10-Q/A
10-Q/A0001283699--12-312020Q2true 0001283699 2020-01-01 2020-06-30 0001283699 2020-08-03 xbrli:shares
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
FORM
10-Q
 
 
(Amendment No. 1)
 
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 2020
or
 
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from
                    
to
                    
Commission File Number:
1-33409
 
 
 
T-MOBILE US, INC.
(Exact name of registrant as specified in its charter)
 
 
 
Delaware
 
20-0836269
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification No.)
12920 SE 38th Street
Bellevue, Washington
(Address of principal executive offices)
98006-1350
(Zip Code)
(425)
378-4000
(Registrant’s telephone number, including area code)
 
 
Securities registered pursuant to Section 12(b) of the Act:
 
Title of each class
 
Trading
Symbol
 
Name of each exchange
on which registered
Common Stock, par value $0.00001 per share
 
TMUS
 
The NASDAQ Stock Market LLC
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes  ☒    No  ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation
S-T
(§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).    Yes  ☒    No  ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule
12b-2
of the Exchange Act.
 
Large accelerated filer      Accelerated filer  
Non-accelerated
filer
     Smaller reporting company  
     Emerging growth company  
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐
Indicate by check mark whether the registrant is a shell company (as defined in Rule
12b-2
of the Exchange Act).    Yes  ☐    No  ☒
Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.
 
Class    Shares Outstanding as of August 3, 2020  
Common Stock, par value $0.00001 per share
     1,237,808,926
 
 
 

EXPLANATORY NOTE
T-Mobile
US, Inc. (the “Company”) is filing this Amendment No. 1 on Form
10-Q
(this “Amendment No. 1”) to amend the Company’s Quarterly Report on Form
10-Q
for the quarterly period ended June 30, 2020 (the “Form
10-Q”),
as originally filed with the Securities and Exchange Commission (the “Commission”) on August 6, 2020 (the “Original Filing Date”). This Amendment No. 1 is being filed solely to (a) include Exhibits 10.1 through 10.33 in the Exhibit Index, which were inadvertently omitted from the Exhibit Index to the Form
10-Q,
(b) re-file
Exhibits 4.7, 4.13, 4.19, 4.27, 4.36 and 22.1 (collectively, the
“Re-Filed
Exhibits”) in order to correct minor formatting and other errors in the exhibits as originally filed due to file corruption discovered after filing the Form
10-Q
and (c) file Exhibits 10.3 through 10.8, 10.13 through 10.15, 10.25 through 10.26, and 10.29 through 10.30, which were inadvertently omitted from the Form
10-Q
(collectively, the “Filed Exhibits”). Additionally, in connection with the filing of this Amendment No. 1, the Company is including new certifications of the Company’s chief executive officer and chief financial officer pursuant to Rule
13a-14(a)
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company is not including new certifications pursuant to Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. 1350) as no financial statements are being filed with this Amendment No. 1.
Except for the corrected Exhibit Index, the
Re-Filed
Exhibits and the Filed Exhibits, this Amendment No. 1 does not amend the Form
10-Q
in any way and does not modify or otherwise update any disclosures contained in the Form
10-Q,
which continues to speak as of the Original Filing Date (including, but not limited to, any forward-looking statements made in the Form
10-Q,
which have not been revised to reflect events that occurred or facts that became known after the date of the Form
10-Q,
and such forward-looking statements should be read in their historical context). Accordingly, this Amendment No. 1 should be read in conjunction with the Form
10-Q
and the Company’s other filings made with the Commission.
 
2

Item 6. Exhibits
 
         
Incorporated by Reference
    
Exhibit No.
  
Exhibit Description
  
Form
  
Date of First
Filing
  
Exhibit
Number
  
Filed
Herein
2.1
   First Amendment, dated as of June 17, 2020, to the Asset Purchase Agreement, dated as of July 26, 2019, by and among T-Mobile US, Inc., Sprint Corporation and DISH Network Corporation.   
8-K
   6/17/2020    2.1   
3.1
   Fifth Amended and Restated Certificate of Incorporation of T-Mobile US, Inc.   
8-K
   4/1/2020    3.1   
3.2
   Seventh Amended and Restated Bylaws of T-Mobile US, Inc.   
8-K
   4/1/2020    3.2   
4.1
   Indenture, dated as of April 9, 2020 by and among T-Mobile USA, Inc., the Company and Deutsche Bank Trust Company Americas, as trustee.   
8-K
   4/13/2020    4.1   
4.2
   First Supplemental Indenture, dated as of April 9, 2020, by and among T-Mobile USA, Inc., the Guarantors (as defined therein) and Deutsche Bank Trust Company Americas, as trustee, including the Form of 3.500% Senior Secured Note due 2025.   
8-K
   4/13/2020    4.2   
4.3
   Second Supplemental Indenture, dated as of April 9, 2020, by and among T-Mobile USA, Inc., the Guarantors (as defined therein) and Deutsche Bank Trust Company Americas, as trustee, including the Form of 3.750% Senior Secured Note due 2027.   
8-K
   4/13/2020    4.3   
4.4
   Third Supplemental Indenture, dated as of April 9, 2020, by and among T-Mobile USA, Inc., the Guarantors (as defined therein) and Deutsche Bank Trust Company Americas, as trustee, including the Form of 3.875% Senior Secured Note due 2030.   
8-K
   4/13/2020    4.4   
4.5
   Fourth Supplemental Indenture, dated as of April 9, 2020, by and among T-Mobile USA, Inc., the Guarantors (as defined therein) and Deutsche Bank Trust Company Americas, as trustee, including the Form of 4.375% Senior Secured Note due 2040.   
8-K
   4/13/2020    4.5   
4.6
   Fifth Supplemental Indenture, dated as of April 9, 2020, by and among T-Mobile USA, Inc., the Guarantors (as defined therein) and Deutsche Bank Trust Company Americas, as trustee, including the Form of 4.500% Senior Secured Note due 2050.   
8-K
   4/13/2020    4.6   
4.7
   Sixth Supplemental Indenture, dated as of May 7, 2020, by and among T-Mobile USA, Inc., the guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.             X
4.8
   Seventh Supplemental Indenture, dated as of June 24, 2020 by and among T-Mobile USA, Inc., the Guarantors (as defined therein) and Deutsche Bank Trust Company Americas, as trustee, including the Form of 1.500% Senior Secured Note due 2026.   
8-K
   6/26/2020    4.2   
4.9
   Eighth Supplemental Indenture, dated as of June 24, 2020, by and among T-Mobile USA, Inc., the Guarantors (as defined therein) and Deutsche Bank Trust Company Americas, as trustee, including the Form of 2.050% Senior Secured Note due 2028.   
8-K
   6/26/2020    4.3   
4.10
   Ninth Supplemental Indenture, dated as of June 24, 2020, by and among T-Mobile USA, Inc., the Guarantors (as defined therein) and Deutsche Bank Trust Company Americas, as trustee, including the Form of 2.550% Senior Secured Note due 2031.   
8-K
   6/26/2020    4.4   
 
3

4.11
   Registration Rights Agreement, dated as of June 24, 2020, by and among T-Mobile USA, Inc., the Initial Guarantors (as defined therein) and Credit Suisse Securities (USA) LLC, Deutsche Bank Securities Inc. and Wells Fargo Securities, LLC, as representatives of the Initial Purchasers (as defined therein).   
8-K
   6/26/2020    4.5   
4.12
   Forty-First Supplemental Indenture, dated as of April 1, 2020, by and among T-Mobile USA, Inc., T-Mobile US, Inc., the other guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.   
10-Q
   8/6/2020    4.12   
4.13
   Forty-Second Supplemental Indenture, dated as of May 7, 2020, by and among T-Mobile USA, Inc., T-Mobile US, Inc., the other guarantors party thereto, and Deutsche Bank Trust Company Americas, as trustee.             X
4.14
   Indenture, dated as of October 1, 1998, by and among Sprint Capital Corporation, Sprint Corporation and The Bank of New York Mellon Trust Company, N.A. (as successor to Bank One, N.A.)   
10-Q

(SEC File
No. 001-04721)
   11/2/1998    4(b)   
4.15
   First Supplemental Indenture, dated as of January 15, 1999, by and among Sprint Capital Corporation, Sprint Corporation and The Bank of New York Mellon Trust Company, N.A. (as successor to Bank One, N.A.)   
8-K

(SEC File
No. 001-04721)
   2/3/1999    4(b)   
4.16
   Second Supplemental Indenture, dated as of October 15, 2001, by and among Sprint Capital Corporation, Sprint Corporation and The Bank of New York Mellon Trust Company, N.A. (as successor to Bank One, N.A.)   
8-K

(SEC File
No. 001-04721)
   10/29/2001    99   
4.17
   Third Supplemental Indenture, dated as of September 11, 2013, by and among Sprint Corporation, Sprint Capital Corporation, Sprint Communications, Inc. and The Bank of New York Mellon Trust Company, N.A. (as successor to Bank One, N.A.)   
8-K

(SEC File
No. 001-04721)
   9/11/2013    4.5   
4.18
   Fourth Supplemental Indenture, dated as of May 18, 2018, by and among Sprint Capital Corporation, Sprint Communications, Inc., and The Bank of New York Mellon Trust Company, N.A. (as successor to Bank One, N.A.)   
8-K

(SEC File
No. 001-04721)
   5/18/2018    4.1   
4.19
   Fifth Supplemental Indenture, dated as of April 1, 2020, by and among Sprint Capital Corporation, Sprint Communications, Inc., Sprint Corporation, T-Mobile US, Inc., T-Mobile USA, Inc. and The Bank of New York Mellon Trust Company, N.A. (as successor to Bank One, N.A.), as trustee.             X
4.20
   Indenture, dated as of November 20, 2006, by and between Sprint Nextel Corporation and The Bank of New York Mellon Trust Company, N.A.   
8-K

(SEC File
No. 001-04721)
   11/9/2011    4.1   
4.21
   First Supplemental Indenture, dated as of November 9, 2011, by and between Sprint Nextel Corporation and The Bank of New York Mellon Trust Company, N.A.   
8-K

(SEC File
No. 001-04721)
   11/9/2011    4.2   
4.22
   Fifth Supplemental Indenture, dated as of August 14, 2012, by and between Sprint Nextel Corporation and The Bank of New York Mellon Trust Company, N.A.   
8-K

(SEC File
No. 001-04721)
   8/14/2012    4.1   
4.23
   Sixth Supplemental Indenture, dated as of November 14, 2012, by and between Sprint Nextel Corporation and The Bank of New York Mellon Trust Company, N.A.   
8-K

(SEC File
No. 001-04721)
   11/14/2012    4.1   
4.24
   Seventh Supplemental Indenture, dated as of November 20, 2012, by and between Sprint Nextel Corporation and The Bank of New York Mellon Trust Company, N.A.   
8-K

(SEC File
No. 001-04721)
   11/20/2012    4.1   
 
4

4.25
   Eighth Supplemental Indenture, dated as of September 11, 2013, by and among Sprint Corporation, Sprint Communications, Inc. and The Bank of New York Mellon Trust Company, N.A.   
8-K

(SEC File
No. 001-04721)
   9/11/2013    4.4   
4.26
   Thirteenth Supplemental Indenture, dated as of May 14, 2018, by and between Sprint Communications, Inc. and The Bank of New York Mellon Trust Company, N.A., as trustee.   
8-K

(SEC File
No. 001-04721)
   5/14/2018    4.2   
4.27
   Sixteenth Supplemental Indenture, dated as of April 1, 2020, by and among Sprint Communications, Inc., T-Mobile US, Inc., T-Mobile USA, Inc. and The Bank of New York Mellon Trust Company, N.A., as trustee.             X
4.28
   Indenture, dated as of September 11, 2013, by and between Sprint Corporation and The Bank of New York Mellon Trust Company, N.A.   
8-K

(SEC File
No. 001-04721)
   9/11/2013    4.1   
4.29
   First Supplemental Indenture, dated as of September 11, 2013, by and among Sprint Corporation, Sprint Communications, Inc. and The Bank of New York Mellon Trust Company, N.A.   
8-K

(SEC File
No. 001-04721)
   9/11/2013    4.2   
4.30
   Second Supplemental Indenture, dated as of September 11, 2013, by and among Sprint Corporation, Sprint Communications, Inc. and The Bank of New York Mellon Trust Company, N.A.   
8-K

(SEC File
No. 001-04721)
   9/11/2013    4.3   
4.31
   Third Supplemental Indenture, dated as of December 12, 2013, by and among Sprint Corporation, Sprint Communications, Inc. and The Bank of New York Mellon Trust Company, N.A.   
8-K

(SEC File
No. 001-04721)
   12/12/2013    4.1   
4.32
   Fourth Supplemental Indenture, dated as of February 24, 2015, by and among Sprint Corporation, Sprint Communications, Inc. and The Bank of New York Mellon Trust Company, N.A.   
8-K

(SEC File
No. 001-04721)
   2/24/2015    4.1   
4.33
   Fifth Supplemental Indenture, dated as of February 22, 2018, by and among Sprint Corporation, Sprint Communications, Inc., and The Bank of New York Mellon Trust Company, N.A.   
8-K

(SEC File
No. 001-04721)
   2/22/2018    4.1   
4.34
   Sixth Supplemental Indenture, dated as of May 14, 2018, by and between Sprint Corporation and The Bank of New York Mellon Trust Company, N.A.   
8-K

(SEC File
No. 001-04721)
   5/14/2018    4.1   
4.35
   Seventh Supplemental Indenture, dated as of February 3, 2020, by and among Sprint Corporation, Sprint Communications, Inc., the subsidiary guarantors party thereto, and the Bank of New York Mellon Trust Company, N.A., as trustee.   
8-K

(SEC File
No. 001-04721)
   2/3/2020    4.2   
4.36
   Eighth Supplemental Indenture, dated as of April 1, 2020, by and among Sprint Corporation, Sprint Communications, Inc., T-Mobile US, Inc., T-Mobile USA, Inc. and The Bank of New York Mellon Trust Company, N.A., as trustee.             X
4.37
   First Supplemental Indenture, dated as of March 12, 2018, by and among Sprint Spectrum Co LLC, Sprint Spectrum Co II LLC, Sprint Spectrum Co III LLC and Deutsche Bank Trust Company Americas, as trustee and securities intermediary.   
8-K

(SEC File
No. 001-04721)
   3/12/2018    4.1   
4.38
   Second Supplemental Indenture, dated as of June 6, 2018, to the Indenture, dated as of October 27, 2016, by and among Sprint Spectrum Co LLC, Sprint Spectrum Co II LLC, Sprint Spectrum Co III LLC and Deutsche Bank Trust Company Americas as trustee.   
8-K

(SEC File
No. 001-04721)
   6/6/2018    4.1   
 
5

4.39
   Third Supplemental Indenture, dated as of December 10, 2018, by and among Sprint Spectrum Co LLC, Sprint Spectrum Co II LLC, Sprint Spectrum Co III LLC and Deutsche Bank Trust Company Americas, as trustee and securities intermediary.   
8-K

(SEC File
No. 001-04721)
   1/31/2019    4.1   
4.40
   Indenture, dated as of October 27, 2016, among Sprint Spectrum Co LLC, Sprint Spectrum Co II LLC, Sprint Spectrum Co III LLC and Deutsche Bank Trust Company Americas, as trustee and securities intermediary.   
8-K

(SEC File
No. 001-04721)
   11/2/2016    4.1   
4.41
   Series 2016-1 Supplement, dated as of October 27, 2016, among Sprint Spectrum Co LLC, Sprint Spectrum Co II LLC, Sprint Spectrum Co III LLC and Deutsche Bank Trust Company Americas, as trustee and securities intermediary.   
8-K

(SEC File
No. 001-04721)
   11/2/2016    4.2   
4.42
   First Supplemental Indenture to the Series 2016-1 Supplement, dated as of March 21, 2018 by and among Sprint Spectrum Co LLC, Sprint Spectrum Co II LLC, Sprint Spectrum Co III LLC and Deutsche Bank Trust Company Americas, as trustee and securities intermediary.   
8-K

(SEC File
No. 001-04721)
   3/21/2018    10.2   
4.43
   Series 2018-1 Supplement, dated as of March 21, 2018 by and among Sprint Spectrum Co LLC, Sprint Spectrum Co II LLC, Sprint Spectrum Co III LLC and Deutsche Bank Trust Company Americas, as trustee and securities intermediary.   
8-K

(SEC File
No. 001-04721)
   3/21/2018    10.1   
4.44
   Registration Rights Agreement, dated as of April 9, 2020, by and among T-Mobile USA, Inc., the Initial Guarantors (as defined therein) and Barclays Capital Inc., Deutsche Bank Securities Inc. and Goldman Sachs & Co. LLC, as representatives of the Initial Purchasers (as defined therein).   
8-K
   4/13/2020    4.7   
4.45
   Form of Transferable Subscription Rights Certificate.   
8-K
   6/26/2020    4.2   
4.46
   Proxy, Lock-Up and ROFR Agreement, dated as of June 22, 2020, among Deutsche Telekom, Claure Mobile LLC and Raul Marcelo Claure.    13D/A    6/24/2020    49   
10.1
   Second Amended and Restated Stockholders’ Agreement, dated as of June 22, 2020, by and among T-Mobile US, Inc., Deutsche Telekom AG and SoftBank Group Corp.    3ASR    6/22/2020    4.2   
10.2
   Amendment No. 1, dated as of April 1, 2020, to the License Agreement, dated as of April 30, 2013, by and between T-Mobile US, Inc. and Deutsche Telekom AG.   
8-K
   4/1/2020    10.3   
10.3
   Credit Agreement, dated as of April 1, 2020, by and among T-Mobile USA, Inc., the issuing banks and lenders party thereto, and Deutsche Bank AG New York Branch, as administrative agent.             X
10.4
   Guarantee Agreement, dated as of April 1, 2020, by and among T-Mobile US, Inc., T-Mobile USA, Inc. and the other guarantors party thereto in favor of Deutsche Bank AG New York Branch, as administrative agent.             X
10.5
   Bridge Term Loan Credit Agreement, dated as of April 1, 2020, by and among T-Mobile USA, Inc., the lenders party thereto, and Goldman Sachs Bank USA, as administrative agent.             X
10.6
   Guarantee Agreement, dated as of April 1, 2020, by and among T-Mobile US, Inc., T-Mobile USA, Inc. and the other guarantors party thereto in favor of Goldman Sachs Bank USA, as administrative agent.             X
10.7
   Collateral Agreement, dated as of April 1, 2020, by and among T-Mobile US, Inc., T-Mobile USA, Inc. and the other grantors party thereto in favor of Deutsche Bank Trust Company Americas, as collateral trustee.             X
 
6

10.8
   Collateral Trust and Intercreditor Agreement, dated as of April 1, 2020, by and among T-Mobile US, Inc., T-Mobile USA, Inc., the other grantors party thereto, Deutsche Bank AG New York Branch, as first priority agent, the holder representatives party thereto and Deutsche Bank Trust Company Americas, as collateral trustee.            
X
 
 
 
 
 
10.9
   Guarantee and Collateral Agreement, dated October 27, 2016, among Deutsche Bank Trust Company Americas, Sprint Spectrum PledgeCo LLC, Sprint Spectrum PledgeCo II LLC, Sprint Spectrum PledgeCo III LLC, Sprint Spectrum License Holder LLC, Sprint Spectrum License Holder II LLC and Sprint Spectrum License Holder III LLC.   
8-K

(SEC File
No. 001-04721)
   11/2/2016    10.1   
10.10
   Intra-Company Spectrum Lease Agreement, dated as of October 27, 2016, among Sprint Spectrum License Holder LLC, Sprint Spectrum License Holder II LLC and Sprint Spectrum License Holder III LLC, Sprint Communications, Inc., Sprint Intermediate HoldCo LLC, Sprint Intermediate HoldCo II LLC, Sprint Intermediate HoldCo III LLC and the guarantors.   
8-K

(SEC File
No. 001-04721)
   11/2/2016    10.2   
10.11
   First Amendment to Intra-Company Spectrum Lease Agreement, dated as of March 12, 2018, among Sprint Spectrum License Holder, LLC, Sprint Spectrum License Holder II LLC and Sprint Spectrum License Holder III LLC, Sprint Communications, Inc., Sprint Intermediate HoldCo LLC, Sprint Intermediate HoldCo II LLC, Sprint Intermediate HoldCo III LLC.   
8-K

(SEC File
No. 001-04721)
   3/12/2018    10.1   
10.12
   Second Amendment to Intra-Company Spectrum Lease Agreement, dated as of June 6, 2018, among Sprint Spectrum License Holder, LLC, Sprint Spectrum License Holder II LLC and Sprint Spectrum License Holder III LLC, Sprint Communications, Inc., Sprint Intermediate HoldCo LLC, Sprint Intermediate HoldCo II LLC, Sprint Intermediate HoldCo III LLC, Sprint Corporation and the subsidiary guarantors.   
8-K

(SEC File
No. 001-04721)
   6/6/2018    10.1   
10.13
   Guarantee Assumption Agreement, dated as of April 1, 2020, by and among Sprint Spectrum License Holder, LLC, Sprint Spectrum License Holder II LLC, Sprint Spectrum License Holder III LLC, T-Mobile, T-Mobile USA and certain subsidiary guarantors.             X
 
 
 
 
 
10.14
   Guarantee Assumption Agreement, dated as of May 7, 2020, by and among Sprint Spectrum License Holder, LLC, Sprint Spectrum License Holder II LLC, Sprint Spectrum License Holder III LLC and certain subsidiary guarantors.             X
 
 
 
 
 
10.15
   Third Amendment to the Third Amended and Restated Receivables Purchase and Administration Agreement, dated as of April 30, 2020, among T-Mobile Handset Funding LLC, as transferor, T-Mobile Financial LLC, as servicer, T-Mobile US, Inc. and T-Mobile USA, Inc., jointly and severally as guarantors, Royal Bank of Canada, as Administrative Agent, and the various funding Agents party to the RPAA.             X
 
 
 
 
 
10.16*
   Sprint Corporation 2007 Omnibus Incentive Plan.   
8-K

(SEC File
No. 001-04721)
   9/20/2013    10.2   
10.17*
   Sprint Corporation Amended and Restated 2015 Omnibus Incentive Plan.   
10-Q

(SEC File
No. 001-04721)
   2/6/2017    10.1   
10.18*
   Form of Sprint Corporation Evidence of Award 2014 Long-term Incentive Plan Stock Options.   
8-K

(SEC File
No. 001-04721)
   8/11/2015    Exhibit B to 10.1   
 
7

10.19*
   Form of Sprint Corporation Evidence of Award Turnaround Incentive Award Restricted Stock Units.   
8-K

(SEC File
No. 001-04721)
   8/11/2015    Exhibit E to 10.1   
10.20*
   Form of Sprint Corporation Evidence of Award 2014 Long-term Incentive Plan Stock Options.   
10-Q

(SEC File
No. 001-04721)
   8/8/2014    10.12   
10.21*
   Form of Sprint Corporation Award Agreement (awarding restricted stock units) under the Sprint Corporation 2015 Amended and Restated Omnibus Incentive Plan.   
10-Q

(SEC File
No. 001-04721)
   8/3/2017    10.5   
10.22*
   Form of Sprint Corporation Award Agreement (awarding performance-based restricted stock units) under the Sprint Corporation 2015 Amended and Restated Omnibus Incentive Plan.   
10-Q

(SEC File
No. 001-04721)
   8/3/2017    10.6   
10.23*
   Form of Sprint Corporation Award Agreement (awarding stock options) under the Sprint Corporation 2015 Amended and Restated Omnibus Incentive Plan.   
10-Q

(SEC File
No. 001-04721)
   8/3/2017    10.3   
10.24*
   Form of Sprint Corporation Turnaround Incentive Award Agreement (awarding performance-based restricted stock units) under the Sprint Corporation 2015 Amended and Restated Omnibus Incentive Plan.   
10-Q

(SEC File
No. 001-04721)
   11/1/2016    10.1   
10.25*
   Form of Restricted Stock Unit Award Agreement (Time-Vesting) for Executive Officers under the Sprint Corporation 2015 Amended and Restated Omnibus Incentive Plan.             X
10.26*
   Form of Restricted Stock Unit Award Agreement (Performance-Vesting) for Executive Officers under the Sprint Corporation 2015 Amended and Restated Omnibus Incentive Plan.             X
10.27*
   Form of Award Agreement (awarding restricted stock units) under the Sprint Corporation Amended and Restated 2015 Omnibus Incentive Plan for non-employee directors.   
10-Q

(SEC File
No. 001-04721)
   11/9/2015    10.5   
10.28*
   Sprint Corporation Form of Election to Defer Delivery of Shares Subject to RSUs (Outside Directors).   
10-K

(SEC File
No. 001-04721)
   5/17/2016    10.95   
10.29*
   Consulting Agreement by and between the Company and J. Braxton Carter effective as of July 1, 2020.             X
10.30*
   Amended Director Compensation Program effective as of May 1, 2013 (amended June 4, 2014 and further amended on June 1, 2015, June 16, 2016, June 13, 2017, June 13, 2019 and June 4, 2020).             X
10.31
   Master Framework Agreement, dated as of June 22, 2020, by and among SoftBank Group Corp., SoftBank Group Capital Ltd, Delaware Project 4 L.L.C., Delaware Project 6 L.L.C., Claure Mobile LLC, Deutsche Telekom AG, T-Mobile US, Inc. and T-Mobile Agent LLC.   
8-K
   6/26/2020    10.1   
10.32
   Share Repurchase Agreement, dated as of June 22, 2020, between SoftBank Group Capital Ltd and T-Mobile US, Inc.   
8-K
   6/26/2020    10.2   
10.33
   Share Purchase Agreement, dated as of June 22, 2020, among Raul Marcelo Claure, Claure Mobile LLC and T-Mobile US, Inc.    13D/A    6/25/2020    15   
22.1
   List of Guarantor Subsidiaries             X
31.1
   Certifications of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.             X
 
8

31.2
   Certifications of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.             X
32.1**
   Certification of Chief Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.   
10-Q
   8/6/2020    32.1   
32.2**
   Certification of Chief Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.   
10-Q
   8/6/2020    32.2   
101.INS
   XBRL Instance Document - the instance document does not appear in the Interactive Data File because its XBRL tags are embedded within the Inline XBRL document.            
101.SCH
   XBRL Taxonomy Extension Schema Document.   
10-Q
   8/6/2020    101.SCH    X
101.CAL
   XBRL Taxonomy Extension Calculation Linkbase Document.   
10-Q
   8/6/2020    101.CAL    X
101.DEF
   XBRL Taxonomy Extension Definition Linkbase Document.   
10-Q
   8/6/2020    101.DEF    X
101.LAB
   XBRL Taxonomy Extension Label Linkbase Document.   
10-Q
   8/6/2020    101.LAB    X
101.PRE
   XBRL Taxonomy Extension Presentation Linkbase Document.   
10-Q
   8/6/2020    101.PRE    X
104
   Cover Page Interactive Data File (the cover page XBRL tags are embedded within the Inline XBRL document).            
 
*
Indicates a management contract or compensatory plan or arrangement.
**
Previously furnished and not filed.
 
9

SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
 
     
T-MOBILE
US, INC.
August 10, 2020      
/s/ Peter Osvaldik
      Peter Osvaldik
      Executive Vice President and Chief Financial Officer
      (Principal Financial Officer and Authorized Signatory)
 
10
EX-4.7

Exhibit 4.7

SIXTH SUPPLEMENTAL INDENTURE

SIXTH SUPPLEMENTAL INDENTURE (this “Sixth Supplemental Indenture”), dated as of May 7, 2020, among T-Mobile USA, Inc. (the “Issuer”), the entities listed on Schedule I hereto (the “New Guarantors”), the existing guarantors signatory hereto (the “Existing Guarantors”) and Deutsche Bank Trust Company Americas, as trustee (the “Trustee”) under the Indenture referred to below.

W I T N E S S E T H:

WHEREAS, the Issuer is party to the Indenture, dated as of April 9, 2020 (the “Base Indenture”) among the Issuer, T-Mobile US, Inc., a Delaware corporation, as a guarantor, and the Trustee, as amended and supplemented (a) with respect to the Issuer’s 3.500% Senior Secured Notes due 2025 by the First Supplemental Indenture dated as of April 9, 2020, (b) with respect to the Issuer’s 3.750% Senior Secured Notes due 2027 by the Second Supplemental Indenture dated as of April 9, 2020, (c) with respect to the Issuer’s 3.875% Senior Secured Notes due 2030 by the Third Supplemental Indenture dated as of April 9, 2020, (d) with respect to the Issuer’s 4.375% Senior Secured Notes due 2040 by the Fourth Supplemental Indenture dated as of April 9, 2020 and (e) with respect to the Issuer’s 4.500% Senior Secured Notes due 2050 by the Fifth Supplemental Indenture dated as of April 9, 2020 (the Base Indenture as so amended and supplemented, the “Indenture”);

WHEREAS, Section 4.09 of the Indenture provides that under certain circumstances the Issuer is required to cause the New Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which each of the New Guarantors shall become a Guarantor of the applicable Notes on the terms and conditions set forth herein; and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Issuer, the Existing Guarantors and the New Guarantors are authorized to execute and deliver this Sixth Supplemental Indenture.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Issuer, the New Guarantors, the Existing Guarantors and the Trustee mutually covenant and agree for the benefit of the Holders of the applicable Notes as follows:

1. Defined Terms. As used in this Sixth Supplemental Indenture, capitalized terms used but not defined herein shall have the meaning set forth in the Indenture. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Sixth Supplemental Indenture refer to this Sixth Supplemental Indenture as a whole and not to any particular section hereof.

2. Agreement to Guarantee. The New Guarantors hereby agree, jointly and severally, to unconditionally guarantee the Issuer’s obligations under the Notes and the Indenture on the terms and subject to the conditions set forth in the Indenture including but not limited to ARTICLE X thereof.


3. Notices. All notices or other communications to the Issuer and the New Guarantors shall be given as provided in Section 12.02 of the Indenture.

4. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly contemplated hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.

5. Governing Law. THIS SIXTH SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

6 The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Sixth Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the New Guarantors and the Issuer.

7. Counterpart Originals. This Sixth Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this Sixth Supplemental Indenture and of signature pages by facsimile or electronic transmission shall constitute effective execution and delivery of this Sixth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Sixth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or electronic transmission shall be deemed to be their original signatures for all purposes. The parties may sign any number of copies of this Sixth Supplemental Indenture. Each signed copy will be an original, but all of them together represent the same agreement.

8. Headings, etc. The headings of the Articles and Sections of this Sixth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Sixth Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

[Signatures on following page]

 

2


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

 

SFE 1, LLC
SFE 2, LLC
By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer

[Sixth Supplemental Indenture]


T-MOBILE USA, INC.
By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer
T-MOBILE US, INC.
By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer

[Sixth Supplemental Indenture]


IBSV LLC

LAYER3 TV, INC.

L3TV CHICAGOLAND CABLE SYSTEM, LLC

L3TV COLORADO CABLE SYSTEM, LLC

L3TV DALLAS CABLE SYSTEM, LLC

L3TV DC CABLE SYSTEM, LLC

L3TV DETROIT CABLE SYSTEM, LLC

L3TV LOS ANGELES CABLE SYSTEM, LLC

L3TV MINNEAPOLIS CABLE SYSTEM, LLC

L3TV NEW YORK CABLE SYSTEM, LLC

L3TV PHILADELPHIA CABLE SYSTEM, LLC

L3TV SAN FRANCISCO CABLE SYSTEM, LLC

L3TV SEATTLE CABLE SYSTEM, LLC

METROPCS CALIFORNIA, LLC

METROPCS FLORIDA, LLC

METROPCS GEORGIA, LLC

METROPCS MASSACHUSETTS, LLC

METROPCS MICHIGAN, LLC

METROPCS NETWORKS CALIFORNIA, LLC

METROPCS NETWORKS FLORIDA, LLC

METROPCS NEVADA, LLC

METROPCS NEW YORK, LLC

METROPCS PENNSYLVANIA, LLC

METROPCS TEXAS, LLC

PUSHSPRING, INC.

T-MOBILE CENTRAL LLC

T-MOBILE FINANCIAL LLC

T-MOBILE LEASING LLC

T-MOBILE LICENSE LLC

T-MOBILE NORTHEAST LLC

T-MOBILE PCS HOLDINGS LLC

T-MOBILE PUERTO RICO HOLDINGS LLC

T-MOBILE PUERTO RICO LLC

T-MOBILE RESOURCES CORPORATION

T-MOBILE SOUTH LLC

T-MOBILE SUBSIDIARY IV LLC

T-MOBILE WEST LLC

THEORY MOBILE, INC.

 

By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Authorized Person

[Sixth Supplemental Indenture]


SPRINT CORPORATION, a Delaware corporation

SPRINT COMMUNICATIONS, INC.

SPRINT CAPITAL CORPORATION

ALDA WIRELESS HOLDINGS, LLC

AMERICAN TELECASTING DEVELOPMENT, LLC

AMERICAN TELECASTING OF ANCHORAGE, LLC

AMERICAN TELECASTING OF COLUMBUS, LLC

AMERICAN TELECASTING OF DENVER, LLC

AMERICAN TELECASTING OF FORT MYERS, LLC

AMERICAN TELECASTING OF FT. COLLINS, LLC

AMERICAN TELECASTING OF GREEN BAY, LLC

AMERICAN TELECASTING OF LANSING, LLC

AMERICAN TELECASTING OF LINCOLN, LLC

AMERICAN TELECASTING OF LITTLE ROCK, LLC

AMERICAN TELECASTING OF LOUISVILLE, LLC

AMERICAN TELECASTING OF MEDFORD, LLC

AMERICAN TELECASTING OF MICHIANA, LLC

AMERICAN TELECASTING OF MONTEREY, LLC

AMERICAN TELECASTING OF REDDING, LLC

AMERICAN TELECASTING OF SANTA BARBARA, LLC

AMERICAN TELECASTING OF SEATTLE, LLC

AMERICAN TELECASTING OF SHERIDAN, LLC

AMERICAN TELECASTING OF YUBA CITY, LLC

APC REALTY AND EQUIPMENT COMPANY, LLC

ASSURANCE WIRELESS OF SOUTH CAROLINA, LLC

ASSURANCE WIRELESS USA, L.P.

ATI SUB, LLC

BOOST WORLDWIDE, LLC

BROADCAST CABLE, LLC

CLEAR WIRELESS LLC

CLEARWIRE COMMUNICATIONS LLC

CLEARWIRE CORPORATION

CLEARWIRE HAWAII PARTNERS SPECTRUM, LLC

CLEARWIRE IP HOLDINGS LLC

CLEARWIRE LEGACY LLC

CLEARWIRE SPECTRUM HOLDINGS II LLC

CLEARWIRE SPECTRUM HOLDINGS III LLC

CLEARWIRE SPECTRUM HOLDINGS LLC

CLEARWIRE XOHM LLC

 

By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer

[Sixth Supplemental Indenture]


FIXED WIRELESS HOLDINGS, LLC

FRESNO MMDS ASSOCIATES, LLC

INDEPENDENT WIRELESS ONE LEASED REALTY CORPORATION

KENNEWICK LICENSING, LLC

MINORCO, LLC

NEXTEL COMMUNICATIONS OF THE MID-ATLANTIC, INC.

NEXTEL OF NEW YORK, INC.

NEXTEL RETAIL STORES, LLC

NEXTEL SOUTH CORP.

NEXTEL SYSTEMS, LLC

NEXTEL WEST CORP.

NSAC, LLC

PCTV GOLD II, LLC

PCTV SUB, LLC

PEOPLE’S CHOICE TV OF HOUSTON, LLC

PEOPLE’S CHOICE TV OF ST. LOUIS, LLC

PRWIRELESS PR, LLC

SIHI NEW ZEALAND HOLDCO, INC.

SN HOLDINGS (BR I) LLC

SN UHC 1, INC.

SN UHC 3, INC.

SN UHC 4, INC.

SPEEDCHOICE OF DETROIT, LLC

SPEEDCHOICE OF PHOENIX, LLC

SPRINT (BAY AREA), LLC

SPRINT COMMUNICATIONS COMPANY L.P.

SPRINT COMMUNICATIONS COMPANY OF NEW HAMPSHIRE, INC.

SPRINT COMMUNICATIONS COMPANY OF VIRGINIA, INC.

SPRINT CONNECT LLC

SPRINT CORPORATION, a Kansas corporation

SPRINT CORPORATION, a Missouri corporation

SPRINT EBUSINESS, INC.

SPRINT ENTERPRISE MOBILITY, LLC

SPRINT ENTERPRISE NETWORK SERVICES, INC.

By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer

[Sixth Supplemental Indenture]


SPRINT EWIRELESS, INC.

SPRINT HOLDCO, LLC

SPRINT INTERNATIONAL COMMUNICATIONS CORPORATION

SPRINT INTERNATIONAL HOLDING, INC.

SPRINT INTERNATIONAL INCORPORATED

SPRINT INTERNATIONAL NETWORK COMPANY LLC

SPRINT PCS ASSETS, L.L.C.

SPRINT SOLUTIONS, INC.

SPRINT SPECTRUM HOLDING COMPANY, LLC

SPRINT SPECTRUM REALTY COMPANY, LLC

SPRINT/UNITED MANAGEMENT COMPANY

SWV SIX, INC.

TDI ACQUISITION SUB, LLC

TRANSWORLD TELECOM II, LLC

US TELECOM, INC.

USST OF TEXAS, INC.

UTELCOM LLC

VIRGIN MOBILE USA – EVOLUTION, LLC

VMU GP, LLC

WBS OF AMERICA, LLC

WBS OF SACRAMENTO, LLC

WBSY LICENSING, LLC

WCOF, LLC

WIRELESS BROADBAND SERVICES OF AMERICA, L.L.C.

WIRELINE LEASING CO., INC.

By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer

[Sixth Supplemental Indenture]


SPRINTCOM, INC.

SPRINT SPECTRUM L.P.

By:  

/s/ David A. Miller

  Name:   David A. Miller
  Title:   Executive Vice President,
    General Counsel and Secretary

[Sixth Supplemental Indenture]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:  

/s/ Jeffrey Schoenfeld

  Name:   Jeffrey Schoenfeld
  Title:   Vice President
By:  

/s/ Debra A. Schwalb

  Name:   Debra A. Schwalb
  Title:   Vice President

[Sixth Supplemental Indenture]


Schedule I

 

Entity

  

Jurisdiction of
Organization

SFE 1, LLC

   Delaware

SFE 2, LLC

   Delaware
EX-4.13

Exhibit 4.13

FORTY-SECOND SUPPLEMENTAL INDENTURE

FORTY-SECOND SUPPLEMENTAL INDENTURE (this “Forty-Second Supplemental Indenture”), dated as of May 7, 2020, among T-Mobile USA, Inc. (the “Company”), the entities listed on Schedule I hereto (the “New Guarantors”), the existing guarantors signatory hereto (the “Existing Guarantors”) and Deutsche Bank Trust Company Americas, as trustee under the Indenture referred to below (the “Trustee”).

W I T N E S S E T H:

WHEREAS, the Company has heretofore executed and delivered to the Trustee an Indenture, dated as of April 28, 2013 (the “Base Indenture”) as amended and supplemented with respect to the Company’s (a) 6.500% Senior Notes due 2024 pursuant to the Fifteenth Supplemental Indenture dated as of November 21, 2013 (the “6.500% 2024 Notes”), (b) 6.000% Senior Notes due 2023 pursuant to the Seventeenth Supplemental Indenture dated as of September 5, 2014 (the “6.000% 2023 Notes”), (c) 6.375% Senior Notes due 2025 pursuant to the Eighteenth Supplemental Indenture dated as of September 5, 2014 (the “6.375% 2025 Notes”), (d) 6.500% Senior Notes due 2026 pursuant to the Twentieth Supplemental Indenture dated as of November 5, 2015 (the “6.500% 2026 Notes”), (e) 4.000% Senior Notes due 2022 pursuant to the Twenty-Third Supplemental Indenture dated as of March 16, 2017 (the “4.000% 2022 Notes”), (f) 5.125% Senior Notes due 2025 pursuant to the Twenty-Fourth Supplemental Indenture dated as of March 16, 2017 (the “5.125% 2025 Notes”), (g) 5.375% Senior Notes due 2027 pursuant to the Twenty-Fifth Supplemental Indenture dated as of March 16, 2017 (the “5.375% 2027 Notes”), (h) 4.000% Senior Notes due 2022 pursuant to the Twenty-Sixth Supplemental Indenture dated as of April 27, 2017 (the “4.000% 2022-1 Notes”), (i) 5.125% Senior Notes due 2025-1 pursuant to the Twenty-Seventh Supplemental Indenture dated as of April 28, 2017 (the “5.125% 2025-1 Notes”), (j) 5.375% Senior Notes due 2027-1 pursuant to the Twenty-Eighth Supplemental Indenture dated as of April 28, 2017 (the “5.375% 2027-1 Notes”), (k) 4.500% Senior Notes due 2026 pursuant to the Thirty-Third Supplemental Indenture dated as of January 25, 2018 (the “4.500% 2026 Notes”), (l) 4.750% Senior Notes due 2028 pursuant to the Thirty-Third Supplemental Indenture dated as of January 25, 2018 (the “4.750% 2028 Notes”), (m) 4.500% Senior Notes due 2026-1 pursuant to the Thirty-Fifth Supplemental Indenture dated as of April 30, 2018 (the “4.500% 2026-1 Notes”) and (n) 4.750% Senior Notes due 2028-1 pursuant to the Thirty-Sixth Supplemental Indenture dated as of April 30, 2018 (the “4.750% 2028-1 Notes” and together with the 6.500% 2024 Notes, the 6.000% 2023 Notes, the 6.375% 2025 Notes, the 6.500% 2026 Notes, the 4.000% 2022 Notes, the 5.125% 2025 Notes, the 5.375% 2027 Notes, the 4.000% 2022-1 Notes, the 5.125% 2025-1 Notes, the 5.375% 2027-1 Notes, the 4.500% 2026 Notes, the 4.750% 2028 Notes and the 4.500% 2026-1 Notes, the “Notes”), and as amended and supplemented by the Eleventh Supplemental Indenture dated as of May 1, 2013, the Sixteenth Supplemental Indenture dated as of August 11, 2014, the Nineteenth Supplemental Indenture dated as of September 28, 2015, the Thirtieth Supplemental Indenture dated as of May 9, 2017, the Thirty-Fourth Supplemental Indenture dated as of April 26, 2018, the Thirty-Seventh Supplemental Indenture dated as of May 20, 2018, the Thirty-Eighth Supplemental Indenture dated as of December 20, 2018, the Fortieth Supplemental Indenture, dated as of September 27, 2019 and the Forty-First Supplemental Indenture, dated as of April 1, 2020 (the Base Indenture as so amended and supplemented, the “Indenture”);


WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances the Company is required to cause the New Guarantors to execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantors shall become Guarantors of the applicable Notes on the terms and conditions set forth herein; and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company, the Existing Guarantors and the New Guarantors are authorized to execute and deliver this Forty-Second Supplemental Indenture.

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, the New Guarantors, the Existing Guarantors and the Trustee mutually covenant and agree for the benefit of the Holders of the applicable Notes as follows:

1. Defined Terms. As used in this Forty-Second Supplemental Indenture, capitalized terms used but not defined herein shall have the meaning set forth in the Indenture. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Forty-Second Supplemental Indenture refer to this Forty-Second Supplemental Indenture as a whole and not to any particular section hereof.

2. Agreement to Guarantee. The New Guarantors hereby agree to unconditionally guarantee the Company’s obligations under the Notes and the Indenture on the terms and subject to the conditions set forth in the Indenture including but not limited to ARTICLE X thereof.

3. Notices. All notices or other communications to the Company and the New Guarantors shall be given as provided in Section 12.02 of the Indenture.

4. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly contemplated hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect.

5. Governing Law. THIS FORTY-SECOND SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

6 The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Forty-Second Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the New Guarantors and the Company.

7. Counterpart Originals. This Forty-Second Supplemental Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed will be deemed to be an original and all of which taken together will constitute one and the same agreement. The exchange of copies of this Forty-Second Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Forty-Second Supplemental Indenture as to the parties hereto and may be used in lieu of the original Forty-Second Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF transmission shall be deemed to be their original signatures for all purposes. The parties may sign any number of copies of this Forty-Second Supplemental Indenture. Each signed copy will be an original, but all of them together represent the same agreement.

 

2


8. Headings, etc. The headings of the Articles and Sections of this Forty-Second Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Forty-Second Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

[Signatures on following page]

 

3


IN WITNESS WHEREOF, the parties hereto have caused this Forty-Second Supplemental Indenture to be duly executed, as of the date first above written.

 

SFE 1, LLC
SFE 2, LLC
By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer

 

 

[Forty-Second Supplemental Indenture]


T-MOBILE USA, INC.
By:   /s/ J. Braxton Carter
  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer
T-MOBILE US, INC.
By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer

 

 

[Forty-Second Supplemental Indenture]


IBSV LLC

 

LAYER3 TV, INC.

L3TV CHICAGOLAND CABLE SYSTEM, LLC

L3TV COLORADO CABLE SYSTEM, LLC

L3TV DALLAS CABLE SYSTEM, LLC

L3TV DC CABLE SYSTEM, LLC

L3TV DETROIT CABLE SYSTEM, LLC

L3TV LOS ANGELES CABLE SYSTEM, LLC

L3TV MINNEAPOLIS CABLE SYSTEM, LLC

L3TV NEW YORK CABLE SYSTEM, LLC

L3TV PHILADELPHIA CABLE SYSTEM, LLC

L3TV SAN FRANCISCO CABLE SYSTEM, LLC

L3TV SEATTLE CABLE SYSTEM, LLC

METROPCS CALIFORNIA, LLC

METROPCS FLORIDA, LLC

METROPCS GEORGIA, LLC

METROPCS MASSACHUSETTS, LLC

METROPCS MICHIGAN, LLC

METROPCS NETWORKS CALIFORNIA, LLC

METROPCS NETWORKS FLORIDA, LLC

METROPCS NEVADA, LLC

METROPCS NEW YORK, LLC

METROPCS PENNSYLVANIA, LLC

METROPCS TEXAS, LLC

PUSHSPRING, INC.

T-MOBILE CENTRAL LLC

T-MOBILE FINANCIAL LLC

T-MOBILE LEASING LLC

T-MOBILE LICENSE LLC

T-MOBILE NORTHEAST LLC

T-MOBILE PCS HOLDINGS LLC

T-MOBILE PUERTO RICO HOLDINGS LLC

T-MOBILE PUERTO RICO LLC

T-MOBILE RESOURCES CORPORATION

T-MOBILE SOUTH LLC

T-MOBILE SUBSIDIARY IV LLC

T-MOBILE WEST LLC

THEORY MOBILE, INC.

By:

 

/s/ J. Braxton Carter

Name:   J. Braxton Carter
Title:   Authorized Person

 

 

[Forty-Second Supplemental Indenture]


SPRINT CORPORATION, a Delaware corporation
SPRINT COMMUNICATIONS, INC.
SPRINT CAPITAL CORPORATION
ALDA WIRELESS HOLDINGS, LLC
AMERICAN TELECASTING DEVELOPMENT, LLC
AMERICAN TELECASTING OF ANCHORAGE, LLC
AMERICAN TELECASTING OF COLUMBUS, LLC
AMERICAN TELECASTING OF DENVER, LLC
AMERICAN TELECASTING OF FORT MYERS, LLC
AMERICAN TELECASTING OF FT. COLLINS, LLC
AMERICAN TELECASTING OF GREEN BAY, LLC
AMERICAN TELECASTING OF LANSING, LLC
AMERICAN TELECASTING OF LINCOLN, LLC
AMERICAN TELECASTING OF LITTLE ROCK, LLC
AMERICAN TELECASTING OF LOUISVILLE, LLC
AMERICAN TELECASTING OF MEDFORD, LLC
AMERICAN TELECASTING OF MICHIANA, LLC
AMERICAN TELECASTING OF MONTEREY, LLC
AMERICAN TELECASTING OF REDDING, LLC
AMERICAN TELECASTING OF SANTA BARBARA, LLC
AMERICAN TELECASTING OF SEATTLE, LLC
AMERICAN TELECASTING OF SHERIDAN, LLC
AMERICAN TELECASTING OF YUBA CITY, LLC
APC REALTY AND EQUIPMENT COMPANY, LLC
ASSURANCE WIRELESS OF SOUTH CAROLINA, LLC
ASSURANCE WIRELESS USA, L.P.
ATI SUB, LLC
BOOST WORLDWIDE, LLC
BROADCAST CABLE, LLC
CLEAR WIRELESS LLC
CLEARWIRE COMMUNICATIONS LLC
CLEARWIRE CORPORATION
CLEARWIRE HAWAII PARTNERS SPECTRUM, LLC
CLEARWIRE IP HOLDINGS LLC
CLEARWIRE LEGACY LLC
CLEARWIRE SPECTRUM HOLDINGS II LLC
CLEARWIRE SPECTRUM HOLDINGS III LLC
CLEARWIRE SPECTRUM HOLDINGS LLC
CLEARWIRE XOHM LLC
By:  

/s/ J. Braxton Carter

Name:   J. Braxton Carter
Title:   Executive Vice President and
  Chief Financial Officer

 

 

[Forty-Second Supplemental Indenture]


FIXED WIRELESS HOLDINGS, LLC
FRESNO MMDS ASSOCIATES, LLC
INDEPENDENT WIRELESS ONE LEASED REALTY CORPORATION
KENNEWICK LICENSING, LLC
MINORCO, LLC
NEXTEL COMMUNICATIONS OF THE MID-ATLANTIC, INC.
NEXTEL OF NEW YORK, INC.
NEXTEL RETAIL STORES, LLC
NEXTEL SOUTH CORP.
NEXTEL SYSTEMS, LLC
NEXTEL WEST CORP.
NSAC, LLC
PCTV GOLD II, LLC
PCTV SUB, LLC
PEOPLE’S CHOICE TV OF HOUSTON, LLC
PEOPLE’S CHOICE TV OF ST. LOUIS, LLC
PRWIRELESS PR, LLC
SIHI NEW ZEALAND HOLDCO, INC.
SN HOLDINGS (BR I) LLC
SN UHC 1, INC.
SN UHC 3, INC.
SN UHC 4, INC.
SPEEDCHOICE OF DETROIT, LLC
SPEEDCHOICE OF PHOENIX, LLC
SPRINT (BAY AREA), LLC
SPRINT COMMUNICATIONS COMPANY L.P.
SPRINT COMMUNICATIONS COMPANY OF NEW HAMPSHIRE, INC.
SPRINT COMMUNICATIONS COMPANY OF VIRGINIA, INC.
SPRINT CONNECT LLC
SPRINT CORPORATION, a Kansas corporation
SPRINT CORPORATION, a Missouri corporation
SPRINT EBUSINESS, INC.
SPRINT ENTERPRISE MOBILITY, LLC
SPRINT ENTERPRISE NETWORK SERVICES, INC.
By:   /s/ J. Braxton Carter
Name:   J. Braxton Carter
Title:   Executive Vice President and
  Chief Financial Officer

 

 

[Forty-Second Supplemental Indenture]


SPRINT EWIRELESS, INC.
SPRINT HOLDCO, LLC
SPRINT INTERNATIONAL COMMUNICATIONS CORPORATION
SPRINT INTERNATIONAL HOLDING, INC.
SPRINT INTERNATIONAL INCORPORATED
SPRINT INTERNATIONAL NETWORK COMPANY LLC
SPRINT PCS ASSETS, L.L.C.
SPRINT SOLUTIONS, INC.
SPRINT SPECTRUM HOLDING COMPANY, LLC
SPRINT SPECTRUM REALTY COMPANY, LLC
SPRINT/UNITED MANAGEMENT COMPANY
SWV SIX, INC.
TDI ACQUISITION SUB, LLC
TRANSWORLD TELECOM II, LLC
US TELECOM, INC.
USST OF TEXAS, INC.
UTELCOM LLC
VIRGIN MOBILE USA – EVOLUTION, LLC
VMU GP, LLC
WBS OF AMERICA, LLC
WBS OF SACRAMENTO, LLC
WBSY LICENSING, LLC
WCOF, LLC
WIRELESS BROADBAND SERVICES OF AMERICA, L.L.C.
WIRELINE LEASING CO., INC.
By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer

 

 

[Forty-Second Supplemental Indenture]


SPRINTCOM, INC.
SPRINT SPECTRUM L.P.
By:  

/s/ David A. Miller

  Name:   David A. Miller
  Title:   Executive Vice President,
General Counsel and Secretary

 

 

[Forty-Second Supplemental Indenture]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Trustee
By:  

/s/ Jeffrey Schoenfeld

  Name:   Jeffrey Schoenfeld
  Title:   Vice President
By:  

/s/ Irina Golovashchuk

  Name:   Irina Golovashchuk
  Title:   Irina Golovashchuk

 

 

[Forty-Second Supplemental Indenture]


Schedule I

 

Entity   

Jurisdiction of

Organization

SFE 1, LLC    Delaware
SFE 2, LLC    Delaware
EX-4.19

Exhibit 4.19

FIFTH SUPPLEMENTAL INDENTURE

FIFTH SUPPLEMENTAL INDENTURE (this “Fifth Supplemental Indenture”), dated as of April 1, 2020, among T-Mobile US, Inc., a Delaware corporation (“T-Mobile US”), T-Mobile USA, Inc., a Delaware corporation (“T-Mobile USA” and, together with T-Mobile US, the “New Guarantors”), Sprint Capital Corporation, a Delaware corporation (the “Company”), Sprint Corporation, a Delaware corporation (“Sprint”), Sprint Communications, Inc., a Kansas corporation (“Sprint Communications” and together with Sprint, the “Existing Guarantors”, and collectively with the New Guarantors, the “Guarantors”) and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”).

RECITALS OF THE COMPANY

WHEREAS, the Company heretofore executed and delivered to the Trustee: (i) an indenture, dated as of October 1, 1998, among the Company, Sprint Communications and the Trustee, as successor to Bank One, N.A. (the “Base Indenture”); (ii) an Officers’ Certificate, dated as of November 16, 1998, providing for the issuance of $2,500,000,000 aggregate principal amount of 6.875% Notes due 2028 (the “2028 Notes”); (iii) a First Supplemental Indenture, dated as of January 15, 1999 (the “First Supplemental Indenture”), among the Company, Sprint Communications and the Trustee, as successor to Bank One, N.A.; (iv) a Second Supplemental Indenture, dated as of October 15, 2001 (the “Second Supplemental Indenture”), among the Company, Sprint Communications and the Trustee, as successor to Bank One, N.A.; (v) Pricing Committee Resolutions, dated as of March 14, 2002, providing for the issuance of $2,000,000,000 aggregate principal amount of 8.750% Notes due 2032 (together with the 2028 Notes, the “Notes”); (vi) a Third Supplemental Indenture, dated as of September 11, 2013 (the “Third Supplemental Indenture”), among the Company, Sprint Communications, Sprint, and the Trustee and (vii) a Fourth Supplemental Indenture, dated as of May 18, 2018 (together with the Base Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture and the above-referenced officers’ certificate and pricing committee resolutions, which, as applicable, govern the terms of the Notes, the “Indenture”), among the Company, Sprint Communications and the Trustee;

WHEREAS, on April 29, 2018, Sprint, T-Mobile US, Huron Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of T-Mobile US (“Merger Company”), Superior Merger Sub Corporation, a Delaware corporation and a wholly owned subsidiary of Merger Company (“Merger Sub”), Galaxy Investment Holdings, Inc., a Delaware corporation (“Galaxy”), Starburst I, Inc., a Delaware corporation (together with Galaxy, the “SoftBank US HoldCos”), and, for the limited purposes of the covenants and representations set forth therein that are expressly obligations of such persons, Deutsche Telekom AG, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany, Deutsche Telekom Holding B.V., a besloten vennootschap met beperkte aansprakelijkheid organized and existing under the laws of the Netherlands, and SoftBank Group Corp., a Japanese kabushiki kaisha, entered into a Business Combination Agreement (as heretofore amended, supplemented and modified, the “Business Combination Agreement”), pursuant to which (i) the SoftBank US HoldCos merged with and into Merger Company, with Merger Company continuing as the surviving entity and as a wholly owned subsidiary of T-Mobile US (the “HoldCo Mergers”) and (ii) Merger Sub merged with and into Sprint, with Sprint as the


surviving corporation and a wholly owned direct or indirect subsidiary of T-Mobile US (together with the HoldCo Mergers, the “Mergers”), in each case on the terms and subject to the conditions set forth in the Business Combination Agreement. Following the Mergers, T-Mobile US contributed Sprint to T-Mobile USA, Inc. (“T-Mobile USA”) or otherwise caused Sprint to become a direct or indirect wholly-owned subsidiary of T-Mobile USA (collectively with the Mergers, the “T-Mobile Transaction”);

WHEREAS, upon consummation of the T-Mobile Transaction, Sprint became an indirect wholly owned subsidiary of T-Mobile US;

WHEREAS, in connection with the consummation of the T-Mobile Transaction, the parties wish to provide that each New Guarantor will provide an irrevocable and unconditional guarantee in respect of each series of Notes;

WHEREAS, the guarantees of each New Guarantor constitute a direct benefit to such New Guarantor and will be in furtherance of the corporate purposes of such New Guarantor or necessary or convenient to the conduct, promotion or attainment of the business of such New Guarantor and, accordingly, in consideration therefor, each New Guarantor is willing to guarantee the Notes on the terms set forth herein; and

WHEREAS, pursuant to Section 901(10) of the Base Indenture, the Trustee is authorized to execute and deliver this Fifth Supplemental Indenture without the consent of the Holders of the Notes to make the changes described below that do not adversely affect the interests of the Holders in any material respect.

WHEREAS, for the purposes hereinabove recited, and pursuant to due corporate action, the Company has duly determined to execute and deliver to the Trustee this Fifth Supplemental Indenture; and

WHEREAS, all conditions and requirements necessary to make this Fifth Supplemental Indenture a valid and binding instrument in accordance with its terms have been done and performed, and the execution and delivery hereof have been in all respects duly authorized.

NOW, THEREFORE, in consideration of the premises, the covenants and other agreements contained herein and other good and valuable consideration, the sufficiency of which is hereby confirmed, the New Guarantors, the Company, Sprint, Sprint Communications, and the Trustee mutually covenant and agree as follows:

1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Base Indenture.

2. Agreement to Guarantee. Each New Guarantor hereby agrees to and does hereby, jointly and severally, irrevocably and unconditionally guarantee, on a senior unsecured basis, the full and punctual payment when due, whether at maturity, by acceleration or otherwise, all payment obligations of the Company under the Notes for the payment of principal of, premium, if any, and interest on the Notes, and all other amounts payable by the Company to the Holders of the Notes under the Notes, the Indenture and this Fifth Supplemental Indenture (each a “Guarantee” and, together, the “Guarantees”). Each Guarantee is limited to the maximum

 

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amount that can be guaranteed by law or without resulting in the Guarantee being voidable or unenforceable under applicable laws relating to fraudulent transfer, or under similar laws affecting the rights of creditors generally. Each Guarantee shall be automatically and unconditionally released (and thereupon shall terminate and be discharged and be of no further force and effect) upon the Company exercising its legal defeasance or covenant defeasance option pursuant to Article XIII of the Base Indenture or the satisfaction and discharge of the obligations of the Company with respect to the Notes pursuant to Article IV of the Base Indenture, each in compliance with the terms of the Indenture. For the avoidance of doubt (other than as expressly provided in the Indenture), nothing in this Fifth Supplemental Indenture shall prevent any New Guarantor from merging with and into the Company, or the Company from merging with and into any New Guarantor, and in such event the applicable Guarantee shall terminate and the surviving entity shall remain the primary obligor under the Notes, the Indenture and this Fifth Supplemental Indenture. Furthermore, for the avoidance of doubt (other than as expressly provided in the Indenture), nothing in this Fifth Supplemental Indenture shall prevent any Guarantor from merging with and into any other Guarantor, and in such event the guarantee of the surviving entity shall remain in full force and effect and the guarantee of the non-surviving entity shall terminate. Each New Guarantor shall be subrogated to all rights of the Holders of the Notes against the Company in respect of any amounts paid by such New Guarantor pursuant to the Guarantee; provided, however, that such New Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of, premium, if any, and interest on all Notes shall have been paid in full or payment thereof shall have been provided for in accordance with the provisions of the Indenture. For the avoidance of doubt, in the event of a default in payment by the Company, legal proceedings may be instituted against any New Guarantor to enforce the Guarantee without first proceeding against the Company.

3. Effect of Fifth Supplemental Indenture ; Conflicts With Indenture. This Fifth Supplemental Indenture is executed by the New Guarantors, the Company, the Existing Guarantors and the Trustee upon the Company’s request, pursuant to the provisions of the Base Indenture, and the terms and conditions hereof shall be deemed to be part of the Base Indenture for all purposes. The Base Indenture, as amended and supplemented by this Fifth Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed. Notwithstanding the foregoing, to the extent that any of the terms of this Fifth Supplemental Indenture are inconsistent with, or conflict with, the terms of the Base Indenture, the terms of this Fifth Supplemental Indenture shall govern.

4. No Personal Liability of Directors, Officers, Employees and Stockholders of the New Guarantors. No director, officer, employee, incorporator or stockholder of any New Guarantor, as such, shall have any liability for any obligations of the Company, the New Guarantors or the Existing Guarantors, any guarantee under any series of Notes, the Indenture, any Officers’ Certificates or this Fifth Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability.

5. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS FIFTH SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

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6. Counterparts. The parties may sign any number of copies of this Fifth Supplemental Indenture . Each signed copy shall be an original, but all of them together represent the same agreement.

7. Effect Of Headings. The Headings of the Sections of this Fifth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Fifth Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

8. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Fifth Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the New Guarantors, the Company and the Existing Guarantors.

9. Facsimile or Electronic Transmission. Exchange of signature pages to this Fifth Supplemental Indenture by facsimile or electronic transmission shall constitute effective execution and delivery of this Fifth Supplemental Indenture.

