Exhibit 10.32
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U.S. $10,000,000
CREDIT AGREEMENT
DATED AS OF JULY 19, 2005
AMONG
CLEARWIRE CORPORATION
AS THE BORROWER
AND
XXXX CANADA
AS THE LENDER
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TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS........................................................... 1
1.1 Defined Terms................................................... 1
1.2 Use of Defined Terms............................................ 5
1.3 Cross References................................................ 5
1.4 Accounting and Financial Determinations......................... 5
ARTICLE 2
COMMITMENTS, BORROWING PROCEDURES AND NOTES........................... 5
2.1 Term Loan Commitment............................................ 5
2.2 Term Loan Borrowing Procedure................................... 6
2.3 Term Notes...................................................... 6
ARTICLE 3
REPAYMENTS, PREPAYMENTS AND INTEREST.................................. 6
3.1 Repayments and Prepayments...................................... 6
3.2 Interest........................................................ 6
3.3 Post-Maturity and Default Rates................................. 6
3.4 Payment Dates................................................... 7
ARTICLE 4
TAXES AND OTHER PROVISIONS............................................ 7
4.1 Taxes........................................................... 7
4.2 Payments, Computations, Etc..................................... 8
ARTICLE 5
CONDITIONS TO TERM LOANS.............................................. 8
5.1 Conditions Precedent to Initial Borrowing....................... 8
5.2 Filing Statements............................................... 9
5.3 Security Agreements............................................. 9
5.4 Delivery of Term Notes.......................................... 9
5.5 Required Consents and Approvals................................. 9
5.6 Compliance with Warranties, No Default, Etc..................... 9
5.7 Satisfactory Legal Form......................................... 9
5.8 Conditions Precedent to All Borrowings.......................... 9
ARTICLE 6
REPRESENTATIONS AND WARRANTIES........................................ 10
6.1 Organization and Good Standing.................................. 10
6.2 Authorization and Validity of Agreement......................... 10
6.3 Conflicts with Other Agreements................................. 10
6.4 Authorizations.................................................. 11
6.5 Compliance with Law............................................. 11
6.6 Priority of Security Interests.................................. 11
(i)
TABLE OF CONTENTS
(continued)
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ARTICLE 7
COVENANTS............................................................. 11
7.1 Affirmative Covenants........................................... 11
7.2 Negative Covenants.............................................. 12
ARTICLE 8
EVENTS OF DEFAULT..................................................... 13
8.1 Listing of Events of Default.................................... 13
8.2 Action if Bankruptcy............................................ 14
8.3 Action if Other Event of Default................................ 15
ARTICLE 9
MISCELLANEOUS PROVISIONS.............................................. 15
9.1 Waivers, Amendments, Etc........................................ 15
9.2 Notices; Time................................................... 15
9.3 Payment of Costs and Expenses................................... 16
9.4 Indemnification................................................. 16
9.5 Survival........................................................ 16
9.6 Severability.................................................... 16
9.7 Headings........................................................ 17
9.8 Execution in Counterparts, Effectiveness, Etc................... 17
9.9 Governing Law; Entire Agreement................................. 17
9.10 Successors and Assigns.......................................... 17
9.11 Other Transactions.............................................. 17
9.12 Consent to Jurisdiction......................................... 17
9.13 Waiver of Jury Trial............................................ 17
9.14 Payments in Other Currencies.................................... 18
9.15 Language........................................................ 18
EXHIBIT A FORM OF SECURITY AGREEMENTS
EXHIBIT B FORM OF PROMISSORY NOTE
EXHIBIT C FORM OF BORROWING REQUEST
(ii)
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of July 19, 2005, is between CLEARWIRE
CORPORATION, a Delaware corporation (the "BORROWER"), and XXXX CANADA, a
Canadian corporation (the "LENDER").
WITNESSETH:
WHEREAS, the Borrower has requested that the Lender extend credit to the
Borrower for the purpose of funding capital expenditures and start-up costs
associated with the deployment of VoIP Services (as defined herein);
WHEREAS, the Borrower desires to obtain pursuant to this Agreement, from the
Lender, a Term Loan Commitment pursuant to which Term Loans may be made to the
Borrower in a maximum aggregate principal amount not to exceed U.S.$ 10,000,000,
with the proceeds of the Term Loans to be used for the purposes set forth in the
first recital;
WHEREAS, the Term Loans (at the time of creation thereof) are and shall be
secured by the hypothecs and security interests granted by the Borrower in
favour of the Lender pursuant to the provisions of the Security Agreements; and
WHEREAS, the Lender is willing to make Term Loans available to the Borrower on
the terms and subject to the conditions hereinafter set forth;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINED TERMS
The following terms when used in this Agreement, including its preamble and
recitals, shall, except where the context otherwise requires, have the following
meanings (such meanings to be equally applicable to the singular and plural
forms thereof):
"AFFILIATE" means any Person, however organized, that, directly or
indirectly, Controls, is Controlled by or is under common Control with the
applicable party. For purposes of this Agreement "CONTROL," and variations
of "CONTROL" means:
(a) ownership of a majority of the voting power of those classes of voting
stock entitled to vote in the election of directors, whether as a
result of equity ownership interests, voting agreements or otherwise;
or
(b) ownership of a majority of the beneficial interests in income and
capital of an entity other than a corporation.
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"AGREEMENT" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, restated or otherwise modified from time to time and in
effect on such date.
"AUTHORIZED OFFICER" means those officers of the Borrower whose signatures
and incumbency shall have been certified to the Lender pursuant to the
terms of the Master Supply Agreement or as updated by the Borrower from
time to time and similarly certified.
"BORROWER" is defined in the preamble and includes its successors and
assigns.
"BORROWER'S ACCOUNT" means the following bank account:
Bank: Bank of America, California
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000-0000
A/C Name: Clearwire Corporation
Account No.: 0000000000
ABA: 000000000
"BORROWING" means Term Loans made by the Lender.
"BORROWING DATE" is defined in Section 2.2.
"BORROWING REQUEST" means a Term Loan request and certificate to be duly
executed and delivered by an Authorized Officer substantially in the form
of Exhibit C hereto.
"BUSINESS Day" means any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be closed in
Xxxxxxx, Xxxxxxxxxx xx Xxxxxxxx, Xxxxxx.
"CANADA" means Canada and any province or territory thereof.
