebtedness (assuming all relevant commitments to lend are fully drawn) incurred after the
Effective Date and permitted under this Section 6.01 (excluding Indebtedness permitted
pursuant to paragraphs (c), (g), (i), (j) and (o)) that is Indenture Pari Passu Debt, shall
not exceed the amount equal to 15% of Consolidated Net Tangible Assets at any time.
Notwithstanding the foregoing, if, on a cumulative basis, at any time Subsidiaries with
assets or revenue greater than or equal to 5% of the consolidated total assets or revenues
of the Borrower and its Subsidiaries (determined as of the end of the fiscal year most
recently ended for which financial statements are available) have merged with or into, or
have been consolidated with or into, NCI and/or SCC, then the amount of any Indebtedness
described in clause 6.01(c) above which is then outstanding shall be included as “Indenture
Pari Passu Debt” for purposes of clause (iv) above.



          SECTION 6.02 Liens. The Borrower will not, nor will it permit any of its Subsidiaries
to, create, incur, assume or suffer to exist any Lien upon any of its property, whether now owned
or hereafter acquired, except:





     (a) Permitted Encumbrances;




     (b) Liens existing on the Effective Date and set forth in Schedule 6.02;




     (c) Liens securing judgments for the payment of money in an amount not resulting
(whether immediately or with the passage of time) in an Event of Default under clause (k) of
Article VII;




     (d) Liens on the property of any Receivables Entity pursuant to a Permitted
Securitization, and the sale of Accounts pursuant to a Permitted Securitization and Liens
resulting from the characterization of such sale as secured Indebtedness;




     (e) Liens arising in connection with Sale and Leaseback Transactions;




     (f) Liens created after the Effective Date on fixed or capital assets or inventory
acquired, constructed or improved by the Borrower or any of its Subsidiaries after the
Effective Date and financed with Indebtedness permitted under Section 6.01(f); provided that
(i) such Liens and the Indebtedness secured thereby are incurred prior to or within 90 days
after such acquisition or the completion of such construction or improvement and (ii) there
are no Liens on any other property or assets of the Borrower or any of its Subsidiaries that
secure such Indebtedness;




     (g) any Lien existing on any property or asset of any Person that becomes a Subsidiary
after the Effective Date prior to the time such Person becomes a Subsidiary; provided that
(i) such Lien is not created in contemplation of or in connection with such Person becoming
a Subsidiary and (ii) there are no Liens on any other property or assets of the Borrower or
any of its Subsidiaries that secure the Indebtedness of such Person;




     (h) Liens arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit or commodity
trading or brokerage accounts or other funds maintained with a creditor depository
institution, provided that such accounts and funds are not primarily intended by the
Borrower or any of its Subsidiaries to provide collateral to the depository institution or
the commodity intermediary;



59









 






     (i) Liens consisting of or arising under (i) agreements to dispose of any property in a
Disposition permitted under Section 6.03 and (ii) earnest money deposits made by the
Borrower or any of its Subsidiaries in connection with any letter of intent or purchase
agreement;




     (j) Liens on cash collateral in favor of the Administrative Agent securing LC Exposure
of the Revolving Credit Lenders and Issuing Banks; and




     (k) additional Liens (including any Liens securing financings permitted by Section
6.01(o)) covering property of the Borrower or any of its Subsidiaries (or securing
obligations in an aggregate amount, at the time of incurrence thereof, that taken together
with the Indebtedness incurred pursuant to Section 6.01(o), does not exceed $250,000,000 at
any time outstanding.



          SECTION 6.03 Fundamental Changes.




          (a) Mergers and Consolidations. The Borrower will not, and will not permit any
Subsidiary to, merge into or consolidate with any other Person, or permit any other Person to merge
into or consolidate with it, or liquidate or dissolve, except that if at the time thereof and
immediately after giving effect thereto no Default shall have occurred and be continuing:





     (i) any Person may merge with or into the Borrower in a transaction in which (x) such
Borrower is the surviving corporation or (y) the continuing or surviving entity shall have
assumed all of the obligations of such Borrower hereunder pursuant to an instrument in form
and substance satisfactory to the Administrative Agent and shall have delivered such proof
of corporate action, incumbency of officers, opinions of counsel and other documents as is
consistent with those delivered by the Borrower pursuant to Section 4.01 upon the Effective
Date or as the Administrative Agent shall have requested and the net worth (determined on a
consolidated basis in accordance with GAAP) of the continuing or surviving entity
immediately after giving effect thereto shall be greater than or equal to the net worth (so
determined) of such Borrower immediately prior to giving effect thereto;




     (ii) any Person (other than the Borrower) may merge with or into any Subsidiary of the
Borrower in a transaction in which the surviving entity is a Subsidiary of the Borrower,
provided that, if any such merger shall be between a Subsidiary Guarantor and a
Non-Guarantor Subsidiary, the survivor shall be or become a Subsidiary Guarantor;




     (iii) any Subsidiary of the Borrower may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best interests of
the Borrower and is not materially disadvantageous to the Lenders; and




     (iv) any Subsidiary (other than the Borrower) may merge into any other Person in order
to effect a Disposition permitted by this Agreement.



          (b) Disposition of Assets. The Borrower and its Subsidiaries, when taken as a whole,
will not, sell, transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all of their assets (in each case, whether now owned or
hereafter acquired).




          SECTION 6.04 Transactions with Affiliates. Except as expressly permitted by this
Agreement, the Borrower will not, and will not permit any of its Subsidiaries to, sell, lease or
otherwise transfer any cash or other property to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any of its Affiliates,
except:







60









 









     (i) at prices and on terms and conditions not less favorable to the Borrower or
Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties or
pursuant to agreements in effect on the Effective Date, and




     (ii) transactions between or among the Borrower and its Subsidiaries not involving any
other Affiliate.



          SECTION 6.05 Financial Covenants.




          (a) Total Indebtedness Ratio. The Borrower will not permit the Total Indebtedness
Ratio as at the last day of any fiscal quarter to exceed (i) 4.50 to 1 for the period from the
Effective Date through March 31, 2012, (ii) 4.25 to 1 for the period following March 31, 2012
through December 31, 2012 and (iii) 4.00 to 1 at any time after December 31, 2012.




          (b) Total Interest Coverage Ratio. The Borrower will not permit the Total Interest
Coverage Ratio to be less than 3.00 to 1 at any time.