[Signature page follows]

 

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

 

SPRINT CAPITAL CORPORATION
By:   /s/ Jud Henry
  Name: Jud Henry
  Title:   Vice President and Treasurer
SPRINT COMMUNICATIONS, INC.
By:   /s/ Jud Henry
  Name: Jud Henry
  Title:   Vice President and Treasurer
SPRINT CORPORATION
By:   /s/ Jud Henry
  Name: Jud Henry
  Title:   Senior Vice President, Finance and
              Treasurer

 

 

[Fifth Supplemental Indenture]


T-MOBILE US, INC.
By:   /s/ J. Braxton Carter
  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer
T-MOBILE USA, INC.
By:   /s/ J. Braxton Carter
  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer

 

 

[Fifth Supplemental Indenture]


THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
By:   /s/ Manjari Purkayastha
  Name: Manjari Purkayastha
  Title:   Vice President

 

 

[Fifth Supplemental Indenture]

EX-4.27

Exhibit 4.27

SIXTEENTH SUPPLEMENTAL INDENTURE

SIXTEENTH SUPPLEMENTAL INDENTURE (this “Sixteenth Supplemental Indenture”), dated as of April 1, 2020, among T-Mobile US, Inc., a Delaware corporation (“T-Mobile US”), T-Mobile USA, Inc., a Delaware corporation (“T-Mobile USA” and, together with T-Mobile US, the “New Guarantors”), Sprint Communications, Inc. (formerly known as Sprint Nextel Corporation), a Kansas corporation (the “Company”), Sprint Corporation, a Delaware corporation (“Sprint” and, collectively with the New Guarantors, the “Guarantors”) and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”).

RECITALS OF THE COMPANY

WHEREAS, the Company and the Trustee have duly executed and delivered that certain Senior Notes Indenture, dated as of November 20, 2006 (the “Original Indenture”), among the Company and the Trustee, as amended and supplemented by the Eighth Supplemental Indenture, dated as of September 11, 2013 (the “Eighth Supplemental Indenture”), among the Company, Sprint and the Trustee and the Thirteenth Supplemental Indenture, dated as of May 14, 2018 (the “Thirteenth Supplemental Indenture”), between the Company and the Trustee (the Original Indenture, as amended and supplemented by the Eighth Supplemental Indenture and the Thirteenth Supplemental Indenture, the “Base Indenture”), providing for the issuance from time to time of unsecured debentures, notes or other evidences of indebtedness, to be issued in one or more series (the “Securities”);

WHEREAS, the Company and the Trustee have duly executed and delivered (i) the First Supplemental Indenture, dated as of November 9, 2011, pursuant to which $1,000,000,000 aggregate principal amount of 11.500% Senior Notes due 2021 (the “2021 Notes”) were issued and are outstanding on the date hereof (the “First Supplemental Indenture”) (ii) the Seventh Supplemental Indenture, dated as of November 12, 2012 (the “Seventh Supplemental Indenture” and the Base Indenture as amended and supplemented by the First Supplemental Indenture and the Seventh Supplemental Indenture, the “2021 Notes Indenture”); (iii) the Fifth Supplemental Indenture, dated as of August 14, 2012, pursuant to which $1,500,000,000 aggregate principal amount of 7.000% Senior Notes due 2020 (the “2020 Notes”) were issued and are outstanding on the date hereof (the “Fifth Supplemental Indenture” and the Base Indenture as amended and supplemented by the Fifth Supplemental Indenture and the Seventh Supplemental Indenture, the “2020 Notes Indenture”) and (iv) the Sixth Supplemental Indenture, dated as of November 14, 2012, pursuant to which $2,280,000,000 aggregate principal amount of 6.000% Senior Notes due 2022 (the “2022 Notes” and, together with the 2021 Notes and the 2020 Notes, the “Notes”) were issued and are outstanding on the date hereof (the “Sixth Supplemental Indenture” and the Base Indenture as amended and supplemented thereby, the “2022 Notes Indenture” and each of the 2021 Notes Indenture, the 2020 Notes Indenture and the 2022 Notes Indenture, an “Indenture”), which, as applicable, govern the terms of the Notes;

WHEREAS, on April 29, 2018, Sprint, T-Mobile US, Huron Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of T-Mobile US (“Merger Company”), Superior Merger Sub Corporation, a Delaware corporation and a wholly owned subsidiary of Merger Company (“Merger Sub”), Galaxy Investment Holdings, Inc., a Delaware corporation (“Galaxy”), Starburst I, Inc., a Delaware corporation (“Starburst” and, together with

 


Galaxy, the “SoftBank US HoldCos”), and, for the limited purposes of the covenants and representations set forth therein that are expressly obligations of such persons, Deutsche Telekom AG, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany, Deutsche Telekom Holding B.V., a besloten vennootschap met beperkte aansprakelijkheid organized and existing under the laws of the Netherlands, and SoftBank Group Corp., a Japanese kabushiki kaisha, entered into a Business Combination Agreement (as heretofore amended, supplemented and modified, the “Business Combination Agreement”), pursuant to which (i) the SoftBank US HoldCos merged with and into Merger Company, with Merger Company continuing as the surviving entity and as a wholly owned subsidiary of T-Mobile US (the “HoldCo Mergers”) and (ii) Merger Sub merged with and into Sprint, with Sprint as the surviving corporation and a wholly owned direct or indirect subsidiary of T-Mobile US (the “Sprint Merger” and, together with the HoldCo Mergers, the “Mergers”), in each case on the terms and subject to the conditions set forth in the Business Combination Agreement. Following the Mergers, T-Mobile US contributed Sprint to T-Mobile USA or otherwise caused Sprint to become a direct or indirect wholly-owned subsidiary of T-Mobile USA (the “Contribution” and, collectively with the Mergers, the “T-Mobile Transaction”);

WHEREAS, upon consummation of the T-Mobile Transaction, Sprint became an indirect wholly owned subsidiary of T-Mobile US;

WHEREAS, in connection with the consummation of the T-Mobile Transaction, the parties wish to provide that each New Guarantor will provide an irrevocable and unconditional guarantee in respect of each series of Notes;

WHEREAS, the guarantees of each New Guarantor constitute a direct benefit to such New Guarantor and will be in furtherance of the corporate purposes of such New Guarantor or necessary or convenient to the conduct, promotion or attainment of the business of such New Guarantor and, accordingly, in consideration therefor, each New Guarantor is willing to guarantee the Notes on the terms set forth herein; and

WHEREAS, pursuant to Section 901(14) of the Base Indenture, the Trustee is authorized to execute and deliver this Sixteenth Supplemental Indenture without the consent of the Holders of each series of the Notes to add a guarantee to each series of the Notes;

WHEREAS, for the purposes hereinabove recited, and pursuant to due corporate action, the Company has duly determined to execute and deliver to the Trustee this Sixteenth Supplemental Indenture; and

WHEREAS, all conditions and requirements necessary to make this Sixteenth Supplemental Indenture a valid and binding instrument in accordance with its terms have been done and performed, and the execution and delivery hereof have been in all respects duly authorized.

 

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NOW, THEREFORE, in consideration of the premises, the covenants and other agreements contained herein and other good and valuable consideration, the sufficiency of which is hereby confirmed, the Company, the New Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Trustee and the Holders of the Notes as follows:

1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Base Indenture.

2. Agreement to Guarantee. Each New Guarantor hereby agrees to jointly and severally irrevocably and unconditionally guarantee, on a senior unsecured basis, the full and punctual payment when due, whether at maturity, by acceleration or otherwise, all payment obligations of the Company under the Notes for the payment of principal of, premium, if any, and interest on the Notes, and all other amounts payable by the Company to the Trustee and the Holders of the Notes under the Notes, each Indenture and this Sixteenth Supplemental Indenture (each a “Guarantee” and, together, the “Guarantees”). Each Guarantee is limited to the maximum amount that can be guaranteed by law or without resulting in the Guarantee being voidable or unenforceable under applicable laws relating to fraudulent transfer, or under similar laws affecting the rights of creditors generally. Each Guarantee shall be automatically and unconditionally released (and thereupon shall terminate and be discharged and be of no further force and effect) upon the Company exercising its legal defeasance or covenant defeasance option pursuant to Article XIII of the Base Indenture or the satisfaction and discharge of the obligations of the Company with respect to the Notes pursuant to Article IV of the Base Indenture, each in compliance with the terms of the applicable Indenture. For the avoidance of doubt, (other than as expressly provided in the applicable Indenture) nothing in this Sixteenth Supplemental Indenture shall prevent any New Guarantor from merging with and into the Company or Sprint, or the Company or Sprint from merging with and into any New Guarantor, and in such event such Guarantee of such New Guarantor shall terminate and the surviving entity shall remain the primary obligor under the Notes, the Indenture and this Sixteenth Supplemental Indenture. Furthermore, for the avoidance of doubt (other than as expressly provided in the applicable Indenture), nothing in this Sixteenth Supplemental Indenture shall prevent any Guarantor from merging with and into any other Guarantor, and in such event the guarantee of the surviving entity shall remain in full force and effect and the guarantee of the non-surviving entity shall terminate. Each New Guarantor shall be subrogated to all rights of the Holders of the Notes against the Company in respect of any amounts paid by such New Guarantor pursuant to the Guarantees; provided, however, that such New Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of, premium, if any, and interest on all Notes shall have been paid in full or payment thereof shall have been provided for in accordance with the provisions of the Indenture.

3. Effect of Supplemental Indenture; Conflicts With Indenture. This Sixteenth Supplemental Indenture is executed by each New Guarantor, the Company, Sprint and the Trustee upon the Company’s request, pursuant to the provisions of each Indenture, and the terms and conditions hereof shall be deemed to be part of each Indenture for all purposes. The Indenture, as amended and supplemented by this Sixteenth Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed. Notwithstanding the foregoing, to the extent that any of the terms of this Sixteenth Supplemental Indenture are inconsistent with, or conflict with, the terms of any Indenture, the terms of this Sixteenth Supplemental Indenture shall govern.

 

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4. No Personal Liability of Directors, Officers, Employees and Stockholders of the New Guarantors. No director, officer, employee, incorporator or stockholder of any New Guarantors, as such, shall have any liability for any obligations of the Company, Sprint, the New Guarantors or any guarantor under any series of Notes, any guarantees under any series of Notes, any Indenture or this Sixteenth Supplemental Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability.

5. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS SIXTEENTH SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

6. Counterparts. The parties may sign any number of copies of this Sixteenth Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

7. Effect of Headings. The headings of the sections of this Sixteenth Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Sixteenth Supplemental Indenture and will in no way modify or restrict any of the terms or provisions hereof.

8. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Sixteenth Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the New Guarantors, the Company and Sprint.

9. Facsimile or Electronic Transmission. Exchange of signature pages to this Sixteenth Supplemental Indenture by facsimile or electronic transmission shall constitute effective execution and delivery of this Sixteenth Supplemental Indenture.

[Signatures on following page]

 

 

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

 

SPRINT CORPORATION
By:   /s/ Jud Henry
  Name: Jud Henry
  Title: Senior Vice President, Finance and Treasurer
SPRINT COMMUNICATIONS, INC.
By:   /s/ Jud Henry
  Name: Jud Henry
  Title: Vice President and Treasurer

[Sixteenth Supplemental Indenture]


T-MOBILE USA, INC.
By:   /s/ J. Braxton Carter
  Name: J. Braxton Carter
  Title:       Executive Vice President and
        Chief Financial Officer
T-MOBILE US, INC.
By:   /s/ J. Braxton Carter
  Name: J. Braxton Carter
  Title:       Executive Vice President and
        Chief Financial Officer

[Sixteenth Supplemental Indenture]


THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
By:   /s/ Manjari Purkayastha
  Name: Manjari Purkayastha
  Title:   Vice President

[Sixteenth Supplemental Indenture]

EX-4.36

Exhibit 4.36

EIGHTH SUPPLEMENTAL INDENTURE

EIGHTH SUPPLEMENTAL INDENTURE (this “Eighth Supplemental Indenture”), dated as of April 1, 2020, among T-Mobile US, Inc., a Delaware corporation (“T-Mobile US”), T-Mobile USA, Inc., a Delaware corporation (collectively with T-Mobile US, the “New Guarantors”), Sprint Corporation, a Delaware corporation (the “Company”), Sprint Communications, Inc., a Kansas corporation (the “Existing Guarantor”, and collectively with the New Guarantors, the “Guarantors”) and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”).

RECITALS OF THE COMPANY

WHEREAS, the Company and the Trustee have duly executed and delivered that certain Senior Notes Indenture, dated as of September 11, 2013 (the “Original Indenture”), as amended and supplemented by the Sixth Supplemental Indenture, dated as of May 14, 2018 (the “Sixth Supplemental Indenture”), among the Company and the Trustee (the Original Indenture, as amended and supplemented by the Sixth Supplemental Indenture, the “Base Indenture”), providing for the issuance from time to time of unsecured debentures, notes or other evidences of indebtedness, to be issued in one or more series (the “Securities”);

WHEREAS, the Company, the Existing Guarantor and the Trustee have duly executed and delivered (i) the First Supplemental Indenture, dated as of September 11, 2013, to the Original Indenture, pursuant to which $2,250,000,000 aggregate principal amount of 7.250% Notes due 2021 (the “2021 Notes”) were issued and are outstanding on the date hereof (the “First Supplemental Indenture” and the Base Indenture as amended and supplemented thereby, the “2021 Notes Indenture”), (ii) the Second Supplemental Indenture, dated as of September 11, 2013, to the Original Indenture, pursuant to which $4,250,000,000 aggregate principal amount of 7.875% Notes due 2023 (the “2023 Notes”) were issued and are outstanding on the date hereof (the “Second Supplemental Indenture” and the Base Indenture as amended and supplemented thereby, the “2023 Notes Indenture”), (iii) the Third Supplemental Indenture, dated as of December 12, 2013, to the Original Indenture, pursuant to which $2,500,000,000 aggregate principal amount of 7.125% Notes due 2024 (the “2024 Notes”) were issued and are outstanding on the date hereof (the “Third Supplemental Indenture” and the Base Indenture as amended and supplemented thereby, the “2024 Notes Indenture”), (iv) the Fourth Supplemental Indenture, dated as of February 24, 2015, to the Original Indenture, pursuant to which $1,500,000,000 aggregate principal amount of 7.625% Notes due 2025 (the “2025 Notes”) were issued and are outstanding on the date hereof (the “Fourth Supplemental Indenture” and the Base Indenture as amended and supplemented thereby, the “2025 Notes Indenture”), (v) the Fifth Supplemental Indenture, dated as of February 22, 2018, to the Original Indenture, pursuant to which $1,500,000,000 aggregate principal amount of 7.625% Notes due 2026 (the “2026 Notes”) were issued and outstanding on the date hereof (the “Seventh Supplemental Indenture” and the Base Indenture as amended and supplemented thereby, the “2028 Notes Indenture”) and (vi) the Seventh Supplemental Indenture, dated as of February 3, 2020, to the Original Indenture, pursuant to which $1,000,000,000 aggregate principal amount of 7.250% Guaranteed Notes due 2028 (the “2028 Notes” and, collectively with the 2021 Notes, the 2023 Notes, the 2024 Notes, the 2025 Notes and the 2026 Notes, the “Notes”) were issued and are outstanding on the date hereof (the “Seventh Supplemental Indenture” and the Base Indenture as amended and supplemented thereby, the “2028 Notes Indenture” and each of the 2021 Notes Indenture, the 2023 Notes Indenture, the 2024 Notes Indenture, the 2025 Notes Indenture, the 2026 Notes Indenture and the 2028 Notes Indenture, an “Indenture”), which, as applicable, govern the terms of the Notes;


WHEREAS, on April 29, 2018, the Company, T-Mobile US, Huron Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of T-Mobile US (“Merger Company”), Superior Merger Sub Corporation, a Delaware corporation and a wholly owned subsidiary of Merger Company (“Merger Sub”), Galaxy Investment Holdings, Inc., a Delaware corporation (“Galaxy”), Starburst I, Inc., a Delaware corporation (together with Galaxy, the “SoftBank US HoldCos”), and, for the limited purposes of the covenants and representations set forth therein that are expressly obligations of such persons, Deutsche Telekom AG, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany, Deutsche Telekom Holding B.V., a besloten vennootschap met beperkte aansprakelijkheid organized and existing under the laws of the Netherlands, and SoftBank Group Corp., a Japanese kabushiki kaisha, entered into a Business Combination Agreement (as heretofore amended, supplemented and modified, the “Business Combination Agreement”), pursuant to which (i) the SoftBank US HoldCos merged with and into Merger Company, with Merger Company continuing as the surviving entity and as a wholly owned subsidiary of T-Mobile US (the “HoldCo Mergers”) and (ii) Merger Sub merged with and into the Company, with the Company as the surviving corporation and a wholly owned direct or indirect subsidiary of T-Mobile US(together with the HoldCo Mergers, the “Mergers”), in each case on the terms and subject to the conditions set forth in the Business Combination Agreement. Following the Mergers, T-Mobile US contributed the Company to T-Mobile USA or otherwise caused the Company to become a direct or indirect wholly-owned subsidiary of T-Mobile USA (collectively with the Mergers, the “T-Mobile Transaction”);

WHEREAS, upon consummation of the T-Mobile Transaction, the Company became an indirect wholly-owned subsidiary of T-Mobile US;

WHEREAS, in connection with the consummation of the T-Mobile Transaction, the parties wish to provide that each New Guarantor will provide an irrevocable and unconditional guarantee in respect of each series of Notes;

WHEREAS, the guarantees of each New Guarantor constitute a direct benefit to such New Guarantor and will be in furtherance of the corporate purposes of such New Guarantor or necessary or convenient to the conduct, promotion or attainment of the business of such New Guarantor and, accordingly, in consideration therefor, each New Guarantor is willing to guarantee the Notes on the terms set forth herein;

WHEREAS, pursuant to Section 901(13) of the Base Indenture, the Trustee is authorized to execute and deliver this Eighth Supplemental Indenture without the consent of the Holders of the Notes to add a guarantee to each series of Notes;

WHEREAS, for the purposes hereinabove recited, and pursuant to due corporate action, the Company has duly determined to execute and deliver to the Trustee this Eighth Supplemental Indenture; and

 

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WHEREAS, all conditions and requirements necessary to make this Eighth Supplemental Indenture a valid and binding instrument in accordance with its terms have been done and performed, and the execution and delivery hereof have been in all respects duly authorized.

NOW, THEREFORE, in consideration of the premises, the covenants and other agreements contained herein and other good and valuable consideration, the sufficiency of which is hereby confirmed, the New Guarantors, the Company, the Existing Guarantor and the Trustee mutually covenant and agree as follows:

ARTICLE ONE

DEFINITIONS

SECTION 1.01 Relationship with Base Indenture. All terms contained in this Eighth Supplemental Indenture shall, except as specifically provided herein or except as the context may otherwise require, have the meanings defined in the Base Indenture. In the event of any inconsistency between the Base Indenture and this Eighth Supplemental Indenture, this Eighth Supplemental Indenture shall govern. The words “herein,” “hereof,” “hereunder,” and words of similar import shall refer to this Eighth Supplemental Indenture.

SECTION 1.02 Applicability. The provisions contained in this Eighth Supplemental Indenture shall apply to the Notes and any covenants provided herein are for the benefit of the Holders of the Notes and not for the benefit of the Holders of any other series of Securities issued under the Base Indenture.

ARTICLE TWO

NOTES GUARANTEES

SECTION 2.01 Note Guarantee. Each New Guarantor irrevocably and unconditionally guarantees, on a senior unsecured basis, the full and punctual payment when due, whether at maturity, by acceleration or otherwise, of all payment obligations of the Company under the Notes for the payment of principal of, premium, if any, and interest on the Notes, and all other amounts payable by the Company to the Holders of the Notes under the Notes, the applicable Indenture and this Eighth Supplemental Indenture, on the terms set forth herein (such guarantee with respect to each series of Notes, a “Note Guarantee” and collectively, the “Note Guarantees”).

SECTION 2.02 Limitation of Note Guarantees. Each Note Guarantee is limited to an amount not to exceed the maximum amount that can be guaranteed by the New Guarantor by law or without resulting in its obligations under such Note Guarantee being voidable or unenforceable under applicable laws relating to fraudulent transfer, or under similar laws affecting the rights of creditors generally.

 

3


SECTION 2.03 Subrogation. Each New Guarantor shall be subrogated to all rights of the Holders of the Notes against the Company in respect of any amounts paid by such New Guarantor pursuant to the provisions of the applicable Note Guarantee; provided, however, that such New Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of, premium, if any, and interest on all Notes of the applicable series shall have been paid in full or payment thereof shall have been provided for in accordance with the provisions of the applicable Indenture and this Eighth Supplemental Indenture.

SECTION 2.04 Release of Note Guarantees.

(a) The Note Guarantee with respect to any series of Notes shall be automatically and unconditionally released (and thereupon shall terminate and be discharged and be of no further force and effect with respect to such series) upon:

(i) the Company exercising its legal defeasance or covenant defeasance option with respect to the Notes of such series pursuant to Article XIII of the applicable Indenture or the satisfaction and discharge of the obligations of the Company with respect to the Notes of such series pursuant to Article IV of the applicable Indenture, in each case, in compliance with the terms of this Eighth Supplemental Indenture and the applicable Indenture; and

(ii) the Company delivering to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Eighth Supplemental Indenture and the applicable Indenture relating to such release have been complied with.

(b) For the avoidance of doubt (other than as expressly provided in the applicable Indenture), nothing in this Eighth Supplemental Indenture shall prevent any New Guarantor from merging with and into the Company, or the Company from merging with and into any New Guarantor, and in such event the applicable Note Guarantees shall terminate and the surviving entity shall remain the primary obligor under the Notes, the applicable Indenture and this Eighth Supplemental Indenture. Furthermore, for the avoidance of doubt (other than as expressly provided in the applicable Indenture), nothing in this Eighth Supplemental Indenture shall prevent any Guarantor from merging with and into any other Guarantor, and in such event the guarantee of the surviving entity shall remain in full force and effect and the guarantee of the non-surviving entity shall terminate.

ARTICLE THREE

MISCELLANEOUS PROVISIONS

Section 3.01 Effect of Supplemental Indenture; Conflicts with Indenture. This Eighth Supplemental Indenture is executed by the New Guarantors, the Company, the Existing Guarantor and the Trustee upon the Company’s request, pursuant to the provisions of each Indenture, and the terms and conditions hereof shall be deemed to be part of each Indenture for all purposes. Each Indenture, as amended and supplemented by this Eighth Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed. Notwithstanding the foregoing, to the extent that any of the terms of this Eighth Supplemental Indenture are inconsistent with, or conflict with, the terms of any Indenture, the terms of this Eighth Supplemental Indenture shall govern.

 

4


Section 3.02 Counterparts. This Eighth Supplemental Indenture may be executed in counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

Section 3.03 Trustee. The Trustee assumes no responsibility for the correctness of the recitals herein contained, which shall be taken as the statements of the Company. The Trustee makes no representations and shall have no responsibility as to the validity or sufficiency of this Eighth Supplemental Indenture or the due authorization and execution hereof by the Company.

Section 3.04 Headings. The Article and Section headings contained herein are for convenience only and shall not affect the construction of this Eighth Supplemental Indenture.

Section 3.05 Governing Law. This Eighth Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.

Section 3.06 Facsimile or Electronic Transmission. Exchange of signature pages to this Eighth Supplemental Indenture by facsimile or electronic transmission shall constitute effective execution and delivery of this Eighth Supplemental Indenture.

[Signature page follows]

 

5


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

 

SPRINT CORPORATION
By:  

/s/ Jud Henry

  Name:   Jud Henry  
  Title:  

Senior Vice President, Finance and

Treasurer

SPRINT COMMUNICATIONS, INC.
By:  

/s/ Jud Henry

  Name:   Jud Henry  
  Title:   Vice President and Treasurer

 

 

[Seventh Supplemental Indenture]


T-MOBILE USA, INC.
By:  

/s/ J. Braxton Carter

  Name: J. Braxton Carter
  Title:    Executive Vice President and
     Chief Financial Officer
T-MOBILE US, INC.
By:  

/s/ J. Braxton Carter

  Name: J. Braxton Carter
  Title:      Executive Vice President and
       Chief Financial Officer

 

 

[Seventh Supplemental Indenture]


THE BANK OF NEW YORK MELLON TRUST

COMPANY, N.A., as Trustee

By:  

/s/ Manjari Purkayastha

  Name:   Manjari Purkayastha
  Title:   Vice President

 

 

[Eighth Supplemental Indenture]

EX-10.3

Exhibit 10.3

 

 

 

CREDIT AGREEMENT

dated as of

April 1, 2020

among

T-MOBILE USA, INC.,

THE LENDERS PARTY HERETO

and

DEUTSCHE BANK AG NEW YORK BRANCH,

as Administrative Agent,

and

DEUTSCHE BANK SECURITIES INC., CREDIT SUISSE LOAN FUNDING LLC, GOLDMAN SACHS

BANK USA, BARCLAYS BANK PLC, MORGAN STANLEY SENIOR FUNDING, INC. and RBC

CAPITAL MARKETS1,

as Joint Lead Arrangers, Joint Lead Bookrunners and Syndication Agents for the Revolving Credit Facility,

and

CREDIT SUISSE LOAN FUNDING LLC, DEUTSCHE BANK SECURITIES INC., GOLDMAN SACHS

BANK USA, BARCLAYS BANK PLC, MORGAN STANLEY SENIOR FUNDING, INC. and RBC

CAPITAL MARKETS,

as Joint Lead Arrangers, Joint Lead Bookrunners and Syndication Agents for the Term Loan Facility,

and

BNP PARIBAS SECURITIES CORP.,

COMMERZBANK AG, NEW YORK BRANCH,

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

TD SECURITIES (USA) LLC

and

WELLS FARGO SECURITIES, LLC,

as Bookrunners for the Revolving Credit Facility and

Co-Managers for the Term Loan Facility,

and

BANCO SANTANDER, S.A., NEW YORK BRANCH,

SOCIETE GENERALE,

SUNTRUST ROBINSON HUMPHREY, INC.

NATWEST MARKETS PLC

and

U.S. BANK NATIONAL ASSOCIATION,

as Co-Managers

 

 

 

 

 

1 

RBC Capital Markets is a brand name for the capital markets activities of Royal Bank of Canada and its affiliates.


TABLE OF CONTENTS

 

SECTION 1.

 

DEFINITIONS

     1  

1.1

  Defined Terms      1  

1.2

  Other Definitional Provisions      84  

1.3

  Classification of Loans and Borrowings      85  

1.4

  Accounting Terms; GAAP      85  

1.5

  Pro Forma Calculations; Certain Calculations and Tests      86  

1.6

  Classification of Permitted Items      87  

1.7

  Rounding      87  

1.8

  Timing of Payment or Performance      87  

1.9

  Currency Equivalents Generally      88  

1.10

  LIBOR Replacement      88  

SECTION 2.

 

AMOUNT AND TERMS OF COMMITMENTS

     89  

2.1

  Term Loan Commitments      89  

2.2

  Procedure for Borrowing Term Loans      89  

2.3

  Repayment of Term Loans      90  

2.4

  Revolving Credit Commitments      90  

2.5

  Loans and Borrowings      90  

2.6

  Request for Revolving Credit Borrowing      92  

2.7

  Letters of Credit      92  

2.8

  Funding of Borrowings      99  

2.9

  Interest Elections      100  

2.10

  Termination and Reduction of Commitments      101  

2.11

  Repayment of Revolving Credit Loans; Evidence of Debt      102  

2.12

  Prepayment of Loans      103  

2.13

  Fees      106  

2.14

  Mandatory Prepayments      107  

2.15

  Interest      110  

2.16

  Alternate Rate of Interest      110  

2.17

  Increased Costs      111  

2.18

  Break Funding Payments      113  

2.19

  Taxes      113  

2.20

  Payments Generally; Pro Rata Treatment; Sharing of Set-offs      117  

2.21

  Mitigation Obligations; Replacement of Lenders      119  

2.22

  Defaulting Lenders      121  

2.23

  Incremental Facilities; Incremental Equivalent Debt      123  

2.24

  Replacement Facilities      128  

2.25

  Extensions of Term Loans and Revolving Commitments      132  

SECTION 3.

 

REPRESENTATIONS AND WARRANTIES

     136  

3.1

  Financial Condition      136  

3.2

  No Change      137  

3.3

  Corporate Existence; Compliance with Law      137  

3.4

  Power; Authorization; Enforceable Obligations      137  

 

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3.5

  No Legal Bar      138  

3.6

  Litigation      138  

3.7

  No Default      138  

3.8

  Ownership of Property; Liens      139  

3.9

  Intellectual Property      139  

3.10

  Taxes      139  

3.11

  Federal Regulations      139  

3.12

  Labor Matters      139  

3.13

  ERISA.      139  

3.14

  Investment Company Act      141  

3.15

  [Reserved]      141  

3.16

  Use of Proceeds      141  

3.17

  Environmental Matters      141  

3.18

  Accuracy of Information, Etc      141  

3.19

  Security Documents      141  

3.20

  Solvency      143  

3.21

  PATRIOT Act; FCPA; OFAC; Sanctions      143  

SECTION 4.

 

CONDITIONS PRECEDENT

     143  

4.1

  Conditions to Closing Date      143  

4.2

  Conditions to Each Borrowing Date      147  

SECTION 5.

 

AFFIRMATIVE COVENANTS

     148  

5.1

  Financial Statements      148  

5.2

  Certificates; Other Information      149  

5.3

  Payment of Obligations      150  

5.4

  Maintenance of Existence; Compliance      150  

5.5

  Maintenance of Property; Insurance      150  

5.6

  Inspection of Property; Books and Records; Discussions.      151  

5.7

  Notices      151  

5.8

  Environmental Laws      152  

5.9

  Additional Collateral, New Subsidiaries, Etc      152  

5.10

  Use of Proceeds      154  

5.11

  Further Assurances      154  

5.12

  Maintenance of Ratings      154  

5.13

  Designation of Subsidiaries.      154  

5.14

  Post-Closing Matters      155  

SECTION 6.

 

NEGATIVE COVENANTS

     155  

6.1

  Restricted Payments      155  

6.2

  Dividend and Other Payment Restrictions Affecting Subsidiaries      161  

6.3

  Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock      164  

6.4

  Asset Sales      170  

6.5

  Transactions with Affiliates      172  

6.6

  Liens      175  

6.7

  Merger, Consolidation, or Sale of Assets      175  

6.8

  Financial Covenant      177  

 

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SECTION 7.

 

EVENTS OF DEFAULT

     177  

7.1

  Events of Default      177  

7.2

  Action in Event of Default      180  

7.3

  Clean Up Period      181  

7.4

  Application of Proceeds.      182  

SECTION 8.

 

THE AGENTS

     183  

8.1

  Appointment      183  

8.2

  Delegation of Duties      184  

8.3

  Exculpatory Provisions      184  

8.4

  Reliance by Administrative Agent      185  

8.5

  Notice of Default      185  

8.6

  Non-Reliance on Agents and Other Lenders; Certain ERISA Matters      186  

8.7

  Indemnification      188  

8.8

  Agent in Its Individual Capacity      188  

8.9

  Successor Administrative Agent      188  

8.10

  [Reserved]      189  

8.11

  Withholding Tax      189  

8.12

  Proofs of Claim      189  

SECTION 9.

 

MISCELLANEOUS

     190  

9.1

  Notices      190  

9.2

  Waivers; Amendments      197  

9.3

  Expenses; Indemnity; Damage Waiver      199  

9.4

  Successors and Assigns      206  

9.5

  Survival      206  

9.6

  Counterparts; Integration; Effectiveness      206  

9.7

  Severability      206  

9.8

  Right of Setoff      207  

9.9

  Governing Law; Jurisdiction; Consent to Service of Process      208  

9.10

  WAIVER OF JURY TRIAL      208  

9.11

  Headings      208  

9.12

  Confidentiality      210  

9.13

  PATRIOT Act; “Know Your Customer” Checks      210  

9.14

  Acknowledgment and Consent to Bail-In of Affected Financial Institutions      210  

9.15

  Release of Liens and Guarantees; Secured Parties      213  

9.16

  No Fiduciary Duty      213  

9.17

  Interest Rate Limitation      213  

9.18

  Intercreditor Agreements      214  

9.19

  Conflicts.      214  

9.20

  Execution of Assignments and Certain Other Documents      215  

 

- iii -


SCHEDULES:

 

1.1(a)

 

Closing Date Refinancing Indebtedness

1.1(b)

 

Existing Rollover Letters of Credit

1.1(c)

 

Unrestricted Subsidiaries

1.1(d)

 

Unsecured SPV Holdcos

1.1(e)

 

Existing Financing Subsidiaries

2.1

 

Lenders and Issuing Banks

3.3

 

Governmental Requirements

3.4

 

Consents, Approvals, Registrations and Filings

3.8

 

Title Exceptions

3.9

 

Intellectual Property Exceptions

4.1(j)

 

Local Counsel Opinions

5.14

 

Post-Closing Matters

EXHIBITS:

 

A

 

Form of Collateral Agreement

B

 

Form of Guarantee Agreement

C

 

Form of Compliance Certificate

D

 

Form of Closing Certificate

E-1

 

Form of Assignment and Assumption

E-2

 

Form of Affiliated Lender Assignment and Assumption

F

 

Form of Senior Pari Passu Intercreditor Agreement

G-1

 

Form of Term Note

G-2

 

Form of Revolving Note

H-1H-4

 

Forms of US Tax Compliance Certificates

I

 

Form of Borrowing Request

J

 

Form of Solvency Certificate

 

 

- iv -


CREDIT AGREEMENT (this “Agreement”), dated as of April 1, 2020, among T-MOBILE USA, INC., a Delaware corporation (the “Borrower”), the several banks and other financial institutions or entities from time to time parties to this Agreement as lenders and issuing banks and DEUTSCHE BANK AG NEW YORK BRANCH, as administrative agent (together with its successors and permitted assigns in such capacity, the “Administrative Agent”).

PRELIMINARY STATEMENTS

WHEREAS, pursuant to that certain Business Combination Agreement, dated as of April 29, 2018 (such agreement, together with all schedules and exhibits thereto, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Business Combination Agreement”) by and among T-Mobile US, Inc., Huron Merger Sub LLC, Superior Merger Sub Corporation, Sprint Corporation, Starburst I, Inc., Galaxy Investment Holdings, Inc., Deutsche Telekom AG, Deutsche Telekom Holding B.V. and Softbank Group Corp., Parent will acquire (the “Acquisition”), directly or indirectly, all of the outstanding equity interests of Sprint and its direct and indirect subsidiaries;

WHEREAS, in connection with the Acquisition and for other purposes described herein, the Lenders agreed to extend certain credit facilities consisting of (i) Term Loans made available to the Borrower in an aggregate principal amount of $4,000.0 million and (ii) Revolving Credit Commitments (which Revolving Credit Commitments include the subfacilities as set forth herein with respect to Letters of Credit) made available to the Borrower in an aggregate principal amount of $4,000.0 million.

WHEREAS, the Borrower has agreed to secure all of its Obligations by granting to the Collateral Trustee, for the benefit of the Secured Parties, a lien on substantially all of its assets (subject to certain limitations set forth in the Loan Documents); and

WHEREAS, each Guarantor has agreed to guarantee the Obligations of the Borrower and each Guarantor (other than the Unsecured Guarantors) has agreed to secure its respective Obligations by granting to the Collateral Trustee, for the benefit of the Secured Parties, a lien on substantially all of its assets (subject, in each case, to certain limitations set forth in the Loan Documents);

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

SECTION 1. DEFINITIONS

1.1 Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.

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


Acquired Debt” with respect to any specified Person:

(a) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Restricted Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Restricted Subsidiary of, such specified Person; and

(b) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.

The term “Acquired Debt” does not include Indebtedness of a Person that is redeemed, defeased, retired or otherwise repaid at the time of, or immediately upon, consummation of the transactions by which such Person becomes a Restricted Subsidiary or acquires such asset, as the case may be.

Acquisition”: as defined in the recitals hereto.

Additional Agreement”: as defined in Section 9.18 hereof.

Additional Lenders”: any Eligible Assignee that makes an Incremental Term Loan or Replacement Term Loan or extends Incremental Revolving Commitments or a Replacement Revolving Credit Facility pursuant to Section 2.23 or 2.24.

Adjusted LIBO Rate”: with respect to any Eurodollar Borrowing, for any Interest Period, an interest rate per annum equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that the Adjusted LIBO Rate shall in no event be less than 0.00%.

Administrative Agent”: as defined in the preamble hereto.

Administrative Questionnaire”: an administrative questionnaire in a form supplied by the Administrative Agent.

Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.

Affiliate”: as to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.

Affiliated Lender”: any Lender that is an Affiliate of the Borrower and any Affiliate of such Lender, other than (a) Parent, the Borrower or any Subsidiary of the Borrower or (b) any natural Person.

 

-2-


Affiliated Lender Assignment and Assumption”: an assignment and assumption entered into by a Lender and an Affiliated Lender (with the consent of any party whose consent is required by Section 9.4), and accepted by the Administrative Agent, in the form of Exhibit E-2 or any other form approved by the Administrative Agent and the Borrower.

Affiliate Transaction”: as defined in Section 6.5(a).

Agent Indemnitee”: as defined in Section 8.7.

Agents”: the collective reference to the Administrative Agent, the Collateral Trustee and the Syndication Agents.

Aggregate Exposure”: with respect to any Lender at any time, an amount equal to (a) until the Closing Date (or, in the case of any Incremental Facility, the Incremental Facility Closing Date), the aggregate amount of such Lender’s Commitments at such time and (b) thereafter, the sum of (x) the aggregate then unpaid principal amount of such Lender’s Term Loans and (y) the aggregate amount of such Lender’s Revolving Credit Commitment then in effect or, if the Revolving Credit Commitments have been terminated or expired, the aggregate amount of such Lender’s Revolving Credit Exposure.

Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time.

Agreement”: as defined in the preamble hereto.

Alternate Base Rate”: for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1.00% and (c) the Adjusted LIBO Rate that would be calculated as of such day (or, if such day is not a Business Day, as of the next preceding Business Day) in respect of a proposed Eurodollar Loan with a one-month Interest Period plus 1.00%; provided that for the purpose of clause (c), the Adjusted LIBO Rate for any day shall be based on the rate determined on such day at approximately 11:00 a.m. (London time) by reference to the ICE Benchmark Administration Limited (or such other Person that takes over the administration of such rate) LIBO Rate for deposits in US Dollars (as set forth by any service selected by the Administrative Agent that has been nominated by the ICE Benchmark Administration Limited (or such other Person that takes over the administration of such rate) as an authorized vendor for the purpose of displaying such rates). If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the immediately preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or such Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or such Adjusted LIBO Rate, respectively.

Applicable Discount”: as defined in Section 2.12(f)(iii).

 

-3-


Applicable Margin”: with respect to:

(a) any Revolving Credit Loan, (i) initially, 0.25% per annum in the case of ABR Loans and 1.25% per annum in the case of Eurodollar Loans and (ii) from and after the first Business Day immediately following the delivery to the Administrative Agent of a Compliance Certificate (pursuant to Section 5.2(a)), with respect to the fiscal quarter of Parent ending September 30, 2020 and each fiscal quarter thereafter wherein the Total First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period, is (A) greater than 0.75 to 1.00, 0.25% per annum in the case of ABR Loans and 1.25% per annum in the case of Eurodollar Loans or (B) less than or equal to 0.75 to 1.00, 0.00% per annum in the case of ABR Loans and 1.00% per annum in the case of Eurodollar Loans.

(b) any Initial Term Loan, 2.00% per annum in the case of ABR Loans and 3.00% per annum in the case of Eurodollar Loans;

(c) any Incremental Facility, the rate or rates per annum set forth in the applicable Incremental Facility Amendment;

(d) any Extended Revolving Credit Commitment or Extended Term Loan, the rate or rates per annum specified in the applicable Extension Offer; and

(e) any Replacement Facility, the rate or rates per annum specified in the applicable Replacement Facility Amendment.

Any increase or decrease in the Applicable Margin resulting from a change in the Total First Lien Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 5.2(a).

Notwithstanding the foregoing and only with respect to clauses (a) and (b) of this definition, (i) upon notice by the Administrative Agent to the Borrower or (ii) upon the direction of either the Required Revolving Lenders or the Required Initial Term Lenders with respect to the Revolving Credit Loans or the Initial Term Loans (as applicable), in each case, the Applicable Margin shall be based on the rates per annum set forth in either clause (a)(i) of this definition, in the case of Revolving Credit Loans, or clause (b)(i) of this definition, in the case of Initial Term Loans, if the Borrower fails to deliver the consolidated financial statements required to be delivered pursuant to Section 5.1(a) or 5.1(b) or any Compliance Certificate required to be delivered pursuant to Section 5.2(a), in each case within the time periods specified herein for such delivery, during the period commencing on and including the day of the occurrence of a Default resulting from such failure and until the delivery thereof.

Applicable Percentage”: with respect to any Revolving Credit Lender, the percentage of the Total Revolving Credit Commitments represented by such Lender’s Revolving Credit Commitment. If the Revolving Credit Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Revolving Credit Commitments most recently in effect, after giving effect to any assignments. The Applicable Percentage shall be adjusted appropriately, as determined by the Administrative Agent, in accordance with Section 2.22(c) to disregard the Revolving Credit Commitment of Defaulting Lenders.

 

-4-


Approved Fund”: any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit as its primary activity and 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.

Arrangers”: the collective reference to (i) with respect to the Revolving Credit Facility, Deutsche Bank Securities Inc., Credit Suisse Loan Funding LLC, Goldman Sachs Bank USA, Barclays Bank PLC, Morgan Stanley Senior Funding, Inc., RBC Capital Markets, BNP Paribas Securities Corp., Commerzbank AG, New York Branch, Credit Agricole Corporate and Investment Bank, TD Securities (USA) LLC, Wells Fargo Securities, LLC, Banco Santander, S.A., New York Branch, SOCIETE GENERALE, SunTrust Robinson Humphrey, Inc., NatWest Markets Plc and U.S. Bank National Association and (ii) with respect to the Term Loan Facility, Credit Suisse Loan Funding LLC, Deutsche Bank Securities Inc., Goldman Sachs Bank USA, Barclays Bank PLC, Morgan Stanley Senior Funding, Inc., RBC Capital Markets, BNP Paribas Securities Corp., Commerzbank AG, New York Branch, Credit Agricole Corporate and Investment Bank, TD Securities (USA) LLC, Wells Fargo Securities, LLC, Banco Santander, S.A., New York Branch, SOCIETE GENERALE, SunTrust Robinson Humphrey, Inc., NatWest Markets Plc and U.S. Bank National Association.

Asset Acquisition”:

(a) an Investment by the Borrower or any of its Restricted Subsidiaries in any other Person pursuant to which such Person shall become a Restricted Subsidiary or shall be merged into or consolidated with the Borrower or any of its Restricted Subsidiaries, or

(b) an acquisition by the Borrower or any of its Restricted Subsidiaries of the property and assets of any Person, other than the Borrower or any of its Restricted Subsidiaries, that constitute all or substantially all of a division, operating unit or line of business of such Person .

Asset Disposition”: the sale or other disposition (including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division) by the Borrower or any of its Restricted Subsidiaries other than to the Borrower or another Restricted Subsidiary of (1) all or substantially all of the Capital Stock owned by the Borrower or any of its Restricted Subsidiaries of any Restricted Subsidiary or any Person that is a Permitted Joint Venture Investment or (2) all or substantially all of the assets that constitute a division, operating unit or line of business of the Borrower or any of its Restricted Subsidiaries.

Asset Sale”:

(a) the sale, lease, conveyance or other disposition of any assets or rights (including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division); provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries taken as a whole will be governed by Section 6.7 hereof and not by the provisions of Section 6.4 hereof; and

 

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(b) the issuance of Equity Interests in any of the Borrower’s Restricted Subsidiaries or the sale by the Borrower or any Restricted Subsidiary thereof of Equity Interests in any of its Restricted Subsidiaries (other than (x) directors’ qualifying shares or shares or interests required to be held by non-U.S. nationals or other third parties to the extent required by applicable law or (y) Preferred Stock or Disqualified Stock of a Restricted Subsidiary issued in compliance with Section 6.3):

Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:

(a) any single transaction or series of related transactions that involves assets having a Fair Market Value of less than the greater of $250.0 million and 1.00% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period;

(b) a sale, lease, conveyance or other disposition of assets or Equity Interests between or among the Borrower and/or its Restricted Subsidiaries;

(c) an issuance or sale of Equity Interests by a Restricted Subsidiary of the Borrower to the Borrower or to a Restricted Subsidiary of the Borrower;

(d) the sale, lease, sublease, conveyance or other disposition of (a) assets, products, services or accounts receivable in the ordinary course of business, (b) equipment or other assets pursuant to a program for the maintenance or upgrading of such equipment or assets, or (c) damaged, worn-out, uneconomic or obsolete assets in the ordinary course of business;

(e) the sale, conveyance or other disposition of cash or Cash Equivalents;

(f) a surrender or waiver of contract rights or settlement, release or surrender of contract, tort or other claims in the ordinary course of business or a grant of a Lien not prohibited by this Agreement;

(g) a Restricted Payment that does not violate Section 6.1 hereof;

(h) arm’s-length sales, leases or subleases (as lessor or sublessor), sale and leasebacks, assignments, conveyances, transfers or other dispositions of assets or rights to a Person that is a Permitted Joint Venture Investment;

(i) licenses and sales of Intellectual Property or other general intangibles (other than FCC Licenses) in the ordinary course of business;

(j) a Permitted Investment;

(k) the Dish Transactions and the Consent Decree Transactions;

(l) one or more sales, conveyances, leases, subleases, licenses, contributions, or other dispositions, assignments or transfers made as part of, or in connection with, any Permitted Tower Financing or Permitted Spectrum Financing;

 

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(m) dispositions of financial assets and related assets pursuant to securitization or factoring agreements or other similar agreements or arrangements including to a Permitted Receivables Financing Subsidiary in connection with a Permitted Receivables Financing, to a Permitted Tower Financing Subsidiary in connection with a Permitted Tower Financing, or to a Permitted Spectrum Financing Subsidiary in connection with a Permitted Spectrum Financing, in each case so long as the consideration for any such disposition is in the form of cash, retained Capital Stock or subordinated interests in such Permitted Receivables Financing Subsidiary, Permitted Tower Financing Subsidiary or Permitted Spectrum Financing Subsidiary, as applicable, or deferred purchase price paid from or collections on subordinated interests in the assets being sold;

(n) any Sale Leaseback Transactions;

(o) the settlement or early termination of any Permitted Bond Hedge Transaction or the unwinding of any other Hedging Obligations;

(p) any issuance, disposition or sale of Equity Interests in, or Indebtedness, assets or other securities of, an Unrestricted Subsidiary (other than any Unrestricted Subsidiary the primary assets of which consist of cash and Cash Equivalents);

(q) sales of assets received by the Borrower or any Restricted Subsidiary upon the foreclosure of a Lien;

(r) the sale, lease, assignment, license or sublease of inventory, equipment, accounts receivable, notes receivable or other current assets held for sale, lease, assignment, license or sublease and/or assets in connection with the lease of network assets such as mobile virtual network operator (MVNO) arrangements, in each case in the ordinary course of business, or the conversion of accounts receivable into a notes receivable;

(s) the lease, assignment or sublease of any real or personal property in the ordinary course of business and dispositions to landlords of improvements made to leased real property pursuant to customary terms of leases;

(t) any exchange of assets for assets (including a combination of assets and Cash Equivalents) related to a Permitted Business of comparable or greater market value, as determined in good faith by the Borrower;

(u) any sale or other disposition deemed to occur with creating, granting or perfecting a Lien not otherwise prohibited by this Agreement or the Loan Documents;

(v) foreclosures, condemnations, casualty events or any similar action on assets;

(w) sales of non-core assets to obtain the approval of Governmental Authorities in connection with the Acquisition;

(x) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

 

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(y) [reserved]; and

(z) the lapse, abandonment or other disposition of intellectual property rights in the ordinary course of business, which in the reasonable good faith determination of the Borrower are no longer commercially reasonable to maintain or are not material to the conduct of the business of the Borrower and the Restricted Subsidiaries, taken as a whole.

Asset Sale Percentage”: 100%; provided that the Asset Sale Percentage shall be reduced to (i) 75% if the Total First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the most recently ended Test Period, is less than or equal to 0.75 to 1.00 but greater than 0.50 to 1.00 and (ii) 50% if the Total First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the most recently ended Test Period, is less than or equal to 0.50 to 1.00.

Assignment and Assumption”: an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.4) and accepted by the Administrative Agent, in the form of Exhibit E-1 or any other form approved by the Administrative Agent and the Borrower.

Auction”: as defined in Section 2.12(f).

Auction Amount”: as defined in Section 2.12(f).

Auction Notice”: as defined in Section 2.12(f).

Auto Renewal Letter of Credit”: as defined in Section 2.7(c).

Availability Period”: with respect to the Revolving Credit Facility, the period from and after the Closing Date to but excluding the earlier of the Revolving Credit Maturity Date and the date of termination in full of the Revolving Credit Commitments.

Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

Bail-In Legislation”: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

Bankruptcy Event”: with respect to any Person, (i) any case, action or proceeding before any court or Governmental Authority relating to a bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or the appointment of a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar person charged with the reorganization or liquidation of its business, or, in the good faith

 

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determination of the Administrative Agent, the taking of any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, or (ii) any general assignment for the benefit of creditors, formal or informal moratorium, marshaling of assets for creditors or other, similar arrangement in respect of creditors generally or any substantial portion of its creditors, in each case undertaken under any Bankruptcy Law; provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof; provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

Bankruptcy Law”: the United States Bankruptcy Code (11 U.S.C. Section 1.1 et seq.) or any similar federal or state law for the relief of debtors.

Beneficial Owner”: has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that (a) in calculating the Beneficial Ownership of any particular “person” (as such term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have Beneficial Ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time and (b) in the case of a “group” (as such term is used in Rule 13d 5(b)(1) under the Exchange Act) which group includes one or more Permitted Holders (or one or more Permitted Holders is deemed to share Beneficial Ownership with one or more other persons of any shares of Capital Stock), (i) such “group” shall be deemed not to have beneficial ownership of any shares held by such Permitted Holder and (ii) any person (other than such Permitted Holder) that is a member of such group (or sharing such Beneficial Ownership) shall be deemed not to have Beneficial Ownership of any shares held by such Permitted Holder (or in which any such Person shares beneficial ownership). The term “Beneficial Ownership” has a corresponding meaning.

Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230.

Beneficial Tax Owner”: as defined in the definition of “Excluded Taxes”.

Benefit Plan”: any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor thereto).

Board of Directors”:

(a) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;

 

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(b) with respect to a partnership, the board of directors or managing member of the general partner of the partnership;

(c) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and

(d) with respect to any other Person, the board or committee of such Person serving a similar function.

Boost Asset Purchase Agreement” means the Asset Purchase Agreement, dated as of July 26, 2019, among T-Mobile US, Inc., Sprint Corporation and DISH Network Corporation and any exhibits thereto, as amended, restated, amended and restated, supplemented or otherwise modified or replaced (including a replacement involving different counterparties) from time to time.

Boost Assets” means all assets that were sold by the Borrower, Sprint or any of their Subsidiaries pursuant to the Boost Asset Purchase Agreement upon the effectiveness of their sale, other than Excluded Assets (as defined in the Boost Asset Purchase Agreement).

Borrower”: as defined in the preamble hereto.

Borrower Materials”: as defined in Section 9.1.

Borrowing”: Loans of the same Class and Type, made, converted, or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

Borrowing Date”: any Business Day specified by the Borrower as a date on which the Borrower requests the relevant Lenders to make Loans hereunder.

Borrowing Request”: a request by the Borrower for a Borrowing substantially in the form of Exhibit I.

Bridge Credit Agreement ”: the Bridge Term Loan Credit Agreement, dated as of April 1, 2020, among the Borrower, the lenders party thereto and Goldman Sachs Bank USA, as Administrative Agent.

Bridge Facility”: the senior secured term loan facility provided pursuant to the Bridge Credit Agreement in an aggregate principal amount of up to $19,000.0 million less the amount of any Permanent Financing.

Business Combination Agreement”: as defined in the preliminary statements hereto.

Business Combination Agreement Representations”: such of the representations made by Sprint in the Business Combination Agreement as are material to the interests of the Lenders, but only to the extent the Borrower (or its affiliates) has the right under the Business Combination Agreement to terminate its obligations under the Business Combination Agreement or not to consummate the Acquisition as a result of such representations in the Business Combination Agreement being inaccurate.

 

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Business Day”: any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in US Dollar deposits in the London interbank market.

Capital Expenditures”: for any period, with respect to any Person, the aggregate of all expenditures by such Person for the acquisition or leasing (pursuant to a financing lease) of fixed or capital assets or additions to equipment (including replacements, capitalized repairs and improvements during such period) that are required to be capitalized under GAAP on a balance sheet of such Person, it being understood that Capital Expenditures do not include amounts expended to purchase assets constituting an on-going business, including investments that constitute Permitted Acquisitions.

Capital Stock”:

(a) in the case of a corporation, corporate stock;

(b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(c) in the case of an exempted company, shares;

(d) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests, respectively; and

(e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

Captive Insurance Subsidiary”: any direct or indirect Subsidiary of Borrower that bears financial risk or exposure relating to insurance or reinsurance activities and any segregated accounts associated with any such Person.

Cash Equivalents”:

(a) United States dollars, pounds sterling, euros, Canadian dollars, Swiss francs, the national currency of any member state of the European Union or any other foreign currencies held by the Borrower and its Restricted Subsidiaries from time to time in the ordinary course of business;

(b) securities issued or directly and fully guaranteed or insured by the government of the United States of America, Canada, the United Kingdom, Switzerland or any country that is a member of the European Union or any agency or instrumentality thereof (provided that the full faith and credit of the United States, Canada, the United Kingdom, Switzerland or the relevant member state of the European Union, as the case may be, is pledged in support of those securities) having maturities of not more than two years from the date of acquisition;

 

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(c) demand deposits, certificates of deposit and Eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $250.0 million, in the case of U.S. banks, and $100.0 million (or the foreign currency equivalent thereof), in the case of non-U.S. banks;

(d) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c) above;

(e) commercial paper having one of the two highest ratings obtainable from a Rating Agency at the date of acquisition and, in each case, maturing within one year after the date of acquisition;

(f) securities issued and fully guaranteed by any state, commonwealth or territory of the United States, Canada, any country that is a member of the European Union, the United Kingdom or Switzerland or by any political subdivision or agency or instrumentality of the foregoing, rated at least “A” (or the equivalent thereof) by a Rating Agency at the date of acquisition and having maturities of not more than two years after the date of acquisition;

(g) auction rate securities rated at least “AA-” or “Aa3” (or the equivalent thereof) by a Rating Agency at the time of purchase and with reset dates of one year or less from the time of purchase;

(h) investments, classified in accordance with GAAP as current assets of the Borrower or any of its Restricted Subsidiaries, in money market funds, mutual funds or investment programs registered under the Investment Company Act of 1940, at least 90% of the portfolios of which constitute investments of the character, quality and maturity described in clauses (a) through (g) of this definition;

(i) any substantially similar investment to the kinds described in clauses (a) through (g) of this definition rated at least “P-2” by Moody’s or “A-2” by S&P or the equivalent thereof; and

(j) deposits or payments made to the FCC in connection with the auction or licensing of Governmental Authorizations that are fully refundable.

Cash Management Agreement”: any agreement in respect of Cash Management Obligations.

Cash Management Obligations”: obligations owed by any Group Member to any Qualified Counterparty in respect of or in connection with Cash Management Services and designated by such Qualified Counterparty and the Borrower in writing to the Administrative Agent and the Collateral Trustee as a “Cash Management Obligation”, solely to the extent such obligations owed by any Group Member are primary obligations of a Loan Party or are guaranteed by a Loan Party.

 

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Cash Management Services”: any cash management facilities or services including treasury, depositary, disbursement, lockbox, funds transfer, pooling, netting, overdraft, stored value card, purchase card (including so-called “procurement cards” or “P-cards”), debit card, credit card, e-payable, cash management and similar services and any automated clearing house transfer of funds.

CFC”: a “controlled foreign corporation” within the meaning of Section 957 of the Code.

Change in Law”: (a) the adoption of any law, rule, regulation or treaty after the date of this Agreement or, if later, the date on which the applicable Lender or Issuing Bank becomes a Lender or Issuing Bank hereunder, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or, if later, the date on which the applicable Lender or Issuing Bank becomes a Lender or Issuing Bank hereunder or (c) compliance by any Lender or Issuing Bank (or, for purposes of Section 2.17(b), by any lending office of such Lender or Issuing Bank or by such Lender’s or Issuing Bank’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement or, if later, the date on which the applicable Lender or Issuing Bank becomes a Lender or Issuing Bank hereunder; provided that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives promulgated thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted, promulgated or issued.

Change of Control”: the occurrence of any of the following:

(a) the consummation of any transaction (including any merger or consolidation), the result of which is that any “person” (as defined above), other than a Permitted Holder, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of Parent (or its successor by merger, consolidation or purchase of all or substantially all of its assets or its equity), measured by voting power rather than number of shares; or

(b) the Borrower ceases to be a direct or indirect Wholly Owned Subsidiary of Parent;

provided that the Transactions, including the Acquisition, and the other transactions specifically contemplated by the Business Combination Agreement (including the changes to the Beneficial Ownership of the Voting Stock of Parent contemplated therein) shall not be a Change of Control.

 

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Change of Control Triggering Event”: the occurrence of a Change of Control (x) that is accompanied or followed by a downgrade by one or more gradations (including gradations within ratings categories as well as between ratings categories) or withdrawal of the corporate rating of the Borrower within the Ratings Decline Period by at least two out of the three Rating Agencies and (y) the corporate rating of the Borrower on any day during such Ratings Decline Period is below the rating by each such Rating Agency in effect immediately preceding the first public announcement of the Change of Control (or occurrence thereof if such Change of Control occurs prior to public announcement), provided that in making the relevant decision(s) referred to above to downgrade or withdraw such ratings, as applicable, the relevant Rating Agency announces publicly or confirms in writing during such Ratings Decline Period that such decision(s) resulted, in whole or in part, from the occurrence (or expected occurrence) of such Change of Control or the announcement of the intention to effect such Change of Control; provided, further, that no Change of Control Triggering Event shall be deemed to occur if at the time of the applicable downgrade the corporate rating of the Borrower by at least two out of the three Rating Agencies is investment grade.

Class”: (a) when used with respect to Lenders, refers to whether such Lenders are Revolving Credit Lenders, Term Loan Lenders, Incremental Revolving Lenders (of the same tranche), Lenders in respect of Incremental Term Loans (of the same tranche), Extending Revolving Credit Lenders (of the same tranche), Lenders in respect of a Replacement Revolving Credit Facility, Extending Term Lenders (of the same tranche) or Lenders in respect of Replacement Term Loans (of the same tranche), (b) when used with respect to Commitments, refers to whether such Commitments are Revolving Credit Commitments, Term Loan Commitments, Incremental Revolving Commitments (of the same tranche), commitments in respect of Incremental Term Loans (of the same tranche), Extended Revolving Credit Commitments (of the same tranche), Replacement Revolving Credit Commitments, commitments in respect of Extended Term Loans (of the same tranche) or commitments in respect of Replacement Term Loans (of the same tranche) and (c) when used with respect to Loans or Borrowings, refers to whether such Loan or the Loans comprising such Borrowing, are Revolving Credit Loans, Term Loans, Incremental Term Loans (of the same tranche), Extended Term Loans (of the same tranche) or Replacement Term Loans (of the same tranche) or other loans in respect of the same Class of Commitments.

Closing Date”: the date on which the conditions precedent set forth in Section 4.1 shall have been satisfied or waived in accordance with Section 9.2.

Closing Date Refinancing”: the repayment, repurchase and retirement, redemption, discharge (including constructive discharge) and/or call for redemption (or causing the applicable borrower or issuer to do so) of the Indebtedness set forth on Schedule 1.1(a).

Code”: the Internal Revenue Code of 1986, as amended.

Collateral”: all Property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is created or purported to be created by any Security Document; provided, however that the Collateral shall not include any Excluded Assets.

Collateral Agreement”: the Collateral Agreement executed by Parent, each Subsidiary of Parent that, directly or indirectly, owns Equity Interests of the Borrower, the Borrower and each Subsidiary Guarantor (other than the Unsecured Guarantors) party thereto from time to time in favor of the Collateral Trustee, substantially in the form of Exhibit A, as the same may be amended, restated, supplemented, replaced or otherwise modified from time to time.

 

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Collateral Trust Agreement”: the Collateral Trust and Intercreditor Agreement, dated as of the date hereof, among Parent, the Borrower, the grantors party thereto, Deutsche Bank AG New York Branch, as first priority agent, the Administrative Agent, as holder representative under the Facilities, Goldman Sachs Bank USA, as holder representative under the Bridge Facility, each other representative of the various secured parties described therein and the Collateral Trustee.

Collateral Trustee” means Deutsche Bank Trust Company Americas, in its capacity as Collateral Trustee under the Collateral Trust Agreement (or any successor collateral trustee thereunder).

Commitment”: with respect to any Lender, a Term Loan Commitment or a Revolving Credit Commitment of such Lender, as the context may require.

Commitment Letter”: the Second Amended and Restated Commitment Letter, dated as of September 6, 2019, among the Arrangers, the Borrower and the other parties thereto.

Commodity Exchange Act”: the Commodity Exchange Act (7 U.S.C. § 1, et seq.), as amended from time to time, and any successor statute.

Commonly Controlled Entity”: an entity, whether or not incorporated, that is under common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group that includes the Borrower and that is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under subsection (b), (c), (m) or (o) of Section 414 of the Code.

Communications”:    as defined in Section 9.1.

Compliance Certificate”: a certificate duly executed by a Responsible Officer, substantially in the form of Exhibit C.

Connection Income Taxes”: Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

Consent Decree Transactions”: all transactions entered into pursuant to the consent decree, originally filed by the U.S. Department of Justice (the “DOJ”) with the U.S. District Court for the District of Columbia on July 26, 2019, as agreed to by the DOJ, T-Mobile, Deutsche Telekom, Sprint, SoftBank Group Corp., and DISH Network Corporation, as it may be further amended or modified.