"DEFAULT" means any Event of Default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"DISPOSITION" (or similar words such as "DISPOSE") means any sale,
transfer, lease, contribution or other conveyance (including by way of
merger or pledge) of, or the granting of options, warrants or other rights
to, any of the Secured Property to any Person other than the Borrower in a
single transaction or series of transactions.
"EFFECTIVE DATE" means the date this Agreement becomes effective pursuant
to Section 9.8.
"EVENT OF DEFAULT" is defined in Section 8.1.
"FILING STATEMENTS" is defined in Section 5.2.
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"GOVERNMENTAL AUTHORITY" means the government of Canada or the United
States, any other nation or any political subdivision thereof, whether
state, provincial, territorial or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other Person
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"HEREIN," "HEREOF," "HERETO," "HEREUNDER" and similar terms contained in
this Agreement or in any other Loan Document refer to this Agreement or
such other Loan Document as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"INDEMNIFIED LIABILITIES" is defined in Section 9.4.
"INDEMNIFIED PARTIES" is defined in Section 9.4.
"LENDER" is defined in the preamble and includes its successors and
assigns.
"LIEN" means mortgages, pledges, liens, hypothecs, charges, security
agreements or other encumbrances or other arrangements that in substance
secure payment or performance of an obligation, statutory and other
non-consensual liens or encumbrances and includes lease, title retention
agreements, restrictions, development or similar agreements, rights-of-way,
title defect, adverse claims or interests, trusts or deemed trusts, options
to acquire or the interests of a vendor or lessor under any conditional
sale agreement or capital lease, and "Lien" means any one of such Liens.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Term Notes and
each other agreement, certificate, document or instrument delivered in
satisfaction of the requirements hereof or of any other Loan Document, in
each case as amended, supplemented, restated or otherwise modified from
time to time.
"MASTER SUPPLY AGREEMENT" means the master supply agreement among BCE
Nexxia Corporation, Xxxx Canada, the Borrower and Clearwire LLC dated as of
March 16, 2005.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or the Secured
Property;
(b) the rights and remedies of the Lender under any Loan Document;
(c) the ability of the Borrower to perform its Obligations under any Loan
Document; or
(d) the validity or enforceability of any Loan Document.
"OBLIGATIONS" means all obligations (monetary or otherwise, whether
absolute or contingent, matured or unmatured) of the Borrower arising under
or in connection with a Loan Document, including the principal of, and
premium, if any, and interest on, the
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Term Loans (including interest accruing during (or which would have accrued
but for) the pendency of any proceeding of the type described in Section
8.1(d), whether or not allowed in such proceeding).
"PERMITTED LIEN" means a Lien permitted pursuant to Section 7.2(a).
"PERSON" means any individual, entity or organization, and includes an
individual, a corporation, a partnership, a trust, an unincorporated
organization or association, the government of a country or any political
subdivision thereof, or any agency or department of any such government,
and the executors, administrators or other legal representatives of an
individual in such capacity.
"SECURED PROPERTY" means those assets of the Borrower subject to a security
interest or hypothec in favour of the Lender granted pursuant to any
Security Agreement.
"SECURITY AGREEMENTS" means the security agreements and movable hypothec
agreements to be duly executed and delivered by an Authorized Officer
pursuant to the terms of this Agreement, substantially in the form of
Exhibit A hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"STATED MATURITY DATE" means, with respect to all Term Loans, the third
anniversary of the Effective Date.
"SUBSIDIARY" means, with respect to any Person, any other Person of which
more than 50% of the outstanding Voting Securities of such other Person
(irrespective of whether at the time securities of any other class or
classes of such other Person shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned
or controlled by such Person, by such Person and one or more other
Subsidiaries of such Person, or by one or more other Subsidiaries of such
Person.
"TAXES" means all present and future income, stamp or other taxes, duties,
levies, imposts, charges, assessments, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, and all interest, penalties or similar liabilities
with respect thereto.
"TERM LOANS" is defined in Section 2.1.
"TERM LOAN COMMITMENT" means the obligation of the Lender to make Term
Loans pursuant to Section 2.1.
"TERM LOAN COMMITMENT AMOUNT" means, on any date, US$10,000,000, exclusive
of any interest payable on the Term Loans.
"TERM NOTE" means a promissory note of the Borrower payable to the Lender,
in substantially the form of Exhibit B hereto (as such promissory note may
be amended, endorsed or otherwise modified from time to time), evidencing
the aggregate indebtedness of the Borrower to the Lender resulting from
outstanding Term Loans, and
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also means all other promissory notes issued by the Borrower from time to
time in substitution therefor or renewal thereof.
"TERMINATION DATE" means the date on which all Obligations have been
indefeasibly paid in full in cash and all Term Loan Commitments have
terminated.
"UNITED STATES" or "U.S." means the United States of America and any state
or district thereof.
"US$" means lawful money of the United States.
"U.S. GAAP" is defined in Section 1.4.
"VOIP SERVICES" has the meaning ascribed to such term in the Master Supply
Agreement.
"VOTING SECURITIES" means, with respect to any Person, securities of any
class or kind ordinarily having the power to vote for the election of
directors or other voting members of the governing body of such Person.
1.2 USE OF DEFINED TERMS
Unless otherwise defined or the context otherwise requires, terms for which
meanings are provided in this Agreement shall have such meanings when used in
each other Loan Document and each notice and other communication delivered from
time to time in connection with any Loan Document.
1.3 CROSS REFERENCES
Unless otherwise specified, references in a Loan Document to any Article or
Section are references to such Article or Section of such Loan Document, and
references in any Article, Section or definition to any clause are references to
such clause of such Article, Section or definition.
1.4 ACCOUNTING AND FINANCIAL DETERMINATIONS
Unless otherwise specified, all accounting terms used in each Loan Document
shall be interpreted, and all accounting determinations and computations
thereunder shall be made, in accordance with generally accepted accounting
principles in the United States of America ("U.S. GAAP").
ARTICLE 2
COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1 TERM LOAN COMMITMENT
The Lender agrees that it will make loans (the "TERM LOANS") to the Borrower in
an amount equal to the amount requested by the Borrower pursuant to the
procedures set forth in Section 2.2 provided that (a) the aggregate principal
amount of all Term Loans made hereunder shall not
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exceed the Term Loan Commitment Amount and (b) Borrowing Requests may not be
sent after July 19,2007. No amounts paid or prepaid with respect to Term Loans
may be reborrowed.
