exv10w1



 







Exhibit 10.1




 

 





$850,000,000 BRIDGE CREDIT AGREEMENT




Dated as of August 8, 2006




among




CRICKET COMMUNICATIONS, INC.,

as the Borrower,




LEAP WIRELESS INTERNATIONAL, INC.,

as Holdings,




CITICORP NORTH AMERICA, INC.,

as Administrative Agent,




BANC OF AMERICA SECURITIES LLC,

DEUTSCHE BANK SECURITIES, INC. and

MORGAN STANLEY

as Documentation Agents,




and




GOLDMAN SACHS CREDIT PARTNERS L.P.

as Syndication Agent,




and




The Other Lenders Party Hereto



 




CITIGROUP GLOBAL MARKETS INC. and

GOLDMAN SACHS CREDIT PARTNERS L.P.,




as Lead Arrangers




and




Lead Book Runners




and




BANC OF AMERICA SECURITIES LLC,

DEUTSCHE BANK SECURITIES, INC. and

MORGAN STANLEY




as Co-Arrangers




and




Co-Book Runners




 

 






 
Project Leap Bridge Credit Agreement



 









 







i







TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page	 
	ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS
	 
	 	 	 	 
	1.01 Defined Terms
	 	 	1	 
	1.02 Other Interpretive Provisions
	 	 	29	 
	1.03 Accounting Terms
	 	 	30	 
	1.04 Rounding
	 	 	31	 
	1.05 Times of Day
	 	 	31	 
	1.06 Currency Equivalents Generally
	 	 	31	 
	 
	 	 	 	 
	ARTICLE II

THE COMMITMENTS AND LOANS/EXCHANGE PROCEDURES
	 
	 	 	 	 
	2.01 The Bridge Loans
	 	 	31	 
	2.02 Borrowings, Conversions and Continuations of Bridge Loans
	 	 	31	 
	2.03 Repayment of Bridge Loans; Option to Convert Into Extended Term Loans
	 	 	32	 
	2.04 Prepayments
	 	 	34	 
	2.05 Termination or Reduction of Commitments
	 	 	37	 
	2.06 Repayment of Loans
	 	 	38	 
	2.07 Interest
	 	 	38	 
	2.08 Fees
	 	 	38	 
	2.09 Computation of Interest and Fees
	 	 	39	 
	2.10 Evidence of Debt
	 	 	39	 
	2.11 Payments Generally; Administrative Agent’s Clawback
	 	 	39	 
	2.12 Sharing of Payments by Lenders
	 	 	41	 
	2.13 Increase in Commitments
	 	 	42	 
	2.14 Take-Out Financing; Securities Demand; Registration Rights
	 	 	43	 
	 
	 	 	 	 
	ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY
	 
	 	 	 	 
	3.01 Taxes
	 	 	45	 
	3.02 Illegality
	 	 	47	 
	3.03 Inability to Determine Rates
	 	 	47	 
	3.04 Increased Costs; Reserves on Eurodollar Rate Loans
	 	 	47	 
	3.05 Compensation for Losses
	 	 	48	 
	3.06 Mitigation Obligations; Replacement of Lenders
	 	 	49	 
	3.07 Survival
	 	 	49	 
	 
	 	 	 	 
	ARTICLE IV

CONDITIONS PRECEDENT
	 
	 	 	 	 
	4.01 Conditions to Effectiveness
	 	 	49	 
	4.02 Conditions to Initial Closing Date
	 	 	53	 
	4.03 Conditions to Second Closing Date
	 	 	53	 
	4.04 Conditions to Third Closing Date
	 	 	54	 






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	Section	 	Page	 
	ARTICLE V

REPRESENTATIONS AND WARRANTIES
	 
	 	 	 	 
	5.01 Existence, Qualification and Power; Compliance with Laws
	 	 	55	 
	5.02 Authorization; No Contravention
	 	 	55	 
	5.03 Governmental Authorization; Other Consents
	 	 	55	 
	5.04 Binding Effect
	 	 	55	 
	5.05 Financial Statements; No Material Adverse Effect
	 	 	56	 
	5.06 Litigation
	 	 	56	 
	5.07 No Default
	 	 	57	 
	5.08 Ownership of Property; Liens; Investments
	 	 	57	 
	5.09 Environmental Compliance
	 	 	57	 
	5.10 Insurance
	 	 	57	 
	5.11 Taxes
	 	 	57	 
	5.12 ERISA Compliance
	 	 	58	 
	5.13 Subsidiaries; Equity Interests; Loan Parties
	 	 	58	 
	5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act
	 	 	59	 
	5.15 Disclosure
	 	 	59	 
	5.16 Compliance with Laws
	 	 	59	 
	5.17 Intellectual Property; Licenses, Etc.
	 	 	59	 
	5.18 Solvency
	 	 	60	 
	5.19 Qualified Designated Entity Agreements
	 	 	60	 
	5.20 Permitted Debt
	 	 	60	 
	 
	 	 	 	 
	ARTICLE VI

AFFIRMATIVE COVENANTS
	 
	 	 	 	 
	6.01 Financial Statements
	 	 	60	 
	6.02 Certificates; Other Information
	 	 	61	 
	6.03 Notices
	 	 	63	 
	6.04 Payment of Obligations
	 	 	64	 
	6.05 Preservation of Existence, Etc.
	 	 	64	 
	6.06 Maintenance of Properties
	 	 	64	 
	6.07 Maintenance of Insurance
	 	 	64	 
	6.08 Compliance with Laws
	 	 	65	 
	6.09 Books and Records
	 	 	65	 
	6.10 Inspection Rights
	 	 	65	 
	6.11 Use of Proceeds
	 	 	65	 
	6.12 Covenant to Guarantee Obligations
	 	 	66	 
	6.13 Compliance with Environmental Laws
	 	 	66	 
	6.14 Provision and Preparation of Environmental Reports
	 	 	66	 
	6.15 Further Assurances
	 	 	67	 
	6.16 Compliance with Terms of Leaseholds
	 	 	67	 
	6.17 Prompt Refinancing of Bridge Facility; Exchange Indenture for Exchange Securities
	 	 	67	 
	6.18 Material Contracts
	 	 	67	 
	6.19 Qualified Designated Entities, Joint Venture Entities and Disqualified Subsidiaries Separateness

	 	 	67	 
	
6.20 Holding Company
	 	 	70	 
	6.21 Qualified Designated Entity Security; Rights as a Creditor
	 	 	70	 






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iii





	 	 	 	 	 
	Section	 	Page	 
	 
	 	 	 	 
	ARTICLE VII

NEGATIVE COVENANTS
	 
	 	 	 	 
	7.01 Liens
	 	 	71	 
	7.02 Indebtedness
	 	 	71	 
	7.03 Investments
	 	 	71	 
	7.04 Fundamental Changes
	 	 	71	 
	7.05 Dispositions
	 	 	71	 
	7.06 Restricted Payments
	 	 	71	 
	7.07 Change in Nature of Business
	 	 	71	 
	7.08 Transactions with Affiliates
	 	 	71	 
	7.09 Burdensome Agreements
	 	 	72	 
	7.10 Financial Covenant: Consolidated Senior Secured Leverage Ratio
	 	 	72	 
	7.11 Use of Proceeds
	 	 	72	 
	7.12 Amendments of Organization Documents; Qualified Designated Entity Agreements
	 	 	72	 
	7.13 Accounting Changes
	 	 	72	 
	7.14 Prepayments, Etc., of Indebtedness
	 	 	72	 
	7.15 Partnerships, Etc.
	 	 	72	 
	7.16 Speculative Transactions
	 	 	72	 
	7.17 Formation of Subsidiaries
	 	 	72	 
	7.18 ANB Entity Indebtedness
	 	 	73	 
	7.19 Equity Forwards
	 	 	73	 
	 
	 	 	 	 
	ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES
	 
	 	 	 	 
	8.01 Events of Default
	 	 	73	 
	8.02 Remedies upon Event of Default
	 	 	76	 
	8.03 Application of Funds
	 	 	76	 
	 
	 	 	 	 
	ARTICLE IX

ADMINISTRATIVE AGENT
	 
	 	 	 	 
	9.01 Appointment and Authority
	 	 	77	 
	9.02 Rights as a Lender
	 	 	77	 
	9.03 Exculpatory Provisions
	 	 	77	 
	9.04 Reliance by Administrative Agent
	 	 	78	 
	9.05 Delegation of Duties
	 	 	78	 
	9.06 Resignation of Administrative Agent
	 	 	79	 
	9.07 Non-Reliance on Administrative Agent and Other Lenders
	 	 	79	 
	9.08 No Other Duties, Etc.
	 	 	79	 
	9.09 Administrative Agent May File Proofs of Claim
	 	 	79	 
	9.10 Guaranty Matters
	 	 	80	 
	 
	 	 	 	 
	ARTICLE X

MISCELLANEOUS
	 
	 	 	 	 
	10.01 Amendments, Etc.
	 	 	80	 
	10.02 Notices and Other Communications; Facsimile Copies
	 	 	82	 
	10.03 No Waiver; Cumulative Remedies
	 	 	83	 
	10.04 Expenses; Indemnity; Damage Waiver
	 	 	83	 





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iv





	 	 	 	 	 
	Section	 	Page	 
	10.05 Payments Set Aside
	 	 	84	 
	10.06 Successors and Assigns
	 	 	85	 
	10.07 Treatment of Certain Information; Confidentiality
	 	 	88	 
	10.08 Right of Setoff
	 	 	89	 
	10.09 Interest Rate Limitation
	 	 	90	 
	10.10 Counterparts; Integration; Effectiveness
	 	 	90	 
	10.11 Survival of Representations and Warranties
	 	 	90	 
	10.12 Severability
	 	 	90	 
	10.13 Replacement of Lenders
	 	 	90	 
	10.14 Governing Law; Jurisdiction; Etc.
	 	 	91	 
	10.15 Waiver of Jury Trial
	 	 	92	 
	10.16 USA PATRIOT Act Notice
	 	 	92	 
	10.17 No Advisory or Fiduciary Responsibility
	 	 	92	 
	 
	 	 	 	 
	SIGNATURES
	 	 	S-1	 






Project Leap Bridge Credit Agreement

 









 





v




SCHEDULES




	 	 	 	 	 	 	 
	 

	 	 	I	 	 	Guarantors
	 

	 	 	II	 	 	Existing Letter of Credit
	 

	 	 	2.01	 	 	Commitments and Applicable Percentages
	 

	 	 	2.04	 	 	Pending Asset Sales
	 

	 	 	2.13	 	 	Incremental Lenders – Minimum Financial Criteria
	 

	 	 	4.02	 	 	Specified Representations; Specified Covenants
	 

	 	 	5.06	 	 	Disclosed Litigation
	 

	 	 	5.08(b)	 	 	Existing Liens
	 

	 	 	5.08(c)	 	 	Owned Real Property
	 

	 	 	5.08(d)	 	 	Existing Investments
	 

	 	 	5.11	 	 	Certain Tax Information
	 

	 	 	5.13	 	 	Subsidiaries and Other Equity Investments; Loan Parties
	 

	 	 	5.17	 	 	Intellectual Property Matters
	 

	 	 	10.02	 	 	Administrative Agent’s Office, Certain Addresses for Notices






EXHIBITS




	 	 	 	 	 
	 

	 	Form of	 	 
	 
	 	 	 	 
	 

	 	A
	 	Committed Loan Notice
	 

	 	B-1
	 	Bridge Note
	 

	 	B-2
	 	Extended Term Loan Note
	 

	 	C
	 	Assignment and Assumption
	 

	 	D-1
	 	Parent Guaranty
	 

	 	D-2
	 	Subsidiary Guaranty
	 

	 	E-1
	 	Opinion Matters – Counsel to Loan Parties
	 

	 	E-2
	 	Opinion Matters – Local Counsel to Loan Parties
	 

	 	F
	 	Senior Secured Leverage Covenant Compliance Certificate





Project Leap Bridge Credit Agreement


 









 






BRIDGE CREDIT AGREEMENT




          This BRIDGE CREDIT AGREEMENT (“Agreement”) is entered into as of August 8, 2006, among CRICKET
COMMUNICATIONS, INC., a Delaware corporation (the “Borrower”), LEAP WIRELESS INTERNATIONAL, INC., a
Delaware corporation (“Holdings”), each lender from time to time party hereto (collectively, the
“Lenders” and individually, a “Lender”), and CITICORP NORTH AMERICA, INC., as Administrative Agent.




          The Borrower desires to obtain financing through a senior unsecured bridge facility in an
aggregate principal amount of up to $850,000,000, with a potential upsizing through the Incremental
Facility described in Section 2.13 below of up to an additional $350,000,000, to be used by
the Borrower solely (a) to make inter-company loans (evidenced by promissory notes in favor of the
Borrower) to fund payments to the Federal Communications Commission (the “FCC”) by Cricket
Reauction (such capitalized term, and other capitalized terms used and not defined in these
preliminary statements to have the meanings set forth in Article I below), (b) to fund (i) equity
investments in accordance with the Existing Credit Agreement in Denali Spectrum and (ii) debt
investments (evidenced by secured promissory notes in favor of the Borrower) by the Borrower in
Denali License, for the following purposes in the case of both clauses (a) and (b):
(A) to make payment of the required 20% down payment for FCC Licenses payable to the FCC with
respect to a Successful Auction, (B) to make payment of the remaining balance for FCC Licenses
payable to the FCC with respect to a Successful Auction, and/or (C) to pay for costs and expenses
incurred in connection with the build-out of FCC Licenses for which Denali License is the Winning
Bidder in Auction 66, including Capital Expenditures and operating losses related to such markets,
(c) to pay fees and expenses related to this Bridge Facility, (d) to pay for costs and expenses
incurred in connection with the build-out of FCC Licenses for which Cricket Reauction is the
Winning Bidder in Auction 66, including Capital Expenditures and operating losses related to such
markets, and/or (e) subject to the approval, if granted, of the Required Lenders, for ongoing
working capital and general corporate purposes of Holdings and its Subsidiaries, including Capital
Expenditures and operating losses related to the development of new operating markets not acquired
in Auction 66, provided that, the aggregate amount of proceeds hereunder used to pay for
items described in the foregoing clauses (A) and (B), shall be equal to at least
75% of the principal amount of all Bridge Loans made hereunder (including, after giving effect to
the Third Closing Date).




          The Borrower has requested that the Lenders provide such senior unsecured bridge loan
facility, and the Lenders have indicated their willingness to extend such facility, all on the
terms and subject to the conditions set forth herein.




          In consideration of the mutual covenants and agreements herein contained, the parties hereto
hereby covenant and agree as follows:




ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS




          1.01 Defined Terms. As used in this Agreement, the following terms shall have the
meanings set forth below:




          “Acquisition” means the purchase or other acquisition of all of the Equity Interests in, or
substantially all of the property and assets of, or assets that constitute a business unit, or all
or a substantial part of the business of, a Person, that upon consummation thereof, will be
wholly-owned directly by the Borrower or one or more other Loan Parties and, in the case of a
purchase or other
acquisition of Equity Interests of a Person, such Person will itself be either a Disqualified
Subsidiary or a Loan Party (including the purchase or other acquisition of all of the remaining
Equity Interests in a



 
Project Leap Bridge Credit Agreement

 









 





2



Qualified Designated Entity or Joint Venture Entity to the extent that the
consideration for such purchase or acquisition consisted of common Equity Interests of Holdings or
Qualified Preferred Stock or if such Person does not thereupon constitute a Disqualified
Subsidiary).




          “Administrative Agent” means CNAI, in its capacity as administrative agent under any of the
Loan Documents, or any successor or replacement administrative agent.




          “Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate,
account as set forth on Schedule 10.02, or such other address or account as the
Administrative Agent may from time to time notify to the Borrower and the Lenders.




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




          “Affiliate” means, with respect to any 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.




          “Agents” means, collectively, the Administrative Agent, the Documentation Agents and the
Syndication Agent.




          “Aggregate Credit Exposures” means, at any time, in respect of the Bridge Facility, the sum of
(a) the aggregate unused Commitments, plus (b) the aggregate principal amount of the Loans
outstanding, in each case at such time.




          “Agreement” means this Bridge Credit Agreement and the Schedules and Exhibits hereto.




          “ANB 1” means Alaska Native Broadband 1, LLC, a Delaware limited liability company, and its
successors.




          “ANB 1 License” means Alaska Native Broadband 1 License, LLC, a Delaware limited liability
company, and its successors.




          “ANB Credit Agreement” means the credit agreement dated as of December 22, 2004 among ANB 1
License, as borrower, ANB 1, as guarantor and the Borrower, as lender, as amended by Amendment No.
1 dated as of January 26, 2005, by Amendment No. 2 dated as of June 24, 2005, by Amendment No. 3
dated as of August 26, 2005, by Amendment No. 4 dated as of January 9, 2006 and by Amendment No. 5
dated as of April 24, 2006 and as further amended or supplemented from time to time to the extent
permitted by Section 7.18.




          “ANB Credit Documents” means the ANB Credit Agreement and the ANB Security Documents.




          “ANB Entity” means ANB 1 or ANB 1 License and “ANB Entities” means ANB 1 and ANB 1 License,
collectively.




          “ANB Equity Documents” means (a) the Amended and Restated Limited Liability Company Agreement
of ANB 1 dated as of December 22, 2004, as amended by Amendment No. 1 dated
as of August 26, 2005, by Amendment No. 2 dated as of January 9, 2006 and by Amendment No. 3
dated as of April 24, 2006, and as further amended or supplemented from time to time to the extent
permitted




Project Leap Bridge Credit Agreement


 









 





3



by Section 7.12 of the Existing Credit Agreement and (b) the Amended and Restated
Limited Liability Company Agreement of ANB 1 License dated as of December 22, 2004, as amended or
supplemented from time to time to the extent permitted by Section 7.12 of the Existing
Credit Agreement.




          “ANB Security Documents” means (a) the Security Agreement dated as of December 22, 2004 among
the ANB Entities, as grantors, and the Borrower, as lender as amended by Amendment No. 1 dated as
of January 9, 2006 and as further amended or supplemented from time to time to the extent permitted
by Section 7.18, (b) the Guarantor Pledge Agreement dated as of December 22, 2004 between
ANB 1, as grantor, and the Borrower, as lender, as amended by Amendment No. 1 dated as of January
9, 2006 and as further amended or supplemented from time to time to the extent permitted by
Section 7.18 and (c) the ANB Negative Pledge Agreement between Alaska Native Broadband, LLC
and the Borrower, as amended by Amendment No. 1 dated as of January 9, 2006 and as further amended
or supplemented from time to time to the extent permitted by Section 7.18 and in each case,
all documents and instruments delivered by the ANB Entities pursuant to any of the foregoing.




          “Applicable Percentage” means in respect of the Bridge Facility, with respect to any Lender at
any time, the percentage (carried out to the ninth decimal place) of the Bridge Facility
represented by (a) from and after the Effective Date and on or prior to the Initial Closing Date,
such Lender’s Commitment at such time, (b) thereafter, until the termination of the Availability
Period, an amount equal to the sum of such Lender’s unused Commitment at such time plus the
principal amount of such Lender’s Loans at such time, and (c) thereafter, the principal amount of
such Lender’s Loans at such time, in each case to the sum of the aggregate unused Commitments and
principal amount of the Loans of all Lenders at such time. The initial Applicable Percentage of
each Lender in respect of the Bridge Facility is set forth opposite the name of such Lender on
Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a
party hereto (including through any Incremental Facility), as applicable.




          “Applicable Rate” means (in each case as the same may be increased pursuant to Section
2.13) (a) until the date which is 60 days after the Initial Closing Date, (i) 2.75% per annum
for Eurodollar Rate Loans and (ii) 1.75% per annum for Base Rate Loans, (b) from and after the date
which is 60 days after the Initial Closing Date, until the date which is 60 days thereafter (the
“Adjustment Date”), a rate per annum which is 0.50% above the rate specified in clause (a),
or (c) from and after the Adjustment Date and at the end of each 60-day period thereafter
until the date which is 180 days after the Initial Closing Date, a rate per annum which is 0.50%
per annum higher than the rate per annum previously in effect, provided that, for the
period from and after the date which is 180 days after the Initial Closing Date (the “180 Day
Date”), such rate per annum shall be further increased by an additional 0.50% per annum at the end
of each 90 day period after the 180 Day Date. The “Applicable Rate” in respect of any Incremental
Facility shall be as agreed by the Borrower and the Lenders having Commitments under such
Incremental Facility, subject to the provisions of Section 2.13.




          “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.




          “Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or
two or more Approved Funds managed by the same investment advisor.




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



Project Leap Bridge Credit Agreement


 









 





4




          “Attributable Indebtedness” means, on any date, (a) in respect of any Capitalized Lease of any
Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared
as of such date in accordance with GAAP, (b) in respect of any Synthetic Lease Obligation, the
capitalized amount of the remaining lease or similar payments under the relevant lease or other
applicable agreement or instrument that would appear on a balance sheet of such Person prepared as
of such date in accordance with GAAP if such lease or other agreement or instrument were accounted
for as a Capitalized Lease and (c) all Synthetic Debt of such Person.




          “Auction 66” means the FCC’s Advanced Wireless Services spectrum auction designated by the FCC
as Auction 66.




          “Auction 66 Entity” means Denali License or Denali Spectrum.




          “Auction 66 Priority Put Right” means the first priority security interest in the collateral
of the Auction 66 Entities, which security interest is held by the investors in the Auction 66
Entities (other than Holdings and its Subsidiaries) to secure the rights of such investors to
receive (a) their accreted return under the Formation Agreement on or after the Reference Date (as
defined in the Formation Agreement) and (b) payment in full for the purchase of their Equity
Interests in the Auction 66 Entities, plus the accreted return thereon, on or after the Tenth
Anniversary Date (as defined in the Formation Agreement), up to an aggregate amount of
$200,000,000.




          “Auction Rate Note” means a floating-rate note with an interest rate that is reset on the
basis of bids received at a “Dutch auction” conducted near the end of each rate period.




          “Audited Financial Statements” means the audited consolidated balance sheet of Holdings and
its Subsidiaries (including any Qualified Designated Entities and Joint Venture Entities that are
required under GAAP to be consolidated with Holdings and its Subsidiaries) for the fiscal year
ended December 31, 2005, and the related consolidated statements of income or operations,
shareholders’ equity and cash flows for such fiscal year of Holdings and its Subsidiaries
(including any Qualified Designated Entities and Joint Venture Entities that are required under
GAAP to be consolidated with Holdings and its Subsidiaries), including the notes thereto.




          “Availability Period” means the period from and including the Effective Date to the earlier of
(a) March 31, 2007, and (b) the date of termination in whole of the Commitments pursuant to
Section 2.05.




          “Base Rate” means a fluctuating interest rate per annum in effect from time to time, which
rate per annum shall at all times be equal to the highest of:




          (a) the rate of interest announced publicly by Citibank in New York, New York, from time to
time, as Citibank’s base rate;




          (b) the sum (adjusted to the nearest 1/4 of 1% or, if there is no nearest 1/4 of 1%, to the
next higher 1/4 of 1%) of (i) 1/2 of 1% per annum, plus (ii) the rate obtained by dividing
(A) the latest three-week moving average of secondary market morning offering rates in the United
States for three-month certificates of deposit of major United States money market banks, such
three-week moving average (adjusted to the basis of a year of 360 days) being determined weekly on
each Monday (or, if such day is not a Business Day, on the next succeeding Business Day) for the
three-week period ending
on the previous Friday by Citibank on the basis of such rates reported by certificate of
deposit dealers to and published by the Federal Reserve Bank of New York or, if such publication
shall be suspended or terminated, on the basis of quotations for such rates received by Citibank
from three New York certificate




Project Leap Bridge Credit Agreement

 









 





5



of deposit dealers of recognized standing selected by Citibank, by
(B) a percentage equal to 100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with respect to liabilities
consisting of or including (among other liabilities) three-month U.S. dollar non-personal time
deposits in the United States, plus (iii) the average during such three-week period of the
annual assessment rates estimated by Citibank for determining the then current annual assessment
payable by Citibank to the Federal Deposit Insurance Corporation (or any successor) for insuring
U.S. dollar deposits of Citibank in the United States; and




          (c) 1/2 of one percent per annum above the Federal Funds Rate.



The base rate described in paragraph (a) above is set by Citibank based upon various factors
including Citibank’s costs and desired return, general economic conditions and other factors, and
is used as a reference point for pricing some loans, which may be priced at, above, or below such
announced rate. Any change in such rate announced by Citibank shall take effect at the opening of
business on the day specified in the public announcement of such change.




          “Base Rate Loan” means a Loan that bears interest based on the Base Rate.




          “Borrower” has the meaning specified in the heading hereof.




          “Borrowing” means a borrowing consisting of Bridge Loans, and, after the Initial Maturity Date
to the extent applicable, of the Extended Term Loans and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Lenders, pursuant to Article II.




          “Bridge Facility” means, at any time, (a) on or prior to the Initial Closing Date, the
aggregate amount of the Commitments at such time and (b) thereafter, the sum of the aggregate
unused Commitments plus the aggregate principal amount of the Loans of all Lenders outstanding at
such time, as the same may be increased in accordance with Section 2.13(d).




          “Bridge Loan” means an advance made by any Lender under the Bridge Facility.




          “Bridge Note” means a promissory note made by the Borrower in favor of a Lender, evidencing
Bridge Loans made by such Lender, in substantially the form of Exhibit B-1 hereto.




          “Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks are authorized to close under the Laws of, or are in fact closed in, the state where the
Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan,
means any such day on which dealings in Dollar deposits are conducted by and between banks in the
London interbank eurodollar market.




          “Capital Expenditures” means, with respect to any Person for any period, any expenditure in
respect of the purchase or other acquisition of any fixed or capital asset (which shall be deemed
not to include any FCC License) (excluding normal replacements and maintenance which are properly
charged to current operations).




          “Capitalized Leases” means all leases that, in accordance with GAAP, are required to be
classified and accounted for as capitalized leases on a balance sheet of a Person.




Project Leap Bridge Credit Agreement

 









 






6



          “Cash Distributions” means, with respect to any Person for any period, all dividends and other
distributions on any of the outstanding Equity Interests in such Person, all purchases,
redemptions, retirements, defeasances or other acquisitions of any of the outstanding Equity
Interests in such Person and all returns of capital to the stockholders, partners or members (or
the equivalent persons) of such Person, in each case to the extent paid in cash by or on behalf of
such Person during such period.




          “Cash Equivalents” means any of the following types of Investments, to the extent owned by
Holdings or any of its Subsidiaries:





     (a) readily marketable obligations issued or directly and fully guaranteed or insured
by the United States of America or any agency or instrumentality thereof having maturities
of not more than one year from the date of acquisition thereof;




     (b) time deposits or demand deposits with, or insured certificates of deposit or
bankers’ acceptances maturing within one year of the date of acquisition thereof issued or
placed with, or money market deposit accounts issued or offered by, any commercial bank that
(i) (A) is a Lender or a lender under the Existing Credit Agreement or (B) is organized
under the laws of the United States of America, any state thereof or the District of
Columbia or is the principal banking subsidiary of a bank holding company organized under
the laws of the United States of America, any state thereof or the District of Columbia, and
is a member of the Federal Reserve System, (ii) issues (or the parent of which issues)
commercial paper rated as described in clause (c) of this definition and (iii) has
combined capital and surplus of at least $500,000,000;




     (c) commercial paper outstanding at any time issued by any Person organized under the
laws of any state of the United States of America and rated at least “Prime-1” (or the then
equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in
each case with maturities of not more than 270 days from the date of acquisition thereof;




     (d) securities with maturities of not more than one year from the date of acquisition
thereof issued or fully guaranteed by any state, territory or municipality of the United
States of America or by any political subdivision, taxing authority, agency or
instrumentality thereof and rated at least A by S&P or A by Moody’s;




     (e) insured demand deposits made in the ordinary course of business and consistent with
Holdings’ or its Subsidiaries’ customary cash management policy in any domestic office of
any commercial bank organized under the laws of the United States of America or any state
thereof;




     (f) repurchase obligations with a term of not more than 90 days for, and secured by,
underlying securities of the types described in clauses (a) through (c) of
this definition entered into with a bank meeting the qualifications described in clause
(b) of this definition;




     (g) Auction Rate Notes with a maximum time between interest rate resets of one month
and a rating of at least A by S&P or A by Moody’s; and




     (h) Investments, classified in accordance with GAAP as Current Assets of Holdings or
any of its Subsidiaries, in money market mutual funds or investment programs registered
under the Investment Company Act of 1940, the portfolios of which are limited solely to
Investments of the character, quality and maturity described in clauses (a) through
(g) of this definition.



          “CFC” means a “controlled foreign corporation” under Section 957 of the Code.





Project Leap Bridge Credit Agreement

 









 






7




          “CGMI” means Citigroup Global Markets Inc.




          “Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any
change in any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Governmental Authority or (c) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any Governmental Authority.




          “Change of Control” means, an event or series of events by which:





     (a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or
its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or
group shall be deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire (such right, an “option right”), to the extent that such
right is exercisable within 60 days after the date of determination), directly or
indirectly, of 35% or more of the equity securities of Holdings entitled to vote for members
of the board of directors or equivalent governing body of Holdings on a fully diluted basis
(and taking into account all such securities that such “person” or “group” has the right to
acquire pursuant to any option right to the extent that such option right is exercisable
within 60 days after the date of determination); or




     (b) during any period of 12 consecutive months, a majority of the members of the board
of directors or other equivalent governing body of the Borrower or Holdings cease to be
composed of individuals (i) who were members of that board or equivalent governing body on
the first day of such period, (ii) whose election or nomination to that board or equivalent
governing body was approved by individuals referred to in clause (i) above
constituting at the time of such election or nomination at least a majority of that board or
equivalent governing body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in clauses (i) and
(ii) above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body (excluding, in the case of both
clause (ii) and clause (iii), any individual whose initial nomination for,
or assumption of office as, a member of that board or equivalent governing body occurs as a
result of an actual or threatened solicitation of proxies or consents for the election or
removal of one or more directors by any person or group other than a solicitation for the
election of one or more directors by or on behalf of the board of directors); or




     (c) any Person or two or more Persons acting in concert shall have entered into a
contract or arrangement that, upon consummation thereof, will result in its or their
acquisition of or control over the equity securities of Holdings entitled to vote for
members of the board of directors or equivalent governing body of the Borrower or Holdings
on a fully-diluted basis (and taking into account all such securities that such person or
group has the right to acquire pursuant to any option right to the extent that such option
right is exercisable within 60 days after the date of determination) representing 35% or
more of the combined voting power of such securities; or




     (d) Holdings shall cease, directly or indirectly, to own and control legally and
beneficially all of the Equity Interests in the Borrower; or




     (e) a “change of control” or any comparable term under, and as defined in, the Existing
Credit Agreement (as it may be further amended or otherwise modified from time to time) or any



Project Leap Bridge Credit Agreement

 









 





8



document governing any Permitted Unsecured Debt or Permitted Bridge Debt shall have
occurred.



          “CNAI” means Citicorp North America, Inc.




          “Co-Book Runners” means, collectively, Banc of America Securities LLC, Deutsche Bank
Securities, Inc. and Morgan Stanley in their capacities as Co-Book Runners for the Bridge Facility.




          “Co-Arrangers” means, collectively, Banc of America Securities LLC, Deutsche Bank Securities,
Inc. and Morgan Stanley in their capacities as Co-Arrangers for the Bridge Facility.




          “Code” means the Internal Revenue Code of 1986 as amended.