 

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Consolidated Cash Flow”: with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication:

(a) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

(b) the Consolidated Interest Expense of such Person and its Restricted Subsidiaries for such period, to the extent that such Consolidated Interest Expense was deducted in computing such Consolidated Net Income; plus

(c) depreciation, amortization (including, non-cash impairment charges and any write-off or write-down or amortization of intangibles) and other non-cash expenses or charges (excluding any such non-cash expense to the extent that it represents an ordinary course accrual of or reserve for cash expense in any future period or amortization of any ordinary course prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses or charges were deducted in computing such Consolidated Net Income; plus

(d) any nonrecurring or unusual gains or losses or income, expenses or charges (including all fees and expenses relating thereto), including (i) any fees, expenses and costs relating to any Permitted Tower Financing or any Permitted Spectrum Financing, (ii) any fees, expenses (including legal and professional expenses) or charges (not covered under sub-clause (iv) below) related to any sale or offering of Equity Interests of such Person or Parent or any Investment, acquisition, disposition, dividend, distribution, return of capital, recapitalization or the incurrence of any Indebtedness permitted to be incurred hereunder, including refinancing thereof or the offering, amendment or modification of any debt instrument, including the offering, any amendment or other modification of the Senior Notes (in each case, whether or not successful and whether or not incurred prior to the Closing Date), (iii) any premium, penalty or fee paid in relation to any repayment, prepayment or repurchase of Indebtedness, (iv) any fees or expenses relating to the Transactions and the transactions contemplated in this Agreement, including any fees, expenses or charges related to any incurrence, issuance or offering of Incremental Facilities, Replacement Facilities, Extension Facilities or Incremental Equivalent Debt, or any amendment or modification of this Agreement, any other Loan Document or any documentation governing Incremental Equivalent Debt (in each case, whether or not successful) and (v) restructuring charges, integration costs (including retention, relocation and contract termination costs) and related costs and charges, and costs in connection with strategic initiatives, transition costs and information systems-related costs (including non-recurring employee bonuses in connection therewith and non-recurring product and Intellectual Property development costs); plus

(e) losses or discounts on sales of Permitted Receivables Financing Assets in connection with any Permitted Receivables Financing; plus

(f) [reserved]; plus

 

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(g) the “run rate” expected cost savings, operating expense reductions, other operating improvements and initiatives, restructuring charges and expenses and synergies that are reasonably identifiable, factually supportable and expected in good faith to be realized as a result of actions with respect to which substantial steps have been taken, will be, or are expected in good faith to be, taken within 24 months after the date of any acquisition, disposition, divestiture, restructuring, other operational changes or the implementation of a cost savings or other similar initiative, as applicable (calculated on a pro forma basis as though such cost savings, operating expense reductions, other operating improvements and initiatives, restructuring charges and expenses and synergies had been realized on the first day of such period as if such cost savings, operating expense reductions, other operating improvements and initiatives, restructuring charges and expenses and synergies were realized during the entirety of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such actions or substantial steps have been, will be or are expected to be taken within 24 months after (x) if such cost savings, expense reductions, charge, expense, acquisition, divestiture, restructuring or initiative is initiated on or prior to the Closing Date, the Closing Date or (y) if such cost savings, expense reductions, charge, expense, acquisition, divestiture, restructuring, other operational changes or initiative is initiated after the Closing Date, the date on which such cost savings, expense reductions, charge, expense, acquisition, divestiture, restructuring other operational changes or initiative is initiated and (B) no cost savings, operating expense reductions, restructuring charges and expense or synergies shall be added pursuant to this defined term to the extent duplicative of any expenses or charges otherwise added to Consolidated Cash Flow, whether through a pro forma adjustment or otherwise, for such period (which adjustments may be incremental to pro forma adjustments made pursuant to the definition of “Total Net Leverage Ratio”); provided, further that the aggregate amount added back pursuant to this clause (g) and clause (h) below (excluding addbacks for restructuring and other one-time costs) shall not cumulatively exceed 25% of Consolidated Cash Flow for any Test Period (with such calculation being made prior to giving effect to any increase pursuant to this clause (g) and clause (h) below); plus

(h) in addition to (but not in duplication of) clause (g) above, the “run rate” expected cost savings, operating expense reductions, other operating improvements and initiatives, restructuring charges and expenses and synergies related to the Transactions that are reasonably identifiable, factually supportable and expected in good faith to be realized as a result of actions with respect to which substantial steps have been taken, will be, or are expected in good faith to be, taken within 36 months after the Closing Date (calculated on a pro forma basis as though such cost savings, operating expense reductions, other operating improvements and initiatives, restructuring charges and expenses and synergies had been realized on the first day of such period as if such cost savings, operating expense reductions, other operating improvements and initiatives, restructuring charges and expenses and synergies were realized during the entirety of such period), net of the amount of actual benefits realized during such period from such actions (which actions may be incremental to pro forma adjustments made pursuant to the definition of “Total Net Leverage Ratio”); provided, further that the aggregate amount added back pursuant to this clause (h) and clause (g) above (excluding addbacks for restructuring and other one-time costs) shall not cumulatively exceed 25% of Consolidated Cash Flow for any Test Period (with such calculation being made prior to giving effect to any increase pursuant to this clause (h) and clause (g) above); minus

(i) non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business, in each case, on a consolidated basis and determined in accordance with GAAP.

 

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Notwithstanding the preceding, the provision for taxes based on the income or profits of, and the depreciation and amortization and other non-cash expenses of, a Restricted Subsidiary of the Borrower that is not a Subsidiary Guarantor will be added to Consolidated Net Income to compute Consolidated Cash Flow of the Borrower only to the extent that a corresponding amount would be permitted at the date of determination to be dividended to the Borrower by such Restricted Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its stockholders.

For the avoidance of doubt, calculations of “Consolidated Cash Flow” of the Borrower for any period prior to the Closing Date for purposes of calculating the Total First Lien Net Leverage Ratio, Total Secured Net Leverage Ratio and/or Total Net Leverage Ratio shall be on a pro forma basis as described in the last paragraph of the definition of “Total Net Leverage Ratio”.

Consolidated Current Assets”: of the Borrower at any date, all amounts (other than cash and Cash Equivalents) that would, in conformity with GAAP, be set forth opposite the caption “total current assets” (or any like caption) on a consolidated balance sheet of the Group Members at such date, excluding deferred tax assets, assets held for sale, loans permitted to third parties, pension assets, deferred bank fees and derivative financial instruments, and, furthermore, excluding the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Transactions or any consummated acquisition, but adjusted to include (x) the net book value of devices being used by customers under operating leases and classified as property, plant and equipment as of such date, and (y) (i) the cash proceeds from the sale of accounts receivable in factoring and securitization transactions during the year ended on such date, net of (ii) the amount of cash collected in respect of such accounts receivable that have been sold in such transactions since the inception of such factoring and securitization arrangements, to the extent such cash has been remitted during the year ended on such date to the purchaser of such accounts receivable.

Consolidated Current Liabilities”: of the Borrower at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption “total current liabilities” (or any like caption) on a consolidated balance sheet of the Group Members at such date, excluding, to the extent otherwise included therein, (a) the current portion of any Funded Debt or other long-term liabilities (including Financing Lease Obligations) or interest, (b) revolving loans and letter of credit obligations under the Revolving Credit Facility or any revolving credit facilities or revolving lines of credit, (c) deferred tax liabilities, and (d) non-cash compensation liabilities and, furthermore, excluding the effects of adjustments pursuant to GAAP resulting from the application of recapitalization accounting or purchase accounting, as the case may be, in relation to the Transactions or any consummated acquisition.

 

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Consolidated Indebtedness”: with respect to any Person as of any date of determination, the sum, without duplication, of (i) the total amount of Indebtedness of such Person and its Restricted Subsidiaries described in clauses (a)(1) and (2) (excluding, for the avoidance of doubt, surety bonds, performance bonds and similar instruments) of the definition of “Indebtedness”, determined on a consolidated basis, to the extent required to be recorded on a balance sheet in accordance with GAAP, including, without duplication, the outstanding principal amount of the Loans; provided that Consolidated Indebtedness shall not include (w) Indebtedness incurred in connection with any Permitted Tower Financing or other special purpose entity financing (other than Indebtedness incurred by a Permitted Spectrum Financing Subsidiary, including the Existing Sprint Spectrum Notes), (x) obligations in respect of letters of credit (including Letters of Credit), except to the extent of any unreimbursed amounts thereunder or (y) Indebtedness constituting Financing Lease Obligations, purchase money debt or other similar Indebtedness.

Consolidated Interest Expense”: with respect to any Person for any period, the sum of, without duplication:

(a) the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued (including amortization of debt issuance costs or original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Financing Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of payments (if any) pursuant to Hedging Obligations); plus

(b) [reserved]; plus

(c) any interest expense on that portion of Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries (whether or not such Guarantee or Lien is called upon); plus

(d) the product of (x) all dividend payments on any series of Preferred Stock of such Person or any of its Restricted Subsidiaries, times (y) a fraction, the numerator of which is one and the denominator of which is one minus the then-current combined federal, state and local statutory tax rate of such Person, expressed as a decimal;

in each case, on a consolidated basis and in accordance with GAAP; excluding, however, (i) any amount of such interest of any Restricted Subsidiary of the referent Person if the net income of such Restricted Subsidiary is excluded in the calculation of Consolidated Net Income pursuant to clause (b) of the definition thereof (but only in the same proportion as the net income of such Restricted Subsidiary is excluded from the calculation of Consolidated Net Income pursuant to clause (b) of the definition thereof), (ii) annual agency fees paid to the administrative agents and collateral agents or similar agents under this Agreement or other credit facilities, (iii) any additional interest with respect to failure to comply with any registration rights agreement owing with respect to any securities, (iv) costs associated with obtaining Swap Obligations, (v) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with the Transactions or any acquisition, (vi) penalties and interest relating to taxes, (vii) any “additional interest” or “liquidated damages” with respect to other securities for failure to timely comply with registration rights obligations, (viii) amortization or expensing of deferred financing fees, amendment and consent fees, debt issuance costs, commissions, fees, expenses and discounted

 

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liabilities and any other amounts of non-cash interest, (ix) any expensing of bridge, commitment and other financing fees and any other fees related to the Transactions or any acquisitions after the Closing Date, (x) any accretion of accrued interest on discounted liabilities and any prepayment premium or penalty, (xi) interest expense attributable to a parent entity resulting from push-down accounting, and (xii) any lease, rental or other expense in connection with a non-financing lease.

Consolidated Net Income”: with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:

(a) the positive Net Income of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person;

(b) solely for the purpose of determining the amount available for Restricted Payments under clause (iii)(A) of Section 6.1(a) hereof, the Net Income of any Restricted Subsidiary that is not a Guarantor will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders;

(c) the effect of a change in accounting principles or in the application thereof (including any change to IFRS and any cumulative effect adjustment), in each case, will be excluded;

(d) unrealized losses and gains attributable to Hedging Obligations, including those resulting from the application of the Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) 815, will be excluded;

(e) any non-cash compensation charge or expense realized from grants of stock, stock appreciation or similar rights, stock option or other rights to officers, directors and employees will be excluded;

(f) all extraordinary, unusual or non-recurring charges, gains and losses including, without limitation, all restructuring costs, severance costs, one-time compensation charges, transition costs, facilities consolidation, closing or relocation costs, costs incurred in connection with any acquisition (including the Acquisition) prior to or after the Closing Date (including integration costs), including all fees, commissions, expenses and other similar charges of accountants, attorneys, brokers and other financial advisors related thereto and cash severance payments made in connection with acquisitions, and any expense or charge related to the repurchase of Capital Stock or warrants or options to purchase Capital Stock), will be excluded;

 

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(g) any fees and expenses, including prepayment premiums and similar amounts, incurred during such period, or any amortization thereof for such period, in connection with any equity issuance, acquisition, disposition, recapitalization, Investment, asset sale, issuance or repayment of Indebtedness (including any issuance of notes), financing transaction or amendment or modification of any debt instrument (including, in each case, any such transaction undertaken but not completed), will be excluded;

(h) any gains and losses from any early extinguishment of Indebtedness will be excluded;

(i) any gains and losses from any redemption or repurchase premiums paid with respect to Indebtedness will be excluded; and

(j) any write-off or amortization of deferred financing costs (including the amortization of original issue discount) associated with Indebtedness will be excluded.

Consolidated Subsidiaries”: with respect to any Person, each other Person (whether now existing or hereafter created or acquired) the financial statements of which shall be (or should have been) consolidated with the financial statements of such first Person in accordance with GAAP.

Consolidated Total Assets”: with respect to any Person, the consolidated total assets of such Person and its Restricted Subsidiaries as set forth on the most recent balance sheet of such Person prepared in accordance with GAAP, as determined on a Pro Forma Basis.

Consolidated Working Capital”: at any date, the result (which may be negative) of (a) Consolidated Current Assets on such date less (b) Consolidated Current Liabilities on such date; provided that increases or decreases in Consolidated Working Capital shall be calculated without regard to any changes in Consolidated Current Assets or Consolidated Current Liabilities as a result of any reclassification in accordance with GAAP of assets or liabilities, as applicable, between current and noncurrent.

Contractual Obligation”: with respect to any Person, (i) the Organizational Documents of such Person and (ii) any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its Property is bound.

Contribution Indebtedness”: Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate principal amount at any one time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge such Indebtedness, not to exceed 200% of the aggregate amount of all Net Equity Proceeds, less the aggregate amount of any Net Equity Proceeds (x) used for making a Restricted Payment pursuant to clause (ii) of Section 6.1(b), (y) used for making a Restricted Investment pursuant to clause (x) of Section 6.1(b) or (z) taken into account for purposes of incurring Indebtedness pursuant to clause (xiv) of the definition of “Permitted Debt” set forth in Section 6.3(b) hereof or, after the Reference Notes Indenture Closing Date and prior to the Closing Date, clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) of the Reference Notes Indenture.

 

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Convertible Debt”: Debt of the Borrower (which may be Guaranteed by the Guarantors) permitted to be incurred hereunder that is either (a) convertible or exchangeable into common stock of Parent (and cash in lieu of fractional shares) and/or cash (in an amount determined by reference to the price of such common stock) or (b) sold as units with call options, warrants or rights to purchase (or substantially equivalent derivative transactions) that are exercisable for common stock of Parent and/or cash (in an amount determined by reference to the price of such common stock).

Credit Party”: the Administrative Agent or any other Lender.

Crown Towers Transaction Agreements”: (i) the Master Agreement, dated as of September 28, 2012 (as the same may be amended, modified or supplemented from time to time) among the Borrower, Crown Castle International Corp., a Delaware corporation, and certain Subsidiaries of the Borrower; and (ii) each of the other transaction documents entered into in connection therewith or contemplated thereby, as they may be amended, modified or supplemented from time to time.

Declined Proceeds”: as defined in Section 2.14(h).

Default”: any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

Defaulting Lender”: any Lender that (a) has refused (whether verbally or in writing) to fund (and has not retracted such refusal) or has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Term Loans, Revolving Credit Loans or participation in Letters of Credit required to be funded by it hereunder or (ii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower or the Administrative Agent in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan or participating in a Letter of Credit under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after written request by the Administrative Agent, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans or participate in a Letter of Credit (unless such Lender indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan or participating in a Letter of Credit under this Agreement cannot be satisfied) (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the Administrative Agent’s and the Borrower’s receipt of such certification in form and substance reasonably satisfactory to the Administrative Agent), (d) admits that it is insolvent or has (or has a direct or indirect parent company that has) become the subject of a Bankruptcy Event or (e) becomes the subject of a Bail-In Action. This definition is subject to the provisions of the second paragraph of Section 2.22.

 

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Delaware LLC”: any limited liability company organized or formed under the laws of the State of Delaware.

Delaware Divided LLC”: any Delaware LLC which has been formed upon consummation of a Delaware LLC Division.

Delaware LLC Division”: the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.

Designated Entity”: (i) any Designated Tower Entity or (ii) any Permitted Receivables Financing Subsidiary.

Designated Hedge Agreement” means any Hedge Agreement the obligations under which constitute Designated Hedging Obligations.

Designated Hedging Obligations”: Hedging Obligations under any Hedge Agreement entered into or assumed by any Loan Party and any Qualified Counterparty and designated by such Qualified Counterparty and the Borrower in writing to the Administrative Agent and the Collateral Trustee as “Designated Hedging Obligations”.

Designated L/C Facilities”: one or more letter of credit facilities entered into from time to time by the Borrower or a Restricted Subsidiary and designated by the Borrower in writing to the Administrative Agent and the Collateral Trustee as “Designated L/C Facilities” (in each case as may be amended, supplemented or otherwise modified from time to time).

Designated L/C Facilities Obligations”: obligations owed by any Group Member to any Person in respect of or in connection with the Designated L/C Facilities.

Designated Non-Cash Consideration”: the fair market value (as determined in good faith by the Borrower) of non-cash consideration received by a Group Member in connection with an Asset Sale pursuant to Section 6.4 that is designated as “Designated Non-Cash Consideration” by the Borrower, less the amount of cash and Cash Equivalents received in connection with a subsequent sale of such Designated Non-Cash Consideration.

Designated Tower Entity”: any entity established solely or primarily for the limited purpose of holding wireless communications sites, towers, and related contracts, equipment, improvements, real estate, and other assets, and performing other activities incidental thereto or in connection with any Permitted Tower Financing. For the avoidance of doubt, T-Mobile USA Tower LLC and T-Mobile West Tower LLC are each Designated Tower Entities.

Discount Range”: as defined in Section 2.12(f)(i).

Dish Transactions”: all transactions contemplated by the Asset Purchase Agreement, dated as of July 26, 2019, among T- Mobile US, Inc., Sprint Corporation, and DISH Network Corporation, and any exhibits attached thereto, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

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Disqualified Lender”: (i) any bank, financial institution or other institutional lender that has been identified in writing to the Arrangers as a Disqualified Lender on or prior to April 29, 2018, (ii) any other Persons who are competitors of Parent or any Group Member that are separately identified in writing by the Borrower to the Arrangers (or, after the Closing Date, to the Administrative Agent) from time to time and (iii) in each case of the foregoing clauses (i) and (ii), any of such Person’s Affiliates (other than any bona-fide debt fund Affiliates of competitors identified pursuant to clause (ii)) that are either (x) identified in writing by the Borrower to the Administrative Agent from time to time or (y) clearly identifiable as an Affiliate on the basis of such Affiliate’s name; provided that any such designation shall not apply retroactively to disqualify any Lender that has previously acquired any Loans, Commitments or participation interest that is otherwise permitted pursuant to the terms of this Agreement; provided, further, that any such Lender shall not be permitted to acquire any further Loans, Commitments or participations from and after the date of such designation. Upon an inquiry by any Lender to the Administrative Agent, the Administrative Agent is permitted to disclose to such inquiring Lender the list of Disqualified Lenders.

Disqualified Stock”: any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the Latest Maturity Date of the Term Loans outstanding at the date of issuance of such Disqualified Stock; provided that any class of Capital Stock of such Person that, by its terms, requires such Person to satisfy in full its obligations with respect to the payment of dividends or upon maturity, redemption (pursuant to a sinking fund or otherwise) or repurchase thereof or otherwise by the delivery of Capital Stock, and that is not convertible, puttable or exchangeable for cash, Disqualified Stock or Indebtedness, will not be deemed to be Disqualified Stock, so long as such Person satisfies its obligations with respect thereto solely by the delivery of Capital Stock. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Borrower to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that the Borrower may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with Section 6.1 hereof. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Borrower and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

Domestic Subsidiary”: a Subsidiary of Parent that is not a Foreign Subsidiary.

DT”: Deutsche Telekom AG, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany.

Dutch Auction”: an auction of Term Loans conducted pursuant to Section 9.4(g) to allow a Purchasing Borrower Party to prepay Term Loans at a discount to par value and on a non-pro rata basis in accordance with the applicable Dutch Auction Procedures.

 

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Dutch Auction Procedures”: Dutch auction procedures as set forth in Section 2.12(f) and otherwise as reasonably agreed upon by the applicable Purchasing Borrower Party and the Administrative Agent.

ECF Percentage”: with respect to any Excess Cash Flow Period, 50.0%; provided that (i) the ECF Percentage shall be 25.0% if the Total First Lien Net Leverage Ratio as of the last day of such Excess Cash Flow Period is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 and (ii) the ECF Percentage shall be 0.0% if the Total First Lien Net Leverage Ratio as of the last day of such Excess Cash Flow Period is less than or equal to 0.50 to 1.00.

EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein and Norway.

EEA Resolution Authority”: any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Electronic Signature”: any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.

Eligible Assignee”: (i) any Lender, any Affiliate of a Lender and any Approved Fund, (ii) any commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans in the ordinary course and (iii) subject to the terms of Section 2.12(f) and Sections 9.4(e) through (h), Affiliated Lenders and Purchasing Borrower Parties; provided that “Eligible Assignee” shall not include (x) any Disqualified Lender, (y) any Lender that is, as of the date of the applicable assignment, a Defaulting Lender or (z) any natural Person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of a natural Person).

Environmental Laws”: any and all Governmental Requirements pertaining in any way to health, safety, pollution, the environment or the preservation or reclamation of natural resources, in effect at any time, including those relating to the manufacture, generation, handling, transport, storage, treatment, Release or threat of Release of Hazardous Materials.

Environmental Liability”: any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation or compliance with orders and directives, fines, penalties or indemnities), resulting from or based upon (a) compliance or non-compliance with any Environmental Law or any Environmental Permit, (b) the generation, use, handling, transportation, storage, or treatment 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.

 

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Environmental Permits”: any and all permits, licenses, approvals, registrations, and other authorizations of a Governmental Authority required under any Environmental Law.

Equity Interests”: Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

ERISA”: the Employee Retirement Income Security Act of 1974, as amended.

ERISA Affiliate”: each trade or business (whether or not incorporated) which, together with Borrower or any of its Subsidiaries, would (at any relevant time) be deemed to be a “single employer” within the meaning of section 4001(b)(1) of ERISA or subsections (b), (c), (m) or (o) of section 414 of the Code.

ERISA Event”: (a) a Reportable Event, (b) the withdrawal of the Borrower, a Subsidiary or any ERISA Affiliate from a Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, (c) the filing of a notice of intent to terminate a Plan or the treatment of a Plan amendment as a termination under section 4041 of ERISA, (d) the institution of proceedings to terminate a Plan by the PBGC, (e) receipt of a notice of withdrawal liability pursuant to Section 4202 of ERISA or (f) any other event or condition which would be reasonably likely to constitute grounds under section 4042 of ERISA for the termination of, or appointment of a trustee to administer, any Plan.

EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

Euro” and “”: the single currency of Participating Member States.

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

Event of Default”: any of the events specified in Section 7; provided that any requirement for the giving of notice, the lapse of time, or both has been satisfied.

Excess Cash Flow”: for any Excess Cash Flow Period, the excess, if any, of:

(a) the sum, without duplication, of:

(i) Consolidated Net Income of the Borrower for such period,

(ii) the amount of all non-cash charges (including depreciation, amortization and deferred compensation) deducted in arriving at such Consolidated Net Income for such period, but excluding any such non-cash charges representing an accrual or reserve for potential cash items in any future period and excluding amortization of a prepaid cash item that was paid and did not reduce Excess Cash Flow in a prior period,

 

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(iii) the amount of the net decrease, if any, in Consolidated Working Capital for such period (other than any such decreases arising from Asset Acquisitions or Asset Dispositions by the Group Members completed during such period or the application of purchase or recapitalization accounting),

(iv) the aggregate net amount of non-cash loss on Asset Sales by the Group Members during such period (other than Asset Sales in the ordinary course of business), to the extent deducted in arriving at such Consolidated Net Income, and

(v) the amount by which the tax expenses deducted in determining Consolidated Net Income for such period exceed the amount of cash taxes paid or tax reserves set aside or payable (without duplication, and including any Permitted Payments to Parent in respect of taxes) in such period, minus

(b) the sum, without duplication, of:

(i) the amount of all non-cash credits and gains included in arriving at Consolidated Net Income for such period (excluding any such non-cash credits and gains to the extent they represent the reversal of an accrual or reserve for a potential cash item that reduced Consolidated Net Income in any prior period) and the amount of all cash expenses, charges and losses excluded from Consolidated Net Income for such period by virtue of the definition thereof,

(ii) the aggregate amount actually paid by the Group Members in cash during such fiscal year on account of Capital Expenditures, except to the extent funded with the proceeds of long-term Indebtedness (other than Indebtedness under any revolving facility),

(iii) the aggregate amount of all principal payments and prepayments of, payments on Guarantees of, and payments on account of the repurchase or retirement of, Indebtedness (other than payments of amounts constituting “Indebtedness” under the second sentence of the definition thereof), payments of earn-out obligations, and the principal component of payments in respect of Financing Lease Obligations (but (x) without duplication of payments included in the Optional Prepayment Amount, (y) excluding all prepayments of any revolving credit facility or revolving line of credit unless accompanied by a permanent reduction of commitments and (z) excluding mandatory prepayments of the Term Loans made pursuant to Section 2.14 of the Group Members made during such period, in each case, except to the extent funded with the proceeds of long-term Indebtedness (other than Indebtedness under any revolving facility),

 

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(iv) the amount of the net increase, if any, in Consolidated Working Capital for such period (other than any such increases arising from Asset Acquisitions or Asset Dispositions by the Group Members completed during such period or the application of purchase or recapitalization accounting),

(v) the aggregate net amount of non-cash gain on Asset Sales by the Group Members during such period (other than Asset Sales in the ordinary course of business), to the extent included in arriving at such Consolidated Net Income,

(vi) cash payments made during such period in respect of long-term liabilities (other than amounts constituting “Indebtedness” under the second sentence of the definition thereof and amounts covered by clause (b)(iii) (above (without giving effect to the parenthetical in such clause))) of the Group Members to the extent such payments were not expensed during such period or are not deducted in determining Consolidated Net Income, except to the extent funded with the proceeds of long-term Indebtedness (other than Indebtedness under any revolving facility),

(vii) the aggregate amount actually paid by the Group Members in cash during such period on account of Permitted Acquisitions and other Permitted Investments (other than an Investment in any Group Member), in each case except to the extent funded with the proceeds of long-term Indebtedness (other than Indebtedness under any revolving facility),

(viii) the aggregate amount actually paid by the Group Members in cash during such period on account of permitted Restricted Payments (other than Restricted Payments to any Group Member) and transactions of the type described under, and permitted by, Section 6.7, in each case except to the extent funded with the proceeds of long-term Indebtedness (other than Indebtedness under any revolving facility),

(ix) the aggregate amount of mandatory prepayments made pursuant to Section 2.14 with the proceeds of Asset Sales during such year to the extent such proceeds are included in the calculation of such Consolidated Net Income for such period,

(x) the aggregate amount of any premium, make-whole or penalty payments actually paid in cash by the Borrower and the Restricted Subsidiaries during such period that are made in connection with any prepayment of Indebtedness, to the extent not deducted in determining Consolidated Net Income,

(xi) the amount of cash taxes (including withholding taxes and any Permitted Payments to Parent in respect of taxes), fees, and public safety and related charges, including, in each case, interest and penalties, paid or payable and tax and fee reserve payments in such period to the extent such tax and fee payments charged to reserves exceed the amounts set aside for such reserves for such period in each case, to the extent they exceed the amount of tax expenses, fee expenses and public safety and related charges (including, in each case, interest and penalties) deducted in determining Consolidated Net Income for such period,

 

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(xii) without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any of the Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Investments (including acquisitions) or Capital Expenditures to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period (such period, the “Next Excess Cash Flow Period”) to the extent not intended to be financed with the proceeds of long-term Indebtedness (other than Indebtedness under any revolving facility); provided that, to the extent the aggregate amount of funds (other than the proceeds of long-term Indebtedness (other than Indebtedness under any revolving facility)) actually utilized to finance such Investments or Capital Expenditures during such Next Excess Cash Flow Period is less than the Contract Consideration, or the amount actually paid during such Next Excess Cash Flow Period is less than the Contract Consideration, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such Next Excess Cash Flow Period; provided, further, that no deduction shall be taken under any other clause of this definition of Excess Cash Flow for the Next Excess Cash Flow Period with respect to the aggregate amount of funds actually utilized or paid during such Next Excess Cash Flow Period in respect of Contract Consideration previously deducted pursuant to this clause (b)(xii),

(xiii) the aggregate amount of expenditures actually made by the Group Members in cash during such period (including expenditures for the payment of financing fees) to the extent that such expenditures are not expensed during such period or any previous period and are not financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness); provided that, if Consolidated Net Income is reduced in any subsequent period by an expense or charge in respect of such cash expenditure, Excess Cash Flow shall be increased by the amount of such expense or charge in such subsequent period, and

(xiv) the aggregate amount of deferred compensation paid in cash during such period.

For purposes of clauses (a)(v) and (b)(xi) above, tax expenses shall be calculated net of applicable account credits, credit memoranda, and discounts that are cash tax equivalents for tax purposes.

Excess Cash Flow Application Date”: as defined in Section 2.14(c).

Excess Cash Flow Period”: each fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2021.

Excess Proceeds”: as defined in the last sentence of Section 6.4.

 

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Exchange Act”: the Securities Exchange Act of 1934.

Excluded Assets”: the collective reference to:

(1) any owned or leased real property and any interest therein (including any fee or leasehold interests in real property) (it being agreed that no Loan Party shall be required to deliver landlord lien waivers, estoppels, bailee letters or collateral access letters);

(2) any motor vehicles and any other assets subject to a certificate of title, letter of credit rights or commercial tort claims (in each case except to the extent perfection of the security interest therein can be accomplished by the filing of a UCC financing statement) and aircraft and related assets;

(3) any “margin stock” within the meaning of such term under Regulation U as now and from time to time hereafter in effect;

(4) any asset (including any Governmental Authorization or any interest therein) if the granting of a security interest or pledge in such asset would be prohibited by any law, rule or regulation or agreements with any Governmental Authority, or by contractual requirement existing on the Closing Date or on the date of acquisition of the applicable Subsidiary or asset (in each case, not created in contemplation of the acquisition by the Borrower of such Subsidiary or asset) or would require the consent, approval, license or authorization of any Governmental Authority or other third party (pursuant to such contractual obligation and other than a Loan Party or a wholly-owned Restricted Subsidiary) unless such consent, approval, license or authorization has been received, in each case, after giving effect to the applicable anti-assignment provisions under applicable law (and, in the case of each of the foregoing, for so long as such restriction or any replacement or renewal thereof is in effect);

(5) Voting Stock of any CFC or FSHCO in excess of 65% of the outstanding Voting Stock of such CFC or FSHCO;

(6) Equity Interests in (i) any Unrestricted Subsidiary, (ii) Parent, (iii) any Immaterial Subsidiary, (iv) any Captive Insurance Subsidiary, (v) any not-for-profit subsidiaries, (vi) Designated Tower Entities, (vii) any special purpose entities that are Permitted Receivables Financing Subsidiaries, Permitted Tower Financing Subsidiaries or Permitted Spectrum Financing Subsidiaries (other than any Spectrum SPV Equity Interests), (viii)

 

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any Person that is not a Wholly-Owned Subsidiary that is a Restricted Subsidiary to the extent the granting of a security interest therein would violate the terms of such Person’s organizational documents or any shareholders’ agreement, joint venture agreement or other applicable agreement relating to such Person and (ix) Rule 3-16 Capital Stock; provided that, if at any time any Spectrum SPV Equity Interests that otherwise constitute Excluded Assets have been pledged as security under any other Indebtedness, then such Spectrum SPV Equity Interests shall no longer be Excluded Assets hereunder;

(7) to the extent a security interest therein cannot be perfected automatically or by the filing of a UCC financing statement, deposit accounts, securities accounts or other similar accounts; provided that no proceeds of Collateral shall be excluded pursuant to this clause (7);

(8) any lease, license or other similar agreement (or any rights or interests thereunder), in each case, to the extent that a grant of a security interest therein under the Loan Documents or any other agreement governing First Priority Secured Obligations would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than a Loan Party or wholly-owned Restricted Subsidiary), in each case, after giving effect to the applicable anti-assignment provisions under applicable law, and other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under applicable law notwithstanding such restriction;

(9) any Property subject to purchase money security interests, financing leases, or similar arrangements permitted hereunder, to the extent that a grant of security interest therein would violate or invalidate such arrangement or create a right of termination in favor of the other party thereto (other than a Loan Party or wholly-owned Restricted Subsidiary), in each case, after giving effect to the applicable anti-assignment provisions under applicable law, and other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under applicable law notwithstanding such restriction;

(10) assets to the extent a security interest in such assets would result in material adverse tax consequences (including as a result of any law or regulation in any applicable jurisdiction similar to Section 956 of the Internal Revenue Code) as reasonably determined by the Borrower in consultation with the Administrative Agent;

 

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(11) any intent-to-use United States trademark applications for which neither (i) an amendment to allege use to bring the application into conformity with 15 U.S.C. § 1051(a) has been filed with and accepted by the United States Patent and Trademark Office, nor (ii) a verified statement of use under 15 U.S.C. § 1051(d) has been filed with and accepted by the United States Patent and Trademark Office;

(12) any Intellectual Property or rights or licenses therein, in each case, other than US Patent Rights and US Trademark Rights, including any Intellectual Property, perfection of a Lien on which requires filing in a jurisdiction outside of the United States;

(13) all Permitted Receivables Financing Assets;

(14) any assets as to which the Administrative Agent reasonably determines in consultation with the Borrower that the costs of obtaining a security interest are excessive in relation to the value of the security afforded thereby;

(15) any assets (including equity interests) sold, conveyed or otherwise transferred to or held by a Permitted Spectrum Financing Subsidiary or a Permitted Tower Financing Subsidiary or otherwise pledged in connection with a Permitted Spectrum Financing or a Permitted Tower Financing;

(16) for the avoidance of doubt, any assets held by an Unsecured Guarantor, an Excluded Subsidiary or an Immaterial Subsidiary (except to the extent such Excluded Subsidiary or Immaterial Subsidiary is designated as a Subsidiary Guarantor pursuant to clause (i) of the proviso of the definition of “Excluded Subsidiary”);

(17) any assets of Sprint or any Subsidiary of Sprint, to the extent that the granting, or continuation, of any lien or security interest thereon would, in the reasonable determination of the Borrower, require the Senior Notes issued by any Unsecured Guarantor to be secured on an equal and ratable basis;

(18) FCC Licenses, but only to the extent that at any time the Collateral Trustee may not validly possess a security interest directly in the FCC Licenses pursuant to the Communications Act of 1934, as amended, and the regulations promulgated thereunder, as in effect at such time, provided that, to the maximum extent permitted by law, the economic value of the FCC Licenses, all rights incident or appurtenant to the FCC Licenses and the right to receive all monies, consideration and proceeds derived from or in connection with the sale, assignment or transfer of the FCC Licenses, shall not be excluded pursuant to this clause (18);

 

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(19) (i) any governmental licenses or state or local franchises, license, permits, charters and authorizations, to the extent security interests therein are prohibited or restricted thereby and (ii) any equity in a regulated Subsidiary or any asset owned by a regulated Subsidiary to the extent prohibited by any law, rule or regulation or that would if pledged, in the good faith judgment of Parent, result in adverse regulatory consequences or impair the conduct of the business of Parent or such Subsidiaries, in each of clauses (i) and (ii) after giving effect to the applicable anti-assignment provisions of applicable law; and

(20) the Boost Assets;

provided that Excluded Assets shall not include any proceeds, substitutions or replacements of any Excluded Assets referred to in clauses (1) through (20) (unless such proceeds, substitutions or replacements would constitute Excluded Assets referred to in clauses (1) through (20)); provided, further, that assets described above that were deemed “Excluded Assets” as a result of a prohibition or restriction described above shall no longer be “Excluded Assets” upon termination of the applicable prohibition or restriction that caused such assets to be treated as “Excluded Assets”.

Excluded Subsidiary”: any Subsidiary of Parent that is, at any time of determination, (i) not a Wholly Owned Subsidiary, (ii) an Immaterial Subsidiary, (iii) a Foreign Subsidiary, (iv) a Domestic Subsidiary that is (x) a FSHCO or (y) a direct or indirect Subsidiary of a Foreign Subsidiary that is a CFC, (v) an Unrestricted Subsidiary, (vi) a not-for-profit Subsidiary, (vii) a Captive Insurance Subsidiary, (viii) a special purpose securitization vehicle (or similar entity), including any Permitted Receivables Financing Subsidiary, any Permitted Spectrum Financing Subsidiary or any Permitted Tower Financing Subsidiary, or any of their respective Subsidiaries, (ix) prohibited from guaranteeing the Obligations by any applicable law (including financial assistance, fraudulent conveyance, preference, thin capitalization or other similar laws or regulations) or by any contractual requirement existing on the Closing Date or on the date of the acquisition of such Subsidiary or the date such Subsidiary became a Restricted Subsidiary (not created in contemplation of such acquisition or of such Restricted Subsidiary becoming a Restricted Subsidiary) (and for so long as such restriction or any replacement or renewal thereof is in effect), including any requirement to obtain the consent, approval, license or authorization of a Governmental Authority or third party (other than a Loan Party or wholly-owned Restricted Subsidiary)) (unless such consent, approval, license or authorization has been obtained), (x) [reserved], (xi) with respect to which the provision of a guarantee would, in the reasonable good faith determination of the Borrower in consultation with the Administrative Agent, be expected to result in materially adverse tax or regulatory consequences to the Borrower or any of its Subsidiaries or (xii) with respect to which the Borrower and the Administrative Agent reasonably agree that the cost or other consequences of providing a guarantee is likely to be

 

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excessive in relation to the value to be afforded thereby; provided that, notwithstanding the foregoing, (i) the Borrower may in its sole discretion designate any Excluded Subsidiary as a Subsidiary Guarantor and in connection therewith shall comply with the provisions of Section 5.9(b) and may, thereafter, re-designate such Subsidiary as an Excluded Subsidiary (so long as such Subsidiary otherwise then qualifies as an Excluded Subsidiary pursuant to any of clauses (ii) through (xii) above), upon which re-designation such Subsidiary shall automatically be released from its Guarantee in accordance with Section 9.15; provided that, in the case of any designation (or re-designation) of any Subsidiary that is not a Domestic Subsidiary as a Subsidiary Guarantor, (x) the jurisdiction of such Subsidiary shall be reasonably satisfactory to the Administrative Agent, (y) the Administrative Agent shall have received at least 3 Business Days prior to such Subsidiary becoming a Subsidiary Guarantor, all documentation and other information required by regulatory authorities with respect to such Subsidiary under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case as reasonably requested by the Administrative Agent at least 10 Business Days prior to such Subsidiary becoming a Subsidiary Guarantor and (z) the collateral documentation and other collateral arrangements with respect to such Subsidiary shall be on terms reasonably satisfactory to the Administrative Agent and (ii) no Subsidiary of Parent that provides a Guarantee of the Existing T-Mobile Notes shall constitute an Excluded Subsidiary.

Excluded Swap Obligation”: with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such Loan Party or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.

Excluded Taxes”: any of the following Taxes imposed on or with respect to the Administrative Agent, any Lender, any Issuing Bank or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder or under any other Loan Document, or required to be withheld or deducted from any payment to any such recipient (a) Taxes imposed on (or measured by) net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such recipient being organized under the laws of, or having its principal office or, in the case of any Lender or Issuing Bank, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender or Issuing Bank, US federal withholding Taxes that are in effect and would apply to amounts payable to or for the account of such Lender or Issuing Bank with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect (i) on the date on which such Lender or Issuing Bank acquires such interest in the applicable Commitment (or, to the extent a Loan is not funded pursuant to a prior Commitment, acquires such interest in the applicable

 

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Loan) or, where the beneficial owner for purposes of such withholding Tax (the “Beneficial Tax Owner”) is a Person other than the Lender or Issuing Bank (such as a direct or indirect owner of such Lender or Issuing Bank ), on the date on which such Beneficial Tax Owner acquires its applicable direct or indirect interest in the applicable Commitment (or, to the extent a Loan is not funded pursuant to a prior Commitment, acquires such interest in the applicable Loan); provided that this clause (b)(i) shall not apply to an assignment pursuant to a request by the Borrower under Section 2.21(b) or (ii) on the date on which such Lender or Issuing Bank (or, as applicable, Beneficial Tax Owner) designates a new lending office, except in each case under clause (b)(i) and (b)(ii) to the extent that, pursuant to Section 2.19, additional amounts with respect to such Taxes were payable either to such Lender’s or Issuing Bank’s (or, as applicable, Beneficial Tax Owner’s) assignor (or, in the case of a Beneficial Tax Owner, the predecessor Beneficial Tax Owner(s)) immediately before such Lender or Issuing Bank (or Beneficial Tax Owner) acquired the applicable interest in such Loan or Commitment or to such Lender or Issuing Bank (or Beneficial Tax Owner) immediately before it changed its lending office, (c) Taxes attributable to such Lender’s or Issuing Bank’s failure to comply with Section 2.19(e) and (d) any Taxes imposed under FATCA.

Exempt Accounts”: deposit accounts, securities accounts or other similar accounts (i) for the sole purpose of funding payroll obligations, employee benefit or health benefit obligations, tax obligations, escrow arrangements or holding funds owned by Persons other than the Loan Parties, (ii) that constitute or are linked to zero-balance accounts, or (iii) that are accounts held by any Non-Loan Party Subsidiary.

Existing Debt”: all Indebtedness existing on the Closing Date (other than Indebtedness described in Sections 6.3(b)(i) and (iii)).

Existing Receivables Financing Subsidiaries”: each Subsidiary designated as an “Existing Receivables Financing Subsidiary” on Schedule 1.1(e) hereof, together with their successors and assigns and any Subsidiary of the foregoing.

Existing Rollover Letters of Credit”: those letters of credit or bank guarantees issued and outstanding as of the Closing Date and set forth on Schedule 1.1(b), which shall be deemed to constitute a Letter of Credit issued hereunder on the Closing Date.

Existing Sprint Spectrum Financing Documents”: the Existing Sprint Spectrum Notes, the Existing Sprint Spectrum Indenture, the Initial Spectrum Performance Agreement, the Initial Intra-Company Spectrum Lease Agreement, dated as of October 27, 2016, among certain of the Existing Sprint Spectrum Subsidiaries, Sprint Communications, Inc., and the other parties thereto, each “Transaction Document” (as defined in the Existing Sprint Spectrum Indenture) and each other document related thereto, in each case as amended, supplemented or otherwise modified from time to time.

Existing Sprint Spectrum Issuers”: Sprint Spectrum Co LLC, Sprint Spectrum Co II LLC, Sprint Spectrum Co III LLC and their successors and assigns.

 

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Existing Sprint Spectrum Indenture”: the Indenture, dated as of October 27, 2016, by and among Sprint Spectrum Co LLC, Sprint Spectrum Co II LLC, Sprint Spectrum Co III LLC and Deutsche Bank Trust Company Americas, as trustee, as amended, supplemented or otherwise modified from time to time, including as supplemented with respect to each series of Existing Sprint Spectrum Notes.

Existing Sprint Spectrum Notes”: the Existing Sprint Spectrum Issuers’ Series 2018-1 4.738% Senior Secured Notes, Class A-1, Series 2018-1 5.152% Senior Secured Notes, Class A-2, Series 2016-1 3.360% Senior Secured Notes, Class A-1, and any other note or series of notes issued under the Existing Sprint Spectrum Indenture from time to time.

Existing Sprint Spectrum Subsidiaries”: each Subsidiary designated as an “Existing Sprint Spectrum Subsidiary” on Schedule 1.1(e) hereof, together with their successors and assigns and any Subsidiary of the foregoing.

Existing T-Mobile Notes”: the senior unsecured notes issued by the Borrower and outstanding as of April 29, 2018.

Existing Tower Financing Subsidiaries”: each Subsidiary designated as an “Existing Tower Financing Subsidiary” on Schedule 1.1(e) hereof, together with their successors and assigns and any Subsidiary of the foregoing.

Existing Sprint Spectrum Transaction”: the transactions contemplated by the Existing Sprint Spectrum Financing Documents, including the issuance of any Existing Sprint Spectrum Notes.

Extended Revolving Credit Commitments”: as defined in Section 2.25(a).

Extended Revolving Credit Loans”: as defined in Section 2.25(a).

Extended Term Loans”: as defined in Section 2.25(a).

Extending Revolving Credit Lender”: as defined in Section 2.25(a).

Extending Term Lender”: as defined in Section 2.25(a).

Extension”: as defined in Section 2.25(a).

Extension Amendment”: as defined in Section 2.25(c).

Extension Facility”: any Extended Revolving Credit Commitments, Extended Revolving Credit Loans or Extended Term Loans.

Extension Offer”: as defined in Section 2.25(a).

Facility”: (a) the Term Loan Commitments and any Term Loans made thereunder, together with any Incremental Facility of Term Loans added to the same tranche pursuant to Section 2.23 (the “Term Loan Facility”), (b) the Revolving Credit Commitments and the extensions of credit made thereunder (the “Revolving Credit Facility”), (c) any Incremental Facility of Other Term Loans and the Commitments and extensions of credit thereunder and (d) any Replacement Facility and the Commitments and extensions of credit thereunder, as the context may require.

 

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Fair Market Value”: the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Borrower’s Board of Directors or a senior officer of the Borrower, which determination shall be conclusive; provided that any sale, lease, license or other disposition of assets in connection with the Acquisition (including any required regulatory divestitures) shall be deemed to be for Fair Market Value regardless of whether such sale, lease, license or other disposition meets the requirements of this definition.

FATCA”: Sections 1471 through 1474 of the Code, as in effect on the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any intergovernmental agreements with respect thereto, any law, regulations, or other official guidance enacted in a non-US jurisdiction implementing such intergovernmental agreements, and any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above).

FCC”: the United States Federal Communications Commission and any successor agency that is responsible for regulating the United States telecommunications industry.

FCC Licenses”: all licenses or permits now or hereafter issued by the FCC.

FCPA”: United States Foreign Corrupt Practices Act of 1977.

Federal Funds Effective Rate”: for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1.00%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1.00%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it; provided that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Fee Letter”: the Second Amended and Restated Fee Letter, dated as of September 6, 2019, among the Arrangers, the Borrower and the other parties thereto.

Financial Covenant”: the financial covenant described in Section 6.8.

Financial Covenant Event of Default”: as defined in Section 7.2(b).

Financing Lease Obligation”: at the time any determination is to be made, the amount of the liability in respect of a financing lease that would at that time be required to be capitalized and reflected as a liability on a balance sheet prepared in accordance with GAAP.

 

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First Lien Obligations”: any Indebtedness that is secured by Liens on the Collateral on a pari passu basis with the Liens that secure the Initial Term Loans, the Revolving Credit Loans (if any) and the Revolving Credit Commitments (or any refinancing, extension or replacement of the Initial Term Loans, Revolving Credit Loans (if any) or Revolving Credit Commitments with loans or commitments or other Indebtedness having the same Lien priority as the Initial Term Loans, Revolving Credit Loans (if any) or Revolving Credit Commitments, as applicable, prior to such refinancing, extension or replacement). For the avoidance of doubt, “First Lien Obligations” shall include the Initial Term Loans, Revolving Credit Loans (if any) and Revolving Credit Commitments (or the loans or commitments that refinance, extend or replace the Initial Term Loans, Revolving Credit Loans (if any) or Revolving Credit Commitments with loans or commitments or other Indebtedness having the same Lien priority as the Initial Term Loans, Revolving Credit Loans (if any) or Revolving Credit Commitments, as applicable, prior to such refinancing, extension or replacement).

First Priority Secured Obligations”: as defined in the Collateral Trust Agreement.

Fixed Amounts”: as defined in Section 1.5(c).

Fixed Incremental Amount”: an amount equal to the greater of (i) $11,000.0 million and (ii) 50% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period.

Fixed Incremental Facility”: as defined in Section 2.23(a).

Foreign Currency”: an official national currency (including the Euro) of any nation other than the United States and which constitutes freely-transferable and lawful money under the laws of the country or countries of issuance.

Foreign Lender”: any Lender that is not a “United States person” as defined in Section 7701(a)(30) of the Code.

Foreign Subsidiary”: any Subsidiary of Parent other than a Subsidiary organized under the laws of the United States or any state of the United States or the District of Columbia.

FSHCO”: any Subsidiary of Parent that owns no material assets (directly or through Subsidiaries) other than Equity Interests (or Equity Interests and Indebtedness) in one or more Foreign Subsidiaries that are CFCs.

Funded Debt”: all Indebtedness of the Borrower and its Restricted Subsidiaries for borrowed money that matures more than one year from the date of its creation or matures within one year from such date and is renewable or extendable, at the option of such Person, to a date that is more than one year from such date or arises under a revolving credit or similar agreement that obligates the lender or lenders to extend credit during a period of more than one year from such date, including Indebtedness in respect of the Loans.

 

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GAAP”: generally accepted accounting principles as in effect on the date of any calculation or determination required under this Agreement. Notwithstanding the foregoing, at any time, (i) the Borrower may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP or parts of the Accounting Standards Codification or “ASC” shall thereafter be construed to mean IFRS (except as otherwise provided in this Agreement) and (ii) the Borrower, on any date may elect to establish that GAAP shall mean GAAP as in effect on such date; provided that any such election, once made, shall be irrevocable; provided, further, that any calculation or determination in this Agreement that requires the application of GAAP for periods that include fiscal quarters ended prior to the Borrower’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Borrower shall give notice of any such election made in accordance with this definition to the Administrative Agent.

Governmental Authority”: any nation or government, any state, province, territory or other political subdivision thereof and any other agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

Governmental Authorization”: any permit, license, authorization, plan, directive, consent, permission, consent order or consent decree of or from any Governmental Authority, including but not limited to FCC Licenses.

Governmental Requirement”: any applicable law, treaty, statute, code, ordinance, order, determination, rule, regulation, common law, judgment, decree, injunction, franchise, Governmental Authorization, certificate, or other directive or requirement, whether now or hereinafter in effect.

Group Member”: any of the Borrower or any of the Restricted Subsidiaries of the Borrower.

Guarantee Agreement”: the Guarantee Agreement executed by Parent and each Subsidiary Guarantor in favor of the Administrative Agent, substantially in the form of Exhibit B.

Guarantee”: a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise); provided, however, that the term Guarantee shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation (or portion thereof) in respect of which such Guarantee is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

 

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Guarantor”: Parent and any other Person who has guaranteed the obligations of the Borrower under this Agreement pursuant to the Guarantee Agreement, until released from such guarantee pursuant to the provisions of this Agreement, the Guarantee Agreement or any Intercreditor Agreement, as applicable.

Hazardous Materials”: (i) petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and explosive or radioactive substances or (ii) any chemical, material, waste, substance or pollutant that is prohibited, limited or regulated pursuant to any Environmental Law.

Hedge Agreements”: all agreements governing Hedging Obligations.

Hedging Obligations”: with respect to any specified Person, the obligations of such Person under:

(a) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

(b) other agreements or arrangements designed to manage interest rates or interest rate risk; and

(c) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices,

and any guarantee in respect thereof.

IFRS”: the international accounting standards promulgated by the International Accounting Standards Board and its predecessors, as adopted by the European Union, as in effect from time to time.

Immaterial Subsidiary”: any Subsidiary of the Borrower that at any time has Consolidated Total Assets accounting for less than 2.50% of the Borrower’s Consolidated Total Assets; provided that the aggregate Consolidated Total Assets of all Immaterial Subsidiaries shall not at any time exceed 5.00% of the Borrower’s Consolidated Total Assets.

Incremental Equivalent Debt”: Indebtedness consisting of (i) unsecured senior, senior subordinated or junior subordinated notes, or senior secured notes secured by the Collateral on an equal or junior priority basis with or to the Obligations, in each case issued in a public offering, Rule 144A or other private placement or (ii) senior unsecured loans or senior secured loans secured by the Collateral on an equal or junior priority basis with or to the Obligations, in each case of clauses (i) and (ii) subject to the terms set forth in Section 2.23(e).

Incremental Facilities”: as defined in Section 2.23(a).

 

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Incremental Facility Amendment”: as defined in Section 2.23(d).

Incremental Facility Closing Date”: as defined in Section 2.23(d).

Incremental Loans”: as defined in Section 2.23(a).

Incremental Revolving Commitments”: as defined in Section 2.23(a).

Incremental Revolving Credit Loans”: as defined in Section 2.23(a).

Incremental Revolving Increase”: as defined in Section 2.23(a).

Incremental Revolving Lender”: as defined in Section 2.23(d).

Incremental Term Facilities”: as defined in Section 2.23(a).

Incremental Term Loans”: as defined in Section 2.23(a).

Indebtedness”: with respect to any specified Person, without duplication,

(a) any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:

(1) in respect of borrowed money;

(2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

(3) in respect of banker’s acceptances;

(4) representing Financing Lease Obligations;

(5) representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such services are completed, except any such balance that constitutes an accrued expense or a trade payable or escrow for obligations, including indemnity obligations; or

(6) representing any Hedging Obligations; and

(b) any financial liabilities recorded in respect of the upfront proceeds received in connection with the Towers Transactions,

 

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in each case, if and only to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person. Notwithstanding the foregoing, the following shall not constitute Indebtedness: (1) accrued expenses and trade accounts payable arising in the ordinary course of business; (2) any indebtedness that has been defeased in accordance with GAAP or defeased pursuant to the deposit of cash or Cash Equivalents (in an amount sufficient to satisfy all obligations relating thereto at maturity or redemption, as applicable, including all payments of interest and premium, if any) in a trust, escrow or account created or pledged for the sole benefit of the holders of such indebtedness, and in accordance with the other applicable terms of the instrument governing such indebtedness; (3) any obligation arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; (4) any obligation arising from any agreement providing for indemnities, Guarantees, escrows, purchase price adjustments, holdbacks, contingency payment obligations based on the performance of the acquired or disposed assets or similar obligations (other than Guarantees of Indebtedness) incurred by any Person in connection with the acquisition or disposition of assets; (5) Standard Securitization Undertakings and obligations incurred by a Permitted Receivables Financing Subsidiary in a Permitted Receivables Financing that is not recourse to Parent or any Group Member other than (A) one or more Permitted Receivables Financing Subsidiaries and (B) pursuant to Standard Securitization Undertakings; (6) accruals for payroll and other liabilities accrued in the ordinary course of business; (7) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the seller; (8) all intercompany liabilities among the Borrower and/or the Restricted Subsidiaries having a term not exceed 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business and (9) any operating lease that must be recognized on the balance sheet of such Person as a lease liability and right-of-use asset in accordance with the Financial Accounting Standards Board Update No. 2016-02, dated February 2016 (Leases (Topic 842)), which adopts Accounting Standards Codification 842. The amount of any Indebtedness shall be determined in accordance with the last paragraph of Section 6.3 hereof.

Indemnified Taxes”: all (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

Indemnitee”: as defined in Section 9.3(b).

Information”: as defined in Section 9.12(a).

Initial Intra-Company Spectrum Lease Agreement”: the Intra-Company Spectrum Lease Agreement, dated as of October 27, 2016, by and among, inter alia, various SpectrumCo1 entities, as lessors, Sprint Communications, Inc., as lessee, Sprint Corporation and the other guarantors party thereto (as amended from time to time).

Initial Spectrum Performance Agreement”: the SCI Payment and Performance Undertaking Agreement, dated as of October 27, 2016, between Sprint Communications, Inc., Sprint Corporation, the other grantors party thereto, and Deutsche Bank Trust Company Americas, as trustee (as amended from time to time).

 

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Initial Term Loans”: the Term Loans incurred on the Closing Date.

Intellectual Property”: the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, state, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, service marks, trade dress, domain names, technology, know-how and processes, recipes, formulas, trade secrets and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

Intercreditor Agreements”: the collective reference to the Collateral Trust Agreement and any other any Senior/Junior Intercreditor Agreement or Senior Pari Passu Intercreditor Agreement.

Interest Election Request”: a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.9.

Interest Payment Date”: (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December commencing with the last Business Day of June, 2020, and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.

Interest Period”: with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months (or, to the extent agreed to by all applicable Lenders, (i) twelve months or (ii) solely in respect of Revolving Credit Loans, one week) thereafter, as the Borrower may elect; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

Interpolated Screen Rate”: in relation to the LIBO Rate for any Loan, the rate which results from interpolating on a linear basis between: (a) the rate appearing on ICE Benchmark Administration page (or on any successor or substitute page of such service) for the longest period (for which that rate is available) which is less than the applicable Interest Period and (b) the rate appearing on the ICE Benchmark Administration page (or on any successor or substitute page of such service) for the shortest period (for which that rate is available) which exceeds the applicable Interest Period, each as of approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.

 

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Investments”: with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees), advances (excluding commission, travel, entertainment, drawing accounts and similar advances to directors, officers and employees made in the ordinary course of business and excluding the purchase of assets, equipment, property or accounts receivables created or acquired in the ordinary course of business) or capital contributions, and purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities. If the Borrower or any Restricted Subsidiary of the Borrower sells or otherwise disposes of any Capital Stock of any direct or indirect Restricted Subsidiary of the Borrower such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Borrower, the Borrower will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Borrower’s Investments in such Restricted Subsidiary that were not sold or disposed of in an amount determined as provided in the final paragraph of Section 6.1 hereof. Except as otherwise provided in this Agreement, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.

IRS”: United States Internal Revenue Service.

ISP” means the International Standby Practices, International Chamber of Commerce Publication No. 590 (or such later version thereof as may be in effect at the applicable time).

Issuing Bank”: (i) Deutsche Bank AG New York Branch, Credit Suisse AG, Cayman Islands Branch, Goldman Sachs Bank USA, Barclays Bank PLC, Morgan Stanley Senior Funding, Inc., Royal Bank of Canada, BNP Paribas Corp., Commerzbank AG, New York Branch, Credit Agricole Corporate and Investment Bank, The Toronto-Dominion Bank, New York Branch, Wells Fargo Bank, National Association, Banco Santander, S.A., New York Branch, Societé Generale, Truist Bank, National Westminster Bank plc and U.S. Bank National Association, each in their capacity as issuer of any Letter of Credit and (ii) such other Revolving Credit Lenders or Affiliates of Revolving Credit Lenders that are reasonably acceptable to the Administrative Agent and the Borrower that agrees, pursuant to an agreement with and in form and substance reasonably satisfactory to the Administrative Agent and the Borrower, to be bound by the terms hereof applicable to such Issuing Bank. Any Issuing Bank may cause Letters of Credit to be issued by its designated Affiliates or financial institutions and such Letters of Credit shall be treated as issued by such Issuing Bank for all purposes under the Loan Documents. Notwithstanding anything herein to the contrary, no Issuing Bank shall be required to issue Letters of Credit other than standby Letters of Credit denominated in Dollars.

Junior Lien Obligations”: any Indebtedness that is secured by Liens on the Collateral on a junior basis to the First Lien Obligations.

Latest Maturity Date”: at any date of determination, the latest Maturity Date applicable to any Loan or Commitment hereunder at such time.

 

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LC Commitment”: as of any date of determination, with respect to any Issuing Bank, such Issuing Bank’s share of the LC Sublimit, (x) as the same may be adjusted from time to time as a result of an agreement by such Issuing Bank, with the Borrower’s consent, to assume the obligations of another such Issuing Bank with respect to any or all of the Letters of Credit issued by such other Issuing Bank or (y) as the same may be reduced from time to time as a result of the addition of a new Issuing Bank, with the Borrower’s consent, in accordance with the terms hereof. The LC Commitment of each Issuing Bank on the Closing Date shall be as set forth on Schedule 2.1.

LC Disbursement”: a payment made by any Issuing Bank pursuant to a Letter of Credit.

LC Exposure”: at any time, the sum of (i) the aggregate undrawn amount of all outstanding Letters of Credit at such time plus (ii) the aggregate amount of all LC Disbursements in respect of Letters of Credit that have not yet been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any Lender shall be its Applicable Percentage of the total LC Exposure at such time, in each case with respect to the Revolving Credit Facility. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, that with respect to any Letter of Credit that, by its terms or any document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the then applicable maximum stated amount of such Letter of Credit after giving effect to all prior increases, whether or not such maximum stated amount is in effect at such time.

LC Sublimit”: $1,000.0 million, as such amount may be increased from time to time in accordance with Section 9.2(i).

LCT Election”: as defined in Section 1.5(b).

LCT Test Date”: as defined in Section 1.5(b).

Lender Parties”: as defined in Section 9.16.

Lenders”: the Persons listed on Schedule 2.1 and any other Person that shall have become a party hereto as a lender pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto as a lender pursuant to an Assignment and Assumption.

Letter of Credit” any standby letter of credit, in a form acceptable to the Issuing Bank in its sole and absolute discretion, issued by the Issuing Bank pursuant to the provisions hereof and providing for the payment of cash upon the honoring of a presentation thereunder. Each Existing Roll-Over Letter of Credit shall be deemed to constitute a Letter of Credit issued hereunder on the Closing Date for all purposes of the Loan Documents.

LIBO Rate”: with respect to any Interest Period when used in reference to any Eurodollar Borrowing, (a) the rate of interest appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to such service as determined by Administrative Agent) as the London interbank offered rate administered by ICE Benchmark Administration Limited (or such other Person that takes over the administration of such rate) for deposits in US Dollars for a term comparable to such Interest Period, at approximately 11:00 a.m. (London time) on the date which is two Business Days prior to the commencement of such Interest Period, and (b) if any such rate is not available at such time for any reason, then the “LIBO Rate” for such Interest Period shall be the Interpolated Screen Rate.

 

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LIBO Successor Rate”: as defined in Section 1.10(a).

LIBO Successor Rate Conforming Changes”: with respect to any proposed LIBO Successor Rate, any conforming changes to the definition of Alternate Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the reasonable discretion of the Administrative Agent and consented to by the Borrower, to reflect the adoption of such LIBO Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of such market practice is not administratively feasible or that no market practice for the administration of such LIBO Successor Rate exists, in such other manner of administration as the Administrative Agent elects with the consent of the Borrower).

Lien”: with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement and any lease in the nature thereof; provided that in no event shall an operating lease in and of itself constitute a Lien.

Limited Condition Transaction”: any acquisition or other Investment (including an acquisition of Spectrum or other assets) or irrevocable debt repurchase or redemption by the Borrower or one or more of its Restricted Subsidiaries, whose consummation is not conditioned on the availability of, or on obtaining, third party financing.

Loan”: any loan made by any Lender pursuant to this Agreement.

Loan Documents”: this Agreement, the Security Documents, the Guarantee Agreement, any Notes, the Collateral Trust Agreement, any other Intercreditor Agreements, any Permitted Amendment and any other document executed and delivered in conjunction with this Agreement from time to time and designated as a “Loan Document”.

Loan Parties”: the collective reference to the Borrower and the Guarantors; provided that to the extent such term is used in connection with an obligation to deliver collateral security, it shall not include any Unsecured Guarantor.