          SECTION 6.06 Restricted Payments. The Borrower will not, nor will it permit any of
its Subsidiaries to, declare or make, or agree to pay or make, directly or indirectly, any
Restricted Payment, except that:




          (a) any Non-Guarantor Subsidiary may make Restricted Payments to the Borrower or any of its
Subsidiaries;




          (b) any Subsidiary of the Borrower may declare and pay dividends to any Obligor;




          (c) the Borrower and any of its Subsidiaries may declare and pay dividends with respect to its
capital stock at any time solely in additional shares of its common stock;




          (d) the Borrower and any of its Subsidiaries may make Restricted Payments pursuant to and in
accordance with (i) stock option plans or other benefit or compensation plans, (ii) agreements
existing on the Effective Date and (iii) agreements entered into after the Effective Date, provided
that payments under such future agreements do not exceed $5,000,000 in any fiscal year, for
directors, management or employees of the Borrower and any of its Subsidiaries in the ordinary
course of business;




          (e) the Borrower and any of its Subsidiaries may declare and pay mandatory dividends on
preferred stock;




          (f) the Borrower and its Subsidiaries may make cash payments in lieu of issuing fractional
shares in connection with the exercise of Equity Rights convertible into or exchangeable for Equity
Interests of the Borrower or its Subsidiaries;




          (g) so long as no Default shall have occurred and be continuing, any Subsidiary that is not
wholly-owned may make distributions payable to the other equity holders of such Subsidiary on a pro
rata basis; provided that distributions payable by any Subsidiary that is not wholly-owned
to other equity holders in order to comply with the terms of the WiMax Agreement do not have to be
made on a pro rata basis;




          (h) Restricted Payments resulting from the cashless exercise of stock options; and







61









 








          (i) so long as no Default shall have occurred and be continuing or would result therefrom, the
Borrower and any of its Subsidiaries may make other Restricted Payments in an aggregate amount not
to exceed $100,000,000;



provided that, at any time that the Total Indebtedness Ratio is less than 2.50:1, the
Borrower and its Subsidiaries may make any Restricted Payments so long as the Total Indebtedness
Ratio on a pro forma basis after giving effect to such Restricted Payments remains less than
2.50:1; provided further, that, for avoidance of doubt, any extension, renewal or
refinancing of debt securities that are convertible into or exchangeable for shares of capital
stock (whether common or preferred), partnership interests, membership interests in a limited
liability company (whether common or preferred), beneficial interests in a trust or other equity
ownership interests, in each case, of the Borrower or any Subsidiary, shall be permitted under this
Section 6.06 so long as such extension, renewal or refinancing is not otherwise prohibited by this
Agreement.



SECTION 6.07 Intercompany Indebtedness. The Borrower will not, and will not permit any of
its Subsidiaries to, purchase, redeem, retire or otherwise acquire for value, or set apart any
money for a sinking, defeasance or other analogous fund for the purchase, redemption, retirement or
other acquisition of, or make any voluntary payment or prepayment of the principal of or interest
on, or any other amount owing in respect of, any Intercompany Indebtedness except in the ordinary
course of business and except repayments of Intercompany Indebtedness (x) owing to any Obligor, (y)
by any Obligor to any of the Borrower’s Subsidiaries to the extent that such Intercompany
Indebtedness results from the receipt and application of cash proceeds from Accounts pursuant to
the Borrower’s and its Subsidiaries’ ordinary cash management practices and is consistent in all
material respects with past practice and (z) of any Foreign Subsidiary owing to any other Foreign
Subsidiary.




ARTICLE VII

EVENTS OF DEFAULT




          If any of the following events (“Events of Default”) shall occur:





     (a) the Borrower shall fail to pay any principal of any Loan or any reimbursement
obligation in respect of any LC Disbursement when and as the same shall become due and
payable, whether at the due date thereof or at a date fixed for prepayment thereof or
otherwise;




     (b) the Borrower shall fail to pay (i) any interest on any Loan, when and as the same
shall become due and payable, and such failure shall continue unremedied for a period of
three or more Business Days or (ii) any fee or any other amount (other than an amount
referred to in clause (a) or (b)(i) of this Article VII) 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 Business Days;




     (c) any representation or warranty made or deemed made by or on behalf of any Obligor
in or in connection with this Agreement or any of the other Loan Documents or any amendment
or modification hereof or thereof (or in any report, certificate, financial statement or
other document furnished pursuant to or in connection with this Agreement, any of the other
Loan Documents or any amendment or modification hereof or thereof) shall prove to have been
incorrect when made or deemed made in any material respect;




     (d) the Borrower shall fail to observe or perform any covenant, condition or agreement
contained in Sections 5.03, 5.09 (but solely with respect to the requirements of any
Subsidiary that would constitute a Significant Subsidiary for the purposes of clause (a)
thereof to



62









 







deliver a Joinder Agreement, Accession Agreement or proof of corporation action,
incumbency opinions or other documents contemplated therein) or Article VI (other than
Section 6.04);




     (e) the Borrower or any other Obligor shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified in clause
(a), (b), (c) or (d) of this Article VII, but including Section 5.09(a) with respect to any
Subsidiary that would not constitute a Significant Subsidiary) or any other Loan Document,
and such failure shall continue unremedied for a period of thirty or more days after notice
thereof from the Administrative Agent (given at the request of any Lender) to the Borrower;




     (f) the Borrower (or any Subsidiary of the Borrower, other than an Excluded Subsidiary)
shall fail to make any payment (whether of principal or interest and regardless of amount)
in respect of any Material Indebtedness, when and as the same shall become due and payable,
and such failure shall continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Material Indebtedness;




     (g) any event or condition occurs that results in any Material Indebtedness becoming
due prior to its scheduled maturity or that enables or permits (with or without the giving
of notice, but without any further lapse of time) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity;




     (h) an involuntary proceeding shall be commenced or an involuntary petition shall be
filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower (or
any Significant Subsidiary) or its debts, or of a substantial part of its assets, under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower (or any Significant Subsidiary) or for a
substantial part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any of the
foregoing shall be entered;




     (i) the Borrower (or any Significant Subsidiary) shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other relief under
any Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h) of this Article VII,
(iii) apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower (or any Significant
Subsidiary) or for a substantial part of its assets, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;




     (j) the Borrower (or any Significant Subsidiary) shall become unable, admit in writing
or fail generally to pay its debts as they become due;




     (k) one or more judgments for the payment of money in an aggregate amount in
excess of $250,000,000 shall be rendered against the Borrower (or any Significant
Subsidiary) and the same shall remain undischarged for a period of 60 consecutive days
during which execution shall not be effectively stayed, or any action shall be legally taken
by a judgment




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creditor to attach or levy upon any assets of the Borrower (or any Significant
Subsidiary) to enforce any such judgment;




     (l) an ERISA Event shall have occurred that could reasonably be expected to result in a
Material Adverse Effect; or




     (m) the Guarantees under Section 9.15 by any Subsidiary Guarantor shall cease to be in
full force and effect, or shall be asserted in writing by any Obligor not to be in effect or
not to be legal, valid and binding obligations, other than pursuant to a release permitted
under Section 9.02;



then, and in every such event (other than an event with respect to any Obligor described in clause
(h) or (i) of this Article VII), and at any time thereafter during the continuance of such event,
the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared to be due and payable),
and thereupon the principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become
due and payable immediately, without presentment, demand, protest or other notice of any kind, all
of which are hereby waived by the Borrower; and in case of any event with respect to any Obligor
described in clause (h) or (i) of this Article VII, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder (including without limitation, the
obligation to provide cash collateral for Letters of Credit as set forth in Section 2.04(i)), shall
automatically become due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.




          In addition to the foregoing, at any time after the occurrence and during the continuance of
an Event of Default, the Issuing Bank(s) in respect of any Letter of Credit may at the request of
the Required Lenders send a notice of termination to the beneficiary under such Letter of Credit to
the extent permitted under the terms of such Letter of Credit.




ARTICLE VIII

THE ADMINISTRATIVE AGENT




          Each of the Lenders and each Issuing Bank hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms of this Agreement
and the other Loan Documents, together with such actions and powers as are reasonably incidental
thereto.