          “Commitment” means, as to each Lender, its obligation to make Bridge Loans to the Borrower
pursuant to Section 2.01 in an aggregate principal amount at any one time outstanding not
to exceed the amount set forth opposite such Lender’s name on Schedule 2.01 under the
caption “Bridge Commitment” or opposite such caption in the Assignment and Assumption pursuant to
which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time
to time in accordance with this Agreement (including pursuant to Section 2.13).




          “Committed Loan Notice” means a notice of (a) a Borrowing, (b) a conversion of Loans from one
Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section
2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.




          “Consolidated EBITDA” means, for any Measurement Period, an amount equal to Consolidated Net
Income for such period plus (a) the following to the extent deducted in calculating such
Consolidated Net Income (without duplication): (i) Consolidated Interest Charges for such period,
(ii) all Federal, state, local and foreign income tax expense deducted in arriving at Consolidated
Net Income, (iii) depreciation and amortization expense, (iv) non-cash impairment of assets
(tangible and intangible) and related non-cash charges, (v) non-cash charges and expenses related
to stock-based compensation awards made by Holdings and its Subsidiaries (including any Qualified
Designated Entities and Joint Venture Entities that are required under GAAP to be consolidated with
Holdings and its Subsidiaries), (vi) net non-cash reorganization expenses and charges (but only to
the extent not excluded from Consolidated Net Income), (vii) non-cash dividends or other
distributions made with respect to Qualified Preferred Stock, (viii) other non-recurring expenses
reducing such Consolidated Net Income which do not represent a cash item in such period or any
future period and (ix) for any Measurement Period ending on or prior to May 31, 2010, of not more
than $75,000,000 of operating losses (determined in accordance with GAAP) incurred during such
Measurement Period in markets that at the time of such loss either were not yet in commercial
operation or had been in commercial operation for one year or less (but only to the extent of
losses incurred prior to or within one year after commercial launch of the relevant market)
minus (b) the following to the extent included in calculating such Consolidated Net Income
(without duplication): (i) Federal, state, local and foreign income tax credits of Holdings and
its Subsidiaries (including any Qualified Designated Entities and Joint Venture Entities that are
required under GAAP to be consolidated with Holdings and its Subsidiaries) for such period, (ii)
all non-cash gains arising in relation to any FCC Licenses, (iii) all non-recurring non-cash items
increasing Consolidated Net Income for such period and (iv) all non-recurring cash items in excess
of $25,000,000 in the aggregate increasing Consolidated Net Income for such period (excluding, for
each of the Measurement Periods ended June 30, 2006 and September 30, 2006, $15,000,000 in cash
gains from the sale of assets including FCC Licenses to Cellco
Partnership (d/b/a Verizon Wireless) pursuant to the asset purchase agreement dated as of
March 11, 2005).




Project Leap Bridge Credit Agreement

 









 







 9


          “Consolidated Funded Indebtedness” means, as of any date of determination, for Holdings and
its Subsidiaries (including any Qualified Designated Entities and Joint Venture Entities that are
required under GAAP to be consolidated with Holdings and its Subsidiaries) on a consolidated basis,
the sum (without duplication) of (a) the outstanding principal amount of all obligations, whether
current or long-term, for borrowed money (including Obligations hereunder) and all obligations
evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all
Indebtedness incurred for the purpose of purchasing, constructing or improving capital assets, (c)
all direct obligations arising under letters of credit (including standby and commercial), bankers’
acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations in respect
of the deferred purchase price of property or services (other than trade accounts payable in the
ordinary course of business), (e) Attributable Indebtedness, (f) without duplication, all
Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a)
through (e) above of Persons other than Holdings or any Subsidiary (including any Qualified
Designated Entities and Joint Venture Entities that are required under GAAP to be consolidated with
Holdings and its Subsidiaries), and (g) all Indebtedness of the types referred to in clauses
(a) through (f) above of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company or a limited partnership in which such
Person is a limited partner) in which the Borrower or a Subsidiary is a general partner or joint
venturer, unless such Indebtedness is non-recourse to Holdings or such Subsidiary; provided
that Consolidated Funded Indebtedness shall not be deemed to include (x) any obligations of
Holdings or any of its Subsidiaries of any type described in Section 7.03(k) of the
Existing Credit Agreement, Section 7.03(l) of the Existing Credit Agreement, Section
7.03(n) of the Existing Credit Agreement or Section 7.03(o) of the Existing Credit
Agreement, or (y) any Indebtedness of an Oregon Entity that is non-recourse to the Loan Parties.




          “Consolidated Interest Charges” means, for any Measurement Period, the sum (without
duplication) of (a) all interest, premium payments, debt discount, fees, charges and related
expenses in connection with borrowed money (including capitalized interest) or in connection with
the deferred purchase price of assets, in each case to the extent treated as interest in accordance
with GAAP and (b) the portion of rent expense with respect to such period under Capitalized Leases
that is treated as interest in accordance with GAAP, in each case, of or by Holdings and its
Subsidiaries (including any Qualified Designated Entities and Joint Venture Entities that are
required under GAAP to be consolidated with Holdings and its Subsidiaries) on a consolidated basis
for such period; provided, that for each of the first four Measurement Periods ending after the
Closing Date, (x) for each fiscal quarter in such Measurement Period ending prior to the Closing
Date, Consolidated Interest Charges of the type referred to in clause (a) above shall be
calculated on a pro forma basis as though the Closing Date had occurred at the beginning of such
Measurement Period, assuming that the Loans borrowed as of the Closing Date were Eurodollar Rate
Loans and assuming that the LIBO Rate applicable thereto is equal to a rate designated by the
Administrative Agent to the Borrower as of the Closing Date and (y) for each fiscal quarter in such
Measurement Period ending after the Closing Date, Consolidated Interest Charges of the type
referred to in clause (a) above shall be the actual Consolidated Interest Charges of such
type for such fiscal quarter; and provided, further that Consolidated Interest Charges shall not be
deemed to include any interest, premium payments, debt discount, fees, charges or related expenses
relating to Indebtedness of an Oregon Entity that is non-recourse to the Loan Parties.




          “Consolidated Net Income” means, at any date of determination, the net income of Holdings and
its Subsidiaries (including any Qualified Designated Entities and Joint Venture Entities that are
required under GAAP to be consolidated with Holdings and its Subsidiaries, but excluding any Oregon
Entity) (without giving effect to extraordinary gains or extraordinary losses) on a consolidated
basis for the most recently completed Measurement Period.




          “Consolidated Senior Secured Leverage Ratio” means, as of any date of determination, the ratio
of (a) senior secured Consolidated Funded Indebtedness as of such date to (b) Consolidated





Project Leap Bridge Credit Agreement


 









 





10



EBITDA
of Holdings and its Subsidiaries (including any Qualified Designated Entities and Joint Venture
Entities that are required under GAAP to be consolidated with Holdings and its Subsidiaries) for
the most recently completed Measurement Period.




          “Contractual Obligation” means, as to any Person, any provision of any security issued by such
Person or of any agreement, instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.




          “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.




          “Controlled Joint Venture Entity” means a Joint Venture Entity as to which Holdings or any of
its Subsidiaries owns Equity Interests having ordinary voting power for the election of a majority
of the directors, managers or other governing body (other than securities or interests having such
power only by reason of the happening of a contingency).




          “Cricket Reauction” means Cricket Licensee (Reauction), Inc., a Delaware corporation and a
wholly-owned Subsidiary of the Borrower.




          “Current Assets” means, with respect to any Person, all assets of such Person that, in
accordance with GAAP, would be classified as current assets on the balance sheet of a company
conducting a business the same as or similar to that of such Person, after deducting appropriate
and adequate reserves therefrom in each case in which a reserve is proper in accordance with GAAP.




          “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other
liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.




          “Default” means any event or condition that constitutes an Event of Default or that, with the
giving of any notice, the passage of time, or both, would be an Event of Default.




          “Default Rate” means when used with respect to Obligations, an interest rate equal to (a) the
Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus
(c) 2.00% per annum; provided, however, that (x) with respect to a Eurodollar Rate
Loan, the Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2.0% per annum and (y) notwithstanding
anything to the contrary contained herein, in no event shall the Default Rate exceed the Maximum
Rate plus 2.00% per annum.




          “Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Bridge
Loans required to be funded by it hereunder within one (1) Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or any
other Lender any other amount required to be paid by it hereunder within one (1) Business Day of
the date when due, unless the subject of a good faith dispute, or (c) has been deemed insolvent or
become the subject of a bankruptcy or insolvency proceeding.




          “Demand Notice” has the meaning specified in Section 2.14(b).




          “Demand Securities” has the meaning specified in Section 2.14(b).




Project Leap Bridge Credit Agreement


 









 






11



          “Denali License” means Denali Spectrum License, LLC, a Delaware limited liability company and
a Qualified Designated Entity.




          “Denali Spectrum” means Denali Spectrum, LLC, a Delaware limited liability company and a
Qualified Designated Entity.




          “Disclosed Litigation” has the meaning set forth in Section 5.06.




          “Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition
(including any sale and leaseback transaction) of any property by any Person (or the granting of
any option or other right to do any of the foregoing), including any sale, assignment, transfer or
other disposal, with or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.




          “Disqualified Subsidiary” means, at any time, a Subsidiary that was formerly a Qualified
Designated Entity or Joint Venture Entity and that at such time has outstanding Indebtedness of the
type referred to in Section 7.02(a)(ii)(F) of the Existing Credit Agreement (unless such
Indebtedness is otherwise permitted pursuant to one or more other clauses of Section
7.02(a)(ii) of the Existing Credit Agreement), until such time as such Subsidiary has
complied with the requirements of Section 6.12.




          “Documentation Agents” means Banc of America Securities LLC, Deutsche Bank Securities, Inc.
and Morgan Stanley, in their capacities as documentation agents under any of the Loan Documents.




          “Dollar” and “$” mean lawful money of the United States.




          “Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political
subdivision of the United States.




          “Effective Date” means the date on which the conditions to effectiveness of this Agreement
pursuant to Section 4.01 are satisfied or waived, which shall be the date on which this
Agreement is executed and delivered by all of the parties hereto.




          “Eligible Assignee” means any Person that meets the requirements to be an assignee under
Section 10.06(b) (subject to such consents, if any, as may be required under such Section).




          “Environmental Action” means any claim, action, suit, arbitration, inquiry, proceeding,
investigation, demand, demand letter, lien, notice of non-compliance or violation, notice of
liability or potential liability, consent order or consent agreement, by or with any Person,
relating to any Environmental Law, Environmental Permit or Hazardous Material.




          “Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants or binding
agreements, in each case issued, promulgated or entered into by a Governmental Authority, relating
to pollution and the protection of the environment or the release of any materials into the
environment, including those related to Hazardous Materials or wastes, air emissions and discharges
to waste or public systems.




          “Environmental Liability” means any liability, contingent or otherwise (including any
liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the
Borrower, any other Loan Party or any of their respective Subsidiaries directly or indirectly
resulting from




Project Leap Bridge Credit Agreement

 









 





12



or based upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure
to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.




          “Environmental Permit” means any permit, approval, identification number, license or other
authorization required under any Environmental Law.




          “Equity Interests” means, with respect to any Person, any of the shares of capital stock of
(or other ownership or profit interests in) such Person, any of the warrants, options or other
rights for the purchase or acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, any of the securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person
or warrants, rights or options for the purchase or acquisition from such Person of such shares (or
such other interests), and any of the other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests therein), whether voting or
nonvoting, and whether or not such shares, warrants, options, rights or other interests are
outstanding on any date of determination.




          “ERISA” means the Employee Retirement Income Security Act of 1974 and the regulations
promulgated and the rulings issued thereunder.




          “ERISA Affiliate” means any trade or business (whether or not incorporated) under common
control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections
414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).




          “ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by
the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a
plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a
complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan
under Section 4203 or 4205 of ERISA or notification that a Multiemployer Plan is in reorganization
under Section 4241; (d) the filing of a notice of intent to terminate, the treatment of a Pension
Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan; (e) an event or condition which constitutes
grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under
Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA,
upon the Borrower or any ERISA Affiliate.




          “Eurodollar Rate” means for any Interest Period with respect to any Eurodollar Rate Loan, a
rate per annum determined by the Administrative Agent pursuant to the following formula:




	 	 	 	 	 	 	 	 	 
	 

	 	Eurodollar Rate
	 	=
	 	LIBO Rate
	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	1.00 – Eurodollar Reserve Percentage	 	 






Project Leap Bridge Credit Agreement

 









 





13


          Where,




          “LIBO Rate” means, for such Interest Period:





     (a) the rate per annum equal to the rate determined by the Administrative Agent to be
the offered rate that appears on the page of the Telerate screen (or any successor thereto)
that displays an average British Bankers Association Interest Settlement Rate for deposits
in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of such Interest Period, or




     (b) if the rate referenced in the preceding clause (a) does not appear on such
page or service or such page or service shall not be available, the rate per annum equal to
the rate determined by the Administrative Agent to be the offered rate on such other page or
other service that displays an average British Bankers Association Interest Settlement Rate
for deposits in Dollars (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time)
two (2) Business Days prior to the first day of such Interest Period, or




     (c) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Administrative Agent as the rate of
interest at which deposits in Dollars for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the Eurodollar Rate Loan being made,
continued or converted by CNAI and with a term equivalent to such Interest Period would be
offered by CNAI’s London Branch to major banks in the London interbank eurodollar market at
their request at approximately 4:00 p.m. (London time) two (2) Business Days prior to the
first day of such Interest Period.



          “Eurodollar Rate Loan” means a Loan that bears interest at a rate based on the Eurodollar
Rate.




          “Eurodollar Reserve Percentage” means, for any day during any Interest Period, the reserve
percentage (expressed as a decimal, carried out to five decimal places) in effect on such day,
whether or not applicable to any Lender, under regulations issued from time to time by the FRB for
determining the maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as
“Eurocurrency liabilities”). The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall
be adjusted automatically as of the effective date of any change in the Eurodollar Reserve
Percentage.




          “Event of Default” has the meaning specified in Section 8.01.




          “Exchange Indenture” means an indenture with respect to the Exchange Securities in a form that
complies with the requirements of the Trust Indenture Act of 1939 and is acceptable to the Borrower
and the Lead Arrangers, the material terms of which shall be similar to those customarily contained
in an indenture governing high-yield senior unsecured notes.




          “Exchange Securities” means those certain senior unsecured exchange notes to be issued
pursuant to the Exchange Indenture.




          “Exchange Spread” means zero (0) basis points during the 90 day period commencing on the
Initial Maturity Date, increasing by 50 basis points at the beginning of each subsequent 90 day
period thereafter.




Project Leap Bridge Credit Agreement

 









 






14



          “Excluded Assumed Liabilities” means Guarantees or assumptions of ordinary course liabilities
that (a) do not constitute Indebtedness (except insofar as such Indebtedness is a trade account
past due for more than 180 days after the date on which the invoice in respect of such trade
payable was received), (b) are associated with any assets transferred between any Joint Venture
Entity, Qualified Designated Entity or Disqualified Subsidiary and Holdings or any of its
Subsidiaries and (c) do not increase the total liabilities reflected in the most recent
consolidated balance sheet of Holdings and its Subsidiaries delivered pursuant to Section
6.01(b) by more than $5,000,000.




          “Excluded Subsidiaries” means, collectively, Orrengrove Investments Limited and Leap Wireless
Mexico S.A. de C.V., each a Subsidiary of Holdings.




          “Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other
recipient of any payment to be made by or on account of any obligation of the Borrower hereunder,
(a) taxes including interest, penalties and additions to tax imposed on or measured by its overall
net income or net profits (however denominated), and franchise taxes imposed on it (in lieu of net
income taxes), by the jurisdiction (or any political subdivision thereof) 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 or any jurisdiction in which such
recipient is otherwise engaged in a trade or business as a result of transactions unrelated to the
Loan Documents (except to the extent such tax is imposed because of a connection between the
Borrower, its agent or any Affiliate and the jurisdiction imposing such a tax), (b) any branch
profits taxes imposed by the United States 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 10.13), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party
hereto (or designates a new Lending Office), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment),
to receive additional amounts from the Borrower with respect to such withholding tax pursuant to
Section 3.01(a) or is attributable to such Foreign Lender’s failure or inability (other
than as a result of a Change in Law) to comply with Section 3.01(e).




          “Existing Credit Agreement” means the Amended and Restated Credit Agreement, dated as of June
16, 2006, as amended, supplemented or otherwise modified through the date hereof, by and among the
Borrower, Holdings, the lenders parties thereto, certain agents and arrangers parties thereto, and
Bank of America, N.A., as administrative agent thereunder.




          “Existing Letters of Credit” means the letters of credit listed on Schedule II.




          “Extended Term Loans” means term loans into which the Bridge Loans shall, subject to the
provisions of Section 2.03, automatically convert on the Initial Maturity Date, which term
loans shall then (a) mature on the Final Maturity Date, (b) be evidenced by Extended Term Loan
Notes if such notes are requested by any Lenders, (c) be governed by the provisions of this
Agreement with respect to the Bridge Facility and (d) shall have the same other terms as the Bridge
Loans, in each case except as expressly provided otherwise herein, including as to interest rate.




          “Extended Term Loan Notes” means notes evidencing the Extended Term Loans, in substantially
the form of Exhibit B-2 hereto.




          “Extension Date” has the meaning specified in Section 2.03(b).




          “FCC” has the meaning specified in the introductory paragraphs hereto.





Project Leap Bridge Credit Agreement

 









 



15



          “FCC Licenses” means broadband personal communications service licenses, advanced wireless
services licenses or other licenses for the provision of wireless telecommunications services or
operation of wireless telecommunications systems issued by the FCC from time to time.




          “FCC Rules” means rules, regulations, orders and public notices of the FCC (including, without
limitation, the provisions of 47 C.F.R. Section 1.2109).




          “Federal Funds Rate” means, for any day, the rate per annum equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such
rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to CNAI on such day on such transactions as determined by the Administrative Agent.




          “Fee Letters” means, collectively, (a) the Bridge Engagement Letter, dated July 31, 2006,
among Holdings, the Borrower, CNAI, CGMI and GSCP and (b) the Bridge Fee Letter dated August 8,
2006 among Holdings, the Borrower, CGMI, Goldman, Sach & Co., Banc of America Bridge LLC, Deutsche
Bank AG and Morgan Stanley Senior Funding, Inc.




          “Final Maturity Date” has the meaning set forth in Section 2.03(d).




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




          “Formation Agreement” means the Formation Agreement dated as of May 10, 2006 between the
Borrower and Denali Spectrum Manager, LLC, as amended from time to time in accordance with
Section 7.12 of the Existing Credit Agreement.




          “FRB” means the Board of Governors of the Federal Reserve System of the United States, or any
successor thereto.




          “Fund” means any Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in
the ordinary course.




          “GAAP” means generally accepted accounting principles in the United States set forth in the
opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied.




          “Governmental Authority” means the government of the United States or any other nation, or of
any political subdivision thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other entity exercising executive,
legislative,



Project Leap Bridge Credit Agreement









 



16




judicial, taxing, regulatory or administrative powers or functions of or pertaining to
government (including any supra-national bodies such as the European Union or the European Central
Bank).



          “Granting Lender” has the meaning specified in Section 10.06(i).




          “GSCP” means Goldman Sachs Credit Partners L.P.




          “Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such
Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation payable or performable by another Person (the “primary obligor”) in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or
other obligation, (ii) to purchase or lease property, securities or services for the purpose of
assuring the obligee in respect of such Indebtedness or other obligation of the payment or
performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of income or cash flow of
the primary obligor so as to enable the primary obligor to pay such Indebtedness or other
obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in
respect of such Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any
assets of such Person securing any Indebtedness or other obligation of any other Person, whether or
not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or
otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any
Guarantee within the meaning of clause (a) of this definition shall be deemed to be an
amount equal to the stated or determinable amount of the related primary obligation, or portion
thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in
good faith. The amount of any Guarantee within the meaning of clause (b) of this
definition shall be deemed to be an amount equal to the lesser of (x) the amount of the
Indebtedness or other obligation secured by such Lien and (y) the value of the assets subject to
such Lien. The term “Guarantee” as a verb has a corresponding meaning.




          “Guarantors” means, collectively, Holdings, the Subsidiaries of the Borrower listed on
Schedule I and each other Subsidiary of Holdings that shall be required to execute and
deliver a guaranty or guaranty supplement pursuant to Section 6.12.




          “Guaranty” means, collectively, (a) the Parent Guaranty made by Holdings in favor of the
Lenders, in substantially the form of Exhibit D-1, and (b) the Subsidiary Guaranty made by
the Guarantors (other than Holdings) in favor of the Lenders, substantially in the form of
Exhibit D-2 (the “Subsidiary Guaranty”), together with each other guaranty and guaranty
supplement delivered pursuant to Section 6.12.




          “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.




          “Holdings” has the meaning specified in the heading hereof.




          “Increase Effective Date” has the meaning specified in Section 2.13(d).




          “Incremental Increase” has the meaning specified in Section 2.13(d).



Project Leap Bridge Credit Agreement









 



17




          “Indebtedness” means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance with GAAP:





     (a) all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;




     (b) the maximum amount of all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers’ acceptances, bank
guaranties, surety bonds and similar instruments;




     (c) net obligations of such Person under any Swap Contract, other than a Permitted
Equity Forward;




     (d) all obligations of such Person to pay the deferred purchase price of property or
services (other than trade accounts payable in the ordinary course of business and not past
due for more than 180 days after the date on which the invoice in respect of such trade
payable was received);




     (e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse (provided, that if recourse to such
Person for such indebtedness is limited to the property or assets subject to such Lien, then
such indebtedness shall constitute Indebtedness of such Person solely to the extent of the
lower of (i) the amount of the indebtedness secured by such Lien and (ii) the value of the
property and assets subject to such Lien);




     (f) all Attributable Indebtedness;




     (g) all obligations of such Person to purchase, redeem, retire, defease or otherwise
make any payment in respect of (i) any Equity Interest in such Person or any other Person or
(ii) any warrant, right or option to acquire such Equity Interest, excluding in each case
any such obligations to the extent that such obligations by their terms permit satisfaction
in full in common Equity Interests or Qualified Preferred Stock (or any combination thereof)
of Holdings (including Permitted Equity Forwards), valued, in the case of a redeemable
preferred interest, at the greater of its voluntary or involuntary liquidation preference
plus accrued and unpaid dividends; and




     (h) all Guarantees of such Person in respect of any of the foregoing, other than
Permitted Debt Put Rights.



          For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is itself a corporation, limited
liability company or limited partnership in which such Person is a limited partner) in which such
Person is a general partner or a joint venturer, unless such Indebtedness is non-recourse to such
Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be
the Swap Termination Value thereof as of such date. From and after the occurrence of the discharge
of the indenture under which the Existing Notes were issued, the principal amount of the Existing
Notes and the accrued interest in respect thereof shall not constitute “Indebtedness” hereunder.




          “Indemnified Taxes” means Taxes other than Excluded Taxes.



Project Leap Bridge Credit Agreement








 



18




          “Indemnitees” has the meaning specified in Section 10.04(b).




          “Information Memorandum” means any information memorandum, in form and substance reasonably
satisfactory to the Borrower, used by the Lead Arrangers based on information provided by Holdings
and the Borrower in connection with any syndication of the Commitments or Loans, as supplemented or
updated, in form and substance reasonably satisfactory to the Borrower, by or with the consent of
the Lead Arrangers.




          “Initial Closing Date” means the first date on which all the conditions precedent in
Section 4.02 are satisfied or waived in accordance with Section 10.01 and the
initial Bridge Loans hereunder are made; provided that such date shall be no later than the
earlier of (a) the date of required 20% down payment to the FCC by Cricket Reauction or Denali
License with respect to any Successful Auction or any date selected by the Borrower up to five (5)
Business Days prior to such date of required payment, and (b) March 31, 2007; provided
further that, if the Borrower has not delivered a Request for Credit Extension on or prior
to the date of the required 20% down payment to the FCC by Cricket Reauction or Denali License with
respect to a Successful Auction, such date of required payment shall be deemed to be the “Initial
Closing Date” for all purposes hereunder.




          “Initial Demand Date” has the meaning specified in Section 2.14(b).




          “Initial Maturity Date” means the date which is the first anniversary of the Initial Closing
Date.




          “Initial Rate” means a rate per annum equal to the interest rate borne by the Bridge Loans on
the day immediately preceding the Initial Maturity Date plus 50 basis points.




          “Interest Payment Date” means, (a) as to any Eurodollar Rate Loan, the last day of each
Interest Period applicable to such Loan and the Initial Maturity Date of any Bridge Loans and the
Final Maturity Date of any Extended Term Loans, and (b) as to any Base Rate Loan, the last Business
Day of each March, June, September and December and the Initial Maturity Date of any Bridge Loans
and the Final Maturity Date of any Extended Term Loans.




          “Interest Period” means, as to each Eurodollar Rate Loan, the period commencing on the date
such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and
ending on the date one, two or three months thereafter, as selected by the Borrower in its
Committed Loan Notice; provided that:





     (i) any Interest Period that would otherwise end on a day that is not a Business Day
shall be extended to the next succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next preceding
Business Day;




     (ii) any Interest Period that begins on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and




     (iii) no Interest Period applicable to any Bridge Loan shall extend beyond the Initial
Maturity Date, and no Interest Period for any Extended Term Loan shall extend beyond the
Final Maturity Date.



Project Leap Bridge Credit Agreement









 



19


          “Investment” means, as to any Person, any direct or indirect acquisition or investment by such
Person, whether by means of (a) the purchase or other acquisition of Equity Interests of another
Person, (b) a loan, advance or capital contribution to, or purchase or other acquisition of any
other debt or equity participation or interest in, another Person and any and all Guarantees of a
Qualified Designated Entity, a Joint Venture Entity or a Disqualified Subsidiary or assumptions of
debt of a Qualified Designated Entity, a Joint Venture Entity or a Disqualified Subsidiary,
including without limitation a Permitted Guarantee, or (c) the purchase or other acquisition (in
one transaction or a series of transactions) of assets of another Person that constitute a business
unit or all or a substantial part of the business of, such Person. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested, without adjustment
for subsequent increases or decreases in the value of such Investment.




          “IP Rights” has the meaning specified in Section 5.17.




          “IRS” means the United States Internal Revenue Service.




          “Joint Venture Entity” means (a) a corporation, partnership, joint venture, limited liability
company or other business entity in which Holdings or any of its Subsidiaries makes any Investment
as permitted by Section 7.03(k) of the Existing Credit Agreement or 7.03(o) of the
Existing Credit Agreement, of which more than zero percent but less than 100% of the shares of
securities or other ownership interests having ordinary voting power for the election of directors,
managers or other governing body (other than securities or interests having such power only by
reason of the happening of a contingency) are owned by Holdings or any of its Subsidiaries or (b)
any wholly-owned Subsidiary of any corporation, partnership, joint venture, limited liability
company or other business entity referred to in clause (a) above; provided,
however, that any entity that was a Subsidiary of the Borrower on July 22, 2005 shall not
be included in the term “Joint Venture Entity.”




          “Laws” means, collectively, all international, foreign, Federal, state and local statutes,
treaties, rules, regulations, ordinances, codes and administrative or judicial precedents or
authorities, including the interpretation or administration thereof by any Governmental Authority
charged with the enforcement, interpretation or administration thereof, and all applicable
administrative orders, licenses, authorizations and permits of, any Governmental Authority, in each
case having the force of law.




          “Lead Book Runners” means, collectively, CGMI and GSCP in their capacities as Lead Book
Runners for the Bridge Facility.




          “Lead Arrangers” means, collectively, CGMI and GSCP in their capacities as Lead Arrangers for
the Bridge Facility.




          “Legal Maximum Rate” has the meaning specified in Section 10.09.




          “Lender” has the meaning specified in the heading hereof.




          “Lending Office” means, as to any Lender, the office or offices of such Lender described as
such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may
from time to time notify the Borrower and the Administrative Agent.




          “LIBO Rate” has the meaning set forth in the definition of Eurodollar Rate.




          “Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
(including



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20




any conditional sale or other title retention agreement, any easement, right of way or other
encumbrance on title to real property, and any financing lease having substantially the same
economic effect as any of the foregoing).



          “Loan Documents” means, collectively, for purposes of this Agreement and the Notes and any
amendment, supplement or other modification hereof or thereof and for all other purposes, (a) this
Agreement, (b) the Notes, (c) the Guaranty and (d) the Fee Letters.




          “Loan Parties” means, collectively, the Borrower and each Guarantor.




          “Loans” means Bridge Loans or Extended Term Loans, as the context may require.




          “Material Adverse Effect” means a material adverse effect upon (a) the operations, business,
properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of
Holdings and its Subsidiaries, taken as a whole; (b) the rights and remedies of the Administrative
Agent or the Lenders under the Loan Documents; (c) the ability of the Loan Parties, taken as a
whole, to perform their obligations under the Loan Documents; or (d) the legality, validity,
binding effect or enforceability against any Loan Party of any Loan Document to which it is a
party.




          “Material Contract” means, with respect to any Person, each contract to which such Person is a
party for which breach could reasonably be expected to have a Material Adverse Effect.




          “Maximum Rate” means a rate equal to 9.75% per annum, provided that (a) if the
Borrower elects to retain any Net Cash Proceeds of a Permitted Equity Forward in accordance with
the last sentence of Section 2.04(b)(i) (other than amounts in excess of the amounts the
Borrower is required to prepay under Section 2.04(b)(i)(y)), then such rate shall be adjusted
automatically on the date of such notice of election, to 10.25% per annum, (b) if the aggregate
principal amount of the Bridge Loans exceeds $950,000,000 as of the Initial Demand Date, such rate
shall be adjusted upwards by an additional 0.50%, and (c) such rate may also be exceeded as a
result of the application of the Default Rate as set forth in Section 2.07(c).




          “Measurement Period” means, at any date of determination, the most recently completed four
consecutive fiscal quarters of Holdings ending on or prior to such date.




          “Moody’s” means Moody’s Investors Service, Inc. and any successor thereto.




          “Multiemployer Plan” means any employee benefit plan of the type described in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make
contributions, or during the preceding five plan years, has made or been obligated to make
contributions.




          “Net Cash Proceeds” means:





     (a) with respect to any Disposition by any Loan Party or any of its Subsidiaries (other
than a Disqualified Subsidiary), the excess, if any, of (i) the sum of cash and Cash
Equivalents received in connection with such transaction (including any cash or Cash
Equivalents received by way of deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the
principal amount of any Indebtedness that is secured by the applicable asset and that is
required to be repaid in connection with such transaction (other than Indebtedness under the
Loan Documents), together with any premium or penalty and interest payable with respect
thereto, (B) the reasonable and customary out-of-pocket


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21


fees and expenses incurred by such Loan Party or such Subsidiary in connection with
such transaction (including without limitation legal, accounting, title and transfer and
recording tax expenses, commissions, and any expenses incurred in preparing the relevant
property for sale), (C) income taxes paid or reasonably estimated to be actually payable
within two years of the date of the receipt of such proceeds as a result of any gain
recognized in connection therewith, (D) the aggregate amount of reserves taken by Holdings
or any of its Subsidiaries in accordance with GAAP against indemnification obligations
incurred in connection with such Disposition, and (E) the aggregate of all amounts required
to be paid to the lenders under the Existing Credit Agreement; and




     (b) with respect to the incurrence or issuance of any Indebtedness (including under
convertible instruments) and the issuance of any Equity Interests or Qualified Preferred
Stock by Holdings or any of its Subsidiaries (other than a Disqualified Subsidiary), in each
case other than to a Loan Party, the excess of (i) the sum of the cash and Cash Equivalents
received in connection with such transaction over (ii) the sum of (A) the underwriting
discounts and commissions, and other reasonable and customary out-of-pocket fees and
expenses, incurred by Holdings or such Subsidiary (other than a Disqualified Subsidiary) in
connection therewith, and (B) solely in the case of the incurrence or issuance of any
Indebtedness, which Indebtedness is not permitted to be incurred or issued pursuant to
Section 7.02(a)(i) or (ii) of the Existing Credit Agreement, the aggregate
of all amounts required to be paid to the lenders under the Existing Credit Agreement.