Material Adverse Effect”: a material adverse effect on (a) the business, financial condition, assets or results of operations, in each case, of the Group Members, taken as a whole, (b) the ability of the Loan Parties, taken as a whole, to perform their payment obligations under the Loan Documents or (c) the rights and remedies of the Administrative Agent and the Lenders, taken as a whole, under any Loan Document.

Material Contractual Obligation”: as to any Person, any provision of any security issued by such Person or of any material agreement, instrument or other undertaking to which such Person is a party or by which it or any of its Property is bound.

 

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Maturity Date”: with respect to (a) the Revolving Credit Facility, the applicable Revolving Credit Maturity Date and (b) the Term Loan Facility, the Term Loan Maturity Date; provided that the reference to Maturity Date with respect to any other Term Loans shall be the final maturity date as specified in the applicable Incremental Facility Amendment or Replacement Facility Amendment, and with respect to any Extended Term Loans in respect thereof, shall be the final maturity date as specified in the applicable Extension Offer.

Maximum Rate”: as defined in Section 9.17.

MNPI”: any material Nonpublic Information regarding Parent, the Borrower and their respective Subsidiaries or the Loans or securities of any of them that has not been disclosed to the Lenders generally (other than Lenders who elect not to receive such information). For purposes of this definition “material Nonpublic Information” shall mean Nonpublic Information with respect to the business of Parent, the Borrower and their respective Subsidiaries or that would reasonably be expected to be material to a decision by any Lender to participate in any Dutch Auction or assign or acquire any Term Loans or to enter into any of the transactions contemplated thereby or would otherwise be material for purposes of United States Federal and state securities laws.

Moody’s”: Moody’s Investors Service, Inc. and its successors.

Multiemployer Plan”: a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

Net Equity Proceeds”: the net cash proceeds received by the Borrower since the Reference Notes Indenture Closing Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Borrower (other than Disqualified Stock).

Net Income”: with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock accretion or dividends, excluding however:

(a) any gain (or loss), together with any related provision for taxes on such gain (or loss) realized in connection with:

(i) dispositions of assets (other than in the ordinary course of business); or

(ii) the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and

(b) any extraordinary gain (or loss), together with any related provision for taxes on such extraordinary gain (or loss).

 

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Net Proceeds”: (1) in connection with any Asset Sale, the aggregate cash proceeds received by the Borrower or any of its Restricted Subsidiaries in respect of such Asset Sale (including any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale, but excluding any items deemed to be cash pursuant to Section 6.4(b)(i) hereof), net of all costs relating to such Asset Sale, including (a) legal, accounting and investment banking fees, finder’s fees, sales commissions, employee severance costs, and any relocation expenses incurred as a result of the Asset Sale, (b) taxes paid or payable (including, for the avoidance of doubt, taxes paid or payable by Parent) as a result of the Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, (c) amounts required to be applied to the repayment of Indebtedness secured by a Lien on the asset or assets that were the subject of such Asset Sale, to the extent applied in accordance with the second paragraph of Section 6.4, (d) all distributions and other payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Sale and (e) any amounts to be set aside in any reserve established in accordance with GAAP or any amount placed in escrow, in either case for adjustment in respect of the sale price of such properties or assets or for liabilities associated with such Asset Sale and retained by the Borrower or any of its Restricted Subsidiaries until such time as such reserve is reversed or such escrow arrangement is terminated, in which case Net Proceeds shall include only the amount of the reserve so reversed or the amount returned to the Borrower or its Restricted Subsidiaries from such escrow arrangement, as the case may be, and (2) in connection with any issuance or incurrence of any Indebtedness, the cash proceeds received by any Group Member from such issuance or incurrence, net of reasonable out-of-pocket attorneys’ fees, investment banking and advisory fees, accountants’ fees, underwriting discounts and commissions and other customary out-of-pocket fees, costs and expenses actually incurred in connection therewith (including, in the case of a Replacement Facility or Permitted Refinancing Indebtedness, any swap breakage costs and other termination costs related to Hedge Agreements and any other fees and expenses actually incurred in connection therewith), in each case as determined reasonably and in good faith by a Responsible Officer of the Borrower.

Non-Consenting Lender”: as defined Section 2.21(c).

Non-Loan Party Subsidiary”: any Restricted Subsidiary of the Borrower that is not a Loan Party.

Non-Recourse Debt”: Indebtedness:

(1) as to which neither the Borrower nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), subject to customary “bad-boy” exceptions, (b) is directly or indirectly liable as a guarantor or otherwise, or (c) constitutes the lender;

(2) no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of the Borrower or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its stated maturity; and

 

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(3) as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Borrower or any of its Restricted Subsidiaries;

provided that Non-Recourse Debt incurred by a Permitted Receivables Financing Subsidiary, Permitted Spectrum Financing Subsidiary or Permitted Tower Financing Subsidiary may have recourse to the Borrower and the other Group Members pursuant to Standard Securitization Undertakings.

Nonpublic Information”: information which has not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD.

Note”: any promissory note evidencing any Loan substantially in the form of Exhibit G-1 or G-2.

Obligations”: the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and Reimbursement Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed or allowable in such proceeding) the Loans, the Reimbursement Obligations and all other obligations and liabilities of the Loan Parties to the Administrative Agent or to any Lender or any Qualified Counterparty, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement or any other Loan Document, the Letters of Credit or any Designated Hedge Agreement, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs or expenses (including all fees, charges and disbursements of counsel to the Arrangers, to the Agents or to any Lender that are required to be paid by the Borrower pursuant hereto and including fees, costs and expenses interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not allowed or allowable in such proceeding), any Designated L/C Facilities Obligations and any Cash Management Obligations; provided that (i) obligations of the Borrower or any other Loan Party in respect of any Designated L/C Facilities Obligations, Designated Hedging Obligations or Cash Management Obligations shall be secured and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (ii) any release of Collateral or Guarantors effected in the manner permitted by this Agreement or any Security Document shall not require the consent of the holders of Designated L/C Facilities Obligations, holders of Designated Hedging Obligations or holders of any Cash Management Obligations. Notwithstanding the foregoing, “Obligations” of any Loan Party shall not include any Excluded Swap Obligation of such Loan Party.

OFAC”: as defined in Section 3.21(b).

Officers’ Certificate”: a certificate signed on behalf of the Borrower by a Responsible Officer of the Borrower.

 

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Optional Prepayment Amount”: for any Excess Cash Flow Period, the aggregate amount of all optional prepayments (including any premiums and penalties associated therewith) or purchases (including any “yanks” of non-consenting lenders thereunder) by any Purchasing Borrower Party or any Loan Party of the Term Loans, the Revolving Credit Loans (but only to the extent accompanied by a permanent reduction in commitments) and any other Indebtedness that constitutes First Lien Obligations (or, at the option of the Borrower, during such Excess Cash Flow Period and the period in the succeeding Excess Cash Flow Period prior to the applicable Excess Cash Flow Application Date), in each case except to the extent that such prepayments or repurchases are funded with the proceeds of incurrences of long-term Indebtedness (other than Indebtedness in respect of any revolving credit facility); provided, with respect to any prepayment of Term Loans, Incremental Term Loans, any Permitted Refinancing Indebtedness in respect of Term Loans, or any Incremental Equivalent Debt or any Permitted Refinancing Indebtedness in respect of Incremental Equivalent Debt, in each case by any Purchasing Borrower Party pursuant to Section 9.4 or the corresponding provision in the definitive agreement governing any Incremental Equivalent Debt or such Permitted Refinancing Indebtedness, and with respect to any repurchase thereof by a Loan Party (including without limitation pursuant to Auctions in accordance with Section 2.12(f)), the Optional Prepayment Amount shall include only the aggregate amount of cash actually paid by such Purchasing Borrower Party or Loan Party in respect of the principal amount of the Term Loans, Incremental Equivalent Debt or Permitted Refinancing Indebtedness, as the case may be, so prepaid or repaid; provided, further, that to the extent any such prepayments or repurchases made after the applicable Excess Cash Flow Period reduce Excess Cash Flow for such Excess Cash Flow Period, such prepayments or repurchases shall not also reduce Excess Cash Flow in the Excess Cash Flow Period in which they are made.

Organizational Documents”: with respect to any Person and as applicable, the certificate of incorporation or formation, memorandum or articles of association, bylaws, limited liability company agreement, limited partnership agreement or other organizational documents of such Person.

Other Applicable Indebtedness”: as defined in Section 2.14(g).

Other Connection Taxes”: 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 any Loan Party under any Loan Document, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than a connection arising solely from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

Other Taxes”: all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes imposed by any Governmental Authority arising from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.21(b)).

 

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Other Term Loans”: as defined in Section 2.23(a).

Parent”: T-Mobile US, Inc., a Delaware corporation.

Parent Only Subsidiary”: Any Subsidiary of Parent that is (x) not a Subsidiary of the Borrower or any other Loan Party (other than Parent) and (y) directly or indirectly owns Capital Stock of the Borrower.

Participant”: as defined in Section 9.4(c).

Participant Register”: as defined in Section 9.4(c).

Participating Member State”: any member state of the European Community that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.

PATRIOT Act”: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001), as amended.

PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA and any successor entity performing similar functions.

Permanent Financing”: one or more debt facilities or other Indebtedness, whether in the form of notes or loans and whether secured or unsecured, in each case the proceeds of which are used to refinance or replace the Bridge Facility or any other Permanent Financing in whole or in part.

Permitted Acquisition”: Permitted Investments made under clause (c) of the definition thereof, and acquisitions of spectrum licenses.

Permitted Amendment”: any Extension Amendment, Incremental Facility Amendment or Replacement Facility Amendment.

Permitted Asset Swap”: the purchase and sale or exchange of Related Business Assets or a combination of Related Business Assets and Cash Equivalents between the Borrower or any of the Restricted Subsidiaries and another Person.

Permitted Bond Hedge Transaction”: any call or capped call option (or substantively equivalent derivative transaction) on Parent’s common stock purchased by the Borrower in connection with the issuance of any Convertible Debt; provided that the purchase price for such Permitted Bond Hedge Transaction, does not exceed the net cash proceeds received by the Borrower from the sale of such Convertible Debt issued in connection with the Permitted Bond Hedge Transaction.

 

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Permitted Business”: any business, service or other activity in which the Borrower and its Subsidiaries or any direct or indirect parent of the Borrower were engaged on the Closing Date, or any business similar, related, complementary, incidental or ancillary thereto or that constitutes a reasonable extension, development or expansion thereof, or any business reasonably related to the telecommunications industry, and the acquisition, holding or exploitation of any license relating to the delivery of those services.

Permitted Credit Agreement Refinancing Indebtedness”: in the case of any (a) Permitted Pari Passu Secured Refinancing Debt, (b) Permitted Junior Secured Refinancing Debt or (c) Permitted Unsecured Refinancing Debt, in each case, issued, incurred or otherwise obtained (including by means of the extension or renewal of existing Indebtedness) in exchange for, or to extend, renew, replace or refinance, in whole or part, existing Loans or Revolving Credit Commitments (including any successive Permitted Credit Agreement Refinancing Indebtedness) (“Refinanced Debt”), such exchanging, extending, renewing, replacing or refinancing Indebtedness that (i) is in an original aggregate principal amount not greater than the aggregate principal amount of the Refinanced Debt except by an amount equal to unpaid accrued or capitalized interest thereon, any make-whole payments or premium (including tender premium) applicable thereto or paid in connection therewith, plus upfront fees and original issue discount on such exchanging, extending, renewing, replacing or refinancing Indebtedness, plus other fees and expenses in connection with such exchange, modification, refinancing, refunding, renewal, replacement or extension, (ii) does not require any scheduled payment of principal (including pursuant to a sinking fund obligation) or mandatory redemption or redemption at the option of the holders thereof or similar prepayment prior to the maturity date of the applicable Refinanced Debt (other than customary offers to purchase upon an asset sale or change of control), the maturity date of such Indebtedness is not prior to the maturity date of the applicable Refinanced Debt and, in the case of a refinancing of Term Loans, the Weighted Average Life to Maturity of such Indebtedness is not shorter than the Weighted Average Life to Maturity of the applicable Refinanced Debt, (iii) has terms and conditions (other than (x) as provided in the foregoing clause (ii), (y) interest rate, fees, funding discounts and other pricing terms, liquidation preferences, call protection periods, prepayment or other premiums, optional prepayment terms and redemption terms (subject to the foregoing clause (ii)) and subordination terms and (z) covenants (including any financial maintenance covenants added for the benefit of any lenders or investors providing such Indebtedness) or other provisions to the extent (1) also added for the benefit of any existing Lenders or (2) applicable only to periods after the then Latest Maturity Date at the time of incurrence of such Indebtedness) that are, when taken as a whole, not materially more favorable (as determined by the Borrower in good faith) to the lenders or investors providing such Indebtedness than those set forth in the Loan Documents are to the Lenders holding such Refinanced Debt, (iv) is guaranteed only by such Person that is also a Guarantor and (v) the proceeds of which are used to repay (in the case of Refinanced Debt consisting of Loans), defease or satisfy and discharge such Refinanced Debt and pay all accrued interest, fees and premiums (if any) in connection therewith; provided that, in the case of Refinanced Debt consisting of Revolving Credit Loans, the Revolving Credit Commitments shall be permanently reduced on a dollar-for-dollar basis, in each case substantially concurrently with the issuance, incurrence or obtaining of such Permitted Credit Agreement Refinancing Indebtedness.

Permitted Debt”: as defined in Section 6.3(b).

 

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Permitted Early Maturity Indebtedness”: (i) any Indebtedness in an aggregate principal amount at any one time outstanding not to exceed the greater of $5,000.0 million and 22.5% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period, (ii) Indebtedness with amortization in excess of 1.00% a year that is marketed principally to commercial banks (as reasonably determined by the Borrower) and (iii) any “bridge loan” or bridge notes facilities that automatically convert or exchange, subject to customary conditions, into long-term “permanent” financing that otherwise satisfies any applicable requirements relating to maturity and weighted average life to maturity.

Permitted Holder”: (i) DT and (ii) any direct or indirect Subsidiary of DT.

Permitted Investments”:

(a) any Investment in the Borrower or in any Restricted Subsidiary of the Borrower;

(b) any Investment in Cash Equivalents;

(c) any Investment by the Borrower or any Restricted Subsidiary of the Borrower in a Person, if as a result of such Investment:

(i) such Person becomes a Restricted Subsidiary of the Borrower; or

(ii) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets or any division or business unit to, or is liquidated into, the Borrower or a Restricted Subsidiary of the Borrower;

(d) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 6.4 hereof;

(e) any acquisition of assets or Capital Stock solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Borrower or Equity Interests of Parent;

(f) any Investments received in compromise or resolution of (i) obligations of trade creditors or customers that were incurred in the ordinary course of business of the Borrower or any of its Restricted Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or upon enforcement of any Lien in favor of the Borrower or any Restricted Subsidiary; or (ii) litigation, arbitration or other disputes with Persons who are not Affiliates;

(g) Investments represented by Hedging Obligations;

(h) loans or advances to, and guarantees of Indebtedness of, employees or directors made in the ordinary course of business of the Borrower (or any of its direct or indirect parent companies) or any Restricted Subsidiary of the Borrower in an aggregate principal amount not to exceed the greater of $125.0 million and 0.50% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period at any one time outstanding;

 

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(i) any payment on or with respect to, or purchase, redemption, defeasement or other acquisition or retirement for value of (i) any of the Term Loans or (ii) any other Indebtedness that is pari passu in right of payment with the foregoing, other than Subordinated Indebtedness;

(j) advances and prepayments for asset purchases in the ordinary course of business in a Permitted Business of the Borrower or any of its Restricted Subsidiaries;

(k) Investments (i) existing on the Closing Date, (ii) made pursuant to binding commitments in effect on the Closing Date and (iii) that replace, refinance, refund, renew or extend any Investment described under either of the immediately preceding clauses (i) and (ii); provided that any such Investment is in an amount that does not exceed the amount replaced, refinanced, refunded, renewed or extended except to the extent required by the terms of such Investment or commitment on the Closing Date and fees and expenses in connection therewith;

(l) Investments in connection with the Dish Transactions or the Consent Decree Transactions;

(m) Permitted Bond Hedge Transactions which constitute Investments;

(n) (i) Permitted Joint Venture Investments, and (ii) other Investments to the extent such Investment under (i) or (ii) has an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (n) that are at the time outstanding, not to exceed the greater of $6,600.0 million and 30.0% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period; provided that if any Investment pursuant to this clause (n) is made in any Person that is not a Restricted Subsidiary at the date of the making of such Investment and such Person becomes a Restricted Subsidiary after such date, such Investment shall thereafter be deemed to have been made pursuant to clause (a) above and shall cease to have been made pursuant to this clause (n) for so long as such Person continues to be a Restricted Subsidiary ;

(o) Investments in a Person primarily engaged in a Permitted Business having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (o) since the Closing Date that are at that time outstanding, not to exceed the greater of $625.0 million and 2.75% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period;

(p) guarantees permitted under Section 6.3 hereof;

(q) deposits or payments made with the FCC in connection with the auction or licensing of Governmental Authorizations;

 

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(r) any Investment deemed made from time to time pursuant to Section 5.13 in connection with a Specified Unrestricted Subsidiary Designation, in an amount equal to the aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in the Subsidiaries designated as Unrestricted Subsidiaries pursuant to such Specified Unrestricted Subsidiary Designation, but only to the extent not in excess of the aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in such designated Subsidiaries as of the Reference Notes Indenture Closing Date (for this purpose, it shall be assumed, as regards to Investments in any Designated Tower Entity, that all wireless communications sites, towers, and related contracts, equipment, improvements, real estate, and other assets of the Borrower and its subsidiaries subject to the Towers Transactions that are contemplated to be transferred to the Designated Tower Entities in accordance with the terms of the Towers Transactions, as contemplated in the Towers Transactions Agreements as in effect as of the Closing Date or as amended in a manner that is not prohibited by this Agreement and is not materially adverse to the interests of the Lenders (in their capacity as such) had been transferred to the Designated Tower Entities, whether or not all such transfers have in fact then taken place, but disregarding any transfers of assets not part of the Towers Transactions as contemplated in the Towers Transactions Agreements as in effect on the Closing Date or as amended in a manner that is not prohibited by this Agreement and is not materially adverse to the interests of the Lenders (in their capacity as such);

(s) (i) Investments in a Permitted Receivables Financing Subsidiary, a Permitted Tower Financing Subsidiary or a Permitted Spectrum Financing Subsidiary and (ii) any Investment by a Permitted Receivables Financing Subsidiary, a Permitted Tower Financing Subsidiary or a Permitted Spectrum Financing Subsidiary in any other Person in connection with a Permitted Receivables Financing, a Permitted Tower Financing or a Permitted Spectrum Financing, as applicable;

(t) any other Investments made in connection with the Towers Transactions, as contemplated in the Towers Transactions Agreements as in effect on the Closing Date or as amended in a manner that is not prohibited by this Agreement and is not materially adverse to the interests of the Lenders (in their capacity as such);

(u) Investments consisting of any license or sublicense of intellectual property granted in the ordinary course of business or which do not materially interfere with the ordinary course of business of the Borrower or any Restricted Subsidiary;

(v) Investments consisting of purchases and acquisitions of inventory, supplies, licenses, materials and equipment (including prepayments to suppliers) or purchases of contract rights or licenses or leases of intellectual property, in each case in the ordinary course of business;

(w) Investments of a Restricted Subsidiary acquired after the Closing Date or of an entity merged into or consolidated with a Restricted Subsidiary in a transaction that is not prohibited by Section 6.7 after the Closing Date to the extent that such Investments were not made in contemplation of such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;

 

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(x) Investments made in connection with obtaining, maintaining or renewing client contacts and advances, loans, rebates and extensions of credit (including the creation of receivables) to suppliers, distributors, customers and vendors and performance guarantees, in each case in the ordinary course of business;

(y) loans and advances to direct and indirect parent companies of the Borrower in lieu of, and not in excess of the amount of (after giving effect to any other loans, advances or Restricted Payments in respect thereof), Restricted Payments to the extent permitted to be made to such companies in accordance with Section 6.1 (and, for avoidance of doubt, the amount of Restricted Payments permitted to be made to such companies in accordance with Section 6.1 correspondingly reduced by such loans and advances made pursuant to this clause (y));

(z) any Investment in any Subsidiary or any joint venture in connection with intercompany cash management arrangements or related activities arising in the ordinary course of business; and

(aa) other Investments, provided that the Total Net Leverage Ratio calculated on a Pro Forma Basis after giving effect to such Investment would be equal to or less than 3.00 to 1.00.

Notwithstanding any other provision to the contrary, no Permitted Investment shall be deemed to be a Restricted Payment. To the extent any Investment in any person is made in compliance with Section 6.1(b) in reliance on a category above that is subject to a US Dollar-denominated restriction on the making of Investments and, subsequently, such Person returns to the Borrower, any other Loan Party or, to the extent applicable, any Restricted Subsidiary all or any portion of such Investment (in the form of a dividend, distribution, interest, payment, return of capital, repayment, liquidation or otherwise but excluding intercompany Indebtedness), such return shall be deemed to be credited to the US Dollar-denominated category against which the Investment is then charged (but in any event not in an amount that would result in the aggregate dollar amount able to be invested in reliance on such category to exceed such US Dollar-denominated restriction). To the extent the category subject to a US Dollar-denominated restriction is also subject to an equivalent percentage of such US Dollar amount which, at the date of determination, produces a numerical restriction that is greater than such US Dollar amount, then such US Dollar equivalent shall be deemed to be substituted in lieu of the corresponding US Dollar amount in the foregoing sentence for purposes of determining such credit.

Permitted Joint Venture Investment”: with respect to any specified Person, Investments in any other Person engaged in a Permitted Business of which at least 40% of the outstanding Capital Stock of such other Person is at the time owned directly or indirectly by the specified Person.

 

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Permitted Junior Secured Refinancing Debt”: Indebtedness in the form of one or more series of secured notes or loans; provided that, (i) such Indebtedness is, in each case, secured by Collateral on a junior basis to the Liens securing the Obligations, (ii) such Indebtedness constitutes Permitted Credit Agreement Refinancing Indebtedness, (iii) the security agreements relating to such Indebtedness are not materially more favorable (as determined in good faith by Parent) to the lenders or investors thereunder than the Security Documents and (iv) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to a Senior/Junior Intercreditor Agreement or such other customary intercreditor arrangements reasonably satisfactory to the Administrative Agent. Permitted Junior Secured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.

Permitted Liens”:

(a) Liens securing Indebtedness and other obligations permitted by Section 6.3(b)(i), (viii) and (xix) hereof, provided that any secured Permitted Refinancing Indebtedness incurred in respect of Indebtedness or other obligations previously secured pursuant to this clause (a) will be treated as Indebtedness secured pursuant to this clause (a) in making any determination as to whether additional Indebtedness or other obligations may be secured pursuant to this clause (a);

(b) Liens in favor of the Borrower or the Guarantors;

(c) Liens on property of a Person existing at the time such Person becomes a Restricted Subsidiary or is merged with or into or consolidated with the Borrower or any Subsidiary of the Borrower; provided that such Liens were in existence prior to the contemplation of such merger or consolidation and do not extend to any assets (other than improvements thereon, accessions thereto and proceeds thereof) other than those of the Person that becomes a Restricted Subsidiary or is merged into or consolidated with the Borrower or the Subsidiary;

(d) Liens on property (including Capital Stock) existing at the time of acquisition of the property by the Borrower or any Subsidiary of the Borrower; provided that such Liens were in existence prior to, and not incurred in contemplation of, such acquisition;

(e) (x) bankers’ Liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained with a depositary institution, and (y) Liens, deposits (including deposits with the FCC) or pledges to secure the performance of bids, tenders, trade or governmental contracts, leases, licenses, statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business;

(f) Liens to secure Indebtedness (including Financing Lease Obligations) permitted by Section 6.3(b)(iv) covering only the assets (including the proceeds thereof, accessions thereto, lease and sublease interests related thereto and upgrades thereof) acquired with or financed by such Indebtedness;

(g) Liens existing on the Closing Date;

(h) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;

 

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(i) Liens imposed by law or contract, such as carriers’, warehousemen’s, suppliers’, vendors’, construction, repairmen’s, landlord’s and mechanics’ Liens or other similar Liens, in each case, incurred in the ordinary course of business;

(j) survey exceptions, encumbrances, leases, subleases, encroachments, protrusions, easements or reservations of, or rights of others for, licenses, sub-licenses, rights-of-way, servitudes, sewers, electric lines, drains, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including defects or irregularities in title and similar encumbrances) as to the use of real property that were not incurred in connection with Indebtedness, or Liens incidental to the conduct of business of such Person or to the ownership of its properties that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

(k) Liens arising by reason of a judgment, attachment, decree or court order, to the extent not otherwise resulting in an Event of Default, and any Liens that are required to protect or enforce any rights in any administrative, arbitration or other court proceedings in the ordinary course of business;

(l) Liens created for the benefit of (or to secure) (1) the Obligations under any Loan Document (including Indebtedness under any Incremental Facility, Replacement Facility and Extended Term Loans), (2) Incremental Equivalent Debt, (3) Designated Hedging Obligations, (4) Designated L/C Facilities Obligations and (5) Cash Management Obligations;

(m) Liens to secure any Permitted Refinancing Indebtedness permitted to be incurred under this Agreement; provided, however, that:

(1) the new Lien shall be limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to such property and assets and proceeds or distributions of such property and assets and improvements and accessions thereto); and

(2) the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (x) the outstanding principal amount, or, if greater, committed amount, of the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged and (y) an amount necessary to pay accrued and unpaid interest, any fees and expenses, including premiums, related to such renewal, refunding, refinancing, replacement, defeasance or discharge;

(n) (x) Liens contained in purchase and sale agreements or lease agreements limiting the transfer of assets pending the closing of the transactions contemplated thereby or the termination of the lease, respectively, (y) spectrum leases or other similar lease or licensing arrangements contained in, or entered into in connection with, purchase and sale agreements, and (z) Liens relating to deposits or escrows established in connection with purchase and sale agreements;

 

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(o) Liens that may be deemed to exist by virtue of contractual provisions that restrict the ability of the Borrower or any of its Subsidiaries from granting or permitting to exist Liens on their respective assets;

(p) Liens on cash or Cash Equivalents securing obligations under any Indebtedness of any Group Member that have been called for redemption, defeasance or discharge;

(q) Liens on cash or Cash Equivalents securing (x) workers’ compensation claims, self-insurance obligations, unemployment insurance or other social security, old age pension, bankers’ acceptances, performance bonds, completion bonds, bid bonds, appeal bonds, indemnity bonds, specific performance or injunctive relief bonds, surety bonds, public liability obligations, or other similar bonds or obligations, or securing any Guarantees or letters of credit functioning as or supporting any of the foregoing, in each case incurred in the ordinary course of business or (y) letters of credit required to be issued for the benefit of any Person that controls a Permitted Joint Venture Investment to secure any put right for the benefit of the Person controlling the Permitted Joint Venture Investment;

(r) Liens arising from Uniform Commercial Code financing statement filings (or similar filings in any other jurisdiction) regarding operating leases or consignments or sales of receivables entered into in the ordinary course of business covering only the property under lease (plus improvements and accessions to such property and proceeds or distributions of such property and improvements and accessions thereto), consignment or sale and other Liens arising solely from precautionary UCC financing statements or similar filings;

(s) any interest or title of a lessor, licensor or sublicensor in the property subject to any lease, license or sublicense entered into in the ordinary course of business;

(t) Liens on cash or Cash Equivalents on deposit to secure reimbursement obligations under letters of credit incurred in the ordinary course of business;

(u) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any Person that is a Permitted Joint Venture Investment owned by the Borrower or any Restricted Subsidiary to the extent securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or Person;

(v) Liens arising under operating agreements, joint venture agreements, partnership agreements, contracts for sale and other agreements arising in the ordinary course of business that are customary in the Permitted Business, and applicable only to the assets that are the subject of such agreements or contracts;

(w) Liens securing Hedging Obligations;

 

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(x) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

(y) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

(z) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

(aa) Liens securing any arrangement for treasury, depositary or cash management services provided to the Borrower or any of its Restricted Subsidiaries in the ordinary course of business;

(bb) Liens with respect to obligations that do not exceed at any time the greater of (x) $1,250.0 million and (y) 5.75% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period;

(cc) Liens on the Collateral securing obligations in respect of Permitted Pari Passu Secured Refinancing Debt or Permitted Junior Secured Refinancing Debt, or any secured Incremental Equivalent Debt, and any Permitted Refinancing Indebtedness thereof, and any obligations in respect of any Guarantee thereof; provided that a Senior Representative acting on behalf of the holders of any such Indebtedness shall become subject to the provisions of a Senior Pari Passu Intercreditor Agreement, a Senior/Junior Intercreditor Agreement or other intercreditor arrangements reasonably acceptable to the Administrative Agent, as applicable;

(dd) Liens on the Collateral securing obligations in respect of the Senior Secured Notes, subject to the Senior Pari Passu Intercreditor Agreement;

(ee) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements;

(ff) (i) Liens on Permitted Receivables Financing Assets (including liens on any deposit or other accounts primarily holding Permitted Receivables Financing Assets) supporting any Permitted Receivables Financing or any assets supporting any Permitted Tower Financing or Permitted Spectrum Financing, as applicable or (ii) to the extent deemed to constitute Liens, sales or transfers of assets (or interest therein) described in clause (m) of the exceptions to the definition of the term “Asset Sales”;

(gg) Liens, if any, incurred in connection with the Towers Transactions;

 

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(hh) Liens securing Indebtedness so long as:

(i) in the case of Indebtedness that constitutes First Lien Obligations, the Total First Lien Net Leverage Ratio, determined on a Pro Forma Basis (after giving effect to any Pro Forma Transaction or other transaction consummated in connection with, or the consummation of which results in, the creation of such Liens, including any acquisition consummated with the proceeds of Indebtedness secured by such Liens), would not exceed 2.00 to 1.00 as of the time such Liens are incurred (or, if incurred in connection with a Permitted Acquisition or other Investment, the Total First Lien Net Leverage Ratio would not exceed the Total First Lien Net Leverage Ratio immediately prior to such Permitted Acquisition or other Investment); and

(ii) in the case of any other Indebtedness, the Total Secured Net Leverage Ratio, determined on a Pro Forma Basis (after giving effect to any Pro Forma Transaction or other transaction consummated in connection with, or the consummation of which results in, the creation of such Liens, including any acquisition consummated with the proceeds of Indebtedness secured by such Liens), would not exceed 2.50 to 1.00 as of the time such Liens are incurred (or, if incurred in connection with a Permitted Acquisition or other Investment, the Total Secured Net Leverage Ratio would not exceed the Total Secured Net Leverage Ratio immediately prior to such Permitted Acquisition or other Investment).

(ii) Liens on assets of Restricted Subsidiaries that are not Subsidiary Guarantors, securing obligations of Restricted Subsidiaries that are not Subsidiary Guarantors;

(jj) Liens securing obligations of the Borrower and the Guarantors in respect of the operating lease payments owed to SpectrumCo1 or in respect of any other secured spectrum leases to which the Borrower or any of its Restricted Subsidiaries are a party, and any related payment and performance undertaking, secured by the Collateral on a pari passu or junior basis with the Obligations;

(kk) Leases, licenses, subleases and sublicenses of, and the granting of an easement interest in and to, assets (including real property and intellectual property rights and other general intangibles) in the ordinary course of business;

(ll) pledges and deposits in the ordinary course of business to secure liability to insurance carriers, insurance companies and brokers;

(mm) grants of software and other technology licenses in the ordinary course of business;

(nn) Liens arising out of conditional sale, title retention, consignment or similar arrangement for the sale of goods in the ordinary course of business;

(oo) Liens on equipment of the Borrower or any Restricted Subsidiary granted in the ordinary course of business to the Borrower’s or such Restricted Subsidiary’s client at which such equipment is located;

(pp) Liens on receivables and related assets including proceeds thereof being sold in factoring arrangements in the ordinary course of business;

 

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(qq) customary options, put and call arrangements, rights of first refusal and similar rights relating to Investments in joint ventures, partnerships and similar investment vehicles;

(rr) [reserved];

(ss) Liens arising out of or deemed to exist in connection with any financing transaction of the type described in clause (n) of the definition of “Asset Sale”;

(tt) Liens incurred in connection with the Dish Transactions or the Consent Decree Transactions; and

(uu) Liens on cash collateral securing obligations under letter of credit facilities otherwise permitted hereunder.

“Permitted Pari Passu Secured Refinancing Debt”: Indebtedness in the form of one or more series of senior secured loans or senior secured notes; provided that (i) such Indebtedness is secured by the Collateral on a pari passu basis (but without regard to the control of remedies) with the Obligations, (ii) such Indebtedness constitutes Permitted Credit Agreement Refinancing Indebtedness, and (iii) a Senior Representative acting on behalf of the holders of such Indebtedness shall have become party to a Senior Pari Passu Intercreditor Agreement or other customary intercreditor arrangements reasonably satisfactory to the Administrative Agent. Permitted Pari Passu Secured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.

Permitted Payments to Parent”: without duplication as to amounts:

(a) payments to Parent to permit Parent to pay reasonable accounting, legal, investment banking fees and administrative expenses of Parent, and franchise, capital stock, minimum and other similar taxes required to maintain the corporate existence of Parent, when due; and

(b) for so long as the Borrower or any of its Subsidiaries is a member of a group filing a consolidated or combined tax return with Parent, payments to Parent in respect of an allocable portion of the tax liabilities of such group that is attributable to the Borrower and/or such Subsidiaries (the “Tax Payments”). The Tax Payments shall not exceed the lesser of (i) the amount of the relevant tax (including any penalties and interest) that the Borrower and/or such Subsidiaries would have owed for such taxable year if the Borrower and/or such Subsidiaries had filed a separate tax return (or a separate consolidated or combined return) for all relevant taxable years ending after the date hereof, taking into account any carryovers of tax attributes (such as net operating losses) of the Borrower and such Subsidiaries from prior taxable years and (ii) the net amount of the relevant tax that Parent actually owes to the appropriate taxing authority.

Permitted Receivables Financing”: any Receivables Financing of a Permitted Receivables Financing Subsidiary the terms of which (including financing terms, covenants, termination events and other provisions) (a) have been negotiated at arm’s length and (b) are, in the good faith determination of the Borrower’s Board of Directors or a senior financial officer of the Borrower, which determination shall be conclusive, in the aggregate economically fair and reasonable to the Group Members.

 

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Permitted Receivables Financing Assets”: financial assets, including accounts receivable, chattel paper and other payment rights, and related assets (including contract rights and insurance payments), and the proceeds thereof.

Permitted Receivables Financing Subsidiary”: collectively, (i) each Existing Receivables Financing Subsidiary, (ii) each other Wholly Owned Subsidiary of the Borrower that engages in no material activities other than in connection with Permitted Receivables Financings, and any business or activities incidental or related to such business and (iii) another Person formed for the purposes of engaging in a Permitted Receivables Financing in which the Borrower or any of its Restricted Subsidiaries makes an Investment and to which the Borrower or any of its Restricted Subsidiaries transfers Permitted Receivables Financing Assets that engages in no material activities other than in connection with Permitted Receivables Financings, and any business or activities incidental or related to such business, and in the case of clause (ii) or (iii) above which is designated by the Board of Directors of the Borrower (as provided below) as a Permitted Receivables Financing Subsidiary and in each case (a) no portion of the Indebtedness or similar obligations (contingent or otherwise) of which (i) is guaranteed by Parent or any Group Member, other than another Permitted Receivables Financing Subsidiary or (to the extent that it might be deemed a guaranty) pursuant to Standard Securitization Undertakings, or (ii) is recourse to or obligates Parent or any Group Member, other than another Permitted Receivables Financing Subsidiary, in any way other than pursuant to Standard Securitization Undertakings, (b) to which none of Parent or any Group Member, other than another Permitted Receivables Financing Subsidiary, has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results. Any such designation by the Board of Directors of the Borrower shall be evidenced to the Administrative Agent by delivery to the Administrative Agent of a certified copy of the resolution of the Board of Directors of the Borrower giving effect to such designation and a certificate executed by a Responsible Officer certifying that such designation complied with the foregoing conditions.

Permitted Refinancing Indebtedness”: any Indebtedness of the Borrower or any of its Restricted Subsidiaries, any Disqualified Stock of the Borrower or any Preferred Stock of any Restricted Subsidiary issued (a) in exchange for, or the net proceeds of which are used to, extend the maturity, renew, refund, refinance, replace, defease, discharge or otherwise retire for value, in whole or in part, or (b) constituting an amendment, modification or supplement to or a deferral or renewal of ((a) and (b) above, collectively, a “Refinancing”), any other Indebtedness of the Borrower or any of its Restricted Subsidiaries, any Disqualified Stock of the Borrower or any Preferred Stock of a Restricted Subsidiary in a principal amount or, in the case of Disqualified Stock of the Borrower or Preferred Stock of a Restricted Subsidiary, liquidation preference, not to exceed (after deduction of reasonable and customary fees and expenses incurred in connection with the Refinancing) the lesser of:

(a) the principal amount or, in the case of Disqualified Stock or Preferred Stock, liquidation preference, of the Indebtedness, Disqualified Stock or Preferred Stock so Refinanced (plus, in the case of Indebtedness, the amount of accrued interest and premium, if any paid in connection therewith, and any swap breakage costs and other termination costs related to Hedge Agreements plus upfront fees and original issue discount on such refinancing indebtedness, and other customary fees and expenses in connection therewith); and

 

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(b) if the Indebtedness being Refinanced was issued with any original issue discount, the accreted value of such Indebtedness (as determined in accordance with GAAP) at the time of such Refinancing (plus the amount of accrued interest and premium, if any paid in connection therewith, and any swap breakage costs and other termination costs related to Hedge Agreements plus upfront fees and original issue discount on such refinancing indebtedness, and other customary fees and expenses in connection therewith);

in each case, except to the extent that any such excess principal amount (or accreted value, as applicable) would be then permitted to be incurred by other provisions of Section 6.3 hereof; provided that such excess principal amount of Indebtedness shall be deemed to be incurred under such other provision.

Notwithstanding the preceding, no Indebtedness, Disqualified Stock or Preferred Stock will be deemed to be Permitted Refinancing Indebtedness, unless:

(a) other than in the case of a refinancing of purchase money Indebtedness and Financing Lease Obligations, such Indebtedness, Disqualified Stock or Preferred Stock has a final maturity date or redemption date, as applicable, equal to or later than the final maturity date or redemption date, as applicable, of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness, Disqualified Stock or Preferred Stock being Refinanced (determined, solely, for the purposes of this clause (a), in the case of any Indebtedness being Refinanced, without giving effect to prepayments that reduced amortization of such Indebtedness);

(b) if the Indebtedness, Disqualified Stock or Preferred Stock being Refinanced is (i) contractually subordinated in right of payment to the Obligations, such Indebtedness, Disqualified Stock or Preferred Stock is contractually subordinated in right of payment to the Obligations, on terms at least as favorable to the Lenders holding such Loans as those contained in the documentation governing the Indebtedness, Disqualified Stock or Preferred Stock being Refinanced at the time of the Refinancing or (ii) secured by a junior permitted lien on the Collateral (or portion thereof) and/or subject to intercreditor arrangements for the benefit of the Lenders, in the case of this clause (ii) such refinancing shall be unsecured or secured by a junior permitted lien on the Collateral (or portion thereof), and subject to intercreditor arrangements on substantially the same terms (as determined by the Borrower in good faith) as those in effect prior to such refinancing or on terms not materially less favorable, taken as a whole, to the Secured Parties than those in respect of the Indebtedness being so refinanced or on such other terms reasonably acceptable to the Administrative Agent; and

(c) such Indebtedness or Disqualified Stock is incurred or issued by the Borrower or such Indebtedness, Disqualified Stock or Preferred Stock is incurred or issued by the Restricted Subsidiary who is the obligor on the Indebtedness being Refinanced or the issuer of the Disqualified Stock or Preferred Stock being Refinanced, or a Restricted Subsidiary of such obligor or issuer.

 

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Permitted Spectrum Financing”: the Existing Sprint Spectrum Transaction.

Permitted Spectrum Financing Subsidiary”: collectively, (i) the Existing Sprint Spectrum Subsidiaries and (ii) any future special purpose vehicle Subsidiaries of Borrower (including any “Depositors” and “Intermediate HoldCos”) formed as part of and for the purpose of consummating a future sale and leaseback transaction similar to the Existing Sprint Spectrum Transaction and that engages in no material activities other than in connection with Permitted Spectrum Financings, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Borrower (as provided below) as a Permitted Spectrum Financing Subsidiary and (a) no portion of the Indebtedness or similar obligations (contingent or otherwise) of which (i) is guaranteed by Parent or any Group Member, other than another Permitted Spectrum Financing Subsidiary or (to the extent that it might be deemed a guaranty) pursuant to Standard Securitization Undertakings, or (ii) is recourse to or obligates Parent or any Group Member, other than another Permitted Spectrum Financing Subsidiary, in any way other than pursuant to Standard Securitization Undertakings, (b) to which none of Parent or any Group Member, other than another Permitted Spectrum Financing Subsidiary, has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results. Any such designation by the Board of Directors of the Borrower shall be evidenced to the Administrative Agent by delivery to the Administrative Agent of a certified copy of the resolution of the Board of Directors of the Borrower giving effect to such designation and a certificate executed by a Responsible Officer certifying that such designation complied with the foregoing conditions.

Permitted Term Loan Refinancing Indebtedness”: (a) Permitted Pari Passu Secured Refinancing Debt, (b) Permitted Junior Secured Refinancing Debt and (c) Permitted Unsecured Refinancing Debt and, in each case, any Permitted Refinancing Indebtedness.

Permitted Tower Financing”: the Towers Transactions.

Permitted Tower Financing Subsidiary”: collectively, (i) each Existing Tower Financing Subsidiary and (ii) any other financing subsidiary formed in connection with a Permitted Tower Financing and that engages in no material activities other than in connection with Permitted Tower Financings, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Borrower (as provided below) as a Permitted Tower Financing Subsidiary and (a) no portion of the Indebtedness or similar obligations (contingent or otherwise) of which (i) is guaranteed by Parent or any Group Member, other than another Permitted Tower Financing Subsidiary or (to the extent that it might be deemed a guaranty) pursuant to Standard Securitization Undertakings, or (ii) is recourse to or obligates Parent or any Group Member, other than another Permitted Tower Financing Subsidiary, in any way other than pursuant to Standard Securitization Undertakings, (b) to which none of Parent or any Group Member, other than another Permitted Tower Financing Subsidiary, has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results. Any such designation by the Board of Directors of the Borrower shall be evidenced to the Administrative Agent by delivery to the Administrative Agent of a certified copy of the resolution of the Board of Directors of the Borrower giving effect to such designation and a certificate executed by a Responsible Officer certifying that such designation complied with the foregoing conditions.

 

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Permitted Unsecured Refinancing Debt”: Indebtedness in the form of one or more series of unsecured notes or loans; provided that (i) such Indebtedness is not secured by any property or assets of any Group Member and (ii) such Indebtedness constitutes Permitted Credit Agreement Refinancing Indebtedness. Permitted Unsecured Refinancing Debt will include any Registered Equivalent Notes issued in exchange therefor.

Person”: any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

Phoenix Towers Transaction Agreements”: (i) the Purchase and Sale Agreement, dated as of July 30, 2015 (as the same may be amended, modified, or supplemented from time to time), among the Borrower, certain Subsidiaries of the Borrower, PTI US Acquisitions, LLC, and each sale site subsidiary party thereto; (ii) the Purchase and Sale Agreement (PR Sale Sites), dated as of October 28, 2015 (as the same may be amended, modified, or supplemented from time to time), among the Borrower, certain Subsidiaries of the Borrower, PTI US Acquisitions, LLC, and each sale site subsidiary party thereto; and (iii) each of the other transaction documents entered into in connection therewith or contemplated thereby, as they may be amended, modified or supplemented from time to time.

Plan”: any employee pension benefit plan that is subject to Title IV of ERISA and in respect of which the Borrower or a Commonly Controlled Entity is or, if such plan were terminated, would under Section 4062 or Section 4069 of ERISA be deemed to be an “employer” as defined in Section 3(5) of ERISA.

Platform”: as defined in Section 9.1.

Pledged Capital Stock”: as defined in the Collateral Agreement.

Preferred Stock”: with respect to any Person, any Capital Stock of such Person that has preferential rights to any other Capital Stock of such Person with respect to dividends or payments upon liquidation.

Prepayment-Based Incremental Amount”: an amount equal to the amount of all voluntary prepayments, the amount of cash actually paid in connection with all below-par term loan buybacks (to the extent such term loans are cancelled) and undrawn commitment reductions of Term Loans, Revolving Credit Loans, Incremental Term Loans, Incremental Revolving Credit Loans and Incremental Equivalent Debt, in each case (x) with respect to any Revolving Credit Loans, to the extent accompanied by a permanent reduction in such Revolving Credit Commitments, (y) to the extent not funded with the proceeds of Indebtedness constituting “long-term indebtedness” (other than Indebtedness in respect of any revolving credit facility).

Prepayment-Based Incremental Facility”: as defined in Section 2.23.

Prime Rate”: the rate of interest per annum determined from time to time published in the “Money Rates” section of The Wall Street Journal as being the “Prime Lending Rate” or, if more than one rate is published as the Prime Lending Rate, then the higher of the such rates (each change in the Prime Rate to be effective as of the date of publication in The Wall Street Journal of a “Prime Lending Rate” that is different from that published on the preceding domestic business day); provided that in the event that The Wall Street Journal shall, for any reason, fail or cease to publish the Prime Lending Rate, the Administrative Agent shall choose a reasonably comparable index or source to use as the basis for the Prime Lending Rate.

 

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Private Lender Information”: as defined in Section 9.1.

Pro Forma Basis”: with respect to compliance with any test or covenant or calculation of any ratio hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Pro Forma Transactions) in accordance with Section 1.5 and the provisions of the second paragraph and third paragraph of the definition of “Total Net Leverage Ratio”.

Pro Forma Transaction”: (a) the Transactions, (b) any incurrence or repayment of Indebtedness (other than for working capital purposes or in the ordinary course of business), the making of any Restricted Payment pursuant to Section 6.1(a), 6.1(b)(xvi) or 6.1(b)(xvii), any Investment that results in a Person becoming a Restricted Subsidiary or an Unrestricted Subsidiary, any Permitted Acquisition or any disposition that results in a Restricted Subsidiary ceasing to be a Subsidiary or any Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person or any Asset Disposition of a business unit, line of business or division of a Group Member, in each case whether by merger, consolidation, amalgamation or otherwise and in each case under this clause (b) with a Fair Market Value in excess of $25,000,000 and (c) any restructuring or cost saving, operational change or business rationalization initiative or other initiative.

Property”: any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including Capital Stock.

PTE”: a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

Public Lender”: as defined in Section 9.1.

Public Lender Information”: as defined in Section 9.1.

Purchasing Borrower Party”: Parent, the Borrower or any Subsidiary of the Borrower that becomes an Eligible Assignee pursuant to Section 9.4.

Qualified Counterparty”: with respect to any Designated Hedge Agreement or Cash Management Obligations, any counterparty thereto that, at the time such Designated Hedge Agreement or Cash Management Obligations were entered into or, in the case of a Designated Hedge Agreement or Cash Management Obligations, as the case may be, existing on the Closing Date, on the Closing Date, was an Agent, an Arranger, a Lender or an Affiliate of any of the foregoing, regardless of whether any such Person shall thereafter cease to be an Agent, an Arranger, a Lender or an Affiliate of any of the foregoing.

Qualifying Bids”: as defined in Section 2.12(f)(iii).

Qualifying Lender”: as defined in Section 2.12(f)(iv).

 

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Rating Agency”: each of Moody’s, S&P, Fitch and, if any of Moody’s, S&P or Fitch ceases to exist or ceases to rate the Senior Notes (other than the Bridge Facility or any Permanent Financing that is not customarily rated) for reasons outside of the control of the Borrower, any other nationally recognized statistical rating organization selected by the Borrower as a replacement agency.

Ratings Decline Period”: the period that (i) begins on the earlier of (a) the date of the first public announcement of the occurrence of a Change of Control or of the intention by the Borrower or a shareholder of the Borrower, as applicable, to effect a Change of Control or (b) the occurrence thereof and (ii) ends 90 days following consummation of such Change of Control; provided that such period shall be extended for so long as the rating of the Senior Unsecured Notes of the applicable series, as noted by the applicable Rating Agency, is under publicly announced consideration for downgrade by the applicable Rating Agency.

Ratio-Based Incremental Amount”:

(a) with respect to any Indebtedness that is constitutes First Lien Obligations, an unlimited amount so long as, upon the effectiveness of the applicable Incremental Facility Amendment, the Total First Lien Net Leverage Ratio would not exceed 2.00 to 1.00 (or, if incurred in connection with a Permitted Acquisition or other Investment, the Total First Lien Net Leverage Ratio would not exceed the Total First Lien Net Leverage Ratio immediately prior to such Permitted Acquisition or other Investment),

(b) with respect to any Indebtedness that constitutes Junior Lien Obligation, an unlimited amount so long as, upon the effectiveness of the applicable Incremental Facility Amendment, the Total Secured Net Leverage Ratio would not exceed 2.50 to 1.00 (or, if incurred in connection with a Permitted Acquisition or other Investment, the Total Secured Net Leverage Ratio would not exceed the Total Secured Net Leverage Ratio immediately prior to such Permitted Acquisition or other Investment),

(c) with respect to any Indebtedness that is unsecured, an unlimited amount so long as, upon the effectiveness of the applicable Incremental Facility Amendment, the Total Net Leverage Ratio would not exceed 6.00 to 1.00 (or, if incurred in connection with a Permitted Acquisition or other Investment, the Total Net Leverage Ratio would not exceed the Total Net Leverage Ratio immediately prior to such Permitted Acquisition or other Investment),

in each case where such Total First Lien Net Leverage Ratio, Total Secured Net Leverage Ratio and/or Total Net Leverage Ratio, as applicable, is calculated on a Pro Forma Basis (after giving effect to any Pro Forma Transaction, including any acquisition consummated with the proceeds of such Ratio-Based Incremental Facility, but without giving effect to the cash proceeds received from such Indebtedness that remain on the balance sheet, and assuming that the commitments under any applicable Incremental Revolving Facility were fully drawn as of the effective date) as of the most recently completed Test Period;

 

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provided that, for the avoidance of doubt, if, as part of the same transaction or series of related transactions, the Borrower incurs Indebtedness pursuant to the Ratio-Based Incremental Amount and substantially concurrently also incurs Indebtedness (x) pursuant to the Prepayment-Based Incremental Amount or the Fixed Incremental Amount or (y) otherwise constituting a Fixed Amount, then the Total First Lien Net Leverage Ratio, Total Secured Net Leverage Ratio and/or Total Net Leverage Ratio, as applicable, will be calculated with respect to such incurrence pursuant to the Ratio-Based Incremental Amount without regard to any such substantially concurrent incurrence of Indebtedness under the Prepayment-Based Incremental Facility, the Fixed Incremental Facility or any other Fixed Amount.

Ratio-Based Incremental Facility”: as defined in Section 2.23(a).

Receivables Financing”: any transaction or series of transactions that may be entered into by Parent, the Borrower or any Restricted Subsidiary pursuant to which Parent or any Group Member may sell, convey or otherwise transfer to (a) a Permitted Receivables Financing Subsidiary (in the case of a transfer by Parent or any Group Member) or (b) any other Person (in the case of a transfer by a Permitted Receivables Financing Subsidiary), or a Permitted Receivables Financing Subsidiary may grant a security interest in, any Permitted Receivables Financing Assets of Parent or any Group Member.

Reference Notes Indenture”: the Senior Unsecured Notes Base Indenture, as supplemented by that certain Thirty-Third Supplemental Indenture, dated as of January 25, 2018, among the Borrower, each of the guarantors party thereto and Deutsche Bank Trust Company Americas, as Trustee.

Reference Notes Indenture Closing Date”: the “Closing Date” as defined in the Reference Notes Indenture.

Reference Rate”: (a) with respect to the Loans comprising each Eurodollar Borrowing for each day during each Interest Period with respect thereto, a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing and (b) with respect to any ABR Loan, the Alternate Base Rate.

Register”: as defined in Section 9.4(b)(v).

Registered Equivalent Notes”: with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical notes (having the same guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC (or any securities regulator outside the United States).

Regulation”: The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings.

Regulation FD”: Regulation FD as promulgated by the SEC under the Exchange Act, as in effect from time to time.

Regulation U”: Regulation U of the Board as in effect from time to time.

Reimbursement Obligation”: the obligations of the Borrower to reimburse each Issuing Bank pursuant to Section 2.7(e) for amounts drawn under Letters of Credit issued by such Issuing Bank.

 

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Related Business Assets”: assets (other than Cash Equivalents) used or useful in a Permitted Business.

Related Parties”: with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, partners, members, trustees, managers, controlling persons, agents, advisors and other representatives of such Person and such Person’s Affiliates and the respective successors and permitted assigns of each of the foregoing.

Release”: any actual or threatened release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or within any building, structure or facility.

Remedial Work”: any assessment, evaluation, investigation, monitoring, containment, cleanup, removal, repair, restoration, remediation or other remedial obligations required by any Environmental Law.

Replacement Assets”: (i) capital expenditures with respect to any assets, (ii) other assets that will be used or useful in a Permitted Business, (iii) all or substantially all of the assets of a Permitted Business, (iv) Voting Stock of any Person engaged in a Permitted Business that, when taken together with all other Voting Stock of such Person owned by the Borrower and its Restricted Subsidiaries, constitutes a majority of the Voting Stock of such Person and such Person will become a Restricted Subsidiary on the date of the acquisition thereof or (v) deposits or payments to acquire FCC Licenses.

Replacement Facility”: as defined in Section 2.24(a).

Replacement Facility Amendment”: as defined in Section 2.24(c).

Replacement Facility Closing Date”: as defined in Section 2.24(c).

Replacement Notes”: as defined in Section 2.24(a).

Replacement Revolving Credit Commitments”: as defined in Section 2.24(d).

Replacement Revolving Credit Facility”: as defined in Section 2.24(a).

Replacement Term Loans”: as defined in Section 2.24(a).

Reply Amount”: as defined in Section 2.12(f)(ii).

Reply Discount Price”: as defined in Section 2.12(f)(ii).

Reportable Event”: any of the “reportable events” set forth in Section 4043(c) of ERISA or the regulations issued thereunder, with respect to a Plan, other than those events as to which notice is waived pursuant to DOL Reg. Part 4043.

 

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Repricing Event”: (a) any repayment, prepayment or repurchase of all or a portion of the Initial Term Loans with the proceeds of, or any conversion of Initial Term Loans into, any new or replacement debt financing (including new Term Loans under this Agreement) bearing interest with an all-in yield (as reasonably determined by the Administrative Agent in consultation with the Borrower and taking into account interest rate margin and benchmark floors, recurring fees and all upfront or similar fees or original issue discount (amortized over the shorter of (A) the Weighted Average Life to Maturity of such term loans and (B) four years), but excluding any bona fide arrangement, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared ratably with all lenders or holders of such debt financing in their capacities as lenders or holders of such debt financing) less than the all-in yield applicable to the Initial Term Loans (determined on the same basis as provided in the preceding parenthetical) and (b) any amendment (including pursuant to a replacement term loan as contemplated by Section 9.2) to the Initial Term Loans or any tranche thereof, in each case of clauses (a) and (b) above, if the primary purpose of such prepayment, repayment, refinancing, substitution, replacement or amendment (as reasonably determined by the Administrative Agent in consultation with the Borrower) is to lower the all-in yield applicable to such Initial Term Loans (as determined on the same basis as provided in clause (a)). It is understood that “Repricing Events” shall not include any repayment, prepayment or refinancing of all or a portion of Initial Term Loans in connection with a Change of Control or a Specified Acquisition.

Required Lender Consent Items”: as defined in Section 9.4(f).

Required Lenders”: at any time, the holders of more than 50.0% of (a) until the Closing Date, the Commitments and (b) thereafter, the sum of (i) the aggregate unpaid principal amount of the Term Loans then outstanding and (ii) the Total Revolving Credit Commitments then in effect or, if the Revolving Credit Commitments have been terminated, the Total Revolving Credit Exposure; provided that the Aggregate Exposure and Commitments of any Defaulting Lender shall be disregarded in making any determination under this definition.

Required Prepayment Amount”: as defined in Section 2.14(g).

Required Revolving Lenders”: at any time, the holders of more than 50% of the sum of the Total Revolving Credit Commitments then in effect or, if the Revolving Credit Commitments have been terminated, the Total Revolving Credit Exposure; provided that the Revolving Credit Exposure and Revolving Credit Commitment of any Defaulting Lender shall be disregarded in making any determination under this definition.

Required Initial Term Lenders”: at any time, the holders of more than 50% of the sum of the aggregate unpaid principal amount of the Initial Term Loans then outstanding; provided that the portion of the Initial Term Loans held by any Defaulting Lender shall be disregarded in making any determination under this definition.

Requirement of Law”: as to any Person, any law, treaty, rule or regulation, official administrative pronouncement, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.

Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

 

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Responsible Officer”: as to any Person, the chief executive officer, president, chief financial officer, chief accounting officer, treasurer or director of such Person, but in any event, with respect to financial matters, the chief financial officer, chief accounting officer, treasurer or director of such Person. Unless otherwise qualified, all references to a “Responsible Officer” shall refer to a Responsible Officer of the Borrower.

Restricted Amount”: as defined in Section 2.14(i).

Restricted Investment”: an Investment other than a Permitted Investment.

Restricted Payments”: as defined in Section 6.1.

Restricted Subsidiary”: of a Person means any Subsidiary of the referenced Person that is not an Unrestricted Subsidiary.

Return Bid”: as defined in Section 2.12(f)(ii).

Revolving Commitment Fee Rate”: initially, 0.375% per annum and, from and after the first Business Day immediately following the delivery to the Administrative Agent of a Compliance Certificate (pursuant to Section 5.2(a)), with respect to the fiscal quarter of Parent ending September 30, 2020 and each fiscal quarter thereafter, if the Total First Lien Net Leverage Ratio determined on a Pro Forma Basis as of the most recent Test Period, is (x) less than or equal to 0.75 to 1.00, 0.25% per annum, (y) greater than 0.75 to 1.00 but less than or equal to 1.25 to 1.00, 0.375% per annum and (z) greater than 1.25 to 1.00, 0.50% per annum.

Any increase or decrease in the Revolving Commitment Fee Rate resulting from a change in the Total First Lien Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is first delivered pursuant to Section 5.2(a).

Notwithstanding the foregoing, (i) upon notice by the Administrative Agent to the Borrower or (ii) upon the direction of the Required Revolving Lenders, the Revolving Commitment Fee Rate shall equal the rate per annum set forth in clause (z) of this definition if the Borrower fails to deliver the consolidated financial statements required to be delivered pursuant to Section 5.1(a) or 5.1(b) or any Compliance Certificate required to be delivered pursuant to Section 5.2(a), in each case within time periods specified herein for such delivery, during the period commencing on and including the day of the occurrence of a Default resulting from such failure and until the delivery thereof.

Revolving Credit Borrowing”: a Borrowing comprised of Revolving Credit Loans.

Revolving Credit Commitments”: as to any Revolving Credit Lender, the obligation of such Revolving Credit Lender, if any, to make Revolving Credit Loans pursuant to Section 2.4, and to participate in Letters of Credit pursuant to Section 2.7, expressed as an amount representing the maximum aggregate permitted amount of such Revolving Credit Lender’s Revolving Credit Exposure hereunder, in an aggregate principal and/or face amount not to exceed the amount set forth under the heading “Revolving Credit Commitment” opposite such Revolving Credit Lender’s name on Schedule 2.1, or, as the case may be, in the Assignment and Assumption pursuant to which such Revolving Credit Lender became a party hereto, in each case as the same may be changed from time to time pursuant to the terms hereof. The original aggregate amount of the total Revolving Credit Commitments on the Closing Date is $4,000.0 million.

 

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Revolving Credit Exposure”: at any time, with respect to any Lender, the sum of such Lender’s Revolving Credit Loans and its LC Exposure at such time.

Revolving Credit Facility”: as defined in the definition of “Facility” and including, as appropriate, any Extensions thereof and any Replacement Revolving Credit Facility.

Revolving Credit Lender”: each Lender that has a Revolving Credit Commitment or that is the holder of Revolving Credit Loans.

Revolving Credit Loan”: a Loan made by a Revolving Credit Lender pursuant to Section 2.4. Each Revolving Credit Loan shall be a Eurodollar Loan or an ABR Loan.

Revolving Credit Maturity Date”: (a) with respect to any Revolving Credit Commitments (including, for the avoidance of doubt, any Incremental Revolving Increases) that have not been extended pursuant to Section 2.25, the fifth anniversary of the Closing Date and (b) with respect to Extended Revolving Credit Commitments, the final maturity date therefor as specified in the applicable Extension Offer accepted by the respective Revolving Credit Lender or Revolving Credit Lenders and (c) with respect to any commitments under a Replacement Revolving Credit Facility, the final maturity date therefor specified in the applicable Replacement Facility Amendment.

Rule 3-16 Capital Stock”: any Equity Interests of any Subsidiary, in the event that Rule 3-16 or 13-02 of Regulation S-X require or are amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements or summarized financial information of any such Subsidiary individually or on a combined basis due to the fact that such Subsidiary’s Equity Interests secure any registered debt securities (including any related note guarantees); provided that such Equity Interests shall automatically be deemed (in accordance with the terms of the applicable Security Document) not to be part of the Collateral securing the Obligations and such registered debt securities and related note guarantees only to the extent necessary to not be subject to such requirement.

S&P”: Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and its successors.

Sale Leaseback Transaction”: any arrangement with any Person or Persons, whereby in contemporaneous or substantially contemporaneous transactions the Borrower or any Restricted Subsidiary sells substantially all of its right, title and interest in any property and, in connection therewith, the Borrower or a Restricted Subsidiary acquires, leases or licenses back the right to use all or material portion of such property.

Sanctions”: as defined in Section 3.21(b).

 

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SEC”: the Securities and Exchange Commission (or successors thereto or an analogous Governmental Authority).