          JPMorgan Chase Bank, N.A. shall have the same rights and powers in its capacity as a Lender
hereunder as any other Lender and may exercise the same as though JPMorgan Chase Bank, N.A. were
not the Administrative Agent, and any bank serving in the capacity of Administrative Agent from
time to time and its Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrower or any Subsidiary or other Affiliate of any thereof as if it
were not the Administrative Agent hereunder.




          The Administrative Agent shall not have any duties or obligations except those expressly set
forth in this Agreement and the other Loan Documents. Without limiting the generality of the






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foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative
Agent shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated by this Agreement and the
other Loan Documents that the Administrative Agent is required to exercise in writing by the
Required Lenders, and (c) except as expressly set forth herein and in the other Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any of its Subsidiaries that is
communicated to or obtained by the bank serving as the Administrative Agent or any of its
Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders or, if provided herein,
with the consent or at the request of the Required Lenders of a particular Class, or in the absence
of its own gross negligence or willful misconduct. The Administrative Agent shall not be deemed to
have knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or the other Loan Documents, (ii) the
contents of any certificate, report or other document delivered hereunder or under any of the other
Loan Documents or in connection herewith of therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or in any other Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, the
other Loan Documents or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.




          The Administrative Agent shall not be required to initiate or conduct any litigation or
collection proceedings hereunder or under any other Loan Document.




          The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any liability for relying
thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the
Borrower), independent accountants and other experts selected by it, and shall not be liable for
any action taken or not taken by it in accordance with the advice of any such counsel, accountants
or experts.




          The Administrative Agent may perform any and all of its duties, and exercise its rights and
powers, by or through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all its duties and exercise its
rights and powers through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective activities in
connection with the syndication of the credit facilities provided for herein as well as activities
as the Administrative Agent.




          Subject to the appointment and acceptance of a successor Administrative Agent as provided in
this paragraph, the Administrative Agent may resign at any time by notifying the Lenders, each
Issuing Bank and the Obligor Representative. Upon any such resignation, the Required Lenders shall
have the right, in consultation with the Borrower, to appoint a successor Administrative Agent. If
no successor shall have been so appointed and shall have accepted such appointment within 30 days
after such retiring Administrative Agent gives notice of its resignation, then such retiring
Administrative Agent may, on behalf of the Lenders and the Issuing Banks, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of
any such bank. Upon the






65









 







acceptance of its appointment as Administrative Agent by a successor, such successor shall
succeed to and become vested with all the rights, powers, privileges and duties of such retiring
Administrative Agent, and such retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents. The fees payable by the Borrower to a
successor Administrative Agent shall be the same as those payable to its predecessor unless
otherwise agreed between the Borrower and such successor. After the Administrative Agent’s
resignation hereunder, the provisions of this Article VIII and Section 9.03 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 Administrative Agent.




          Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent, any Issuing Bank 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 Administrative Agent, any Issuing Bank 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 and the other Loan Documents, any
related agreement or any document furnished hereunder or thereunder.




          Anything herein to the contrary notwithstanding, none of the Bookrunners, Lead Arrangers,
Syndication Agent or Documentation Agents listed on the cover page hereof shall have any duties or
responsibilities under this Agreement, except in their capacity, if any, as Lenders hereunder.




ARTICLE IX

MISCELLANEOUS




          SECTION 9.01 Notices.




          (a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:





     (i) if to the Borrower (as Borrower or Obligor Representative), 6200 Sprint Parkway,
Overland Park, Kansas 66251, Attention Greg D. Block, Vice President and Treasurer (Telecopy
No. 913-523-1911), with a copy to it at 6200 Sprint Parkway, Overland Park, Kansas 66251,
Attention: General Counsel (Telecopy No. 913-523-9802);




     (ii) if to the Administrative Agent, to JPMorgan Chase Bank, N.A., Loan and Agency
Services, 1111 Fannin Street, 10th Floor, Houston, Texas 77002-8069, Attention: Gloria
Javier (Telephone No. (713) 750-7919; Telecopy No. (713) 750-2378), with a copy to it at 383
Madison Avenue, Floor 24, New York, NY, 10179, Attention: Tina Ruyter (Telephone No.
212-270-4676; Telecopy No. 212-270-5127)); and




     (iii) if to any Lender (including any Lender in its capacity as an Issuing Bank
hereunder), to it at its address (or telecopy number) set forth in its Administrative
Questionnaire.



          (b) Electronic Notification. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not apply to
notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the
applicable Lender. The Administrative Agent or the Obligor Representative may, in their discretion,
agree to accept notices and other






66









 







communications to it hereunder by electronic communications pursuant to procedures approved by
it; provided that approval of such procedures may be limited to particular notices or
communications.




          (c) Modifications to Notice Provisions. Any party hereto may change its address or
telecopy number for notices and other communications hereunder by notice to the other parties
hereto (or, in the case of any such change by a Lender, by notice to the Borrower and the
Administrative Agent). All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the date of receipt.




     SECTION 9.02 Waivers: Amendments.



          (a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the Administrative
Agent, any Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or power, or any
abandonment or discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights and remedies of
the Administrative Agent, the Issuing Banks and the Lenders hereunder are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of
this Agreement or consent to any departure by any Obligor therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section 9.02, and then such waiver or
consent shall be effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of
Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the respective Issuing Bank may have had notice or knowledge of such Default
at the time.




          (b) Amendments to this Agreement. 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 Borrower and the Required Lenders or by the Borrower and the Administrative Agent with
the consent of the Required Lenders; provided that no such agreement shall:





     (i) increase any Commitment of any Lender without the written consent of such Lender;




     (ii) reduce the principal amount of any Loan or LC Disbursement or reduce the rate of
interest thereon, or reduce any fees payable hereunder, without the written consent of each
Lender affected thereby;




     (iii) postpone the scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce the amount
of, waive or excuse any such payment, or postpone the scheduled date of reduction or
expiration of any Commitment, without the written consent of each Lender affected thereby;




     (iv) change Section 2.17(c) or 2.17(d), without the written consent of each Lender
affected thereby; or




     (v) change any of the provisions of this Section 9.02 or the percentage set forth in
the definition of “Required Lenders” or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder or under any
other Loan Document or make any determination or grant any consent hereunder or thereunder,
without the written consent of each Lender;



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provided further that (A) no such agreement shall amend, modify or otherwise affect
the rights or duties of the Administrative Agent or any Issuing Bank hereunder without the prior
written consent of the Administrative Agent or Issuing Bank, as the case may be and (B) no consent,
other than the Required Lenders of a Class (and of each affected Lender of such Class) shall be
required to effect any of the changes referred to in clause (iii) above with respect to such Class.






          In connection with any waiver, amendment or other modification to this Agreement, the
Administrative Agent shall be permitted to establish a “record date” to determine which Lenders are
to be entitled to participate in consenting to such waiver, amendment or modification (it being
understood that Persons that become “Lenders” under this Agreement after such “record date”
pursuant to an assignment in accordance with Section 9.04 shall not be entitled to participate in
such consent), provided that in no event shall such “record date” be a date more than 10
days earlier than the date such waiver, amendment or modification is distributed to the Lenders for
execution.