          “Non-Financial Entity” has the meaning specified in Section 10.06(a).




          “Note” means a Bridge Note or Extended Term Loan Note, as the context may require.




          “Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties
of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, whether
direct or indirect (including those acquired by assumption), absolute or contingent, due or to
become due, now existing or hereafter arising and including interest and fees that accrue under the
terms of the Loan Documents after the commencement by or against any Loan Party or any Affiliate
thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such
proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
Without limiting the generality of the foregoing, the Obligations of the Loan Parties under the
Loan Documents include (a) the obligation to pay principal, interest, charges, expenses, fees,
attorneys’ fees and disbursements, indemnities and other amounts payable by any Loan Party under
any Loan Document and (b) the obligation of any Loan Party to reimburse any amount in respect of
any of the foregoing that any Lender, in its sole discretion, may elect to pay or advance on behalf
of such Loan Party.




          “Oregon Entity” means (a) any Qualified Designated Entity or Joint Venture Entity in which
Holdings or any of its Subsidiaries makes an Investment and that holds (either itself or through
one or more Subsidiaries) any wireless license for, or operates (either itself or through one or
more Subsidiaries) a wireless telecommunications business in, one or more markets in the State of
Oregon which in any event shall include the Portland, Oregon market or (b) any wholly-owned
Subsidiary of a Person referred to in clause (a) above that is engaged in any business or
activity referred to in clause (a) above.




          “Organization Documents” means, (a) with respect to any corporation, the certificate or
articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with
respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the
certificate or articles of formation or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business entity, the partnership, joint
venture or other applicable agreement



Project Leap Bridge Credit Agreement









 



22




of formation or organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the applicable Governmental
Authority in the jurisdiction of its formation or organization and, if applicable, any certificate
or articles of formation or organization of such entity.



          “Other Taxes” means 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 under any
other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect
to, this Agreement or any other Loan Document.




          “Participant” has the meaning specified in Section 10.06(e).




          “PBGC” means the Pension Benefit Guaranty Corporation.




          “Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section
3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is
sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any
ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple
employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time
during the immediately preceding five plan years.




          “Permitted ANB Unsecured Investment” means any of:





     (a) any Disposition permitted under any of Sections 7.05(n), 7.05(o),
7.05(p) and 7.05(q) of the Existing Credit Agreement that constitutes an
Investment, to the extent that the aggregate amount of all such Investments does not exceed
$10,000,000 outstanding at any time,




     (b) any Investment of the type permitted by clause (y) of Section
7.03(l) of the Existing Credit Agreement,




     (c) any Investment of the type permitted by clause (z) of Section
7.03(l) of the Existing Credit Agreement,




     (d) any Permitted Guarantee with respect to obligations of ANB 1 or ANB 1 License, and




     (e) one or more Investments in ANB 1 or ANB 1 License that in the aggregate do not
exceed $13,500,000 at any time.



          “Permitted Bridge Debt” has the meaning set forth in the Existing Credit Agreement.




          “Permitted Debt Put Rights” means obligations to purchase, make any payment in respect of, or
otherwise satisfy Indebtedness of a Qualified Designated Entity or a Joint Venture Entity to a
third party to the extent that such obligations are by their terms capable of being satisfied in
full with common Equity Interests of Holdings or Qualified Preferred Stock (or any combination
thereof) (and such third party has acknowledged that it has no other recourse to Holdings and its
Subsidiaries in respect of such obligations).




          “Permitted Equity Forward” means a forward sale by Holdings of its common stock so long as the
terms of such transaction permit settlement thereof in full in common stock of Holdings (or any
successor) or any securities of a successor received in consideration for common stock of Holdings,



Project Leap Bridge Credit Agreement









 



23




and at the time Holdings enters into such transaction, no Default has occurred and is
continuing or would result therefrom.



          “Permitted Equity Forward Effective Date” means the date a Permitted Equity Forward becomes
effective in accordance with the terms thereof and all conditions to effectiveness with respect
thereto have been satisfied or waived.




          “Permitted Guarantees” means (a) one or more Guarantees or assumptions of Indebtedness or
other liabilities or obligations of Joint Venture Entities, Qualified Designated Entities or
Disqualified Subsidiaries (including ANB Entities) that are otherwise permitted under Section
7.03(k) of the Existing Credit Agreement, Section 7.03(l) of the Existing Credit
Agreement, Section 7.03(n) of the Existing Credit Agreement or Section
7.03(o) of the Existing Credit Agreement, in an aggregate amount not in excess of $40,000,000
at any time, (b) Excluded Assumed Liabilities, (c) Permitted Debt Put Rights and (d) Permitted
Make-Whole Obligations.




          “Permitted Make-Whole Obligations” means liabilities or obligations of a Loan Party (x) to pay
bid withdrawal penalties, license default penalties or unjust enrichment payments to the FCC on
behalf of a Qualified Designated Entity or any of its Subsidiaries in the event of a failure by a
Loan Party to fund its required equity contributions to such Qualified Designated Entity or to make
required loans to such Qualified Designated Entity or its Subsidiaries which causes such Qualified
Designated Entity or any of its Subsidiaries to be or become in default under FCC Rules and thereby
to lose licenses as to which such Qualified Designated Entity or any of its Subsidiaries was the
winning bidder or (y) to co-investors in a Qualified Designated Entity to make such co-investor
whole for the return of its capital contribution plus the agreed fixed return over the period
elapsed or liquidated damages, in the event of any of (i) a failure by a Loan Party to fund its
required equity contributions to such Qualified Designated Entity or to make required loans to such
Qualified Designated Entity or its Subsidiaries which causes such Qualified Designated Entity or
any of its Subsidiaries to be or become in default under FCC Rules and thereby to lose licenses as
to which such Qualified Designated Entity or any of its Subsidiaries was the winning bidder, (ii) a
cancellation of the relevant FCC auction or if the results of the auction are dismissed due to a
failure to meet the FCC’s aggregate reserve price applicable to such auction, (iii) a failure by
such Qualified Designated Entity or its Subsidiaries to timely submit all applications for licenses
for which it was the winning bidder as a result of action or inaction by a Loan Party, (iv) a
dismissal by the FCC of such Qualified Designated Entity’s or its Subsidiary’s applications for
licenses for which it was the winning bidder, (v) a cancellation of the FCC Licenses for which such
Qualified Designated Entity or its Subsidiaries was the winning bidder and which were granted to,
and were still held by, such Qualified Designated Entity or its Subsidiaries, or (vi) such
Qualified Designated Entity’s or its Subsidiaries’ not bidding in the relevant FCC auction or not
becoming a winning bidder therein; provided, that the aggregate Permitted Make-Whole
Obligations described in clause (y) above shall in no event exceed $200,000,000 at any
time.




          “Permitted QDE Unsecured Investment” means any of:





     (a) any Disposition permitted under any of Sections 7.05(r) of the Existing
Credit Agreement, 7.05(s) of the Existing Credit Agreement, 7.05(t) of the
Existing Credit Agreement, 7.05(u) of the Existing Credit Agreement and
7.05(v) of the Existing Credit Agreement that constitutes an Investment, to the
extent that the aggregate amount of all such Investments does not exceed $10,000,000
outstanding at any time,




     (b) any Investment of the type permitted by clause (y) of Section
7.03(n) of the Existing Credit Agreement,



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24



     (c) any Investment of the type permitted by clause (z) of Section
7.03(n) of the Existing Credit Agreement,




     (d) any Permitted Guarantee with respect to obligations of a Qualified Designated
Entity, and




     (e) one or more other Investments (other than Guarantees of Indebtedness for borrowed
money) in Qualified Designated Entities that in the aggregate do not exceed $10,000,000 at
any time.



          “Permitted Unsecured Debt” means unsecured Indebtedness of Holdings or the Borrower that (a)
matures no earlier than the date which is six months after the maturity date in respect of the Term
B Facility under the Existing Credit Agreement, (b) has no amortization (other than the following
mandatory prepayment or redemption provisions: change of control on terms no more restrictive than
the terms of the Existing Credit Agreement and asset sale and excess proceeds prepayments or
redemptions that are subject in all respects to the prior payment of the Obligations (as defined in
the Existing Credit Agreement) pursuant to the terms of the Existing Credit Agreement (or, in the
case of high yield debt or convertible debt, customary high yield or convertible (as applicable)
change of control and asset sale mandatory prepayments for issuers in similar lines of business of
similar credit quality)) and (c) contains covenants, defaults and similar provisions no less
favorable to Holdings and its Subsidiaries or the lenders under the Existing Credit Agreement in
any material respect than the terms of the Existing Credit Agreement (or, with respect to high
yield debt or convertible debt, customary high yield (or convertible, as the case may be) terms for
issuers in similar lines of business of similar credit quality), so long as, after giving pro forma
effect to the incurrence of such Indebtedness, (y) no Default shall have occurred and be continuing
and (z) Holdings and its Subsidiaries (including any Qualified Designated Entities and Joint
Venture Entities that are required under GAAP to be consolidated with Holdings and its
Subsidiaries) shall be in Pro Forma Compliance with the Senior Secured Leverage Covenant.




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




          “Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA)
established by the Borrower or, with respect to any such plan that is subject to Section 412 of the
Code or Title IV of ERISA, any ERISA Affiliate.




          “Plan of Reorganization” means the Fifth Amended Joint Plan of Reorganization of Holdings and
its Subsidiaries dated July 30, 2003.




          “Pro Forma Compliance” means, with respect to the Senior Secured Leverage Covenant, compliance
with such covenant determined on the basis of the most recently ended Measurement Period for which
financial information has been delivered to the Administrative Agent pursuant to Section
6.01(a) or (b), calculated as though the relevant Indebtedness had been created,
incurred, issued or assumed or Investment made as of the first day of such Measurement Period and,
in the case of any creation, incurrence, issuance or assumption of Indebtedness, as though any
Indebtedness that will be repaid with the proceeds of such Indebtedness had been so repaid or
refinanced as of the first day of such Measurement Period.




          “QDE Credit Documents” has the meaning specified in Section 7.03(n) of the Existing
Credit Agreement.



Project Leap Bridge Credit Agreement









 



25




          “Qualified Designated Entity” means (a) a Person that, at the time of the making of the
initial Investment by a Loan Party in such Person, holds or is intended to hold, whether directly
or indirectly through one or more Subsidiaries, one or more FCC Licenses as, or is eligible to
participate in an FCC auction or auctions for FCC Licenses and/or purchase of FCC Licenses or
spectrum in an after-market therefor from time to time as, a “Designated Entity,” “Entrepreneur,”
“Small Business,” or “Very Small Business,” as those terms are defined under FCC rules and
regulations as in effect at the time of the making of such Investment or (b) a wholly-owned
subsidiary of a Person referred to in clause (a) above; provided, however,
that no such Person controlled by Holdings or any of its Subsidiaries shall be a Qualified
Designated Entity. Unless otherwise specified, as used herein the term “Qualified Designated
Entity” shall include the ANB Entities, Denali License and Denali Spectrum.




          “Qualified Designated Entity Agreements” means all written agreements governing Investments by
Holdings and its Subsidiaries in Qualified Designated Entities and all written agreements governing
material transactions and business relationships between Holdings and its Subsidiaries, on the one
hand, and any Qualified Designated Entity or member thereof, on the other, including, without
limitation, limited liability company agreements, partnership agreements, management services
agreements, license agreements, and agreements governing loans made to, and commitments to lend to
or invest in, a Qualified Designated Entity (including for the avoidance of doubt the ANB Credit
Documents, the ANB Equity Documents and all QDE Credit Documents).




          “Qualified Preferred Stock” means preferred stock of Holdings that (a) has no mandatory
redemption feature exercisable on a date earlier than 180 days after the maturity date in respect
of the Term B Facility under the Existing Credit Agreement, (b) has no requirements for the payment
in cash of dividends or other distributions on a date earlier than 180 days after the maturity date
in respect of the Term B Facility provided under the Existing Credit Agreement, and (c) contains
covenants, if any, no more restrictive than those customarily found in a high-yield debt offering.




          “Register” has the meaning specified in Section 10.06(d).




          “Registered Exchange Offer” has the meaning set forth in Section 2.14(d).




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




          “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than
events for which the 30-day notice period has been waived.




          “Request for Credit Extension” means with respect to a Borrowing, conversion or continuation
of Bridge Loans, a Committed Loan Notice.




          “Required Lenders” means, as of any date of determination, Lenders having more than 50% of the
sum of the (a) aggregate principal amount of all Loans and (b) aggregate unused Commitments;
provided that the unused Commitment of, and the portion of the aggregate principal amount
of all Loans held or deemed held by, any Defaulting Lender shall be excluded for purposes of making
a determination of Required Lenders.




          “Responsible Officer” means any of the chief executive officer, president, chief financial
officer, chief operations officer, treasurer, assistant treasurer or controller of a Loan Party.
Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part



Project Leap Bridge Credit Agreement









 



26




of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted
on behalf of such Loan Party.



          “Restricted Payment” means any dividend or other distribution (whether in cash, securities or
other property) with respect to any capital stock or other Equity Interest of any Person 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, defeasance,
acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on
account of any return of capital to any Person’s stockholders, partners or members (or the
equivalent of any thereof), or on account of any option, warrant or other right to acquire any such
dividend or other distribution or payment.




          “Revolver Maintenance Covenants” means the covenants contained in each of Sections
7.10(a), 7.10(b) and 7.10(d) of the Existing Credit Agreement.




          “Revolving Facility Covenant” means any term, covenant or agreement contained in any of
Section 7.02(b) of the Existing Credit Agreement or Section 7.06(b) of the Existing
Credit Agreement or any Revolver Maintenance Covenant.




          “S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.
and any successor thereto.




          “SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding
to any of its principal functions.




          “Second Closing Date” means the date on which all the conditions precedent set forth in
Section 4.03 are satisfied or waived in accordance with Section 10.01 and a
borrowing of Bridge Loans is made; provided that such date shall be no later than the
earlier of (a) the date required for the full remaining balance (after giving effect to payments
theretofore made to the FCC, including on the First Closing Date) payable to the FCC by Cricket
Reauction or Denali License or both of them with respect to a Successful Auction or any date
selected by the Borrower up to five (5) Business Days prior to such date of required payment and
(b) March 31, 2007.




          “Securities Act” means the Securities Act of 1933, as amended.




          “Securities Offering” has the meaning set forth in Section 2.14(a).




          “Senior Secured Leverage Covenant” means the covenant contained in Section 7.10.




          “Senior Secured Leverage Covenant Compliance Certificate” means a certificate in substantially
the form of Exhibit F hereto.




          “Shelf Registration Statement” has the meaning set forth in Section 2.14(d).




          “Significant Subsidiary” means, at any date of determination, any (a) Subsidiary of Holdings
that individually has or (b) group of Subsidiaries of Holdings that in the aggregate has, with
respect to each of clause (a) or (b), revenues, assets or earnings in an amount
equal to at least 5% of (i) the consolidated revenues of Holdings and its Subsidiaries (including
any Qualified Designated Entities and Joint Venture Entities that are required under GAAP to be
consolidated with Holdings and its Subsidiaries) for the most recently completed Measurement Period
for which the Lenders have received financial statements of Holdings and its Subsidiaries pursuant
to Sections 6.01(a) and (b), (ii) the



Project Leap Bridge Credit Agreement









 



27




consolidated assets of Holdings and its Subsidiaries (including any Qualified Designated
Entities and Joint Venture Entities that are required under GAAP to be consolidated with Holdings
and its Subsidiaries) as of the last day of the most recently completed Measurement Period for
which the Lenders have received financial statements of Holdings and its Subsidiaries pursuant to
Section 6.01(b), or (iii) the consolidated net earnings of Holdings and its Subsidiaries
(including any Qualified Designated Entities and Joint Venture Entities that are required under
GAAP to be consolidated with Holdings and its Subsidiaries) for the most recently completed
Measurement Period for which the Lenders have received financial statements of Holdings and its
Subsidiaries pursuant to Sections 6.01(a) and (b), respectively, in each case
determined in accordance with GAAP for such period.



          “Solvent” and “Solvency” mean, with respect to any Person on any date of determination, that
on such date (a) the fair value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the amount that will be required
to pay the probable liability of such Person on its debts as they become absolute and matured, (c)
such Person does not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person’s ability to pay such debts and liabilities as they mature and (d) such Person
is not engaged in business or a transaction, and is not about to engage in business or a
transaction, for which such Person’s property would constitute an unreasonably small capital. The
amount of contingent liabilities at any time shall be computed as the amount that, in the light of
all the facts and circumstances existing at such time, represents the amount that can reasonably be
expected to become an actual or matured liability.




          “SPC” has the meaning specified in Section 10.06(i).




          “Specified Covenants” means the covenants set forth on Schedule 4.02.




          “Specified Representations” means the representations and warranties set forth on Schedule
4.02.




          “Stock-Pay Obligations” means (a) a commitment to purchase Equity Interests in a Qualified
Designated Entity or a Joint Venture Entity (including by way of a put obligation) or otherwise to
fund a Qualified Designated Entity or a Joint Venture Entity to the extent that such commitment is
permitted to be satisfied in full with common Equity Interests of Holdings or Qualified Preferred
Stock (or any combination thereof) without any cash make-whole or similar payments or other cash
payments, (b) the purchase of Equity Interests in a Qualified Designated Entity or a Joint Venture
Entity (including by way of a put obligation) or other funding of a Qualified Designated Entity or
a Joint Venture Entity, to the extent that such purchase or funding is effected with common Equity
Interests of Holdings or Qualified Preferred Stock (or any combination thereof) or (c) a Permitted
Debt Put Right or a purchase or other payment in respect of Indebtedness of a Qualified Designated
Entity or a Joint Venture Entity to the extent that such purchase or other payment is effected with
common Equity Interests of Holdings or Qualified Preferred Stock (or any combination thereof)
pursuant thereto.




          “Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability
company or other business entity of which shares of securities or other ownership interests having
ordinary voting power for the election of a majority of the directors, managers or other members of
its governing body (other than securities or interests having such power only by reason of the
happening of a contingency) are at the time beneficially owned, or the management of which is
otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such
Person. All references herein to a “Subsidiary” or to “Subsidiaries” shall refer
to a Subsidiary or Subsidiaries of Holdings (unless otherwise specified), but shall exclude (a) the
Excluded Subsidiaries, (b) until such time as Holdings beneficially owns, directly or indirectly,
shares of securities or other ownership interests having the power



Project Leap Bridge Credit Agreement









 



28




to elect a majority of the directors, managers or other members of its governing body (other
than securities or interests having such power only by reason of the happening of a contingency) of
an ANB Entity, such ANB Entity and (c) until such time as Holdings beneficially owns, directly or
indirectly, 100% of the Equity Interests of a Joint Venture Entity, Qualified Designated Entity or
former Qualified Designated Entity in which Holdings or any of its Subsidiaries makes any
Investment pursuant to Section 7.03(k) of the Existing Credit Agreement, Section
7.03(n) of the Existing Credit Agreement or Section 7.03(o) of the Existing Credit
Agreement, each such Joint Venture Entity, Qualified Designated Entity or former Qualified
Designated Entity.



          “Subsidiary Guarantor” means each Domestic Subsidiary of the Borrower that is party to the
Subsidiary Guaranty.




          “Subsidiary Guaranty” has the meaning specified in the definition of “Guaranty”.




          “Substitute Notes” has the meaning set forth in Section 2.14(d).




          “Successful Auction” means either Cricket Reauction or Denali License or both of them is the
Winning Bidder for one or more FCC Licenses pursuant to Auction 66.




          “Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative
transactions, forward rate transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or
options or forward bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination of any of the foregoing
(including any options to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions of any kind, and
the related confirmations, which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and Derivatives Association, Inc.,
any International Foreign Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a “Master Agreement”), including any such
obligations or liabilities under any Master Agreement.




          “Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking
into account the effect of any legally enforceable netting agreement relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and
termination value(s) determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or
other readily available quotations provided by any recognized dealer in such Swap Contracts (which
may include a Lender or any Affiliate of a Lender).




          “Syndication Agent” means GSCP, in its capacity as syndication agent under any of the Loan
Documents.




          “Synthetic Debt” means, with respect to any Person as of any date of determination thereof,
all Obligations of such Person in respect of transactions entered into by such Person that are
intended to function primarily as a borrowing of funds (including any minority interest
transactions that function primarily as a borrowing) but are not otherwise included in the
definition of “Indebtedness” or as a liability on the consolidated balance sheet of such Person and
its Subsidiaries in accordance with GAAP.



Project Leap Bridge Credit Agreement









 



29




          “Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called
synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession
of property (including sale and leaseback transactions), in each case, creating obligations that do
not appear on the balance sheet of such Person but which, upon the application of any Debtor Relief
Laws to such Person, would be characterized as the indebtedness of such Person (without regard to
accounting treatment).




          “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings,
assessments, fees or other charges imposed by any Governmental Authority, including any interest,
additions to tax or penalties applicable thereto.




          “Third Closing Date” means the date on which all the conditions precedent set forth in
Section 4.04 are satisfied or waived in accordance with Section 10.01 and a
borrowing of Bridge Loans is made; provided that such date shall be no later than the
earlier of (a) 15 days after the occurrence of the Second Closing Date and (b) March 31, 2007.




          “Threshold Amount” means $25,000,000.




          “Total Outstandings” means, at any time, the aggregate outstanding principal amount of all
Loans and Exchange Notes at such time.




          “Transaction” means, collectively, (a) the Bridge Facility, (b) the entering into by the Loan
Parties and their applicable Subsidiaries of the Loan Documents to which they are or are intended
to be a party and (c) the payment of the fees and expenses incurred in connection with the
consummation of the foregoing.




          “Type” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate
Loan.




          “Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under
Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, as determined
using the most recent actuarial value of the Plan prepared in accordance with the assumptions used
for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.




          “United States” and “U.S.” mean the United States of America.




          “U.S. Loan Party” means any Loan Party that is organized under the laws of one of the states
of the United States of America and that is not a CFC.




          “Winning Bidder” means a Person who is the winning bidder in Auction 66 for an FCC License (a)
as set forth in the FCC’s post- Auction 66 public notice identifying Auction 66 winning bidders or
(b) by virtue of having accepted the FCC’s offer of an FCC license for the amount of its final
Auction 66 bid therefor following the default of the winning bidder for that FCC License described
in clause (a) of this definition




          1.02 Other Interpretive Provisions. With reference to this Agreement and each other
Loan Document, unless otherwise specified herein or in such other Loan Document:





     (a) 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



Project Leap Bridge Credit Agreement









 



30


“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, (i) any
definition of or reference to any agreement, instrument or other document (including any
Organization Document) 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 or in any
other Loan Document), (ii) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (iii) the words “herein,” “hereof” and
“hereunder,” and words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to any particular provision
thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and Exhibits and
Schedules to, the Loan Document in which such references appear, (v) any reference to any
law shall include all statutory and regulatory provisions consolidating, amending replacing
or interpreting such law and any reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or supplemented from time to
time, (vi) 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, (vii) the words
“knowledge” or “knows,” when used with respect to any Loan Party, means (A)
the actual knowledge of a Responsible Officer of such Loan Party and (B) knowledge that
would be obtained by a Responsible Officer of such Loan Party exercising customary
diligence, (viii) the words “in all material respects” or words of similar import
when used herein with respect to the truth or correctness of representations and warranties
mean, with respect to any representation that is by its terms qualified as to materiality,
in all respects, and with respect to any representation that is by its terms not qualified
as to materiality, in all material respects and (ix) the components of the definition of
“Solvent” and “Solvency” set forth herein shall be construed in accordance with applicable
state fraudulent conveyance laws and with Section 548 of the Bankruptcy Code of the United
States.




     (b) In the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including;” the words “to” and
“until” each mean “to but excluding;” and the word “through” means
“to and including.”




     (c) Section headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the interpretation of this Agreement or
any other Loan Document.



          1.03 Accounting Terms. (a) Generally. All accounting terms not specifically
or completely defined herein shall be construed in conformity with, and all financial data
(including financial ratios and other financial calculations) required to be submitted pursuant to
this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in
effect from time to time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, except as otherwise specifically prescribed herein.




          (b) Changes in GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in any Loan Document, and either the
Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders and
the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve the
original intent thereof in light of such change in GAAP (subject to the approval of the Required
Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the



Project Leap Bridge Credit Agreement









 



31




Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving effect to such
change in GAAP.



          1.04 Rounding. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio is
expressed herein and rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).




          1.05 Times of Day. Unless otherwise specified, all references herein to times of day
shall be references to Eastern time (daylight or standard, as applicable).




          1.06 Currency Equivalents Generally. Any amount specified in this Agreement (other
than in Articles II, IX and X) or any of the other Loan Documents to be in
Dollars shall also include the equivalent of such amount in any currency other than Dollars, such
equivalent amount to be determined at the rate of exchange quoted by CNAI in New York at the close
of business on the Business Day immediately preceding any date of determination thereof, to prime
banks in New York, New York for the spot purchase in the New York foreign exchange market of such
amount in U.S. dollars with such other currency.




ARTICLE II

THE COMMITMENTS AND LOANS/EXCHANGE PROCEDURES




          2.01 The Bridge Loans. Subject to the terms and conditions hereof, on up to three
occasions during the Availability Period, comprising the Initial Closing Date, the Second Closing
Date and the Third Closing Date, respectively, each Lender severally agrees to make Bridge Loans to
the Borrower, provided that the Bridge Loans made by each Lender shall not exceed the
unused amount of such Lender’s Commitment at such time and the aggregate principal amount of the
Bridge Loans made by all the Lenders shall not exceed, in any event, $850,000,000 (subject to
increase pursuant to Section 2.13 and reduction in accordance with Section 2.05).
The Borrowing shall consist of Bridge Loans made simultaneously by the Lenders in accordance with
their respective Commitments. Amounts borrowed under this Section 2.01 and repaid or
prepaid may not be reborrowed. Bridge Loans may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.




          2.02 Borrowings, Conversions and Continuations of Bridge Loans. (a) Each Borrowing
shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be
given by telephone. Each such notice must be received by the Administrative Agent not later than
12:00 p.m. (i) three (3) Business Days prior to the requested date of
any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion
of Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested date of any Borrowing of
Base Rate Loans. Each telephonic notice by the Borrower pursuant to this Section 2.02(a)
must be confirmed promptly by delivery to the Administrative Agent of a written Committed Loan
Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each
Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount
of $3,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of or conversion
to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i)
whether the Borrower is requesting a borrowing of Bridge Loans or a conversion of Bridge Loans from
one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the
Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii)
the principal amount of Loans to be



Project Leap Bridge Credit Agreement









 



32




borrowed, converted or continued, (iv) the Type of Bridge Loans
to be borrowed or to which existing Bridge Loans are to be converted and (v) with respect to
Eurodollar Rate Loans, the duration of the Interest Period with respect thereto. If the Borrower
fails to specify a Type of Bridge Loan in a Committed Loan Notice or if the Borrower fails to give
a timely notice requesting a conversion or continuation, then the applicable Bridge Loans shall be
made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall
be effective as of the last day of the Interest Period then in effect with respect to the
applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or
continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an
Interest Period, it will be deemed to have specified an Interest Period of one month.



          (b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly
notify each Lender of the amount of its Applicable Percentage under the Bridge Facility of the
Bridge Loans, and if no timely notice of a conversion or continuation is provided by the Borrower,
the Administrative Agent shall notify each Lender of the details of any automatic conversion to
Base Rate Loans described in Section 2.02(a). Each Lender shall make the amount of its
Bridge Loan available to the Administrative Agent in immediately available funds at the
Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the
applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in
Article IV, the Administrative Agent shall make all funds so received available to the
Borrower in like funds as received by the Administrative Agent either by (i) crediting the account
of the Borrower on the books of CNAI with the amount of such funds or (ii) wire transfer of such
funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the
Administrative Agent by the Borrower.




          (c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted
only on the last day of an Interest Period for such Eurodollar Rate Loan. During the existence of
a Default, no Bridge Loans may be requested as, converted to or continued as Eurodollar Rate Loans
without the consent of the Required Lenders.




          (d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the
interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of
such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent
shall notify the Borrower and the Lenders of any change in CNAI’s base rate used in determining the
Base Rate promptly following the public announcement of such change.




          (e) After giving effect to all Borrowings, all conversions of Bridge Loans from one Type to
the other, and all continuations of Bridge Loans as the same Type, there shall not be more than
eight (8) Interest Periods in effect in respect of the Bridge Facility.




          (f) Anything in this Section 2.02 to the contrary notwithstanding, the Borrower may
not select Eurodollar Rate Loans for the initial Bridge Loans hereunder.




          2.03 Repayment of Bridge Loans; Option to Convert Into Extended Term Loans. (a)
Initial Maturity Date. Except as set forth in Section 2.03(b) below, the Borrower
shall repay to the Administrative Agent for the ratable account of the Lenders the aggregate
outstanding principal amount of the Bridge Loans on the Initial Maturity Date.




          (b) Extended Term Loans. Subject to the terms and conditions hereof and the
satisfaction of the conditions set forth in Section 2.03(c), each Lender severally agrees,
if the Bridge Loans have not been repaid in full on the Initial Maturity Date, that the then
outstanding principal amount of its Bridge Loan shall automatically be converted into an Extended
Term Loan to the Borrower on the Initial Maturity Date (and if such conversion occurs the Initial
Maturity Date shall also be referred to



Project Leap Bridge Credit Agreement









 



33




hereunder as the “Extension Date”), in an aggregate
principal amount equal to the then outstanding principal amount of the Bridge Loan of such Lender,
and such conversion, if effected, shall satisfy the payment requirements of Section
2.03(a).



          (c) Conditions to Conversion. The automatic conversion of the Bridge Loans to
Extended Term Loans on the Extension Date shall be subject to the following, and only the
following, conditions precedent:





     (i) No proceeding of the type described in Section 8.01(f) shall have occurred
with respect to Holdings, the Borrower or any Significant Subsidiary; and




     (ii) All payments of all amounts due and payable to the Lenders under the Loan
Documents shall have been paid in full in cash.



          (d) Final Maturity Date. The Borrower shall repay to the Administrative Agent for the
ratable account of the Lenders the aggregate outstanding principal amount of the Extended Term
Loans on December 17, 2013 (such date, the “Final Maturity Date”).




          (e) Treatment. Extended Term Loans shall, except to the extent otherwise expressly
provided for herein, be treated the same as Bridge Loans (including for purposes of conversions and
continuations in accordance with Section 2.03), except that the affirmative covenants,
negative covenants and defaults applicable thereto shall be modified to be substantially similar to
the correlative provisions contained in the Exchange Indenture.




          (f) Extended Term Loan Notes; Exchange Indenture. (i) The Borrower shall deliver to
any Lender requesting the same an Extended Term Loan Note executed by the Borrower in favor of each
Lender so requesting such Note on the Extension Date.