Secured Parties”: collectively, the Administrative Agent, the Collateral Trustee, the Arrangers, the Lenders, the Issuing Banks, each issuing bank under a Designated L/C Facility, each provider of Cash Management Services under a Cash Management Agreement, each counterparty to any Hedge Agreement the obligations under which constitute Designated Hedging Obligations, and the Indemnitees.

Securities Act”: the Securities Act of 1933, as amended.

Security Documents”: the collective reference to the Collateral Agreement, any US IP Security Agreements and all other security documents hereafter delivered to the Administrative Agent or the Collateral Trustee granting (or purporting to grant) a Lien on any Property of any Loan Party to secure any Obligations.

Senior/Junior Intercreditor Agreement”: a senior lien priority / junior lien priority intercreditor agreement between or among the Administrative Agent, the Collateral Trustee and one or more Senior Representatives for holders of Indebtedness secured by any of the Collateral, as shall be reasonably satisfactory to the Administrative Agent and the Borrower.

Senior Notes”: the collective reference to the Senior Unsecured Notes, the Senior Sprint Notes and the Senior Secured Notes.

Senior Officer”: any individual holding the position of chief executive officer, president, chief financial officer or chief operating officer of any Group Member. Unless otherwise specified, all references herein to a Senior Officer mean a Senior Officer of the Borrower.

Senior Pari Passu Intercreditor Agreement”: the Collateral Trust Agreement or another Senior Pari Passu Intercreditor Agreement, dated as of the Closing Date, substantially in the form of Exhibit F hereto or otherwise in form and substance reasonably satisfactory to the Administrative Agent.

Senior Representative”: with respect to any series of Permitted Pari Passu Secured Refinancing Debt or Permitted Junior Secured Refinancing Debt, Incremental Equivalent Debt or other Indebtedness permitted to be secured by the Collateral under this Agreement, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.

Senior Secured Notes”: the Bridge Facility and any Permanent Financing, in an aggregate principal amount not to exceed $19,000.0 million.

Senior Sprint Notes”: the (i) 7.250% Senior Notes due 2021 of Sprint, (ii) 7.875% Senior Notes due 2023 of Sprint, (iii) 7.125% Senior Notes due 2024 of Sprint, (iv) 7.625% Senior Notes due 2025 of Sprint, (v) 7.625% Senior Notes due 2026 of Sprint, (vi) 7.000% Senior Notes due 2020 of Sprint Communications, Inc., (vii) 11.500% Senior Notes due 2021 of Sprint Communications, Inc., (viii) 6.000% Senior Notes due 2022 of Sprint Communications, Inc., (ix) 6.875% Senior Notes due 2028 of Sprint Capital Corporation and (x) 8.750% Senior Notes due 2032 of Sprint Capital Corporation.

 

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Senior Unsecured Notes”: the senior unsecured notes issued pursuant to the Senior Unsecured Notes Base Indenture on or after April 28, 2013 (and any Registered Equivalent Notes in respect thereof).

Senior Unsecured Notes Base Indenture”: the Base Indenture, dated as of April 28, 2013, among the Borrower, each of the guarantors party thereto and Deutsche Bank Trust Company Americas, as Trustee.

Significant Subsidiary”: any Restricted Subsidiary that as of the end of the most recent fiscal quarter for which financial statements are available, would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Closing Date.

Solvent”: with respect to any Person, as of any date of determination, (a) the fair value of the assets of such Person exceeds the amount of all debts and liabilities of such Person, subordinated, contingent or otherwise; (b) the present fair saleable value of the property of such Person is greater than the amount that will be required to pay the probable liability of the debts and other liabilities of such Person, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) such Person is able to pay its debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured; and (d) such Person is not engaged in, and is not about to be engaged in, business for which it has unreasonably small capital. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability.

Specified Acquisition”: any acquisition that is either (a) not permitted by this Agreement immediately prior to the consummation of such acquisition or (b) if permitted by this Agreement immediately prior to the consummation of such acquisition, would not provide Parent and its Subsidiaries with adequate flexibility under this Agreement for the continuation and/or expansion of their combined operations following such consummation, as determined by the Borrower acting in good faith.

Specified Event of Default”: any Event of Default under Section 7.1(a), 7.1(g) or 7.1(h).

Specified Representations”: the representations and warranties with respect to the Borrower and the Guarantors set forth in this Agreement under:

(i) Section 3.3(a) (solely as it relates to the due organization or incorporation and valid existence of the Loan Parties);

(ii) the first two sentences of Section 3.4;

 

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(iii) Section 3.5(b) (solely in respect of the execution, delivery and performance by each Loan Party of this Agreement and the other Loan Documents to which such Person is a party);

(iv) Section 3.7 (solely in respect of an Event of Default of the Borrower or Parent (but not, for the avoidance of doubt, any Restricted Subsidiary) under Section 7.1(g) or (h));

(v) Section 3.11;

(vi) Section 3.14;

(vii) the first sentence of Section 3.19 (subject to the last paragraph of Section 4.1);

(viii) Section 3.20;

(ix) Section 3.21(a)(ii);

(x) the last sentence of Section 3.21(a); and

(xi) the last sentence of Section 3.21(b).

Specified Unrestricted Subsidiary Designation”: as defined in Section 5.13.

Spectrum”: frequencies of electromagnetic spectrum used to provide fixed or mobile communications services as licensed or authorized by the FCC.

Spectrum SPV Equity Interests” means 100% of the Equity Interests in Sprint Spectrum Depositor LLC, Sprint Spectrum Depositor II LLC, Sprint Spectrum Depositor III LLC and any other SPV Holdco.

Spot Rate”: on any day, with respect to any currency (the “Initial Currency”), the rate at which such currency may be exchanged into another currency (the “Exchange Currency”), as set forth at approximately 11:00 a.m. (London time) on such day on the Reuters World Currency Page for the Initial Currency; in the event that such rate does not appear on any Reuters World Currency Page, the Spot Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent (in consultation with the Borrower), or, in the absence of such available service, such Spot Rate shall instead be the arithmetic average of the exchange rates of the Administrative Agent in the market where its foreign currency exchange operations in respect of the Initial Currency are then being conducted, at or about 10:00 a.m. (New York City time) on such date for the purchase of the Exchange Currency for delivery two Business Days later; provided that if at the time of any such determination, no such exchange rate can reasonably be quoted, the Administrative Agent may use any reasonable method as it deems applicable to determine such rate, and such determination shall be conclusive absent manifest error.

Sprint”: Sprint Corporation, a Delaware corporation.

 

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Sprint Towers Transaction Agreements”: (i) the towers transactions agreements entered into prior to the Closing Date by Sprint Corporation or its affiliates and (ii) each of the other transaction documents entered into in connection therewith or contemplated thereby, as they may be amended, modified or supplemented from time to time.

SPV Holdco”: a Subsidiary of the Borrower that owns no material assets other than Equity Interests in one or more Permitted Spectrum Financing Subsidiaries, or in any holding company that owns no material assets other than Equity Interests in one or more Permitted Spectrum Financing Subsidiaries but excluding, if otherwise deemed to be a SPV Holdco, any Existing Sprint Spectrum Subsidiary.

Standard Securitization Undertakings”: representations, warranties, covenants and indemnities (including repurchase obligations in the event of a breach of representation and warranty) made or provided, and limited recourse guarantees, performance guarantees and servicing obligations undertaken, by any Group Member in connection with a Permitted Receivables Financing, a Permitted Spectrum Financing or a Permitted Tower Financing of a character appropriate for the assets being securitized and which have been negotiated at arm’s length with an unaffiliated third party. For the avoidance of doubt, the undertakings included in the Existing Sprint Spectrum Financing Documents (and substantially similar undertakings to the foregoing in any similar arrangements) constitute Standard Securitization Undertakings.

Stated Maturity”: with respect to any tranche or series of Indebtedness, the date specified in the documents governing such Indebtedness as the fixed date on which the final payment of principal of such Indebtedness is due and payable under the documentation governing such Indebtedness, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency).

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

Subject Class”: as defined in Section 2.12(f)(i).

Subordinated Indebtedness”:

(a) with respect to the Borrower, any Indebtedness of the Borrower which is by its terms contractually subordinated in right of payment to any of the Loans; and

 

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(b) with respect to any Guarantor, any Indebtedness of such Guarantor which is by its terms contractually subordinated in right of payment to such Guarantor’s Guarantee of any of the Loans.

Subsidiary”: with respect to any specified Person:

(a) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (or a combination thereof); and

(b) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of such Person (or any combination thereof).

Subsidiary Guarantors”: collectively, the Guarantors that are Subsidiaries of the Borrower.

Swap Obligation”: with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

Syndication Agents”: Barclays Bank PLC, Credit Suisse Loan Funding LLC, Deutsche Bank Securities Inc., Goldman Sachs Bank USA, Morgan Stanley Senior Funding, Inc. and RBC Capital Markets.

Tax Payments” shall have the meaning provided for in the definition of “Permitted Payments to Parent”.

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

Term Borrowing”: any Borrowing of Term Loans.

Term Lender”: each Lender that has a Term Loan Commitment or that holds Term Loans.

Term Loan”: an Initial Term Loan along with any other term loans made pursuant to this agreement (including, for the avoidance of doubt, any Incremental Term Loans, Replacement Term Loans and Extended Term Loans, if any).

 

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Term Loan Commitment”: as to any Lender, (i) the obligation of such Lender, if any, to make a Term Loan to the Borrower in a principal amount not to exceed the amount set forth under the heading “Term Loan Commitment” opposite such Lender’s name on Schedule 2.1, (ii) the commitments in respect of any Incremental Term Facility, if any, issued after the Closing Date pursuant to Section 2.23 or (iii) other Term Loan Commitments, if any, issued after the Closing Date pursuant to a Permitted Amendment. The original aggregate principal amount of the Term Loan Commitments on the Closing Date is $4,000.0 million.

Term Loan Facility”: as defined in the definition of “Facility”.

Term Loan Lender”: any Lender that is a holder of Term Loans.

Term Loan Maturity Date”: with respect to the Initial Term Loans, the date that is seven years following the Closing Date.

Test Period”: on any date of determination, the period of four consecutive fiscal quarters of Borrower (taken as one accounting period) then most recently ended for which internal financial statements are available immediately preceding the date on which the action for which such calculation is being made shall occur.

Total First Lien Net Leverage Ratio”: as of the last day of any period, the ratio of (a) (i) the Consolidated Indebtedness of such Person as of such date that constitutes First Lien Obligations (including, in any event, the aggregate amount of all Consolidated Indebtedness constituting Permitted Spectrum Financings) less (ii) the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries as of such date (it being agreed that cash and Cash Equivalents restricted in favor of the Administrative Agent or Collateral Trustee (which may also include cash and Cash Equivalents securing other Indebtedness that is secured on a pari passu or junior basis with the Obligations and subject to the terms of an Intercreditor Agreement, so long as the holders of such other Indebtedness do not have the benefit of a control agreement or other equivalent method of perfection (unless the Administrative Agent or Collateral Trustee also has the benefit of a control agreement or other equivalent method of perfection)) shall not be deemed to be restricted by virtue of such restriction) to (b) the Consolidated Cash Flow of such Person for such period, calculated on a Pro Forma Basis for such period, and with such pro forma adjustments to Consolidated Indebtedness and Consolidated Cash Flow as are appropriate and consistent with the pro forma adjustment provisions set out in Section 1.5 and the provisions of the second and third paragraph of the definition of “Total Net Leverage Ratio”.

Total Net Leverage Ratio”: as of the last day of any period, the ratio of (a) the Consolidated Indebtedness of such Person (including, in any event, the aggregate amount of all Consolidated Indebtedness constituting Permitted Spectrum Financings) as of such date, less the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries as of such date (it being agreed that cash and Cash Equivalents restricted in favor of the Administrative Agent or Collateral Trustee (which may also include cash and Cash Equivalents securing other Indebtedness that is secured on a pari passu or junior basis with the Obligations and subject to the terms of an Intercreditor Agreement, so long as the holders of such other Indebtedness do not have the benefit of a control agreement or other equivalent method of perfection (unless the Administrative Agent or Collateral Trustee also has the benefit of a control agreement or other equivalent method of perfection) shall not be deemed to be restricted by virtue of such restriction) to (b) the Consolidated Cash Flow of such Person for such period, calculated on a Pro Forma Basis for such period.

 

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For purposes of making the computation referred to above:

(a) pro forma effect shall be given to Pro Forma Transactions (including giving pro forma effect to any related financing transactions and the application of proceeds of any Pro Forma Transaction) that occur during such four-quarter period or subsequent to such four-quarter period but on or prior to the date on which the Total Net Leverage Ratio is to be calculated as if they had occurred and such proceeds had been applied on the first day of such four-quarter period;

(b) pro forma effect shall be given to any transaction (including the application of proceeds thereof) that has been made by any Person that has become a Restricted Subsidiary of the Borrower or has been merged with or into the Borrower or any Restricted Subsidiary during such four-quarter period or subsequent to such four-quarter period but on or prior to the date on which the Total Net Leverage Ratio is to be calculated and that would have constituted a Pro Forma Transaction had such transactions occurred when such Person was a Restricted Subsidiary, as if such transaction was a Pro Forma Transaction that occurred on the first day of such four-quarter period;

(c) to the extent that the pro forma effect of any transaction is to be made pursuant to clause (a) or (b) above, such pro forma effect shall be determined in good faith on a reasonable basis by a responsible financial or accounting officer of the specified Person, whose determination shall be conclusive, as if the subject transaction(s) had occurred on the first day of the four-quarter reference period and Consolidated Cash Flow for such reference period shall be calculated without giving effect to clause (c) of the proviso set forth in the definition of Consolidated Net Income;

(d) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of (without duplication of clauses (a) and (b) above), which disposition or discontinuation, as applicable, has been completed prior to the date on which the Total Net Leverage Ratio is to be calculated, shall be excluded;

(e) any Person that is a Restricted Subsidiary on the date on which the Total Net Leverage Ratio is to be calculated will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period; and

(f) any Person that is not a Restricted Subsidiary on the date on which the Total Net Leverage Ratio is to be calculated will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period.

For the avoidance of doubt, if the Total Net Leverage Ratio is determined for any period commencing prior to the date that is four fiscal quarters after the fiscal quarter during which the Closing Date occurs, the Total Net Leverage Ratio shall be calculated giving pro forma effect to the Transactions as if the Transactions had occurred on the first day of the four-quarter reference period.

 

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Total Revolving Credit Commitments”: at any time, the aggregate amount of the Revolving Credit Commitments then in effect.

Total Revolving Credit Exposure”: at any time, the aggregate amount of the Revolving Credit Exposure of all Revolving Credit Lenders outstanding at such time.

Total Secured Net Leverage Ratio”: as of the last day of any period, the ratio of (a) (i) the Consolidated Indebtedness of such Person that is secured by a Lien (including, in any event, the aggregate amount of all Consolidated Indebtedness constituting Permitted Spectrum Financings) less (ii) the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries as of such date (it being agreed that cash and Cash Equivalents restricted in favor of the Administrative Agent or Collateral Trustee (which may also include cash and Cash Equivalents securing other Indebtedness that is secured on a pari passu or junior basis with the Obligations and subject to the terms of an Intercreditor Agreement, so long as the holders of such other Indebtedness do not have the benefit of a control agreement or other equivalent method of perfection (unless the Administrative Agent or Collateral Trustee also has the benefit of a control agreement or other equivalent method of perfection) shall not be deemed to be restricted by virtue of such restriction) to (b) the Consolidated Cash Flow of such Person for the such period, calculated on a Pro Forma Basis for such period, and with such pro forma adjustments to Consolidated Indebtedness and Consolidated Cash Flow as are appropriate and consistent with the pro forma adjustment provisions set out in Section 1.5 and the provisions of the second and third paragraph of the definition of “Total Net Leverage Ratio”.

Towers Transactions”: the transactions contemplated by the Towers Transactions Agreements.

Towers Transactions Agreements”: the Crown Towers Transaction Agreements, the Phoenix Towers Transaction Agreements and the Sprint Towers Transaction Agreements.

Transaction Costs”: all fees (including original issue discount), costs and expenses incurred by Parent or any Group Member in connection with the Transactions.

Transactions”: the collective reference to (a) the consummation of the Acquisition, (b) the execution, delivery and performance by the Borrower and each other Loan Party of this Agreement and each other Loan Document required to be delivered hereunder, the borrowing of Loans and the use of proceeds thereof and the issuance of Letters of Credit hereunder, (c) the incurrence of indebtedness pursuant to the Bridge Facility and the use of proceeds thereof, (d) the consummation of the Closing Date Refinancing and (e) the payment of the Transaction Costs.

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

UCC” or “Uniform Commercial Code”: the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.

 

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UCP”: with respect to any Letter of Credit, the Uniform Customs and Practice for Documentary Credits, International Chamber of Commerce (“ICC”) Publication No. 600 (or such later version thereof as may be in effect at the time of issuance”.

UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

United States” and “US”: the United States of America.

Unrestricted Subsidiary”: (i) the Subsidiaries existing on the Closing Date and listed on Schedule 1.1(c), (ii) any Subsidiary of the Borrower that is designated by the Borrower as such pursuant to Section 5.13 and (iii) any Subsidiary of an Unrestricted Subsidiary.

Unsecured Guarantor”: (i) each of Sprint, Sprint Communications, Inc. and Sprint Capital Corporation and (ii) each Unsecured SPV Holdco.

Unsecured SPV Holdco”: any SPV Holdco listed on Schedule 1.1(d) as of the Closing Date or any other SPV Holdco with respect to which the Borrower has made an Unsecured SPV Holdco Election; provided that such Unsecured SPV Holdco does not Guarantee (other than a Guarantee that is subordinated in right of payment to such SPV Holdco’s Guarantee of the Obligations) the Existing T-Mobile Notes or any other Indebtedness other than (i) the Senior Secured Notes or any other secured notes, (ii) any other Indebtedness that constitutes First Lien Obligations or (iii) any Indebtedness of Subsidiaries of such SPV Holdco.

Unsecured SPV Holdco Election”: an election of the Borrower, by written notice to the Administrative Agent, to cause the Guarantee by any SPV Holdco to become unsecured.

US Dollar Equivalent”: on any date of determination, (a) with respect to any amount in US Dollars, such amount, and (b) with respect to any amount in a Foreign Currency, the equivalent in US Dollars of such amount, determined by the Administrative Agent using the Spot Rate with respect to such Foreign Currency at the time in effect for such amount.

US Dollars” and “$”: lawful currency of the United States.

US IP Security Agreements”: the collective reference to each Intellectual Property Security Agreement required to be entered into and delivered pursuant to the terms of this Agreement and the Security Documents, in each case, in substantially the form of Exhibit A to the Collateral Agreement.

 

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US Patent Rights”: (i) all patents of the United States, all reexaminations, reissues and extensions thereof, (ii) all applications for patents of the United States and all divisions, continuations and continuations-in-part thereof, (iii) all rights to obtain any reissues or extensions of the foregoing and (iv) all agreements, whether written or oral, providing for the grant for the grant by or to the Borrower or any Subsidiary Guarantor of any right to manufacture, use or sell any invention or design covered in whole or in part by any of the foregoing.

US Tax Compliance Certificate”: as defined in Section 2.19(e)(B)(3).

US Trademark Rights”: (i) all trademarks, trade names, service marks or logos, and all goodwill associated therewith, now existing or hereafter adopted or acquired, that have been registered or are the subject of an application to register filed in the United States Patent and Trademark Office or in any similar office or agency of the United States or any State thereof, including all registrations and recordings thereof, and all applications in connection therewith, (ii) the right to obtain all renewals of any of the foregoing, and (iii) any agreement, whether written or oral, providing for the grant by or to the Borrower or any Subsidiary Guarantor of any right to use any of the foregoing.

Voting Stock”: of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

Weighted Average Life to Maturity”: when applied to any Indebtedness at any date, the number of years obtained by dividing:

(a) the sum of the products obtained by multiplying (a) the amount of each then-remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by

(b) the then outstanding principal amount of such Indebtedness.

Wholly Owned Subsidiary”: as to any Person, any other Person all of the Capital Stock of which (other than (a) directors’ qualifying shares and (b) nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.

Withholding Agent”: any Loan Party, the Administrative Agent and any other applicable withholding agent.

Write-Down and Conversion Powers”: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

 

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1.2 Other Definitional Provisions

(a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.

(b) As used herein and in the other Loan Documents, unless otherwise specified herein or in such other Loan Document:

(i) the words “hereof”, “herein” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Documents as a whole and not to any particular provision of thereof;

(ii) Section, Schedule and Exhibit references refer to (A) the appropriate Section, Schedule or Exhibit in this Agreement or (B) to the extent such references are not present in this Agreement, to the Loan Document in which such reference appears;

(iii) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”;

(iv) the word “will” shall be construed to have the same meaning and effect as the word “shall”;

(v) [reserved];

(vi) unless the context requires otherwise, the word “or” shall be construed to mean “and/or”;

(vii) unless the context requires otherwise, (A) any reference to any Person shall be construed to include such Person’s legal successors and permitted assigns, (B) any reference to any law or regulation shall refer to such law or regulation as amended, modified or supplemented from time to time, and any successor law or regulation, (C) the words “asset” and “property” shall be construed to have the same meaning and effect, and (D) references to agreements (including this Agreement) or other Contractual Obligations shall be deemed to refer to such agreements or Contractual Obligations as amended, restated, amended and restated, supplemented or otherwise modified from time to time (in each case, to the extent not otherwise prohibited hereunder); and

(viii) capitalized terms not otherwise defined herein and that are defined in the UCC shall have the meanings therein described.

 

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(c) 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”.

(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

(e) The expressions “payment in full”, “paid in full” and any other similar terms or phrases when used herein with respect to the Obligations shall mean the discharge or payment in full in cash of all of the Obligations (excluding contingent reimbursement and indemnification obligations, Designated L/C Facilities Obligations, Cash Management Obligations and Designated Hedging Obligations, in each case, that are not then due and payable).

1.3 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Revolving Credit Loan” or “Extended Term Loan”) or by Type (e.g., a “Eurodollar Loan”) or by Class and Type (e.g., a “Eurodollar Initial Term Loan”). Borrowings also may be classified and referred to by Class (e.g., an “Initial Term Loan Borrowing”) or by Type (e.g., a “Eurodollar Borrowing”) or by Class and Type (e.g., a “Eurodollar Initial Term Loan Borrowing”).

1.4 Accounting Terms; GAAP.

(a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP.

(b) [reserved].

(c) If at any time a change in GAAP would affect the computation of any financial ratio, standard of term set forth in any Loan Document, and the Borrower or the Required Lenders shall so request, the Administrative Agent and the Borrower shall negotiate in good faith to amend such ratio, standard or term to preserve the original intent thereof in light of such change in GAAP (subject to approval by the Borrower); provided that, until so amended, such ratio, standard or term shall continue to be computed in accordance with GAAP immediately prior to such change therein, and the Borrower shall provide to the Administrative Agent and the Lenders within fifteen (15) days after delivery of each certificate or financial report required hereunder that is affected thereby a written statement of the Borrower setting forth in reasonable detail the differences (including any differences that would affect any calculations relating to the Financial Covenant) that would have resulted if such financial statements had been prepared giving effect to such change; provided, further, that, to the extent any such change would have a negative impact on the Borrower with respect to any ratio, financial calculation, financial reporting item or requirement computation, the Borrower may (in its sole discretion) elect to compute or report such ratio, financial calculation, financial reporting item or requirement in accordance with GAAP as changed and accordingly, if such an election is made, the Borrower shall not be required to deliver the written statement described in the immediately preceding proviso with respect thereto. Notwithstanding any other provision contained herein, (i) all terms of an accounting or financial nature used herein shall be construed,

 

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and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Statement of Financial Accounting Standards 159 or FASB ASC 825 (or any other financial accounting standard having a similar result or effect) to value any Indebtedness or other liabilities of Parent, the Borrower or any of the Restricted Subsidiaries at “fair value”, as defined therein and (ii) the financial ratios and related definitions set forth in the Loan Documents shall be computed to exclude the application of Financial Accounting Standards No. 133, 150 or 123(R) or any other financial accounting standard having a similar result or effect (to the extent that the pronouncements in Financial Accounting Standards No. 123(R) result in recording an equity award as a liability on a consolidated balance sheet of Parent, the Borrower and the Restricted Subsidiaries in the circumstance where, but for the application of the pronouncements, such award would have been classified as equity).

1.5 Pro Forma Calculations; Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, the Consolidated Cash Flow (except for purposes of clause (iii)(A) of the second paragraph of Section 6.1(a)), the Total First Lien Net Leverage Ratio, the Total Secured Net Leverage Ratio and the Total Net Leverage Ratio shall be calculated in the manner prescribed by this Section 1.5.

(b) In the case of the incurrence of any Indebtedness (including without limitation any Incremental Facilities or Incremental Equivalent Debt) or Liens or the making or effectuation of any Investments, Restricted Payments or Asset Sales, or any transaction of the types contemplated in Section 6.7, or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, in each case in connection with a Limited Condition Transaction, at the Borrower’s option (an “LCT Election”), the relevant ratios and baskets (including without limitation ratios and baskets applicable to the incurrence of Incremental Facilities or Incremental Equivalent Debt) shall be determined, accuracy of representations and warranties (other than Specified Representations) shall be determined, and any Default or Event of Default blocker (other than any Specified Event of Default) shall be tested, as of the date the definitive acquisition agreements for such Limited Condition Transaction are entered into or the notice of redemption in connection therewith is given (the “LCT Test Date”), and calculated as if the acquisition or other transaction, and other pro forma events in connection therewith, were consummated on such date. If the Borrower has made such an LCT Election, then in connection with any subsequent calculation of any ratio or basket with respect to the incurrence of any Indebtedness or Liens or the making or effectuation of any Investments, Restricted Payments or Asset Sales, or any transaction of the types contemplated in Section 6.7, or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, or any calculation of any ratio or basket for any other purpose, on or following the relevant LCT Test Date and prior to the earlier of the date on which such transaction is consummated or the definitive agreement therefor is terminated, any such ratio shall be calculated on a pro forma basis assuming such Limited Condition Transaction, and other pro forma events in connection therewith (including any incurrence of Indebtedness), have been consummated; provided that, solely for purposes of calculating the amount of the Borrower’s Consolidated Cash Flow in clause (iii)(A) of the second paragraph of Section 6.1(a), the Consolidated Net Income of the Borrower shall not include any Consolidated Net Income of or attributable to any target company or assets associated with, and intended to be acquired pursuant to, any such Limited Condition Transaction for usages other than in connection with the applicable transactions pertaining to such Limited Condition Transaction unless and until the closing of such Limited Condition Transaction shall have actually occurred.

 

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(c) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio (including any Total First Lien Net Leverage Ratio test, any Total Secured Net Leverage Ratio, any Total Net Leverage Ratio or the amount of Consolidated Cash Flow) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (a) the Fixed Amounts shall be disregarded in the calculation of the financial ratio or test applicable to any substantially concurrent utilization of the Incurrence-Based Amounts and (b) the entire transaction shall be calculated on a Pro Forma Basis. In addition, for the avoidance of doubt, any Indebtedness (and associated Liens), Investments, liquidations, dissolutions, mergers, consolidations, dividends or any prepayments of Indebtedness incurred or otherwise effected in reliance on Fixed Amounts shall be automatically reclassified under the applicable Incurrence-Based Amounts at any time if the applicable ratio for such Incurrence-Based Amounts is satisfied on a Pro Forma Basis.

1.6 Classification of Permitted Items. For purposes of determining compliance at any time with Sections 6.1, 6.2, 6.3, 6.4 or 6.6, in the event that any Lien, Investment, Indebtedness, Asset Sale, Restricted Payment, Contractual Obligation, encumbrance or restriction or payment, prepayment, repurchase, redemption, defeasance or amendment, modification or other change in respect of Indebtedness meets the criteria of more than one of the categories of transactions permitted pursuant to any clause of such Sections 6.1, 6.2, 6.3, 6.4 or 6.6, such transaction (or portion thereof) at any time shall be permitted under one or more of such clauses as determined by the Borrower in its sole discretion at such time of determination, and may be reclassified from time to time to be permitted under any one or more of such clauses to the extent meeting the criteria thereunder as of the time of reclassification.

1.7 Rounding. Any financial ratios required to be satisfied in order for a specific action to be permitted under 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).

1.8 Timing of Payment or Performance. Except as otherwise expressly provided herein, when the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day (except as specifically provided in the definition of “Interest Period”).

 

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1.9 Currency Equivalents Generally

(a) For purposes of determining compliance with Sections 6.1, 6.3 and 6.6 with respect to any amount of Indebtedness or Investment in a currency other than US Dollars, no Default shall be deemed to have occurred solely as a result of changes in rates of currency exchange occurring after the time such Indebtedness or Investment is incurred, made or acquired (so long as such Indebtedness or Investment, at the time incurred, made or acquired, was permitted hereunder).

(b) For purposes of determining the Total First Lien Net Leverage Ratio, Total Secured Net Leverage Ratio and the Total Net Leverage Ratio, amounts denominated in a currency other than US Dollars will be converted to US Dollars at the currency exchange rates used in preparing the Borrower’s financial statements corresponding to the Test Period with respect to the applicable date of determination and will, in the case of Indebtedness, reflect the currency translation effects, determined in accordance with GAAP, of Hedge Agreements permitted hereunder for currency exchange risks with respect to the applicable currency in effect on the date of determination of the US Dollar Equivalent of such Indebtedness.

1.10 LIBOR Replacement.

(a) (a) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Borrower notifies the Administrative Agent that, in its determination:

(i) adequate and reasonable means do not exist for ascertaining the LIBO Rate for any requested Interest Period, including, without limitation, because the Interpolated Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary, or

(ii) the administrator of the Interpolated Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Rate or the Interpolated Screen Rate shall no longer be made available, or used for determining the interest rate of loans, or

(iii) syndicated loans currently being executed, or that include language similar to that contained in this Section, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,

then, reasonably promptly after receipt by the Administrative Agent of such notice, the Borrower and the Administrative Agent may amend this Agreement to replace the LIBO Rate with an alternative benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities for such alternative benchmarks (any such rate, a “LIBO Successor Rate”), together with any LIBO Successor Rate Conforming Changes, and any such amendment shall become effective at 5:00 p.m. (New York City time) on the fifth Business day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower, unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that the Required Lenders do not accept such amendment.

 

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Notwithstanding anything else herein, in no event shall such LIBO Successor Rate be less than zero for purposes of this Agreement.

(b) The interest rate on Eurodollar Loans is determined by reference to the LIBO Rate, which is derived from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurodollar Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. In the event that the London interbank offered rate is no longer available or in certain other circumstances as set forth in Section 1.10(a) of this Agreement, such Section 1.10(a) provides a mechanism for determining an alternative rate of interest. The Administrative Agent may amend this Agreement together with the Borrower, pursuant to Section 1.10(a), in advance of or after any change to the reference rate upon which the interest rate on Eurodollar Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 1.10(a), will be similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability

SECTION 2. AMOUNT AND TERMS OF COMMITMENTS

2.1 Term Loan Commitments. Subject to the terms and conditions hereof, each Term Lender severally agrees to make a Term Loan to the Borrower on the Closing Date in US Dollars in an amount for each such Term Loan Lender not to exceed the amount of the Term Loan Commitment of such Lender on the Closing Date. The Term Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.9. The Term Loan Commitments in effect on the Closing Date shall terminate upon the making of the Term Loans on the Closing Date or as otherwise set forth in Section 2.10(a).

2.2 Procedure for Borrowing Term Loans. The Borrower shall deliver to the Administrative Agent a Borrowing Request, not later than 11:00 a.m., New York City time, one Business Day before the anticipated Closing Date requesting that the Term Lenders make the Term Loans on the Closing Date. Such Borrowing Request may state that it is conditioned upon one or more conditions precedent, including the closing of the Acquisition, in which case such Borrowing Request may be revoked or automatically terminated if such conditions are not

 

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satisfied. The Borrowing Request must specify (i) the principal amount of the Term Loans to be borrowed, (ii) the requested date of the Borrowing (which shall be a Business Day), (iii) the Type of Term Loans to be borrowed, (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period” and (v) the location and number of the account(s) to which funds are to be disbursed, which shall comply with the requirements of Section 2.8. If no election as to the Type of Term Loan Borrowing is specified, then the requested Term Loan Borrowing shall be a Eurodollar Borrowing with an Interest Period of one month’s duration. If no Interest Period is specified with respect to any requested Eurodollar Term Loan Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Upon receipt of such Borrowing Request, the Administrative Agent shall promptly notify each Term Lender thereof. Not later than 9:00 a.m., New York City time (or, if later, promptly following the satisfaction of the conditions precedent to the initial extension of credit hereunder set forth in Section 4.1), on the Closing Date each Term Lender shall make available to the Administrative Agent an amount in immediately available funds equal to the Term Loans to be made by such Lender. The Administrative Agent shall make available to the Borrower the aggregate of the amounts made available to the Administrative Agent by the Term Lenders, in like funds as received by the Administrative Agent.

2.3 Repayment of Term Loans. The principal amount of the Initial Term Loans shall be repaid in consecutive quarterly installments on the last day of each fiscal quarter of the Borrower or, if such date is not a Business Day, on the last Business Day of such fiscal quarter, commencing on September 30, 2020, each of which shall be in an amount equal to 0.25% of the sum of the aggregate outstanding amount of the Term Loans of each Lender on the Closing Date; provided that the final principal repayment installment of the Initial Term Loans repaid on the Term Loan Maturity Date shall be, in any event, in an amount equal to the aggregate principal amount of all Term Loans outstanding on such date. Any Term Loans paid or prepaid may not be reborrowed.

2.4 Revolving Credit Commitments. Subject to the terms and conditions hereof, each Revolving Lender severally agrees to make revolving credit loans (“Revolving Credit Loans”) to the Borrower in Dollars from time to time during the Availability Period in an aggregate principal amount that will not (after giving effect to any concurrent use of the proceeds thereof to repay LC Disbursements) result in (i) such Revolving Credit Lender’s Revolving Credit Exposure exceeding such Revolving Credit Lender’s Revolving Credit Commitment or (ii) the Total Revolving Credit Exposure exceeding the total Revolving Credit Commitments. Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Credit Loans during the Availability Period. Revolving Credit Loans may be ABR Loans or Eurodollar Loans, as further provided herein.

2.5 Loans and Borrowings .

(a) Each Revolving Credit Loan shall be made as part of a Borrowing consisting of Revolving Credit Loans made by the Revolving Credit Lenders ratably in accordance with their respective Revolving Credit Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder.

 

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(b) Subject to Section 2.16, (i) each Term Borrowing shall be comprised entirely of (A) ABR Loans or (B) Eurodollar Loans as the Borrower may request in accordance herewith and (ii) each Revolving Credit Borrowing shall be comprised entirely of (A) ABR Loans or (B) Eurodollar Loans as the Borrower may request in accordance herewith. Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the applicable Lender to make such Loan and the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.

(c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $1.0 million. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $500,000; provided that a Revolving Credit Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Revolving Credit Commitments under the applicable Revolving Credit Facility or that is required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.7(e). Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not, at any time, be more than a total of (x) thirty Eurodollar Borrowings with respect to each Term Loan Facility outstanding and (y) thirty Eurodollar Borrowings with respect to the Revolving Credit Facility outstanding.

(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the applicable Maturity Date for such Borrowing.

2.6 Request for Revolving Credit Borrowing. To request a Revolving Credit Borrowing, the Borrower shall notify the Administrative Agent of such request by telephone or email (a) in the case of a Eurodollar Borrowing, not later than 1:00 p.m., New York City time, two (2) Business Days before the date of the proposed Borrowing or (b) in the case of an ABR Borrowing, not later than 12:00 p.m., New York City time, on the date of the proposed Borrowing. Each such email Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery, facsimile or other electronic transmission as agreed to by the Administrative Agent, to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by the Borrower. Each such Borrowing Request shall specify the following information in compliance with Section 2.5:

(i) the aggregate amount of the requested Borrowing;

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

(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;

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

 

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(v) the location and number of the account to which funds are to be disbursed, which shall comply with the requirements of Section 2.8.

If no election as to the Type of Revolving Credit Borrowing is specified, then the requested Revolving Credit Borrowing shall be a Eurodollar Borrowing with an Interest Period of one month’s duration. If no Interest Period is specified with respect to any requested Eurodollar Revolving Credit Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Revolving Credit Lender of the relevant Facility or Facilities of the details thereof and of the amount of such Revolving Credit Lender’s Loan to be made as part of the requested Revolving Credit Borrowing. The Administrative Agent shall make available to the Borrower the aggregate of the amounts made available to the Administrative Agent by the Revolving Credit Lenders, in like funds as received by the Administrative Agent.

2.7 Letters of Credit

(a) General.

(i) Subject to the terms and conditions set forth herein, each Issuing Bank, in reliance on the agreements of the Revolving Credit Lenders set forth in Section 2.7(d), agrees to issue standby Letters of Credit (denominated in US Dollars) on a ratable basis among the Issuing Banks (calculated based on their respective Revolving Credit Commitments) for the account of the Borrower or for the benefit of any Restricted Subsidiary, in each case on any Business Day during the applicable Availability Period in such form as may be approved from time to time by such Issuing Bank; provided that no Issuing Bank shall have any obligation to issue any Letter of Credit if:

(A) after giving effect to such issuance (i) the LC Exposure with respect to Letters of Credit would exceed the LC Sublimit, (ii) the Total Revolving Credit Exposure would exceed the total Revolving Credit Commitments, (iii) the LC Exposure of such Issuing Bank would exceed the LC Commitment of such Issuing Bank or (iv) solely to the extent of the Issuing Banks on the Closing Date, the amount of the LC Exposure attributable to the Letters of Credit issued by such Issuing Banks would exceed their Revolving Credit Commitment on the Closing Date;

(B) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any law applicable to such Issuing Bank or any directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or direct that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date (for which such Issuing Bank is not otherwise compensated hereunder);

 

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(C) the expiry date of such requested Letter of Credit would occur after the date that is five (5) Business Days prior to the Revolving Credit Maturity Date, unless all the Issuing Banks have approved such expiry date; or

(D) the issuance of such Letter of Credit would violate any policies of the applicable Issuing Bank applicable to letters of credit generally.

(ii) An Issuing Bank shall be under no obligation to amend any Letter of Credit if (A) such Issuing Bank would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit

Additionally, no Issuing Bank shall be under any obligation to issue or renew any Letter of Credit if the Letter of Credit is to be denominated in a currency other than US Dollars. Subject to the terms and conditions set forth herein, the Borrower may request the issuance of Letters of Credit for its own account or for its own account for the benefit of any Restricted Subsidiary, in a form reasonably acceptable to the Administrative Agent and the applicable Issuing Bank, at any time and from time to time during the Availability Period (but not later than the date that is 30 days prior to the Revolving Credit Maturity Date). In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.

(b) Notice of Issuance, Amendment, Extension; Certain Conditions. To request the issuance of a Letter of Credit (or the amendment or extension of an outstanding Letter of Credit), the Borrower shall hand deliver or facsimile (or transmit by electronic communication, if arrangements for doing so have been approved by the applicable Issuing Bank) to the applicable Issuing Bank and the Administrative Agent (at least three (3) Business Days (or such shorter period as may be agreed by the applicable Issuing Bank and the Administrative Agent) in advance of the requested date of issuance, amendment or extension) a notice requesting the issuance of a Letter of Credit, or identifying the Letter of Credit to be amended, renewed or extended, and specifying the date of issuance, amendment or extension (which shall be a Business Day), the date on which such Letter of Credit is to expire (which shall comply with paragraph (c) of this Section), the amount of such Letter of Credit, the name and address of the beneficiary thereof and such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. If requested by an Issuing Bank, the Borrower also shall submit a letter of credit application and other documentation customarily required by such Issuing Bank on such Issuing Bank’s standard forms in connection with any request for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or extended only if (and upon issuance, amendment or extension of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment or extension, (x) the LC Exposure shall not exceed the LC Sublimit and (y) the Total Revolving Credit Exposure shall not exceed the total Revolving Credit Commitments.

 

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(c) Expiration Date. Each Letter of Credit shall expire at or prior to the close of business on the earlier of (i) the date that is one (1) year after the date of issuance of such Letter of Credit (or, in the case of any extension thereof, the date that is one (1) year after the then current expiration date at the time of such extension) and (ii) the date that is five (5) Business Days prior to the Revolving Credit Maturity Date (unless other provisions or arrangements reasonably satisfactory to the applicable Issuing Bank and Administrative Agent shall have been made with respect to such Letter of Credit, but which shall include the release by the relevant Issuing Bank of each applicable Revolving Credit Lender from its participation obligations hereunder with respect to such Letter of Credit). If the Borrower so requests in any notice requesting the issuance of a Letter of Credit, the applicable Issuing Bank shall issue a Letter of Credit that has automatic extension provisions (each, an “Auto Extension Letter of Credit”) (it being understood that, unless otherwise directed by the applicable Issuing Bank, the Borrower shall not be required to make a specific request to the applicable Issuing Bank for any such extension). Once an Auto Extension Letter of Credit has been issued, the applicable Revolving Credit Lenders shall be deemed to have authorized the extension of such Letter of Credit at any time to an expiry date not later than the earlier of (i) the date that is one (1) year from the then current expiration date at the time of such extension and (ii) the date that is five (5) Business Days prior to the Revolving Credit Maturity Date (unless such Letter of Credit has been cash collateralized or backstopped pursuant to provisions or arrangements reasonably satisfactory to the applicable Issuing Bank, and shall include the release by the relevant Issuing Bank and the Administrative Agent of each applicable Revolving Credit Lender from its participation obligations hereunder with respect to such Letter of Credit); provided that the applicable Issuing Bank shall not permit any such extension if such Issuing Bank has determined that it would have no obligation or not be permitted at such time to issue such Letter of Credit in its renewed form under the terms hereof (by reason of the provisions of Section 4.2 or otherwise).

(d) Participations. By the issuance of a Letter of Credit (or an amendment to a Letter of Credit increasing the amount thereof) and without any further action on the part of any Issuing Bank or the Lenders, the applicable Issuing Bank hereby grants to each Revolving Credit Lender, and each Revolving Credit Lender hereby acquires from the applicable Issuing Bank, a participation in such Letter of Credit equal to such Lender’s Applicable Percentage of the aggregate amount available to be drawn under such Letter of Credit. In consideration and in furtherance of the foregoing, each Revolving Credit Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Revolving Credit Lender’s Applicable Percentage of each LC Disbursement with respect to a Letter of Credit made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason in respect thereof. Each Revolving Credit Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit, and such Revolving Credit Lender’s obligations under Section 2.7(e) are absolute and unconditional and shall not be affected by any circumstance including (i) any setoff, counterclaim, recoupment, defense or other right that such Lender may have against the Issuing Bank, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or Event of Default or the failure to satisfy any of the other conditions specified in Section 4, (iii) any adverse change in the condition (financial or otherwise) of any Borrower, (iv) any breach of this Agreement or any other Loan Document by any Borrower, any other Loan Party or any other Lender or any reduction in or termination of the Revolving Credit Commitments or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.

 

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(e) Reimbursement. If any Issuing Bank shall make any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent an amount and currency equal to such LC Disbursement not later than 2:00 p.m., New York City time, on the first Business Day immediately following the day that the Borrower receives notice that such LC Disbursement is made (or, if the Borrower receives such notice after 2:00 p.m., New York City time, on the second Business Day immediately following the day that the Borrower receives such notice); provided that (if the conditions of Section 4.2 are satisfied) the Borrower shall have the absolute and unconditional right to require that such payment be financed with an ABR Revolving Credit Borrowing by the Borrower under the applicable Revolving Credit Facility under which the applicable Letter of Credit was issued, in each case in an equivalent amount and currency (subject to the requirements of set forth in Sections 2.4 through 2.6, as applicable) and, to the extent so financed, the Borrower’s obligation to make such payment shall be discharged and replaced by the resulting Revolving Credit Borrowing. If the Borrower fails to make such payment when due, or finance such payment in accordance with the proviso to the preceding sentence, the applicable Issuing Bank shall promptly notify the Administrative Agent of the applicable LC Disbursement and the Administrative Agent shall promptly notify each Revolving Credit Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Lender’s Applicable Percentage thereof. Promptly following receipt of such notice, each Revolving Credit Lender shall pay to the Administrative Agent its Applicable Percentage of the applicable Revolving Credit Facility of the payment then due from the Borrower by wire transfer of immediately available funds to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders not later than 2:00 p.m., New York City time, on the date such notice is received (or, if such Revolving Credit Lender shall have received such notice later than 12:00 noon, New York City time on such day, not later than 2:00 p.m., New York City time, on the immediately following Business Day), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it from the Lenders. Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Credit Lenders and such Issuing Bank as their interests may appear. Any payment made by a Revolving Credit Lender pursuant to this paragraph to reimburse any Issuing Bank for any LC Disbursement (other than the funding of ABR Revolving Credit Loans or Eurodollar Revolving Credit Loans as contemplated above) shall not constitute a Loan and shall not relieve the Borrower of its obligation to reimburse such LC Disbursement. If any Revolving Credit Lender shall not have made its Applicable Percentage of an LC Disbursement available to the Administrative Agent as provided above, such Revolving Credit Lender and the Borrower severally agree to pay interest on such amount, for each day from and including the date such amount is required to be paid in accordance with this Section 2.7(e) to but excluding the date such amount is paid, to the Administrative Agent for the account of the applicable Issuing Bank.

 

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(f) Obligations Absolute. The Borrower’s obligation to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit, (iv) any adverse change in the exchange rate to the Borrower or any of the Restricted Subsidiaries or in the relevant currency markets generally (v) any payment made by the Issuing Bank in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the ISP or UCP, as applicable, or (vi) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder. None of the Agents, the Lenders or the Issuing Banks, or any of their respective Related Parties, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of the applicable Issuing Bank; provided that the provisions of this Section 2.7(f) shall not be construed to excuse the applicable Issuing Bank from liability to the Borrower to the extent of any direct damages (as opposed to indirect, consequential, special and punitive damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof. The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of any Issuing Bank, the applicable Issuing Bank shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

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

 

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(h) Interim Interest. If any Issuing Bank shall make any LC Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement, at the rate per annum then applicable to ABR Revolving Credit Loans; provided that, if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.15(b) shall apply. Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Lender pursuant to paragraph (e) of this Section to reimburse such Issuing Bank shall be for the account of such Lender to the extent of such payment.

(i) Replacement of Issuing Bank. An Issuing Bank may be replaced at any time by written agreement among the Borrower, the Administrative Agent, the replaced Issuing Bank (provided that no consent of the replaced Issuing Bank will be required if it has no Letters of Credit or Reimbursement Obligations with respect thereto outstanding) and the successor Issuing Bank. The Administrative Agent shall notify the Revolving Credit Lenders of any such replacement of such Issuing Bank. At the time any such replacement shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank with respect to the Borrower pursuant to Section 2.13(b). From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require. After the replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to renew existing Letters of Credit or issue additional Letters of Credit.

(j) Applicability of ISP; Limitation of Liability. Unless otherwise expressly agreed by the Issuing Bank and the Borrower when a Letter of Credit is issued or when it is amended with the consent of the beneficiary thereof, the rules of the ISP shall apply to each standby Letter of Credit. Notwithstanding the foregoing, the Issuing Bank shall not be responsible to such Borrower for, and the Issuing Bank’s rights and remedies against the Borrower shall not be impaired by, any action or inaction of the Issuing Bank required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of any governmental authority in a jurisdiction where the Issuing Bank or the beneficiary is located, the practice stated in the ISP or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade—International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

 

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(k) Cash Collateralization. If any Event of Default under Section 7.1(g) or (h) with respect to Parent or the Borrower shall occur and be continuing or if the Loans have been accelerated pursuant to Section 7 as a result of any Event of Default, on the Business Day that the receives notice from the Administrative Agent or the Required Revolving Lenders (or, if the maturity of the Loans has been accelerated, Lenders with LC Exposure representing greater than 50% of the total LC Exposure), in each case, demanding (which demand, in the case of any Event of Default under Section 7.1(g) or (h) with respect to Parent or the Borrower, shall be deemed to have been given automatically) the deposit of cash collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in cash equal to the applicable LC Exposure with respect to the Borrower as of such date plus any accrued and unpaid interest thereon. Such deposit shall be held by the Administrative Agent as collateral for the payment and performance of the Letter of Credit obligations of the Borrower under this Agreement. The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account. Other than any interest earned on the investment of such deposits, which investments shall be made in Cash Equivalents at the option and reasonable discretion of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. Interest or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Administrative Agent to reimburse the applicable Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the applicable LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of Lenders with LC Exposure representing greater than 50% of the total LC Exposure), be applied to satisfy other obligations of the Borrower under this Agreement. If the Borrower is required to provide an amount of cash collateral hereunder as a result of the occurrence of an Event of Default specified above, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within two (2) Business Days after such Event of Default has been cured or waived (unless the Commitments have been terminated and the Obligations have been accelerated, in each case in accordance with Section 7).

(l) Provisions Related to Extended Revolving Credit Commitments. If the Maturity Date in respect of any tranche of Revolving Credit Commitments occurs prior to the expiration of any Letter of Credit, then (i) if one or more other tranches of Revolving Credit Commitments in respect of which the Maturity Date shall not have occurred are then in effect and such Letter of Credit would otherwise be available under such tranche of Revolving Credit Commitments, such Letters of Credit shall automatically be deemed to have been issued (including for purposes of the obligations of the Revolving Credit Lenders to purchase participations therein and to make payments in respect thereof pursuant to Section 2.7(d) and (e)) under (and ratably participated in by Lenders pursuant to) the Revolving Credit Commitments in respect of such non-maturing tranches up to an aggregate amount not to exceed the aggregate amount of the unutilized Revolving Credit Commitments thereunder at such time (it being understood that no partial face amount of any Letter of Credit may be so reallocated) and (ii) to the extent not reallocated pursuant to immediately preceding clause (i), the Borrower shall cash collateralize any such Letter of Credit in accordance with Section 2.7(j). For the avoidance of doubt, commencing with the Maturity Date of any tranche of Revolving Credit Commitments, the sublimit for Letters of Credit under any tranche of Revolving Credit Commitments that has not so then matured shall be as agreed in the relevant Permitted Amendment with the applicable Revolving Credit Lenders.

 

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(m) Existing Letters of Credit. The parties hereto acknowledge and agree that all Existing Rollover Letters of Credit are deemed to be issued under this Agreement by the Issuing Banks at the request of the Borrower and shall constitute Letters of Credit hereunder for all purposes, and no notice requesting issuance thereunder shall be required hereunder. Each reference herein to the issuance of a Letter of Credit shall include any such deemed issuance. All fees accruing on the Existing Rollover Letters of Credit on and after the date hereof shall be for the account of the Issuing Banks and the Lenders as provided herein.

(n) Resignation. Any Issuing Bank may resign as an “Issuing Bank” hereunder upon 30 days’ prior written notice to the Administrative Agent, the Lenders and the Borrower; provided that on or prior to the expiration of such 30-day period with respect to such resignation, the relevant Issuing Bank shall have identified a successor Issuing Bank with an LC Commitment in the same amount reasonably acceptable to the Borrower willing to accept its appointment as successor Issuing Bank, and the effectiveness of such resignation shall be conditioned upon such successor assuming the rights and duties of the resigning Issuing Bank. In the event of any such resignation as Issuing Bank, the Borrower shall be entitled to appoint from among the Lenders a successor Issuing Bank hereunder. The Borrower may terminate the appointment of any Issuing Bank as an “Issuing Bank” hereunder by providing a written notice thereof to such Issuing Bank, with a copy to the Administrative Agent. Any such termination shall become effective upon the earlier of (i) such Issuing Bank acknowledging receipt of such notice and (ii) the third Business Day following the date of the delivery thereof; provided that no such termination shall become effective until and unless the LC Exposure attributable to Letters of Credit issued by such Issuing Bank (or its Affiliates) shall have been reduced to zero. At the time any such resignation or termination shall become effective, the Borrower shall pay all unpaid fees accrued for the account of the resigning or terminated Issuing Bank pursuant to Section 2.13(b). Notwithstanding the effectiveness of any such resignation or termination, the resigning or terminated Issuing Bank shall remain a party hereto and shall continue to have all the rights of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such resignation or termination (including, for the avoidance of doubt, Section 9.5), but shall not be required to issue any additional Letters of Credit.

2.8 Funding of Borrowings.

(a) Except as expressly set forth in Section 2.2 and Section 2.8(c), each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds in US Dollars of such Loan by 10:00 a.m., New York City time, or, in the case of an ABR Borrowing for which notice was provided on the date of the proposed Borrowing, by 2:00 p.m., New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained with the Administrative Agent in New York City or such other account reasonably approved by the Administrative Agent, in each case, as is designated by the Borrower in the applicable Borrowing Request; provided that ABR Revolving Credit Loans or Eurodollar Revolving Credit Loans made to finance the reimbursement of an LC Disbursement as provided in Section 2.7(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.

 

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(b) 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, such Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section 2.8 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 Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans of the applicable Class. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.

(c) Each Lender shall make each Initial Term Loan to be made by it hereunder on the Closing Date by wire transfer of immediately available funds in US Dollars of such Loan by 9:00 a.m., New York City time (or, if later, promptly following the satisfaction of the conditions precedent to the initial extension of credit hereunder set forth in Section 4.1), to the account of the Credit Suisse AG, Cayman Islands Branch most recently designated by it for such purpose by notice (which may be in the form of an e-mail) to the Lenders. Credit Suisse AG, Cayman Islands Branch will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower designated by the Borrower in the applicable Borrowing Request.

2.9 Interest Elections. (a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.9. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.

(b) To make an election pursuant to this Section 2.9, the Borrower shall notify the Administrative Agent of such election by telephone or email by (i) in the case of a Eurodollar Borrowing, not later than 2:00 p.m., New York City time, three Business Days before the proposed effective date of the proposed election (or such later time and/or date as may be agreed by the Administrative Agent in its reasonable discretion) or (ii) in the case of an ABR Borrowing, not later than 2:00 p.m., New York City time, on the proposed effective date of the proposed election (or such later time and/or date as may be agreed by the Administrative Agent in its reasonable discretion). Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery, facsimile or other electronic transmission to the Administrative Agent of a written Interest Election Request signed by the Borrower.

 

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(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.5:

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

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

(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and

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

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period (x) of one month’s duration, in the case of a conversion of an ABR Borrowing to a Eurodollar Borrowing, and (y) of the same duration as the Interest Period then ending, in the case of a continuation of a Eurodollar Borrowing.

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

(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period, such Borrowing shall be continued as a Eurodollar Borrowing having the same Interest Period. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (x) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (y) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

2.10 Termination and Reduction of Commitments.

(a) The Term Loan Commitments in respect of the Initial Term Loans shall automatically terminate upon the making of the Initial Term Loans on the Closing Date and, in any event, not later than 11:59 p.m., New York City time, on the Closing Date.

 

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(b) Unless previously terminated, the Revolving Credit Commitments shall terminate on the applicable Revolving Credit Maturity Date. The commitments of each Issuing Bank to issue, amend, renew or extend any Letters of Credit shall automatically terminate on the earliest to occur of (i) the termination of the Revolving Credit Commitments, (ii) the date that is five (5) Business days prior to the latest Revolving Credit Maturity Date and (iii) such Issuing Bank ceasing to be a Revolving Credit Lender hereunder.

(c) The Borrower may at any time terminate, without premium or penalty, or from time to time reduce, the Revolving Credit Commitments under any Revolving Credit Facility (or under any tranche of the Revolving Credit Commitments); provided that (i) each reduction of the Revolving Credit Commitments shall be in an amount that is an integral multiple of $10.0 million and not less than $50.0 million and (ii) in any event, the Borrower shall not terminate or reduce the Revolving Credit Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.12, the Total Revolving Credit Exposure under any tranche would exceed the total Revolving Credit Commitments under such tranche.

(d) The Borrower shall notify the Administrative Agent of any election to terminate or reduce the Revolving Credit Commitments under any Revolving Credit Facility (or any tranche thereof) pursuant to paragraph (b) of this Section 2.10 at least two (2) Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the applicable Revolving Credit Lenders of the contents thereof. Each notice delivered by the Borrower pursuant to this Section shall be irrevocable; provided that a notice of termination of the Revolving Credit Commitments delivered by the Borrower may state that such notice is conditioned upon one or more conditions precedent, in which case such notice of termination may be revoked or automatically terminated if such conditions precedent are not satisfied. Any termination or reduction of the Revolving Credit Commitments shall be permanent (but subject to any increase pursuant to Section 2.23). Each reduction of the Revolving Credit Commitments under any Revolving Credit Facility (other than any such reduction resulting from the termination of the Revolving Credit Commitment of any Lender as provided in Section 2.21) shall be made ratably among the Revolving Credit Lenders holding Revolving Credit Commitments under such Revolving Credit Facility

2.11 Repayment of Revolving Credit Loans; Evidence of Debt.

(a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Revolving Credit Lender the then unpaid principal amount of each Revolving Credit Loan of such Lender made to such Borrower on the applicable Revolving Credit Maturity Date.

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

(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and, if applicable, the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

 

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(d) The entries made in the accounts maintained pursuant to paragraph (a) or (b) of this Section 2.11 shall be conclusive, absent manifest error, of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement; provided, further, that in the event of any conflict between the entries in the accounts maintained pursuant to paragraph (a) or (b) of this Section 2.11 and the entries in the Register maintained pursuant to Section 9.4(b)(v), the entries in the Register shall prevail.

(e) Any Lender may request through the Administrative Agent that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender or its registered assigns and in the form of Exhibit G-1 or G-2, as applicable. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.4) be represented by one or more promissory notes in such form payable to the payee named therein and its registered assigns.

2.12 Prepayment of Loans. (a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing made by it in whole or in part, without premium or penalty (but subject to Sections 2.12(e) and 2.18), subject to prior notice in accordance with paragraph (c) of this Section 2.12.

(b) Prior to any optional or mandatory prepayment of Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment pursuant to paragraph (c) of this Section 2.12. Each optional or mandatory prepayment of Loans shall be applied ratably to the Loans so prepaid (based on the respective outstanding principal amounts thereof unless, in the case of Extended Term Loans, Extended Revolving Credit Loans, Incremental Term Loans, Replacement Term Loans or Loans under any Replacement Revolving Credit Facility, the applicable Permitted Amendment specifies a less favorable treatment); provided that prepayments of Term Loans made with the proceeds of any Replacement Term Loans and Permitted Term Loan Refinancing Indebtedness shall be applied in accordance with Section 2.14(e). Prepayments of Term Loans shall be applied to the remaining scheduled installments as follows:

(i) any mandatory prepayments of Term Loans pursuant to Section 2.14 shall be applied to the remaining scheduled principal installments (a) in the case of the Initial Term Loans, as directed by the Borrower (or, if no such direction is given, in direct order of maturity thereof) and (b) in the case of any other Term Loans, in the order specified in the applicable Permitted Amendment, and

 

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(ii) any optional prepayments of Term Loans pursuant to Section 2.12(a) shall be applied to the remaining scheduled installments thereof as directed by the Borrower (or, if no such direction is given, in direct order of maturity thereof).

(c) The Borrower shall notify the Administrative Agent by telephone (confirmed by facsimile or, in accordance with the second paragraph of Section 9.1, e-mail) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 2:00 p.m., New York City time, three Business Days before the date of prepayment (or such later time and/or date as may be agreed by the Administrative Agent in its reasonable discretion), or (ii) in the case of prepayment of an ABR Borrowing, not later than 2:00 p.m., New York City time, on the date of prepayment (or such later time and/or date as may be agreed by the Administrative Agent in its reasonable discretion). Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that any notice of prepayment may be conditioned upon one or more conditions precedent, in which case such notice of prepayment may be revoked or automatically terminated if such conditions precedent are not satisfied. Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an integral multiple of $10.0 million and not less than $50.0 million. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.15. Other than a repayment pursuant to Section 2.21(c), each repayment of a Borrowing (x) in the case of a Revolving Credit Facility, shall be applied to the Loans included in the repaid Borrowing such that each Revolving Credit Lender holding Loans included in such repaid Borrowing receives its ratable share of such repayment (based upon the respective Revolving Credit Exposures of the Revolving Credit Lenders holding Loans included in such repaid Borrowing at the time of such repayment) and (y) in all other cases, shall be applied ratably to the Loans included in the repaid Borrowing. In the event the Borrower fails to specify the Borrowings to which any such voluntary prepayment shall be applied, such prepayment shall be applied first, to repay outstanding Revolving Credit Borrowings to the full extent thereof (ratably among Revolving Credit Facilities); and second, to prepay the Term Borrowings ratably in accordance with paragraph (b) of this Section 2.12 (unless, with respect to a Class of Term Loans, the applicable Permitted Amendment specifies a less favorable treatment).

(d) Notwithstanding anything to the contrary set forth in this Agreement (including the penultimate sentence of Section 2.12(c) or Section 2.20(c)) or any other Loan Document, the Purchasing Borrower Parties shall have the right at any time and from time to time to purchase Term Loans by way of assignment in accordance with Section 9.4(g), including pursuant to a Dutch Auction in accordance with Section 2.12(f).

(e) In the event that, prior to the date that is six months after the Closing Date, the Borrower (i) makes any repayment, prepayment, or purchase of Initial Term Loans in connection with any Repricing Event or (ii) effects any amendment of this Agreement resulting in a Repricing Event, the Borrower shall pay to the Administrative Agent on the date of effectiveness of such Repricing Event, for the ratable account of each applicable Term Loan Lender (x) in the case of clause (i), a prepayment premium of 1.00% of the aggregate principal amount of the Initial Term Loans, so being prepaid, repaid or purchased and (y) in the case of clause (ii), an amount equal to 1.00% of the aggregate principal amount of the Initial Term Loans that are the subject of such Repricing Event and outstanding immediately prior to such amendment.