          Anything in this Agreement to the contrary notwithstanding, (A) no waiver or modification of
any provision of this Agreement that has the effect (either immediately or at some later time) of
enabling the Borrower to satisfy a condition precedent to the making of a Loan of any Class shall
be effective against the Lenders of such Class, unless the Required Lenders of the affected Class
shall have concurred with such waiver or modification, and (B) no waiver or modification of any
provision of this Agreement or any other Loan Document that could reasonably be expected to
adversely affect the Lenders of any Class disproportionately when compared to the Lenders of all
other Classes shall be effective against the Lenders of such Class unless the Required Lenders of
such Class shall have concurred with such waiver or modification, provided that nothing in
this clause (B) shall override any provision in this Agreement or the other Loan Documents that
expressly permits any action to be taken, or waiver to be given, by the Required Lenders.




          For purposes of this Section, the “scheduled date of payment” of any amount shall refer to the
date of payment of such amount specified in this Agreement, and shall not refer to a date or other
event specified for the mandatory or optional prepayment of such amount. In addition, whenever a
waiver, amendment or modification requires the consent of a Lender “affected” thereby, such waiver,
amendment or modification shall, upon consent of such Lender, become effective as to such Lender
whether or not it becomes effective as to any other Lender, so long as the Required Lenders (or, as
applicable, the Required Lenders of the relevant Class) consent to such waiver, amendment or
modification as provided above.




          Except as otherwise provided in this Section 9.02(b) with respect to this Agreement, the
Administrative Agent may, with the prior consent of the Required Lenders (but not otherwise),
consent to any modification, supplement or waiver under any of the Loan Documents (other than this
Agreement); provided that without the prior consent of each Lender, the Administrative Agent shall
not release all or substantially all of the Subsidiary Guarantors from their guarantee obligations
under Section 9.15; provided further that any Subsidiary Guarantor shall be automatically released
from its guarantee obligations under Section 9.15 and all other obligations under the Loan
Documents if such Subsidiary Guarantor ceases to be a Subsidiary as a result of a Disposition or
other transaction permitted by this Agreement so long as (i) no Default or Event of Default shall
have occurred and be continuing, (ii) no such release shall occur if such Subsidiary Guarantor
continues to Guarantee the EDC Indebtedness or any other Indebtedness of the Borrower unless and
until such Subsidiary Guarantor is (or is being simultaneously) released from its Guarantee of the
EDC Indebtedness and any other Indebtedness of the Borrower and (iii) the Obligor Representative
shall have given notice of such Disposition to the Administrative Agent. The Administrative Agent
shall promptly take such actions as may be reasonably requested by the Obligor Representative to
effect and evidence any release pursuant to the foregoing.







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          SECTION 9.03 Expenses: Indemnity: Damage Waiver.




          (a) Costs and Expenses. The Borrower agrees to pay, or reimburse the Administrative
Agent for paying, (i) all reasonable out-of-pocket expenses incurred by the Arrangers and the
Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements
of Special Counsel, the preparation of this Agreement and the other Loan Documents or any
amendments, modifications or waivers of the provisions hereof or thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all out-of-pocket expenses
incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder, (iii) all out-of-pocket expenses
incurred by the Administrative Agent, any Issuing Bank or any Lender, including the fees, charges
and disbursements of one counsel acting on behalf of all indemnified persons (and, in the event of
any conflict of interest, of additional counsel for all affected indemnified persons and, if
necessary, of one local counsel in any relevant jurisdiction) the Administrative Agent, Issuing
Bank or Lender, in connection with the enforcement or protection of its rights in connection with
this Agreement and the other Loan Documents, including its rights under this Section 9.03, or in
connection with the Loans made or Letters of Credit issued hereunder, including in connection with
any workout, restructuring or negotiations in respect thereof and (iv) all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any governmental or revenue
authority in respect of this Agreement or any of the other Loan Documents or any other document
referred to herein or therein.




          (b) Indemnification by Borrower. The Borrower agrees to indemnify the Administrative
Agent, the Arrangers, each Issuing Bank and each Lender, and each Related Party of any of the
foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses,
including the reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result
of (i) the execution or delivery of this Agreement, the other Loan Documents or any agreement or
instrument contemplated hereby, the performance by the parties hereto and thereto of their
respective obligations hereunder or thereunder or the consummation of the Transactions or any other
transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by any Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit) or (iii) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory and regardless of whether any Indemnitee is a party thereto; provided that
such indemnity shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses 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 Indemnitee.




          (c) Reimbursement by Lenders. To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent under paragraph (a) or (b) of this Section
9.03, each Lender severally agrees to pay to the Administrative Agent such Lender’s Applicable
Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment
is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified
loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such. To the extent that the Borrower fails to
pay any amount required to be paid by it to any Issuing Bank under paragraph (a) or (b) of this
Section 9.03, each Revolving Credit Lender severally agrees to pay to such Issuing Bank such
Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense
or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed
expense or indemnified loss, claim,






69









 







damage, liability or related expense, as the case may be, was incurred by or asserted against
such Issuing Bank in its capacity as such. Nothing herein shall be deemed to limit the obligations
of the Borrower under paragraph (b) above to reimburse the Lenders for any payment made under this
paragraph (c).




          (d) Waiver of Consequential Damages, Etc. To the extent permitted by applicable law,
none of the Obligors shall assert, and each Obligor hereby waives, any claim against any
Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or as a result of,
this Agreement, the other Loan Documents or any agreement or instrument contemplated hereby or
thereby, the Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.




          (e) Payments. All amounts due under this Section 9.03 shall be payable promptly after
written demand therefor.




          SECTION 9.04 Successors and Assigns.




          (a) Assignments Generally. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns permitted
hereby including any Affiliate of the Issuing Bank that issues any Letter of Credit, except that
(i) Borrower may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment or transfer by the
Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this Section 9.04. Nothing
in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby including any
Affiliate of any Issuing Bank that issues any Letter of Credit, Participants (to the extent
provided in paragraph (c) of this Section 9.04) and, to the extent expressly contemplated hereby,
the Related Parties of each of the Administrative Agent, the Issuing Banks and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.




          (b) Assignments by Lenders.





     (i) Assignments Generally. Subject to the conditions set forth in paragraph
(b)(ii) below, any Lender may assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its Commitments, and the
Loans, at the time held by it) with the prior written consent (such consent not to be
unreasonably withheld or delayed) of:




     (A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender that is a bank or
another financial institution, an Approved Fund or, if an Event of Default has
occurred and is continuing, any other assignee; provided, further,
that the Borrower shall be deemed to have consented to any such assignment unless it
shall object thereto by written notice to the Administrative Agent within 30 days
after having acknowledged receiving notice thereof;




     (B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for an assignment of any Incremental Term
Facility to a Lender, an Affiliate of a Lender or an Approved Fund; and




     (C) each Issuing Bank, in the case of an assignment of all or a portion of a
Revolving Credit Commitment or any Revolving Credit Lender’s obligations in respect
of its LC Exposure.