     (ii) Holdings and the Borrower and a trustee reasonably selected by the Lead Arrangers
and reasonably acceptable to the Borrower shall enter into an Exchange Indenture with
respect to the Exchange Securities (and the Guarantors shall have entered into related
guarantees substantially in the form of the Guaranty) on the Extension Date.



          (g) Exchange of Extended Term Loans for Exchange Securities. (i) On any Business Day
on or after the Extension Date (if any), any Lender may elect to exchange all or any portion of its
Extended Term Loan for one or more Exchange Securities by giving not less than three Business Days’
prior irrevocable written notice to the Borrower, the Administrative Agent and the trustee under
the
Exchange Indenture, specifying the principal amount of its Extended Term Loan to be exchanged
(which shall be at least $1,000,000 and integral multiples of $100,000 in excess thereof), the name
of the proposed registered holder and, subject to the terms of the Exchange Indenture, the amount
of each Exchange Security requested (each such notice, an “Exchange Notice”); provided,
however, that in no event shall the Borrower be obligated to effect such exchange until the
aggregate principal amount of the initial Extended Term Loans to be exchanged pursuant to this
clause (g) equals or exceeds $50,000,000. Any such exchanging Lender shall deliver its
Note, if any, to the Administrative Agent within three Business Days following delivery of an
Exchange Notice. Extended Term Loans exchanged for Exchange Securities pursuant to this clause
(g) shall be deemed repaid and canceled and the Exchange Securities so issued shall be governed
by and construed in accordance with the provisions of the Exchange Indenture. The principal amount
of any Exchange Security will equal 100% of the aggregate principal amount of the Extended Term
Loan for which it is exchanged.




          (ii) Not later than the fifth Business Day after delivery of an Exchange Notice:



Project Leap Bridge Credit Agreement









 



34





     (A) the Administrative Agent shall deliver to the Borrower any original Note
delivered to it by the exchanging Lender pursuant to clause (i) above;




     (B) the Borrower shall cancel each Note so delivered to it and, if applicable,
the Borrower shall issue a replacement Extended Term Loan Note to such Lender in an
amount equal to the principal amount of such Lender’s Extended Term Loan that is not
being exchanged, or the Borrower shall make a notation on any surrendered Note to
the effect that a portion of the Extended Term Loan represented thereby has been
repaid; and




     (C) the Borrower shall deliver the applicable Exchange Securities to the
trustee under the Exchange Indenture, for authentication and delivery to the holder
or holders thereof specified in the Exchange Notice.




     (iii) Each Exchange Security issued pursuant to this clause (g) shall bear
interest at a rate equal to the Initial Rate plus the Exchange Spread, not to exceed the
Maximum Rate, payable quarterly in arrears; provided, however, that each
Lender shall have the option to require that the Exchange Security issued pursuant to this
clause (g) bear interest at a fixed rate per annum, at a rate not higher than the
then applicable rate of interest as shall be set forth in the Exchange Indenture
(thereafter, a “Fixed Rate Exchange Security”). Accrued interest on Extended Term Loans so
exchanged shall be paid in full in cash on the date of such exchange. Each Fixed Rate
Exchange Security will be non-callable for three years from the Initial Maturity Date
(subject to customary equity clawback provisions and make-whole provisions at T+50) and will
be callable thereafter at par plus accrued interest and a premium equal to one-half the
coupon in effect on the date of the fixing of the interest rate on such Fixed Rate Exchange
Security, which premium shall decline ratably on each anniversary of the Initial Maturity
Date to zero one year before the maturity of the Fixed Rate Exchange Securities. Each
Exchange Security, including each Fixed Rate Exchange Security, shall mature on the Final
Maturity Date.



          2.04 Prepayments. (a) Optional. The Borrower may, upon notice to the
Administrative Agent (which may be given by telephone if confirmed promptly thereafter in writing),
at any time or from time to time voluntarily prepay Loans in whole or in part without premium or
penalty; provided that (i) such notice must be received by the Administrative Agent not
later than 12:00 p.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar Rate
Loans shall be in a principal amount of $3,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be
in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each
case, if less, the entire principal amount thereof then outstanding. Each such notice shall
specify the date and amount of such prepayment and the Type(s) of Loans to be prepaid. The
Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of
the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable
Percentage in respect of the Bridge Facility). If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such notice shall be due
and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be
accompanied by all accrued interest thereon, together with any additional amounts required pursuant
to Section 3.05. Each prepayment of the outstanding Loans pursuant to this Section
2.04(a) shall be paid to the Lenders in accordance with their respective Applicable Percentages
in respect of the Bridge Facility. In the event that the Borrower fails to specify the Type of
Loan to which such prepayment shall be applied, prepayment shall be applied first to repay
outstanding Base Rate Loans to the fullest extent thereof, and second to repay outstanding
Eurodollar Rate Loans, each in a manner which minimizes to the extent possible any amounts payable
by the Borrower under Section 3.05.




Project Leap Bridge Credit Agreement










 









 35 




               (b) Mandatory. (i) Upon the issuance by Holdings or any of its Subsidiaries
(other than a Disqualified Subsidiary) of any Qualified Preferred Stock or Equity Interests (other
than (A) pursuant to the exercise of options, warrants and/or other rights to acquire equity
interests by current or former directors, officers, employees or consultants of Holdings or any of
its Subsidiaries, (B) any sales or issuances of Equity Interests to a Loan Party, (C) issuances of
Equity Interests prior to the Initial Closing Date (other than in connection with Permitted Equity
Forwards) (1) to the extent not exceeding $250,000,000 in the aggregate for all such issuances so
long as the aggregate principal amount of the Loans does not exceed $600,000,000 and (2) to the
extent in an amount greater than the amount by which the aggregate principal amount of the Loans
exceeds $600,000,000, and (D) issuances of Equity Interests in connection with Permitted Equity
Forwards (1) to the extent not exceeding $250,000,000 in the aggregate for all such issuances so
long as the aggregate principal amount of the Loans does not exceed $600,000,000 and (2) to the
extent in an amount greater than the amount by which the aggregate principal amount of the Loans
exceeds $600,000,000), and after making payments required to be made to the FCC in connection with
Auction 66, the Borrower shall prepay ratably an aggregate principal amount of Loans and Exchange
Securities equal to 100% of all Net Cash Proceeds received therefrom within two (2) Business Days
after receipt thereof by Holdings or such Subsidiary. The Borrower may, by notice in writing to
the Administrative Agent received no later than 4 p.m., New York time, on the date which is two (2)
Business Days after the Second Closing Date, elect to retain up to $250,000,000 in Net Cash
Proceeds of any Permitted Equity Forward which has a Permitted Equity Forward Effective Date prior
to the Initial Closing Date and not apply such Net Cash Proceeds to the prepayment of Loans and
Exchange Securities, provided that (x) if such election is made and any Bridge Loans remain
outstanding on the Initial Demand Date, the Borrower shall immediately thereafter physically settle
any Permitted Equity Forward theretofore entered into and issue Equity Interests pursuant to the
terms thereof and (y) if such election is not made, the Borrower shall physically settle all or any
portion of any Permitted Equity Forward theretofore entered into, issue Equity Interests pursuant
to the terms thereof and apply the Net Cash Proceeds thereof ratably to the Loans and Exchange
Securities then outstanding, in each case to the extent required to prepay such Loans and Exchange
Securities pursuant to Section 2.04(b)(i)(D), within two (2) Business Days after the Second
Closing Date.



               (ii) If Holdings or any of its Subsidiaries (other than any of the Excluded Subsidiaries or
any Disqualified Subsidiary) Disposes of any property or assets (other than any Disposition of the
assets listed on Schedule 2.04 as pending assets sales and any Disposition of any property
or assets permitted by Section 7.05(a), (b), (c), (d), (f), (g), (h), (i)(x), (m), (n), (o),
(p), (q), (r), (s), (t), (u), or (v) of the Existing Credit Agreement (but only (1)
with respect to Section 7.05(h) of the Existing Credit Agreement, to the extent that Net
Cash Proceeds received thereunder do not exceed $10,000,000 in any Fiscal Year and (2) with respect
to Section 7.05(c) of the Existing Credit Agreement, to the extent of Net Cash Proceeds
from (x) subleases, (y) leases of cellsite towers and (z) other leases that do not exceed in the
aggregate for this clause (z) $5,000,000 in any fiscal year)) which in the aggregate
results in the realization by any Loan Party or such Subsidiary of Net Cash Proceeds, the Borrower
shall, subject to, and if and to the extent permitted under, the Existing Credit Agreement (as it
may be modified or waived), prepay an aggregate principal amount of Bridge Loans and the Extended
Term Loans and ratably shall offer to repurchase all Exchange Securities, in each case at 100% of
all Net Cash Proceeds received therefrom within two (2) Business Days after receipt thereof by any
Loan Party or such Subsidiary; provided further, however, that, with
respect to any Net Cash Proceeds realized under a Disposition described in this Section
2.04(b)(ii) (other than Net Cash Proceeds in excess of $20,000,000 realized under a disposition
permitted under Section 7.05(j) of the Existing Credit Agreement), at the option of the
Borrower (as elected by the Borrower in writing to the Administrative Agent no later than two (2)
Business Days after the date of such Disposition or the receipt of such insurance proceeds or
condemnation awards), and so long as no Event of Default shall have occurred and be continuing, the
Borrower may retain all or any portion of such Net Cash Proceeds for reinvestment in operating
assets (including, without limitation, FCC Licenses) so long as within twelve (12) months following
receipt of



Project Leap Bridge Credit Agreement











 



36



such Net Cash Proceeds, (1) a definitive agreement for the purchase of such assets with such
proceeds shall have been entered into or, if such proposed replacement asset is an FCC License to
be acquired through an FCC auction, Holdings or such Subsidiary or a Qualified Designated Entity
partially owned, directly or indirectly, by Holdings or any of its Subsidiaries shall have placed a
bid with respect thereto in an FCC auction (in each case, as certified by the Borrower in writing
to the Administrative Agent), and (2) such purchase shall have been consummated or such auction bid
shall have been successful (as certified by the Borrower in writing to the Administrative Agent);
provided further that if, at the end of such twelve (12)-month period, (x) the
definitive agreement referred to in clause (1) above has been executed and delivered by the
parties thereto and the only conditions remaining to consummation of the transactions contemplated
by such agreement are customary conditions to closing which the Borrower reasonably believes will
be satisfied on a timely basis, including the receipt of approval from the FCC for transfer of any
relevant license, or (y) in the case of an FCC License auction, the relevant auction has not
concluded or the auction bid of Holdings, a Subsidiary or a Qualified Designated Entity partially
owned, directly or indirectly, by Holdings or a Subsidiary has been successful but the relevant FCC
License has not yet been transferred to Holdings, such Subsidiary or such Qualified Designated
Entity, then such twelve (12)-month period shall be extended by up to an additional six (6) months;
provided further, however, that any Net Cash Proceeds not subject to such
definitive agreement or FCC auction within such twelve (12)-month period or so reinvested at the
end of such twelve (12)-month period (as extended, if applicable) shall be applied within two (2)
Business Days to the ratable prepayment of the Loans and Exchange Securities as set forth in this
Section 2.04.




               (iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries (other than a
Disqualified Subsidiary) of any Indebtedness (other than Indebtedness expressly permitted to be
incurred or issued pursuant to Section 7.02(a)(i) or (ii) of the Existing Credit
Agreement which does not constitute Permitted Bridge Debt or Permitted Unsecured Debt or arising
from borrowings under the Existing Credit Agreement or this Agreement but including convertibles),
provided that if the Net Cash Proceeds of any such Indebtedness are used to make payments
to the FCC in connection with Auction 66 the Commitments will be deemed to be automatically reduced
by an equal amount, the Borrower shall, subject to, and if and to the extent permitted under the
Existing Credit Agreement (as it may be modified or waived) (it being understood that the issuance
of Permitted Bridge Debt and Permitted Unsecured Debt in an amount not to exceed the aggregate
principal amount of the Bridge Loans outstanding from time to time hereunder, and the application
of the Net Cash Proceeds thereof to prepayment of the Loans and Exchange Securities, is and shall
continue to be so permitted), and after making payments required to be made to the FCC in
connection with Auction 66, prepay ratably an aggregate principal amount of Loans and Exchange
Securities equal to 100% of all Net Cash Proceeds received therefrom within two (2) Business Days
after receipt thereof by Holdings or such Subsidiary.



               (iv) Upon any receipt by Holdings or any of its Subsidiaries of distributions from Denali
License or Denali Spectrum (other than for taxes), then, after (A) the payment of up to $50,000,000
of any amounts required to be paid by Cricket Reauction to the FCC in connection with Auction 66
have been paid, and (B) the aggregate of all amounts, if any, required to be paid to the lenders
under the Existing Credit Agreement have been paid, the Borrower shall, subject to, and if and to
the extent prepayment of Loans and Exchange Securities with such distributions is permitted under,
the Existing Credit Agreement (or the Existing Credit Agreement is modified or waived to permit
such prepayments with such distributions), ratably prepay the Loans and Exchange Securities with
100% of such distributions, minus any reasonable out-of-pocket fees and expenses incurred
by Holdings or any of its Subsidiaries in connection therewith, within two (2) Business Days after
receipt thereof by Holdings or such Subsidiary.



               (v) Upon the occurrence of any Change of Control, the Borrower shall, subject to, and if and
to the extent permitted under, the Existing Credit Agreement (as it may be modified or





Project Leap Bridge Credit Agreement









 



37

waived), prepay all the Loans and offer to repurchase all the Exchange Securities at 100% (or,
in the case of any Fixed Rate Exchange Securities, 101%) of the principal amount thereof plus
accrued and unpaid interest and all other amounts payable hereunder.




               (vi) With respect to the Type of Loan to be prepaid, each prepayment of Loans pursuant to this
Section 2.04(b) shall be applied first to repay outstanding Base Rate Loans to the fullest
extent thereof, and second to repay outstanding Eurodollar Rate Loans, each in a manner that
minimizes to the extent possible any amounts payable by the Borrower under Section 3.05.



               (vii) Prepayments of the Bridge Facility made pursuant to this Section 2.04(b) shall
be applied ratably to the outstanding Bridge Loans and any outstanding Exchange Securities, and
after such application the balance may be retained by the Borrower for use in the ordinary course
of its business, provided that the Commitments for the Bridge Facility shall be
automatically and permanently reduced by the amount of prepayments made as set forth in Section
2.05(b)(ii).



               (viii) For purposes of this Section 2.04 only, each of Denali Spectrum and Denali
License shall be deemed to be a “Subsidiary” of Holdings if and to the extent the Existing Credit
Agreement permits (or is modified or waived to permit) the prepayment of Loans using the net cash
proceeds, if any, received by the Borrower from such entities with respect to the activities set
forth in clauses (i) through (iii) of this paragraph if and to the extent engaged
in by such entities, in which case the Borrower shall make such prepayment pursuant to Section
2.04(b)(i), (ii) or (iii), as applicable, to the extent of receipt of such net
cash proceeds.



               2.05 Termination or Reduction of Commitments. (a) Optional. The Borrower
may, upon notice to the Administrative Agent (which may be given by telephone if confirmed promptly
thereafter in writing), terminate the unused portions of the Commitment; provided that (i)
any such notice shall be received by the Administrative Agent not later than 12:00 p.m. three (3)
Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall
be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof and
(iii) the Borrower shall not terminate or reduce the unused portions of the Commitments between the
First Closing Date and the Second Closing Date.



               (b) Mandatory. (i) The aggregate unused Commitments shall be automatically and
permanently reduced to zero immediately after the Third Closing Date or the end of the Availability
Period, as applicable.




          (ii) The Commitments for the Bridge Facility shall be automatically and permanently
reduced (A) on each date on which the prepayment of Bridge Loans outstanding thereunder is
required to be made pursuant to Section 2.04 by an amount equal to the amount so
prepaid and (B) as set forth in Section 2.04(b)(iii).



               (c) Application of Commitment Reductions; Payment of Fees. The Administrative Agent
will promptly notify the Lenders of any termination or reduction of unused Commitment under this
Section 2.05. Upon any reduction of the unused Commitments, the Commitment of each Lender
shall be reduced by such Lender’s Applicable Percentage of such reduction amount. All fees accrued
as of the effective date of any termination of the Commitments shall, insofar as they relate to
such terminated Commitments, be paid on the effective date of such termination.





Project Leap Bridge Credit Agreement









 



38


               2.06 Repayment of Loans. The Borrower shall repay to the Administrative Agent for the
ratable account of the Lenders the aggregate principal amount of all Bridge Loans and Extended Term
Loans in accordance with Section 2.03.



               2.07 Interest. (a) Bridge Loans. Subject to the provisions of Section
2.07(c), (i) each Eurodollar Rate Loan under the Bridge Facility shall bear interest on the
outstanding principal amount thereof for each Interest Period at a rate per annum equal to the
Eurodollar Rate for such Interest Period plus the Applicable Rate for the Bridge Facility
and (ii) each Base Rate Loan under the Bridge Facility shall bear interest on the outstanding
principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base
Rate plus the Applicable Rate for the Bridge Facility.



               (b) Extended Term Loans. Subject to the provisions of Section 2.07(c), Extended Term
Loans shall bear interest at the Initial Rate plus the Exchange Spread.



               (c) Other Interest Provisions. (i) If any amount of principal of any Loan is not
paid when due (without regard to any applicable grace periods), whether at stated maturity, by
acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest
rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable
Laws.



               (ii) If any amount (other than principal of any Loan) payable by the Borrower under any Loan
Document is not paid when due (without regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount
shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws.



               (iii) Upon the request of the Required Lenders, while any Event of Default in respect of the
Bridge Facility exists and is continuing, the Borrower shall pay interest on the principal amount
of all outstanding Bridge Loans hereunder, as applicable, at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.



               (iv) Accrued and unpaid interest on past due amounts (including interest on past due interest)
shall be due and payable upon demand.



               (v) Notwithstanding the foregoing, at no time will the applicable interest rate for any Loan
exceed the Maximum Rate (except through the application of clauses (i), (ii) and
(iii) above).



               (d) Interest on each Bridge Loan and Extended Term Loan shall be due and payable in arrears on
each Interest Payment Date applicable thereto and at such other times as may be specified herein.
Interest hereunder shall be due and payable in accordance with the terms hereof before and after
judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.



               2.08 Fees. (a) Ticking Fee. If the Commitments remain available in whole or
in part after December 31, 2006, the Borrower shall pay to the Administrative Agent for the account
of each Lender in accordance with its Applicable Percentage, a ticking fee equal to 0.50% per annum
on the unused amount of the Commitments as of such date, computed on an average daily basis from
and after January 1, 2007
through the end of the Availability Period and payable in full in cash at the end of each
month in arrears and at the end of the Availability Period; provided, however, that
any ticking fee accrued with respect to any of the Commitments of a Defaulting Lender during the
period prior to the time such Lender became a Defaulting Lender and unpaid at such time shall not
be payable by the Borrower so long as such Lender shall be a Defaulting Lender except to the extent
that such ticking fee shall otherwise have been due and payable by the Borrower prior to such time;
and provided further that no ticking fee shall





Project Leap Bridge Credit Agreement









 



39

accrue on any of the Commitments of
a Defaulting Lender so long as such Lender shall be a Defaulting Lender. The ticking fee shall
accrue at all times during the Availability Period, including at any time during which one or more
of the conditions in Article IV is not met.




               (b) Other Fees. (i) The Borrower shall pay to the Lead Arrangers and the
Administrative Agent for their own respective accounts fees in the amounts and at the times
specified in the Fee Letters. Such fees shall be fully earned when paid and shall not be
refundable for any reason whatsoever.




          (ii) The Borrower shall pay to the Administrative Agent such fees as shall have been
separately agreed upon in writing in the amounts and at the times so specified. Such fees
shall be fully earned when paid and shall not be refundable for any reason whatsoever.



               2.09 Computation of Interest and Fees. All computations of interest for Base Rate
Loans when the Base Rate is determined by clauses (a) or (b) of the definition of
“Base Rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual
days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day
year and actual days elapsed (which results in more fees or interest, as applicable, being paid
than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day
on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on
which the Loan or such portion is paid, provided that any Loan that is repaid on the same
day on which it is made shall, subject to Section 2.11(a), bear interest for one day. Each
determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive
and binding for all purposes, absent manifest error.



               2.10 Evidence of Debt. (a) The Loans made by each Lender shall be evidenced by one
or more accounts or records maintained by such Lender and by the Administrative Agent in the
ordinary course of business. The accounts or records maintained by the Administrative Agent and
each Lender shall be conclusive absent manifest error of the amount of the Loans made by the
Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower
hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and records of the
Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent (set forth in the Register) shall control in the absence of manifest error. Upon the request
of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such
Lender (through the Administrative Agent) a Note (but only to the extent that the Bridge Loans
evidenced by such Note are not already evidenced by an existing Note), which shall evidence such
Lender’s Bridge Loans in addition to such accounts or records. Each Lender may attach schedules to
its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Bridge
Loans and payments with respect thereto.



               (b) In addition to the accounts and records referred to in Section 2.10(a), each
Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts
or records evidencing the purchases and sales by such Lender of participations in Bridge Loans. In
the event of any conflict between the accounts and records maintained by the Administrative Agent
and the accounts and records of any Lender in respect of such matters, the accounts and records of
the Administrative Agent shall control in the absence of manifest error.



               2.11 Payments Generally; Administrative Agent’s Clawback. (a) General. All
payments to be made by the Borrower shall be made without condition or deduction for any
counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all
payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of
the respective Lenders





Project Leap Bridge Credit Agreement









 



40

to which such payment is owed, at the Administrative Agent’s Office in
Dollars and in immediately available funds not later than 2:00 p.m. on the date specified herein.
The Administrative Agent will promptly distribute to each Lender its Applicable Percentage in
respect of the Bridge Facility (or other applicable share as provided herein) of such payment in
like funds as received by wire transfer to such Lender’s Lending Office. All payments received by
the Administrative Agent after 2:00 p.m. shall be deemed received on the next succeeding Business
Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the
Borrower shall come due on a day other than a Business Day, payment shall be made on the next
following Business Day, and such extension of time shall be reflected on computing interest or
fees, as the case may be.




               (b) (i) Funding by Lenders; 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 Section 2.02 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 in immediately available funds 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 (A) in the case of a payment to be made by such
Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation and (B) in the case of a payment
to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and
such Lender shall pay such interest to the Administrative Agent for the same or an overlapping
period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest
paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to
the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in
such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower
may have against a Lender that shall have failed to make such payment to the Administrative Agent.
Nothing in this Section 2.11(b) shall be deemed to relieve any Lender of its obligation to
fulfill its Commitments hereunder or to prejudice any rights that Holdings or its Subsidiaries may
have against any Lender as a result of any default by such Lender hereunder.



               (ii) Payments by Borrower; Presumptions by Administrative Agent. Unless the
Administrative Agent shall have received notice from the Borrower prior to the date on which any
payment is due to the Administrative Agent for the account of the Lenders 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
Lenders, as the case may be, the amount due. In such event, if the Borrower has not in fact
made such payment, then each of the Lenders, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender, in immediately available funds 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 greater of the Federal Funds Rate
and a rate determined by the Administrative Agent in accordance with banking industry rules on
interbank compensation.



               A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (b) shall be conclusive, absent manifest error.



               (c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the
Administrative Agent funds for any Bridge Loan to be made by such Lender as provided in the
foregoing provisions of this Article II, and such funds are not made available to the
Borrower by the Administrative





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41

Agent because the conditions to the applicable Loan set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from such Lender) to such
Lender, without interest.




               (d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make
Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The
failure of any Lender to make any Loan or to fund any such participation or make any payment under
Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its
corresponding obligation to do so on such date, and no Lender shall be responsible for the failure
of any other Lender to so make its Bridge Loan, to purchase its participation or make its payment
under Section 10.04(c).



               (e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any particular place or
manner.



               (f) Insufficient Payment. Whenever any payment received by the Administrative Agent
under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts
due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement
and the other Loan Documents on any date, such payment shall be distributed by the Administrative
Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in
Section 8.03. If the Administrative Agent receives funds for application to the
Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for
which the Loan Documents do not specify the manner in which such funds are to be applied, the
Administrative Agent may, but shall not be obligated to, elect to distribute such funds to each of
the Lenders in accordance with such Lender’s Applicable Percentage of the principal amount of all
Loans outstanding at such time, in repayment or prepayment of such of the outstanding Loans or
other Obligations then owing to such Lender.



               2.12 Sharing of Payments by Lenders. If any Lender shall, by exercising any right of
setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on
any of the Loans made by it, resulting in such Lender’s receiving payment of a proportion of the
aggregate amount of such Loans or participations and accrued interest thereon greater than its pro
rata share thereof of the Bridge Facility as provided herein, then the Lender receiving such
greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for
cash at face value) participations in the Loans of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them, provided that:




          (i) if any such participations or subparticipations are purchased and all or any
portion of the payment giving rise thereto is recovered, such participations or
subparticipations shall be rescinded and the purchase price restored to the extent of such
recovery, without interest; and




          (ii) the provisions of this Section shall not be construed to apply to (x) any payment
made by the Borrower pursuant to and in accordance with the express terms of this Agreement
or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant, other than to the Borrower
or any Subsidiary thereof (as to which the provisions of this Section shall apply).



               Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the foregoing
arrangements





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42

may exercise against such Loan Party rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of such Loan Party in the
amount of such participation.




               2.13 Increase in Commitments. (a) Request for Increase. Upon reasonable
prior notice to the Administrative Agent (which shall promptly notify the Lenders thereof), the
Borrower may from time to time on or prior to the Initial Closing Date, request an increase in the
Commitment by an amount (for all such requests) not exceeding in the aggregate $350,000,000;
provided that (i) if an underwritten offering of Equity Interests of Holdings (including in
connection with a Permitted Equity Forward) is consummated (which, in the case of a Permitted
Equity Forward, shall mean the Permitted Equity Forward Effective Date) prior to the Initial
Closing Date, the aggregate increase in the Commitment that the Borrower may request shall not
exceed an amount equal to $350,000,000 minus the lesser of (x) $250,000,000 and (y) an
amount equal to the product of (A) the net sales price (or, in the case of a Permitted Equity
Forward, the initial forward sale price) multiplied by (B) the number of shares of Equity
Interests of Holdings sold in such underwritten offering, (ii) there shall not be more than three
(3) separate Incremental Increases (as defined below), (iii) no breach of the Specified
Representations and no Default or Event of Default shall have occurred and be continuing, or would
occur after giving effect to any Incremental Increase, (iv) the Borrower shall have certified to
the matters set forth in subclause (iii) and to compliance with the conditions set forth in
Section 4.02(b) and (c) after giving effect to the funding of the applicable
Incremental Increase in a manner reasonably satisfactory to the Administrative Agent, (v) no Lender
shall be required to provide any of the financing for any Incremental Increase, although the
Lenders shall be invited to participate (at their option) therein, (vi) each Incremental Increase
shall be effected pursuant to documentation (including appropriate legal opinions and resolutions)
reasonably satisfactory to the Lead Arrangers, such that if any such Incremental Increase shall be
on better terms for the lenders thereof, than the terms and conditions of the Bridge Facility, the
terms and conditions of the Bridge Facility shall be adjusted to match such terms, and (vii) any
additional Lenders shall at least meet the minimum financial criteria set forth on Schedule
2.13 and shall be reasonably satisfactory to the Lead Arrangers only with respect to the
ability of such additional lenders to satisfy their funding commitments, such approval (A) not to
be unreasonably withheld and (B) to be granted or affirmatively withheld within one Business Day
following receipt of notice by the Lead Arrangers of such additional lenders (and if not granted or
affirmatively withheld within one Business Day following receipt of such notice, shall be deemed
granted without further action on the part of the Lead Arrangers, the Borrower or Holdings). At
the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall
specify the time period within which each Lender is requested to respond (which shall in no event
be less than five (5) Business Days from the date of delivery of such notice to the Lenders).



               (b) Lender Elections to Increase. Each Lender shall notify the Administrative Agent
within such time period whether or not it agrees to increase its Commitment and, if so, whether by
an amount equal to, greater than, or less than its Applicable Percentage of such requested
increase. Any Lender not responding within such time period shall be deemed to have declined to
increase its Commitment.



               (c) Notification by Administrative Agent; Additional Lenders. The Administrative
Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made
hereunder. To achieve the full amount of a requested increase, and subject to the approval of the
Administrative Agent, which approval shall not be unreasonably withheld, the Borrower may also
invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement in form and
substance satisfactory to the Administrative Agent and its counsel.



               (d) Effective Date and Allocations; Amortization; Technical Amendments. If the
Commitment is increased in accordance with this Section, the Administrative Agent and the Borrower





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43

shall determine the effective date (the “Increase Effective Date”) and the final allocation of such
increase. The Administrative Agent shall promptly notify the Borrower and the Lenders of the final
allocation of such increase (each such allocated increase as to which the Increase Effective Date
shall have occurred, an “Incremental Increase”) and the Increase Effective Date. In connection
with any increase, this Agreement may be amended in a writing executed and delivered by the
Borrower and the Administrative Agent to reflect any technical changes necessary to give effect to
such increase in accordance with its terms as set forth herein, but the Incremental Facility shall
not be a separate facility from the Bridge Facility but rather shall be part of the Bridge
Facility.




               (e) Conditions to Effectiveness of Increase. As a condition precedent to such
increase, the Borrower shall deliver to the Administrative Agent a certificate of each Loan Party
dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a
Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such
Loan Party approving or consenting to such increase, and (ii) in the case of each Holdings and the
Borrower, certifying that, before and after giving effect to such increase, (A) the Specified
Representations are true and correct in all material respects on and as of the Increase Effective
Date, except to the extent that such representations and warranties specifically refer to an
earlier date, in which case they are true and correct in all material respects as of such earlier
date, and (B) no Default exists.



               (f) Conflicting Provisions. This Section shall supersede any provisions in
Sections 2.12 or 10.01 to the contrary.



               (g) Pricing Parity. In the event that the Applicable Rate in respect of Bridge Loans
made under any Incremental Facility is higher than the Applicable Rate then in effect, then the
Applicable Rate in respect of Bridge Loans under the Bridge Facility immediately prior to the
Increase Effective Date for the applicable Incremental Facility shall be automatically increased to
a rate equal to the Applicable Rate in respect of such Incremental Facility.



               2.14 Take-Out Financing; Securities Demand; Registration Rights.



               (a) The Borrower and Holdings shall use their respective commercially reasonable efforts to
consummate, as promptly as practicable following the Second Closing Date, the offering and sale of
senior unsecured notes (the “Securities Offering”) in an amount sufficient to repay all principal
and other amounts then due or outstanding under this Agreement and the other Loan Documents from
the
net cash proceeds thereof and, in any event, subject to the conditions set forth in
Section 2.14(b), use its best efforts to refinance the Loans and all other amounts due or
outstanding under this Agreement in full with the proceeds of the Demand Securities referred to
below as promptly as practicable following the Second Closing Date.