 

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(f) Notwithstanding anything to the contrary contained in this Section 2.12 or any other provision of this Agreement and without otherwise limiting the rights in respect of prepayments of the Term Loans, so long as no Default or Event of Default has occurred and is continuing, any Purchasing Borrower Party may repurchase outstanding Term Loans in negotiated open market purchases pursuant to Section 9.4(g) or pursuant to this Section 2.12(f) (without prejudice to such Purchasing Borrower Party’s rights to repurchase outstanding Term Loans in accordance with Section 9.4(g)) on the following basis:

(i) Any Purchasing Borrower Party may conduct one or more auctions (each, an “Auction”) to repurchase all or any portion of the Term Loans of a Class (the “Subject Class”) by providing written notice to the Administrative Agent (for distribution to the Lenders) of the Term Loans that will be the subject of the Auction (an “Auction Notice”). Each Auction Notice shall be in a form reasonably acceptable to the Administrative Agent and shall contain (w) the total cash value of the bid, in a minimum amount of $5.0 million with minimum increments of $1.0 million (the “Auction Amount”), (x) the discount to par, which shall be a range (the “Discount Range”) of percentages of the par principal amount of the Term Loans at issue that represents the range of purchase prices that could be paid in the Auction, (y) the time when the bid expires and (z) any other conditions to which the bid is to be subject;

(ii) In connection with any Auction, each Term Loan Lender may, in its sole discretion, participate in such Auction and may provide the Administrative Agent with a notice of participation (the “Return Bid”), which shall be in a form reasonably acceptable to the Administrative Agent and shall specify (x) a discount to par expressed as a percentage (the “Reply Discount Price”), which must be within the Discount Range, and (y) a principal amount of Term Loans which must be in increments of $1.0 million or in an amount equal to the Term Loan Lender’s entire remaining amount of such Loans (the “Reply Amount”). Term Loan Lenders may only submit one Return Bid per Auction. In addition to the Return Bid, the participating Term Loan Lender must execute and deliver, to be held in escrow by the Administrative Agent, an Assignment and Assumption in a form reasonably acceptable to the Administrative Agent;

(iii) Based on the Reply Discount Prices and Reply Amounts received by the Administrative Agent, the Administrative Agent, in consultation with the Borrower, will determine the applicable discount (the “Applicable Discount”) for the Auction, which will be the lowest Reply Discount Price for which a Purchasing Borrower Party can complete the Auction at the Auction Amount; provided that, in the event that the Reply Amounts are insufficient to allow such Purchasing Borrower Party to complete a purchase of the entire Auction Amount, such Purchasing Borrower Party shall either, at its election, (x) withdraw the Auction or (y) complete the Auction at an Applicable Discount equal to the highest Reply Discount Price. Any Purchasing Borrower Party shall purchase

 

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Term Loans (or the respective portions thereof) from each Term Loan Lender with a Reply Discount Price that is equal to or less than the Applicable Discount (“Qualifying Bids”) at the Applicable Discount; provided, further, that if the aggregate proceeds required to purchase all Term Loans subject to Qualifying Bids would exceed the Auction Amount for such Auction, the Borrower shall purchase such Term Loans at the Applicable Discount ratably based on the principal amounts of such Qualifying Bids (subject to rounding requirements specified by the Administrative Agent). Each participating Term Loan Lender will receive notice of a Qualifying Bid as soon as reasonably practicable but in no case later than five Business Days from the date the Return Bid was due;

(iv) In connection with any Auction, upon submission by a Term Loan Lender of a Qualifying Bid, such Lender (each, a “Qualifying Lender”) will be obligated to sell the entirety or its allocable portion of the Reply Amount, as the case may be, at the Applicable Discount. Each purchase of Term Loans in an Auction shall be consummated pursuant to procedures (including as to response deadlines, rounding amounts, type and Interest Period of accepted Term Loans, and calculation of the Applicable Discount referred to above) established by the Administrative Agent and agreed to by the Borrower; and

(v) The repurchases by any Purchasing Borrower Party of Term Loans pursuant to this Section 2.12(f) shall be subject to the following conditions: (A) the Auction is open to all Term Loan Lenders of the Subject Class on a pro rata basis, (B) no Default or Event of Default has occurred or is continuing or would result therefrom, (C) the applicable Assignment and Assumption shall include a customary “big boy” representation from each of the Purchasing Borrower Party and the Qualifying Lender (it being agreed that no Purchasing Borrower Party shall be required to make a representation that, as of the date of any such purchase or assignment, it is not in possession of any MNPI with respect to Parent, the Borrower, their respective Subsidiaries or their respective securities) and (D) any Term Loans repurchased pursuant to this Section 2.12(f) shall be automatically and permanently canceled upon acquisition thereof by the Purchasing Borrower Party.

2.13 Fees.

(a) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender (other than any Defaulting Lender) a commitment fee, which shall accrue at a rate equal to the Revolving Commitment Fee Rate per annum applicable to the Revolving Credit Commitments on the actual daily unused amount of the Revolving Credit Commitment of such Revolving Credit Lender during the period from and including the Closing Date to but excluding the date on which such Lender’s Revolving Credit Commitment terminates. The foregoing notwithstanding, the applicable lenders may consent to a different commitment fee to be paid pursuant to the terms of any applicable Incremental Facility Amendment, Replacement Facility Amendment or Extension Offer. Accrued commitment fees shall be payable in arrears on the last Business Day of March, June, September and December of each year and on the date on which the Revolving Credit Commitments terminate, commencing

 

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in June 2020. All commitment fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). For purposes of calculating the commitment fee only, the Revolving Credit Commitment of any Revolving Credit Lender shall be deemed to be used to the extent of Revolving Credit Loans of such Revolving Credit Lender and the LC Exposure of such Revolving Credit Lender.

(b) The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Credit Lender a participation fee with respect to its participations in Letters of Credit, which shall accrue at the same Applicable Margin used to determine the interest rate applicable to Eurodollar Revolving Credit Loans, on the daily amount of such Lender’s LC Exposure in respect of Letters of Credit (excluding any portion thereof attributable to unreimbursed LC Disbursements) during the period from and including the Closing Date to but excluding the later of the date on which such Lender’s Revolving Credit Commitment terminates and the date on which such Lender ceases to have any LC Exposure with respect to any Letters of Credit. The Borrower agrees to pay to each Issuing Bank a fronting fee, which shall accrue at the rate to be agreed with of 0.125% per annum (or such other percentage not to exceed 0.125% per annum as may be separately agreed to by the Borrower and the applicable Issuing Bank) on the average daily amount of the LC Exposure (excluding any portion thereof attributable to unreimbursed LC Disbursements) attributable to the Letters of Credit issued by such Issuing Bank during the period from and including the Closing Date to but excluding the later of the date of termination of the Revolving Credit Commitments and the date on which there ceases to be any LC Exposure attributable to the Letters of Credit issued by such Issuing Bank, as well as such Issuing Bank’s standard fees with respect to the issuance, amendment or extension of any Letter of Credit or processing of drawings thereunder. Accrued participation fees and fronting fees shall be payable on the last Business Day of March, June, September and December of each year and on the date on which the Revolving Credit Commitments terminate, commencing in June, 2020; provided that any such fees accruing after the date on which the Commitments terminate shall be payable on demand. All participation fees and fronting fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).

(c) The Borrower agrees to pay to the Administrative Agent and the Arrangers (and their respective affiliates) the fees in the amounts and on the dates set forth in any fee letter with such Persons and to perform and other obligations contained therein.

2.14 Mandatory Prepayments. (a) If Indebtedness is incurred by any Group Member (other than Indebtedness permitted under Section 6.3), then on the date of such issuance or incurrence, an amount equal to 100% of the Net Proceeds thereof shall be applied to the prepayment of the Initial Term Loans (together with accrued and unpaid interest thereon) as set forth in Sections 2.14(f) and (g). The provisions of this Section 2.14 do not constitute a consent to the incurrence of any Indebtedness by any Group Member.

(b) If on any date there shall be any Excess Proceeds, and the aggregate amount of such Excess Proceeds shall exceed $250.0 million, then no later than 20 days thereafter and subject to Section 2.14(i), an amount equal to the Asset Sale Percentage of all such Excess Proceeds (not only the amount in excess of $250.0 million) shall be applied to the prepayment of the Initial Term Loans (together with accrued and unpaid interest thereon) as set forth in Section 2.14(f) and (g).

 

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(c) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, then, on the relevant Excess Cash Flow Application Date and subject to Section 2.14(i), the Borrower shall apply an amount equal to (i) the ECF Percentage of such Excess Cash Flow minus (ii) the Optional Prepayment Amount (if any) for such Excess Cash Flow Period to the prepayment of the Initial Term Loans (together with accrued interest thereon), as set forth in Section 2.14(f) and (g). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten Business Days after the earlier of (x) the date on which the financial statements of the Borrower referred to in Section 5.1(a), for the fiscal year with respect to which such prepayment is to be made, are required to be delivered to the Lenders and (y) the date such financial statements are actually delivered.

(d) In the event the aggregate Total Revolving Credit Exposure exceeds the Total Revolving Credit Commitments then in effect, the Borrower shall immediately prepay Revolving Credit Loans and/or cash collateralize the Letters of Credit (in accordance with Section 2.7(j)) in an aggregate amount equal to such excess.

(e) The Borrower shall apply, on a dollar-for-dollar basis, all of the Net Proceeds of any Replacement Term Loans and the Net Proceeds of any Permitted Term Loan Refinancing Indebtedness (that is incurred to refinance Term Loans) to the repayment of Term Loans to be repaid from such Net Proceeds on the date such Net Proceeds are received. Any such prepayment of Term Loans of a Class shall be paid ratably to the holders of such Class and shall be applied to the remaining scheduled amortization installments of the Term Loans of such Class in the order specified in Section 2.12(b)(ii).

(f) Amounts to be applied pursuant to this Section 2.14 shall be applied first to reduce outstanding ABR Loans of the applicable Class. Any amounts remaining after each such application shall be applied to prepay Eurodollar Loans of such Class; provided, however, that the Borrower may elect (except in the case of a prepayment pursuant to Section 2.14(e)) that the remainder of such prepayments not applied to prepay ABR Loans be held by the Borrower and applied to prepay the Eurodollar Loans on the last day of the next expiring Interest Period for Eurodollar Loans; provided that (A) interest shall continue to accrue thereon at the rate otherwise applicable under this Agreement to the Eurodollar Loan in respect of which such deposit was made, until such amounts are applied to prepay such Eurodollar Loan, and (B) at any time while an Event of Default has occurred and is continuing, upon written direction from the Required Lenders, the Administrative Agent shall, apply any or all of such amounts to the payment of Eurodollar Loans.

(g) Notwithstanding anything in this Section 2.14 to the contrary, if any amount shall be required to be applied to prepay Term Loans pursuant to clauses (a), (b) or (c) above (such amount, the “Required Prepayment Amount”), and at the time that any such prepayment would be required, the Borrower is required to, or required to offer to, repurchase or redeem or repay or prepay any other Indebtedness secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the Borrower may apply such Required

 

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Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or repayment of Other Applicable Indebtedness, and the amount of the prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.14 shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness so repurchased or repaid, the declined amount shall promptly (and in any event within five Business Days after the date of such rejection, or, if later, the date on which the portion of the Required Prepayment Amount allocated to the Term Loans are applied to prepayment of the Term Loans) be applied to prepay the Term Loans in accordance with the terms hereof (to the extent such amount would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).

(h) Notwithstanding anything in this Section 2.14 to the contrary, any Term Lender (and, to the extent provided in the applicable Permitted Amendment, any other Term Loan Lender) may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile or, in accordance with the second paragraph of Section 9.1, e-mail) at least one Business Day prior to the required prepayment date, to decline all of any mandatory prepayment of its Term Loans pursuant to clauses (b) and (c) of this Section 2.14, in which case the aggregate amount of the prepayment that would have been applied to prepay Term Loans but was so declined may be retained by the Group Members (such declined amounts to the extent retained by the Group Members and used for any purpose not prohibited by this Agreement, the “Declined Proceeds”).

(i) Notwithstanding the foregoing, all prepayments referred to in clauses (b) and (c) above are subject to permissibility of upstreaming the applicable cash flow or cash proceeds under (i) local law (e.g. financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance and similar legal principles, restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant subsidiaries) and (ii) material organizational document restrictions as a result of minority ownership. Further, if the Borrower determines in good faith that any Group Member would incur a material adverse tax liability (taking into account, for the avoidance of doubt, any applicable withholding taxes), if all or a portion of the cash flow or cash proceeds referred to above attributable to a Foreign Subsidiary (or any direct or indirect Subsidiary thereof) were repatriated (a “Restricted Amount”), the amount that the Borrower will be required to mandatorily prepay shall be reduced by the Restricted Amount until such time as the relevant Restricted Subsidiary may upstream or transfer such Restricted Amount without incurring such tax liability.

(j) The Borrower shall have the option to repay any loans outstanding under the Bridge Facility in lieu of any amount otherwise required to be applied to prepay Loans pursuant to clause (a), (b) or (c) above.

 

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2.15 Interest. (a) Subject to Section 9.17, each Loan shall bear interest at the Reference Rate plus the Applicable Margin.

(b) Following the occurrence and during the continuation of a Specified Event of Default, the Borrower shall pay interest on overdue amounts hereunder at a rate per annum equal to (i) in the case of overdue principal of, or interest on, any Loan, 2.00% plus the rate otherwise applicable to such Loan as provided in paragraph (a) of this Section 2.15 or (ii) in the case of any other overdue amount, 2.00% plus the rate applicable to ABR Loans under the Revolving Credit Facility as provided in paragraph (a) of this Section 2.15.

(c) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan and, in the case of Revolving Credit Loans, upon termination in full of the Revolving Credit Commitments; provided that (i) interest accrued pursuant to paragraph (b) of this Section 2.15 shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan (other than a prepayment of an ABR Revolving Credit Loan that is not made in connection with the termination or permanent reduction of Revolving Credit Commitments), accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

(d) All interest hereunder shall be computed on the basis of a year of 360 days (or a 365- or 366-day year, as the case may be, in the case of ABR Loans based on the Prime Rate). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

(e) Notwithstanding anything to the contrary in the foregoing clauses (a) and (b), and to the extent in compliance with Section 2.23, 2.24 or 2.25, as applicable, Loans made pursuant to an Incremental Facility or Replacement Facility or extended in connection with an Extension Offer shall bear interest at the rate set forth in the applicable Permitted Amendment to the extent a different interest rate is specified therein.

2.16 Alternate Rate of Interest. Subject to Section 1.10 (which shall apply solely in the circumstances set forth therein), if prior to the commencement of any Interest Period for a Eurodollar Borrowing:

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

(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period;

 

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then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, facsimile or other electronic transmission as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be deemed to be converted into a request for a Borrowing of ABR Loans in the amount specified therein and (ii) if any Borrowing Request requests a Eurodollar Revolving Credit Borrowing, such Borrowing shall be made as, or converted to, an ABR Borrowing.

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

(i) subject the Administrative Agent, any Lender or any Issuing Bank to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes or (C) Connection Income Taxes) in respect of its loans, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

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

(iii) impose on any Lender or any Issuing Bank or the London interbank market any other condition, cost or expense (excluding any condition relating to Taxes) affecting this Agreement or Eurodollar Loans made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender (or in the case of clause (i) above, to the Administrative Agent, such Lender or such Issuing Bank, as the case may be) of making or maintaining any Eurodollar Loan (or in the case of clause (i) above, any Loan) (or of maintaining its obligation to make any such Loan) or to increase the cost to the Administrative Agent, such Lender or such Issuing Bank, as the case may be, of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by the Administrative Agent, such Lender or such Issuing Bank, as the case may be, hereunder (whether of principal, interest or otherwise), then the Borrower will pay to the Administrative Agent or such Lender, as the case may be, such additional amount or amounts as will compensate the Administrative Agent, such Lender or such Issuing Bank, as the case may be, for such additional costs incurred or reduction suffered; provided, in each case, that the Administrative Agent, such Lender or such Issuing Bank certifies that it has requested such payments from similarly situated borrowers.

(b) If any Lender or any Issuing Bank determines that any Change in Law regarding capital or liquidity 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 or such Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such Issuing Bank’s policies and the policies of such Lender’s or

 

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such Issuing Bank’s holding company with respect to capital adequacy or liquidity), then from time to time the Borrower will pay to such Lender or such Issuing Bank, as the case may be, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction; provided, in each case, that the Administrative Agent or such Lender or such Issuing Bank certifies that it has requested such payments from similarly situated borrowers.

(c) A certificate of a Lender or an Issuing Bank setting forth in reasonable detail the matters giving rise to a claim under this Section 2.17 by such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company, as the case may be, as specified in paragraph (a) or (b) of this Section 2.17 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender or such Issuing Bank, as the case may be, the amount shown as due on any such certificate within ten Business Days after receipt thereof.

(d) Failure or delay on the part of any Lender or Issuing Bank to demand compensation pursuant to this Section 2.17 shall not constitute a waiver of such Lender’s or such Issuing Bank’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender or Issuing Bank pursuant to this Section 2.17 for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or such Issuing Bank, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such Issuing Bank’s intention to claim compensation therefor; provided, further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

(e) If any Lender reasonably determines that any Requirement 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 Loans, or to determine or charge interest rates based upon the Adjusted LIBO Rate, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Loans or to convert ABR Loans to Eurodollar 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 may at its option revoke any pending request for a borrowing of, conversion to or continuation of Eurodollar Loans and shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Loans of such Lender to ABR Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different lending office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise cause economic, legal or regulatory disadvantage to such Lender.

 

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2.18 Break Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice is conditional as contemplated by Section 2.12(c) and such condition is not satisfied) or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.21(c), then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. Such loss, cost or expense to any Lender shall consist of an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate (determined without regard to the proviso in the definition thereof) that would have been applicable to such Loan for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for deposits of a comparable amount and in the same currency and period from other banks in the eurocurrency market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.18 shall be delivered to the Borrower and shall be conclusive absent manifest error. Absent manifest error in the determination of such amount, the Borrower shall pay such Lender the amount shown as due on any such certificate within ten Business Days after receipt thereof.

2.19 Taxes. (a) All payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any Taxes, except as required by any Requirement of Law. If any applicable Withholding Agent shall be required (as determined by such Withholding Agent in its good faith discretion) by any Requirement of Law to deduct or withhold any Taxes from such payments, then (i) in the case of deduction or withholding for Indemnified Taxes the sum payable shall be increased by the applicable Loan Party as necessary so that after all required deductions have been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.19(a)) the Lender (or, in the case of payments made to the Administrative Agent for its own account, the Administrative Agent) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable Withholding Agent shall make or cause to be made such deductions or withholdings and (iii) the applicable Withholding Agent shall pay or cause to be paid the full amount deducted to the relevant Governmental Authority in accordance with applicable Requirements of Law.

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

(c) The Borrower shall indemnify the Administrative Agent and each Lender, within 30 days after written demand therefor, for the full amount of any Indemnified Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted from any payment to such Administrative Agent or Lender, as the case may be (including any Indemnified Taxes imposed or asserted on or attributable to amounts payable

 

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under this Section 2.19) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth in reasonable detail the basis for such claim and the calculation of the amount of any such payment or liability shall be delivered to the Borrower by a Lender or by the Administrative Agent on its own behalf or on behalf of a Lender, and shall be conclusive absent manifest error.

(d) As soon as practicable after any payment of Taxes by a Loan Party to a Governmental Authority, the Borrower or such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e) Any Lender that is entitled to an exemption from or reduction of any applicable withholding Tax with respect to any payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of 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,

(A) any Lender that is a “United States person” as defined in Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two executed copies of IRS Form W-9 certifying that such Lender is exempt from US Federal backup withholding tax;

(B) any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Administrative Agent 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 reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party with respect to payments of interest under any Loan Document, two executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, US Federal withholding Tax;

 

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(2) two executed copies of IRS Form W-8ECI;

(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and that no interest payments under any Loan Documents are effectively connected with such Foreign Lender’s conduct of a United States trade or business (a “US Tax Compliance Certificate”) and (y) two executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable; or

(4) to the extent a Foreign Lender is not the beneficial owner (e.g., where the Lender is a partnership or a participating Lender), two executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, as applicable, a US Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a US Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of such direct and indirect partner(s);

(C) any Foreign Lender shall, to the extent it is legally eligible to do so, 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 reasonable request of the Borrower or the Administrative Agent), executed copies of any other form or other documentation prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction in US Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Requirements of Law to permit the Borrower or the Administrative Agent to determine any withholding or deduction required to be made; and

 

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(D) if a payment made to a Lender under any Loan Document would be subject to US Federal withholding Tax imposed pursuant to FATCA if such Lender fails to comply with any requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent, on or before the date it becomes a party to this Agreement and from time to time thereafter upon the request of the Borrower or the Administrative Agent, such documentation prescribed by any applicable Requirement of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower or the Administrative Agent to comply with its obligations under FATCA, to determine whether such Lender has or has not complied with such Lender’s obligations under FATCA and to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or other documentation it previously delivered pursuant to this Section 2.19(e) expires or becomes obsolete or inaccurate in any respect, it shall update such form or other documentation or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so. Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided by such Lender pursuant to this Section 2.19(e). Notwithstanding anything to the contrary in this Section 2.19(e), no Lender shall be required to deliver any documentation pursuant to this Section 2.19(e) that such Lender is not legally eligible to deliver.

(f) On or prior to the date on which it becomes a party to this Agreement, the Administrative Agent shall deliver to the Borrower either (1) a duly completed IRS Form W-9 certifying that it is exempt from US Federal backup withholding tax or (2) (x) with respect to payments received for the account of a Lender, a duly completed IRS Form W-8IMY evidencing the Administrative Agent’s agreement to be treated as a United States person for U.S. federal withholding tax purposes and assuming primary responsibility for U.S. federal income tax withholding and (y) a duly completed IRS Form W-8ECI (with respect to payments for which the Administrative Agent is the beneficial owner). The Administrative Agent shall, whenever any documentation described in the preceding sentence expires or becomes obsolete or inaccurate in any respect, deliver promptly to the Borrower updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower) or promptly notify the Borrower of its legal ineligibility to do so. Notwithstanding anything to the contrary in this Section 2.19(f), no Administrative Agent shall be required to deliver any documentation that such Administrative Agent is not legally eligible to deliver as a result of any Change in Law after the Closing Date.

 

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(g) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by a Loan Party or with respect to which a Loan Party has paid additional amounts pursuant to this Section 2.19, it shall pay over such refund to the applicable Loan Party within a reasonable period (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.19 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that such Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Loan Party pursuant to this Section 2.19(g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.19(g), in no event will the Administrative Agent or such Lender be required to pay any amount to a Loan Party pursuant to this Section 2.19(g) the payment of which would place the Administrative Agent or such Lender in a less favorable net after-Tax position than the Administrative Agent or such Lender would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 2.19(g) 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 which it deems confidential) to any Loan Party or any other Person.

(h) Each party’s obligations under this Section 2.19 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

(i) For purposes of this Section 2.19, the term “Lender” shall include any Issuing Bank.

2.20 Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees, reimbursement of LC Disbursements or of amounts payable under Section 2.17, 2.18, and 2.19 or otherwise) prior to the time expressly required hereunder or under such other Loan Document for such payment (or if no such time is expressly required, prior to 1:00 p.m. New York City time), on the date when due, in immediately available funds, without set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at 60 Wall Street, New York, New York 10005, except payments made directly to an Issuing Bank as expressly provided herein and except that payments pursuant to Section 2.17, 2.18, 2.19, 9.3 or pursuant to the Dutch Auction Procedures shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient recorded in the Register promptly following receipt thereof. If any payment under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon shall be not payable for the period of such extension. All payments under each Loan Document of principal or interest in respect of any Loan (or of any breakage indemnity in respect of any Loan) shall be made in US Dollars and, except as otherwise set forth in any Loan Document, all other payments under each Loan Document shall be made in US Dollars.

 

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

(c) If any Lender shall, by exercising any right of set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary 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 participations in LC Disbursements ; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including Sections 2.21(b) or (c), 2.23, 2.24, 2.25 and 9.4(g) or pursuant to the terms of any Permitted Amendment) or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant permitted under this Agreement. The Borrower 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 may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. For purposes of clause (b) of the definition of “Excluded Taxes”, a Lender that acquires a participation pursuant to this Section 2.20(c) shall be treated as having acquired such participation on the date(s) on which such Lender acquired the applicable interest(s) in the Loan(s) to which such participation relates.

(d) 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 or any Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the applicable Lenders or Issuing Bank, 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 or Issuing Banks, as the

 

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case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank 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 Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.7(d) or (e), 2.8(b), 2.20(d) or 8.7, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

2.21 Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.17, or if the Borrower is required to pay any Indemnified Taxes, Other Taxes or additional amount to any Lender or Issuing Bank or any Governmental Authority for the account of any Lender or Issuing Bank pursuant to Section 2.19, or issues any notice under Section 2.26, then such Lender or Issuing Bank shall use reasonable efforts to designate a different lending office for funding or booking its Loans or Letters of Credit hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender or Issuing Bank, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.17 or 2.19 or eliminate the need for the notice pursuant to Section 2.26, as the case may be, in the future and (ii) would not subject such Lender or Issuing Bank to any unreimbursed cost or expense and would not otherwise cause material economic, legal or regulatory disadvantage to such Lender or Issuing Bank. The Borrower hereby agrees to pay all reasonable and documented out-of-pocket costs and expenses incurred by any Lender or Issuing Bank in connection with any such designation or assignment.

(b) If any Lender (or any Participant in the Loans held by such Lender) requests compensation under Section 2.17, or if the Borrower is required to pay any Indemnified Taxes, Other Taxes or additional amount to any Lender (or its Participant) or any Governmental Authority for the account of any Lender pursuant to Section 2.19 or if any Lender becomes a Defaulting Lender, or delivers a notice pursuant to Section 2.26, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, either (i) require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.4), all its interests, rights and obligations under this Agreement (other than surviving rights to payments pursuant to Section 2.17 or 2.19) and the related Loan Documents to an assignee (other than a Disqualified Lender) that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (A) the Borrower shall have received the prior written consent of the Administrative Agent and any applicable Issuing Bank, to the extent consent for an Assignment and Assumption would be required by such Person pursuant to Section 9.4, which consent, in each case, shall not be unreasonably withheld, conditioned or delayed, (B) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and funded participations in LC Disbursements, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and

 

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accrued interest and fees) or the Borrower (in the case of all other amounts) and (C) in the case of any such assignment resulting from a claim for compensation under Section 2.17 or payments required to be made pursuant to Section 2.18, such assignment will result in a reduction in such compensation or payments, or (ii) so long as no Default or Event of Default shall have occurred and be continuing, terminate the Commitment of such Lender and repay all obligations of the Borrower owing to such Lender relating to the Loans and participations held by such Lender as of such termination date. A Lender shall not be required to make any such assignment and delegation, or to have its Commitments terminated and its obligations hereunder repaid, 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, or to terminate such Commitments and repay such obligations, cease to apply.

(c) If any Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, discharge or termination which pursuant to the terms of Section 9.2 requires the consent of all of the Lenders or all affected Lenders or all Lenders or all affected Lenders of a certain Class or Classes or with respect to a certain Class or Classes of the Loans and with respect to which the Required Lenders or Required Revolving Lenders, as applicable, with respect to the applicable Class or Classes shall have granted their consent, then the Borrower shall have the right (unless such Non-Consenting Lender grants such consent) to either (i) replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign all or the affected portion of its Loans and its Commitments hereunder to one or more assignees reasonably acceptable to the Administrative Agent (other than a Disqualified Lender); provided that (A) all Obligations (other than Designated Hedging Obligations, Designated L/C Facilities Obligations, Cash Management Obligations, contingent reimbursement and indemnification obligations, in each case, which are not due and payable) of the Borrower owing to such Non-Consenting Lender being replaced shall be paid in full to such Non-Consenting Lender concurrently with such assignment (including any amount owed pursuant to Section 2.12(e), if applicable), (B) the replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon, (C) in connection with any such assignment the Borrower, such Non-Consenting Lender and the replacement Lender shall otherwise comply with Section 9.4 (including obtaining the consent of the Administrative Agent and each Issuing Bank if so required thereunder); provided that, if the required Assignment and Assumption is not executed and delivered by such Non-Consenting Lender, such Non-Consenting Lender will be unconditionally and irrevocably deemed to have executed and delivered such Assignment and Assumption as of the date such Non-Consenting Lender receives payment in full of the Obligations (other than Designated Hedging Obligations, Designated L/C Facilities Obligations, Cash Management Obligations, contingent reimbursement and indemnification obligations, in each case, which are not due and payable) of the Borrower owing to such Non-Consenting Lender, (D) the replacement Lender shall pay any processing and recordation fee referred to in Section 9.4(b)(ii)(C), if applicable, in accordance with the terms of such Section and (E) the replacement Lender shall grant its consent with respect to the applicable proposed amendment, waiver, discharge or termination, or (ii) so long as no Default or Event of Default shall have occurred and be continuing, terminate (on a non-pro rata basis) the Commitment of such Non-Consenting Lender and repay all obligations of the Borrower owing to such Lender relating to the Loans held by such Non-Consenting Lender as of such termination date; provided that such termination shall be sufficient (together with all other consenting Lenders and all other assignments or terminations under this Section 2.21(c)) to cause the adoption of the applicable waiver or amendment of the applicable Loan Document or Loan Documents.

 

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(d) Each Lender agrees that if it is replaced pursuant to this Section 2.21, it shall execute and deliver to the Administrative Agent an Assignment and Assumption to evidence such sale and purchase and shall deliver to the Administrative Agent any Note (if the assigning Lender’s Loans are evidenced by Notes) subject to such Assignment and Assumption; provided that the failure of any Lender replaced pursuant to this Section 2.21 to execute an Assignment and Assumption or deliver such Notes shall not render such sale and purchase (and the corresponding assignment) invalid and such assignment shall be recorded in the Register and the Notes shall be deemed cancelled upon such failure. Each Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Lender’s attorney-in-fact, with full authority in the place and stead of such Lender and in the name of such Lender, from time to time in the Administrative Agent’s discretion, with prior written notice to such Lender, to take any action and to execute any such Assignment and Assumption or other instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of clause (b) or (c) of this Section 2.21.

2.22 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then, so long as such Lender is a Defaulting Lender:

(a) commitment fees shall cease to accrue on the unused portion of the Revolving Credit Commitment of such Defaulting Lender pursuant to Section 2.13(a);

(b) the Commitments and Aggregate Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders, the Required Revolving Lenders or other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.2); provided that this paragraph shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby if such amendment, waiver or modification would adversely affect such Defaulting Lender compared to other similarly affected Lenders; provided, further, that no amendment, waiver or modification that would require the consent of a Defaulting Lender under clause (1), (2), (3) or (4) of Section 9.2(b) may be made without the consent of such Defaulting Lender;

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

(i) all or any part of the LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders in accordance with their respective Applicable Percentages in respect of the Revolving Credit Facility but only to the extent (A) the sum of all non-Defaulting Lenders’ Revolving Credit Exposure plus such Defaulting Lender’s LC Exposure attributable to Letters of Credit does not exceed the total of all non-Defaulting Lenders’ Revolving Credit Commitments and (B) the Revolving Credit Exposure of each non-Defaulting Lender after giving effect to such reallocation does not exceed the Revolving Credit Commitment of such non-Defaulting Lender;

 

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(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any other right or remedy available to it hereunder or under applicable Requirements of Law, within three (3) Business Days following notice by the Administrative Agent, cash collateralize for the benefit of each applicable Issuing Bank only the Borrower’s obligations corresponding to such Defaulting Lender’s LC Exposure (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.7(j) for so long as such LC Exposure is outstanding or make other arrangements reasonably satisfactory to the Administrative Agent and to the applicable Issuing Bank with respect to such LC Exposure and obligations to fund participations;

(iii) if the Borrower cash collateralizes any portion of such Defaulting Lender’s LC Exposure pursuant to clause (ii) above, the Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.13(b) with respect to such Defaulting Lender’s LC Exposure during the period such Defaulting Lender’s LC Exposure is cash collateralized except to the extent of such fees that became due and payable by the Borrower prior to the date such Lender became a Defaulting Lender (it being understood that any cash collateral provided pursuant to this Section 2.22(c) shall be released promptly following the termination of the Defaulting Lender status of the applicable Lender);

(iv) if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.13(a) and Section 2.13(b) shall be adjusted in accordance with such non-Defaulting Lenders’ Applicable Percentages; and

(v) if all or any portion of such Defaulting Lender’s LC Exposure is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then no fees shall be payable under Section 2.13(b) with respect to such Defaulting Lender’s LC Exposure to the extent that such LC Exposure has not been reallocated and/or cash collateralized;

(d) so long as such Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, amend or increase any Letter of Credit, unless it is reasonably satisfied that the related exposure and the Defaulting Lender’s then outstanding LC Exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrower in accordance with Section 2.22(c), and participating interests in any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.22(c)(i) (and such Defaulting Lender shall not participate therein); and

(e) if a Defaulting Lender has Revolving Credit Commitments, for purposes of computing the amount of the obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit, the Applicable Percentage of each non-Defaulting Lender with a Revolving Credit Commitment, shall be computed without giving effect to the Revolving Credit Commitment of the Defaulting Lender.

 

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In the event that the Administrative Agent, the Borrower and each Issuing Bank each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the LC Exposure of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment and on such date such Lender shall purchase at par (plus such amount, if any, that would otherwise be reimbursable by the Borrower pursuant to Section 2.18 as a result of such purchase on such date) such of the Loans of the other Lenders, if any, as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Applicable Percentage, and such Lender shall then cease to be a Defaulting Lender with respect to subsequent periods unless such Lender shall thereafter become a Defaulting Lender. Notwithstanding the fact that any Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, (x) no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender and (y) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.

2.23 Incremental Facilities; Incremental Equivalent Debt. (a) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), request (i) to increase the amount under any then-existing Term Loan Facility or add one or more additional tranches of term loans (such term loans under such additional tranches, the “Other Term Loans” and, together with any additional Term Loans incurred pursuant to this Section 2.23, the “Incremental Term Facilities”; the loans thereunder, the “Incremental Term Loans”) or (ii) to increase the aggregate amount of the Revolving Credit Commitments of any Class, including an increase in the LC Commitment to the extent consented to by each affected Issuing Bank (each such increase, a “Incremental Revolving Increase”; the commitments thereunder, the “Incremental Revolving Commitments”, the Loans thereunder, the “Incremental Revolving Credit Loans” and together with the Incremental Term Loans, the “Incremental Loans”; such increased Facility, the “Incremental Revolving Facility” and together with the Incremental Term Facilities, the “Incremental Facilities”). Notwithstanding anything to the contrary herein, without the consent of the Required Lenders, the aggregate amount of the Incremental Facilities (and all Incremental Equivalent Debt incurred under Section 2.23(e)) shall not exceed, at any time of incurrence thereof, an amount equal to the sum of (x) the Fixed Incremental Amount (any incurrence under this clause (x), a “Fixed Incremental Facility”) plus (y) the Prepayment-Based Incremental Amount (any incurrence under this clause (y), a “Prepayment-Based Incremental Facility”) plus (z) the Ratio-Based Incremental Amount (any incurrence under this clause (z), a “Ratio-Based Incremental Facility”); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to the Prepayment-Based Incremental Facility and the Fixed Incremental Facility shall be available at all times and shall not be subject to the ratio test in the Ratio-Based Incremental Facility. Unless the Borrower elects otherwise, all Incremental Facilities shall be deemed incurred first under the Ratio-Based Incremental Facility, with the balance incurred next under the Prepayment-Based Incremental Facility and then under the Fixed Incremental Facility. Incremental Facilities may be incurred contemporaneously in reliance on the Ratio-Based Incremental Facility and in reliance on the Fixed Incremental Facility, and proceeds from any such incurrence may be utilized in a single transaction, by first calculating the amount available to be incurred in reliance on the Ratio-Based Incremental Facility and disregarding any concurrent utilization of the Fixed Incremental Facility. Any utilization of the Fixed Incremental Facility may be reclassified at any time, as the

 

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Borrower may elect from time to time, as incurred under the Ratio-Based Incremental Facility if the Borrower satisfies, on a Pro Forma Basis, the applicable leverage or coverage ratio at such time. All Incremental Term Loans shall be in an integral multiple of $1.0 million and in an aggregate principal amount that is not less than $20.0 million (or in such lesser minimum amount agreed by the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed)); provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability at such time in respect of the Incremental Facilities.

(b) Any Incremental Term Facility (other than an Incremental Revolving Increase or an Incremental Term Loan that is an increase to the Term Loan Facility) (i) shall rank pari passu in right of payment (or be subordinated if agreed by the Lenders providing such Incremental Term Facility) and of security (or on a junior lien or unsecured basis, to the extent agreed by the Lenders providing such Incremental Term Facility), (ii) shall not be secured by assets other than the Collateral or guaranteed by any Person other than the Loan Parties, (iii) may provide for the ability to participate on a pro rata or less than pro rata basis (but not a greater than pro rata basis) in any mandatory prepayments of Term Loans and (iv) other than amortization, maturity date, conditions precedent and pricing (including interest rate, fees, funding discounts, prepayment premiums and sharing in mandatory prepayments) (as set forth in the relevant Incremental Facility Amendment) and, to the extent permitted pursuant to clause (i) above, ranking of right and payment and/or security, shall have and be issued on the same terms as the Initial Term Loans or such terms that are (x) when taken as a whole, not materially more favorable (as reasonably determined by the Borrower in good faith) to the investors or lenders providing such Incremental Term Facility than the terms and conditions, taken as a whole, applicable to the Initial Term Loans or (y) otherwise reasonably satisfactory to the Administrative Agent (except with respect to covenants (including any financial maintenance covenant added for the benefit of lenders providing such Incremental Term Facility) and other provisions so long as such covenants or other provisions (1) are also added for the benefit of the Lenders of the Initial Term Loans or (2) only become applicable after the Latest Maturity Date of the then outstanding Term Loans at the time of such incurrence of such Other Term Loans); provided that (A) in respect of any Other Term Loans incurred on or prior to the date that is twenty-four (24) months after the Closing Date and which are secured on a pari passu basis with the Initial Term Loans, if the effective yield (which, for such purpose only, shall be deemed to take account of interest rate margin and any then applicable benchmark floors (provided, that such differential between interest rate floors shall be equated to the applicable effective yield only to the extent an increase in the interest rate floor under the Initial Term Loans would cause an increase in the interest rate then in effect thereunder) and including any amendment to the applicable interest rate margin on the Initial Term Loans that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Facilities, recurring fees and all upfront or similar fees or original issue discount (amortized over four years) payable to all Lenders providing such Other Term Loans (but excluding any bona fide arrangement, underwriting, structuring, syndication or other fees payable in connection therewith that are not shared with all Lenders (in their capacity as such) providing such Other Term Loans)) on such Other Term Loans determined as of the initial funding date for such Other Term Loans exceeds the effective yield (determined on same basis as the preceding parenthetical) on the Initial Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Margin relating to the Initial Term Loans shall be adjusted and/or the Borrower will

 

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pay additional fees to Lenders holding Initial Term Loans in order that such effective yield on such Other Term Loans shall not exceed such effective yield on the Initial Term Loans by more than 0.50% (provided, that to the extent such adjustment is required due to the application of a higher interest rate benchmark floor on such Other Term Loans, such adjustment shall be effected (to such extent) solely through an increase in the interest rate benchmark floor of the Initial Term Loans (or if no interest rate benchmark floor applies to the Initial Term Loans at such time, an interest rate benchmark floor shall be added)), (B) any Incremental Term Facility shall not have a final maturity date earlier than the Maturity Date of the Initial Term Loans and (C) any Incremental Term Facility shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the Initial Term Loans (determined, solely for the purposes of this clause (C), without giving effect to prepayments that reduced amortization of the then remaining Term Loans) (in each case, other than Permitted Early Maturity Indebtedness).

(c) Any Incremental Revolving Increase shall be on terms identical to the Revolving Credit Commitments under the Revolving Credit Facility proposed to be increased thereby and, for the avoidance of doubt, such Incremental Revolving Increase shall be deemed a Revolving Credit Commitment of the applicable Revolving Credit Facility pursuant to the applicable Incremental Facility Amendment (it being understood that an Incremental Facility establishing an Incremental Revolving Increase will not create a separate Revolving Credit Facility and such Incremental revolving Increase shall be deemed a part of the applicable Revolving Credit Facility); provided that the Applicable Margin or the Revolving Commitment Fee Rate, in each case applicable to the Revolving Credit Commitments and Revolving Credit Loans of such Revolving Credit Facility, may be increased, without the consent of any Lender, in connection with the incurrence of any Incremental Revolving Increase such that the Applicable Margin or the Revolving Commitment Fee Rate, as applicable, of such Revolving Credit Commitments are identical to those of the Incremental Revolving Increase, but additional upfront or similar fees may be payable to the lenders participating in the Incremental Revolving Increase without any requirement to pay such amounts to any existing Revolving Credit Lenders. Any Incremental Term Loan that is an increase to the Term Loan Facility shall be on terms identical to such Term Loan Facility proposed to be increased thereby and, for the avoidance of doubt, such Incremental Term Loan shall be deemed a Term Loan of the applicable Term Loan Facility pursuant to the applicable Incremental Facility Amendment (it being understood that an Incremental Facility establishing such Incremental Term will not create a separate Term Loan Facility and such Incremental Term Loan shall be deemed a part of the applicable Term Loan Facility); provided that the Applicable Margin applicable to the applicable Term Loan Facility may be increased, without the consent of any Lender, in connection with the incurrence of any such Incremental Term Facility, as applicable such that the Applicable Margin of such Term Loan Facility are identical to those of such Incremental Term Loans, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Term Loans, without any requirement to pay such amounts to any existing Term Loan Lenders

(d) Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Incremental Facilities (including whether they will rank pari passu with, or junior in right of payment to, and pari passu with, or junior in priority of security to, the Obligations in respect of the other outstanding Facilities, or will be unsecured). Incremental Facilities may be provided by any existing Lender or any Additional Lender (provided that each Lender shall be entitled to agree or decline to participate

 

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in its sole discretion). Any Additional Lenders that elect to extend an Incremental Facility, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Facility Amendment; provided that such Additional Lender shall be subject to the consent of the Administrative Agent and each Issuing Bank to the extent that such consent would otherwise be required in connection with an assignment to such Person under Section 9.4. Each Incremental Facility shall become effective pursuant to an amendment (each, an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender or Additional Lenders and the Administrative Agent. No Incremental Facility Amendment shall require the consent of any Lenders or any other Person other than the Borrower, the Administrative Agent and the Additional Lenders with respect to such Incremental Facility Amendment. The Lenders hereby irrevocably authorize the Administrative Agent to enter into Incremental Facility Amendments and, as appropriate, amendments to the other Loan Documents as may be necessary in order to establish new tranches or sub-tranches in respect of the existing Term Loans and such technical amendments as may be necessary or appropriate in the opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.23 (including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b) and including, for the avoidance of doubt, to provide for and reflect junior ranking in right of payment and/or junior priority in respect of Liens on Collateral, or the unsecured nature of such Incremental Facility, as applicable and as permitted pursuant to this Section 2.23). No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. Commitments in respect of any Incremental Term Loans shall become Commitments under this Agreement. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders party thereto, be subject to (i) the payment in full of all fees and expenses owing to the Administrative Agent and the Lenders in respect of such Incremental Facility, to the extent invoiced prior to such date, and (ii) subject to Section 1.5(b), the satisfaction or waiver on the date thereof (each, an “Incremental Facility Closing Date”) of (x) compliance with the Financial Covenant on a Pro Forma Basis on the Incremental Facility Closing Date (provided that, in connection with any Incremental Facility incurred in connection with a Limited Condition Transaction and to the extent the Lenders and other investors participating in such Incremental Facility agree, such compliance shall only be required as of the time of the execution of the acquisition or other agreement related to such Limited Condition Transaction), (y) the representations and warranties made by any Loan Party in or pursuant to the Loan Documents being true and correct in all material respects on and as of Incremental Facility Closing Date as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (provided that in each case such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified by materiality or “Material Adverse Effect”; provided, further, that, in connection with any Incremental Facility incurred in connection with a Limited Condition Transaction, the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be (a) the Specified Representations and (b) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower (or any Subsidiary of the

 

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Borrower) has the right to terminate the obligations of the Borrower or such Subsidiary under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and (z) no Event of Default (or, in the case of any Incremental Facility incurred in connection with a Limited Condition Transaction, and to the extent agreed to by the lenders and other investors providing such Incremental Facilities, no Event of Default as of the time of the execution of the acquisition or other agreement related to such Limited Condition Transaction, and no Specified Event of Default on the Incremental Facility Closing Date) having occurred and being continuing on the Incremental Facility Closing Date or after giving effect to the Incremental Facility requested to be made on such date. To the extent reasonably requested by the Administrative Agent, the effectiveness of an Incremental Facility Amendment may be conditioned on the Administrative Agent’s receipt of customary legal opinions with respect thereto, board resolutions and officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.1, with respect to the Borrower and the Restricted Subsidiaries. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3 required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans. Upon each Incremental Revolving Increase pursuant to this Section 2.23, each Revolving Credit Lender under such Revolving Credit Facility immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment (each an “Incremental Revolving Lender”) in respect of such increase, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit under the applicable Revolving Credit Facility such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender in such Revolving Credit Facility (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders in such Revolving Credit Facility represented by such Revolving Credit Lender’s Revolving Credit Commitment thereunder. Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all actions as may be reasonably necessary to ensure that, after giving effect to any Incremental Revolving Increase, the outstanding Revolving Credit Loans are held by the Revolving Credit Lenders in accordance with their respective Applicable Percentages in respect of the applicable Revolving Credit Facility. The foregoing may be accomplished at the discretion of the Administrative Agent, following consultation with the Borrower, (A) by requiring the outstanding Revolving Credit Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (B) by causing non-increasing Revolving Credit Lenders to assign portions of their outstanding Revolving Credit Loans to new or increasing Revolving Credit Lenders, (C) by a combination of the foregoing or (D) by any other means agreed to by the Administrative Agent and the Borrower, and any such prepayment or assignment shall be without premium or penalty. The Administrative Agents and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to any of the transactions effected pursuant to the immediately preceding sentence.

 

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(e) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, subject to providing notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such notice to each of the Lenders), issue one or more series of Incremental Equivalent Debt in an aggregate principal amount not to exceed, as of the date of and after giving effect to the issuance of any such Incremental Equivalent Debt, the aggregate amount of Incremental Facilities then permitted to be incurred under Section 2.23(a). As conditions precedent to the issuance of any Incremental Equivalent Debt pursuant to this Section 2.23, (i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the date of issuance of the Incremental Equivalent Debt signed by a Responsible Officer of the Borrower, certifying and attaching the resolutions adopted by the Borrower approving or consenting to the execution and delivery of the applicable financing documentation in respect of such Incremental Equivalent Debt and the issuance of such Incremental Equivalent Debt, and certifying that the conditions precedent set forth in the following subclauses (ii) through (vi) have been satisfied, (ii) such Incremental Equivalent Debt shall rank pari passu or junior in right of payment, be secured or unsecured and shall not have guarantees from any Subsidiary that is not also a Guarantor and if secured, (x) shall be secured on an equal and ratable basis with the Obligations or on a junior lien basis, (y) shall not be secured by any assets not constituting Collateral and (z) shall be subject to an Intercreditor Agreement, (iii) such Incremental Equivalent Debt shall have a final maturity no earlier than the maturity date of the Initial Term Loans, (iv) the Weighted Average Life to Maturity of such Incremental Equivalent Debt shall not (A) be shorter than the Weighted Average Life to Maturity of any Initial Term Loans (determined, solely, for the purposes of this clause (A), without giving effect to prepayments that reduced amortization of such then remaining Term Loans) or (B) be subject to any mandatory redemption or prepayment provisions or rights (except customary asset sale or change of control provisions or in the case of Incremental Equivalent Debt secured by Collateral to the extent required to be applied pro rata to the Term Loans and any other First Lien Obligations), (v) such Incremental Equivalent Debt may provide for the ability to participate on a pro rata or less than pro rata basis (but not a greater than pro rata basis) in any mandatory prepayments of Term Loans; and (vi) all fees and expenses owing to the Administrative Agent and the Lenders or other financial institutions in respect of such Incremental Equivalent Debt, to the extent invoiced prior to such date, shall have been paid in full; provided that Incremental Equivalent Debt that is Permitted Early Maturity Indebtedness shall not be subject to the requirements described in clauses (iii) and (iv) above. Additionally, Incremental Equivalent Debt constituting term loans incurred on or prior to the date that is twenty-four (24) months after the Closing Date and secured on a pari passu basis with the Initial Term Loans shall be subject to the provisions of clause (A) of the proviso to Section 2.23(b) above.

2.24 Replacement Facilities. (a) At any time and from time to time, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to replace all or a portion of the Term Loans under any Facility or replace all or a portion of the Revolving Credit Facility or the Indebtedness under the Senior Secured Notes or any other Indebtedness that constitutes First Lien Obligations with (x) one or more additional tranches of term loans under this Agreement (the “Replacement Term Loans”), (y) a new revolving credit facility under this Agreement (the “Replacement Revolving Credit Facility”; together with the Replacement Term Loans, each a “Replacement Facility” and together the “Replacement Facilities”) or (z) one or more additional series of senior unsecured notes or loans or senior secured notes or loans (the “Replacement Notes”), which in each case may be equal or junior to

 

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the Obligations in right of payment and may be secured by the Collateral on a pari passu basis with the Obligations or secured by Collateral on a junior basis to the Obligations, or be unsecured. Each Replacement Facility shall be in an integral multiple of $1.0 million and be in an aggregate principal amount that is not less than $20.0 million (or such lesser minimum amount approved by the Administrative Agent, such approval not to be unreasonably withheld, conditioned or delayed) and shall not exceed the principal amount of the Term Loans, Revolving Credit Facility, Senior Secured Notes or other obligations being replaced (plus the amount of accrued interest and any premium on the Indebtedness being replaced, any swap breakage costs and other termination costs related to Hedge Agreements, any other fees and expenses actually incurred in connection with such termination, and any fees, expenses and original issue discount incurred in connection with such Replacement Facility). The Net Proceeds of any Replacement Facility shall be applied only to prepay the Term Loans of the Class of Term Loans, Revolving Credit Facility, Senior Secured Notes or other Indebtedness that that such Replacement Facility is replacing.

(b) Any Replacement Term Loans and/or Replacement Notes (i) shall rank pari passu or junior in right of payment and security (or be unsecured) with the Obligations in respect of the Revolving Credit Commitments and the other Term Loans pursuant to the relevant Replacement Facility Amendment (which shall be reasonably satisfactory to the Administrative Agent) or the documentation governing such Replacement Notes and (ii) shall have covenants and events of default (as set forth in the relevant Replacement Facility Amendment or the documentation governing such Replacement Notes) the same terms as (or, to the extent set forth in the relevant Replacement Facility Amendment or documentation governing such Replacement Notes, terms, when taken as a whole, not materially more restrictive (as determined by the Borrower in good faith) to the Borrower than the terms applicable to) the Term Loan Facility or the Revolving Credit Facility (except with respect to covenants (including any financial maintenance covenant added for the benefit of lenders providing such Replacement Term Loans) and events of default so long as such covenants or events of default (1) are also added for the benefit of all then outstanding Term Loan Facility and Revolving Credit Facility or (2) become applicable only to periods after the Latest Maturity Date of the then outstanding Term Loans and Revolving Credit Loans at the time of such incurrence of such Replacement Term Loans ); provided that Replacement Notes shall not contain prepayment provisions (other than related to customary asset sale and change of control offers) that could result in prepayments of such Replacement Notes prior to the Term Loans or other obligations being refinanced or repaid; provided, further, that (A) any Replacement Term Loans and/or Replacement Notes shall not have a final maturity date earlier than the final scheduled maturity date of the Term Loans and/or Senior Secured Notes being replaced, (B) except for any Permitted Early Maturity Indebtedness, any Replacement Term Loans and/or Replacement Notes shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then remaining Term Loans under the applicable Class (determined, solely, for purposes of this clause (B), without giving effect to prepayments that reduced amortization for the then remaining Term Loans under the applicable Class) or the then remaining Senior Secured Notes, (C) principal of and interest on any Term Loans being replaced with Replacement Term Loans and/or Replacement Notes shall be paid in full on the Replacement Facility Closing Date for the applicable Replacement Term Loans and/or Replacement Notes and (D) the Term Loans of each Lender under the replaced Class shall be prepaid ratably. The principal of and interest on any outstanding Revolving Credit Loans under any replaced Revolving Credit Facility, together with

 

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all fees owed by the Borrower under such Revolving Credit Facility, shall be paid in full and all outstanding Letters of Credit will be replaced, cash collateralized or continued on terms reasonably satisfactory to the Lenders under such Revolving Credit Facility, in each case on the Replacement Facility Closing Date for such Facility. Any Replacement Revolving Credit Facility (x) shall not have a final maturity date earlier than the final scheduled maturity date of the replaced Revolving Credit Facility and (y) shall be on the same terms and pursuant to the documentation applicable to the Revolving Credit Commitments under such replaced Revolving Credit Facility (other than maturity date, conditions precedent and pricing (including interest rate, fees, funding discounts and prepayment premiums)) or on such other terms that are, when taken as a whole, not materially more restrictive (as determined in good faith by the Borrower) to the Borrower than the terms and conditions, taken as a whole, applicable to the Revolving Credit Facility being replaced (except with respect to covenants (including any financial maintenance covenant added for the benefit of lenders providing such Replacement Revolving Credit Facility) and other provisions so long as such covenants or other provisions (1) are also added for the benefit of all of the then outstanding Revolving Credit Loans or (2) only become applicable after the Latest Maturity Date of the then outstanding Revolving Credit Loans at the time of such incurrence of such Replacement Revolving Credit Facility), in each case as set forth in the relevant Revolving Credit Facility Amendment. The obligations under any Replacement Facility shall not be guaranteed by any Person other than a Guarantor, and, if secured, the obligations under any Replacement Facility shall not be secured by a Lien on any Property other than Property that constitutes Collateral. In addition, the terms and conditions applicable to any Replacement Facility may provide for additional or different covenants or other provisions that are agreed between the Borrower and the Lenders under such Replacement Facility and applicable only during periods after the then Latest Maturity Date that is in effect on the date such Replacement Facility is issued, incurred or obtained or the date on which all non-refinanced Obligations (excluding Designated Hedging Obligations, Designated L/C Facilities Obligations, Cash Management Obligations and contingent reimbursement and indemnification obligations, in each case, which are not then due and payable) are paid in full. Any Replacement Term Loans and/or Replacement Notes that are junior in right of payment or security to any other Class of Term Loans will be subject to an Intercreditor Agreement.

(c) Each notice from the Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Replacement Term Loans, Replacement Revolving Credit Facility and/or Replacement Notes, including whether the proposed Replacement Term Loans and/or Replacement Notes will be pari passu with or junior to any existing Term Loans in right of payment or security (or unsecured). Any Additional Lender that elects to extend Replacement Term Loans or commitments under a Replacement Revolving Credit Facility shall be reasonably satisfactory to the Borrower and (unless such Additional Lender is already a Lender or an Affiliate of a Lender) the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), and, if not already a Lender, shall become a Lender under this Agreement pursuant to a Replacement Facility Amendment. Each Replacement Facility shall become effective pursuant to an amendment (each, a “Replacement Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender or Additional Lenders and the Administrative Agent. No Replacement Facility Amendment shall require the consent of any Lenders or any other Person other than the Borrower, the Administrative Agent and the Additional Lenders with respect to such Replacement Facility Amendment. The Lenders hereby irrevocably authorize the

 

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Administrative Agent to enter into the Replacement Facility Amendment and, as appropriate, amendments to the other Loan Documents and intercreditor arrangements as may be necessary or appropriate in order to establish new tranches or sub-tranches in respect of Revolving Credit Commitments or Term Loans so replaced and such other amendments as may be necessary or appropriate in the opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.24 (including to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b)). No Lender shall be obligated to provide any Replacement Term Loans or commitments for any Replacement Revolving Credit Facility unless it so agrees. Commitments in respect of any Replacement Term Loans or Replacement Revolving Credit Facility shall become Commitments under this Agreement. The effectiveness of any Replacement Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders party thereto, be subject to the satisfaction or waiver on the date thereof (each, a “Replacement Facility Closing Date”) of (x) the representations and warranties made by any Loan Party in or pursuant to the Loan Documents being true and correct in all material respects on and as of Replacement Facility Closing Date as if made on and as of such date, except for representations and warranties expressly stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date (provided that in each case such materiality qualifier shall not be applicable to any representations or warranties that already are qualified or modified by materiality or “Material Adverse Effect”) and (y) no Specified Event of Default having occurred and being continuing on the Replacement Facility Closing Date or after giving effect to the Replacement Facility requested to be made on such date. The proceeds of any Replacement Term Loans or any Replacement Revolving Credit Facility will be used solely to repay the replaced Facility (or replaced portion thereof). To the extent reasonably requested by the Administrative Agent, the effectiveness of a Replacement Facility Amendment may be conditioned on the Administrative Agent’s receipt of customary legal opinions with respect thereto, board resolutions and officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.1, with respect to the Borrower and the Restricted Subsidiaries. No Replacement Revolving Credit Facility may be implemented unless such Facility has provisions reasonably satisfactory to the Administrative Agent and each Issuing Bank with respect to Letters of Credit then outstanding under the Revolving Credit Facility being replaced. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to any of the transactions effected pursuant to this Section 2.24.

(d) Notwithstanding anything to the contrary above, at any time and from time to time following the establishment of a Class of Replacement Term Loans or Commitments under a Replacement Revolving Credit Facility (“Replacement Revolving Credit Commitments”), the Borrower may offer any Lender of a Term Loan Facility or then existing Revolving Credit Facility that has previously been subject to a Replacement Facility Amendment (without being required to make the same offer to any or all other Lenders) who had not elected to participate in such Replacement Facility Amendment on the applicable Replacement Facility Closing Date the right to convert all or any portion of its Term Loans or Revolving Credit Commitments into such Class of Replacement Term Loans or Replacement Revolving Credit Commitments; provided that (i) such offer and any related acceptance shall be in accordance with such procedures, if any, as may be reasonably requested by, or acceptable to, the Administrative Agent; (ii) such additional Replacement Term Loans and additional Replacement

 

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Revolving Credit Commitments (x) shall be on identical terms (including as to the proposed interest rates and fees payable, but excluding any arrangement, structuring or other fees payable in connection therewith that are not generally shared with the relevant Lenders) with the existing Replacement Term Loans or Replacement Revolving Credit Commitments, as applicable, and (y) with respect to any additional Replacement Term Loans, shall result in proportionate increases to the scheduled amortization payments otherwise owing with respect to any such Replacement Term Loans, (iii) any Lender which elects to participate in a Replacement Facility pursuant to this clause (d) shall enter into a joinder agreement to the respective Replacement Facility Amendment, in form and substance reasonably satisfactory to the Administrative Agent and executed by such Lender, the Administrative Agent and the Borrower and (iv) any such additional Replacement Term Loans and additional Replacement Revolving Credit Commitments shall be in an aggregate principal amount that is not less than $1.0 million (or, in the case of an outstanding Class with an entire outstanding principal amount of existing Term Loans or existing Revolving Credit Commitments less than a $1.0 million that is to be refinanced in full, such outstanding principal amount or commitments), unless each of the Borrower and the Administrative Agent otherwise consents. Notwithstanding anything to the contrary contained herein, any Loans made as provided above shall be treated as part of the Class to which such Loans are added, and shall not constitute a new Class of Replacement Term Loans or a new tranche of Replacement Revolving Credit Commitments.

2.25 Extensions of Term Loans and Revolving Commitments.

(a) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders of Term Loans with a like maturity date or Revolving Credit Commitments with a like maturity date, in each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Term Loans or Revolving Credit Commitments with a like maturity date, as the case may be) and on the same terms to each such Lender, the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date of each such Lender’s Term Loans and/or Revolving Credit Commitments and otherwise modify the terms of such Term Loans and/or Revolving Credit Commitments pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate or fees payable in respect of such Term Loans and/or Revolving Credit Commitments (and related outstandings) and/or modifying the amortization schedule in respect of such Term Loans) (each, an “Extension”, and each group of Term Loans or Revolving Credit Commitments, as applicable, in each case as so extended, as well as the original Term Loans and the original Revolving Credit Commitments (in each case not so extended), being a “tranche”; any Extended Term Loans shall constitute a separate tranche of Term Loans from the tranche of Term Loans from which they were extended, and any Extended Revolving Credit Commitments shall constitute a separate tranche of Revolving Credit Commitments from the tranche of Revolving Credit Commitments from which they were extended), so long as the following terms are satisfied: (i) except as to pricing (including interest rates, fees, funding discounts and prepayment premiums) and maturity (which shall be set forth in the relevant Extension Offer), the Revolving Credit Commitment of any Revolving Credit Lender that agrees to an Extension with respect to such Revolving Credit Commitment (an “Extending Revolving Credit Lender”) extended pursuant to an Extension (an “Extended Revolving Credit Commitment”, and the related outstandings, “Extended Revolving Credit

 

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Loans”), shall be a Revolving Credit Commitment (or Revolving Credit Loan, as the case may be) with the same terms as the original Revolving Credit Commitments (and Revolving Credit Loan); provided that (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Extended Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Maturity Date of the non-extending Revolving Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments) of Loans with respect to Extended Revolving Credit Commitments after the applicable Extension date shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Extended Revolving Credit Commitments after the applicable Extension date shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class and (3) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the same assignment and participation provisions applicable to Revolving Credit Commitments and Revolving Credit Loans, (ii) (1) except as to pricing (including interest rates, fees, funding discounts and prepayment premiums), amortization, maturity, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding clauses (ii)(2), (ii)(3) and (iii), be set forth in the relevant Extension Offer), the Term Loans of any Term Loan Lender that agrees to an Extension with respect to such Term Loans (an “Extending Term Lender”) extended pursuant to any Extension (“Extended Term Loans”) shall have the same terms, or on terms that are, when taken as a whole, not materially more restrictive (as reasonably determined by Borrower in good faith) to the Borrower than the terms and conditions, taken as a whole, applicable to, the tranche of Term Loans subject to such Extension Offer (except with respect to covenants (including any financial maintenance covenant added for the benefit of Extending Term Lenders) and other provisions so long as such covenants or other provisions (x) are also added for the benefit of all then outstanding Term Loans or (y) only become applicable after the Latest Maturity Date of the then outstanding Term Loans at the time of such incurrence of such Extended Term Loans), (2) the Weighted Average Life to Maturity of any Extended Term Loans shall be no less than the remaining Weighted Average Life to Maturity of the Class extended thereby and (3) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any voluntary or mandatory repayments or prepayments of Term Loans hereunder, in each case as specified in the respective Extension Offer (provided that if the applicable Extending Term Lenders have the ability to decline mandatory prepayments, any such mandatory prepayment that is not accepted by the applicable Extending Term Lenders shall be applied, subject to the right of any applicable Lender to decline mandatory prepayments (if any), to the non-extended Term Loans of the Class being extended), (iii) if the aggregate principal amount of Term Loans (calculated on the face amount thereof) or Revolving Credit Commitments, as the case may be, in respect of which Term Loan Lenders or Revolving Credit Lenders, as the case may be, shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term Loans or Revolving Credit Commitments, as the case may be, offered to be extended by the Borrower pursuant to such Extension Offer, then the Term Loans or Revolving Credit Loans, as the case may be, of such Term Loan Lenders or Revolving Credit Lenders, as the case may be, shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual

 

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holdings of record) with respect to which such Term Loan Lenders or Revolving Credit Lenders, as the case may be, have accepted such Extension Offer (but, no an aggregate basis, not to exceed the maximum amount of such Extension Offer) as agreed between the agent(s) with respect to such Extension Offer and the Borrower and (iv) all documentation in respect of such Extension shall be consistent with the foregoing.