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          (ii) Certain Conditions to Assignments. Assignments shall be subject to the
following additional conditions:





     (A) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an Approved Fund, or an assignment of the entire remaining amount of the
assigning Lender’s Commitments of any Class (including Loans of such Class), or
Incremental Term Facility of any Class as to which there are no outstanding
Commitments, the amount of the Commitment or Loans of such Class of the assigning
Lender subject to each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative Agent
and treating related Approved Funds as one assignee for this purpose) shall not be
less than $5,000,000 unless the Borrower and the Administrative Agent otherwise
consent, provided that no such consent of the Borrower shall be required if
an Event of Default has occurred and is continuing;




     (B) each partial assignment shall be made as an assignment of a proportionate
part of all the assigning Lender’s rights and obligations under this Agreement,
provided that this clause shall not be construed to prohibit the assignment
of a proportionate part of all the assigning Lender’s rights and obligations in
respect of one Class of Commitments or Loans, except that this clause (B) shall not
apply to rights in respect of outstanding Competitive Loans;




     (C) no assignments may be made to (i) any natural person or (ii) any other
Person that the Administrative Agent reasonably determines is maintained primarily
for the purpose of holding or managing investments for the benefit of any natural
person and/or any immediate family members or heirs thereof, in each case unless
otherwise agreed by each of the Administrative Agent and the Borrower in its sole
discretion;




     (D) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500; and




     (E) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.




     (iii) Effectiveness of Assignments. Subject to acceptance and recording
thereof pursuant to paragraph (c) of this Section 9.04, from and after the effective date
specified in each Assignment and Assumption the assignee thereunder shall be a party hereto
and, to the extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and Assumption, be released
from its obligations under this Agreement (and, in the case of an Assignment and Assumption
covering all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of
Sections 2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04 shall be
treated for purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (e) of this Section 9.04.



          (c) Maintenance of Register by Administrative Agent. The Administrative Agent, acting
for this purpose as an agent of the Borrower, shall maintain at one of its offices a copy of each






71









 







Assignment and Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amount of the Loans and LC
Disbursements held by, each Lender pursuant to the terms hereof from time to time (the
“Register”). The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Banks and the Lenders shall treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of
this Agreement, notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, any Issuing Bank and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.




          (d) Acceptance of Assignments by Administrative Agent. Upon its receipt of a duly
completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s
completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder),
the processing and recordation fee referred to in paragraph (b) of this Section 9.04 and any
written consent to such assignment required by said paragraph (b), the Administrative Agent shall
accept such Assignment and Assumption and record the information contained therein in the Register.
No assignment shall be effective for purposes of this Agreement unless it has been recorded in the
Register as provided in this paragraph.




          (e) Participations.





     (i) Participations Generally. Any Lender may, without the consent of the
Borrower, the Administrative Agent or any Issuing Bank, sell participations to one or more
banks or other financial institutions (a “Participant”) in all or a portion of such
Lender’s rights and obligations under this Agreement (including all or a portion of its
Commitments and the Loans held by it); provided that (A) such Lender’s obligations
under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible
to the other parties hereto for the performance of such obligations and (C) the Borrower,
the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender’s rights and obligations
under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (e)(ii) of this Section 9.04, the Borrower agrees that each Participant
shall be entitled to the benefits of, and subject to the limitations of, Sections 2.14, 2.15
and 2.16 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section 9.04. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 9.08 as though it were a
Lender, provided that such Participant agrees to be subject to Section 2.17(d) as
though it were a Lender. Each Lender that sells a participation, acting solely for tax
purposes as an agent of the Borrower, shall maintain a register on which it enters the name
and address of each Participant and the principal amounts (and stated interest) of each
Participant’s interest in the Loans or other obligations under this Agreement (the
“Participant Register”); provided, however, that no Lender shall
have any obligation to disclose all or any portion of the Participant Register to the
Borrower or any other Person without such Lender’s prior written consent (including,
without, limitation, the identity of any participant or any information relating to such
participant’s participating interest). The entries in the Participant Register shall be
conclusive, and such Lender, each Obligor and the Administrative Agent shall treat each
person whose name is recorded in the Participant Register pursuant to the terms hereof as
the owner of such participation for all purposes of this Agreement, notwithstanding notice
to the contrary.



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     (ii) Limitations on Rights of Participants. A Participant shall not be
entitled to receive any greater payment under Section 2.14, 2.15 or 2.16 than the applicable
Lender would have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made with the
Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.16 unless the Borrower is notified
of the participation sold to such Participant and such Participant complies with Section
2.16(f) as though it were a Lender.



          (f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve Bank, and this
Section 9.04 shall not apply to any such pledge or assignment of a security interest;
provided that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such assignee for such Lender as a party
hereto.




          (g) No Assignments to Borrower or Affiliates. Anything in this Section 9.04 to the
contrary notwithstanding, no Lender may assign or participate any interest in any Loan or LC
Disbursement held by it hereunder to the Borrower or any of its Affiliates or Subsidiaries without
the prior consent of each Lender.




          SECTION 9.05 Survival. All covenants, agreements, representations and warranties made
by the Obligors herein and in the other Loan Documents, and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement and the other Loan
Documents, shall be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the other Loan Documents and the making of
any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or
any Lender may have had notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full force and effect so long
as the principal of or any accrued interest on any Loan or any fee or any other amount payable
under this Agreement or the other Loan Documents is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or terminated. The provisions of
Section 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby, any assignment or
participation pursuant to Section 9.04 (with respect to matters arising prior to such assignment or
participation), the repayment of the Loans and the payment of any other obligations under this
Agreement or any other Loan Document, the expiration or termination of the Letters of Credit and
the Commitments or the termination of this Agreement or any other Loan Document or any provision
hereof or thereof.




          SECTION 9.06 Counterparts; Integration; Effectiveness. This Agreement may be executed
in counterparts (and by different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings, oral or written,
relating to the subject matter hereof. This Agreement shall become effective when it shall have
been executed by the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns. Delivery of an executed counterpart of a signature page of
this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.







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          SECTION 9.07 Severability. Any provision of this Agreement held to be invalid,
illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality
and enforceability of the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.




          SECTION 9.08 Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender is hereby authorized at any time and from time to time, to the fullest
extent permitted by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any time owing by such
Lender to or for the credit or the account of the Obligors against any of and all the obligations
of the Obligors now or hereafter existing under this Agreement held by such Lender, irrespective of
whether or not such Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section 9.08 are in addition to
any other rights and remedies (including other rights of setoff) which such Lender may have.




          SECTION 9.09 Governing Law: Jurisdiction; Consent to Service of Process.




          (a) Governing Law. This Agreement shall be construed in accordance with and governed
by the law of the State of New York.




          (b) Submission to Jurisdiction. Each party hereto (other than any Lender that is an
agency of a Governmental Authority) hereby irrevocably and unconditionally submits, for itself and
its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting
in New York County and of the United States District Court of the Southern District of New York,
and any appellate court from any thereof, in any action or proceeding arising out of or relating to
this Agreement or the other Loan Documents, or for recognition or enforcement of any judgment, and
each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in such New York State court (or, to
the extent permitted by law, in such Federal court). Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Administrative Agent, any Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or any other Loan
Document against any Obligor or its properties in the courts of any jurisdiction.




          (c) Waiver of Venue. Each party hereto hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating
to this Agreement or the other Loan Documents in any court referred to in paragraph (b) of this
Section 9.09. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any
such court.




          (d) Service of Process. Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other manner permitted by
law.




          SECTION 9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS






74









 







CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 9.10.




          SECTION 9.11 Headings. Article and Section headings and the Table of Contents used
herein are for convenience of reference only, are not part of this Agreement and shall not affect
the construction of, or be taken into consideration in interpreting, this Agreement.