               (b) In the event the Securities Offering has not been consummated (or has not generated
sufficient net cash proceeds to repay all principal and other amounts due or outstanding under this
Agreement), then, at any time and from time to time upon notice (a “Demand Notice”) by the Lead
Arrangers commencing on the date which is the earlier of (i) 60 days after the Second Closing Date
or (ii) April 30, 2007 (such earlier date, the “Initial Demand Date”), and continuing so that such
notice may be given until the close of business on the Extension Date, the Borrower and/or Holdings
will sell debt securities in an amount such that the net proceeds thereof are sufficient to repay
all amounts outstanding with respect to the Loans or otherwise under this Agreement (collectively,
the “Demand Securities”), the proceeds of which shall immediately be applied to refinance all
amounts outstanding under the Bridge Facility and otherwise outstanding under this Agreement and to
pay all reasonable fees (including reasonable attorneys fees) and expenses related thereto;





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44


               (c) Following the Demand Notice, Holdings and/or the Borrower shall accept one or more takeout
high yield financings comprising Permitted Unsecured Debt with reasonable and customary covenants
and an aggregate weighted average yield not to exceed the Maximum Rate, on the Lead Arrangers’
customary terms, to be agreed by the Lead Arrangers. The Demand Securities (other than any loans)
shall be issued pursuant to a private placement or Rule 144A and Regulation S under the Securities
Act, as the Lead Arrangers may determine.



               (d) The Borrower (and/or, at the request of the Lead Arrangers, Holdings) will file, within 60
days after the Initial Maturity Date, and will use its best efforts to cause to become effective as
soon thereafter as practicable, a shelf registration statement with respect to the Exchange
Securities (a “Shelf Registration Statement”) and/or a registration statement relating to a
Registered Exchange Offer (as described below). If a Shelf Registration Statement is filed, the
Borrower (and/or Holdings) will keep such registration statement effective and available (subject
to customary exceptions) until it is no longer needed to permit unrestricted resales of Exchange
Securities (but in no event longer than two years from the Initial Maturity Date).



               If within 150 days from the Initial Maturity Date,




          (i) a Shelf Registration Statement for the Exchange Securities has not been declared
effective, or




          (ii) the Borrower (and/or Holdings) has not effected an exchange offer (a “Registered
Exchange Offer”) whereby the Borrower (and/or Holdings) has offered registered notes having
terms identical to the Exchange Securities (the “Substitute Notes”) in exchange for all
outstanding Exchange Securities and Extended Term Loans, or




          (iii) the holders of Exchange Securities have not received Substitute Notes through the
Registered Exchange Offer that, in the opinion of counsel, would be freely saleable by such
holders without registration or requirement for delivery of a current prospectus under the
Securities Act (other than a prospectus delivery requirement imposed on a broker-dealer who
is exchanging Exchange Securities acquired for its own account as a result of market making
or other trading activities) and the Borrower (and/or Holdings) has not made available a
Shelf Registration Statement with respect to such Exchange Securities,


then the Borrower will pay liquidated damages of $0.192 per week per $1,000 principal amount of
Exchange Securities outstanding to holders of such Exchange Securities who are unable freely to
transfer Exchange Securities from and including the 151st day after the Initial Maturity Date to
but excluding the earlier of the effective date of such Shelf Registration Statement or the date of
consummation of such Registered Exchange Offer (such damages to be payable in the form of
additional Exchange Securities, if the then interest rate thereon exceeds the cash interest rate
cap), payable quarterly. The Borrower will also pay such liquidated damages for any period of time
(subject to customary exceptions) following the effectiveness of a Shelf Registration Statement
that such Shelf Registration Statement is not available for resales thereunder, payable quarterly.
In addition, unless and until the Borrower (and/or Holdings) has consummated the Registered
Exchange Offer or caused the Shelf Registration Statement to become effective, the holders of the
Exchange Securities will have the right to “piggyback” the Exchange Securities in the registration
of any debt securities (subject to customary scale-back provisions) that are registered by the
Borrower (and/or Holdings) (other than on a Form S-4 or Form S-8) unless all of the Exchange
Securities and Extended Term Loans will be redeemed or repaid from the proceeds of such securities.






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45




ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY




               3.01 Taxes. (a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of the Borrower hereunder or under any other Loan Document shall be made
free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes,
provided that if the Borrower shall be required by applicable law to deduct any Indemnified
Taxes (including any 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) the Administrative Agent or Lender, as the case may be,
receives an amount equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make such deductions and (iii) the Borrower shall timely pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law.



               (b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
subsection (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.



               (c) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent and each Lender, within 10 days after demand therefor, for the full 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) paid by the Administrative Agent or such
Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, 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 Borrower by a Lender (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender,
shall be conclusive absent manifest error.



               (d) Evidence of Payments. Within 30 days after the date of any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower 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 information return reporting
such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.



               (e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the Borrower is resident
for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by
the Borrower or the Administrative Agent, 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 of withholding. In addition, any Lender, if requested by the Borrower or the
Administrative Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup withholding or
information reporting requirements.



               Without limiting the generality of the foregoing, if the Borrower is resident for tax purposes
in the United States, any Foreign Lender shall deliver to the Borrower and the Administrative Agent
(in such number of copies as shall be requested by the recipient) on or prior to the date on which
such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the





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46

request of the Borrower or the Administrative Agent, but only if such Foreign Lender is legally
entitled to do so), whichever of the following is applicable:





          (i) duly completed copies of Internal Revenue Service Form W-8BEN or any successor form
claiming eligibility for benefits of an income tax treaty to which the United States is a
party,




          (ii) duly completed copies of Internal Revenue Service Form W-8ECI or any successor
form certifying that the income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United States,




          (iii) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 881(c) of the Code, (A) a certificate to the effect that
such Foreign Lender is not (1) a “bank” within the meaning of section 881(c)(3)(A) of the
Code, (2) a “10 percent shareholder” of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (3) a “controlled foreign corporation” described in section
881(c)(3)(C) of the Code and (B) duly completed copies of Internal Revenue Service Form
W-8BEN (or any successor form) certifying that the Foreign Lender is not a United States
Person, or




          (iv) any other form including Internal Revenue Service Form W-8IMY as applicable
prescribed by applicable law as a basis for claiming exemption from or a reduction in United
States Federal withholding tax duly completed together with such supplementary documentation
as may be prescribed by applicable law to permit the Borrower to determine the withholding
or deduction required to be made.



               In addition, in each of the foregoing circumstances, each Foreign Lender shall deliver such
forms promptly upon the expiration or invalidity of any form previously delivered by such Foreign
Lender upon request of the Borrower or Administrative Agent. Each Foreign Lender shall promptly
notify the Borrower and Administrative Agent at any time it determines that it no longer satisfies
the legal requirements to provide any previously delivered form or certificate to the Borrower (or
any other form of certification adopted by the U.S. or other taxing authorities for such purpose).


Each Lender that is a United States person agrees deliver to the Borrower and the Administrative
Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on
which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the
request of the Borrower or the Administrative Agent, but only if such Lender is legally entitled to
do so), duly completed copies of Internal Revenue Service Form W-9 (or successor form) establishing
that the Lender is not subject to U.S. backup withholding tax to the extent reasonably requested by
the Borrower or Administrative Agent to evidence an exemption from U.S. backup withholding tax.




               (f) Treatment of Certain Refunds. If the Administrative Agent or any Lender
determines, in its sole discretion, that it has received a refund or credit (in lieu of such refund
other than a foreign tax credit) of any Taxes or Other Taxes as to which it has been indemnified by
the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this
Section, it shall pay to the Borrower an amount equal to such refund (but only to the extent of
indemnity payments made, or additional amounts paid, by the Borrower under this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all reasonable
out-of-pocket expenses of the Administrative Agent or such Lender, 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 the Borrower, upon the request of the Administrative Agent or such
Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the





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47

Administrative Agent or such Lender
in the event the Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This subsection shall not be construed to require the Administrative Agent
or any Lender 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.




               3.02 Illegality. If any Lender determines that any Law or any guideline, directed
duty or request of or any agreement with any Governmental Authority (whether or not having the
force of law) has made it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurodollar Rate
Loans, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental
Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or
to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender
to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended
until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving
rise to such determination no longer exist. Upon receipt of such notice, the Borrower shall, upon
demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on the last day of the
Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate
Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such
Eurodollar Rate Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted.



               3.03 Inability to Determine Rates. If the Required Lenders determine that for any
reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation
thereof that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar
market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the LIBO Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan, or (c) the LIBO Rate for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan does not
adequately and fairly reflect the cost to such Lenders of funding such Bridge Loan, the
Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, the
obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the
Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon
receipt of such notice, the Borrower may revoke, without any penalty or payment, any pending
request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing
that, will be deemed to have converted such request into a request for a Committed Borrowing of
Base Rate Loans in the amount specified therein.



               3.04 Increased Costs; Reserves on Eurodollar Rate Loans. (a) Increased Costs
Generally. If any Change in Law shall:




          (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for the account
of, or credit extended or participated in by, any Lender (except any reserve requirement
reflected in the Eurodollar Rate);




          (ii) subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any Eurodollar Rate Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Indemnified Taxes or Other Taxes
covered by Section 3.01 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender); or





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48



          (iii) impose on any Lender or the London interbank market any other condition, cost or
expense affecting this Agreement or Eurodollar Rate Loans made by such Lender or
participation therein;


and the result of any of the foregoing shall be to increase the cost to such Lender of making or
maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan) or to
reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal,
interest or any other amount) then, upon request of such Lender and receipt of a certificate for
reimbursement pursuant to Section 3.04(c), the Borrower will pay to such Lender, as the
case may be, such additional amount or amounts as will compensate such Lender, as the case may be,
for such additional costs incurred or reduction suffered.




               (b) Capital Requirements. If any Lender determines that any Change in Law affecting
such Lender or any Lending Office of such Lender or such Lender’s holding company, if any,
regarding capital requirements has or would have the effect of reducing the rate of return on such
Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of
this Agreement, the Commitments of such Lender or the Loans made by, such Lender, to a level below
that which such Lender or such Lender’s holding company could have achieved but for such Change in
Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding
company with respect to capital adequacy), then from time to time upon request by such Lender and
receipt of a certificate for reimbursement pursuant to Section 3.04(c) the Borrower will
pay to such Lender, as the case may be, such additional amount or amounts as will compensate such
Lender or such Lender’s holding company for any such reduction suffered.



               (c) Certificates for Reimbursement. A certificate of a Lender setting forth in
reasonable detail the amount or amounts necessary to compensate such Lender or its holding company,
as the case may be, as specified in subsection (a) or (b) of this Section and the
basis for calculating such amounts (using any reasonable averaging or attribution methods) and
delivered to the Borrower 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.



               (d) Delay in Requests. Failure or delay on the part of any Lender to demand
compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of
such Lender’s right to demand such compensation, provided that the Borrower shall not be
required to compensate a Lender pursuant to the foregoing provisions of this Section for any
increased costs incurred or reductions suffered more than six (6) months prior to the date that
such Lender, 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 intention to claim compensation therefor (except
that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then
the six (6)-month period referred to above shall be extended to include the period of retroactive
effect thereof).



               3.05 Compensation for Losses. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and
hold such Lender harmless from any loss, cost or expense incurred by it as a result of:




          (a) any continuation, conversion, payment or prepayment of any Eurodollar Rate Loan on
a day other than the last day of the Interest Period for such Bridge Loan (whether
voluntary, mandatory, automatic, by reason of acceleration, or otherwise);





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49



          (b) any failure by the Borrower (for a reason other than the failure of such Lender to
make a Bridge Loan) to prepay, borrow, continue or convert any Eurodollar Rate Loan on the
date or in the amount notified by the Borrower; or




          (c) any assignment of a Eurodollar Rate Loan on a day other than the last day of the
Interest Period therefor as a result of a request by the Borrower pursuant to Section
10.13;


including any loss or expense arising from the liquidation or reemployment of funds obtained by it
to maintain such Loan or from fees payable to terminate the deposits from which such funds were
obtained. The Borrower shall also pay any customary administrative fees charged to similarly
situated borrowers by such Lender in connection with the foregoing.




               For purposes of calculating amounts payable by the Borrower to the Lenders under this
Section 3.05, each Lender shall be deemed to have funded each Eurodollar Rate Loan made by
it at the LIBO Rate used in determining the Eurodollar Rate for such Loan by a matching deposit or
other borrowing in the London interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.



               3.06 Mitigation Obligations; Replacement of Lenders. (a) Designation of a
Different Lending Office. If any Lender requests compensation under Section 3.04, or
the Borrower is required to pay any additional amount to any Lender or any Governmental Authority
for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice
pursuant to Section 3.02, then such Lender shall use reasonable efforts to designate a
different Lending Office for funding or booking its Loans 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 3.01 or 3.04, as the case may be, in the future, or eliminate the need
for the notice pursuant to Section 3.02, as
applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.



               (b) Replacement of Lenders. If any Lender requests compensation under Section
3.04, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 3.01, the Borrower
may replace such Lender in accordance with Section 10.13.



               3.07 Survival. All of the Borrower’s obligations under this Article III shall
survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.



ARTICLE IV

CONDITIONS PRECEDENT




               4.01 Conditions to Effectiveness. The effectiveness of this Agreement is subject to
satisfaction or waiver in accordance with Section 10.01 of the following conditions
precedent:



               (a) The Administrative Agent’s receipt of the following, each of which shall be originals or
telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of the signing Loan Party (where applicable), each dated the Effective Date
(or, in the case of certificates of governmental officials, a recent date before the Effective
Date) and each in form and substance satisfactory to the Administrative Agent and each of the
Lenders:





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50



          (i) executed counterparts of this Agreement and each Guaranty,
executed by the Borrower and each Guarantor, respectively, sufficient in number for
distribution to the Administrative Agent, each Lender and the Borrower;




          (ii) a Bridge Note executed by the Borrower in favor of each Lender
requesting a Bridge Note;




          (iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of each Loan Party as
the Administrative Agent may reasonably require evidencing the identity, authority
and capacity of each Responsible Officer thereof authorized to act as a Responsible
Officer in connection with this Agreement and the other Loan Documents to which such
Loan Party is a party or is to be a party;




          (iv) such documents and certifications as the Administrative Agent
may reasonably require to evidence that each Loan Party is duly organized or formed,
and that each of the Borrower, Holdings and each of their respective Subsidiaries is
validly existing, in good standing and qualified to engage in business in each
jurisdiction where its ownership, lease or operation of properties or the conduct of
its business requires such qualification, except to the extent that failure to do so
could not reasonably be expected to have a Material Adverse Effect;




          (v) a favorable opinion of Latham & Watkins LLP, counsel to the Loan
Parties, addressed to each Agent and each Lender, as to the matters set forth in
Exhibit E-1 and such other matters concerning the Loan Parties and the Loan
Documents as the Required Lenders may reasonably request;




          (vi) a favorable opinion of Boult, Cummings, Conners & Berry, PLC,
local counsel to the Loan Parties in Tennessee, addressed to the Administrative
Agent and each Lender, as to the matters set forth in Exhibit E-2 and such
other matters concerning the Loan Parties and the Loan Documents as the Required
Lenders may reasonably request;




          (vii) a certificate of a Responsible Officer of each Loan Party
either (A) attaching copies of all consents, licenses and approvals required in
connection with the execution, delivery and performance by such Loan Party and the
validity against such Loan Party of the Loan Documents to which it is a party, and
such consents, licenses and approvals shall be in full force and effect, or (B)
stating that no such consents, licenses or approvals are so required;




          (viii) a certificate signed by a Responsible Officer of Holdings, the
statements in which shall be true, certifying (A) that (1) the representations and
warranties of the Borrower and each other Loan Party contained in Article V
or in any other Loan Document are true and correct in all material respects on and
as of the Effective Date, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case as of such earlier
date and (2) no Default exists, (B) that there has been no event or circumstance
since the date of the Audited Financial Statements that has had or could be
reasonably expected to have, either individually or in the aggregate, a Material
Adverse Effect and (C) that Holdings and the Borrower are in compliance with the
Existing Credit Agreement;





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51



          (ix) certificates attesting to the Solvency of each Loan Party before
and after giving effect to the Transaction, from its Chief Financial Officer, in
form and substance satisfactory to the Lead Arrangers, together with such other
evidence reasonably requested by the Lenders, confirming the solvency of the
Borrower and each Guarantor after giving effect to the Transactions;




          (x) a pro forma consolidated balance sheet as to Holdings and its
Subsidiaries (including any Qualified Designated Entities and Joint Venture Entities
that are required under GAAP to be consolidated with Holdings and its Subsidiaries)
as of June 30, 2006 after giving effect to the Transactions, together with a
certificate of the chief financial officer of Holdings to the effect that such
statements fairly present in all material respects the pro forma financial position
of Holdings and its Subsidiaries (including any Qualified Designated Entities and
Joint Venture Entities that are required under GAAP to be consolidated with Holdings
and its Subsidiaries) in accordance with GAAP, and the Lenders shall be satisfied
that such balance sheets are not materially inconsistent with the forecasts
previously provided to the Lenders. In addition, the Borrower shall have delivered
the most recent consolidated projections for Holdings and its Subsidiaries
(including any Qualified Designated Entities and Joint Venture Entities that are
required under GAAP to be consolidated with Holdings and its Subsidiaries) through
the 2013 fiscal year, prepared on a quarterly basis through the end of 2007, which
shall not be materially inconsistent with the projections provided to the Lead
Arrangers prior to the date hereof;




          (xi) to the extent available, unaudited consolidated balance sheets
and related statements of income, stockholders’ equity and cash flows of Holdings
and its Subsidiaries (including any Qualified Designated Entities and Joint Venture
Entities that are required under GAAP to be consolidated with Holdings and its
Subsidiaries) as of June 30, 2006, which unaudited financial statements shall be (i)
prepared in accordance with GAAP and (ii) shall not be materially inconsistent with
the Audited Financial Statements previously provided to the Lenders;




          (xii) a duly completed Senior Secured Leverage Covenant Compliance
Certificate as of the last day of the fiscal quarter of Holdings most recently ended
prior to the Effective Date for which financial statements are available, each of
which shall be completed as though the Loans available to be borrowed hereunder had
been incurred as of the first day of the four quarter period covered by such
Compliance Certificate, assuming that such Loans were Eurodollar Rate Loans and that
the LIBO Rate applicable thereto was equal to a rate designated by the
Administrative Agent to the Borrower as of the Effective Date, signed by a
Responsible Office of Holdings; and




          (xiii) such other assurances, certificates, documents, consents or
opinions as any Agent or any Lender reasonably may require.



               (b) Holdings and its subsidiaries shall deliver to the Administrative Agent evidence of
insurance naming the Administrative Agent as additional insured and loss payee with such
responsible and reputable insurance companies or associations, and in such amounts and covering
such risks, as is reasonably satisfactory to the Lead Arrangers, including, without limitation,
business interruption insurance. The Lead Arrangers shall be reasonably satisfied with the amount,
types and terms and conditions of all insurance maintained by Holdings and its subsidiaries.





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52


               (c) All accrued fees and expenses of the Administrative Agent, the Lead Arrangers and the
Lenders (including the fees and expenses of counsel for the Administrative Agent and local counsel
for the Lenders) that are by their terms payable on or prior to the Effective Date shall have been
paid, to the extent that invoices in customary detail have been received by the Company not later
than the Business Day before the Effective Date.



               (d) There shall exist no action, suit, investigation, litigation or proceeding affecting any
Loan Party or any of its Subsidiaries pending or, to the knowledge of Holdings or the Borrower,
threatened before any Governmental Authority or arbitrator that (i) could be reasonably likely to
have a Material Adverse Effect or (ii) purports to materially and adversely affect the Transaction.



               (e) All governmental authorizations and all third party consents and approvals necessary in
connection with the Transaction shall have been obtained and shall remain in effect; all applicable
waiting periods in connection with the Transaction shall have expired without any action being
taken by any Governmental Authority, and no Law shall be applicable in the reasonable judgment of
the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon
the Transaction or the rights of the Loan Parties or their Subsidiaries freely to transfer or
otherwise dispose of, or to create any Lien on, any properties now owned or hereafter acquired by
any of them.



               (f) The Lenders shall be satisfied with (i) the pro forma capital and ownership structure and
the shareholder arrangements of Holdings and its Subsidiaries, including, without limitation, the
charter and bylaws of Holdings and each such Subsidiary and each agreement or instrument relating
thereto, and (ii) the amount, tenor, ranking and other terms and conditions of all other equity and
debt financings of Holdings and its Subsidiaries. Without limiting the generality of the
foregoing, no
Indebtedness for borrowed money other than (w) Indebtedness in connection with the Existing
Credit Agreement, (x) the Existing Letters of Credit, (y) Permitted Unsecured Debt and (z)
Permitted Bridge Debt shall be outstanding.



               (g) The Administrative Agent shall be reasonably satisfied that the amount of committed
financing available to Holdings and its Subsidiaries shall be sufficient to meet the ongoing
financial needs of Holdings and its Subsidiaries after giving effect to the Transaction. The
Lenders shall be reasonably satisfied with the amount, terms, conditions and holders of all
intercompany Indebtedness and all indebtedness and other material liabilities owing to third
parties to be outstanding on and after the Effective Date.



               (h) There shall not exist any Default or Event of Default, event of prepayment or the creation
of Liens under debt instruments or other agreements as a result of the Transactions contemplated
hereby.



               (i) Joint Ventures. All matters related to contributions to Denali Spectrum and
Denali License, including the identity of all parties thereto and the governing arrangements with
respect thereto, shall be reasonably satisfactory to the Lead Arrangers.



               (j) Takeout Engagement. Holdings and the Borrower shall have executed take-out
engagement letters with respect to the Bridge Facility reasonably satisfactory to the Lead
Arrangers.



               (k) Compliance with Laws. The Lead Arrangers shall be reasonably satisfied that the
Borrower and Holdings are in compliance with applicable laws and regulations (including but not
limited to ERISA, USA PATRIOT Act, margin regulations and environmental laws), and the Borrower and
Holdings shall have furnished all information reasonably requested by the Lead Arrangers in
connection with achieving such satisfaction.





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53

Without limiting the generality of the provisions of Section 9.04, for purposes of
determining compliance with the conditions specified in this Section 4.01, each Lender that
has signed this Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the Effective Date specifying its objection thereto.




               4.02 Conditions to Initial Closing Date. The obligation of each Lender to honor any
Request for Credit Extension for the making of the initial Bridge Loans on the Initial Closing Date
is subject to the satisfaction or waiver in accordance with Section 10.01 of the following,
and only the following, conditions precedent immediately prior to or concurrently with the making
of such Bridge Loans:



               (a) The Specified Representations shall be true and correct in all material respects on and as
of the Initial Closing Date, except to the extent that such representations specifically refer to
an earlier date, in which case they shall be true and correct in all material respects as of such
earlier date;



               (b) No payment defaults shall exist (i) under the Existing Credit Agreement or (ii) under this
Agreement with respect to any fees or any regularly scheduled payment; no Change of Control shall
exist; and no bankruptcy or similar occurrence described in Section 8.01(f) applicable to
Holdings or the Borrower or Cricket Reauction shall exist;



               (c) No material volitional breach of any of the Specified Covenants shall exist, or would
result from the requested Borrowing or from the application of the proceeds thereof (with
“material” breach meaning any breach of a Specified Covenant which results in the applicable
threshold contained in the Existing Credit Agreement being exceeded by more than $50,000,000,
provided that such $50,000,000 excess amount shall not be available with respect to the
Specified Covenant regarding use of proceeds);



               (d) The funding fee specified in the Fee Letters shall have been paid in full in cash through
deduction from the proceeds of such initial Bridge Loans, and any and all expenses (including
counsel fees and expenses of the Administrative Agent) required to be paid in accordance with the
terms of this Agreement shall have been paid in full in cash through deduction from the proceeds of
such initial Bridge Loans;



               (e) Either Cricket Reauction or Denali License, or both of them, shall be the Winning Bidder
for one or more spectrum licenses in Auction 66; and



               (f) The Administrative Agent shall have received a Request for Credit Extension in accordance
with the requirements hereof.


Such Request for Credit Extension submitted by the Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.02(a), (b), (c),
(d) and (e) have been satisfied on and as of the Initial Closing Date.




               4.03 Conditions to Second Closing Date. The obligation of each Lender to honor any
Request for Credit Extension for the making of the draw of Bridge Loans hereunder on the Second
Closing Date is subject to the satisfaction or waiver in accordance with Section 10.01 of
the following, and only the following, conditions precedent immediately prior to or concurrently
with the making of such Bridge Loans:





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54


               (a) The Specified Representations shall be true and correct in all material respects on and as
of the Second Closing Date, except to the extent that such representations specifically refer to an
earlier date, in which case they shall be true and correct in all material respects as of such
earlier date;



               (b) No payment defaults shall exist (i) under the Existing Credit Agreement or (ii) under this
Agreement with respect to any fees or any regularly scheduled payment; no Change of Control shall
exist; and no bankruptcy or similar occurrence described in Section 8.01(f) applicable to
Holdings or the Borrower or Cricket Reauction shall exist;



               (c) No material volitional breach of any of the Specified Covenants shall exist, or would
result from the requested Borrowing or from the application of the proceeds thereof (with
“material” breach meaning any breach of a Specified Covenant which results in the applicable
threshold contained in the Existing Credit Agreement being exceeded by more than $50,000,000);



               (d) The funding fee specified in the Fee Letters shall have been paid in full in cash through
deduction from the proceeds of such Bridge Loans, and any and all expenses (including counsel fees
and expenses of the Administrative Agent) required to be paid in accordance with the terms of this
Agreement shall have been paid in full in cash through deduction from the proceeds of such Bridge
Loans;



               (e) Either Cricket Reauction or Denali License, or both of them, shall be the Winning Bidder
for one or more spectrum licenses in Auction 66; and



               (f) The Administrative Agent shall have received a Request for Credit Extension in accordance
with the requirements hereof.


Such Request for Credit Extension submitted by the Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.03(a), (b), (c),
(d) and (e) have been satisfied on and as of the Second Closing Date.




               4.04 Conditions to Third Closing Date. The obligation of each Lender to honor any
Request for Credit Extension for the making of the draw of Bridge Loans hereunder on the Third
Closing Date is subject to the satisfaction or waiver in accordance with Section 10.01 of
the following conditions precedent immediately prior to or concurrently with the making of such
Bridge Loans:




          (a) The representations and warranties of the Borrower and each other Loan Party
contained in Article V or any other Loan Document, or which are contained in any
document furnished at any time under or in connection herewith or therewith, shall be true
and correct in all material respects on and as of the date of such Bridge Loan, except to
the extent that such representations and warranties specifically refer to an earlier date,
in which case they shall be true and correct in all material respects as of such earlier
date, and except that for purposes of this Section 4.04, the representations and
warranties contained in Sections 5.05(a) and (b) shall be deemed to refer to
the most recent statements furnished pursuant to Sections 6.01(a) and (b),
respectively;




          (b) No Default shall exist, or would result from the requested Borrowing or from the
application of the proceeds thereof;




          (c) The funding fee specified in the Fee Letters shall have been paid in full in cash
through deduction from the proceeds of such Bridge Loans, and any and all expenses
(including counsel fees and expenses to the Administrative Agent) required to be paid in
accordance with



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 55 





the terms of this Agreement shall have been paid in full in cash through deduction from
the proceeds of such Bridge Loans.




     (d) The Administrative Agent shall have received a Request for Credit Extension in
accordance with the requirements hereof; and


Each Request for Credit Extension submitted by the Borrower shall be deemed to be a representation
and warranty that the conditions specified in Sections 4.04(a), (b) and (c)
have been satisfied on and as of the date of the making of such Bridge Loans.




ARTICLE V

REPRESENTATIONS AND WARRANTIES




          Each of Holdings and the Borrower represents and warrants to the Agents and the Lenders that:




          5.01 Existence, Qualification and Power; Compliance with Laws. Each Loan Party and
each of its Subsidiaries (a) is duly organized or formed, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite
power and authority and all requisite governmental licenses, authorizations, consents and approvals
to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its
obligations under the Loan Documents to which it is a party and consummate the Transaction, (c) is
duly qualified and is licensed and in good standing under the Laws of each jurisdiction where its
ownership, lease or operation of properties or the conduct of its business requires such
qualification or license, and (d) is in compliance with all Laws; except in each case referred to
in clause (b)(i), (c) or (d), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.




          5.02 Authorization; No Contravention. The execution, delivery and performance by each
Loan Party of each Loan Document to which such Person is or is to be a party have been duly
authorized by all necessary corporate or other organizational action, and do not and will not (a)
contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in
any breach or contravention of, or the creation of any Lien under, or require any payment to be
made under (i) any Contractual Obligation to which such Person is a party or affecting such Person
or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or
decree of any Governmental Authority or any arbitral award to which such Person or its property is
subject; or (c) violate any Law. Each Loan Party and each Subsidiary thereof is in compliance with
all Contractual Obligations referred to in clause (b)(i), except to the extent that failure
to do so could not reasonably be expected to have a Material Adverse Effect.




          5.03 Governmental Authorization; Other Consents. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any Governmental Authority or any
other Person is necessary or required in connection with the execution, delivery or (other than
filings required to be made in the ordinary course of business after the date hereof) performance
by, or enforcement against, any Loan Party of this Agreement or any other Loan Document, or for the
consummation of the Transaction. All applicable waiting periods in connection with the
Transactions have expired without any action having been taken by any Governmental Authority
restraining, preventing or imposing materially adverse conditions upon the Transaction or the
rights of the
Loan Parties or their Subsidiaries freely to transfer or otherwise dispose of any properties now
owned or hereafter acquired by any of them.




          5.04 Binding Effect. This Agreement has been, and each other Loan Document, when
delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party
thereto.



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56

This Agreement constitutes, and each other Loan Document when so delivered will
constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan
Party that is party thereto in accordance with its terms, except as enforceability may be limited
by applicable Debtor Relief Laws or similar laws affecting creditors’ rights generally or by
equitable principles relating to enforceability.




          5.05 Financial Statements; No Material Adverse Effect. (a) The Audited Financial
Statements (i) were prepared in accordance with GAAP consistently applied throughout the period
covered thereby, except as otherwise expressly noted therein; (ii) fairly present in all material
respects the consolidated financial condition of Holdings and its Subsidiaries (including Qualified
Designated Entities and Joint Venture Entities that are required under GAAP to be consolidated with
Holdings and its Subsidiaries) as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and
other material liabilities, direct or contingent, of Holdings and its Subsidiaries as of the date
thereof, including material liabilities for taxes, material commitments and Indebtedness.




          (b) The unaudited consolidated financial statements of Holdings and its Subsidiaries dated
June 30, 2006, and the related consolidated statements of income or operations and cash flows for
the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly noted therein, and
(ii) fairly present in all material respects the consolidated financial condition of Holdings and
its Subsidiaries (including Qualified Designated Entities and Joint Venture Entities that are
required under GAAP to be consolidated with Holdings and its Subsidiaries) as of the date thereof
and their results of operations for the period covered thereby, subject, in the case of clauses
(i) and (ii), to the absence of disclosures in footnotes and to normal year-end audit
adjustments.




          (c) Since the date of the Audited Financial Statements, there has been no event or
circumstance, either individually or in the aggregate, that has had or could reasonably be expected
to have a Material Adverse Effect.




          (d) The consolidated forecasted balance sheets, statements of income and statements of cash
flows of Holdings and its Subsidiaries (including any Qualified Designated Entities and Joint
Venture Entities that are required under GAAP to be consolidated with Holdings and its
Subsidiaries) delivered to the Lenders pursuant to Section 4.01 or 6.01 were
prepared in good faith on the basis of assumptions which were fair in light of the conditions
existing at the time of delivery of such forecasts, and represented, at the time of delivery,
Holdings’ good faith estimate of its future financial performance on a consolidated basis.