2.2 TERM LOAN BORROWING PROCEDURE
By delivering a Borrowing Request to the Lender on or before 11:00 a.m.,
Montreal time, two Business Days prior to the date of the proposed Borrowing
(the "BORROWING DATE"), the Borrower will irrevocably request that a Borrowing
be made on or before 12:00 noon, Montreal time, on the Borrowing Date. The
Lender shall make funds in the amount of the Borrowing available to the Borrower
by wire transfer to the Borrower's Account on the Borrowing Date.
2.3 TERM NOTES
The Borrower agrees that, upon the execution of this Agreement, the Borrower
will execute and deliver to the Lender a Term Note evidencing the Term Loans
made by, and payable to the order of, the Lender in a maximum principal amount
equal to the Term Loan Commitment Amount. The Borrower hereby irrevocably
authorizes the Lender to make (or cause to be made) appropriate notations on the
grid attached to the Term Note (or on any continuation of such grid), which
notations, if made, shall evidence, inter alia, the date of and the outstanding
principal amount of the Term Loans evidenced thereby. Such notations shall be
conclusive and binding on the Borrower absent manifest error; provided, however,
that the failure of the Lender to make any such notations shall not limit or
otherwise affect any Obligations of the Borrower.
ARTICLE 3
REPAYMENTS, PREPAYMENTS AND INTEREST
3.1 REPAYMENTS AND PREPAYMENTS
The Borrower shall repay in full the unpaid principal amount of each Term Loan
upon the Stated Maturity Date. Prior thereto:
(a) From time to time on any Business Day, the Borrower may make a
voluntary prepayment, without premium or penalty, in whole or in part,
of the outstanding principal amount of any Term Loans, together with
such interest as may have accrued, as provided below, on the principal
amount being prepaid.
(b) Immediately upon any acceleration of the Stated Maturity Date of any
Term Loans pursuant to Section 8.2 or Section 8.3, the Borrower shall
repay all Term Loans, together with such interest or other amounts as
may have accrued with respect thereto.
3.2 INTEREST
Interest on the outstanding principal amount of the Term Loans shall accrue at a
rate of 7% per annum and be payable in accordance with Section 3.4.
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3.3 POST-MATURITY AND DEFAULT RATES
After the date upon which the principal amount of any Term Loan is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise),
or after any other monetary Obligation of the Borrower shall have become due and
payable, or upon the occurrence and continuance of an Event of Default, the
Borrower shall pay interest (after as well as before judgment) on all
Obligations at a rate per annum equal to the rate prescribed in Section 3.2 plus
2% per annum.
3.4 PAYMENT DATES
Interest accrued on each Term Loan shall be payable upon the earlier of:
(a) the Stated Maturity Date;
(b) the date of any payment or prepayment, in whole or in part, of
principal outstanding on such Term Loan on the principal amount so
paid or prepaid; and
(c) the date that the Stated Maturity Date is accelerated pursuant to
Section 8.2 or Section 8.3.
Interest accrued on Term Loans or other monetary Obligations after the date such
amount is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise) shall be payable upon demand.
ARTICLE 4
TAXES AND OTHER PROVISIONS
4.1 TAXES
The Borrower covenants and agrees as follows with respect to Taxes:
(a) Any and all payments made by the Borrower to the Lender under each
Loan Document shall be made without setoff, counterclaim or other
defence, and free and clear of, and without deduction or withholding
for or on account of, any Taxes, unless so required by applicable law
Or regulation. Following the imposition of any Tax on any payment by
the Borrower in consequence of which the Borrower pays an additional
amount under this Section 4.1(a) or makes an indemnity payment under
Section 4.1(c), the Lender shall use commercially reasonable efforts
to claim a refund of any such Tax or a credit against or relief or
remission for or repayment of any Taxes otherwise payable by it
because of the payment of such Tax which in Lender's sole opinion
(acting in good faith) is both identifiable and quantifiable by it
without requiring Lender or its professional advisors to expend a
commercially unreasonable amount of time or incur a commercially
unreasonable cost in so identifying or quantifying (any of the
foregoing, to the extent so identifiable and quantifiable, being
referred to as a "TAX CREDIT"), and the Lender shall, to the extent
that it can do so without prejudice to the retention of the relevant
Tax Credit and subject to Borrower's
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obligation to repay promptly on demand by Lender the amount to Lender
if the relevant Tax Credit is subsequently disallowed or cancelled,
reimburse the Borrower promptly after receipt of such Tax Credit by
Lender with such amount as Lender shall in its sole opinion (acting in
good faith) have concluded to be the amount or value to it of the
relevant Tax Credit (but only to the extent of the indemnity payments
made, or additional amounts paid, by the Borrower under this Section
with respect to the Taxes giving rise to such Tax Credit). In the
event that any Taxes imposed by any Governmental Authority are
required to be deducted or withheld from any payment made by the
Borrower to the Lender under any Loan Document, then:
(i) the amount payable by the Borrower to the Lender shall be
increased by such additional amounts as may be necessary so that,
after withholding or deduction for, or on account of, such Taxes
(including for greater certainty Taxes required to be deducted or
withheld from such additional amounts), the Lender receives an
amount that is not less than the full amount provided for in such
Loan Document; and
(ii) the Borrower shall withhold the full amount of such Taxes from
such payment (as increased pursuant to clause (a)(i)) and shall
pay such withheld Taxes to the Governmental Authority imposing
such Taxes in accordance with applicable law.
(b) As promptly as practicable after the withholding of any Taxes pursuant
to clause (a)(ii), and in any event within 45 days after the date on
which such Taxes are due to the applicable Governmental Authority, the
Borrower shall furnish, or cause to be furnished, to the Lender a copy
of an official receipt (or a certified copy thereof) evidencing the
payment of such Taxes to the applicable Governmental Authority.
(c) The Borrower shall indemnify the Lender for any incremental Taxes that
may become payable by the Lender as a result of any failure of the
Borrower to pay any Taxes imposed by any Governmental Authority that
are required to be deducted and withheld from any payment made by the
Borrower under any Loan Document when due to the appropriate
Governmental Authority or to deliver to the Lender documentation
evidencing the payment of Taxes, all as required pursuant to clause
(a) or (b). Such indemnification shall be made within 30 days after
the date the Lender makes written demand therefor and provides to the
Borrower evidence of such Taxes having become payable. The Borrower
acknowledges that any payment made to the Lender or to any
Governmental Authority in respect of the indemnification obligations
of the Borrower provided in this clause shall constitute a payment in
respect of which the provisions of clause (a) and this clause shall
apply.