          SECTION 9.12 Confidentiality. Each of the Administrative Agent, the Issuing Banks and
the Lenders agrees to maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates, directors, officers, employees and
agents, including 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 any pledgee referred to
in Section 9.04(f) or any direct or indirect contractual counterparty in swap agreements (or to
such pledgee or contractual counterparty’s professional advisor), so long as such pledgee or
contractual counterparty (or such professional advisor) agrees to be bound by the provisions of
this Section 9.12, (c) to the extent requested by any regulatory authority or self-regulatory body,
(d) to the extent required by applicable laws or regulations or by any subpoena or similar legal
process, (e) to any other party to this Agreement, (f) 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, (g) subject to the execution and delivery of an agreement containing
provisions substantially the same as those of this Section 9.12, to any assignee of or Participant
in, or any prospective assignee of or Participant in, any of its rights or obligations under this
Agreement, (h) with the consent of the Obligors or (i) to the extent such Information (i) becomes
publicly available other than as a result of a breach of this Section 9.12 or (ii) becomes
available to the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis
from a source other than the Obligors. Unless specifically prohibited by applicable law or court
order, each Lender and the Administrative Agent shall, prior to disclosure thereof, notify the
Obligor Representative of any request for disclosure of any Information (A) by any governmental
agency or representative thereof (other than any such request in connection with an examination of
the financial condition of such Lender by such governmental agency) or (B) pursuant to legal
process (including agency subpoenas) and, at the expense of the Obligors, will cooperate with
reasonable efforts by the Obligors to seek a protective order or other assurances that confidential
treatment will be accorded such Information.




          For the purposes of this Section 9.12, “Information” means all information received
from the Obligor Representative relating to the Obligors or their business, other than any such
information that is available to the Administrative Agent, any Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; provided that, in the case of
information received from the Obligors 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 9.12 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 9.13 USA PATRIOT Act. Each Lender hereby notifies the Obligors that pursuant
to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October
26, 2001)), it may be required to obtain, verify and record information that identifies the






75









 







Obligors, which information includes the names and addresses of the Obligors and other
information that will allow such Lender to identify the Obligors in accordance with said Act. The
U.S. Federal Tax Identification No. of the Borrower is 48-0457967.




          SECTION 9.14 [Reserved].




          SECTION 9.15 Guarantee.




          (a) The Guarantee. The Subsidiary Guarantors hereby unconditionally jointly and severally
guarantee, as primary obligor and not merely as surety, to each of the Guaranteed Parties and their
respective successors and assigns the prompt performance and payment in full when due (whether at
stated maturity, by acceleration or otherwise) of the Obligations. The Subsidiary Guarantors hereby
further unconditionally jointly and severally agree that (i) if the Borrower shall fail to pay in
full when due (whether at stated maturity, by acceleration or otherwise) any of the Obligations,
the Subsidiary Guarantors will promptly pay the same upon receipt of written demand for payment
thereof, without any other demand or notice whatsoever, and (ii) in the case of any extension of
time of payment or renewal of any of the Obligations, the Obligations will be promptly paid in full
when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms
of such extension or renewal. This is a continuing guaranty and is a guaranty of payment and not
merely of collection, and shall apply to all Obligations whenever arising.




          (b) Acknowledgments, Waivers and Consents. Each Subsidiary Guarantor agrees that its
obligations under this Section 9.15 shall, to the fullest extent permitted by applicable law, be
primary, absolute, irrevocable and unconditional under any and all circumstances and shall apply to
any and all Obligations now existing or in the future arising. Without limiting the foregoing, each
Subsidiary Guarantor agrees that:




          (i) Guarantee Absolute. The occurrence of any one or more of the following
shall not affect, limit, reduce, discharge or terminate the liability of such Subsidiary
Guarantor hereunder, which shall remain primary, absolute, irrevocable and unconditional as
described above:





     (A) Any modification or amendment (including by way of amendment, extension,
renewal or waiver), or any acceleration or other change in the manner or time for
payment or performance, of the Obligations, any Loan Document or any other agreement
or instrument whatsoever relating to the Obligations, or any modification of the
Commitments;




     (B) any release, termination, waiver, abandonment, lapse, expiration,
subordination or enforcement of any other guaranty of or insurance for any of the
Obligations, or the non-perfection or release of any collateral for any of the
Obligations;




     (C) any application by any of the Guaranteed Parties of the proceeds of any
other guaranty of or insurance for any of the Obligations to the payment of any of
the Obligations;




     (D) any settlement, compromise, release, liquidation or enforcement by any of
the Guaranteed Parties of any of the Obligations;




     (E) the giving by any of the Guaranteed Parties of any consent to the merger or
consolidation of, the sale of substantial assets by, or other restructuring or
termination



76









 






     of the corporate existence of, any Obligor or any other Person, or to any
disposition of any shares by any Obligor or any other Person;




     (F) any proceeding by any of the Guaranteed Parties against any Obligor or any
other Person or in respect of any collateral for any of the Obligations, or the
exercise by any of the Guaranteed Parties of any of their rights, remedies, powers
and privileges under the Loan Documents, regardless of whether any of the Guaranteed
Parties shall have proceeded against or exhausted any collateral, right, remedy,
power or privilege before proceeding to call upon or otherwise enforce this
Agreement;




     (G) the entering into any other transaction or business dealings with any
Obligor, or any other Person; or




     (H) any combination of the foregoing.



          (ii) Waiver of Defenses. The liability of the Subsidiary Guarantors and the
rights, remedies, powers and privileges of the Guaranteed Parties hereunder shall not be
affected, limited, reduced, discharged or terminated, and each Subsidiary Guarantor hereby
expressly waives to the fullest extent permitted by law any defense now or in the future
arising, by reason of:





          (A) the illegality, invalidity or unenforceability of any of the Obligations,
any Loan Document or any other agreement or instrument whatsoever relating to any of
the Obligations;




          (B) any disability or other defense with respect to any of the Obligations,
including the effect of any statute of limitations, that may bar the enforcement
thereof or the obligations of such Subsidiary Guarantor relating thereto;




          (C) the illegality, invalidity or unenforceability of any other guaranty of or
insurance for any of the Obligations or any lack of perfection or continuing
perfection or failure of the priority of any Lien on any collateral for any of the
Obligations;




          (D) the cessation, for any cause whatsoever, of the liability of any Obligor
with respect to any of the Obligations (other than, subject to paragraph (c) of this
Section 9.15, by reason of the payment thereof);




          (E) any failure of any of the Guaranteed Parties to marshal assets, to exhaust
any collateral for any of the Obligations, to pursue or exhaust any right, remedy,
power or privilege it may have against any Obligor or any other Person, or to take
any action whatsoever to mitigate or reduce the liability of any Subsidiary
Guarantor under this Agreement, the Guaranteed Parties being under no obligation to
take any such action notwithstanding the fact that any of the Obligations may be due
and payable and that any Obligor may be in default of its obligations under any Loan
Document;




          (F) any counterclaim, set-off or other claim which any Obligor has or claims
with respect to any of the Obligations;




          (G) any failure of any of the Guaranteed Parties to file or enforce a claim in
any bankruptcy, insolvency, reorganization or other proceeding with respect to any
Person;



77









 






          (H) any bankruptcy, insolvency, reorganization, winding-up or adjustment of
debts, or appointment of a custodian, liquidator or the like of it, or similar
proceedings commenced by or against any Obligor or any other Person, including any
discharge of, or bar, stay or injunction against collecting, any of the Obligations
(or any interest on any of the Obligations) in or as a result of any such
proceeding;




          (I) any action taken by any of the Guaranteed Parties that is authorized by
this paragraph (b) or otherwise in this Agreement or by any other provision of any
Loan Document, or any omission to take any such action;




          (J) any law, regulation, decree or order of any jurisdiction, or any other
event, affecting any of the Obligations or any Guaranteed Party’s rights with
respect thereto; or




          (K) any other circumstance whatsoever that might otherwise constitute a legal
or equitable discharge or defense of a surety or guarantor.