          5.06 Litigation. There are no actions, suits, proceedings, claims or disputes pending
or, to the knowledge of Holdings, threatened or contemplated, at law, in equity, in arbitration or
before any Governmental Authority, by or against any Loan Party or any of its Subsidiaries or
against any of their
properties or revenues that (a) purport to affect or pertain to this Agreement, any other Loan
Document or the consummation of the Transaction, or (b) either individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect, or (c) as of the date hereof,
except as specifically disclosed on Schedule 5.06 (the “Disclosed Litigation”), either
individually or in the aggregate, if determined adversely, could reasonably be expected to have a
Material Adverse Effect, and since the date hereof there has been no adverse change in the status,
or financial effect on any Loan Party or any Subsidiary thereof, of the Disclosed Litigation that
(either individually or taken together with all other such adverse changes) could reasonably be
expected to have a Material Adverse Effect.


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57


          5.07 No Default. None of Holdings, the Borrower or any Subsidiary is in default under
or with respect to any Contractual Obligation that could, either individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Default has occurred and is
continuing or would result from the consummation of the transactions contemplated by this Agreement
or any other Loan Document.




          5.08 Ownership of Property; Liens; Investments. (a) Each Loan Party and each of its
Subsidiaries has good record and marketable title in fee simple to, or valid leasehold interests
in, all real property necessary or used in the ordinary conduct of its business, except for such
defects in title or in leasehold interests as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Each of the Loan Parties and each of its
Subsidiaries is in compliance with all of its obligations in respect of leases of real property to
which it is a party and has not allowed any such lease to lapse or be terminated or any rights to
renew such leases to be forfeited or canceled except, in any case, where the failure to do so,
either individually or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.




          (b) Schedule 5.08(b) sets forth a complete and accurate list as of June 30, 2006 of
all Liens of the types described in clauses (b), (i), (n) and
(o) of Section 7.01 of the Existing Credit Agreement on the property or assets of
each Loan Party and each of its Subsidiaries, showing as of such date the lienholder thereof, the
principal amount of the obligations secured thereby and the property or assets of such Loan Party
or such Subsidiary subject thereto. The property of each Loan Party and each of its Subsidiaries
is subject to no Liens, other than Liens set forth on Schedule 5.08(b), and as otherwise
permitted by Section 7.01.




          (c) Schedule 5.08(c) sets forth a complete and accurate list as of the date of this
Agreement of all real property owned by each Loan Party and each of its Subsidiaries, showing as of
the date hereof the street address, county or other relevant jurisdiction, state, record owner and
book and estimated fair value thereof. Each Loan Party and each of its Subsidiaries has good,
marketable and insurable fee simple title to the real property owned by such Loan Party or such
Subsidiary, free and clear of all Liens, other than Liens created or permitted by the Loan
Documents.




          (d) Schedule 5.08(d) sets forth a complete and accurate list as of June 30, 2006 of
all Investments held by any Loan Party or any Subsidiary of a Loan Party, showing as of such date
the amount (except with respect to Indebtedness between Loan Parties), obligor or issuer and
maturity, if any, thereof.




          5.09 Environmental Compliance. No Loan Party has any Environmental Liabilities that
could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.




          5.10 Insurance. The material tangible properties of the Borrower and its Subsidiaries
are insured with financially sound and reputable insurance companies not Affiliates of the
Borrower, in such amounts, with such deductibles and covering such risks as are customarily carried
by companies engaged in similar businesses and owning similar properties in localities where the
Borrower or the applicable Subsidiary operates.




          5.11 Taxes. Except as set forth in Schedule 5.11, to the knowledge of
Holdings, Holdings and its Subsidiaries have filed all material Federal, state and other tax
returns and reports required to be filed, and have paid all material Federal, state and other
taxes, assessments, fees and other governmental charges levied or imposed upon them or their
properties, income or assets otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings diligently conducted and for which adequate reserves have
been provided in accordance with GAAP. To the


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58

knowledge of Holdings, there is no proposed tax
assessment against Holdings or any Subsidiary that would, if made, have a Material Adverse Effect.
Neither any Loan Party nor any of its Subsidiaries is party to any tax sharing agreement other than
one or more tax sharing agreements between and among Loan Parties (excluding Disqualified
Subsidiaries).




          5.12 ERISA Compliance. (a) Except for such non-compliance as could not reasonably be
expected to have a Material Adverse Effect, each Plan other than a Multiemployer Plan is in
compliance in all material respects with the applicable provisions of ERISA, the Code and other
Federal or state Laws. Each Plan that is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the knowledge of Holdings,
nothing has occurred which would prevent, or cause the loss of, such qualification, except as could
not reasonably be expected to have a Material Adverse Effect. Holdings and each ERISA Affiliate
have made all required contributions in all material respects to each Plan subject to Section 412
of the Code, and no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.




          (b) There are no pending or, to the knowledge of Holdings, threatened claims, actions or
lawsuits, or action by any Governmental Authority, with respect to any Plan that could be
reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction
or violation of the fiduciary responsibility rules under ERISA with respect to any Plan that has
resulted or could reasonably be expected to result in a Material Adverse Effect.




          (c) (i) No ERISA Event has occurred or is reasonably expected to occur that could reasonably
be expected to result in a material liability to any Loan Party or any of their Affiliates; (ii) no
Pension Plan has any Unfunded Pension Liability; (iii) neither Holdings nor any ERISA Affiliate has
incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any
Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
Holdings nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in
such liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
neither the Borrower nor any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069(a) or 4212(c) of ERISA.




          5.13 Subsidiaries; Equity Interests; Loan Parties. As of the date of this Agreement,
each Loan Party has no Subsidiaries other than those specifically disclosed in Part (a) of
Schedule 5.13, and all of the outstanding Equity Interests in such Subsidiaries have been
validly issued, are fully paid and non-assessable and are owned by a Loan Party in the amounts
specified on Part (a) of Schedule 5.13 free and clear of all Liens except those created
under the Existing Credit Agreement and the collateral documents relating thereto. As of the date
hereof, each Loan Party has no equity investments in any other corporation or entity other than
such Loan Party’s Subsidiaries and those equity investments specifically disclosed in Part (b) of
Schedule 5.13. All of the outstanding Equity Interests in the Borrower have been validly
issued, are fully paid and non-assessable and are owned by Holdings in the amounts specified on
Part (c) of Schedule 5.13 free and clear of all Liens except those created under the
Existing Credit Agreement and the collateral documents relating thereto. Set forth on Part (d) of
Schedule 5.13 is a complete and accurate list as of the date hereof of all Loan Parties,
showing as of the date hereof (as to each Loan Party) the jurisdiction of its incorporation, the
address of its principal place of business and its U.S. taxpayer identification number or, in the
case of any non-U.S. Loan Party that does not have a U.S. taxpayer identification number, its
unique identification number issued to it by the jurisdiction of its incorporation. As of the date
hereof, the copy of the charter of each Loan Party and each amendment


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thereto provided pursuant to
Section 4.01(a)(iv) is a true and correct copy of each such document, each of which is
valid and in full force and effect.




          5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.
(a) The Borrower is not engaged and will not engage, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the meaning of
Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying
margin stock.




          (b) None of the Borrower, any Person Controlling the Borrower, or any Subsidiary (i) is a
“holding company,” or a “subsidiary company” of a “holding company,” or an “affiliate” of a
“holding company” or of a “subsidiary company” of a “holding company,” within the meaning of the
Public Utility Holding Company Act of 1935, or (ii) is or is required to be registered as an
“investment company” under the Investment Company Act of 1940.




          5.15 Disclosure. Holdings has no knowledge of any event or circumstance that,
individually or in the aggregate, could reasonably be expected to result in a Material Adverse
Effect, except as Holdings or the Borrower has disclosed to the Administrative Agent and the
Lenders. No report, financial statement, certificate or other information furnished (whether in
writing or orally) by or on behalf of any Loan Party to the Administrative Agent or any Lender
(other than industry information, which, if provided by any Loan Party, was selected in good faith
by such Loan Party as being in such Loan Party’s estimate not materially inaccurate or misleading)
in connection with the transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder or under any other Loan Document, including any Information Memorandum (to the
extent of the information therein furnished by any Loan Party) (in each case as modified or
supplemented by other information so furnished), contained or will contain any untrue statement of
a material fact or omitted or will omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided that, with respect to projected financial information, each of Holdings and the
Borrower represents only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time made, it being recognized by Lenders that such projections as
to future events are
not to be viewed as facts and that actual results during the period or periods covered by any
such projections may differ from the projected results.




          5.16 Compliance with Laws. Each Loan Party and each Subsidiary is in compliance in
all material respects with the requirements of all Laws and all orders, writs, injunctions and
decrees applicable to it or to its properties, except in such instances in which (a) such
requirement of Law or order, writ, injunction or decree is being contested in good faith by
appropriate proceedings diligently conducted or (b) the failure to comply therewith, either
individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect.




          5.17 Intellectual Property; Licenses, Etc. Each Loan Party and its Subsidiaries own,
or possess the right to use, all of the trademarks, service marks, trade names, copyrights,
patents, patent rights, franchises, licenses and other intellectual property rights (collectively,
“IP Rights”) that are reasonably necessary for or material to the operation of their respective
businesses, without conflict with the rights of any other Person, except for any infringements
that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse
Effect. Schedule 5.17 sets forth a complete and accurate list as of the date hereof of all
patent, trademark and copyright registrations and pending applications therefor of each Loan Party
and its Subsidiaries. To the knowledge of the Borrower, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now contemplated to be
employed, by any Loan Party or any of its Subsidiaries infringes upon any rights held by any other
Person, except for any infringements that, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect. No claim or litigation


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60

regarding any of the
foregoing is pending or, to the knowledge of the Borrower, threatened, which, either individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect.




          5.18 Solvency. Each Loan Party is, individually and together with its Subsidiaries,
Solvent.




          5.19 Qualified Designated Entity Agreements. The Qualified Designated Entity
Agreements delivered to the administrative agent under the Existing Credit Agreement prior to the
date of this Agreement, together with the Qualified Designated Entity Agreements delivered to the
Administrative Agent thereafter, constitute all existing Qualified Designated Entity Agreements to
which Holdings or any of its Subsidiaries is a party, and have not been amended other than in
accordance with Section 7.12 of the Existing Credit Agreement, and copies of all material
written amendments and waivers executed by the parties to such Qualified Designated Entity
Agreement have been delivered to the administrative agent under the Existing Credit Agreement prior
to the date of this Agreement or, if executed after the date hereof, to the Administrative Agent in
accordance with Section 6.02(i).




          5.20 Permitted Debt. All Indebtedness incurred or created hereunder constitutes
Permitted Bridge Debt or Permitted Unsecured Debt under the Existing Credit Agreement. As of the
date hereof, after giving pro forma effect to the incurrence of Indebtedness hereunder, no Default
under the Existing Credit Agreement shall have occurred and be continuing, and Holdings and its
Subsidiaries (including any Qualified
Designated Entities and Joint Venture Entities that are required under GAAP to be consolidated
with Holdings and its Subsidiaries) shall be in Pro Forma Compliance with the Senior Secured
Leverage Covenant.




ARTICLE VI

AFFIRMATIVE COVENANTS




          So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, each of Holdings and the Borrower shall, and shall
(except in the case of the covenants set forth in Sections 6.01, 6.02, 6.03
and 6.11) cause each Subsidiary to:




          6.01 Financial Statements. Deliver to the Administrative Agent (which shall deliver
to each Lender), in form and detail satisfactory to the Administrative Agent and the Required
Lenders:





     (a) as soon as available, but in any event within 90 days after the end of each fiscal
year of Holdings, a consolidated balance sheet of Holdings and its Subsidiaries (including
Qualified Designated Entities and Joint Venture Entities that are required under GAAP to be
consolidated with Holdings and its Subsidiaries) as at the end of such fiscal year, and the
related consolidated statements of income or operations, shareholders’ equity and cash flows
for such fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, audited
and accompanied by a report and opinion of an independent certified public accountant of
nationally recognized standing reasonably acceptable to the Required Lenders, which report
and opinion shall be prepared in accordance with generally accepted auditing standards and
shall not be subject to any “going concern” or like qualification or exception or any
qualification or exception as to the scope of such audit;




     (b) as soon as available, but in any event within 45 days after the end of each of the
first three fiscal quarters of each fiscal year of Holdings, a consolidated balance sheet of
Holdings and its Subsidiaries (including Qualified Designated Entities and Joint Venture
Entities that are


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61



required under GAAP to be consolidated with Holdings and its Subsidiaries)
as at the end of such fiscal quarter, and the related consolidated statements of income or
operations and cash flows for such fiscal quarter and for the portion of Holdings’ fiscal
year then ended, setting forth in each case in comparative form the figures for the
corresponding fiscal quarter of the previous fiscal year and the corresponding portion of
the previous fiscal year, all in reasonable detail and certified by a Responsible Officer of
the Borrower as fairly presenting in all material respects the financial condition, results
of operations and cash flows of Holdings and its Subsidiaries (including Qualified
Designated Entities and Joint Venture Entities that are required under GAAP to be
consolidated with Holdings and its Subsidiaries) on a consolidated basis in accordance with
GAAP, subject only to normal year-end audit adjustments and the absence of disclosures in
footnotes; and




     (c) as soon as available, but in any event no more than 45 days after the end of each
fiscal year, forecasts prepared by management of Holdings, in form reasonably satisfactory
to the Administrative Agent and the Required Lenders, of consolidated balance sheets and
statements of income or operations and cash flows of Holdings and its Subsidiaries
(including Qualified Designated Entities and Joint Venture Entities that are required under
GAAP to be consolidated
with Holdings and its Subsidiaries) on a quarterly basis for such fiscal year and on an
annual basis for each fiscal year thereafter until the Final Maturity Date for the Bridge
Facility.


As to any information contained in materials furnished pursuant to Section 6.02(c), neither
Holdings nor the Borrower shall be separately required to furnish such information under
Section 6.01(a) or (b), but the foregoing shall not be in derogation of the
obligation of Holdings to furnish the information and materials described in Sections
6.01(a) and (b) at the times specified therein.




          6.02 Certificates; Other Information. Deliver to the Administrative Agent (which
shall deliver to each Lender), in form and detail reasonably satisfactory to the Administrative
Agent and the Required Lenders:





     (a) concurrently with the delivery of the financial statements referred to in
Sections 6.01(a) and (b), (i) a duly completed Senior Secured Leverage
Covenant Compliance Certificate and (ii) a list of all (A) Investments consisting of cash
contributions to equity or purchases of Equity Interests, (B) secured loans for borrowed
money, (C) Permitted Debt Put Rights incurred and payments made in respect thereof, (D)
Guarantees of debt for borrowed money of Joint Venture Entities and Qualified Designated
Entities and (E) payments in respect of Permitted Make-Whole Obligations, in each case made
or incurred during the most recently completed fiscal quarter pursuant to Sections
7.03(k) of the Existing Credit Agreement, 7.03(l) of the Existing Credit
Agreement, 7.03(n) of the Existing Credit Agreement, and 7.03(o) of the
Existing Credit Agreement, signed by a Responsible Officer of Holdings;




     (b) promptly after any request by the Administrative Agent or any Lender, copies of any
detailed audit reports, management letters or written recommendations submitted to the board
of directors (or the audit committee of the board of directors) of any Loan Party by
independent accountants in connection with the accounts or books of any Loan Party or any of
its Subsidiaries, or any audit of any of them;




     (c) promptly after the same are available, copies of each annual report, proxy or
financial statement or other report or communication sent to the stockholders of Holdings,
and copies of all annual, regular, periodic and special reports and registration statements
filed by Holdings with the SEC under Section 13 or 15(d) of the Securities Exchange Act of
1934, or with


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62



any national securities exchange, and in any case not otherwise required to be
delivered to the Administrative Agent pursuant hereto;




     (d) promptly after the furnishing thereof, copies of any statement or report furnished
to any holder of debt securities of any Loan Party or of any of its Subsidiaries pursuant to
the terms of any indenture, loan or credit or similar agreement and not otherwise required
to be furnished to the Lenders pursuant to any other clause of this Section 6.02;




     (e) as soon as available and in any event within 60 days after the end of each fiscal
year, commencing with the fiscal year ended December 31, 2006, a report summarizing the
material insurance coverage (specifying type, amount and carrier) in effect for each Loan
Party and its Subsidiaries and containing such additional information as the Administrative
Agent, or any Lender through the Administrative Agent, may reasonably specify;




     (f) promptly and in any event within five (5) Business Days after receipt thereof by
any Loan Party or any of its Subsidiaries, copies of each notice or other correspondence
received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction)
concerning any
investigation or possible investigation or other inquiry by such agency regarding
financial or other operational results of any Loan Party or any of its Subsidiaries (but
excluding correspondence and comment letters received from the SEC in connection with the
SEC’s review of annual, regular, periodic and special reports and registration statements
filed by Holdings with the SEC);




     (g) promptly after the written assertion or occurrence thereof, notice of any
Environmental Action against any Loan Party or of any noncompliance by any Loan Party or any
of its Subsidiaries with any Environmental Law or Environmental Permit that could reasonably
be expected to have a Material Adverse Effect;




     (h) as soon as available and in any event within 30 days after the end of each fiscal
year (commencing with the fiscal year ended December 31, 2006), a report supplementing
Schedules 5.08(c) hereto, including an identification of all owned real property
disposed of by any Loan Party or any of its Subsidiaries during such fiscal year, a list and
description (including the street address, county or other relevant jurisdiction, state,
record owner and book value thereof) of all real property acquired during such fiscal year
and a description of such other changes in the information included in such Schedules as may
be necessary for such Schedules to be accurate and complete;




     (i) as soon as available and in any event within 30 days after the execution thereof,
certified copies of each material written amendment or waiver executed by the parties to any
Qualified Designated Entity Agreement; and




     (j) promptly, such additional information regarding the business, financial, legal or
corporate affairs of any Loan Party or any Subsidiary, or compliance with the terms of the
Loan Documents, as the Administrative Agent or any Lender may from time to time reasonably
request.



          Documents required to be delivered pursuant to Section 6.01(a) or (b) or
Section 6.02(c) (to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which Holdings posts such documents, or provides a link thereto on
Holdings’ website on the Internet at the website address listed on Schedule 10.02; or (ii)
on which such documents are posted on Holdings’


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63

behalf on an Internet or intranet website, if any,
to which each Lender and each Agent have access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: (i) upon request by the
Administrative Agent or any Lender, Holdings shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests Holdings to deliver such paper copies until a
written request to cease delivering paper copies is given by the Administrative Agent or such
Lender and (ii) Holdings shall notify the Administrative Agent, which shall notify each Lender, (by
telecopier or electronic mail) of the posting of any such documents and provide to the
Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such
documents. Notwithstanding anything contained herein, in every instance Holdings shall be required
to provide paper copies of the Compliance Certificates required by Section 6.02(a) to the
Administrative Agent. Except for such Compliance 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.




          Each of Holdings and the Borrower hereby acknowledges that (a) the Administrative Agent and/or
the Lead Arrangers will make available to the Lenders materials and/or information
provided by or on behalf of Holdings or the Borrower hereunder (collectively, “Borrower
Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system
(the “Platform”) and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders
that do not wish to receive material non-public information with respect to Holdings or its
securities) (each, a “Public Lender”). Each of Holdings and the Borrower hereby agrees that it
will use commercially reasonable efforts to identify that portion of the Borrower Materials that
may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly
and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall
appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the
Borrower shall be deemed to have authorized the Administrative Agent, the Lead Arrangers and the
Lenders to treat such Borrower Materials as either publicly available information or not material
information (although it may be sensitive and proprietary) with respect to the Borrower or its
securities for purposes of United States Federal and state securities laws; (y) all Borrower
Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform
designated “Public Investor”; and (z) the Administrative Agent and the Lead Arrangers shall treat
any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion
of the Platform not designated “Public Investor.”




          6.03 Notices. Promptly upon a Responsible Officer of Holdings or the Borrower
obtaining knowledge thereof, notify the Administrative Agent, which shall notify each Lender:





     (a) of the occurrence of any Default;




     (b) of any matter that has resulted or could reasonably be expected to result in a
Material Adverse Effect, including (but in each case only to the extent the same has
resulted or could reasonably be expected to result in a Material Adverse Effect) (i) breach
or non-performance of, or any default under, a Contractual Obligation of any Loan Party or
any Subsidiary thereof; (ii) any dispute, litigation, investigation, proceeding or
suspension between any Loan Party or any Subsidiary thereof and any Governmental Authority;
or (iii) the commencement of, or any material development in, any litigation or proceeding
affecting any Loan Party or any Subsidiary thereof, including pursuant to any applicable
Environmental Laws;




     (c) of the occurrence of any ERISA Event;


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64



     (d) of any material change in accounting policies or financial reporting practices by
any Loan Party or any Subsidiary (other than changes disclosed in the financial statements
referred to in Sections 6.01(a) and (b));




     (e) of the (i) occurrence of any Disposition of property or assets for which the
Borrower is required to make a mandatory prepayment pursuant to Section 2.04(b)(ii),
and (ii) incurrence or issuance of any Indebtedness for which the Borrower is required to
make a mandatory repayment pursuant to Section 2.04(b)(iii); and




     (f) of the occurrence of any default under any QDE Credit Documents of a type described
in Section 6.21 as to which the applicable grace period, if any, has expired.



          Each notice pursuant to Section 6.03(a), (b), (c) or (d) shall
be accompanied by a statement of a Responsible Officer of Holdings setting forth details of the
occurrence referred to therein and stating what action Holdings has taken or caused the Borrower to
take and proposes to take or cause the Borrower to take with respect thereto.




          6.04 Payment of Obligations. Pay and discharge as the same shall become due and
payable, all its obligations and liabilities, including (a) all material tax liabilities,
assessments and governmental charges or levies upon it or its properties or assets, unless the same
are being contested in good faith by appropriate proceedings diligently conducted and adequate
reserves in accordance with GAAP are being maintained by Holdings, the Borrower or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a Lien upon its property (except as
otherwise permitted by Section 7.01 of the Existing Credit Agreement); and (c) all
Indebtedness, as and when due and payable, but subject to any subordination provisions contained in
any instrument or agreement evidencing such Indebtedness and except, in the case of this clause
(c), with respect to Indebtedness not for borrowed money to the extent failure to so pay and
discharge could not reasonably be expected to have a Material Adverse Effect.




          6.05 Preservation of Existence, Etc. (a) Preserve, renew and maintain in full force
and effect its legal existence and good standing under the Laws of the jurisdiction of its
organization except in a transaction permitted by Section 7.04 or 7.05 of the
Existing Credit Agreement and except, in the case of any Loan Party other than Holdings and the
Borrower, to the extent failure to do so could not reasonably be expected to have a Material
Adverse Effect; (b) take all reasonable action to maintain all rights, privileges, permits,
licenses and franchises necessary or desirable in the normal conduct of its business, except to the
extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;
and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks,
the non-preservation of which could reasonably be expected to have a Material Adverse Effect.




          6.06 Maintenance of Properties. (a) Maintain and preserve all of its material
properties and equipment necessary in the operation of its business in good working order and
condition, ordinary wear and tear excepted and (b) make all necessary repairs thereto and renewals
and replacements thereof except, in each case with respect to clause (a) and (b),
where the failure to do so could not reasonably be expected to have a Material Adverse Effect.




          6.07 Maintenance of Insurance. Maintain with financially sound and reputable
insurance companies not Affiliates of the Borrower, insurance with respect to its properties and
business against loss or damage of the kinds customarily insured against by Persons engaged in the
same or similar business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons and providing in the case of all material insurance
policies for not less than 10 days’ prior notice to the Administrative Agent of termination, lapse
or cancellation of such insurance.


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65


          6.08 Compliance with Laws. Comply in all material respects with the requirements of
all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or
property, except in such instances in which (a) such requirement of Law or order, writ, injunction
or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b)
the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.




          6.09 Books and Records. (a) Maintain proper books of record and account, in which full, true and correct entries in
conformity with GAAP consistently applied shall be made of all financial transactions and matters
involving the assets and business of Holdings, the Borrower or such Subsidiary, as the case may be,
subject to normal adjustments at the end of fiscal periods; and (b) maintain such books of record
and account in material conformity with all applicable requirements of any Governmental Authority
having regulatory jurisdiction over the Borrower or such Subsidiary, as the case may be.




          6.10 Inspection Rights. Permit representatives and independent contractors (to the
extent that such independent contractors have agreed to be bound by the terms of Section 10.07 as
set forth therein) of each Agent and each Lender to visit and inspect any of its properties, to
examine its corporate, financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and
independent public accountants, all at the expense of the Borrower and at such reasonable times
during normal business hours and as often as may be reasonably desired, upon reasonable advance
notice to the Borrower; provided, however, that when an Event of Default exists any
Agent or any Lender (or any of their respective representatives or independent contractors) may do
any of the foregoing at the expense of the Borrower at any time during normal business hours and
without advance notice; provided further that in all cases the Information obtained
during such visits and inspections shall be subject to the provisions of Section 10.07.




          6.11 Use of Proceeds. Use the proceeds of the Bridge Loans solely:





     (a) to make inter-company loans (evidenced by promissory notes in favor of the
Borrower) to fund payments to the FCC by Cricket Reauction;




     (b) to fund (i) equity investments in accordance with the Existing Credit Agreement in
Denali Spectrum and (ii) debt investments (evidenced by secured promissory notes in favor of
the Borrower) by the Borrower in Denali License, for the following purposes: (A) to make
payment of the required 20% down payment for FCC Licenses payable to the FCC with respect to
a Successful Auction, (B) to make payment of the remaining balance for FCC Licenses payable
to the FCC with respect to a Successful Auction, and/or (C) to pay for costs and expenses
incurred in connection with the build-out of FCC Licenses for which Denali License is the
Winning Bidder in Auction 66, including Capital Expenditures and operating losses related to
such markets;




     (c) to pay fees and expenses related to this Bridge Facility;




     (d) to pay for costs and expenses incurred in connection with the build-out of FCC
Licenses for which Cricket Reauction is the Winning Bidder in Auction 66, including Capital
Expenditures and operating losses related to such markets; and/or




     (e) subject to the approval of the Required Lenders, for general corporate purposes,
including Capital Expenditures and operating losses related to the development of new
operating markets not acquired in Auction 66;


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66



provided that, the aggregate amount of proceeds hereunder used to pay for the items
described in the foregoing clauses (A) and (B), shall be equal to at least
75% of the principal amount of all Bridge Loans made hereunder (including after giving
effect to the Third Closing Date).



          6.12 Covenant to Guarantee Obligations. Upon the formation or acquisition of any new
direct or indirect Subsidiaries (other than a Disqualified Subsidiary) by any Loan Party, Holdings
or the Borrower shall, in each case at its own expense (provided, that upon request of the
Borrower, the time period for complying with any provision of this Section 6.12 may be
extended by the Administrative Agent in its discretion, up to an additional 15 days):





     (a) within 15 days after such formation or acquisition, cause each such Subsidiary
(other than, to the extent material adverse tax consequences would otherwise result, any
Subsidiary that is a CFC), and cause each direct and indirect parent of such Subsidiary (if
it has not already done so), to duly execute and deliver to the Administrative Agent a
guaranty or guaranty supplement, in form and substance satisfactory to the Administrative
Agent, guaranteeing the other Loan Parties’ obligations under the Loan Documents, and




     (b) within 60 days after the request of the Administrative Agent in its sole
discretion, deliver to the Administrative Agent a signed copy of a favorable opinion,
addressed to the Administrative Agent and the other Secured Parties, of counsel for the Loan
Parties reasonably acceptable to the Administrative Agent as to the matters contained in
clause (a), above, and as to such other matters as the Administrative Agent may
reasonably request.



          6.13 Compliance with Environmental Laws. Comply, and cause any sub-lessees of
Holdings and its Subsidiaries to comply, in all respects, with all applicable Environmental Laws
and Environmental Permits; obtain and renew all Environmental Permits necessary for its operations
and properties; and conduct any investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action necessary to remove and clean up all Hazardous Materials
from any of its properties, in accordance with the requirements of all Environmental Laws, except,
in each case, to the extent that any failure to do so could not, either individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; provided,
however, that none of Holdings, the Borrower or any of their Subsidiaries shall be required
to undertake any such cleanup, removal, remedial or other action to the extent that its obligation
to do so is being contested in good faith and by proper proceedings and appropriate reserves are
being maintained with respect to such circumstances.




          6.14 Provision and Preparation of Environmental Reports. At the reasonable request of
the Required Lenders from time to time, including if reasonably requested in connection with any
acquisition of owned real property, provide to the Lenders (a) within 15 days (or such longer
period as may be reasonably necessary to respond to a specific request) after such request any
existing environmental site assessment reports for any of its properties described in such request
and (b) within 60 days (or such longer period as may be reasonably necessary to respond to a
specific request) after the reasonable request of the Required Lenders following receipt and review
of such existing reports, an environmental site assessment report for any of its properties
described in such request under this clause (b), prepared by an environmental consulting
firm acceptable to the Administrative Agent, indicating the presence or absence of Hazardous
Materials and the estimated cost of any compliance, removal or remedial action in connection with
any Hazardous Materials on such properties; without limiting the generality of the foregoing, if
the Administrative Agent determines at any time that a material risk exists that any such report
will not be provided within the time referred to above, the Administrative Agent may retain an
environmental consulting firm to prepare such report at the expense of the Borrower, and the
Borrower hereby agrees to and agrees to cause any Subsidiary that owns
any property described in such request to cooperate fully with the Administrative Agent and
such environmental consulting firm in their


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preparation of such environmental assessment report,
including permitting any of their representatives to visit and inspect the affected properties at
reasonable times. If reasonably requested by the Borrower, the Borrower shall be entitled to have
a copy of such environmental assessment report and access to the data relating thereto.




          6.15 Further Assurances. Promptly upon request by the Administrative Agent, or any
Lender through the Administrative Agent, (a) correct any material defect or error that may be
discovered in any Loan Document or in the execution, acknowledgment, filing or recordation thereof,
and (b) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, certificates, assurances and other instruments as
the Administrative Agent, or any Lender through the Administrative Agent, may reasonably require
from time to time in order to (i) carry out more effectively the purposes of the Loan Documents and
(ii) assure, preserve, protect and confirm more effectively unto the Lenders the rights granted or
now or hereafter intended to be granted to the Lenders under any Loan Document or under any other
instrument executed in connection with any Loan Document to which any Loan Party or any of its
Subsidiaries is or is to be a party, and cause each of its Subsidiaries to do so.




          6.16 Compliance with Terms of Leaseholds. Make all payments and otherwise perform all
obligations in respect of all leases of real property to which Holdings, or any of their
Subsidiaries is a party, keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be forfeited or cancelled, notify the
Administrative Agent of any default by any party with respect to such leases and cooperate with the
Administrative Agent in all respects to cure any such default, and cause each of its Subsidiaries
to do so, except, in any case, where the failure to do so, either individually or in the aggregate,
could not be reasonably likely to have a Material Adverse Effect.




          6.17 Prompt Refinancing of Bridge Facility; Exchange Indenture for Exchange
Securities. (a) Use commercially reasonable efforts to refinance the Bridge Facility with
permanent securities as promptly as possible after the Second Closing Date, and (b) enter into an
Exchange Indenture for the Exchange Securities no later than the Initial Maturity Date.