(b) With respect to all Extensions consummated by the Borrower pursuant to this Section 2.25, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments for purposes of this Agreement and (ii) each Extension Offer shall specify the minimum amount of Term Loans or Revolving Credit Commitments to be tendered. The transactions contemplated by this Section 2.25 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans and/or Extended Revolving Credit Commitments on such terms as may be set forth in the relevant Extension Offer) shall not require the consent of any Lender or any other Person (other than as set forth in clause (c) below), and the requirements of any provision of this Agreement (including Sections 2.12 and 2.20) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.25 shall not apply to any of the transactions effected pursuant to this Section 2.25.

(c) No consent of any Lender or any other Person shall be required to effectuate any Extension, other than (A) the consent of the Borrower and each Lender agreeing to such Extension with respect to one or more of its Term Loans and/or Revolving Credit Commitments (or a portion thereof) and (B) with respect to any Extension of the Revolving Credit Commitments that includes an extension of the LC Sublimit, the consent of each Issuing Bank, which consent shall not be unreasonably withheld, conditioned or delayed. All Extended Term Loans, Extended Revolving Credit Commitments and all obligations in respect thereof shall be Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents (an “Extension Amendment”) with the Borrower as may be necessary in order to establish new tranches or sub-tranches in respect of Revolving Credit Commitments or Term Loans so extended and such technical amendments as may be necessary or appropriate in the opinion of the Administrative Agent and the Borrower to effect the provisions of this Section 2.25 (including in connection with the establishment of such new tranches or sub-tranches or to provide for class voting provisions applicable to the Additional Lenders on terms comparable to the provisions of Section 9.2(b)) in each case on terms consistent with this Section 2.25. In addition, if so provided in such amendment and with the consent of the applicable Issuing Banks, participations in Letters of Credit expiring on or after the Revolving Credit Maturity Date shall be re-allocated from Lenders holding Revolving Credit Commitments to Lenders holding Extended Revolving Credit Commitments in accordance with the terms of such amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Extended Revolving Credit Commitments, be deemed to be participation interests in respect of such Extended Revolving Credit Commitments and the terms of such participation interests (including the commission applicable thereto) shall be adjusted accordingly.

 

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(d) In connection with any Extension, the Borrower shall provide the Administrative Agent at least five Business Days (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.25.

(e) Notwithstanding anything to the contrary above, at any time and from time to time following the establishment of a Class of Extended Term Loans or Extended Revolving Credit Commitments, the Borrower may offer any Lender of a Term Loan Facility or Revolving Credit Facility that had been subject to an Extension Amendment (without being required to make the same offer to any or all other Lenders) who had not elected to participate in such Extension Amendment the right to convert all or any portion of its Term Loans or Revolving Credit Commitments into such Class of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, provided that (i) such offer and any related acceptance shall be in accordance with such procedures, if any, as may be reasonably requested by, or acceptable to, the Administrative Agent; (ii) such additional Extended Term Loans and additional Extended Revolving Credit Commitments, (x) shall be on identical terms (including as to the proposed interest rates and fees payable, but excluding any arrangement, structuring or other fees payable in connection therewith that are not generally shared with the relevant Lenders) with the existing Extended Term Loans and Extended Revolving Credit Commitments, as applicable, and (y) with respect to any additional Extended Term Loans shall result in proportionate increases to the scheduled amortization payments otherwise owing with respect to any such Extended Term Loans, (iii) any Lender which elects to participate in an Extension Facility pursuant to this clause (e) shall enter into a joinder agreement to the respective Extension Amendment, in form and substance reasonably satisfactory to the Administrative Agent and executed by such Lender, the Administrative Agent and the Borrower and (iv) any such additional Extended Term Loans and additional Extended Revolving Credit Commitments shall be in an aggregate principal amount that is not less than $1.0 million (or, in the case of an outstanding Class with an entire outstanding principal amount of existing Term Loans or existing Revolving Credit Commitments less than a $1.0 million that is to be refinanced in full, such outstanding principal amount or commitments), unless the Borrower and the Administrative Agent otherwise consents. Notwithstanding anything to the contrary contained herein, any Loans made as provided above shall be treated as part of the Class to which such Loans are added, and shall not constitute a new Class of Extended Term Loans or new Extended Revolving Credit Commitments.

2.26 Illegality. If any Lender determines that any 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 Loans whose interest is determined by reference to the LIBO Rate, or to determine or charge interest rates based upon the LIBO 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, upon notice thereof by such Lender to the Borrower (through the Administrative Agent), (a) any obligation of such Lender to make or continue Eurodollar Loans or to convert ABR Loans to Eurodollar Loans shall be suspended, and (b) if such notice asserts the illegality of such Lender making or maintaining ABR Loans the interest rate on which is determined by reference to the LIBO Rate

 

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component of Alternate Base Rate, the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the LIBO Rate component of the Alternate Base Rate, in each case 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, (i) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Loans of such Lender to ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the LIBO Rate component of the Alternate Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Loans and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the LIBO Rate, the Administrative Agent shall during the period of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the LIBO Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the LIBO Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.17.

SECTION 3. REPRESENTATIONS AND WARRANTIES

To induce the Administrative Agent and the Lenders to enter into this Agreement and to make the Loans, the Borrower hereby represents and warrants to the Administrative Agent and each Lender that:

3.1 Financial Condition.

(a) The unaudited pro forma consolidated balance sheet of Parent and its Subsidiaries as at December 31, 2019 and the related pro forma consolidated statement of income of Parent and its Subsidiaries for the 12-month period ended December 31, 2019 have been prepared in good faith, based on assumptions believed by Parent to be reasonable as of the date of delivery thereof, and fairly present in all material respects on a pro forma basis the estimated pro forma financial position of Parent and its Subsidiaries as at December 31, 2019, assuming that the consummation of the Transactions had actually occurred at such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income).

(b) The audited consolidated balance sheets as at December 31, 2017, December 31, 2018 and December 31, 2019 and the related consolidated statements of comprehensive income (loss), stockholders’ equity and cash flows for Parent for the fiscal years ended on December 31, 2017, December 31, 2018, and December 31, 2019, in each case reported on by and accompanied by unqualified reports from PricewaterhouseCoopers LLP, present fairly in all material respects the consolidated financial condition of Parent as of such date, and the consolidated results of its operations and its consolidated cash flows for the fiscal year then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein).

 

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(c) The unaudited consolidated balance sheets as at December 31, 2019 and the related consolidated statements of comprehensive income (loss), stockholders’ equity and cash flows for Sprint for the fiscal quarter then ended, present fairly in all material respects the consolidated financial condition of Sprint as of such date, and the consolidated results of its operations and its consolidated cash flows for the fiscal year then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (subject to normal year end audit adjustments and the absence of footnotes) unless otherwise disclosed therein.

(d) The audited consolidated balance sheets as at March 31, 2017, March 31, 2018 and March 31, 2019 and the related consolidated statements of operations, comprehensive income (loss), stockholders’ equity and cash flows for Sprint for the fiscal year ended on March 31, 2017, March 31, 2018 and March 31, 2019, in each case reported on by and accompanied by unqualified reports from Deloitte & Touche LLP, present fairly in all material respects the consolidated financial condition of Sprint as of such date, and the consolidated results of its operations and its consolidated cash flows for the fiscal year then ended.    All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein).

3.2 No Change. Since December 31, 2019, there has been no development or event, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse Effect.

3.3 Corporate Existence; Compliance with Law. Each of Parent and each Group Member (a) is duly organized or, as the case may be, incorporated, validly existing and in good standing under the laws of the jurisdiction of its organization or incorporation (to the extent such concepts exist in such jurisdiction), (b) has all requisite organizational power and authority, and has all material governmental licenses, authorizations, consents and approvals necessary, to own its assets and to carry on its business as now conducted, (c) to the extent applicable in the relevant jurisdiction, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, and (d) in the case of each Group Member is, except as set forth on Schedule 3.3, in compliance with all Governmental Requirements applicable to it or its Property, except, in the case of the foregoing clauses (a) (except as it relates to the due organization and valid existence of Parent and the Borrower), (b), (c) and (d), as would not, in the aggregate, have or reasonably be expected to have a Material Adverse Effect.

3.4 Power; Authorization; Enforceable Obligations. The execution and delivery of this Agreement and the other Loan Documents are within the corporate, limited liability company or partnership (as applicable) powers of each of the Loan Parties party thereto, and have been duly authorized by all necessary corporate, limited liability company or partnership (as applicable) and, if required, stockholder, member or partner (as applicable) action (including, any action required to be taken by any class of directors of the Borrower, whether interested or disinterested, in order to ensure the due authorization of this Agreement) on the part of such

 

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Loan Parties. Each Loan Document has been duly executed and delivered by each applicable Loan Party and constitutes a legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. The execution and delivery of this Agreement and the other Loan Documents dated as of even date herewith does not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority or any other third Person (including shareholders, or any class of directors, whether interested or disinterested, of the Borrower or any other person), nor is any such consent, approval, registration, filing or other action necessary for the validity or enforceability of any such Loan Document, except (i) such as have been obtained or made and are in full force and effect, (ii) those consents, approvals, registrations and filings listed on Schedule 3.4, (iii) the filings referred to in Section 3.19, (iv) filings necessary to create or perfect Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties, (v) consents and approvals from Governmental Authorities required to be obtained in the ordinary course of business, (vi) such consents, approvals, registrations, filings or other actions, other than those specified in clause (vii) below, the absence of which or failure to obtain, would not reasonably be expected to have a Material Adverse Effect, and (vii) to the extent that the exercise of certain of the rights, powers, privileges and remedies of the Administrative Agent or the Lenders may constitute a de jure or de facto voluntary or involuntary assignment of an FCC License or a voluntary or involuntary transfer of de jure or de facto control of the holder of any such FCC License, the FCC’s prior consent thereto.

3.5 No Legal Bar. The execution, delivery and performance by each Loan Party of this Agreement and the other Loan Documents to which such Person is a party, the issuance of Letters of Credit, the borrowings and guarantees hereunder and the use of the proceeds thereof (a) will not violate any applicable law, regulation or any order of any Governmental Authority (except for any violation of any applicable law, regulation or order of any Governmental Authority that would not reasonably be expected to have a Material Adverse Effect), (b) will not violate the charter, bylaws or other organizational documents of Parent or any other Loan Party, (c) will not violate or result in a default under any Material Contractual Obligation binding upon Parent or any Group Member or its Properties, or give rise to a right thereunder to require any payment to be made by Parent or such Group Member (except for any of the foregoing that would not reasonably be expected to have a Material Adverse Effect) and (d) will not result in the creation or imposition of any Lien on any Property of Parent or any Group Member (other than Permitted Liens).

3.6 Litigation. Except as disclosed to the Administrative Agent in writing (including by electronic mail) prior to the Closing Date, there are no actions, suits, investigations or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened in writing against Parent or any Group Member that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (after giving effect to applicable insurance).

3.7 No Default. No Default or Event of Default has occurred and is continuing.

 

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3.8 Ownership of Property; Liens. Except as disclosed on Schedule 3.8, each Group Member has good title to, or a valid leasehold interest in, or easements or other limited property interests in, all real property and other Property material to the conduct of its business except where the failure to have such title or interests would not reasonably be expected to have a Material Adverse Effect.

3.9 Intellectual Property. Except as disclosed in Schedule 3.9, each Group Member owns, or is licensed to use, all trademarks, trade names, copyrights, patents and other Intellectual Property necessary to its business, and, to the extent the Group Member holds title to such Intellectual Property, the use thereof by such Group Member, and the operation of its business by such Group Member, does not infringe upon the rights of any other Person, except for any such failure to own, be licensed or infringements that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

3.10 Taxes. Each Group Member has timely filed or caused to be filed all Tax returns and reports required to have been filed by it and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which adequate reserves have been set aside in accordance with GAAP or (b) to the extent that the failure to file such Tax returns or pay such Taxes would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. The charges, accruals and reserves on the books of the Group Members in respect of Taxes are adequate (in accordance with GAAP) in all material respects. No Tax Lien has been filed that is material and does not constitute a Permitted Lien, and, to the knowledge of the Borrower, no claim is being asserted in writing with respect to any material Tax of any Group Member (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and for which adequate reserves have been set aside in accordance with GAAP).

3.11 Federal Regulations. No part of the proceeds of any Loan will be used for any purpose which violates the provisions of Regulations T, U or X of the Board.

3.12 Labor Matters. Except as, in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against any Group Member pending; (b) hours worked by and payment made to employees of any Group Member have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters; and (c) all payments due from any Group Member on account of employee health and welfare insurance have been paid or accrued as a liability on the books of such Group Member.

3.13 ERISA.

(a) Except as would not reasonably be expected to result in a Material Adverse Effect, the Group Members and each ERISA Affiliate have complied in all respects with ERISA and, where applicable, the Code regarding each Plan.

(b) Except as would not reasonably be expected to result in a Material Adverse Effect, each Plan is, and has been, maintained in compliance with ERISA and, where applicable, the Code.

 

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(c) Except as would not reasonably be expected to result in a Material Adverse Effect, to the knowledge of any Senior Officer of the Borrower, no act, omission or transaction has occurred which could reasonably be expected to result in imposition on any Group Member or any ERISA Affiliate (whether directly or indirectly) of (i) either a material civil penalty assessed pursuant to subsections (c), (i) or (l) of section 502 of ERISA or a material tax imposed pursuant to Chapter 43 of Subtitle D of the Code or (ii) material breach of fiduciary duty liability damages under section 409 of ERISA.

(d) No Plan or any trust created under any such Plan has been terminated in the six consecutive year period ending on the date hereof and no steps have been taken to terminate any Plan where such termination could reasonably be expected to result in a Material Adverse Effect. No liability to the PBGC (other than for the payment of current premiums which are not past due) has been or is reasonably expected to be incurred by any Group Member or any ERISA Affiliate with respect to any Plan that could reasonably be expected to result in a Material Adverse Effect. No ERISA Event with respect to any Plan has occurred where such ERISA Event could reasonably be expected to result in a Material Adverse Effect.

(e) Except as would not reasonably be expected to result in a Material Adverse Effect, (i) full payment when due has been made of all amounts which any Group Member or any ERISA Affiliate is required under the terms of each Plan or applicable law to have paid as contributions to such Plan as of the date hereof, and (ii) no failure to meet the minimum funding standard under section 303 of ERISA or section 430 of the Code, whether or not waived, exists with respect to any Plan.

(f) Except as would not reasonably be expected to result in a Material Adverse Effect, the actuarial present value of the benefit liabilities under each Plan does not, as of the end of the Borrower’s most recently ended fiscal year, exceed the current value of the assets of such Plan allocable to such benefit liabilities, computed in accordance with the actuarial assumptions used for funding such Plan pursuant to Sections 412 and 430 of the Code for the applicable plan year.

(g) No contribution failure has occurred with respect to any Plan sufficient to give rise to a material lien under section 303(k) of ERISA in an amount in excess of $100.0 million.

(h) Neither any Group Member nor any ERISA Affiliate has incurred at any time in the six-year period immediately preceding the date hereof, or is reasonably expected to incur withdrawal liability under Section 4201 of ERISA to any Multiemployer Plan, except to the extent such withdrawal liability from such Multiemployer plan would not reasonably be expected to result in a Material Adverse Effect. Neither any Group Member nor, to the knowledge of the Borrower, any ERISA Affiliate has received any notice concerning the determination that a Multiemployer Plan is, or is expected to be, insolvent or in critical or endangered status, within the meaning of Title IV of ERISA, except as would not reasonably be expected to result in a Material Adverse Effect.

(i) Except as would not reasonably be expected to result in a Material Adverse Effect, there are no going-concern unfunded actuarial liabilities, past service unfunded liabilities or solvency deficiencies with respect to any employee benefit plan that is exempt from ERISA by reason of section 4(b)(4) thereof and is sponsored, maintained, or contributed to by any Group Member or any ERISA Affiliate.

 

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3.14 Investment Company Act. No Loan Party is an “investment company” within the meaning of, and required to register under, the Investment Company Act of 1940, as amended.

3.15 [Reserved]

3.16 Use of Proceeds.

(a) The proceeds of the Term Loans shall be used on the Closing Date, together with cash on hand and/or drawings of other Indebtedness permitted to be incurred hereunder, to consummate the Closing Date Refinancing and the other Transactions, and otherwise for working capital and general corporate purposes of the Borrower and its Subsidiaries (including, without limitation, capital expenditures, Permitted Acquisitions and other permitted Restricted Payments).

(b) The proceeds of the Revolving Credit Loans shall be used (i) on the Closing Date, together with cash on hand and/or drawings on other Indebtedness, to consummate the Closing Date Refinancing and the other Transactions and (ii) on and after the Closing Date, for working capital and general corporate purposes of the Borrower and its Subsidiaries (including, without limitation, capital expenditures, Permitted Acquisitions and other permitted Restricted Payments and, in the case of Letters of Credit, to replace or provide credit support for existing letters of credit of Sprint and its Subsidiaries (including by deeming the Existing Rollover Letters of Credit to be issued and outstanding hereunder)).

(c) The proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries.

3.17 Environmental Matters. Except as would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect):

(a) Neither any Group Member nor, to the knowledge of the Borrower, any Property of any Group Member or the operations conducted thereon violate (i) any decree, order or requirement of any Governmental Authority arising under Environmental Law or (ii) any Environmental Laws or any related Environmental Permit;

(b) all Environmental Permits, if any, required to be obtained or filed in connection with the operation or use of any and all Property by each Group Member, including any such Environmental Permits required for the treatment, storage, disposal or Release of a Hazardous Material or solid waste into the environment, have been duly obtained or filed, and each Group Member is in compliance with the terms and conditions of all such Environmental Permits;

(c) all Hazardous Materials, if any, generated at any and all Property of any Group Member are and, to the knowledge of the Borrower, have in the past been released, stored, transported, treated and disposed of in accordance with Environmental Laws and so as not to pose an imminent and substantial endangerment to public health or welfare or the environment;

 

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(d) no Group Member is subject to or knows of any basis for any Environmental Liability or has any known contingent liability or Remedial Work in connection with any Release or threatened Release into the environment; and

(e) there have been no Releases of Hazardous Materials on any Property of any Group Member in a manner that is reasonably likely to require any Remedial Work.

3.18 Accuracy of Information, Etc. None of the reports, certificates or other written information (other than projected financial information and other forward-looking information, and information of a general economic or industry specific nature) furnished by or on behalf of any Group Member to the Administrative Agent or any Lender or any of their Affiliates in connection with the negotiation of this Agreement or any other Loan Document or delivered hereunder or under any other Loan Document (as modified or supplemented by other information so furnished), taken as a whole, as of the date so furnished and after giving effect to all supplements and updates thereto, contained any material misstatement of fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that with respect to financial statements other than projected financial information and other forward-looking information, the Borrower represents only that such financial statements present fairly in all material respects the consolidated financial condition of Parent or Sprint, as the case may be, as at the dates of such financial statements; provided, further, that with respect to projected financial information and any other projections and other forward-looking information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time prepared (it being understood that forecasts and projections by their nature are inherently uncertain, that actual results may differ significantly from the forecasted or projected results and that such differences may be material and no assurances are being given that the results reflected in the forecasts and projections will be achieved).

3.19 Security Documents. The Collateral Agreement and each other Security Document executed and delivered by a Loan Party is effective to create in favor of the Collateral Trustee, for the benefit of the Secured Parties, a legal, valid, binding and enforceable security interest in the Collateral described therein, except as enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. Subject to the terms of Section 5.9(c) in the case of (i) the Pledged Capital Stock described in the Collateral Agreement, when any stock certificates representing such Pledged Capital Stock (and constituting “certificated securities” within the meaning of the UCC) are delivered to the Collateral Trustee, (ii) Collateral with respect to which a security interest may be perfected only by possession or control, upon the taking of possession or control by the Collateral Trustee of such Collateral, and (iii) the other personal property Collateral described in the Security Documents as to which a security interest can be perfected by filing of a UCC financing statement, when financing statements in appropriate form are filed in the appropriate filing offices, appropriate assignments or notices are filed in the U.S. Patent and Trademark Office and such other filings as are specified by the Collateral Agreement have

 

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been completed, the Lien on the Collateral created by the Collateral Agreement shall (to the extent so required by Section 5.9(c) and the Security Documents) constitute a fully perfected Lien in favor of the Collateral Trustee for the benefit of the Secured Parties on, and security interest in, all right, title and interest of the Loan Parties in such Collateral, as security for the Obligations, in each case prior to the Liens of any other Person (except Permitted Liens).

3.20 Solvency. The Borrower, on a consolidated basis together with its Subsidiaries, giving effect to the Transactions, is Solvent as of the Closing Date.

3.21 PATRIOT Act; FCPA; OFAC; Sanctions. (a) Each Loan Party is in compliance, in all material respects, with (i) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V) and any other enabling legislation or executive order relating thereto; (ii) the PATRIOT Act; and (iii) the FCPA. No part of the proceeds of the Loans will be used by the Loan Parties or any of their respective Subsidiaries, directly or, to the Loan Parties’ knowledge, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the FCPA.

(b) Neither Parent nor any Group Member, nor any director or officer of Parent or any Group Member, nor, to the knowledge of Parent or the Borrower, any employee or controlled affiliate of Parent or any Group Member, (i) is a person or is owned or controlled by one or more persons on the list of “Specially Designated Nationals and Blocked Persons”; (ii) is currently the subject of (x) any US sanctions administered or enforced by the Office of Foreign Assets Control of the US Treasury Department (“OFAC”) or the U.S. Department of State or (y) any sanctions administered or enforced by the European Union, the United Nations Security Council or Her Majesty’s Treasury (“Sanctions”); or (iii) is located, organized or resident in a country, region or territory which is itself or whose government is the subject or target of any Sanctions. Except as authorized, including, but not limited to, by license, exemption or other provision of law, none of Parent or any Group Member will, directly or, to the knowledge of Parent or the Borrower, indirectly, use the proceeds of the Loans or otherwise make available such proceeds to any subsidiary, any joint venture partner or any other person to finance or facilitate the activities of any person currently the subject of any US sanctions administered by OFAC, or, in any other manner that will result in a violation of Sanctions.

SECTION 4. CONDITIONS PRECEDENT

4.1 Conditions to Closing Date. The agreement of each Lender and each Issuing Bank to make the extensions of credit requested to be made by it hereunder is subject to the satisfaction (or waiver in accordance with Section 9.2), prior to or concurrently with the making of such extension of credit (or making such commitments available) on the Closing Date, of the following conditions precedent:

(a) Loan Documents. The Administrative Agent shall have received (subject, in the case of clauses (ii), (iii) and (iv), to the last paragraph of this Section 4.1):

(i) this Agreement, executed and delivered by the Borrower;

 

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(ii) the Guarantee Agreement, executed and delivered by the Loan Parties party thereto;

(iii) the Collateral Agreement, executed and delivered by the Loan Parties party thereto;

(iv) the Collateral Trust Agreement, executed and delivered by the Loan Parties party thereto;

(v) the US IP Security Agreements, executed and delivered by the Loan Parties party thereto;

(vi) each Note, executed and delivered by the Borrower in favor of each Lender requesting the same prior to the Closing Date; and

(vii) a Borrowing Request, executed and delivered by the Borrower at least one Business Day prior to the Closing Date.

(b) Transaction. The Acquisition shall have been consummated, or substantially concurrently with the initial borrowing hereunder shall be consummated, on substantially the terms set forth in the Business Combination Agreement.

(c) Closing Date Refinancing. The Closing Date Refinancing shall have been consummated prior to or substantially concurrently with the initial borrowing under the Facilities.

(d) Specified Representations and Business Combination Agreement Representations. The Arranger shall have received a certificate of a Responsible Officer stating that the Specified Representations and the Business Combination Agreement Representations shall be true and correct in all material respects as of the Closing Date; provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such date.

(e) Historical Financial Statements. The Arrangers shall have received (a) U.S. GAAP audited consolidated balance sheets and related statements of income (loss) or operations, stockholders’ equity and cash flows of each of Parent and Sprint for the three most recently completed fiscal years ended at least 90 days prior to the Closing Date and (b) U.S. GAAP unaudited consolidated balance sheets and related statements of income (loss) or operations, stockholders’ equity and cash flows of each of Parent and Sprint for each subsequent fiscal quarter ended at least 45 days before the Closing Date (other than the fourth quarter of any fiscal year and subject to normal year-end adjustments); provided that filing of the required financial statements on Form 10-K and Form 10-Q by Parent or Sprint will satisfy the foregoing requirements and provided further that the Administrative Agent and Lenders acknowledge receipt of (i) the financial statements of Parent described in clause (a) above for the years ended December 31, 2019, December 31, 2018 and December 31, 2017 and (ii) (x) the financial statements of Sprint described in clause (a) above for the years ended March 31, 2018, March 31, 2017 and March 31, 2016 and (y) the financial statements of Sprint described in clause (b) above for the quarters ended June 30, 2019, September 30, 2019 and December 31, 2019.

 

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(f) Pro Forma Financial Statements. The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of Parent and its subsidiaries, in a form customary for inclusion in a confidential information memorandum used to syndicate bank credit facilities, as of and for the 12-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to clause (e) above, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income).

(g) Solvency Certificate. The Administrative Agent shall have received a solvency certificate in the form of Exhibit J from the chief financial officer of the Borrower with respect to the solvency of the Borrower, on a consolidated basis together with its Subsidiaries, after giving effect to the Transactions.

(h) Closing Certificate. The Administrative Agent shall have received a certificate of the Borrower, dated the Closing Date, substantially in the form of Exhibit D, certifying that the conditions set forth in clauses (b), (c), (d) and (n) of this Section 4.1 have been satisfied.

(i) Other Certifications. The Administrative Agent shall have received the following:

(i) a copy of the charter or other similar Organizational Document of each Loan Party and each amendment thereto, certified (as of a date reasonably near the date of the initial extension of credit) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which each such Loan Party is organized or incorporated;

(ii) a copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which each such Loan Party is organized, dated reasonably near the Closing Date, certifying that such Person is in good standing under the laws of such jurisdiction; and

(iii) a certificate of the Secretary, Assistant Secretary or other appropriate Responsible Officer of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws, or operating, management or partnership agreement of such Loan Party as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or other applicable body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation, partnership agreement or other constitutive document of such Loan Party have not been amended since the date the documents furnished pursuant to clause (i) above were certified, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party.

 

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(j) Legal Opinions. The Administrative Agent shall have received the legal opinions of Fried, Frank, Harris, Shriver & Jacobson LLP and Morrison & Foerster LLP, each as counsel to certain Loan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and executed legal opinions of each local counsel to the Loan Parties set forth on Schedule 4.1(j), each of which shall be in form and substance reasonably satisfactory to the Administrative Agent.

(k) Pledged Capital Stock; Stock Powers. Subject to the last paragraph of this Section 4.1, to the extent delivery thereof is required under the applicable Security Document, the Collateral Trustee shall have received the certificates representing the shares of Capital Stock pledged pursuant to any Security Document (if such shares are certificated), together with, in the case of Capital Stock of any Domestic Subsidiary, an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof.

(l) Security Interests, Filings, Registrations and Recordings. Each document and instrument required to be entered into or delivered by the Borrower and the Guarantors to create and perfect the security interests of the Collateral Trustee in favor of the Administrative Agent and the other Secured Parties in the Collateral shall have been executed and delivered and, if applicable, be in proper form for filing.

(m) Know Your Customer and Other Required Information. The Administrative Agent and the Lenders shall have received at least 3 Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities with respect to the Borrower and the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case as reasonably requested by the Lenders at least 10 Business Days prior to the Closing Date.

(n) No Material Adverse Effect on Sprint. Except as (i) set forth in any Sprint Filed SEC Documents (as defined in the Business Combination Agreement), excluding any disclosures in such Sprint Filed SEC Documents (as defined in the Business Combination Agreement) contained in any risk factors section, any section related to forward-looking statements and other disclosures that are predictive, cautionary or forward-looking in nature, or (ii) disclosed in the disclosure letter delivered by Sprint to T-Mobile (as defined in the Business Combination Agreement) at or prior to the execution of the Business Combination Agreement, since March 31, 2017, there have been no Effects (as defined in the Business Combination Agreement) that, individually or in the aggregate, have had or would reasonably be expected to have a “Material Adverse Effect on Sprint” (as defined in the Business Combination Agreement).

 

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(o) Fees. The Arrangers, the Lenders and the Administrative Agent shall have received (or substantially simultaneously with the initial funding of the Facilities on the Closing Date, shall receive) all fees and expenses required to be paid on or prior to the Closing Date, and all reasonable and documented out-of-pocket expenses required to be paid on the Closing Date for which reasonably detailed invoices have been presented pursuant to the Fee Letter, Commitment Letter and hereunder and, with respect to expenses, invoiced to the Borrower at least three (3) Business Days prior to the Closing Date.

Notwithstanding the foregoing or anything herein or in any Loan Document to the contrary, to the extent any Collateral (other than to the extent that a lien on such Collateral may be perfected by (x) the filing of a financing statement under the Uniform Commercial Code or (y) the delivery of stock certificates of the Borrower) is not or cannot be provided or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so (consistent with the Business Combination Agreement), provision or perfection of a security interest in such Collateral shall not constitute a condition precedent to the availability of the Facilities and the making of the initial Loans and other extensions of credit hereunder on the Closing Date, but shall be required to be provided or perfected within 90 days after the Closing Date (in each case, subject to extensions granted by the Administrative Agent in its sole discretion).

4.2 Conditions to Each Borrowing Date. The agreement of each Lender and Issuing Bank to make any extension of credit (other than its initial extension of credit on the Closing Date, any conversion of Loans to the other Type or a continuation of Eurodollar Loans or any amendment, modification, renewal or extension of any Letter of Credit that does not increase the face amount of such Letter of Credit, or as otherwise agreed in connection with a Limited Condition Transaction) requested to be made by it on any date (except as otherwise set forth herein in the case of Incremental Term Loans and Incremental Revolving Credit Loans) is subject to the satisfaction of the following conditions precedent:

(a) Representations and Warranties. Each of the representations of the Borrower in Section 3 shall be true and correct in all material respects (provided that any representation or warranty that is qualified as to “materiality”, “material adverse effect” or similar language shall be true and correct in all respects (after giving effect to any such qualification therein) on and as of such date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (provided that any representation or warranty that is qualified as to “materiality”, “material adverse effect” or similar language shall have been true and correct in all respects (after giving effect to any such qualification therein) as of such earlier date.

(b) No Default. No Default or Event of Default shall have occurred and be continuing on such date or after giving effect to the extensions of credit requested to be made on such date.

(c) Notice. The Administrative Agent and, if applicable, the Issuing Banks, shall have received a notice or request from the Borrower which, if in writing, may be in the form of a Borrowing Request.

 

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Notwithstanding the foregoing, Section 4.1 and 4.2 or any other provision in this Agreement or any other Loan Document, (i) with respect to any Incremental Facility incurred in connection with a Limited Condition Transaction, at the request of the Borrower, the conditions set forth above in Section 4.2(a) and Section 4.2(b) shall be tested only at the time the agreement for such Limited Condition Transaction is entered into and not, for the avoidance of doubt, at the time of such incurrence and (ii) the conditions relating to the grant and perfection of security interests shall be subject to Section 5.9(c).

SECTION 5. AFFIRMATIVE COVENANTS

The Borrower hereby agrees that, so long as any Commitments remain in effect or any Loan or other amount (excluding Designated Hedging Obligations, Designated L/C Facilities Obligations, Cash Management Agreements and contingent reimbursement and indemnification obligations, in each case, that are not due and payable or Letters of Credit that have been cash collateralized) is owing to any Lender, the Administrative Agent or any Arranger hereunder, the Borrower shall and shall cause each of its Restricted Subsidiaries to:

5.1 Financial Statements. Furnish to the Administrative Agent (except for those documents or other information filed with the SEC and which are publicly available):

(a) Annual Financial Statements. As soon as available, but in any event in accordance with then applicable law and not later than 90 days after the end of each fiscal year of Parent (or such later date on which Parent is permitted to file its Form 10-K under the SEC rules), Parent’s and its Consolidated Subsidiaries’ audited consolidated balance sheet and related statements of income and comprehensive income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PricewaterhouseCoopers LLP or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit (other than any such exception or explanatory paragraph that is expressly solely with respect to, or expressly resulting solely from, (x) an upcoming maturity date under any Indebtedness, (y) any potential inability to satisfy any financial maintenance covenant on a future date or in a future period or (z) any breach of any financial covenant) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Parent and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (except as approved by the Parent’s accountants and disclosed therein).

(b) Quarterly Financial Statements. As soon as available, but in any event in accordance with then applicable law and not later than 45 days after the end of each of the first three fiscal quarters of each fiscal year of Parent (or such later date on which Parent is permitted to file its Form 10-Q under the SEC rules), in each case, Parent’s and its Consolidated Subsidiaries’ consolidated balance sheet and related statements of income and comprehensive income and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its senior financial officers as presenting fairly in all material respects the financial condition and results of operations of Parent and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (except as approved by Parent’s accountants and disclosed therein), subject to normal period-end audit adjustments.

 

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(c) [Reserved].

(d) SEC Reports. Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 5.1 may be satisfied by furnishing (or filing with the SEC) the Form 10-K or 10-Q (or the equivalent), as applicable, of Parent or any parent thereof filed with the SEC; provided that to the extent such information relates to a parent of Parent, such information is accompanied by a description that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to Parent, the Borrower and the Consolidated Subsidiaries, on a stand-alone basis, on the other hand.

(e) Quarterly Lender Calls. Within a reasonable time after the required delivery of the financial statements referred to in clauses (a) and (b) above, the Borrower shall conduct a conference call (which may be password protected) to discuss such financial statements and the results of operations for the relevant reporting period, which conference call shall, unless otherwise elected by the Borrower and notified in advance to the Administrative Agent, be the same as the Borrower’s quarterly earnings call with holders of the Senior Unsecured Notes.

5.2 Certificates; Other Information. Furnish to the Administrative Agent in each case for further delivery to each Lender, or, in the case of clause (d), to the relevant Lender:

(a) concurrently with the delivery of any financial statements pursuant to Section 5.1(a) or (b), a Compliance Certificate of a senior financial officer (i) setting forth computations in reasonable detail satisfactory to the Administrative Agent demonstrating compliance with the financial covenant contained herein and (ii) certifying as to whether a Default or Event of Default has occurred and is continuing and, if a Default or Event of Default has occurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto;

(b) concurrently with the delivery of any financial statements pursuant to Section 5.1(a) or (b), a narrative discussion and analysis of the financial condition and results of operations of Parent and its Consolidated Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter, as compared to the comparable periods of the previous year; provided that the obligations in this clause (b) may be satisfied by furnishing (or filing with the SEC) the Form 10-K or 10-Q (or the equivalent), as applicable, of Parent or any parent thereof filed with the SEC;

(c) written notice within 45 days thereof of any change (i) in Parent’s or any Loan Party’s (other than an Unsecured Guarantor) corporate name, (ii) in the location of Parent’s or any Loan Party’s (other than an Unsecured Guarantor) chief executive office or principal place of business, (iii) in Parent’s or any Loan Party’s (other than an Unsecured Guarantor) corporate structure, (iv) in Parent’s or any Loan Party’s (other than an Unsecured Guarantor) jurisdiction of organization or such Person’s organizational identification number in such jurisdiction of organization, and (v) in Parent’s or any Loan Party’s (other than an Unsecured Guarantor) federal taxpayer identification number; and

 

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(d) promptly following any request therefor, such other information that is reasonably available (upon the use of commercially reasonable efforts) to the Borrower regarding the operations, business affairs and financial condition of any Loan Party (including, any Plan or Multiemployer Plan and any reports or other information required to be filed under ERISA), or compliance with the terms of this Agreement or any other Loan Document, as the Administrative Agent may reasonably request (on its own behalf or on behalf of any Lender) in a written notice given in accordance with Section 9.1.

Notwithstanding anything to the contrary in this Section 5.2, none of Parent or any Group Member will be required to disclose any document, information or other matter (i) that constitutes trade secrets or proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by any Requirement of Law or any binding agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product.

5.3 Payment of Obligations. Pay, discharge or otherwise satisfy its obligations (other than Indebtedness), including Tax liabilities, before the same shall become delinquent or in default, except where (a) (i) the validity or amount thereof is being contested in good faith by appropriate proceedings and (ii) the applicable Group Member has set aside on its books adequate reserves with respect thereto in accordance with GAAP or (b) the failure to make such payment would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

5.4 Maintenance of Existence; Compliance. (a) (i) Preserve, renew and keep in full force and effect its corporate or other organizational existence (it being understood, for the avoidance of doubt, that the foregoing shall not limit any change in form of entity or organization) and (ii) take all reasonable action to maintain all rights, privileges, franchises, permits and licenses necessary in the normal conduct of its business, except, in each case, as otherwise permitted by Section 6.7 and except (other than in the case of the preservation of existence of Parent and the Borrower) to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect; (b) comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its Property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; and (c) maintain in effect policies and procedures reasonably designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with the FCPA and Sanctions.

5.5 Maintenance of Property; Insurance. (a) Keep and maintain all Property useful and necessary in the conduct of its business in good working order and condition (ordinary wear and tear and casualty and condemnation excepted) and preserve, maintain and keep in good repair and working order (ordinary wear and tear and casualty and condemnation excepted) all of its Properties, including, all equipment, machinery and facilities, and prosecute, maintain, renew and preserve all Intellectual Property, except in each case where a failure to do so would not reasonably be expected to result in a Material Adverse Effect.

 

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(b) Maintain, with insurance companies the Borrower believes in its reasonable business judgment to be financially sound and reputable, insurance in such amounts (after giving effect to any self-insurance) and against such risks which in the reasonable business judgment of the Borrower are appropriate for companies engaged in the same or similar businesses operating in the same or similar locations.

(c) Within 90 days following the date hereof (subject to Section 5.14) and within 90 days following any date on which a new Grantor (as defined in the Collateral Agreement) is added to the Collateral Agreement or the date the relevant policy is obtained, cause the Collateral Trustee to be included as loss payee on the property insurance policy of such Grantor and as additional insured on the commercial general liability insurance policy (excluding, for the avoidance of doubt, directors and officers, worker’s compensation, health and benefit and similar liability policies) of such Grantor. The Grantors shall use commercially reasonable efforts to cause all such insurance to provide that the relevant insurer shall endeavor to provide the Administrative Agent with at least 30 days prior notice of the cancellation of the relevant policy of insurance.

5.6 Inspection of Property; Books and Records; Discussions.

(a) Keep proper books of record and account in which full, true and in all material respects correct entries in conformity with (i) GAAP and (ii) all Requirements of Law, are made of all material dealings and transactions in relation to its business and activities; and

(b) permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior written notice, and as coordinated by such Lenders through the Administrative Agent, to visit and inspect its Properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times during normal business hours and as often as reasonably requested on an individual and aggregate basis; provided that (1) any discussions with such independent accountants shall be in the presence of the Borrower’s officers, and (2) so long as no Event of Default has occurred and is continuing, such visits, inspections and examinations shall only be conducted by the Administrative Agent and shall be limited to one per fiscal year.

Notwithstanding anything to the contrary in this Section 5.6, none of Parent or any Group Member will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter (i) that constitutes trade secrets or proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by any Requirement of Law or any binding agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product.

5.7 Notices. Promptly after (or, in the case of clause (c) or (d), within 30 days after) a Responsible Officer acquires knowledge thereof, give notice to the Administrative Agent of:

(a) the occurrence of any Default or Event of Default;

 

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(b) the filing or commencement of any action, suit, proceeding, investigation or arbitration by or before any arbitrator or Governmental Authority against any Group Member not previously disclosed in writing to the Lenders that, if adversely determined, would reasonably be expected to result in a Material Adverse Effect;

(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, would reasonably be expected to result in a Material Adverse Effect; and

(d) any other development or event that has or would reasonably be expected to have a Material Adverse Effect.

Each notice pursuant to this Section 5.7 shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action (if any) the Borrower or the relevant Group Member proposes to take with respect thereto.

5.8 Environmental Laws. (a) Comply in all respects with all applicable Environmental Laws, and obtain, maintain and comply with, any and all Environmental Permits, except to the extent the failure to so comply with Environmental Laws or obtain, maintain or comply with Environmental Permits would not reasonably be expected to have a Material Adverse Effect.

(b) Conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other corrective actions required pursuant to Environmental Laws and promptly comply in all respects with all lawful orders and directives of all Governmental Authorities regarding any violation of or non-compliance with Environmental Laws and any Release or threatened Release of Hazardous Materials, except, in each case, to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect or to the extent that Borrower’s 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 in accordance with GAAP.

5.9 Additional Collateral, New Subsidiaries, Etc. (a) Subject to Section 5.9(c), with respect to any personal Property (other than Excluded Assets) acquired or created (including the filing of any applications for the registration or issuance of any Intellectual Property) after the Closing Date by any existing Loan Party (other than an Unsecured Guarantor), no later than the next date of delivery of financial statements pursuant to Section 5.1(a) or 5.1(b) covering a period that includes the date of such acquisition or creation of such Property (subject, in each case, to any specific time frame established in the relevant Loan Documents) (or such later date as may be agreed by the Administrative Agent), (x) execute and deliver to the Administrative Agent or the Collateral Trustee, as applicable, such amendments to the Security Documents (including schedules thereto) or such other documents as the Administrative Agent or the Collateral Trustee may reasonably request to grant to the Collateral Trustee, for the benefit of the Secured Parties, a security interest in such Property and (y) take all actions reasonably necessary (as determined by the Borrower in good faith) to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Permitted Liens) in such Property to the extent required under the Security Documents, including the filing of UCC financing statements in such United States jurisdictions as may be required by Security Documents.

 

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(b) Subject to Section 5.9(c), cause any Parent Only Subsidiary or any Subsidiary of Borrower, in each case, that is not an Excluded Subsidiary, if not already a Guarantor, promptly (and in any event within 60 days after such person becomes a Subsidiary that is not an Excluded Subsidiary, or ceases to be an Excluded Subsidiary, as the case may be, or such longer period as the Administrative Agent or the Collateral Trustee may approve in its sole discretion) (I) to become a party to the Collateral Agreement and/or the Guarantee Agreement, as the case may be, and (other than in respect of an Unsecured Guarantor) deliver to the Administrative Agent or the Collateral Trustee, as applicable, such amendments to the Security Documents (including schedules thereto) as the Administrative Agent or the Collateral Trustee reasonably deems necessary to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Permitted Liens) in the Capital Stock of such new Guarantor (other than to the extent constituting Excluded Assets and other than any Parent Only Subsidiary), (II) to deliver to the Collateral Trustee the certificates, if any, representing such Capital Stock of such new Guarantor (other than any Parent Only Subsidiary) constituting certificated securities under the UCC, together with undated stock powers, in blank, to the extent required by the Collateral Agreement and necessary to perfect the Collateral Trustee’s security interests therein and (III) (other than in respect of an Unsecured Guarantor) to take such actions necessary to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected security interest (subject to Permitted Liens) in the Collateral described in the applicable Security Documents with respect to such new Guarantor, including the filing of UCC financing statements in such United States jurisdictions as may be required by the Security Documents.

(c) Notwithstanding the foregoing provisions of this Section 5.9 or any other provision hereof or of any other Loan Document, (i) no Loan Party shall be required to grant a security interest in any Excluded Assets, (ii) no Loan Party shall be required to perfect any pledges, security interests and mortgages in the Collateral by any means other than (A)(1) filings pursuant to the Uniform Commercial Code in the office of the Secretary of State (or similar central filing office) of the relevant State in which such Loan Party is organized, and (2) filings in the U.S. Patent and Trademark Office with respect to intellectual property as expressly required in the Security Documents, (B) subject to any relevant Intercreditor Agreements, and any other intercreditor arrangements entered into pursuant to this Agreement, delivery to the Collateral Trustee of all certificates evidencing Capital Stock in the Borrower and the Subsidiary Guarantors and their respective subsidiaries to the extent constituting Collateral and required to be delivered in order to perfect the Collateral Trustee’s security interest therein, to be held in its possession, in each case as and to the extent expressly required in the Security Documents, (iii) no Loan Party shall be required to (A) deliver deposit or securities account control agreements or lockbox or similar arrangements, (B) otherwise deliver perfection by “control” (within the meaning of the UCC) (including with respect to deposit accounts, securities accounts and commodities accounts), other than as described in clause (ii)(B) above or (C) send notices to account debtors or other contractual third parties unless an Event of Default has occurred and is continuing, (iv) no Loan Party shall be required to take any action with respect to any assets located outside of the United States, (v) no Loan Party shall be required to take any actions in any jurisdiction other than the United States (or any political subdivision thereof) in connection

 

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with pledging Collateral or enter into any collateral documents governed by the laws of any country (or any political subdivision thereof) other than the United States (or any political subdivision thereof), (vi) no Unsecured Guarantor shall be required to pledge or grant a security interest in any assets of such Unsecured Guarantor (except to the extent such entity is designated as a Subsidiary Guarantor pursuant to clause (i) of the proviso of the definition of “Excluded Subsidiary”), (vii) neither Sprint nor any Subsidiary of Sprint shall be required to become a Subsidiary Guarantor prior to the first date on or after the Closing Date on which Sprint or such Subsidiary actually guarantees the Existing T-Mobile Notes and (viii) each Subsidiary of Parent that provides a Guarantee of the Existing T-Mobile Notes shall also become a Subsidiary Guarantor hereunder in accordance with the provisions set forth above (but regardless of whether such Subsidiary is an Excluded Subsidiary).

5.10 Use of Proceeds. Use the proceeds of the Loans only for the purposes specified in Section 3.16 and not in violation of Section 3.21.

5.11 Further Assurances. Promptly execute and deliver to the Administrative Agent or the Collateral Trustee, as applicable, all such other documents, agreements and instruments and take such other actions as reasonably requested by the Administrative Agent or the Collateral Trustee (at the direction of the Administrative Agent) to comply with, cure any defects or accomplish the conditions precedent, covenants and agreements of the Parent and the other Group Members in the Loan Documents, or to more fully perfect, maintain or renew the rights of the Administrative Agent (or the Collateral Trustee, as applicable) and the Lenders with respect to the Collateral (or with respect to any additions thereto or replacements or proceeds or products thereof or with respect to any other property or assets hereafter acquired by any Loan Party which may be deemed to be part of the Collateral) pursuant hereto or thereto other than any Excluded Assets.

5.12 Maintenance of Ratings. At all times, the Borrower shall use commercially reasonable efforts (x) to maintain a public corporate credit rating from S&P and a public corporate family rating from Moody’s, in each case with respect to Parent, and (y) to cause the Term Loan Facility to be continuously rated by S&P and Moody’s (it being understood that, in each case, there shall be no obligation to maintain specific ratings from either S&P or Moody’s).

5.13 Designation of Subsidiaries.

The Borrower may designate any Restricted Subsidiary to be an Unrestricted Subsidiary and subsequently re-designate any Unrestricted Subsidiary as a Restricted Subsidiary if no Event of Default has occurred and is continuing or would result therefrom. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in the Subsidiary designated as an Unrestricted Subsidiary will be deemed to be an Investment made as of the time of the designation and shall be subject to any restrictions on Investments set forth herein. The redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute (x) the incurrence at the time of designation of Indebtedness or Liens of such Subsidiary existing at such time and (y) a return on any Investment by the Borrower or Restricted Subsidiary in such amount equal to the Fair Market Value of such Subsidiary on the date of such redesignation.

 

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Notwithstanding the foregoing, the Borrower may at any time and from time to time designate any Designated Entity by written notice to the Administrative Agent, as an Unrestricted Subsidiary, and any such Subsidiary shall upon such notice immediately be designated and deemed an Unrestricted Subsidiary, without any further action by the Borrower (and, for the avoidance of doubt, shall not require delivery of a resolution of the Board of Directors or of an Officers’ Certificate) (each, a “Specified Unrestricted Subsidiary Designation”). The aggregate Fair Market Value of all outstanding Investments owned by the Borrower and its Restricted Subsidiaries in such Designated Entities so designated as Unrestricted Subsidiaries will, as calculated and to the extent permitted by clause (r) of the definition of Permitted Investments, be deemed to be an Investment made as of the time of such Specified Unrestricted Subsidiary Designation under such clause (r), and not reduce the amount available for Restricted Payments under Section 6.1 hereof. Notwithstanding the foregoing, as of the date hereof, each entity listed on Schedule 1.1(c) is an Unrestricted Subsidiary.

5.14 Post-Closing Matters. As promptly as reasonably practicable, and in any event within the time periods specified on Schedule 5.14 (or such longer period as the Administrative Agent may agree), after the Closing Date, complete, or cause the applicable Loan Party to complete, such undertakings and deliveries, in each case, as are set forth on Schedule 5.14.

SECTION 6. NEGATIVE COVENANTS

The Borrower hereby agrees that, so long as any Commitments remain in effect or any Loan or other amount is owing to any Lender, the Administrative Agent or any Arranger hereunder (excluding Designated Hedging Obligations, Designated L/C Facilities Obligations, Cash Management Agreements and contingent reimbursement and indemnification obligations, in each case, that are not due and payable or Letters of Credit that are cash collateralized):

6.1 Restricted Payments

(a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:

(i) declare or pay (without duplication) any dividend, or make any other payment or distribution, on account of the Borrower’s or any of its Restricted Subsidiaries’ Equity Interests (including any payment in connection with any merger or consolidation involving the Borrower or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Borrower’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Borrower and other than dividends or distributions payable to the Borrower or a Restricted Subsidiary of the Borrower);

(ii) purchase, redeem or otherwise acquire or retire for value (including in connection with any merger or consolidation involving the Borrower) any Equity Interests of the Borrower or any direct or indirect parent of the Borrower;

 

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(iii) make any principal payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness (excluding any intercompany Indebtedness between or among the Borrower and any of its Restricted Subsidiaries, and other the payment, redemption, repurchase, defeasance, acquisition or retirement of Subordinated Indebtedness in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case within one year of the date of such payment, redemption, repurchase, defeasance, acquisition or retirement), prior to any scheduled repayment or the Stated Maturity thereof; or

(iv) make any Restricted Investment,

(all such payments and other actions set forth in clauses (i) through (iv) above being collectively referred to as “Restricted Payments”),

unless, at the time of and after giving effect to such Restricted Payment:

(i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;

(ii) the Borrower would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Total Net Leverage Ratio test set forth in Section 6.3(a) hereof; and

(iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Borrower and its Restricted Subsidiaries since the Closing Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (xi), (xii), (xiii), (xiv), (xv), (xvi), and (xvii) of paragraph (b) of this Section 6.1), is less than the sum, without duplication, of:

(A) 100% of the Borrower’s Consolidated Cash Flow for the period (taken as one accounting period) from the beginning of the Borrower’s fiscal quarter during which the Closing Date occurs to the end of the Borrower’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment, less the product of 1.4 times the Borrower’s Consolidated Interest Expense for the same period; plus

(B) 100% of the aggregate net cash proceeds and the Fair Market Value of any property other than cash, in each case received by the Borrower after the Closing Date as a contribution to its common equity capital (other than any such contribution resulting, or deemed to result, from the Acquisition) or from the issue or sale of Equity Interests of the Borrower (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Borrower that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Borrower); plus

 

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(C) to the extent that any Restricted Investment that was made after the Closing Date (or that any Restricted Investment that was made by MetroPCS Wireless, Inc. or any of its Restricted Subsidiaries after November 3, 2006 and prior to the Closing Date (provided that, and solely to the extent that, such Restricted Investment, at the time made, reduced the amount that would be calculated pursuant to clause (G) below)) is sold for cash or Cash Equivalents, or otherwise is liquidated or repaid for cash or Cash Equivalents, an amount equal to such cash and Cash Equivalents; plus

(D) to the extent that any Unrestricted Subsidiary of the Borrower designated as such after the Closing Date (or that was designated after November 3, 2006, to the extent that the Investment deemed to be made in connection with such designation reduced the amount that would be calculated under clause (G) below) is redesignated as a Restricted Subsidiary after the Closing Date, the Fair Market Value of the Borrower’s Investment in such Subsidiary as of the date of such redesignation, other than to the extent such Investment constituted a Permitted Investment; plus

(E) 100% of any cash dividends or cash distributions and the Fair Market Value of any property other than cash, in each case actually received directly or indirectly by the Borrower or a Restricted Subsidiary of the Borrower that is a Guarantor after the Closing Date from an Unrestricted Subsidiary of the Borrower, in each case, to the extent that such dividends, cash distributions or other property were not otherwise included in the Consolidated Net Income of the Borrower for such period and other than to the extent such Investment constituted a Permitted Investment; minus

(F) the aggregate amount of any Net Equity Proceeds (x) used for making a Restricted Investment pursuant to clause (x) of Section 6.1(b) or (y) taken into account for purposes of incurring Indebtedness pursuant to clause (xiv) of the definition of “Permitted Debt” set forth in Section 6.3(b) hereof or, after the Reference Notes Indenture Closing Date and prior to the Closing Date, clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) of the Reference Notes Indenture; plus

(G) the amount that would be calculated on the Closing Date pursuant to clause (3) of the second paragraph of Section 4.07(a) of the Reference Notes Indenture, as in effect immediately prior to the Closing Date (provided that any calculation of cumulative Consolidated Cash Flow and Consolidated Interest Expense in subclause (A) of such clause (3) shall include the Borrower’s last fiscal quarter ending prior to the Closing Date, if internal financial statements are available for such period at the time of calculation, even if they are not available immediately prior to the Closing Date); plus

 

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(H) the aggregate amount of any Declined Proceeds after the Closing Date.

(b) The provisions of Section 6.1(a) hereof will not prohibit:

(i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement;

(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Borrower) of, Equity Interests of the Borrower (other than Disqualified Stock) or from the substantially concurrent contribution of common equity capital to the Borrower; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(B) of Section 6.1(a) hereof; provided, further, that any Net Equity Proceeds (x) used for making a Restricted Investment pursuant to clause (x) of this Section 6.1(b) or (y) taken into account for purposes of incurring Indebtedness pursuant to clause (xiv) of the definition of “Permitted Debt” set forth in Section 6.3(b) hereof or, after the Reference Notes Indenture Closing Date and prior to the Closing Date, clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) of the Reference Notes Indenture, in each case, may not also be used to make a Restricted Payment pursuant to this clause (ii);

(iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness of the Borrower or any Subsidiary Guarantor with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness;

(iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Borrower to the holders of its Equity Interests (or, if applicable, its economic Equity Interests) on a pro rata basis;

(v) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Parent, the Borrower, any Restricted Subsidiary of the Borrower or any direct or indirect parent of the Borrower held by any current or former officer, director, employee or consultant of Parent, the Borrower or any of its Restricted Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar

 

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agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed an amount equal to the greater of $125.0 million and 0.50% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period, in any fiscal year; provided, further, that such amount in any fiscal year may be increased by an amount equal to (a) the net cash proceeds contributed to the Borrower from the sale of Equity Interests of Parent to current or former members of management, directors, consultants or employees that occurs after the Reference Notes Indenture Closing Date plus (b) the net cash proceeds of key man life insurance policies received by Parent, the Borrower or its Restricted Subsidiaries after the Reference Notes Indenture Closing Date; provided, further, that such amount in any fiscal year shall be reduced by the amount of Indebtedness incurred in such fiscal year pursuant to clause (xxi) of Section 6.3(b) hereof;

(vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, warrants or other similar rights, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the vesting, exercise or exchange of stock options, warrants or other similar rights;

(vii) the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Borrower or any Restricted Subsidiary of the Borrower, or any class or series of Preferred Stock of a Subsidiary of the Borrower;

(viii) Permitted Payments to Parent;

(ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Parent to the extent necessary to comply with law or to prevent the loss or secure the renewal or reinstatement of any FCC License held by the Borrower or any of its Subsidiaries;

(x) Restricted Investments in an amount equal to 100% of the aggregate amount of any Net Equity Proceeds, less the aggregate amount of any Net Equity Proceeds (x) used for making a Restricted Payment pursuant to clause (ii) of this Section 6.1(b) or (y) taken into account for purposes of incurring Indebtedness pursuant to clause (xiv) of the definition of “Permitted Debt” set forth in Section 6.3(b) hereof or, after the Reference Notes Indenture Closing Date and prior to the Closing Date, clause (14) of the definition of “Permitted Debt” set forth in Section 4.09(b) of the Reference Notes Indenture;

(xi) payments made to DT or its Subsidiaries from the proceeds of the Towers Transactions or any Permitted Tower Financing;

 

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(xii) the repurchase, redemption or other acquisition or retirement for value of any Subordinated Indebtedness pursuant to asset sales or change of control prepayment or offer provisions; provided that all Term Loans required to be prepaid pursuant to this Agreement in connection with such asset sale or change of control have been, or concurrently will be, so prepaid;

(xiii) Restricted Payments made (or deemed made) in connection with the Transactions;

(xiv) the making of cash payments in connection with any conversion of Convertible Debt in an aggregate amount since the Closing Date not to exceed the sum of (a) the principal amount of such Convertible Debt plus (b) any payments received by the Borrower or any of its Restricted Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge Transactions;

(xv) the distribution, as a dividend or otherwise, of shares of Capital Stock of, or Indebtedness owed to the Borrower or a Restricted Subsidiary by, Unrestricted Subsidiaries (other than any Unrestricted Subsidiary the primary assets of which consist of cash and Cash Equivalents);

(xvi) other Restricted Payments in an aggregate amount since the Closing Date not to exceed the greater of (x) $950.0 million and 4.25% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period; and

(xvii) any other Restricted Payment; provided that the Total Net Leverage Ratio calculated on a Pro Forma Basis after giving effect to such Restricted Payment would be equal to or less than 3.00 to 1.00.

provided, however, that at the time of, and after giving effect to, any Restricted Payment permitted under clauses (xvi) and (xvii), no Default or Event of Default has occurred and is continuing or would be caused thereby.

The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by the Borrower or such Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.

For purposes of determining compliance with this Section 6.1, in the event that a Restricted Payment meets the criteria of more than one of the clauses described in clause (i) through (xvii) above, the Borrower will be permitted to reclassify all or a portion of such Restricted Payment on the date it is made, or later reclassify all or a portion of such Restricted Payment, in any manner that complies with this Section 6.1.

 

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6.2 Dividend and Other Payment Restrictions Affecting Subsidiaries

(a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create or permit to become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary (other than a Loan Party) to:

(i) pay dividends or make any other distributions on its Capital Stock to the Borrower or any of its Restricted Subsidiaries, or pay any Indebtedness owed to the Borrower or any of its Restricted Subsidiaries;

(ii) make loans or advances to the Borrower or any of its Restricted Subsidiaries; or

(iii) sell, lease or transfer any of its properties or assets to the Borrower or any of its Restricted Subsidiaries.