     (iii) Waiver of Set-off and Counterclaim, Etc. Each Subsidiary Guarantor
expressly waives, to the fullest extent permitted by law, for the benefit of each of the
Guaranteed Parties, any right of set-off and counterclaim with respect to payment of its
obligations hereunder, and all diligence, presentment, demand for payment or performance,
notice of nonpayment or nonperformance, protest, notice of protest, notice of dishonor and
all other notices or demands whatsoever, and any requirement that any of the Guaranteed
Parties exhaust any right, remedy, power or privilege or proceed against any Obligor under
this Agreement or any other Loan Document or other agreement or instrument referred to
herein or therein, or against any other Person, and all notices of acceptance of this
Agreement or of the existence, creation, incurring or assumption of new or additional
Obligations. Each Subsidiary Guarantor further expressly waives the benefit of any and all
statutes of limitation, to the fullest extent permitted by applicable law.




     (iv) Other Waivers. Each Subsidiary Guarantor expressly waives, to the fullest
extent permitted by law, for the benefit of each of the Guaranteed Parties, any right to
which it may be entitled:




     (A) that the assets of any Obligor first be used, depleted and/or applied in
satisfaction of the Obligations prior to any amounts being claimed from or paid by
such Subsidiary Guarantor;




     (B) to require that any Obligor be sued and all claims against such Obligor be
completed prior to an action or proceeding being initiated against such Subsidiary
Guarantor; and




     (C) to have its obligations hereunder be divided among the Subsidiary
Guarantors, such that each Subsidiary Guarantor’s obligation would be less than the
full amount claimed.



          (c) Reinstatement. The obligations of each Subsidiary Guarantor under this Section
9.15 shall be automatically reinstated if and to the extent that for any reason any payment by or
on behalf of the Obligors or any other Person in respect of the Obligations is rescinded or must
otherwise be restored by any holder of any of the Obligations, whether as a result of any
bankruptcy, insolvency or reorganization proceeding or otherwise, and the Subsidiary Guarantors
jointly and severally agree that they will indemnify the Guaranteed Parties on demand for all
out-of-pocket costs and expenses (including






78









 







out-of-pocket fees of counsel) incurred by them in connection with such rescission or
restoration, including any such out-of-pocket costs and expenses incurred in defending against any
claim alleging that such payment constituted a preference, fraudulent transfer or the like under
any bankruptcy, insolvency, reorganization or similar law.




          (d) Subrogation. Each Subsidiary Guarantor agrees that, until the final payment in
full of all Obligations and the expiration or termination of the Commitments and all Letters of
Credit under this Agreement, such Subsidiary Guarantor shall not exercise any right or remedy
arising by reason of any performance by such Subsidiary Guarantor of its obligations hereunder,
whether by subrogation, reimbursement, contribution or otherwise, against any Obligor or any other
Person or any collateral for any of the Obligations.




          (e) Remedies. Each Subsidiary Guarantor agrees that, as between such Subsidiary
Guarantor and the Guaranteed Parties, the obligations of any Obligor under this Agreement and the
other Loan Documents may be declared to be forthwith due and payable as provided therein (and shall
become automatically due and payable in the circumstances provided therein) for purposes of
paragraph (a) of this Section 9.15, notwithstanding any bar, stay, injunction or other prohibition
preventing such declaration (or such obligations from becoming automatically due and payable) as
against such Obligor, and that, in the event of such declaration (or such obligations becoming
automatically due and payable), such obligations shall forthwith become due and payable by such
Subsidiary Guarantor for purposes of said paragraph (a) of this Section 9.15.




          (f) Rights of Contribution. The Subsidiary Guarantors hereby agree, as between
themselves, that if any Subsidiary Guarantor shall become an Excess Funding Subsidiary Guarantor
(as defined below) by reason of the payment by such Subsidiary Guarantor of any of the Obligations,
each other Subsidiary Guarantor shall, on written demand of such Excess Funding Subsidiary
Guarantor (but subject to the immediately following sentence), pay to such Excess Funding
Subsidiary Guarantor an amount equal to such Subsidiary Guarantor’s Pro Rata Subsidiary Guarantor
Share (as defined below and determined, for this purpose, without reference to the properties,
debts and liabilities of such Excess Funding Subsidiary Guarantor) of the Excess Subsidiary
Guarantor Payment (as defined below) in respect of such Obligations. The payment obligation of a
Subsidiary Guarantor to any Excess Funding Subsidiary Guarantor under this paragraph (f) shall be
subordinate and subject in right of payment to the prior payment in full of the Obligations and
such Excess Funding Subsidiary Guarantor shall not exercise any right or remedy with respect to
such excess until payment in full of all of the Obligations.




     For purposes of this paragraph (f), (i) “Excess Funding Subsidiary Guarantor” means a
Subsidiary Guarantor that has paid an amount in excess of its Pro Rata Subsidiary Guarantor Share
of the Obligations, (ii) “Excess Subsidiary Guarantor Payment” means the amount paid by an Excess
Funding Subsidiary Guarantor in excess of its Pro Rata Subsidiary Guarantor Share of the
Obligations and (iii) “Pro Rata Subsidiary Guarantor Share” means, for any Subsidiary Guarantor,
the ratio (expressed as a percentage) of (x) the amount by which the aggregate fair saleable value
of all properties of such Subsidiary Guarantor (excluding any shares of stock of any other
Subsidiary Guarantor) exceeds the amount of all the debts and liabilities of such Subsidiary
Guarantor (including contingent, subordinated, unmatured and unliquidated liabilities, but
excluding the obligations of such Subsidiary Guarantor hereunder and any obligations of any other
Subsidiary Guarantor that have been Guaranteed by such Subsidiary Guarantor) to (y) the amount by
which the aggregate fair saleable value of all properties of all of the Subsidiary Guarantors
exceeds the amount of all the debts and liabilities of all of the Subsidiary Guarantors (including
contingent, subordinated, unmatured and unliquidated liabilities, but excluding the obligations of
the Subsidiary Guarantors under the Loan Documents), determined (A) with respect to any Subsidiary
Guarantor that is a party hereto on the date hereof, as of the date hereof, and (B) with respect



79









 




to any other Subsidiary Guarantor, as of the date such Subsidiary Guarantor becomes a
Subsidiary Guarantor hereunder.




