PROTECTION OF
CREDITORS AND SUCH PROCEEDING SHALL NOT HAVE BEEN DISMISSED PRIOR TO THE
TERMINATION DATE; (II) VENDOR MAKES AN ASSIGNMENT FOR THE BENEFIT OF CREDITORS
OR ISSUES EQUITY SECURITIES IN FULL OR PARTIAL SATISFACTION OF ANY INDEBTEDNESS
OF VENDOR THE TERMS OF WHICH DID NOT ORIGINALLY PROVIDE FOR SUCH SATISFACTION;
(III) VENDOR ADMITS IN WRITING THAT IT IS UNABLE TO PAY ITS DEBTS AS THE COME
DUE; (IV) VENDOR FAILS TO MAKE A PAYMENT OR RECEIVES A WAIVER OF A COVENANT
UNDER ITS CREDIT FACILITY WITH ANY VENDOR AFFILIATE, ITS BANK FACILITY OR ITS
SENIOR UNSECURED NOTES OR ANY SUCCESSOR DEBT INSTRUMENT TO THESE INSTRUMENTS; OR
(V) A WARNING IS ISSUED BY VENDOR'S AUDITOR THAT IT DOUBTS VENDOR'S ABILITY TO
CONTINUE AS A GOING CONCERN;
(B)
VENDOR MATERIALLY BREACHES ANY TERM, PROVISION, REPRESENTATION OR
WARRANTY OF THIS AGREEMENT AND SUCH BREACH OR DEFAULT IS NOT CURED TO NEXTEL'S
REASONABLE SATISFACTION WITHIN THE CURE PERIOD PROVIDED FOR IN SECTION 11.4;
(C)
VENDOR COMMITS A DESIGNATED DEFAULT;
(D)
VENDOR BREACHES ANY PROVISION OF SECTION 13.4;
(E)
VENDOR'S PERFORMANCE HEREUNDER IS DELAYED BY A FORCE MAJEURE FOR
MORE THAN TEN (10) BUSINESS DAYS;
(F)
ANY CHANGE IN CONTROL OF VENDOR BECAME EFFECTIVE WITHIN ONE
HUNDRED EIGHTY (180) CALENDAR DAYS PRIOR TO THE TERMINATION NOTICE.
11.2.2.
FOR CONVENIENCE.
NEXTEL MAY ALSO TERMINATE THIS AGREEMENT IN
WHOLE OR IN PART, BY A TERMINATION NOTICE TO VENDOR, AS PROVIDED IN
SECTION 11.4, FOR ITS CONVENIENCE (ANY SUCH TERMINATION THAT IS NOT A NEXTEL
TERMINATION FOR CAUSE, A "NEXTEL TERMINATION FOR CONVENIENCE").
IN THE EVENT
NEXTEL TERMINATES THE AGREEMENT PURSUANT TO THIS SECTION 11.2.2, AND VENDOR HAS
***Certain information in this exhibit has been omitted and filed separately
with the commission.
Confidential treatment has been requested with respect to the omitted portions.
25
PERFORMED ITS OBLIGATIONS, NEXTEL SHALL PAY TO VENDOR AN EXIT FEE AS PROVIDED IN
SECTION 6.2.2.
11.3.
TERMINATION BY VENDOR.
11.3.1.
VENDOR MAY TERMINATE THIS AGREEMENT, IF (I) NEXTEL HAS FAILED TO
MAKE A MATERIAL AMOUNT OF ANY PAYMENT DUE UNDER SECTION 6; (II) SUCH PAYMENT IS
NOT SUBJECT TO A GOOD FAITH DISPUTE; (III) NO EARLIER THAN THIRTY (30) CALENDAR
DAYS AFTER THE PAYMENT'S DUE DATE VENDOR GIVES WRITTEN NOTICE OF ITS INTENT TO
TERMINATE; AND (IV) NO LESS THAN SIXTY (60) ADDITIONAL CALENDAR DAYS PASS AFTER
THE GIVING OF SUCH NOTICE, SUCH PAYMENT NOT HAVING BEEN MADE.
11.4.
TERMINATION NOTICE.
ANY TERMINATION NOTICE SHALL BE GIVEN IN WRITING
AND SHALL SPECIFY A DATE FOR THE EFFECTIVENESS OF TERMINATION (THE "TERMINATION
DATE") WHICH SHALL BE NO SOONER THAN [ . . . * * * . . . ].
ANY TERMINATION
SHALL BE EFFECTIVE AT THE END OF THE CALENDAR DAY (12:00 MIDNIGHT EST) SPECIFIED
AS THE TERMINATION DATE UNLESS THE CURE IS COMPLETED PRIOR TO THE TERMINATION
DATE, OR THE TERMINATION NOTICE IS RESCINDED BY ADDITIONAL WRITTEN NOTICE.
11.5.
EFFECTS OF TERMINATION.
11.5.1.
REMEDIES.
SUBJECT TO THE PROVISIONS OF SECTION 9, IN THE EVENT
OF A TERMINATION FOR CAUSE,