          6.18 Material Contracts. Perform and observe all of the terms and provisions of each
Material Contract to be performed or observed by it, maintain each such Material Contract in full
force and effect, enforce each such Material Contract in accordance with its terms, take all such
action to such end as may be from time to time reasonably requested by the Administrative Agent
and, upon the reasonable request of the Administrative Agent, make to each other party to each such
Material Contract such demands and requests for information and reports or for action as any Loan
Party or any of its Subsidiaries is entitled to make under such Material Contract, and cause each
of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually
or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.




          6.19 Qualified Designated Entities, Joint Venture Entities and Disqualified Subsidiaries
Separateness. Comply with the following (provided that all references in this Section
6.19 to “Qualified Designated Entities” shall mean Qualified Designated Entities in which
Holdings and its Subsidiaries have an Investment at the relevant time):





     (a) (i) Holdings and its Subsidiaries (other than a Disqualified Subsidiary) will, to
the extent that any such Subsidiary has one or more deposit accounts, maintain their own
deposit account or accounts, separate from those of each Qualified Designated Entity, each
Joint Venture Entity and each Disqualified Subsidiary, with commercial banking institutions
and will not commingle their funds with any Qualified Designated Entity, any Joint Venture
Entity or any


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Disqualified Subsidiary; and (ii) each Disqualified Subsidiary and each
Controlled Joint Venture Entity, to the extent that any such Disqualified Subsidiary or
Controlled Joint Venture Entity has one or more deposit accounts, will maintain its own
deposit account or accounts, separate from those of each Qualified Designated Entity and
each of Holdings and each of its other Subsidiaries, with commercial banking institutions
and will not commingle its funds with any Qualified Designated Entity or Holdings or any of
its other Subsidiaries;




     (b) (i) Holdings and its Subsidiaries (other than a Disqualified Subsidiary) will
maintain a separate address from the address of each Qualified Designated Entity, each Joint
Venture Entity and each Disqualified Subsidiary, or to the extent any Qualified Designated
Entity, Joint Venture Entity or Disqualified Subsidiary may have offices in the same
location as any of Holdings and its other Subsidiaries, maintain a fair and appropriate
allocation of overhead costs among them, with each such entity bearing its fair share of
such expense; and (ii) each Disqualified Subsidiary and each Controlled Joint Venture Entity
will maintain a separate address from the address of each Qualified Designated Entity and
each of Holdings and its other Subsidiaries, or to the extent any Disqualified Subsidiary or
Controlled Joint Venture Entity may have offices in the same location as any Qualified
Designated Entity or any of Holdings and its other Subsidiaries, maintain a fair and
appropriate allocation of overhead costs among them, with each such entity bearing its fair
share of such expense;




     (c) each Disqualified Subsidiary and each Controlled Joint Venture Entity will issue
separate financial statements prepared not less frequently than quarterly and prepared in
accordance with GAAP (except for the omission of certain footnotes and other presentation
items required by GAAP with respect to audited financial statements), which financial
statements need not be separately audited or reviewed by an independent accounting firm;




     (d) each Disqualified Subsidiary and each Controlled Joint Venture Entity will be a
corporation, limited liability company or limited partnership and each Disqualified
Subsidiary and each Controlled Joint Venture Entity will conduct its affairs in accordance
with its certificate of incorporation or formation and by-laws or limited liability company
agreement or partnership agreement (or similar constitutive documents) and observe all
necessary, appropriate and customary company (or corporate or partnership) formalities,
including, but not limited to, holding all regular and special members’ and board of
managers’ (or stockholders’ and directors’, partners’ or other similar Persons’) meetings
appropriate to authorize company (or corporate or partnership) action, keeping separate and
accurate minutes of its meetings, passing all resolutions or consents necessary to authorize
actions taken or to be taken, and maintaining accurate and separate books, records and
accounts, including, but not limited to, payroll and intercompany transaction accounts, to
the extent applicable;




     (e) (i) no Disqualified Subsidiary or Controlled Joint Venture Entity will assume or
guarantee any of the liabilities of, or pledge any of its assets for the benefit of any of,
Holdings and its other Subsidiaries or any Qualified Designated Entity (other than
assumptions, Guarantees
or pledges that are made or given prior to such entity’s becoming a Disqualified
Subsidiary or Controlled Joint Venture Entity or that are associated with assets transferred
to a Qualified Designated Entity, Disqualified Subsidiary or Joint Venture Entity in
exchange for, or contributed in respect of the issuance of, any Equity Interests in or other
consideration from such entity pursuant to Section 7.05(r) of the Existing Credit
Agreement or transferred by such entity to Holdings or its Subsidiaries), (ii) each of
Holdings and its Subsidiaries (other than a Disqualified Subsidiary) will not assume or
guarantee any of the liabilities of, or pledge any of its assets for, the benefit of any
Qualified Designated Entity,


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Joint Venture Entity or Disqualified Subsidiary or hold out its
credit as being available to satisfy the obligations of any Qualified Designated Entity,
Joint Venture Entity or Disqualified Subsidiary (which shall be deemed not to refer to any
disclosure by Holdings and its Subsidiaries of Investments or obligations that Holdings or
its Subsidiaries are permitted to make in or incur with respect to Qualified Designated
Entities, Joint Venture Entities and Disqualified Subsidiaries in compliance with this
Agreement), other than with respect to Permitted Guarantees and (iii) no Disqualified
Subsidiary or Controlled Joint Venture Entity will hold out the credit of Holdings and its
other Subsidiaries as being able to satisfy the obligations of such Disqualified Subsidiary
or Controlled Joint Venture Entity (which shall be deemed not to refer to any disclosure by
a Disqualified Subsidiary or Controlled Joint Venture Entity of Investments or obligations
that Holdings or its Subsidiaries are permitted to make in or incur with respect to
Disqualified Subsidiaries and Controlled Joint Venture Entities in compliance with this
Agreement), other than with respect to Permitted Guarantees;




     (f) (i) Holdings and each of its Subsidiaries (other than a Disqualified Subsidiary)
will not authorize the use of its name or trademarks or service marks by any Disqualified
Subsidiary, Qualified Designated Entity or Joint Venture Entity except pursuant to a written
license agreement; (ii) each Disqualified Subsidiary and Controlled Joint Venture Entity
will not authorize the use of its name or trademarks or service marks by any Qualified
Designated Entity except pursuant to a written license agreement; and (iii) each Qualified
Designated Entity, Disqualified Subsidiary and Joint Venture Entity may use the same domain
name for electronic mail as Holdings and its Subsidiaries;




     (g) (i) None of Holdings or any of its Subsidiaries (other than a Disqualified
Subsidiary) will conduct a material amount of its own business with suppliers of goods and
services, lenders or purchasers of securities in the name of Qualified Designated Entities,
Joint Venture Entities or Disqualified Subsidiaries, provided, however, that
Holdings and its Subsidiaries may provide services and, to the extent permitted under
Section 7.05 of the Existing Credit Agreement, inventory, equipment and other
property, to Qualified Designated Entities, Joint Venture Entities and Disqualified
Subsidiaries and may conduct the business of Qualified Designated Entities, Joint Venture
Entities and Disqualified Subsidiaries by or on behalf of such Qualified Designated
Entities, Joint Venture Entities or Disqualified Subsidiaries, as applicable, under a
management or services agreement so long as, except as permitted under Section
6.19(f), any material business so conducted is conducted in the name of such Qualified
Designated Entity, Joint Venture Entity or Disqualified Subsidiary, as applicable and (ii)
except as permitted under Section 6.19(f), no Disqualified Subsidiary or Controlled
Joint Venture Entity will conduct a material amount of its own business with suppliers of
goods and services, lenders or purchasers of securities in the name of Holdings or any of
its other Subsidiaries or any Qualified Designated Entity;




     (h) If Holdings or any of its Subsidiaries obtains actual knowledge that any Qualified
Designated Entity or Joint Venture Entity has represented or indicated to any supplier of
goods and services to, lender to or purchaser of securities of such Qualified Designated
Entity or Joint Venture Entity that the credit of Holdings and its Subsidiaries is available
to satisfy the
obligations of such Qualified Designated Entity or Joint Venture Entity (which shall be
deemed not to refer to any disclosure by a Qualified Designated Entity or Joint Venture
Entity of Investments or obligations that Holdings or its Subsidiaries are permitted to make
in or incur with respect to Qualified Designated Entities and Joint Venture Entities in
compliance with this Agreement), other than in respect of Permitted Guarantees, then
Holdings and its Subsidiaries shall take such action as shall be reasonable in the
circumstances, which may include providing written notice to any Person to whom such
representation or indication was made, to make clear that the credit of Holdings and its
Subsidiaries is not available to satisfy the obligations of such


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Qualified Designated Entity
or Joint Venture Entity, other than in respect of Permitted Guarantees; and




     (i) Holdings and its Subsidiaries will, (i) to the extent each may reasonably be able
to do so without materially adversely affecting any license, license-related application or
other governmental relationship, include in one or more Qualified Designated Entity
Agreements with each Qualified Designated Entity or analogous agreements with each Joint
Venture Entity entered into after the date of this Agreement (other than the agreements with
respect to the initial Investment by Holdings and its Subsidiaries in an Oregon Entity),
whether a limited liability company agreement, partnership agreement, loan or credit
agreement, or otherwise, provisions under which such Qualified Designated Entity or Joint
Venture Entity will agree to comply, and to cause its Subsidiaries to comply, with
separateness covenants for the benefit of Holdings and its Subsidiaries not materially
dissimilar from those contained in Sections 6.19(a) through 6.19(h) hereof
and (ii) in any circumstance where Holdings or such Subsidiary shall have the right, as a
result of its ownership of an Investment in a Qualified Designated Entity or Joint Venture
Entity, to consent to the incurrence of Indebtedness owed to a third party by such entity,
require as a condition to granting such consent (but only in the case of Indebtedness for
borrowed money of such Joint Venture Entity or Qualified Designated Entity in excess of
$5,000,000 in the aggregate) that the third-party lender acknowledge that in extending
credit to such Qualified Designated Entity or Joint Venture Entity such lender is not
relying on the credit of Holdings or any of its Subsidiaries (except to the limited extent
of any Permitted Guarantees and of any Investments that Holdings or its Subsidiaries are
obligated to make in any such entities in compliance with this Agreement).



          6.20 Holding Company. Cause the business and operations of Holdings and its
Subsidiaries to be conducted primarily through the Subsidiaries of Holdings and Qualified
Designated Entities and Joint Venture Entities in which Loan Parties have made Investments in
compliance with this Agreement.




          6.21 Qualified Designated Entity Security; Rights as a Creditor. (a) As promptly as
practicable, with respect to each Qualified Designated Entity in which any Loan Party has made an
Investment pursuant to Section 7.03(l) of the Existing Credit Agreement or Section
7.03(n) of the Existing Credit Agreement that owes Indebtedness (other than Permitted ANB
Unsecured Investments and Permitted QDE Unsecured Investments) to a Loan Party, take, and use
commercially reasonable efforts to cause each Qualified Designated Entity to take, all action
reasonably necessary or, in the reasonable judgment of the administrative agent under the Existing
Credit Agreement, desirable to perfect the security interest of any Loan Party in the assets (but
excluding FCC Licenses and non-owned real property and subject to reasonable exceptions for other
property the value of which does not exceed 10% of the total assets of such Qualified Designated
Entity) of such Qualified Designated Entity securing Indebtedness (other than Permitted ANB
Unsecured Investments and
Permitted QDE Unsecured Investments) owed by such Qualified Designated Entity to such Loan
Party, as required by Sections 7.03(l) and 7.03(n) of the Existing Credit
Agreement.




          (b) Diligently enforce the provisions of the ANB Credit Documents and any QDE Credit Documents
by pursuing such legal remedies as the Borrower deems appropriate in its reasonable business
judgment (taking into account the collateral interest of the lenders under the Existing Credit
Agreement in the Loan Parties’ Investments in the applicable Qualified Designated Entity, any
unjust enrichment or other penalties that may be or become payable to the FCC as a result of the
exercise of legal remedies, and other factors relevant to the value of such Investment) in the case
of any material payment default, any material breach of the restrictions on debt or liens or any
material breach of the


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covenants to grant and perfect security interests, in each case which has
not been cured prior to the expiration of the applicable grace period, if any.




ARTICLE VII

NEGATIVE COVENANTS




          So long as any Lender shall have any Commitment hereunder or any Loan or other Obligation
hereunder shall remain unpaid or unsatisfied, each of Holdings and the Borrower shall not, nor
shall either of them permit any Subsidiary (other than, in the case of Sections 7.01,
7.03, 7.04, 7.05, 7.06, 7.09, 7.14 and
7.17, a Disqualified Subsidiary) to, directly or indirectly:




          7.01 Liens. Create, incur, assume or suffer to exist any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, or sign or file or suffer to
exist under the Uniform Commercial Code of any jurisdiction a financing statement that names the
Borrower or any of its Subsidiaries as debtor, or sign or suffer to exist any security agreement
authorizing any secured party thereunder to file such financing statement, or assign any accounts
or other right to receive income, except as permitted under Section 7.01 of the Existing
Credit Agreement.




          7.02 Indebtedness. Create, incur, assume or suffer to exist any Indebtedness, except
as permitted under Section 7.02 of the Existing Credit Agreement.




          7.03 Investments. Make or hold any Investments or, in the case of obligations of
Holdings and its Subsidiaries with respect to a Qualified Designated Entity, Disqualified
Subsidiary or Joint Venture Entity, any obligation to make an Investment, except as permitted under
Section 7.03 of the Existing Credit Agreement.




          7.04 Fundamental Changes. Merge, dissolve, liquidate, consolidate with or into
another Person, or Dispose of (whether in one transaction or in a series of transactions) all or
substantially all of its assets (whether now owned or hereafter acquired) to or in favor of any
Person, except as permitted under Section 7.04 of the Existing Credit Agreement.




          7.05 Dispositions. Make any Disposition or enter into any agreement to make any Disposition, except as
permitted under Section 7.05 of the Existing Credit Agreement.




          7.06 Restricted Payments. Declare or make, directly or indirectly, any Restricted
Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity
Interests (other than common Equity Interests of Holdings or Qualified Preferred Stock) or accept
any capital contributions, except as permitted under Section 7.06 of the Existing Credit
Agreement.




          7.07 Change in Nature of Business. Engage in any material line of business other than
(a) the delivery or distribution of wireless telecommunications services (including voice, data or
video services), (b) any business or activity reasonably related or ancillary to those listed in
the foregoing clause (a), and (c) the acquisition, holding or exploitation of any
license relating to the delivery of such wireless services.




          7.08 Transactions with Affiliates. Enter into any transaction of any kind with any
Affiliate of Holdings, whether or not in the ordinary course of business, other than on fair and
reasonable terms substantially as favorable to Holdings or such Subsidiary as would be obtainable
by Holdings or such Subsidiary at the time in a comparable arm’s length transaction with a Person
other than an Affiliate; provided that the foregoing restriction shall not apply to transactions
between and among Loan Parties or to (a) customary directors’ fees and expenses, (b) employment
agreements, employee benefit and


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compensation plans approved by the Board of Directors of Holdings
or otherwise generally available to employees of Holdings and its Subsidiaries, (c) payments under
customary officers’ and directors’ indemnification arrangements or (d) payments permitted under any
of Sections 7.06(e) and 7.06(f) of the Existing Credit Agreement and transactions
permitted under Section 7.03(b) of the Existing Credit Agreement.




          7.09 Burdensome Agreements. Enter into or permit to exist any Contractual Obligation
(other than this Agreement or any other Loan Document) that (a) limits in any material respect the
ability of any Subsidiary to make Restricted Payments to the Borrower or any Guarantor or to
otherwise transfer property to or invest in the Borrower or any Guarantor, or (b) requires the
grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another
obligation of such Person, except, with respect to each of clauses (a) and (b), as
permitted under Section 7.09 of the Existing Credit Agreement.




          7.10 Financial Covenant: Consolidated Senior Secured Leverage Ratio. Permit the
Consolidated Senior Secured Leverage Ratio at any time during any period of four fiscal quarters of
Holdings to be greater than 4.50:1.00.




          7.11 Use of Proceeds. Use the proceeds of any Bridge Loan, whether directly or
indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock
(within the meaning of Regulation U of the Board of Governors of the Federal Reserve System) or to
extend credit to others for the purpose of purchasing or carrying margin stock or to refund
Indebtedness originally incurred for such purpose.




          7.12 Amendments of Organization Documents; Qualified Designated Entity Agreements.
(a) Amend any of its Organization Documents, any Qualified Designated Entity Agreement or any QDE
Credit Documents, or (b) cancel, discharge or forgive any Indebtedness owed to a Loan Party by a
Qualified Designated Entity, except, with respect to each of clauses (a) and (b),
as permitted under Section 7.12 of the Existing Credit Agreement.




          7.13 Accounting Changes. Make any change (a) in accounting policies or reporting
practices, except as required or permitted by GAAP, or (b) to its fiscal year.




          7.14 Prepayments, Etc., of Indebtedness. (a) Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or make any payment in
violation of any subordination terms of, any Indebtedness; (b) repay any Permitted Bridge Debt; or
(c) amend the terms of any Permitted Unsecured Debt or Permitted Bridge Debt, except, with respect
to clauses (a), (b) and (c), as permitted under Section 7.14 of the
Existing Credit Agreement.




          7.15 Partnerships, Etc. Become a general partner in any general or limited
partnership or joint venture.




          7.16 Speculative Transactions. Engage, or permit any of its Subsidiaries to engage,
in any transaction involving commodity options or futures contracts or any similar speculative
transactions, which are, in any case, inconsistent with prior practice and not otherwise made in
the ordinary course of business; provided, that this Section 7.16 shall not
prohibit Holdings from engaging in Permitted Equity Forwards.




          7.17 Formation of Subsidiaries. Organize or invest in any new Subsidiary, except as
permitted under Section 7.03(c) or (k) of the Existing Credit Agreement or if such
Subsidiary complies with the requirements of Section 6.12.


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          7.18 ANB Entity Indebtedness. For so long as any Indebtedness referred to in
clause (a)(i) below remains outstanding, (a) the Borrower shall not amend, modify or waive
any term of the ANB Credit Documents as in effect on the Initial Closing Date to permit ANB 1 or
ANB 1 License to incur any Indebtedness other than (i) Indebtedness owed to a Loan Party that is
permitted under Section 7.03(l) of the Existing Credit Agreement and (ii) additional
Indebtedness not exceeding $15,000,000 in the aggregate for both of ANB 1 and ANB 1 License at any
time outstanding, (b) the Borrower shall not assign any portion of its rights or duties under the
ANB Credit Documents to any person other than another Loan Party, except solely in connection with
the exercise of remedies under the ANB Credit Documents), (c) until ANB 1 License becomes a wholly
owned Subsidiary that is not a Disqualified Subsidiary, the Borrower shall not cancel, discharge or
forgive any Indebtedness under the ANB Credit Documents.




          7.19 Equity Forwards. Make any payment in respect of a Permitted Equity Forward other
than in common stock of Holdings or Qualified Preferred Stock; provided that Holdings shall be
permitted to make cash payments in respect of Permitted Equity Forwards not in excess of $5,000,000
in the aggregate so long as before and after giving effect to each such payment no Default shall
have occurred and be continuing.



Notwithstanding the foregoing provisions of this Article VII, and for purposes of this
Article VII only, it is understood and agreed that (a) all references in Article
VII of the Existing Credit Agreement to the delivery of certificates, notices or other
documents by any of the Loan Parties to the “Administrative Agent” shall, with respect to such
delivery obligation only, mean the Administrative Agent under this Agreement with respect to
deliveries required to be made under the Existing Credit Agreement after the date hereof, (b) all
references to a “Default” or an “Event of Default” in the Existing Credit Agreement shall mean a
Default or an Event of Default, as applicable, under each of this Agreement and the Existing Credit
Agreement, (c) any amendments, waivers, consents or other modifications with respect to the
Existing Credit Agreement after the date hereof shall not be binding upon the Lenders hereunder or
affect the Obligations of the Loan Parties under Article VII of this Agreement unless
separately agreed to in writing by the requisite Lenders under this Agreement, and (d) the relevant
provisions of the Existing Credit Agreement referred to in this Article VII shall be
applicable and remain in full force and effect for, and solely for, purposes of this Article
VII notwithstanding any termination of or discharge of all Indebtedness under the Existing
Credit Agreement, provided that upon and with effect from such termination of or discharge
of all Indebtedness under the Existing Credit Agreement, all references in such provisions of
Article VII of the Existing Credit Agreement to the “Administrative Agent”, “Lenders”,
“Notes”, “Loans”, “Obligations” and “Loan Documents” shall be deemed to mean the Administrative
Agent, the Lenders, the Notes, the Loans, the Obligations and the Loan Documents, as applicable,
under this Agreement.




ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES




          8.01 Events of Default. Any of the following shall constitute an Event of Default:





     (a) Non-Payment. The Borrower or any other Loan Party fails to (i) pay when
and as required to be paid herein any amount of principal of any Loan, or (ii) pay within
two (2) Business Days after the same becomes due any interest on any Loan or any fee due
hereunder, or (iii) pay within five (5) days after the same becomes due any other amount
payable hereunder or under any other Loan Document; or




     (b) Specific Covenants. (i) Holdings or the Borrower fails to perform or
observe any term, covenant or agreement contained in any of Section 6.01(c),
6.02 (other than


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Section 6.02(h)), 6.03, 6.05, 6.09,
6.10, 6.11, 6.12, 6.17, 6.20 or Article VII;
(ii) Holdings or the Borrower fails to perform or observe any Revolving Facility Covenant
(provided that such failure shall not constitute a Default or Event of Default under
the Bridge Facility except to the extent otherwise provided in Section 8.01(e));
(iii) Holdings fails to perform or observe any term, covenant or agreement contained in any
of Section 6.01(a) or (b) and such failure continues for a period of fifteen
(15) days after a Responsible Officer of Holdings has knowledge thereof; or (iii) any of the
Guarantors fails to perform or observe any term, covenant or agreement contained in
Section 4 of the Guaranty; or




     (c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in Section 8.01(a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such failure
continues for 30 days after a Responsible Officer of Holdings has knowledge thereof; or




     (d) Representations and Warranties. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the Borrower or
any other Loan Party herein, in any other Loan Document, or in any document delivered in
connection herewith or therewith shall be incorrect or misleading in any material respect
when made or deemed made; or




     (e) Cross-Default. (i) Any Loan Party or any of its Subsidiaries (A) fails to
make any payment when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise, but in all cases after expiration of the applicable grace period, if
any) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and
Indebtedness under Swap Contracts, but in any event including any Indebtedness pursuant to
and Guarantees in connection with the Existing Credit Agreement) having an aggregate
principal amount (including undrawn committed or available amounts and including amounts
owing to all creditors under any combined or syndicated credit arrangement) of more than the
Threshold Amount, or (B) fails to observe or perform any other agreement or condition
relating to any such Indebtedness or Guarantee exceeding the Threshold Amount or contained
in any instrument or agreement evidencing, securing or relating thereto (including but not
limited to any in connection with the Existing Credit Agreement), or any other event occurs,
but in all cases after expiration of the applicable grace period, if the effect of such
default or other event is to cause, or to permit the holder or holders of such Indebtedness
or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice
if required, such Indebtedness to be demanded or to become due or to be repurchased,
prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or
such Guarantee to become payable or cash collateral in respect thereof to be demanded
(provided that any failure to perform or observe any Revolving Facility Covenant
shall not give rise to a Default or Event of Default in respect of this Bridge Facility
unless and until the Required Revolving Lenders (as defined in the Existing Credit
Agreement) shall have requested or consented to the taking by the administrative agent under
the Existing Credit Agreement of any action of a type described in Section 8.02 of
the Existing Credit Agreement); or (ii) there occurs under any Swap Contract (other than a
Permitted Equity Forward) an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which the Borrower or
any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any
Termination Event (as so defined) under such Swap Contract as to which the Borrower or any
Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination
Value owed by the Loan Party or such Subsidiary as a result thereof is greater than the
Threshold Amount; or


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          (f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries
institutes or consents to the institution of any proceeding under any Debtor Relief Law, or
makes an assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed
without the application or consent of such Person and the appointment continues undischarged
or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to
any such Person or to all or any material part of its
property is instituted without the consent of such Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or




          (g) Inability to Pay Debts; Attachment. (i) Any Loan Party or any of its
Subsidiaries becomes unable or admits in writing its inability or fails generally to pay its
debts as they become due, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of any such
Person and is not released, vacated or fully bonded within 30 days after its issue or levy;
or




          (h) Judgments. There is entered against any Loan Party or any of its
Subsidiaries (i) a final judgment or order for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by independent third-party
insurance as to which the insurer is rated at least “A” by A.M. Best Company, has been
notified of the potential claim and does not dispute coverage), or (ii) any one or more
non-monetary final judgments that have, or could reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement
proceedings are commenced by any creditor upon such judgment or order (except to the extent
commencement of such enforcement proceedings is in violation of an applicable order staying
enforcement), or (B) there is a period of 30 consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect;
or




          (i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result in liability
of the Borrower under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC
in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA
Affiliate fails to pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or




          (j) Invalidity of Loan Documents. Any provision of any Loan Document, at any
time after its execution and delivery and for any reason other than as expressly permitted
hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party or any Affiliate of a Loan Party contests in any manner
the validity or enforceability of any provision of any Loan Document; or any Loan Party
denies that it has any or further liability or obligation under any provision of any Loan
Document, or purports to revoke, terminate or rescind any provision of any Loan Document; or




          (k) Change of Control. There occurs any Change of Control; or




          (l) Auction Default. Any Loan Party fails to fund any of its required equity
contributions to a Qualified Designated Entity or to make required loans to such Qualified
Designated Entity or any of its Subsidiaries which (i) causes such Qualified Designated
Entity or any of its Subsidiaries to fail to pay amounts owed to the FCC with respect to FCC
Licenses with



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an aggregate purchase price in excess of $200,000,000 as to which such
Qualified Designated Entity or any of its Subsidiaries was the winning bidder in an auction
by the FCC and (ii) failure to fund or to make such required loans continues unremedied for
three (3) Business Days; provided that, in each case, such failure is not caused by
the failure of any Lender to fund any Loan in accordance with the terms of this Agreement.



          8.02 Remedies upon Event of Default. (a) If any Event of Default occurs and is continuing, the Administrative Agent shall, at
the request of, or may, with the consent of, the Required Lenders, take any or all of the following
actions:





          (i) until the Effective Date, declare the Commitment of each Lender to make Bridge Loans
to be terminated, whereupon such Commitments and obligation shall be terminated;




          (ii) declare the unpaid principal amount of all outstanding Loans, all interest accrued
and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan
Document to be immediately due and payable, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Borrower; and




          (iii) exercise on behalf of itself and the Lenders all rights and remedies (which, for
the avoidance of doubt, shall not include the right to terminate any Commitment or refuse to
make any Loan hereunder if the applicable conditions contained in Article IV are
satisfied) available to it and the Lenders under the Loan Documents; and




          (b) If any Event of Default under the Existing Credit Facility consisting of the failure
to perform or observe any Revolving Facility Covenant occurs and is continuing, the Borrower
shall give prompt written notice thereof to the Administrative Agent (which shall give prompt
notice to the Lenders) of any action taken under Section 8.02(b) of the Existing
Credit Agreement and thereafter the Administrative Agent, shall, at the request of, or may,
with the consent of, the Required Lenders, take any or all of the actions described in
clauses (i) through (iii) of clause (a) above with respect to the
Bridge Facility; provided, further that upon the occurrence of an actual or
deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of
the United States, the obligation of each Lender to make Loans shall automatically terminate,
the unpaid principal amount of all outstanding Loans and all interest and other amounts as
aforesaid shall automatically become due and payable, in each case without further act of the
Administrative Agent or any Lender.



          8.03 Application of Funds. After the exercise of remedies provided for in Section
8.02, any amounts received on account of the Obligations shall be applied by the Administrative
Agent in the following order:





          First, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (other than principal and interest but including
fees, charges and disbursements of counsel to the Administrative Agent and to the Lead
Arrangers and amounts payable under Article III) payable to the Administrative Agent
in its capacity as such;




          Second, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the Lenders
(including fees, charges and disbursements of counsel to the respective Lenders and amounts
payable under Article III), ratably among them in proportion to the amounts described
in this clause Second payable to them;



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77



          Third, to payment of that portion of the Obligations constituting accrued and
unpaid interest on the Loans and other Obligations, ratably among the Lenders in proportion
to the respective amounts described in this clause Third payable to them;




          Fourth, to payment of that portion of the Obligations constituting unpaid
principal of the Loans, ratably among the Lenders in proportion to the respective amounts
described in this clause Fourth held by them;




          Fifth, to the payment of all other Obligations of the Loan Parties owing under
or in respect of the Loan Documents that are due and payable to the Administrative Agent on
such date, ratably based upon the respective aggregate amounts of all such Obligations owing
to the Administrative Agent on such date; and




          Last, the balance, if any, after all of the Obligations have been indefeasibly
paid in full, to the Borrower or as otherwise required by Law.



ARTICLE IX

ADMINISTRATIVE AGENT




          9.01 Appointment and Authority. Each of the Lenders hereby irrevocably appoints CNAI
to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents 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 hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of this Article are solely
for the benefit of the Administrative Agent, the Lenders, and neither the Borrower nor any other
Loan Party shall have rights as a third party beneficiary of any of such provisions.




          9.02 Rights as a Lender. The Person serving as the Administrative Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders”
shall, unless otherwise expressly indicated or unless the context otherwise requires, include the
Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and
its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder
and without any duty to account therefor to the Lenders.




          9.03 Exculpatory Provisions. The Administrative Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan Documents. Without
limiting the generality of the foregoing, the Administrative Agent:





          (a) shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing;




          (b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly contemplated hereby
or by the other Loan Documents that the Administrative Agent is required to exercise as
directed in writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be expressly provided for herein or in the other Loan Documents),
provided that the Administrative Agent shall not be required to take any action
that, in its opinion or the opinion of its counsel,



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may expose the Administrative Agent to liability or that is contrary to any Loan
Document or applicable law; and




          (c) shall not, except as expressly set forth herein and in the other Loan Documents,
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 Affiliates that is communicated to or
obtained by the Person 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 (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii)
in the absence of its
own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to
have knowledge of any Default unless and until notice describing such Default is given to the
Administrative Agent by the Borrower or a Lender.



          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
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document, or the creation,
perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the
value or the sufficiency of any Collateral or (vi) 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.



          9.04 Reliance by Administrative Agent. 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 (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to be genuine and to
have been signed, sent or otherwise authenticated 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 have been
made by the proper Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Bridge Loan, that by its terms must be
fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition
is satisfactory to such Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Bridge Loan. 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.




          9.05 Delegation of Duties. The Administrative Agent may perform any and all of its
duties and exercise its rights and powers hereunder or under any other Loan Document 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 of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this Article 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 Administrative Agent.




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          9.06 Resignation of Administrative Agent. The Administrative Agent may at any time
give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of
resignation, the Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of
any such bank with an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the retiring Administrative
Agent may on behalf of the Lenders appoint a successor Administrative Agent
meeting the qualifications set forth above; provided that if the Administrative Agent
shall notify the Borrower and the Lenders that no qualifying Person has accepted such appointment,
then such resignation shall nonetheless become effective in accordance with such notice and (a) the
retiring Administrative Agent shall be discharged from its duties and obligations hereunder and
under the other Loan Documents (except that in the case of any collateral security held by the
Administrative Agent on behalf of the Lenders under any of the Loan Documents, the retiring
Administrative Agent shall continue to hold such collateral security until such time as a successor
Administrative Agent is appointed) and (b) all payments, communications and determinations provided
to be made by, to or through the Administrative Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor Administrative Agent as
provided for above in this Section. Upon the acceptance of a successor’s appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
Section). 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 retiring Administrative Agent’s resignation hereunder and under the other
Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties
in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.