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4.2 PAYMENTS, COMPUTATIONS, ETC.
Unless otherwise expressly provided in a Loan Document, all payments by the
Borrower pursuant to each Loan Document shall be made by the Borrower to the
Lender without setoff, deduction or counterclaim not later than 5:00 p.m.
(Montreal time) on the date due in same day or immediately available funds to
such account as the Lender shall specify from time to time by notice to the
Borrower. Funds received after that time shall be deemed to have been received
by the Lender on the next succeeding Business Day. All interest and fees shall
be computed on the basis of the actual number of days (including the first day
but excluding the last day) occurring during the period for which such interest
or fee is payable over a year comprised of 365 or 366 days, as applicable.
Payments due on a day other than a Business Day shall be made on the next
succeeding Business Day and such extension of time shall be included in
computing interest and fees in connection with that payment.
ARTICLE 5
CONDITIONS TO TERM LOANS
5.1 CONDITIONS PRECEDENT TO INITIAL BORROWING
The obligation of the Lender to fund the initial Borrowing hereunder is subject
to the prior or concurrent satisfaction of each of the conditions precedent set
forth in Sections 5.2 through 5.7, which conditions shall be deemed satisfied or
waived upon the funding of such initial Borrowing.
5.2 FILING STATEMENTS
All financing statements, applications for registration in respect of hypothecs
and other filings required under Canadian personal property security legislation
and termination statements or discharge statements required under Canadian
movable personal property security legislation and pursuant to the Loan
Documents (collectively, the "FILING STATEMENTS") shall have been delivered to
the Lender for filing in order to perfect and render opposable against third
parties the hypothecs and security interests granted by the Borrower in favour
of the Lender pursuant to the Security Agreements and to give effect to the
provisions of Sections 6.6 and 7.2(a).
5.3 SECURITY AGREEMENTS
The Lender shall have received each of the Security Agreements duly executed and
delivered by an Authorized Officer and all Liens granted to the Lender
thereunder shall be duly perfected to provide the Lender a security interest in
and a Lien on the Secured Property free and clear of other Liens except
Permitted Liens.
5.4 DELIVERY OF TERM NOTES
The Lender shall have received the Term Note duly executed and delivered by an
Authorized Officer.
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5.5 REQUIRED CONSENTS AND APPROVALS
All required material consents and approvals shall have been duly obtained and
be in full force and effect with respect to the transactions contemplated hereby
from any Person whose consent or approval is so required to effect the
transactions contemplated hereby.
5.6 COMPLIANCE WITH WARRANTIES, NO DEFAULT, ETC.
At the time of the making of the Term Loans the following statements shall be
true and correct:
(a) the representations and warranties set forth in each Loan Document
shall, in each case, be true and correct; and
(b) no Default shall have then occurred and be continuing.
5.7 SATISFACTORY LEGAL FORM
All documents executed or submitted pursuant hereto by or on behalf of the
Borrower shall be reasonably satisfactory in form and substance to the Lender
and its counsel, and the Lender and its counsel shall have received all
information, approvals, opinions, documents or instruments as the Lender or its
counsel may reasonably request.
5.8 CONDITIONS PRECEDENT TO ALL BORROWINGS
(a) The obligation of the Lender to fund Borrowings or otherwise give
effect to any Borrowing Request hereunder is subject to the conditions
precedent that on the date of such Borrowing Request and Borrowing,
(x) the representations and warranties contained in Article 6 are true
and correct on such date, all as though made on and as of such date
except for those changes to the representations and warranties which
have been disclosed to and consented to by the Lender and any
representation or warranty which is stated to be made as of a certain
date; and (y) no event or condition has occurred or is continuing or
would result from such Borrowing or giving effect to such Borrowing
Request, which constitutes a Default or Event of Default.
(b) Each of the giving of any Borrowing Request by the Borrower and the
acceptance by the Borrower of any Borrowing shall be deemed to
constitute a representation and warranty by the Borrower that, on the
date of such Borrowing Request or Borrowing, as the case may be, and
after giving effect thereto and to the application of any proceeds
therefrom, the statements set forth in Sections 5.2 through 5.7 are
true and correct.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
In order to induce the Lender to enter into this Agreement and to make the Term
Loans hereunder, the Borrower represents and warrants to the Lender as set forth
in Sections 6.1 through 6.6 of this Article.
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6.1 ORGANIZATION AND GOOD STANDING
The Borrower is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation.
6.2 AUTHORIZATION AND VALIDITY OF AGREEMENT
The Borrower has full corporate power and authority to execute and deliver the
Loan Documents and to perform its obligations hereunder. The execution, delivery
and performance by it of the Loan Documents have been duly and validly
authorized and no additional corporate authorization or consent is required in
connection with the execution, delivery and performance by it of the Loan
Documents. The Loan Documents have been duly and validly executed and constitute
valid and legally binding obligations, enforceable against the Borrower in
accordance with their terms, subject to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general principles of equity.
6.3 CONFLICTS WITH OTHER AGREEMENTS
The execution of the Loan Documents by the Borrower and the performance of its
obligations thereunder does not and will not violate or conflict with the terms
and conditions of any other agreement, arrangement or understanding entered into
by it.
6.4 AUTHORIZATIONS
The Borrower has obtained and shall maintain in full force during the term of
this Agreement such federal, state and local authorizations, including, but not
limited to, from any Governmental Authority, as are necessary to perform its
obligations under the Loan Documents.
6.5 COMPLIANCE WITH LAW
The Borrower shall at all times comply with all applicable laws, rules, and
regulations relating to the execution, delivery, and performance of the Loan
Documents.
6.6 PRIORITY OF SECURITY INTERESTS
The Liens granted to the Lender in the Secured Property are first priority
security interests and first ranking hypothecs and no Liens exist on the Secured
Property, other than the Permitted Liens.
ARTICLE 7
COVENANTS
7.1 AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with the Lender that until the Termination
Date has occurred, the Borrower will perform or cause to be performed the
obligations set forth below:
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(a) MAINTENANCE OF EXISTENCE; COMPLIANCE WITH LAWS, ETC. The Borrower
will:
(i) do all things necessary to remain duly organized, validly
existing and in good standing in its jurisdiction of organization
and maintain all requisite authority to conduct its business in
each jurisdiction in which its business is conducted, except in
each case where the failure to take such action could not
reasonably be expected to have a Material Adverse Effect;
(ii) do all things reasonably necessary to renew, extend and continue
in effect all authorizations which may at any time and from time
to time be necessary to operate and own the business and assets
of the Borrower in compliance with all applicable laws and
regulations, except in each case where the failure to so comply
could not reasonably be expected to have a Material Adverse
Effect;
(iii) obtain and maintain all licenses, permits and approvals
necessary or desirable to carry on business and make, on or
before when due, all filings required by all Governmental
Authorities, except in each case where the failure to take such
action could not reasonably be expected to have a Material
Adverse Effect; and
(iv) comply with all applicable laws, rules, regulations, agreements
and orders, except where the failure to take such action could
not reasonably be expected to have a Material Adverse Effect.