          (g) General Limitation on Guarantee Obligations. In any action or proceeding involving
any state corporate law, or any state or Federal bankruptcy, insolvency, reorganization or other
law affecting the rights of creditors generally, if the obligations of any Subsidiary Guarantor
under paragraph (a) of this Section 9.15 would otherwise, taking into account the provisions of
paragraph (f) of this Section 9.15, be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of its liability under
paragraph (a) of this Section 9.15, then, notwithstanding any other provision hereof to the
contrary, the amount of such liability shall, without any further action by such Subsidiary
Guarantor, any Guaranteed Party or any other Person, be automatically limited and reduced to the
highest amount that is valid and enforceable and not subordinated to the claims of other creditors
as determined in such action or proceeding.




[remainder of page intentionally left blank; signature pages follow]









80









 








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



	 	 	 	 	 
	 	SPRINT NEXTEL CORPORATION, as Borrower

 	 
	 	By:  	/s/ Greg D. Block
 	 
	 	 	Name:  	Greg D. Block 	 
	 	 	Title:  	Vice President & Treasurer 	 
	 
	 
	 	SUBSIDIARY GUARANTORS:



ENTERPRISE COMMUNICATIONS PARTNERSHIP



By: SprintCom ECP I, L.L.C., its General Partner

 	 



	 	 	 	 	 
	 	By:  	/s/ Greg D. Block
 	 
	 	 	Name:  	Greg D. Block 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	By: SprintCom ECP II, L.L.C., its General Partner

 	 



	 	 	 	 	 
	 	By:  	/s/ Greg D. Block
 	 
	 	 	Name:  	Greg D. Block 	 
	 	 	Title:  	Vice President & Treasurer 	 
	 



	 	 	 	 	 
	 	ENTERPRISE DIGITAL PCS, LLC



By: Enterprise Communications Partnership, its Member





By: SprintCom ECP I, L.L.C., its General Partner

 	 



	 	 	 	 	 
	 	By:  	/s/ Greg D. Block
 	 
	 	 	Name:  	Greg D. Block 	 
	 	 	 	 
	 



	 	 	 	 	 
	 	By: SprintCom ECP II, L.L.C., its General Partner

 	 



	 	 	 	 	 
	 	By:  	/s/ Greg D. Block
 	 
	 	 	Name:  	Greg D. Block 	 
	 	 	Title:  	Vice President & Treasurer



	 	 	 	 	 
	 
	 	ENTERPRISE WIRELESS, LLC



	 	By: Enterprise Communications Partnership, its Member 	 
	 



[Credit Agreement]





 









 








	 	 	 	 	 
	 	By: SprintCom ECP I, L.L.C., its General Partner
 	 


	 	 	 	 	 
	 	By:  	/s/ Greg D. Block
 	 
	 	 	Name:  	Greg D. Block 	 
	 	 	 	 


	 	 	 	 	 
	 	By: SprintCom ECP II, L.L.C., its General Partner
 	 


	 	 	 	 	 
	 	By:  	/s/ Greg D. Block
 	 
	 	 	Name:  	Greg D. Block 	 
	 	 	Title:  	Vice President & Treasurer 	 
	 



	 	 	 	 	 
	 	ENTERPRISE TOWERS, LLC



By: Enterprise Communications Partnership, its Member



By: SprintCom ECP I, L.L.C., its General Partner
 	 


	 	 	 	 	 
	 	By:  	/s/ Greg D. Block
 	 
	 	 	Name:  	Greg D. Block 	 
	 	 	 	 


	 	 	 	 	 
	 	By: SprintCom ECP II, L.L.C., its General Partner
 	 


	 	 	 	 	 
	 	By:  	/s/ Greg D. Block
 	 
	 	 	Name:  	Greg D. Block 	 
	 	 	Title:  	Vice President & Treasurer 	 


	 	 	 	 	 
	 	PHILLIECO EQUIPMENT AND REALTY COMPANY, L.P.



By: PhillieCo Sub, L.P., its General Partner
 	 


	 	 	 	 	 
	 	By:  	/s/ Greg D. Block
 	 
	 	 	Name:  	Greg D. Block 	 
	 	 	 	 
	 
	 	C FON CORPORATION

 	 


	 	 	 	 	 
	 	By:  	/s/ Greg D. Block
 	 
	 	 	Name:  	Greg D. Block 	 
	 	 	Title:  	Vice President & Assistant Treasurer 	 
	 



[Credit Agreement]



 









 






	 	 	 	 	 
	 	UNITED TELECOMMUNICATIONS, INC.

 	 
	 	By:  	/s/ Greg D. Block
 	 
	 	 	Name:  	Greg D. Block 	 
	 	 	Title:  	Vice President & Assistant Treasurer 	 
	 
	 	EACH OF THE “SUBSIDIARIES” LISTED ON 
SCHEDULE I
ATTACHED HERETO, 
as Subsidiary Guarantor

 	 
	 	By:  	/s/ Greg D. Block
 	 
	 	 	Name:  	Greg D. Block 	 
	 	 	Title:  	Vice President & Treasurer 	 
	 
	 	JPMORGAN CHASE BANK, N.A.,

as Administrative Agent, as Issuing Bank and

as Lender

 	 
	 	By:  	/s/ Tina Ruyter
 	 
	 	 	Name:  	Tina Ruyter 	 
	 	 	Title:  	Executive Director 	 
	 
	 	CITIBANK, N.A.,

as Issuing Bank and as Lender

 	 
	 	By:  	/s/ Maureen P. Maroney
 	 
	 	 	Name:  	Maureen P. Maroney 	 
	 	 	Title:  	Vice President 	 
	 
	 	BANK OF AMERICA, N.A.,

as Issuing Bank and as Lender

 	 
	 	By:  	/s/ Mark Short
 	 
	 	 	Name:  	Mark Short 	 
	 	 	Title:  	Senior Vice President 	 
	 
	 	BARCLAYS CAPITAL PLC,

as Issuing Bank and as Lender

 	 
	 	By:  	/s/ Kevin Cullen
 	 
	 	 	Name:  	Kevin Cullen 	 
	 	 	Title:  	Director 	 



[Credit Agreement]



 









 






	 	 	 	 	 
	 	DEUTSCHE BANK AG NEW YORK BRANCH,

as Lender

 	 
	 	By:  	/s/ Yvonne Tilden
 	 
	 	 	Name:  	Yvonne Tilden 	 
	 	 	Title:  	Director 	 
	 
	 	 	 
	 	By:  	/s/ Andreas Neumeier
 	 
	 	 	Name:  	Andreas Neumeier 	 
	 	 	Title:  	Managing Director 	 
	 
	 	WELLS FARGO, N.A.,

as Issuing Bank and as Lender

 	 
	 	By:  	/s/ Reginald M. Goldsmith, III
 	 
	 	 	Name:  	Reginald M. Goldsmith, III 	 
	 	 	Title:  	Director 	 
	 
	 	THE BANK OF NOVA SCOTIA,

as Lender

 	 
	 	By:  	/s/ Brenda S. Insull
 	 
	 	 	Name:  	Brenda S. Insull 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	GOLDMAN SACHS BANK USA,

as Lender

 	 
	 	By:  	/s/ Mark Walton
 	 
	 	 	Name:  	Mark Walton 	 
	 	 	Title:  	Authorized Signatory 	 
	 



[Credit Agreement]



 









 






	 	 	 	 	 
	 	THE NORTHERN TRUST COMPANY,

as Lender

 	 
	 	By:  	/s/ Rick Gomez
 	 
	 	 	Name:  	Rick Gomez 	 
	 	 	Title:  	Vice President 	 
	 




[Credit Agreement]