          9.07 Non-Reliance on Administrative Agent and Other Lenders. Each Lender acknowledges
that it has, independently and without reliance upon the Administrative Agent or any other Lender
or any of their Related Parties 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 or
any other Lender or any of their Related Parties 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, any other Loan Document or any related agreement
or any document furnished hereunder or thereunder.




          9.08 No Other Duties, Etc. Anything herein to the contrary notwithstanding, none of
the Lead Arrangers, Lead Book Runners, Co-Arrangers, Co-Book Runners, Syndication Agent or
Documentation Agents listed on the cover page hereof shall have any powers, duties or
responsibilities under this Agreement or any of the
other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a
Lender hereunder or, in the case of the Lead Arrangers, as expressly set forth herein.




          9.09 Administrative Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Loan Party, the Administrative Agent
(irrespective of whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise




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80



and irrespective of whether the Administrative Agent shall
have made any demand on the Borrower) shall be entitled and empowered, by intervention in such
proceeding or otherwise





          (a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and
to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Lenders and the Administrative
Agent and its agents and counsel and all other amounts due the Lenders and the
Administrative Agent under Sections 2.08 and 10.04) allowed in such judicial
proceeding; and




          (b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, if the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of the Administrative Agent and its agents and
counsel, and any other amounts due the Administrative Agent under Sections 2.08 and
10.04.




          Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.




          9.10 Guaranty Matters. The Lenders irrevocably authorize the Administrative Agent, at
its option and in its discretion, to release any Guarantor from its obligations under the Guaranty
if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder.




          Upon request by the Administrative Agent at any time, the Required Lenders will confirm in
writing the Administrative Agent’s authority to release any Guarantor from its obligations under
the Guaranty pursuant to this Section 9.10. In each case as specified in this Section
9.10, the Administrative Agent will, at the Borrower’s expense, execute and deliver to the
applicable Loan Party such documents as such Loan Party may reasonably request to release such
Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the
Loan Documents and this Section 9.10.




ARTICLE X

MISCELLANEOUS




          10.01 Amendments, Etc. Subject to the provisions of Section 2.13(d), no
amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent
to any departure by the Borrower or any other Loan Party therefrom, shall be effective unless in
writing signed by the Required Lenders and the Borrower or the applicable Loan Party, as the case
may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which given;
provided, however, that no such amendment, waiver or consent shall:





          (a) waive any condition set forth in Section 4.02, 4.03 or 4.04
without the written consent of each Lender;



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          (b) extend or increase the Commitment of any Lender (or reinstate any Commitment
terminated pursuant to Section 8.02) without the written consent of such Lender;




          (c) postpone any date fixed by this Agreement or any other Loan Document for any
payment (excluding mandatory prepayments) of principal, interest or fees or other amounts
due to the Lenders (or any of them), including the Initial Maturity Date or the Final
Maturity Date without the written consent of each Lender entitled to such payment;




          (d) reduce or forgive the principal of, or the rate of interest specified herein on,
any Loan, or (subject to clause (iii) of the second proviso to this Section
10.01) any fees or other amounts payable hereunder or under any other Loan Document
without the written consent of each Lender entitled to such amount; provided,
however, that only the consent of the Required Lenders shall be necessary (i) to
amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay
interest at the Default Rate or (ii) to amend any financial covenant hereunder (or any
defined term used therein) even if the effect of such amendment would be to reduce the rate
of interest on any Loan or to reduce any fee payable hereunder;




          (e) change (i) Section 2.12 or 8.03 in a manner that would alter the
pro rata sharing of payments required thereby without the written consent of each Lender or
(ii) the order of application of any reduction in the Commitments or any prepayment of
Bridge Loans from the application thereof set forth in the provisions of Section 2.04(b)
or 2.05(b), respectively, in any manner that materially and adversely affects the
Lenders under the Bridge Facility without the written consent of the Required Lenders;




          (f) (i) change any provision of this Section 10.01 or the definition of
“Required Lenders” or any other provision hereof specifying the number or percentage of
Lenders required to amend, waive or otherwise modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent of each Lender or
(ii) change the definition of “Required Lenders” without the written consent of each Lender;




          (g) release all or substantially all of the value of the Guaranty, without the written
consent of each Lender;




          (h) impose any greater restriction on the ability of any Lender to assign any of its
rights or obligations hereunder without the written consent of Lenders having more than 50%
of the Aggregate Credit Exposures then in effect; or




          (i) impose any additional restrictions on the right to exchange Bridge Loans or
Extended Term Loans for Exchange Securities or any amendment of the rate of such exchange;


and provided further that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to the Lenders required above, affect
the rights or duties of the Administrative Agent under this Agreement or any other Loan Document;
(ii) Section 10.06(i) may not be amended, waived or otherwise modified without the consent
of each Granting Lender all or any part of whose Loans are being funded by an SPC at the time of
such amendment, waiver or other modification; and (iii) each Fee Letter may be amended, or rights
or privileges thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to
approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of
such Lender may not be increased or extended without the consent of such Lender.




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          10.02 Notices and Other Communications; Facsimile Copies.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b)
below), 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
telecopier as follows, and all notices and other communications expressly permitted hereunder to be
given by telephone shall be made to the applicable telephone number, as follows:





          (i) if to the Borrower or the Administrative Agent to the address, telecopier number,
electronic mail address or telephone number specified for such Person on Schedule
10.02; and




          (ii) if to any other Lender, to the address, telecopier number, electronic mail address
or telephone number specified in its Administrative Questionnaire.


Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall
be deemed to have been given when received; notices sent by telecopier shall be deemed to have been
given when sent (except that, if not given during normal business hours for the recipient, shall be
deemed to have been given at the opening of business on the next business day for the recipient).
Notices delivered through electronic communications to the extent provided in subsection (b) below
shall be effective as provided in such subsection (b).




          (b) Electronic Communications. Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communication (including e-mail and Internet
or intranet websites) pursuant to procedures approved by the Administrative Agent, provided
that the foregoing shall not apply to notices to any Lender pursuant to Article II if such
Lender, as applicable, has notified the Administrative Agent that it is incapable of receiving
notices under such Article by electronic communication. The Administrative Agent or the Borrower
may, in its discretion, agree to accept notices and other 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.




          Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement
from the intended recipient (such as by the “return receipt requested” function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail address as described
in the foregoing clause (i) of notification that such notice or communication is available
and identifying the website address therefor.




          (c) Change of Address, Etc. Each of the Borrower and the Administrative Agent may
change its address, telecopier or telephone number for notices and other communications hereunder
by notice to the other parties hereto. Each other Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by notice to the Borrower and
Administrative Agent.




          (d) Reliance by Administrative Agent and Lenders. The Administrative Agent and the
Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan
Notices ) purportedly given by or on behalf of the Borrower even if (i) such notices were not made
in a manner specified herein, were incomplete or were not preceded or followed by any other form of
notice




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specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any
confirmation
thereof. The Borrower shall indemnify the Administrative Agent, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other telephonic communications with the Administrative Agent may be
recorded by the Administrative Agent, and each of the parties hereto hereby consents to such
recording.




          10.03 No Waiver; Cumulative Remedies. No failure by any Lender, the Administrative
Agent or any Loan Party to exercise, and no delay by any such Person in exercising, any right,
remedy, power or privilege hereunder or any other Loan Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided, and provided under each
other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by law.




          10.04 Expenses; Indemnity; Damage Waiver. (a) Costs and Expenses.
Irrespective of whether the Initial Closing Date is reached, a Successful Auction is achieved or
the Exchange Securities are issued, the Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Lead Arrangers and the Administrative Agent and their Affiliates
(including the reasonable fees, charges and disbursements of counsel to the Lead Arrangers and the
Administrative Agent), in connection with the syndication of the credit facilities provided for
herein (in the case of fees to syndicate members, on the terms set forth in the Fee Letters), the
preparation, negotiation, execution, delivery and administration 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) from time to
time on demand and (ii) all out-of-pocket expenses incurred by the Administrative Agent, any Lender
(including the fees, charges and disbursements of any counsel for the Administrative Agent or any
Lender), in connection with the enforcement or protection of its rights (A) in connection with this
Agreement and the other Loan Documents, including its rights under this Section, or (B) in
connection with Loans made hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans.




          (b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), the other Agents, the Lead Arrangers, the Joint Book
Managers, 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 a single outside law firm for the Indemnitees (provided that, in the event
a conflict is identified among the Indemnitees, one additional counsel may be selected on behalf of
each Indemnitee subject to such conflict), incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by the Borrower or any other Loan Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or the use or proposed use of the
proceeds therefrom, (iii) any actual or alleged presence or release of Hazardous Materials on or
from any property owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its Subsidiaries, or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether brought by a third party or
by the Borrower or any other
Loan Party or any of the Borrower’s or such Loan Party’s directors, shareholders or creditors,
and regardless of whether any Indemnitee is a party thereto and whether or not any of the
transactions contemplated hereunder or under any of the other Loan Documents is consummated, in all
cases, whether




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or not caused by or arising, in whole or in part, out of the comparative,
contributory or sole negligence of the Indemnitee; provided that such indemnity shall not,
as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses (x) 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
arising out of, related to or in connection with any of the matters referred to in either of
clause (i) or (ii) above or (y) result from a claim brought by the Borrower or any
other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations
hereunder or under any other Loan Document, if the Borrower or such Loan Party has obtained a final
and nonappealable judgment in its favor on such claim as determined by a court of competent
jurisdiction.




          (c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under subsection (a) or (b) of this Section to
be paid by it to the Administrative Agent (or any sub-agent thereof) or any Related Party of any of
the foregoing (and without limiting its obligation to do so), each Lender severally agrees to pay
to the Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, 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 (or any such sub-agent) or against any
Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent)
in connection with such capacity. The obligations of the Lenders under this subsection (c) are
subject to the provisions of Section 2.11(d).




          (d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
applicable law, the Borrower shall not assert, and 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,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee
referred to in subsection (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed by it through electronic
telecommunications or other information transmission systems customarily used for transactions of
this type or otherwise authorized by the Borrower in connection with this Agreement or the other
Loan Documents or the transactions contemplated hereby or thereby, except to the extent that such
damages arise from the gross negligence or willful misconduct of
such Indemnitee in the use of such electronic telecommunications or other information
transmission systems.




          (e) Payments. All amounts due under this Section shall be payable not later than ten
(10) Business Days after demand therefor.




          (f) Survival. The agreements in this Section shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination of the Aggregate Commitments
and the repayment, satisfaction or discharge of all the other Obligations.




          10.05 Payments Set Aside. To the extent that any payment by or on behalf of the
Borrower is made to the Administrative Agent or any Lender, or the Administrative Agent or any
Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part
thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its discretion) to be repaid
to a trustee, receiver or any other party, in connection with any proceeding under any Debtor
Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force and effect as if
such payment had not been




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85

made or such setoff had not occurred, and (b) each Lender severally
agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of
any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the
date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect. The obligations of the Lenders under clause (b) of the
preceding sentence shall survive the payment in full of the Obligations and the termination of this
Agreement.




          10.06 Successors and Assigns. (a) Successors and Assigns 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, except that neither the Borrower nor
any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Lead Arrangers and each Lender and no Lender may assign or
otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in
accordance with the provisions of Section 10.06(b), (ii) by way of participation in
accordance with the provisions of Section 10.06(e), (iii) by way of pledge or assignment of
a security interest subject to the restrictions of Section 10.06(g), or (iv) to an SPC in
accordance with the provisions of Section 10.06(i) (and any other attempted assignment or
transfer by any party hereto shall be null and void). 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, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement. Notwithstanding any other provision of this
Agreement, if at any time a Lender proposes to assign or otherwise transfer all or any portion of
its rights hereunder to any Person that is not a Lender, an Affiliate of a Lender or an Approved
Fund and is not a commercial bank, finance company, insurance company, financial institution or
Fund (a “Non-Financial Entity”), then such Lender shall notify the Lead Arrangers that such
proposed assignee or transferee is a Non-Financial Entity. Prior to granting its approval to such
proposed assignment or transfer, the Administrative Agent shall notify the Borrower of the identity
of such Non-Financial Entity. No assignment shall be made to any Non-Financial Entity that is
designated by the Borrower, within three Business Days after receipt by the Borrower of
notification from the Administrative Agent pursuant to the
immediately preceding sentence, as a direct or indirect competitor of Holdings or any
Subsidiary of Holdings.




          (b) Assignments by Lenders. Any Lender may at any time 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 Commitment(s) and the Loans at the time owing to it); provided that any such
assignment shall be subject to the following conditions:




          (i) Minimum Amounts.





     (A) in the case of an assignment of the entire remaining amount of the
assigning Lender’s Commitment under the Bridge Facility and the Loans at any time
owing to it under the Bridge Facility or in the case of an assignment to a Lender,
an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned;
and




     (B) in any case not described in subsection (b)(i)(A) of this Section, the
aggregate amount of the Commitment (which for this purpose includes Loans
outstanding thereunder) or, if the Commitment is not then in effect, the principal
outstanding balance of the Loans 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 or, if “Trade Date” is
specified in the Assignment and Assumption, as of the Trade Date, shall not be less
than $1,000,000, in the case of any



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assignment in respect of the Bridge Facility,
unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consents (each such consent not
to be unreasonably withheld or delayed); provided, however, that
concurrent assignments to members of an Assignee Group and concurrent assignments
from members of an Assignee Group to a single Eligible Assignee (or to an Eligible
Assignee and members of its Assignee Group) will be treated as a single assignment
for purposes of determining whether such minimum amount has been met.




     (ii) Proportionate Amounts. 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 with respect to the Bridge Loans or the Commitment assigned.




     (iii) Assignment and Assumption. The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee in the amount required as set forth in this Section
10.06; provided, however, that the Administrative Agent may, in its sole
discretion, elect to waive such processing and recordation fee in the case of any
assignment. The assignee, if it shall not be a Lender, shall deliver to the Administrative
Agent an Administrative Questionnaire.




     (iv) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrower’s Affiliates or Subsidiaries (other than any Affiliate that
is not Holdings or a Subsidiary of Holdings and becomes a Lender in connection with the
primary syndication of the Bridge Facility, or an Affiliate of such a Lender).




     (v) No Assignment to Natural Persons. No such assignment shall be made to a
natural person.




     (vi) Assignment Fee. Upon any assignment, the parties to the assignment shall
pay an administrative fee to the Administrative Agent in the amount of $3,500.




     (vii) Assignments Beyond 50%. Each assignment that results in the Lead
Arrangers and the Co-Arrangers and their Affiliates collectively holding less than 50.1% of
the aggregate amount of the Commitments or the aggregate principal amount of the Bridge
Loans outstanding, and each assignment occurring thereafter, shall require the prior written
consent of the Borrower (not to be unreasonably withheld or delayed).




     (viii) Lead Arrangers’ Consent. Each assignment, other than assignments to
other Lenders (and the Affiliates thereof) or as permitted under clauses (g) or
(i) below, shall require the prior consent of the Lead Arrangers, such consent not
to be unreasonably withheld.



          (c) Subject to acceptance and recording thereof by the Administrative Agent pursuant to
subsection (c) of this Section, from and after the effective date specified in each Assignment and
Assumption, the assignee thereunder shall be a party to this Agreement 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 3.01, 3.04, 3.05 and
10.04 with respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request and following the delivery to the Borrower of the original note issued
to the assignor Lender, if any, the Borrower (at its expense) shall execute and deliver a




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replacement Note to the assignee Lender. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this subsection 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 Section 10.06(e).




          (d) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at the Administrative Agent’s Office a copy of each 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 amounts of the Loans owing to, 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 and the Lenders may 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 and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.




          (e) Participations. Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (other than an
Affiliate that qualifies as an Eligible Assignee pursuant to the definition of “Eligible Assignee”)
or, subject to the last two sentences of this clause (e), a Non-Financial Entity) (each, a
“Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it); provided that
(i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of such obligations and
(iii) the Borrower, the Administrative Agent and the 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, waiver or other modification described in clauses (c),
(d) or (g) of the first
proviso to Section 10.01 that directly affects such Participant. Subject to
subsection (f) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to Section 10.06(b). To
the extent permitted by law, each Participant also shall be entitled to the benefits of Section
10.08 as though it were a Lender, provided such Participant agrees to be subject to
Section 2.12 as though it were a Lender. Notwithstanding the foregoing, if at any time a
Lender proposes to sell a participation to a Non-Financial Entity, then such Lender shall notify
the Borrower of the identity of such proposed participant. No participation shall be sold to any
Non-Financial Entity that is designated by the Borrower, within three (3) Business Days after
receipt by the Borrower of notification from the applicable Lender pursuant to the immediately
preceding sentence, as a direct or indirect competitor of Holdings or any Subsidiary of Holdings.




          (f) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Section 3.01 or 3.04 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 3.01 unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e)
and (f) as though it were a Lender.




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          (g) Certain Pledges. Any Lender may, without the consent of the Borrower or the
Administrative Agent or the Lead Arrangers, at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (including under its Note, if any) to secure
obligations of such Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall release such Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.




          (h) Electronic Execution of Assignments. The words “execution,” “signed,”
“signature,” and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.




          (i) Special Purpose Funding Vehicles. Notwithstanding anything to the contrary
contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle
identified as such in writing from time to time by the Granting Lender to the Administrative Agent
and the Borrower (an “SPC”) the option to provide all or any part of any Bridge Loan that such
Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided
that (i) nothing herein shall constitute a commitment by any SPC to fund any Bridge Loan, and (ii)
if an SPC elects not to exercise such option or otherwise fails to make all or any part of such
Bridge Loan, the Granting Lender shall be obligated to make such Bridge Loan pursuant to the terms
hereof or, if it fails to do so, to make such payment to the Administrative Agent as is required
under Section 2.11(b)(ii). Each party hereto hereby agrees that (i) neither the grant to
any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or
otherwise increase or change the obligations of any Loan Party under this Agreement (including the
Borrower’s obligations under Section 3.04), (ii) no SPC shall be liable for any indemnity
or similar payment obligation under this Agreement for which a Lender would be liable, and (iii)
the Granting Lender shall for all purposes, including the approval of any amendment, waiver or
other modification of any provision of any Loan Document, remain the lender of record hereunder.
The
making of a Bridge Loan by an SPC hereunder shall utilize the Commitment of the Granting
Lender to the same extent, and as if, such Bridge Loan were made by such Granting Lender. In
furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior debt of any SPC, it will not
institute against, or join any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United
States or any State thereof. Notwithstanding anything to the contrary contained herein, any SPC
may (i) with notice to, but without prior consent of the Borrower and the Administrative Agent and
with the payment of a processing fee in the amount of $3,500, assign all or any portion of its
right to receive payment with respect to any Bridge Loan to the Granting Lender and (ii) disclose
on a confidential basis any non-public information relating to its funding of Bridge Loans to any
rating agency, commercial paper dealer or provider of any surety or Guarantee or credit or
liquidity enhancement to such SPC.




          10.07 Treatment of Certain Information; Confidentiality. Each of the Administrative
Agent and the Lenders agrees to maintain the confidentiality of the Information (as herein
defined), except that Information may be disclosed (a) to its Affiliates and to its Affiliates’
respective partners, directors, officers, employees, agents, advisors, auditors and representatives
(it being understood that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information confidential); (b)
to the extent requested by any regulatory




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authority purporting to have jurisdiction over it; (c) to
the extent required by applicable Laws or guidelines, requests or directed duties of, or
agreements with, any Governmental Authority (whether or not having the force of law) or obligations
imposed by non-governmental international bodies or regulations or by any subpoena or similar legal
process; (d) to any other party to this Agreement; (e) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions substantially the same as
those of this Section 10.07, to (i) any Eligible Assignee of or Participant in, or any
prospective Eligible Assignee of or Participant in, any of its rights or obligations under this
Agreement, (ii) any pledge referred to in Section 10.06(g) or (iii) any direct or indirect
contractual counterparty or prospective counterparty (or such contractual counterparty’s or
prospective counterparty’s professional advisor) to any credit derivative transaction relating to
obligations of the Loan Parties; (g) with the consent of the Borrower; (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of this Section
10.07 or (y) becomes available to the Administrative Agent, any Lender or any of their
respective Affiliates on a nonconfidential basis from a source other than the Borrower; (i) to any
state, Federal or foreign authority or examiner (including the National Association of Insurance
Commissioners or any other similar organization) regulating any Lender; or (j) to any rating agency
when required by it (it being understood that, prior to any such disclosure, such rating agency
shall undertake to preserve the confidentiality of any Information relating to the Loan Parties
received by it from such Lender); provided that, unless specifically prohibited by
applicable Law or court order, each Lender shall notify the Borrower of any request by any
Governmental Authority or representative thereof (other than any such request in connection with an
examination of the financial condition of such Lender by such Governmental Authority) or subpoena
for disclosure of any such non-public information prior to the disclosure of such information. In
addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and
information about this Agreement to market data collectors, similar service providers to the
lending industry, and service providers to the Administrative Agent and the Lenders in connection
with the administration and management of this Agreement, the other Loan Documents, the
Commitments, and the Loans. For the purposes of this Section, “Information” means all information
received from any Loan Party relating to any Loan Party or its business, other than any such
information that is available to the Administrative Agent or any Lender on a nonconfidential basis
prior to
disclosure by any Loan Party; provided that, in the case of information received from
a Loan Party after the date hereof, such information is clearly identified in writing at the time
of delivery as confidential. Any Person required to maintain the confidentiality of Information as
provided in this Section 10.07 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. The agreements in
this Section shall survive any assignment by a Lender, any sale of a participation by a Lender, the
replacement of any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.




          10.08 Right of Setoff. If an Event of Default shall have occurred and be
continuing, each Lender and each of their respective Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by applicable law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final, in whatever currency)
at any time held and other obligations (in whatever currency) at any time owing by such Lender or
any such Affiliate to or for the credit or the account of the Borrower or any other Loan Party
against any and all of the obligations of the Borrower or such Loan Party now or hereafter existing
under this Agreement or any other Loan Document to such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement or any other Loan Document and although such
obligations of the Borrower or such Loan Party may be contingent or unmatured or are owed to a
branch or office of such Lender different from the branch or office holding such deposit or
obligated on such indebtedness. The rights of each Lender and their respective Affiliates under
this Section are in addition to other rights and remedies (including other rights of setoff) that
such Lender or their respective Affiliates may have. Each Lender agrees to notify the




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Borrower and
the Administrative Agent promptly after any such setoff and application, provided that the failure
to give such notice shall not affect the validity of such setoff and application.




          10.09 Interest Rate Limitation. Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable Law (the “Legal Maximum Rate”).
If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the
Legal Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it
exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum
Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that
is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or
unequal parts the total amount of interest throughout the contemplated term of the Obligations
hereunder.




          10.10 Counterparts; Integration; Effectiveness. This Agreement may be executed in
counterparts (and by different parties hereto in different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a single contract.
This Agreement and the other Loan Documents 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. Except as provided in
Section 4.01, 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
that, when taken together, bear the signatures of each of the other parties hereto. 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.




          10.11 Survival of Representations and Warranties. All representations and warranties
made hereunder and in any other Loan Document or other document delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive
the execution and delivery hereof and thereof. Such representations and warranties have been
or will be relied upon by each Agent and each Lender, regardless of any investigation made by any
Agent or any Lender or on their behalf and notwithstanding that any Agent or any Lender may have
had notice or knowledge of any Default at the time of any Loan, and shall continue in full force
and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or
unsatisfied.




          10.12 Severability. If any provision of this Agreement or the other Loan Documents is
held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the
remaining provisions of this Agreement and the other Loan Documents shall not be affected or
impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the
illegal, invalid or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable provisions. The
invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.




          10.13 Replacement of Lenders. If (i) any Lender or any participant of such Lender
requests compensation under Section 3.04, or (ii) if the Borrower is required to pay any additional
amount to any Lender or any participant of such Lender or any Governmental Authority for the
account of any Lender or any participant of such Lender pursuant to Section 3.01, or (iii)
if any Lender is a Defaulting Lender, or (iv) if any amendment, waiver or consent hereunder
requiring the consent of all Lenders or all Lenders directly affected thereby would be effective
but for the failure of no more than two Lenders to consent thereto (each, a “Non-Consenting
Lender”) or if any other circumstance exists hereunder that gives the Borrower the right to replace
a Lender as a party hereto, then the Borrower may, at its sole




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expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in, and consents required
by, Section 10.06), all of its interests, rights and obligations under this Agreement and
the related Loan Documents to an assignee that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment), provided that:





          (a) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 10.06(b);




          (b) such Lender shall have received payment of an amount equal to the outstanding
principal of its Bridge Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder and under the other Loan Documents (including any amounts under
Section 3.05) from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts);




          (c) in the case of any such assignment resulting from a claim for compensation under
Section 3.04 or payments required to be made pursuant to Section 3.01, such
assignment will result in a reduction in such compensation or payments thereafter;




          (d) such assignment does not conflict with applicable Laws or guidelines, directed
duties or requests of, or agreements with, any Governmental Authority (whether or not having
the force of law); and




          (e) no more than two (2) Non-Consenting Lenders may be replaced in connection with any
proposed amendment, waiver or consent.



          A Lender shall not be required to make any such assignment or delegation if, prior thereto, as
a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.




          10.14 Governing Law; Jurisdiction; Etc. (a) GOVERNING LAW. THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.




          (b) SUBMISSION TO JURISDICTION. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT
FOR 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 ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO 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 FULLEST EXTENT PERMITTED BY APPLICABLE 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 OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER MAY OTHERWISE HAVE TO BRING ANY
ACTION OR PROCEEDING RELATING TO




Project Leap Bridge Credit Agreement










 



92



THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR
ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.




          (c) WAIVER OF VENUE. THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE 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 HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT
THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.




          10.15 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY 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 ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PERSON 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
AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.




          10.16 USA PATRIOT Act Notice. Each Lender (unless such Lender is not, in its sole
determination, subject to the Act referred to below) and the Administrative Agent (for itself and
not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the
USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is
required to obtain, verify and record information that identifies each Loan Party, which
information includes the name and address of each Loan Party and other information that will allow
such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance
with the Act.




          10.17 No Advisory or Fiduciary Responsibility. In connection with all aspects of each
transaction contemplated hereby, the Borrower and Holdings each acknowledge and agree, and
acknowledge their respective Affiliates’ understanding, that: (i) the credit facilities provided
for hereunder and any related arranging or other services in connection therewith (including in
connection with any amendment, waiver or other modification hereof or of any other Loan Document)
are an arm’s-length commercial transaction between the Borrower, Holdings and their respective
Affiliates, on the one hand, and the Administrative Agent and each of the Lead Arrangers, on the
other hand, and each of the Borrower and Holdings is capable of evaluating and understanding and
understands and accepts the terms, risks and conditions of the transactions contemplated hereby and
by the other Loan Documents (including any amendment, waiver or other modification hereof or
thereof); (ii) in connection with the process leading to such transaction, the Administrative Agent
and each Lead Arranger each is and has been acting solely as a principal and is not the financial
advisor, agent or fiduciary, for the Borrower,




Project Leap Bridge Credit Agreement










 



93



Holdings or any of their respective Affiliates,
stockholders, creditors or employees or any other Person; (iii) neither the Administrative Agent
nor any Lead Arranger has assumed or will assume an advisory, agency or fiduciary responsibility in
favor of the Borrower or Holdings with respect to any of the transactions contemplated hereby or
the process leading thereto, including with respect to any amendment, waiver or other modification
hereof or of any other Loan Document (irrespective of whether the Administrative Agent or any Lead
Arranger has advised or is currently advising the Borrower, Holdings or any of their respective
Affiliates on other matters) and neither the Administrative Agent nor any Lead Arranger has any
obligation to the Borrower, Holdings or any of their respective Affiliates with respect to the
transactions contemplated hereby except those obligations expressly set forth herein and in the
other Loan Documents; (iv) the Administrative Agent and each of the Lead Arrangers and their
respective Affiliates may be engaged in a broad range of transactions that involve interests that
differ from those of the Borrower, Holdings and their respective Affiliates, and neither the
Administrative Agent nor any Lead Arranger has any obligation to disclose any
of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the
Administrative Agent and each of the Lead Arrangers have not provided and will not provide any
legal, accounting, regulatory or tax advice with respect to any of the transactions contemplated
hereby (including any amendment, waiver or other modification hereof or of any other Loan Document)
and each of the Borrower and Holdings has consulted its own legal, accounting, regulatory and tax
advisors to the extent it has deemed appropriate. Each of the Borrower and Holdings hereby waives
and releases, to the fullest extent permitted by law, any claims that it may have against the
Administrative Agent and either of the
Lead Arrangers with respect to any breach or alleged breach of agency or fiduciary duty
arising out of the Transaction.




Project Leap Bridge Credit Agreement





 









 









 1




          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as
of the date first above written.




	 	 	 	 	 	 	 
	 	 	CRICKET COMMUNICATIONS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dean M. Luvisa	 	 
	 

	 	Name:
	 	 

    Dean M. Luvisa
	 	 
	 

	 	Title:
	 	    Acting Chief Financial Officer	 	 
	 
	 	 	 	 	 	 
	 	 	LEAP WIRELESS INTERNATIONAL, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dean M. Luvisa	 	 
	 

	 	Name:
	 	 

    Dean M. Luvisa
	 	 
	 

	 	Title:
	 	    Acting Chief Financial Officer	 	 














 



2


	 	 	 	 	 	 	 
	 	 	CITICORP NORTH AMERICA, INC., as	 	 
	 	 	Administrative Agent	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ross MacIntyre	 	 
	 

	 	Name:
	 	 

    Ross MacIntyre
	 	 
	 

	 	Title:
	 	    Managing Director and Vice President	 	 














 




3


	 	 	 	 	 	 	 
	 	 	CITICORP NORTH AMERICA, INC., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Ross MacIntyre	 	 
	 

	 	Name:
	 	 

    Ross MacIntyre
	 	 
	 

	 	Title:
	 	    Managing Director and Vice President	 	 













 



4


	 	 	 	 	 	 	 
	 	 	GOLDMAN SACHS CREDIT PARTNERS L.P., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ William W. Archer	 	 
	 

	 	Name:
	 	 

    William W. Archer
	 	 
	 

	 	Title:
	 	    Managing Director	 	 













 



5


	 	 	 	 	 	 	 
	 	 	BANC OF AMERICA BRIDGE LLC, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Daniel J. Kelly	 	 
	 

	 	Name:
	 	 

    Daniel J. Kelly
	 	 
	 

	 	Title:
	 	    Managing Director	 	 













 



6


	 	 	 	 	 	 	 
	 	 	DEUTSCHE BANK AG CAYMAN ISLANDS	 	 
	 	 	BRANCH, as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ David Mayhew	 	 
	 

	 	Name:
	 	 

    David Mayhew
	 	 
	 

	 	Title:
	 	    Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Stephen Gayer	 	 
	 

	 	Name:
	 	 

    Stephen Gayer
	 	 
	 

	 	Title:
	 	    Director	 	 














 



7


	 	 	 	 	 	 	 
	 	 	MORGAN STANLEY SENIOR FUNDING, INC., as a Lender	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Andrew Earls	 	 
	 

	 	Name:
	 	 

    Andrew Earls
	 	 
	 

	 	Title:
	 	    Vice President