(b) BOOKS AND RECORDS. The Borrower will keep books and records in
accordance with U.S. GAAP which present fairly the financial condition
of the Borrower in all material respects as at the date thereof.
(c) USE OF PROCEEDS. The Borrower will apply the proceeds of the Term
Loans in accordance with the first recital herein.
(d) FUTURE SECURITY, ETC. The Borrower will execute any documents, Filing
Statements, agreements and instruments, and take all further action
(including filing mortgages) that may be required under applicable
law, or that the Lender may reasonably request, in order to effectuate
the transactions contemplated by the Loan Documents and in order to
grant, preserve, protect and perfect the validity and first priority
and ranking (subject to Permitted Liens) of the Liens created or
intended to be created by the Loan Documents on the Secured Property.
7.2 NEGATIVE COVENANTS
The Borrower covenants and agrees with the Lender that until the Termination
Date has occurred, the Borrower will perform or cause to be performed the
obligations set forth below.
(a) LIENS. The Borrower will not create, incur, assume or permit to exist
any Lien upon any of the Secured Property, whether now owned or
hereafter acquired, except (a) Liens securing payment of the
Obligations, (b) Liens attaching to the
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Secured Property by operation of law, or (c) purchase money Liens (to
the extent that the acquisition of any Secured Property has not been
financed with proceeds of the Term Loans) (collectively, the
"PERMITTED LIENS").
(b) CONSOLIDATION, MERGER, ETC. The Borrower will not, without the prior
consent of the Lender, or as permitted under the Master Supply
Agreement, liquidate or dissolve, consolidate with, or merge into or
with, any other Person unless, in either case, the resulting or
surviving Person assumes all of the Borrower's obligations under each
of the Loan Documents.
(c) PERMITTED DISPOSITIONS. Except as permitted under the Master Supply
Agreement, the Borrower will not Dispose of any of the Secured
Property to any Person in one transaction or series of transactions
unless:
(i) the Borrower delivers notice of such Disposition to the Lender
and such other documents relating thereto as the Lender may
request at least 15 days prior to the date thereof; and
(ii) the Lender has delivered to the Borrower its written consent to
such Disposition.
(d) RESTRICTIVE AGREEMENTS, ETC. The Borrower will not enter into any
agreement prohibiting or limiting:
(i) the creation or assumption of any Lien upon the Secured Property,
whether now owned or hereafter acquired; or
(ii) the ability of the Borrower to amend or otherwise modify any Loan
Document;
and any such restrictions in any Loan Document shall not be deemed to
be a breach of this Section 7.2(d).
ARTICLE 8
EVENTS OF DEFAULT
8.1 LISTING OF EVENTS OF DEFAULT
Each of the following events or occurrences described in this Article shall
constitute an "EVENT OF DEFAULT."
(a) NON-PAYMENT OF OBLIGATIONS. The Borrower shall default in the payment
or prepayment when due of (i) any principal on any Term Loan; or (ii)
any interest on any Term Loan or any other monetary Obligation and
such default shall continue unremedied for a period of 3 Business Days
after notice from the Lender.
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(b) BREACH OF WARRANTY. Any representation or warranty of the Borrower
made or deemed to be made in any Loan Document (including any
certificates delivered pursuant to Article 5) is or shall be incorrect
when made or deemed to have been made.
(c) NON-PERFORMANCE OF CERTAIN COVENANTS AND OBLIGATIONS. The Borrower
shall fail to perform or observe any of its covenants under the Loan
Documents (other than as provided in Section 8.1(a) and 8.1(d)) and
any such failure shall continue unremedied for a period of 30 days
after becoming aware of such breach.
(d) BANKRUPTCY, INSOLVENCY, ETC. The Borrower shall:
(i) become insolvent or generally fail to pay, or admit in writing
its insolvency or inability generally to pay debts as they become
due;
(ii) apply for, consent to, or acquiesce in the appointment of a
trustee, receiver or other custodian for any substantial part of
the property of any thereof, or make a general assignment for the
benefit of creditors;
(iii) in the absence of the application, consent or acquiescence
referred to in clause (ii), permit or suffer to exist the
appointment of a trustee, receiver or other custodian for a
substantial part of the property of any thereof, and such
trustee, receiver or other custodian shall not be discharged
within 60 days; provided that the Borrower hereby expressly
authorizes the Lender to appear in any court conducting any
relevant proceeding during such 60-day period to preserve,
protect and defend its rights under the Loan Documents;
(iv) permit or suffer to exist the commencement of any bankruptcy,
reorganization, debt arrangement or other case or proceeding
under any bankruptcy or insolvency law or any dissolution,
winding up or liquidation proceeding, in respect thereof, and, if
any such case or proceeding is not commenced by the Borrower,
such case or proceeding shall be consented to or acquiesced in by
the Borrower, or shall result in the entry of an order for relief
or shall remain for 30 days undismissed; provided that the
Borrower hereby expressly authorizes the Lender to appear in
any court conducting any such case or proceeding during such
30-day period to preserve, protect and defend their rights under
the Loan Documents; or
(v) take any action authorizing, or in furtherance of, any of the
foregoing.
(e) IMPAIRMENT OF SECURITY, ETC. Any Loan Document or any portion of any
Lien granted thereunder shall (except in accordance with its terms),
in whole or in part, terminate, cease to be effective or cease to be
the legally valid, binding and enforceable obligation of the Borrower;
the Borrower shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability; or, except
as permitted under any Loan Document, any Lien
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securing any Obligation shall, in whole or in part, cease to be a
perfected first priority Lien.
(f) PAYMENT OF OTHER DEBT. The Borrower (i) fails to make any payment or
payments when due (after the expiration of any applicable grace period
(or any payments in the aggregate)) to any Person in relation to any
indebtedness where the principal amount of such payments not paid when
due are in excess of U.S.$10,000,000, or (ii) defaults in the
observance or performance of any other agreement of which the
principal amount then outstanding is in excess of U.S.$10,000,000, or
of any instrument or agreement evidencing, securing or relating to
such indebtedness, or any other event shall occur or condition exist,
the effect of which default, event or other condition is to cause, or
to permit the holder of such indebtedness to cause such indebtedness
to become due prior to its stated maturity date.
8.2 ACTION IF BANKRUPTCY
If any Event of Default described in clauses (i) through (v) of Section 8.1(d)
shall occur, the Stated Maturity Date shall automatically be accelerated and the
outstanding principal amount of all outstanding Term Loans and all other
Obligations shall automatically be and become immediately due and payable,
without notice or demand to any Person.
8.3 ACTION IF OTHER EVENT OF DEFAULT
If any Event of Default (other than any Event of Default described in clauses
(i) through (v) of Section 8.1(d)) shall occur for any reason, whether voluntary
or involuntary, and be continuing, the Lender may by notice to the Borrower
accelerate the Stated Maturity Date and declare all or any portion of the
outstanding principal amount of the Term Loans and other Obligations to be due
and payable, whereupon the full unpaid amount of such Term Loans and other
Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 WAIVERS, AMENDMENTS, ETC.
The provisions of each Loan Document may from time to time be amended, modified
or waived, if such amendment, modification or waiver is in writing and consented
to by the Borrower and the Lender.
No failure or delay on the part of the Lender in exercising any power or right
under any Loan Document shall operate as a waiver thereof, nor shall any single
or partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on the Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by the Lender under any
Loan Document shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar
-16-
waiver or approval thereafter to be granted hereunder. All remedies shall be
cumulative, and not exclusive of any and all other remedies, whether provided
pursuant to the Loan Documents or at law or otherwise.
9.2 NOTICES; TIME
All notices and other communications provided under each Loan Document shall be
in writing or by facsimile and addressed, delivered or transmitted, if to the
Borrower or the Lender, to each applicable Person at its address or facsimile
number set forth below its signature in this Agreement, or at such other address
or facsimile number as may be designated by such party in a notice to the other
parties. Any notice, if mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid courier service, shall be deemed given
when received; any notice, if transmitted by facsimile, shall be deemed given
when the confirmation of transmission thereof is received by the transmitter.
The parties hereto agree that delivery of an executed counterpart of a signature
page to this Agreement and each other Loan Document by facsimile shall be
effective as delivery of an original executed counterpart of this Agreement or
such other Loan Document. Unless otherwise indicated, all references to the time
of a day in a Loan Document shall refer to Montreal time.
9.3 PAYMENT OF COSTS AND EXPENSES
The Borrower agrees to pay on demand all expenses of the Lender and its agents
(including the reasonable fees, out-of-pocket expenses and other charges of
counsel to the Lender who may be retained by or on behalf of the Lender) in
connection with the enforcement of any rights under any Loan Document.
The Borrower further agrees to pay, and to save the Lender harmless from all
liability for, any stamp or other Taxes which may be payable in connection with
the execution or delivery of each Loan Document, the making of the Term Loans or
the issuance of the Term Notes. The Borrower also agrees to reimburse the Lender
upon demand for all reasonable out-of-pocket expenses (including reasonable
attorneys' fees and legal expenses of counsel) in connection with (x) the
negotiation of any restructuring or "work-out" with the Borrower, whether or not
consummated, of any Obligations, and (y) the enforcement of any Obligations.
9.4 INDEMNIFICATION
In consideration of the execution and delivery of this Agreement and the
financing arrangements contemplated hereby, the Borrower hereby indemnifies,
exonerates and holds the Lender and its officers, directors, employees and
agents (collectively, the "INDEMNIFIED PARTIES") free and harmless from and
against any and all actions, causes of action, suits, losses, costs, liabilities
and damages, and expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys' fees and
disbursements, whether incurred in connection with actions between or among the
parties hereto or the parties hereto and third parties (collectively, the
"INDEMNIFIED LIABILITIES"), incurred by the Indemnified Parties or any of them
as a result of, or arising out of, or relating to the entering into and
performance of any Loan Document by any of the Indemnified Parties, except for
Indemnified Liabilities arising for the account of a
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particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrower agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
9.5 SURVIVAL
The obligations of the Borrower under Sections 4.1, 9.3 and 9.4, shall in each
case survive any assignment from the Lender to another lender (in the case of
Sections 9.3 and 9.4) and the occurrence of the Termination Date. The
representations and warranties made by the Borrower in each Loan Document shall
survive the execution and delivery of such Loan Document, until the Termination
Date.
9.6 SEVERABILITY
Any provision of any Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such provision and such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
9.7 HEADINGS
The various headings of each Loan Document are inserted for convenience only and
shall not affect the meaning or interpretation of such Loan Document or any
provisions thereof.
9.8 EXECUTION IN COUNTERPARTS, EFFECTIVENESS, ETC.
This Agreement may be executed by the parties hereto in several counterparts,
each of which shall be an original and all of which shall constitute together
but one and the same agreement. This Agreement shall become effective when
counterparts hereof executed on behalf of the Borrower and the Lender shall have
been received by the Lender and the Borrower, respectively.
9.9 GOVERNING LAW; ENTIRE AGREEMENT
This Agreement is a contract made under and shall be governed by and construed
in accordance with the laws of the Province of Quebec and the federal laws of
Canada applicable in the Province of Quebec. The Loan Documents constitute the
entire understanding among the parties hereto with respect to the subject matter
thereof and supersede any prior agreements, written or oral, with respect
thereto.
9.10 SUCCESSORS AND ASSIGNS
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 the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of the Lender.
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9.11 OTHER TRANSACTIONS
Nothing contained herein shall preclude the Lender from engaging in any
transaction, in addition to those contemplated by the Loan Documents, with the
Borrower or any of its Affiliates in which the Borrower or such Affiliate is not
restricted hereby from engaging with any other Person.
9.12 CONSENT TO JURISDICTION
Each Party irrevocably submits to the non-exclusive jurisdiction of the courts
of competent jurisdiction in the Province of Quebec located in the City of
Montreal in respect of any action or proceeding relating in any way to this
Agreement.
The Parties shall not raise any objection to the venue of any proceedings in any
such court, including the objection that the proceedings have been brought in an
inconvenient forum.
9.13 WAIVER OF JURY TRIAL
THE LENDER, AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH, EACH LOAN DOCUMENT.
9.14 PAYMENTS IN OTHER CURRENCIES
Any payment on account of an amount payable hereunder or under any other Loan
Document in a particular currency (the "PROPER CURRENCY") made to or for the
account of the Lender in a currency (the "OTHER CURRENCY") other than the proper
currency, whether pursuant to a judgment or order of any court or tribunal or
otherwise and whether arising from the conversion of any amount denominated in
one currency into any other currency for the purpose of making or filing a
claim, obtaining an order or judgment, enforcing an order or judgment or
otherwise, shall constitute a discharge of the Borrower's obligation under this
Agreement or the applicable Loan Document only to the extent of the amount of
the proper currency which the Lender is able, in the normal course of its
business within one Business Day after receipt by it of such payment, to
purchase with the amount of the other currency so received. If the amount of the
proper currency which the Lender is so able to purchase is less than the amount
of the proper currency originally due to it under the this Agreement or the
applicable Loan Document, the Borrower shall indemnify and save the Lender
harmless from and against any loss or damage arising as a result of such
deficiency. This indemnity shall constitute an obligation separate and
independent from any other obligation contained in this Agreement or any other
Loan Document, shall give rise to a separate and independent cause of action,
shall apply irrespective of any indulgence granted by the Lender from time to
time, shall continue in full force and effect notwithstanding any judgment or
order for a liquidated sum in respect of an amount due under this Agreement or
any applicable Loan Document or under any judgment or order and shall not
terminate as a result of any order of foreclosure or taking in payment made in
respect of any Security Agreement given to or for the benefit of the Lender.
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9.15 LANGUAGE
The parties confirm that it is their wish that this Agreement as well as any
other documents relating thereto, including without limitation notices,
schedules and authorizations, have been and shall be drawn up in the English
language only. Les signataires confirment leur volonte que la presente
convention de meme que tous les documents s'y rattachant, y compris tout avis,
annexe et autorisation, soient rediges en anglais seulement.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the day and year
first above written.
CLEARWIRE CORPORATION, as the Borrower
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: CFO
Address: 0000 Xxxx Xxxxxxxxxx Xxxx XX
Xxxxx 000
Xxxxxxxx, XX 00000
Fax: (###-##-####
Attention: Xxxxxxxx Xxxxx
with a copy to:
Fax: (000)000-0000
Attention: Law Department
and with a copy to:
Address: Xxxxx Xxxxxx Xxxxxxxx
0000 Xxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
-00-
XXXX XXXXXX, as the Lender
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name:
----------------------------------
Title: Chief Legal Officer
By: N/A
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 0000, xxx xx xx Xxxxxxxxxxx
Xxxxx Xxxxxxxx, Xxxxxx X0X 0X0
Fax: (000) 000-0000
Attention: Chief Legal Officer
EXHIBIT A
FORM OF SECURITY AGREEMENTS
EXHIBIT B
FORM OF PROMISSORY NOTE
EXHIBIT C
FORM OF BORROWING REQUEST
EXHIBIT B
PROMISSORY NOTE
MONTREAL, QUEBEC
DATE: JULY 19,2005
FOR VALUE RECEIVED the undersigned unconditionally promises to pay, to XXXX
CANADA (the "LENDER") or to its order, at its offices at Montreal, Quebec, in
lawful money of the United States of America, the principal amount, together
with interest thereon, of each and all loans made by the Lender to the
undersigned, all as recorded by the Lender on the grid on the reverse hereof
and, if applicable, on the grid(s) subsequently numbered and attached hereto as
schedules (collectively the "GRID") in accordance with the terms of a credit
agreement (the "CREDIT AGREEMENT") dated as of July 19, 2005 between the Lender
and the undersigned, as said agreement may be amended from time to time.
The principal amount (including any overdue interest) of each loan evidenced
hereunder shall bear interest, both before and after demand or maturity (as
applicable), default and judgment and shall be paid in accordance with the terms
of and at the annual rate set forth in the Credit Agreement.
The undersigned hereby waives demand, presentment for payment, notice of
non-payment, notice of protest of this note and the right to assert in any
action or proceeding with regard to this note any set-offs or counterclaims
which the undersigned may have. No failure or delay by the Lender in exercising
any right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right exclude the further exercise thereof or the
exercise of any other right.
Other than in cases of manifest error, the undersigned agrees that the entries
by the Lender on the Grid of advances and payments shall be prima facie proof of
the matters so recorded. The failure to record any amount on the Grid, however,
shall not limit the obligation of the undersigned to repay the principal amount
of the loans under the Credit Agreement together with interest accruing thereon
or limit the right of the Lender to recover any amount due and payable.
This note shall be governed by and construed in accordance with the laws of the
Province of Quebec and the laws of Canada applicable therein.
CLEARWIRE CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
THIS IS SCHEDULE NO. 1 TO A PROMISSORY NOTE OF CLEARWIRE CORPORATION TO XXXX
CANADA DATED THE 19th DAY OF JULY, 2005.
LOANS AND PAYMENT
TERM LOAN
AMOUNT AMOUNT TOTAL PRINCIPAL NOTATION
DATE ADVANCED PAID OUTSTANDING MADE BY
---- -------- ------ --------------- --------
EXHIBIT C
FORM OF BORROWING REQUEST
[Date]
Xxxx Canada
0000 Xx Xx Xxxxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Chief Legal Officer
Ladies and Gentlemen:
The undersigned, Clearwire Corporation, refers to the credit agreement
dated as of July 19, 2005 (as amended, supplemented, replaced or restated from
time to time, the "CREDIT AGREEMENT," the terms defined therein being used
herein as therein defined) between Clearwire Corporation and Xxxx Canada, and
hereby gives you notice pursuant to Section 2.2 of the Credit Agreement that the
undersigned hereby requests a Borrowing under the Credit Agreement, and, in that
connection sets forth below the information relating to such Borrowing as
required by Section 2.2 of the Credit Agreement:
(a) The date of the Borrowing, being a Business Day, is _____.
(b) The aggregate amount of the Borrowing is _____.
The undersigned hereby certifies and confirms that on the date of this Borrowing
Request and the date of the corresponding Borrowing, and immediately after
giving effect thereto and to the application of any proceeds therefrom, (x) the
representations and warranties contained in Article 6 of the Credit Agreement
are true and correct on and as of each such date, all as though made on and as
of each such date, except for any representation and warranty which is stated to
be made as of a certain date, and (y) no event or condition has occurred and is
continuing, or would result from such Borrowing or giving effect to this
Borrowing Request, which constitutes a Default or an Event of Default.
The undersigned further confirms and certifies to the Lender that the proceeds
of the proposed Borrowing will be used solely for the purposes permitted by the
Credit Agreement.
Yours truly,
CLEARWIRE CORPORATION
Per:
-----------------------------------
Authorized Signatory
AMENDMENT TO CREDIT AGREEMENT
This Amendment to Credit Agreement (this "AMENDMENT"), dated as of February___,
2006 is between CLEARWIRE CORPORATION, a Delaware corporation (the "BORROWER"),
and XXXX CANADA, a Canadian corporation (the "LENDER").
RECITALS
A. The Borrower and the Lender are parties to a Credit Agreement made as of
July 19, 2005 (the "EXISTING CREDIT AGREEMENT").
B. The Borrower has requested amendments to certain provisions of the Existing
Credit Agreement.
C. The Lender has agreed to amend the provisions of the Existing Credit
Agreement that the Borrower has requested be amended on the terms and
subject to the conditions contained in this Amendment.
FOR VALUE RECEIVED, the parties agree as follows:
SECTION 1 - INTERPRETATION
1.1 DEFINITIONS
Capitalized terms used and not defined in this Amendment have the meanings given
to them in the Existing Credit Agreement and, for the purposes of this amendment
only, the term "AMENDMENT DATE" has the meaning given to that term in Section
5.1 of this Amendment.
1.2 INCORPORATION INTO EXISTING CREDIT AGREEMENT
The Existing Credit Agreement and this Amendment shall henceforth be read
together and shall have the effect as if all the provisions of such agreements
were contained in one agreement (the Existing Credit Agreement, as amended by
this Amendment, the "AMENDED CREDIT AGREEMENT").
SECTION 2 - AMENDMENT OF ARTICLE 1 OF THE EXISTING CREDIT AGREEMENT
2.1 AMENDMENT OF SECTION 1.1 - DEFINED TERMS
On and after the Amendment Date, Section 1.1 of the Existing Credit Agreement is
amended by deleting the definition of "EFFECTIVE DATE" and replacing it with the
following:
"EFFECTIVE DATE" means July 19, 2005.
-2-
SECTION 3 - AMENDMENT OF ARTICLE 7 OF THE EXISTING CREDIT AGREEMENT
3.1 AMENDMENT OF SECTION 7.2(A) - LIENS
On and after the Amendment Date, Section 7.2(a) of the Existing Credit Agreement
is amended and restated as follows:
LIENS. The Borrower will not create, incur, assume or permit to exist
any Lien upon any of the Secured Property, whether now owned or
hereafter acquired, except (a) Liens securing payment of the
Obligations, (b) Liens attaching to the Secured Property by operation
of law, (c) purchase money Liens (to the extent that the acquisition
of any Secured Property has not been financed with proceeds of the
Term Loans), or (d) Liens in favour of a lender to Borrower or its
Affiliates which are subordinate in rank to the Liens in favour the
Lender (collectively, the "PERMITTED LIENS").
3.2 AMENDMENT OF SECTION 7.2(C) - PERMITTED DISPOSITIONS
On or after the Amendment Date, Section 7.2(c) of the Existing Credit Agreement
is amended by inserting the following at the end of such Section:
Notwithstanding the foregoing, the Borrower may Dispose of any Secured
Property to a wholly-owned Subsidiary of the Borrower provided that,
prior to any such Disposition, such Subsidiary delivers a guarantee of
the Borrower's Obligations hereunder and such other security
agreements, hypothecs and other documentation as the Lender may
reasonably require to ensure that the Lender retains a first priority
security interest and first ranking hypothec with respect to all of
the Secured Property. Upon the receipt of such guarantee and security
agreements, hypothecs and other documentation, the Lender agrees to
file such financing change statements or other termination statements
or discharges as are necessary to register in the public record the
termination of Lender's Liens against the Borrower with respect to the
Secured Property so Disposed of.
SECTION 4 - REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES TRUE AND CORRECT
The Borrower represents and warrants to the Lender that, after giving effect to
this Amendment on the Amendment Date, each of the representations and warranties
of the Borrower contained in the Existing Credit Agreement and each of the other
Loan Documents is true and correct on and as of the Amendment Date as if made on
such date, except to the extent any such representation or warranty expressly
relates to an earlier date and except for changes expressly permitted or
expressly contemplated by the Existing Credit Agreement.
4.2 NO DEFAULT OR EVENT OF DEFAULT
The Borrower represents and warrants to the Lender that, after giving effect to
this Amendment on the Amendment Date, no Default or Event of Default shall be
continuing.
-3-
SECTION 5 - CONDITIONS PRECEDENT
5.1 CONDITIONS PRECEDENT TO THIS AMENDMENT BECOMING EFFECTIVE
This Amendment shall become effective as of the date on which three original
copies of this Amendment, or counterparts hereof, shall have been (i) duly
executed by the Borrower and the Lender, and (ii) delivered to the Borrower and
the Lender (such date is referred to herein as the "AMENDMENT DATE").
SECTION 6 - MISCELLANEOUS
6.1 RATIFICATION AND CONFIRMATION OF LOAN DOCUMENTS
Except as specifically amended by this Amendment, the Existing Credit Agreement
and all other Loan Documents shall remain in full force and effect and are
hereby ratified and confirmed. The parties agree that, by entering into and
performing their respective obligations hereunder, this Amendment shall not
constitute a novation and shall in no way adversely affect or impair the
priority of Liens granted by the Loan Documents.
6.2 RESERVATION OF RIGHTS AND REMEDIES
This Amendment shall not, except as expressly provided herein, operate as a
waiver of any right or remedy of the Lender under any of the Loan Documents, nor
constitute a waiver of any provisions of the Loan Documents. The Lender reserves
all of its rights to proceed to enforce its rights and remedies at any time and
from time to time in connection with any and all Defaults or Events of Default
now existing or hereafter arising.
6.3 COUNTERPARTS
This Amendment may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of which shall together constitute
one agreement. Delivery of an executed counterpart of a signature page of this
Amendment by facsimile shall be as effective as delivery of a manually executed
counterpart of this Amendment.
6.4 LOAN DOCUMENT
This Amendment constitutes a Loan Document.
[INTENTIONALLY LEFT BLANK]
-4-
The parties have executed this Amendment.
CLEARWIRE CORPORATION, as
Borrower
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: CFO
XXXX CANADA, as Lender
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President & Treasurer