(b) The restrictions in Section 6.2(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:

(i) agreements or instruments governing Indebtedness and Equity Interests as in effect on the Closing Date, and in each case, any amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings of those agreements or instruments; provided that the amendments, restatements, modifications, renewals, increases, supplements, refundings, replacements or refinancings are (in the good faith judgment of the Board of Directors of Parent or the Borrower or a senior financial officer of the Borrower, whose determination shall be conclusive) not materially more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements or instruments on the Closing Date;

(ii) agreements or instruments governing any Permanent Financing, Incremental Facilities, Incremental Equivalent Debt, Replacement Facilities and Extension Facilities, in each case, expressly permitted under this Agreement, and, in each case not in effect on the Closing Date so long as (a) the encumbrances and restrictions contained therein do not impair the ability of any Restricted Subsidiary of the Borrower to pay dividends or make any other distributions or payments directly or indirectly to the Borrower in an amount sufficient to permit the Borrower to pay the principal of, or interest and premium, if any, on the Loans, (b) the encumbrances and restrictions contained therein are no more restrictive, taken as a whole, than those contained in this Agreement and (c) such Permanent Financing, Incremental Facilities, Incremental Equivalent Debt, Replacement Facilities and Extension Facilities and such agreements or instruments entered into in connection therewith are expressly permitted under this Agreement (including, for the avoidance of doubt, under Sections 2.23, 2.24, 2.25, 6.1, 6.3(b)(i), 6.4, 6.5, 6.6 and 6.7 of this Agreement);

 

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(iii) this Agreement and the other Loan Documents;

(iv) applicable law, rule, regulation or order;

(v) agreements or instruments with respect to a Person acquired by the Borrower or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition) or as may be amended, restated, modified, renewed, extended, supplemented, refunded, replaced or refinanced from time to time (so long as the encumbrances and restrictions in any such amendment, restatement, modification, renewal, extension, supplement, refunding, replacement or refinancing are, in the good faith judgment of the Borrower’s Board of Directors or a senior financial officer of the Borrower, whose determination shall be conclusive, not materially more restrictive, taken as a whole, than those in effect on the date of the acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of agreements or instruments governing Indebtedness, such Indebtedness was permitted by the terms of this Agreement to be incurred;

(vi) customary non-assignment provisions in contracts and licenses entered into in the ordinary course of business and customary contractual restrictions on transfers of all or substantially all assets of a Person;

(vii) any instrument governing any secured Indebtedness or Financing Lease Obligation that imposes restrictions on the assets securing such Indebtedness or the subject of such lease of the nature described in clause (iii) of Section 6.2(a) hereof;

(viii) any agreement for the sale or other disposition of a Restricted Subsidiary that imposes restrictions of the nature described in clauses (i) and/or (iii) of Section 6.2(a) hereof on the Restricted Subsidiary pending the sale or other disposition;

(ix) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

(x) Liens permitted to be incurred under the provisions of Section 6.6 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;

(xi) provisions limiting the disposition or distribution of assets or property in partnership and joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements, which limitation is applicable only to the assets that are the subject of such agreements;

 

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(xii) restrictions on cash or other deposits or net worth imposed by customers, suppliers or landlords or required by insurance, surety or bonding companies, in each case, under contracts entered into in the ordinary course of business;

(xiii) restrictions in other Indebtedness, Disqualified Stock or Preferred Stock incurred or issued in compliance with Section 6.3 hereof; provided that such restrictions, taken as a whole, in the good faith judgment of the Borrower’s Board of Directors or a senior financial officer of the Borrower, whose determination shall be conclusive, (a) are not materially more restrictive than those contained in the existing agreements referenced in clauses (i), (ii) and (iii) above, or (b) do not impair the ability of any Restricted Subsidiary of the Borrower to pay dividends or make any other distributions or payments directly or indirectly to the Borrower in an amount sufficient to permit the Borrower to pay the Obligations hereunder;

(xiv) the issuance of Preferred Stock by a Restricted Subsidiary of the Borrower or the payment of dividends thereon in accordance with the terms thereof; provided that issuance of such Preferred Stock is permitted pursuant to Section 6.3 hereof and the terms of such Preferred Stock do not expressly restrict the ability of such Restricted Subsidiary to pay dividends or make any other distributions on its Capital Stock (other than requirements to pay dividends or liquidation preferences on such Preferred Stock prior to paying any dividends or making any other distributions on such other Capital Stock);

(xv) any agreement or instrument with respect to Indebtedness incurred, or Preferred Stock issued, by any Restricted Subsidiary, provided that the restrictions contained in the agreements or instruments governing such Indebtedness or Preferred Stock (a) either (i) apply only in the event of a payment default or a default with respect to a financial covenant in such agreement or instrument or (ii) will not materially affect the Borrower’s ability to pay all principal, interest and premium, if any, on the Term Loans, as determined in good faith by the Borrower’s Board of Directors or a senior financial officer of the Borrower, whose determination shall be conclusive; and (b) are not materially more disadvantageous to the Lenders than is customary in comparable financings;

(xvi) any agreement or instrument of the Borrower, Parent, or any of their respective Subsidiaries existing prior to the Closing Date, as such agreements or instruments may be amended, restated, modified, renewed or replaced from time to time; provided that the amendments, restatements, modifications, renewals, and replacements are (in the good faith judgment of the Board of Directors of the Borrower or a senior financial officer of the Borrower, whose determination shall be conclusive) not materially more restrictive, taken as a whole, with respect to such encumbrances and restrictions than those agreements or instruments as in effect as of the Closing Date; and

 

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(xvii) encumbrances and restrictions arising from the Dish Transactions or the Consent Decree Transactions;

(xviii) encumbrances and restrictions arising from any Permitted Towers Financing, Permitted Receivables Financing or Permitted Spectrum Financing, and customary SPV undertakings by each Permitted Spectrum Financing Subsidiary, Permitted Receivables Financing Subsidiary, Permitted Tower Financing Subsidiary or any other securitization entity that is a Restricted Subsidiary.

6.3 Incurrence of Indebtedness and Issuance of Disqualified Stock and Preferred Stock

(a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Borrower will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of Preferred Stock; provided, however, that the Borrower may incur Indebtedness (including Acquired Debt) or issue Disqualified Stock and the Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) or issue Preferred Stock, if the Total Net Leverage Ratio for the Borrower’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or such Preferred Stock is issued, as the case may be, would have been no greater than 6.00 to 1.00, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or the Preferred Stock had been issued, as the case may be, at the beginning of such four-quarter period (or, if incurred in connection with a Permitted Acquisition or other Investment, the Total Net Leverage Ratio would not exceed the Total Net Leverage Ratio immediately prior to such Permitted Acquisition or other Investment); provided that (i) the aggregate amount of Indebtedness incurred and Disqualified Stock and Preferred Stock issued under this Section 6.3(a) by Restricted Subsidiaries that are not Subsidiary Guarantors, together with the aggregate amount of Indebtedness incurred pursuant to Section 6.01(b)(xv) by Restricted Subsidiaries that are not Subsidiary Guarantors, shall not exceed the greater of $6,050,000,000 and 27.5% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period and (ii) Indebtedness incurred under this Section 6.3(a) in the form of term loans secured on a pari passu basis with the Initial Term Loans and incurred on or prior to the date that is twenty-four (24) months after the Closing Date shall be subject to the provisions of clause (A) of the proviso to Section 2.23(b).

(b) The provisions of Section 6.3(a) hereof will not prohibit the incurrence of any of the following items of Indebtedness (collectively, “Permitted Debt”), nor will it prohibit the Borrower from issuing the following types of Disqualified Stock or the Borrower’s Restricted Subsidiaries from issuing the following types of Preferred Stock:

(i) the incurrence by the Borrower and any Subsidiary Guarantor of (A) Indebtedness pursuant to any Loan Document (including Indebtedness under any Incremental Facility, Replacement Facility and Extension Facility) and any Incremental Equivalent Debt incurred in accordance with Section 2.23 and (B) without duplication, all Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to the foregoing clause (A);

 

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(ii) the incurrence by the Borrower and its Restricted Subsidiaries of any Existing Debt;

(iii) the incurrence by the Borrower and the Restricted Subsidiaries of Indebtedness represented by the Senior Notes, and any related Registered Equivalent Notes to be issued in exchange therefor, and, in each case, the related Guarantees thereof;

(iv) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness represented by Financing Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing (whether prior to or within 270 days after) all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment or the Capital Stock of any Person owning such assets used in the business of the Borrower or any of its Restricted Subsidiaries, in an aggregate principal amount at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (iv);

(v) the incurrence by the Borrower or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge any Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under Section 6.3(a) hereof or clauses (ii), (iii), (iv), (v), (ix), (xiii), (xiv), (xv), (xviii), (xix), (xxiv), (xxv) or (xxvi) of this Section 6.3(b);

(vi) the incurrence by the Borrower or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Parent, the Borrower and any of its Restricted Subsidiaries and any Guarantors; provided, however, that:

(A) if the Borrower or any Subsidiary Guarantor is the obligor on such Indebtedness and the payee is not the Borrower or a Guarantor, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations then due with respect to the Facilities, in the case of the Borrower, or the Guarantee of the Facilities, in the case of a Subsidiary Guarantor; and

 

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(B) (1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Parent, the Borrower or a Restricted Subsidiary of the Borrower, or a Guarantor and (2) any sale or other transfer of any such Indebtedness to a Person that is not either Parent, the Borrower or a Restricted Subsidiary of the Borrower, or a Guarantor, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Borrower or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);

(vii) the issuance by any of the Borrower’s Restricted Subsidiaries to the Borrower or to any of its Restricted Subsidiaries of shares of Preferred Stock; provided, however, that:

(A) any subsequent issuance or transfer of Equity Interests that results in any such Preferred Stock being held by a Person other than Parent, the Borrower or a Restricted Subsidiary of the Borrower or a Guarantor; and

(B) any sale or other transfer of any such Preferred Stock to a Person that is not either Parent, the Borrower or a Restricted Subsidiary of the Borrower, or a Guarantor, will be deemed, in each case, to constitute an issuance of such Preferred Stock by such Restricted Subsidiary that was not permitted by this clause (vii);

(viii) the incurrence by the Borrower or any of its Restricted Subsidiaries of Hedging Obligations (other than for speculative purposes);

(ix) the guarantee by the Borrower or any of the Subsidiary Guarantors of Indebtedness of the Borrower or a Restricted Subsidiary of the Borrower that was permitted to be incurred by another provision of this Section 6.3; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Obligations, then the guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;

(x) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, deposits, performance bonds, completion bonds, bid bonds, appeal bonds and surety bonds, indemnity bonds, specific performance or injunctive relief bonds or similar bonds or obligations in the ordinary course of business, and any Guarantees or letters of credit functioning as or supporting any of the foregoing;

(xi) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days of notice to the Borrower or any of its Restricted Subsidiaries, (B) in respect of netting, overdraft protection and other arrangements arising under standard business terms of any bank at which the Borrower or any Restricted Subsidiary maintains an overdraft, cash pooling or other similar facility or arrangement or (C) in respect of the financing of insurance premiums in the ordinary course of business;

 

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(xii) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness in respect of letters of credit required to be issued in connection with any Permitted Joint Venture Investment;

(xiii) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness for relocation or clearing obligations relating to the Borrower’s or any of its Restricted Subsidiary’s FCC Licenses in an aggregate principal amount (or accreted value, as applicable), including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (xiii), at any time outstanding not to exceed the greater of (x) $1,000.0 million and 4.50% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period;

(xiv) the incurrence by the Borrower or any of its Restricted Subsidiaries of Contribution Indebtedness;

(xv) the incurrence by the Borrower or any of its Restricted Subsidiaries of (A) Indebtedness (including Acquired Debt) used to finance an acquisition of or a merger with another Person, provided that, the Borrower or the Person formed by or surviving any such consolidation or merger (if other than the Borrower or a Restricted Subsidiary), on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, would either (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Total Net Leverage Ratio test set forth in Section 6.3(a) hereof or (b) have a Total Net Leverage Ratio no greater than the Total Net Leverage Ratio of the Borrower immediately prior to such transaction, or (B) Indebtedness secured by Liens permitted by clauses (c) and (d) of the definition of Permitted Liens; provided that (i) the aggregate amount of Indebtedness incurred under this Section 6.3(b)(xv) by Restricted Subsidiaries that are not Subsidiary Guarantors, together with the aggregate amount of Indebtedness incurred and Disqualified Stock and Preferred Stock issued pursuant to Section 6.01(a) by Restricted Subsidiaries that are not Subsidiary Guarantors, shall not exceed the greater of $6,050,000,000 and 27.5% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period and (ii) Indebtedness incurred under this Section 6.3(b)(xv) in the form of term loans secured on a pari passu basis with the Initial Term Loans and incurred on or prior to the date that is twenty-four (24) months after the Closing Date shall be subject to the provisions of clause (A) of the proviso to Section 2.23(b);

(xvi) the incurrence by the Borrower or any of its Restricted Subsidiaries of Indebtedness arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Borrower or any of its Restricted Subsidiaries pursuant to such agreements, in any case incurred in connection with the disposition of any business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), so long as the amount does not exceed the gross proceeds actually received by the Borrower or any Restricted Subsidiary thereof in connection with such disposition;

 

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(xvii) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business; provided that, upon the drawing of such letters of credit, such obligations are reimbursed within 30 days following such drawing;

(xviii) Permitted Pari Passu Secured Refinancing Debt, Permitted Junior Secured Refinancing Debt and Permitted Unsecured Refinancing Debt;

(xix) the incurrence by the Borrower or any of the Subsidiary Guarantors of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, not to exceed the greater of (x) $2,500.0 million and 11.25% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period;

(xx) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness arising in connection with endorsement of instruments for deposit in the ordinary course of business;

(xxi) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness evidenced by promissory notes subordinated to the Obligations issued to current or former employees or directors of Parent, the Borrower or any Subsidiary (or their respective spouses or estates) in lieu of cash payments for Capital Stock being repurchased from such Persons, not to exceed, in any twelve-month period, an amount equal to the amount of Restricted Payments that could be made during such twelve-month period pursuant to clause (v) of Section 6.1(b) hereof less the amount of Restricted Payments that have been made during such twelve-month period pursuant to such clause;

(xxii) the incurrence by the Borrower or any Restricted Subsidiary of Indebtedness consisting of take-or-pay obligations contained in supply agreements entered into in the ordinary course of business;

(xxiii) to the extent that deposits with, or payments owed to, the FCC in connection with the auction or licensing of Governmental Authorizations are deemed to be Indebtedness, the incurrence by the Borrower or any Restricted Subsidiary of such Indebtedness;

(xxiv) Indebtedness incurred in connection any Permitted Receivables Financing, Permitted Tower Financing (including the Towers Transactions) or Permitted Spectrum Financing;

 

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(xxv) Indebtedness incurred under the Designated L/C Facilities in an aggregate amount not to exceed $300.0 million;

(xxvi) Indebtedness incurred under or in connection with the Dish Transactions or the Consent Decree Transactions; and

(xxvii) the incurrence by Restricted Subsidiaries that are not Guarantors of Indebtedness; provided, however, that the aggregate principal amount (or accreted value, as applicable) of all Indebtedness incurred under this clause (xxvii), when aggregated with the principal amount (or accreted value) of all other Indebtedness then outstanding and incurred pursuant to this clause (xxvii), including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (xxvii), does not exceed the greater of (x) $625.0 million and 3.00% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period.

For purposes of (x) determining compliance with this Section 6.3, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xxvii) above, or is entitled to be incurred pursuant to Section 6.3(a) hereof, the Borrower will be permitted to classify all or a portion of such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 6.3 and (y) determining the amount of Indebtedness that may be incurred pursuant to clause (i)(A) of Section 6.3(b), the Borrower may elect, pursuant to an Officers’ Certificate delivered to the Administrative Agent, to treat all or any portion of the commitment under any Indebtedness (and any refinancing with respect thereto) as being incurred at such time, in which case any subsequent incurrence of Indebtedness under such commitment or refinancing, as the case may be, shall not be deemed, for purposes of this calculation, to be an incurrence at such subsequent time. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of Preferred Stock as Indebtedness due to a change in accounting principles or the application thereof, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 6.3. Notwithstanding any other provision of this Section 6.3, the maximum amount of Indebtedness that the Borrower or any Restricted Subsidiary may incur pursuant to this Section 6.3 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values, and in no event shall the reclassification of any lease or other liability as indebtedness due to a change in accounting principles after the Closing Date be deemed to be an incurrence of Indebtedness. In determining the amount of Indebtedness outstanding under one of the clauses of Section 6.3(b), the outstanding principal amount of any particular Indebtedness of any Person shall be counted only once and any obligation of such Person or any other Person arising under any guarantee, Lien, letter of credit or similar instrument supporting such Indebtedness shall be disregarded so long as it is permitted to be incurred by the Person or Persons incurring such obligation.

 

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The amount of any Indebtedness outstanding as of any date will be:

(a) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;

(b) in the case of Hedging Obligations, the termination value of the agreement or arrangement giving rise to such obligations that would be payable (giving effect to netting) by such Person at such time;

(c) the principal amount of the Indebtedness, in the case of any other Indebtedness; and

(d) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:

(i) the Fair Market Value of such assets at the date of determination; and

(ii) the amount of the Indebtedness of the other Person.

6.4 Asset Sales

The Borrower will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:

(a) the Borrower (or the Restricted Subsidiary, as the case may be) receives consideration at the time of the Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and

(b) at least 75% of the consideration received by the Borrower or such Restricted Subsidiary in the Asset Sale and all other Asset Sales since the Reference Notes Indenture Closing Date is in the form of cash, Cash Equivalents or Replacement Assets or a combination thereof. For purposes of this provision, each of the following will be deemed to be cash:

(i) any liabilities, as shown on the Borrower’s most recent consolidated balance sheet (or as would be shown on the Borrower’s consolidated balance sheet as of the date of such Asset Sale), of the Borrower or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated in right of payment to the Obligations or any Guarantee of the Obligations) that are repaid and discharged by the transferee of any such assets, or assumed by the transferee of any such assets in a transaction that releases the Borrower or such Restricted Subsidiary from further liability;

(ii) any securities, notes or other obligations received by the Borrower, or any such Restricted Subsidiary, from such transferee that are converted by the Borrower or such Restricted Subsidiary into cash, Cash Equivalents or Replacement Assets within 180 days after such Asset Sale, to the extent of the cash, Cash Equivalents or Replacement Assets received in that conversion;

 

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(iii) consideration consisting of Indebtedness of the Borrower or of a Restricted Subsidiary (other than Subordinated Indebtedness) received after the Closing Date from Persons who are not the Borrower or any Restricted Subsidiary; and

(iv) any Designated Non-Cash Consideration received by the Borrower or any Restricted Subsidiary in such Asset Sale having an aggregate fair market value (as determined in good faith by the Borrower), taken together with all other Designated Non-Cash Consideration received pursuant to this clause (b)(iv) that is at any time outstanding, not to exceed 5% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period (with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value).

Notwithstanding the foregoing, the 75% limitation referred to above shall be deemed satisfied with respect to any Asset Sale in which the cash, Cash Equivalents or Replacement Assets portion of the consideration received therefrom, determined in accordance with the foregoing provision on an after-tax basis, is equal to or greater than what the after-tax proceeds would have been had such Asset Sale complied with the aforementioned 75% limitation. Notwithstanding the foregoing, the requirements set forth in clauses (a) and (b) above shall be deemed satisfied with respect to any Asset Sales of any non-core assets to obtain the approval of any Governmental Authority in respect of any transaction, including any Permitted Acquisition or other Permitted Investment.

Within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Borrower or a Restricted Subsidiary may apply an amount equal to such Net Proceeds:

(a) to purchase Replacement Assets;

(b) to prepay, repay, defease, redeem, purchase or otherwise retire Indebtedness and other obligations in respect of any secured Indebtedness (including Indebtedness secured by property that is subject to such Asset Sale) (provided that, if such property constitutes Collateral, such Indebtedness is secured on a pari passu basis with, or senior basis to, the Initial Term Loans with respect to such property) and, if the Indebtedness repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto; provided that if such property constitutes Collateral and such other Indebtedness is neither the Bridge Facility nor secured on a senior basis to the Obligations with respect to such property, the Initial Term Loans shall be prepaid on at least a ratable basis (based on principal amount outstanding) with such other Indebtedness; or

(c) if the assets subject to such Asset Sale are the property or assets of a Restricted Subsidiary that is not a Guarantor, to prepay, repay, defease, redeem, purchase or otherwise retire Indebtedness of any Restricted Subsidiary that is not a Guarantor, other than Indebtedness owed to the Borrower or any Restricted Subsidiary.

 

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Notwithstanding the foregoing, if within 365 days after the receipt of any Net Proceeds from an Asset Sale, the Borrower or a Restricted Subsidiary enters into a binding written agreement committing the Borrower or such Restricted Subsidiary, subject to customary conditions, to an application of funds of the kind described above, the Borrower or such Restricted Subsidiary shall be deemed not to be in violation of the preceding paragraph so long as such application of funds is consummated within 545 days of the receipt of such Net Proceeds.

Pending the final application of any Net Proceeds of an Asset Sale, the Borrower may temporarily reduce revolving credit borrowings or otherwise use the Net Proceeds in any manner that is not prohibited by this Agreement.

An amount equal to any Net Proceeds from Asset Sales that are not applied or invested as provided in the third paragraph of this Section 6.4 will, at the end of the period provided for such application or investment, constitute “Excess Proceeds.”

6.5 Transactions with Affiliates

(a) The Borrower will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Borrower (each, an “Affiliate Transaction”), in any one or series of related transactions involving aggregate payments or consideration in excess of the greater of $125.0 million and 0.50% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period, unless:

(i) the Affiliate Transaction is on terms that, taken as a whole, are no less favorable to the Borrower or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Borrower or such Restricted Subsidiary with an unrelated Person; and

(ii) the Borrower delivers to the Administrative Agent:

(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of the greater of $250.0 million and 1.00% of Consolidated Cash Flow, an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 6.5(a); and

(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of the greater of $625.0 million and 2.75% of Consolidated Cash Flow, a resolution of the Board of Directors of the Borrower or Parent set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with this Section 6.5 and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors of the Borrower or Parent.

 

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(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 6.5(a) hereof:

(i) any employment agreement, employee benefit plan, agreement or plan relating to employee, officer or director compensation or severance, officer or director indemnification agreement or any similar arrangement entered into by the Borrower, any of its Restricted Subsidiaries or a direct or indirect parent of the Borrower existing on the Closing Date, or entered into thereafter in the ordinary course of business, and any indemnities or other transactions permitted or required by bylaw, statutory provisions or any of the foregoing agreements, plans or arrangements and payments pursuant thereto;

(ii) transactions between or among Parent, the Borrower and/or its Restricted Subsidiaries;

(iii) transactions with a Person (other than an Unrestricted Subsidiary of the Borrower) that is an Affiliate of the Borrower solely because the Parent or Borrower owns, directly or through a Restricted Subsidiary, an Equity Interest in, or controls, such Person;

(iv) any issuance of Equity Interests (other than Disqualified Stock) of the Borrower to, or receipt of any capital contribution from, any Affiliate of the Borrower;

(v) transactions in connection with any Permitted Joint Venture Investment;

(vi) any Permitted Receivables Financings, Permitted Tower Financing (in each case including Standard Securitization Undertakings) and any transactions related to or entered into in connection with such financings that are not otherwise prohibited by this Agreement, Permitted Investments or Restricted Payments that do not violate Section 6.1 hereof;

(vii) any contracts, agreements or understandings existing as of the Closing Date and any amendments to, replacements of, or orders pursuant to such contracts, agreements or understandings so long as any such amendments, replacements, or orders, taken as a whole, are not (in the good faith judgment of the Borrower’s Board of Directors or a senior financial officer of the Borrower, whose determination shall be conclusive) more disadvantageous to the Borrower or to the Lenders in any material respect than the original contracts, agreements or understandings as in effect on the Closing Date;

 

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(viii) transactions with customers, clients, suppliers, purchasers or sellers of goods or services, or licensees of intellectual property in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement, provided that in the good faith determination of the Borrower’s Board of Directors or a senior financial officer of the Borrower, which determination shall be conclusive, such transactions are on terms, taken as a whole, not materially less favorable to the Borrower or the applicable Restricted Subsidiary than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s length basis from a Person that is not an Affiliate of the Borrower;

(ix) issuances, exchanges, purchases or repurchases of Senior Notes or other Indebtedness of the Borrower or its Restricted Subsidiaries or solicitations of amendments, waivers or consents in respect of Senior Notes or such other Indebtedness, if such issuance, purchase, repurchase or solicitation is approved by a majority of the disinterested members of the Board of Directors of Parent or the Borrower;

(x) reasonable payments made for any financial advisory, financing, underwriting, placement or syndication services approved by the Parent’s or Borrower’s Board of Directors or a senior financial officer of the Borrower in good faith;

(xi) any Permitted Spectrum Financing (including any Standard Securitization Undertakings) and any transactions related to or entered into in connection with such Permitted Spectrum Financings that are not otherwise prohibited by this Agreement;

(xii) amendments, extensions, replacements and other modifications of transactions with Affiliates otherwise permitted by this Agreement, provided that in the good faith determination of the Borrower’s Board of Directors or a senior financial officer of the Borrower, which determination shall be conclusive, such amendments, extensions, replacements or other modifications, taken as a whole, are no less favorable in any material respect to the Borrower or the applicable Restricted Subsidiary than the transaction or transactions being amended, extended, replaced or modified;

(xiii) transactions under or in connection with the Dish Transactions or the Consent Decree Transactions; and

(xiv) (i) the Business Combination Agreement and any ancillary agreement referred to therein, in each case as the same may be amended, modified, supplemented modified or replaced from time to time on terms that, taken as a whole, in the good faith determination of the Borrower’s Board of Directors or a senior financial officer of Borrower, which determination shall be conclusive, are not materially less favorable to Borrower or the applicable Restricted Subsidiary than those of the agreement being amended, modified, supplemented or replaced, (ii) transactions or agreements relating to the Senior Unsecured Notes, as may be amended, modified, or supplemented from time to

 

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time, and any indebtedness incurred in connection with the refinancing of the foregoing, on terms that, taken as a whole, in the good faith determination of the Borrower’s Board of Directors or a senior financial officer of the Borrower, which determination shall be conclusive, are not materially less favorable to the Borrower than those of the Senior Unsecured Notes, and (iii) transactions between the Borrower and its Restricted Subsidiaries, on the one hand, and any Designated Tower Entities that have been designated as Unrestricted Subsidiaries, on the other hand, in connection with any Permitted Tower Financing.

6.6 Liens. The Borrower will not, and will not permit any Guarantor to, directly or indirectly, create, incur, or assume any Lien securing Indebtedness upon any asset now owned or hereafter acquired, except Permitted Liens. Any Liens permitted pursuant to clauses (a), (l), (dd), (hh) and (jj) (and any Permitted Refinancing Indebtedness or Permitted Credit Agreement Refinancing Indebtedness in respect of the foregoing) of the definition of Permitted Liens may be pari passu with or junior to the liens securing the Obligations and other indebtedness permitted to be incurred under this Agreement, pursuant to a Senior Pari Passu Intercreditor Agreement (or Senior/Junior Intercreditor Agreement, as applicable) or, if requested by the Borrower, other customary intercreditor arrangements reasonably satisfactory to the Administrative Agent, and the Administrative Agent shall enter into such Senior Pari Passu Intercreditor Agreement (or Senior/Junior Intercreditor Agreement, as applicable) or other intercreditor arrangements with respect to the obligations secured by such Liens if requested by the Borrower.

For purposes of determining compliance with this Section 6.6, in the event that a Lien meets the criteria of more than one of the clauses described in the definition of “Permitted Liens”, the Borrower will be permitted to reclassify all or a portion of such Lien on the date it is made, or later reclassify all or a portion of such Lien, in any manner that complies with this Section 6.6.

Notwithstanding anything to the contrary in this Section 6.6, and solely to the extent any Spectrum SPV Equity Interests constitute Excluded Assets pursuant to clause (6) of the definition of “Excluded Assets”, the Borrower will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create, incur or assume any Lien on such Spectrum SPV Equity Interests securing Indebtedness unless (i) such Lien is otherwise permitted under this Section 6.6 and (ii) a first priority Lien on such Equity Interests (which may be pari passu with such other Lien) is promptly granted to the Collateral Trustee for the benefit of the Secured Parties and any perfection requirements with respect thereto are satisfied within the time periods required by Section 5.9 hereof.

6.7 Merger, Consolidation, or Sale of Assets. The Borrower will not: (i) consolidate or merge with or into another Person (whether or not the Borrower is the surviving corporation); or (ii) directly or indirectly sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person (including, in the case of both clauses (i) and (ii), pursuant to a Delaware LLC Division), unless:

 

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(a) either:

(i) the Borrower is the surviving corporation; or

(ii) the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made is a corporation, limited liability company or partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia;

(b) the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or the Person to which such sale, assignment, lease, transfer, conveyance or other disposition has been made expressly assumes, (x) by an assumption and joinder agreement, executed and delivered to the Administrative Agent, the payment of the principal of and any premium and interest on the Obligations and the performance or observance of every covenant of this Agreement on the part of the Borrower to be performed or observed, and (y) by amendment, supplement or other instrument (in form reasonably satisfactory to the Administrative Agent), executed and delivered to the Administrative Agent, all obligations of the Borrower under the Security Documents, and in connection therewith shall cause such instruments to be filed and recorded in such jurisdictions and take such other actions as may be required by applicable law to perfect or continue the perfection of the Liens (to the extent such collateral agreements require such Liens to be perfected) created under the Security Documents on the Collateral owned by or transferred to the surviving entity;

(c) immediately after such transaction, no Default or Event of Default exists; and

(d) the Borrower or the Person formed by or surviving any such consolidation or merger (if other than the Borrower), or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made would, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, either (a) be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Total Net Leverage Ratio test set forth in Section 6.3(a) hereof or (b) have a Total Net Leverage Ratio no greater than the Total Net Leverage Ratio of the Borrower immediately prior to such transaction.

This Section 6.7 will not apply to (and the following shall be permitted notwithstanding this Section 6.7):

(a) a merger of the Borrower with a direct or indirect Subsidiary of Parent solely for the purpose of reincorporating the Borrower in another jurisdiction in the United States so long as the amount of Indebtedness of the Borrower and its Restricted Subsidiaries is not increased thereby; or

(b) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Borrower and its Restricted Subsidiaries.

 

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Upon any consolidation or merger, or any sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Borrower and its Restricted Subsidiaries, taken as a whole, in a transaction that is subject to, and that complies with the provisions of, Section 6.7 hereof, the successor Person formed by such consolidation or into or with which the Borrower is merged or to which such sale, transfer, assignment, lease, conveyance or other disposition is made, shall succeed to, and be substituted for the Borrower (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Agreement referring to the “Borrower” shall refer instead to the successor Person and not to the Borrower), and may exercise every right and power of the Borrower under this Agreement with the same effect as if such successor Person had been named as the Borrower herein. When the successor Person assumes all of the Borrower’s obligations under this Agreement and the other Loan Documents, the Borrower shall be discharged from those obligations.

6.8 Financial Covenant. The Borrower shall not, without the written consent of the Required Revolving Lenders, permit the Total First Lien Net Leverage Ratio determined on a Pro Forma Basis as of the last day of any Test Period, commencing with the Test Period ending September 30, 2020, to exceed 3.30 to 1.00.

SECTION 7. EVENTS OF DEFAULT

7.1 Events of Default. An Event of Default shall occur if any of the following events shall occur and be continuing; provided that any requirement for the giving of notice, the lapse of time, or both has been satisfied:

(a) (i) the Borrower shall fail to pay any principal of any Loan or Reimbursement Obligation when due in accordance with the terms hereof; or (ii) the Borrower shall fail to pay any interest on any Loan, or any Loan Party shall fail to pay any fee or other amount payable hereunder or under any other Loan Document, within five Business Days after any such interest, fee or other amount becomes due in accordance with the terms hereof or thereof;

(b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement required to be furnished by such Loan Party at any time under this Agreement or any such other Loan Document shall prove to have been incorrect in any material respect on or as of the date made or deemed made or furnished;

(c) any Loan Party shall default in the observance or performance of any agreement contained in clause (i) of Section 5.4(a) (with respect to the Borrower only), Section 5.7(a) (provided that the delivery of the notice referred to in such Section 5.7(a) at any time will cure any such Event of Default arising from the failure to timely deliver such notice of default, except where a Responsible Officer had actual knowledge both that the underlying Default or Event of Default had occurred and that delivery of notice of such underlying Default or Event of Default was required, and such Responsible Officer failed to cause such notice to be delivered in accordance with Section 5.7(a)), Section 5.10 or Section 6 (provided that the failure to observe or perform the Financial Covenant shall not constitute an Event of Default with

 

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respect to any Term Facility hereunder until the date on which the Required Revolving Lenders accelerate payment of the Revolving Credit Loans and terminate their Revolving Credit Commitments or foreclose upon the Collateral; provided, further, that prior to the time it becomes an Event of Default with respect to any Term Facility, any Event of Default under this paragraph (c) based on the failure to observe or perform the Financial Covenant may be waived, amended, terminated or otherwise modified from time to time by the Required Revolving Lenders and the Administrative Agent);

(d) any Loan Party shall default in the observance or performance of any covenant or other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 7.1), and such default shall continue unremedied for a period of 30 days following delivery of written notice thereof to the Borrower by the Administrative Agent;

(e) Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary) shall default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary) (or the payment of which Indebtedness for borrowed money is guaranteed by Parent, the Borrower or any of its Restricted Subsidiaries that together would constitute a Significant Subsidiary), whether such Indebtedness or Guarantee now exists, or is created hereafter, if that default:

(i) is caused by a failure to pay principal of, or interest or premium, if any, on, such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “Payment Default”); or

(ii) results in the acceleration of such Indebtedness prior to its express maturity;

and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates an amount equal to the greater of $250.0 million and 1.00% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period, or more, in each case for so long as such failure or acceleration is continuing; provided that upon becoming an Event of Default, such Event of Default shall be deemed to have been remedied and shall no longer be continuing if any such defaults, events or conditions are remedied or waived prior to any acceleration of the Loans pursuant to the below provisions of this Section 7.1 by any of the holders or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holders or beneficiaries) and, after giving effect thereto, at such time, one or more defaults, events or conditions of the type described in clause (i) or (ii) of this paragraph (e) shall no longer be continuing with respect to such Indebtedness; provided, further, that the failure to observe or perform the Financial Covenant shall not constitute an Event of Default with respect to any Term Facility hereunder until the date on which the Required Revolving Lenders accelerate payment of the Revolving Credit Loans and terminate their Revolving Credit Commitments or foreclose upon the Collateral; provided, further, that prior to the time it becomes an Event of Default with respect to any Term Facility, any Event of Default under this paragraph (e) based on the failure to observe or perform the Financial Covenant may be waived, amended, terminated or otherwise modified from time to time by the Required Revolving Lenders and the Administrative Agent;

 

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(f) Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary) shall fail to pay or discharge final judgments entered by a court or courts of competent jurisdiction aggregating in excess of an amount equal to the greater of $250.0 million and 1.00% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period (to the extent not covered by insurance), which judgments are not paid, discharged or stayed for a period of 60 consecutive days following entry of such final judgment or decree during which a stay of enforcement of such final judgment or decree, by reason of pending appeal or otherwise, is not in effect;

(g) Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary) shall:

(i) commence a voluntary case under any Bankruptcy Law,

(ii) consent to the entry of an order for relief against it in an involuntary case under any Bankruptcy Law,

(iii) consent to the appointment of a custodian of it or for all or substantially all of its property,

(iv) make a general assignment for the benefit of its creditors, or

(v) generally not be paying its debts as they become due;

(h) a court of competent jurisdiction shall enter a final order or decree under any Bankruptcy Law that:

(i) is for relief against Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Borrower that, taken together, would constitute a Significant Subsidiary in an involuntary case;

(ii) appoints a custodian of Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Borrower that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Borrower that, taken together, would constitute a Significant Subsidiary; or

 

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(iii) orders the liquidation of Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Borrower that, taken together, would constitute a Significant Subsidiary;

and the final order or decree remains unstayed and in effect for 90 consecutive days (in respect of clause (i) above) or 60 consecutive days (in respect of clause (ii) and (iii) above);

(i) (x) any Security Document that creates a Lien with respect to a material portion of the Collateral shall cease, for any reason (other than by reason of the release or termination thereof pursuant to the provisions of the Loan Documents), to be in full force and effect, or any Loan Party (or any of its Affiliates that has the power, directly or indirectly, to direct or cause the direction of the management and policies of such Loan Party) shall so assert in writing (other than by reason of the release or termination thereof pursuant to the provisions of the Loan Documents), except to the extent that any lack of full force and effect or enforceability or such loss of perfection or priority results solely from the failure of the Collateral Trustee to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or otherwise solely as a result of acts or omissions by the Administrative Agent or any Lender or (y) any Lien created or purported to be created by the Security Documents shall cease to have the lien priority established or purported to be established by the Collateral Trust Agreement (other than in accordance with its terms);

(j) any Change of Control Triggering Event shall occur;

(k) there shall occur one or more ERISA Events which individually or in the aggregate results in or could reasonably be expected to result in liability of any Loan Party or any of their respective ERISA Affiliates that would reasonably be expected to result in a Material Adverse Effect during the term hereof or there shall be a lien in favor of any Plan as provided under Section 430(k) of the Code or under Section 303(k) of ERISA in an amount that would result in a Material Adverse Effect; and

(l) the guarantee contained in the Guarantee Agreement shall cease, for any reason (other than by reason of the express release thereof pursuant to the provisions of the Loan Documents), to be in full force and effect or any Loan Party shall so assert in writing (other than by reason of the express release thereof pursuant to the provisions of the Loan Documents).

7.2 Action in Event of Default.

(a) Upon the occurrence of any Event of Default, (A) if such event is an Event of Default specified in paragraph (g) or (h) above with respect to the Borrower, the Commitments hereunder shall automatically and immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents shall immediately become due and payable, and (B) if such event is any other Event of Default (subject to Sections 7.2(b) and 8.2(c)), then with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, (i) declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan

 

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Documents to be due and payable forthwith, whereupon the same shall immediately become due and payable and (ii) subject to the terms and conditions of any applicable Intercreditor Agreements and any other intercreditor arrangement entered into in connection with this Agreement, commence foreclosure actions with respect to the Collateral in accordance with the terms and procedures set forth in the Security Documents. Notwithstanding the foregoing provisions of this Section 7 or any other provision in this Agreement, any unfunded Commitments outstanding at any time in respect of any Incremental Facility established to finance a Limited Condition Transaction may be terminated only by the Lenders holding more than 50% of the aggregate amount of the Commitments in respect of such Incremental Facility (or by the Administrative Agent at the request of such Lenders) and not, for the avoidance of doubt, automatically or by the Required Lenders or any other Lenders (or by the Administrative Agent acting at the request of the Required Lenders or any other Lenders).

(b) Upon the occurrence of an Event of Default occurring as a result of a failure to observe or perform the Financial Covenant (a “Financial Covenant Event of Default”) that is uncured or unwaived, the Required Revolving Lenders (and, for the avoidance of doubt, not the Administrative Agent (except acting at the direction of such Required Revolving Lenders), the Required Lenders or any other Lenders) may either (x) terminate the Revolving Credit Commitments and/or (y) take the actions specified in Section 7.2(a) in respect of the Revolving Credit Commitments, the Revolving Credit Loans and Letters of Credit.

(c) In respect of a Financial Covenant Event of Default that is continuing, the Required Lenders may take the actions specified in Section 7.2(a) on or after the date that the Required Revolving Lenders terminate the Revolving Credit Commitments and accelerate all Obligations in respect of the Revolving Credit Commitments; provided, however, that the Required Lenders may not take such actions if either (i) the Revolving Credit Loans have been repaid in full (other than contingent indemnification and reimbursement obligations for which no claim has been made and Letters of Credit that have been cash collateralized) and the Revolving Credit Commitments have been terminated or (ii) such specific instance of a Financial Covenant Event of Default has been waived by the Required Revolving Lenders.

7.3 Clean Up Period.

(a) Notwithstanding anything in Section 7 or elsewhere in this Agreement to the contrary, during the period from the Closing Date until the date that is 60 days after the Closing Date (the “Clean-Up Period”), any breach of a covenant, inaccuracy of or inability to make a representation or warranty (other than a Specified Representation) or other Default or Event of Default (other than an Event of Default of the Borrower under Section 7.1(g) or (h)) by reason of any matter or circumstance relating to Sprint or its Subsidiaries will be deemed not to be a breach of a covenant, an inaccuracy of or failure to make a representation or warranty or a Default or Event of Default so long as the circumstances giving rise thereto:

(i) do not have a material adverse effect on the consolidated results of operations or financial condition of the Borrower and its Subsidiaries (including Sprint and its Subsidiaries) taken as a whole, such that the Borrower and its Subsidiaries (including Sprint and its Subsidiaries) taken as a whole would be unable to perform the payment obligations under the Facilities;

 

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(ii) were not knowingly procured or approved by the Borrower;

(iii) are capable of remedy and reasonable steps are being taken to remedy it; and

(iv) do not constitute a breach of the covenants relating to the accession of Guarantors beyond the earlier of thirty (30) days after the Closing Date or the date on which any required Guarantor actually guarantees the Existing T-Mobile Notes.

(b) For the avoidance of doubt, if any breach of representation shall be deemed to not exist due to Section 7.3(a), then such breach of representation shall be deemed not to exist for purposes of Section 4.2 for so long as (but in no event later than the end of the Clean-Up Period) such breach of representation shall be deemed not to exist due to the provisions of Section 7.3(a).

7.4 Application of Proceeds.

(a) Subject to the Collateral Trust Agreement or any other Intercreditor Agreement, if an Event of Default shall have occurred and be continuing, at any time at the Collateral Trustee’s election, the Administrative Agent may apply all or any part of the net proceeds (after deducting all reasonable out-of-pocket costs, fees and expenses of the Collateral Trustee) of Collateral realized through the exercise by the Collateral Trustee of its remedies hereunder, whether or not held in any Collateral Account (as defined in the Collateral Agreement), and any proceeds of the guarantee set forth in the Guarantee Agreement, in payment of the Obligations in the following order (provided that if the terms of any Permitted Amendment provide for application of such Proceeds to the payment of any Obligations in a less favorable order, then the terms of such Permitted Amendment shall govern with respect to such Obligations and the Administrative Agent shall apply such Proceeds in such different order):

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal, interest, and fees under Section 2.13(a) and Section 2.13(b), but including attorneys’ fees payable under the Credit Agreement and amounts payable under the Guarantee Agreement) 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, fees in respect of Letters of Credit that are payable pursuant to Section 2.13(b), Cash Management Obligations, Designated L/C Facilities Obligations and Obligations under Designated Hedge Agreements and, to the extent payable under clause First, attorneys’ fees) payable to the Secured Parties (including attorneys’ fees payable hereunder and amounts payable under the Guarantee Agreement), ratably among them in proportion to the amounts described in this clause Second payable to them;

Third, to payment of that portion of the Obligations constituting accrued and unpaid fees in respect of Letters of Credit that are payable pursuant to Section 2.13(b) and interest on the Loans, LC Exposure and other Obligations, ratably among the holders of such Obligations in proportion to the respective amounts described in this clause Third payable to them;

 

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Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, LC Disbursements, Cash Management Obligations, Designated L/C Facilities Obligations, Designated Hedging Obligations, Obligations owing to the Administrative Agent for the account of the Issuing Banks, to cash collateralize (in a manner consistent with Section 2.7(k)) that portion of LC Exposure comprised of the aggregate undrawn amount of Letters of Credit, ratably among the holders of such Obligations 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 that are then due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and

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

(a) Subject to Section 2.7(k), amounts used to cash collateralize the undrawn amount of Letters of Credit pursuant to clause Fourth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as cash collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.

(b) The Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of proceeds in the amount agreed upon by the Administrative Agent or by the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Administrative Agent or such officer or be answerable in any way for the misapplication thereof.

SECTION 8. THE AGENTS

8.1 Appointment. Each Lender hereby irrevocably designates and appoints Deutsche Bank AG New York Branch (in its capacity as the Administrative Agent) as the administrative agent of such Lender under this Agreement and the other Loan Documents, and each such Lender irrevocably authorizes the Administrative Agent and the Collateral Trustee, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent and the Collateral Trustee by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Without limiting the generality of the foregoing, each Lender hereby authorizes the Collateral Trustee to enter into each Security Document and any other intercreditor or subordination agreements contemplated hereby (including any Senior Pari Passu Intercreditor Agreement) on behalf of and for the benefit of the Lenders and the other Secured Parties and agrees to be bound by the terms thereof. Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent and the Collateral Trustee shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent or the Collateral Trustee.

 

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Each of the Lenders (including in its capacity as a Qualified Counterparty) hereby irrevocably appoints Deutsche Bank Trust Company Americas to act on its behalf as the Collateral Trustee hereunder and under the other Loan Documents and authorizes the Collateral Trustee to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Trustee by the terms hereof or thereof for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted under the Security Documents to secure any of the Obligations, together with such actions and powers as are reasonably incidental thereto. In this connection, the Collateral Trustee and any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Trustee pursuant to Section 8.3 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Collateral Trustee, shall be entitled to the benefits of all provisions of this Section 8 and Section 9 (including Section 9.3), as though the Collateral Trustee or such co-agents, sub-agents and attorneys-in-fact were the “Collateral Trustee” under the Loan Documents and as if set forth in full herein with respect thereto.

8.2 Delegation of Duties. Each Agent may perform any and all of its duties and exercise its rights and powers under this Agreement and the other Loan Documents by or through agents or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in fact selected by it with reasonable care. The exculpatory provisions of this Section 8 shall apply to any agent or attorney-in-fact, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as each Agent.

8.3 Exculpatory Provisions. None of any Agent or any of their respective officers, directors, employees, agents, advisors, attorneys-in-fact or affiliates shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, no Agent shall (i) be subject to any fiduciary or other implied duty, regardless of whether a Default has occurred and is continuing, (ii) be liable to any other Credit Party for any action (x) taken with the consent of the Required Lenders or (y) otherwise lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or such Person’s own gross negligence or willful misconduct), (iii) 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 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 no Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose the Agent to liability or that is contrary to any Loan Document or applicable law, (iv) except as expressly set forth herein and in the other Loan

 

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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 Agent or any of its Affiliates in any capacity or (v) responsible in any manner to any other Credit Party for (w) any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Agents under or in connection with, this Agreement or any other Loan Document, (x) the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or 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 Security Documents (or that the Liens granted to the Collateral Trustee pursuant to any Security Documents have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority) or the value or the sufficiency of any Collateral, (y) any failure of any Loan Party a party thereto to perform its obligations hereunder or thereunder or (z) the satisfaction of any condition set forth in Section 4 or elsewhere herein, other than to confirm receipt of items required to be delivered to the Administrative Agent or the Collateral Trustee. None of the Agents shall be under any obligation to any other Credit Party to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party.

8.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter, facsimile or email message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to Parent or the Borrower), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all affected Lenders or all Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all affected Lenders or all Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans.

8.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative Agent has received written notice from a Lender, Parent or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent

 

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shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all affected Lenders); provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders.

8.6 Non-Reliance on Agents and Other Lenders; Certain ERISA Matters.

(a) Each Lender expressly acknowledges that neither the Agents nor any of their respective officers, directors, employees, agents, advisors, attorneys-in-fact or Affiliates have made any representations or warranties to it and that no act by any Agent hereafter taken, including any review of the affairs of a Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any Lender. Each Lender represents to the Agents that it has, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates and made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, advisors, attorneys-in-fact or Affiliates.

(b) (i) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:

(A) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement,

 

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(B) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,

(C) (1) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (2) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (3) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (4) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or

(D) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

(ii) In addition, unless either (1) sub-clause (A) in the immediately preceding clause (i) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (D) in the immediately preceding clause (i), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).

 

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8.7 Indemnification. The Lenders agree to indemnify each Agent and its officers, directors, employees, Affiliates, agents, advisors and controlling persons (each, an “Agent Indemnitee”) (to the extent not reimbursed by Parent or the Borrower and without limiting any obligation of Parent or the Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in effect on the date on which indemnification is sought under this Section 8.7 (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such Aggregate Exposure Percentages immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs and expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent Indemnitee in any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent Indemnitee under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent Indemnitee’s gross negligence, bad faith or willful misconduct. The agreements in this Section 8.7 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

8.8 Agent in Its Individual Capacity. Each Agent and its affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Loan Party as though such Agent were not an Agent. With respect to its Loans made or renewed by it, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its individual capacity.

8.9 Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 30 days’ notice to the Lenders and the Borrower. If the Administrative Agent shall resign as Administrative Agent, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall be subject to written approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term “Administrative Agent” shall mean such successor agent effective upon such appointment and approval, and the former Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Loans. If no successor agent has been appointed as Administrative Agent by the date that is 30 days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s resignation shall nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders, subject to written approval by the Borrower (which approval shall not be unreasonably withheld or delayed), appoint a successor agent as provided for above. After any retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this Section 8 and of Section 9.5 shall continue to inure to its benefit. For purposes of this Section 8.9, it shall be reasonable for the Borrower to withhold its approval of any successor agent that is not a “United States person” as defined in Section 7701(a)(30) of the Code and not entitled to assume primary withholding responsibility for U.S. federal income tax purposes.

 

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8.10 [Reserved].

8.11 Withholding Tax. To the extent required by any applicable Requirements of Law (including for this purpose, pursuant to any agreements entered into with a Governmental Authority), the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. If the IRS or any other authority of the United States or other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of, withholding Tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Loan Parties and without limiting the obligation of the Loan Parties to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any interest, additions to Tax or penalties thereto, together with all expenses incurred, including legal expenses and any other out-of-pocket expenses, whether or not such Tax was correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by an Administrative Agent shall be deemed presumptively correct absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this Section 8.11. The agreements in this Section 8.11 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other obligations. Unless required by applicable Requirements of Law, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender any refund of Taxes withheld or deducted from funds paid for the account of such Lender. For purposes of this Section 8.11, the term “Lender” shall include any Issuing Bank.

8.12 Proofs of Claim. In case of the pendency of any proceeding under any Bankruptcy Laws relative to any Credit Party, the Administrative Agent and the Collateral Trustee shall be entitled and empowered (but not obligated) 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, the Administrative Agent and the Collateral Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and the Collateral Trustee and their respective agents and counsel and all other amounts due Administrative Agent under Sections 2.13 and 9.3) 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;

 

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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 Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under Sections 2.13 and 9.3. To the extent that the payment of any such compensation, expenses, disbursements and advances of Administrative Agent, its agents and counsel, and any other amounts due Administrative Agent under Sections 2.13 and 9.3 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Lenders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.

Nothing contained herein shall be deemed to authorize the Administrative Agent or the Collateral Trustee 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 Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

SECTION 9. MISCELLANEOUS

9.1 Notices. 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 facsimile or other electronic transmission, as follows:

 

  (i)

if to any of Parent or the Borrower, to it at:

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

E-mail: David.Conroy@T-Mobile.com

with copies (which shall not constitute notice) to:

Fried, Frank, Harris, Shriver & Jacobson LLP

One New York Plaza

New York, NY 10004

Attention: Daniel Bursky

Facsimile: (212) 859-8000

E-mail: Daniel.Bursky@friedfrank.com

 

  (ii)

if to the Administrative Agent, to it at:

Deutsche Bank AG New York Branch

60 Wall Street, New York, New York 10005

Attention: Michael Strobel

Facsimile: 212-250-0939

E-mail: michael-p.strobel@db.com

 

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(iii) if to any other Lender or Issuing Bank, to it at its address (or facsimile number) set forth in its Administrative Questionnaire.

All notices and other communications given to any party hereto, in accordance with the provisions of this Agreement, shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service, or sent by fax or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 9.1, or in accordance with the latest unrevoked direction from such party given in accordance with this Section 9.1. As agreed to among Parent, the Borrower, the Administrative Agent and the applicable Lenders from time to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable Person provided from time to time by such Person.

Each of Parent and the Borrower hereby agrees, unless directed otherwise by the Administrative Agent or unless the electronic mail address referred to below has not been provided by the Administrative Agent to Parent and the Borrower, that it will, and will cause its Subsidiaries to, provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Loan Documents or to the Lenders under Section 5, including all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (a) is or relates to a Borrowing Request, a notice pursuant to Section 2.9, or a notice requesting the issuance, amendment, extension or renewal of a Letter of Credit pursuant to Section 2.7, (b) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (c) provides notice of any Default or Event of Default under this Agreement or any other Loan Document or (d) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other extension of credit hereunder (all such nonexcluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium that is properly identified in a format acceptable to the Administrative Agent to an electronic mail address as directed by the Administrative Agent. In addition, Parent and the Borrower agree, and the Borrower agrees to cause its Subsidiaries, to continue to provide the Communications to the Administrative Agent or the Lenders, as the case may be, in the manner specified in the Loan Documents but only to the extent requested by the Administrative Agent.

Each of Parent and the Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Banks materials and/or information provided by, or on behalf of, the Borrower hereunder (collectively, the “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 wish to receive information and documentation that (x) is publicly available and (y) does not contain MNPI (collectively, “Public Lender Information”)) (each, a “Public Lender”). Each of Parent and the Borrower hereby agrees that (i) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean

 

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that the word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any Private Lender Information (as defined below) (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12); (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor”; and (iv) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor”. Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC” unless the Borrower notifies the Administrative Agent promptly that any such document contains Private Lender Information: (A) the Loan Documents, (B) notification of changes in the terms of the Facilities and (C) all information delivered pursuant to Section 5.1 and Section 5.2(a). “Private Lender Information” means any information and documentation that is not Public Lender Information.

Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI.

THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

 

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The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its electronic mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees that receipt of notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s electronic mail address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

9.2 Waivers; Amendments. (a) No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent, each Issuing Bank and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Parent or the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent, any Issuing Bank or any Lender may have had notice or knowledge of such Default at the time.

(b) None of this Agreement, any other Loan Document or any provision hereunder or thereunder may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that, notwithstanding the foregoing, (x) solely with the written consent of each Lender directly and adversely affected thereby (but without the necessity of obtaining the consent of the Required Lenders, except for clause (1) below which shall also require the consent of the Required Lenders unless effectuated pursuant to Sections 2.23, 2.24 or 2.25), any such agreement may:

(1) increase the Commitment of any Lender;

(2) reduce or forgive the principal amount of any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce any fees or premiums payable hereunder (except in connection with the waiver of applicability of any post-Default increase in interest rates (which waiver shall be effective with the consent of the Required Lenders of each directly and adversely affected Facility));

 

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(3) postpone the scheduled date of payment of the principal amount of any Loan or LC Disbursement or any interest thereon, or any fees or premiums payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment; it being understood that the waiver of any Default, mandatory prepayment or mandatory reduction of Commitments shall not constitute a postponement of the scheduled date of payment of principal of any Loan or expiration of any Commitment of any Lender;

(4) impose additional restrictions on the ability of any Lender to assign any of its rights and obligations hereunder;

and (y) only with the written consent of each Lender, any such agreement may:

(1) change Section 2.20(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, or change the application of proceeds provision in any of Section 7.4 of this Agreement or any corresponding provision in any intercreditor agreement (including any Senior Pari Passu Intercreditor Agreement or Senior/Junior Intercreditor Agreement));

(2) change any of the provisions of this Section 9.2 or the definition of “Required Lenders”, “Required Revolving Lenders”, or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or grant any consent hereunder; or

(3) except as otherwise expressly provided in Section 9.15 or in the Collateral Agreement, the Collateral Trust Agreement or the Guarantee Agreement, release all or substantially all of the Collateral or release Guarantors from their guarantee obligations under the Guarantee Agreement representing all or substantially all of the value of such guarantees, taken as a whole;

provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or any Issuing Bank hereunder in a manner adverse to the Administrative Agent or such Issuing Bank without the prior written consent of the Administrative Agent or such Issuing Bank, as the case may be. Notwithstanding the foregoing, (i) amendments, waivers or other modifications may be made to any condition precedent to the extension of Revolving Credit Loans (or deemed extensions of Revolving Credit Loans) under the Revolving Credit Facility of the same Class with only the written consent of the Required Revolving Lenders (or by the Borrower and the Administrative Agent with the consent of the Required Revolving Lenders) (and for clarity such amendments may not be made solely with the written consent of the Required Lenders), (ii) amendments, waivers and other modifications may be made to Sections 6.8, 7.1(c) (with respect to a Financial Covenant Event of Default) or 7.2(b) or (c) (and definitions to the extent relating to such Sections) (including, for the avoidance of doubt, the amendment, waiver, termination or other modification of the Financial Covenant or

 

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any Financial Covenant Event of Default) with only the written consent of the Required Revolving Lenders (and for clarity such amendments may not be made solely with the written consent of the Required Lenders) and (iii) amendments, waivers and other modifications to the provisions of any Loan Document in a manner that by its terms adversely affects the rights or obligations of Lenders holding Loans or Commitments of a particular Class (but not the rights or obligations of Lenders holding Loans or Commitments of any other Class) will require only the prior written consent of Lenders holding the requisite percentage under this Section 9.2(b) of the outstanding Loans and unused Commitments of such Class (as if such Class were the only Class of Loans and Commitments then outstanding under this Agreement), and the Borrower.

(c) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Administrative Agent and the Borrower, in their sole discretion and without the consent or approval of any other party, may amend, modify or supplement any provision of this Agreement or any other Loan Document to (i) amend, modify or supplement such provision or cure any ambiguity, omission, mistake, error, defect or inconsistency jointly identified by the Administrative Agent and the Borrower, and such amendment, modification or supplement shall become effective without any further action or consent of any other party to any Loan Documents if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof (provided that, if the Required Lenders make such objection in writing, such amendment, modification or supplement shall not become effective without the consent of the Required Lenders), and (ii) to permit additional affiliates of the Borrower to guarantee the Obligations and/or provide Collateral therefor. Such amendments shall become effective without any further action or consent of any other party to any Loan Document.

(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, no Lender consent is required to effect any amendment or supplement to any Senior Pari Passu Intercreditor Agreement or any Senior/Junior Intercreditor Agreement or any other intercreditor arrangements or to any Security Documents entered into pursuant to this Agreement (i) that is for the purpose of adding the holders of any Permitted Pari Passu Secured Refinancing Debt or Permitted Junior Secured Refinancing Debt, any Incremental Equivalent Debt or any Permitted Refinancing Indebtedness in respect of any of the foregoing (or a Senior Representative with respect thereto) as parties thereto, as expressly contemplated by the terms of any Intercreditor Agreement or such other intercreditor arrangement, as applicable (it being understood that any such amendment or supplement may make such other changes to the applicable intercreditor agreement as, in the good faith determination of the Administrative Agent, are required to effectuate the foregoing; provided that such other changes are not adverse, in any material respect, to the interests of the Lenders) or (ii) that is for any other purpose to the extent such amendment is expressly contemplated by such Senior Pari Passu Intercreditor Agreement or such Senior/Junior Intercreditor Agreement or any such other intercreditor arrangements, as applicable (it being understood that any such amendment or supplement may make such other changes to the applicable intercreditor agreement as, in the good faith determination of the Administrative Agent, are required to effectuate the foregoing; provided that such other changes are not adverse, in any material respect, to the interests of the Lenders); provided, further, that no such agreement shall directly and adversely amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent.

 

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(e) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Borrower may enter into Incremental Facility Amendments in accordance with Section 2.23, Replacement Facility Amendments in accordance with Section 2.24 and Extension Amendments in accordance with Section 2.25 and joinder agreements with respect thereto in accordance with such Sections, and such Incremental Facility Amendments, Replacement Facility Amendments and Extension Amendments and joinder agreements may effect such amendments to the Loan Documents or such Intercreditor Agreements as may be necessary or appropriate, in the opinion of the Administrative Agent and the Borrower, to give effect to the existence and the terms of the Incremental Facility, Replacement Facility or Extension, as applicable, and will be effective to amend the terms of this Agreement and the other applicable Loan Documents (including to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the benefits of this Agreement and the other applicable Loan Documents with the other Term Loans and the accrued interest and fees in respect thereof and to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders), in each case, without any further action or consent of any other party to any Loan Document.

(f) Notwithstanding anything to the contrary contained herein or in any other Loan Document, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (and no other party to this Agreement) (i) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share in the benefits of this Agreement and the other Loan Documents with the Term Loans and the Revolving Credit Exposure and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders as conclusively determined by the Administrative Agent in consultation with the Borrower.

(g) Notwithstanding anything to the contrary contained herein or in any other Loan Document, guarantees, collateral security documents and related documents executed by Subsidiaries in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be, together with this Agreement, amended and waived with the consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any other Lender if such amendment or waiver is delivered in order (i) to comply with local Requirements of Law or advice of local counsel, (ii) to cure ambiguities or defects or (iii) to cause such guarantee, collateral security document or other document to be consistent with this Agreement or any other Loan Documents. In addition, if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical nature in this Agreement or any other Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend such provision without further action or consent by any other party; provided that the Required Lenders shall not have objected to such amendment within five Business Days after receiving a copy thereof.

(h) Notwithstanding anything to the contrary contained herein or in any other Loan Document, this Agreement may be amended (or amended and restated) without the written consent of any Lender (except for any Lender that will hold any portion of such new Term Loans) in order to effect any Repricing Event described in clause (a) of the definition thereof in the form of a new tranche of Term Loans under this Agreement.

 

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(i) Notwithstanding anything to the contrary contained herein or in any other Loan Document, this Agreement may be amended to increase the LC Sublimit with the written consent of the Issuing Banks and the Administrative Agent.

9.3 Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers and their respective Affiliates, including the reasonable fees, disbursements and other charges of legal counsel for the aforementioned parties, in connection with the syndication of the credit facilities provided for herein, the preparation and administration of this Agreement or any amendments, modifications or waivers of the provisions hereof and (ii) all reasonable out-of-pocket expenses incurred by any Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses of the Administrative Agent or any Lender or Issuing Bank or their respective Affiliates, including the fees, charges and disbursements of legal counsel for the Administrative Agent or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this Section 9.3(a), including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit; provided that the Borrower’s obligations under this Section 9.3(a) for fees and expenses of legal counsel shall be limited to fees and expenses of (x) one primary outside legal counsel for all Persons described in clauses (i), (ii) and (iii) above, taken as a whole, (y) in the case of any actual or perceived conflict of interest, one outside legal counsel for each group of affected Persons similarly situated, taken as a whole, in each appropriate jurisdiction and, if reasonably necessary, one firm of regulatory counsel in each appropriate jurisdiction and (z) if necessary, one regulatory counsel and one local or foreign legal counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions).

(b) The Borrower shall indemnify the Administrative Agent, each other Agent, each Arranger, each institution listed as a bookrunner or manager on the cover page hereof, 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, costs and related expenses (including the reasonable out-of-pocket fees, charges and disbursements of (i) one primary outside legal counsel to the Indemnitees, taken as a whole, (ii) in the case of any actual or perceived conflict of interest, one additional outside legal counsel for each group of affected Indemnitees similarly situated, taken as a whole, in each appropriate jurisdiction and, if reasonably necessary, one firm of regulatory counsel in each appropriate jurisdiction and (iii) if necessary, one regulatory counsel and one local or foreign legal counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions)), which may at any time be imposed on, incurred by or asserted or awarded against any such Indemnitee arising out of, in connection with, or as a result of (w) the execution or delivery of this Agreement or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the Transactions or any other transactions contemplated hereby, (x) any Loan or Letter of Credit or the use of the proceeds therefrom, (y) any actual or alleged presence or

 

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Release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries or any Environmental Liability relating to the Borrower or any of its Subsidiaries (including any predecessor entities), or (z) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto and whether or not such claim, litigation, investigation or proceeding is brought by Parent, the Borrower or any of their respective Affiliates, their respective creditors or any other Person; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (1) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Parties or a material breach of this Agreement or any other Loan Document by such Indemnitee or its Related Parties, (2) arise out of any claim, litigation, investigation or proceeding that does not involve an act or omission by the Borrower or any of its Subsidiaries and that is brought by an Indemnitee against any other Indemnitee (provided that in the event of such a claim, litigation, investigation or proceeding involving a claim or proceeding brought against any Agent or Arranger (in either case, in its capacity as such) by other Indemnitees, such Agent or Arranger, as the case may be (in its capacity as such), shall be entitled (subject to the other limitations and exceptions set forth above) to the benefit of the indemnities set forth above), (3) arise from any settlement entered into by any Indemnitee or any of its Related Parties in connection with the foregoing without the Borrower’s prior written consent (such consent not to be unreasonably withheld or delayed), or (4) are in respect of indemnification payments made pursuant to Section 8.7, to the extent the Borrower would not have been or was not required to make such indemnification payments directly pursuant to the provisions of this Section 9.3(b). This Section 9.3(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc., arising from any non-Tax claim.

(c) To the extent permitted by applicable law, none of Parent, the Borrower or any Indemnitee shall assert, and each of Parent, the Borrower and each Indemnitee hereby waives, any claim against Parent, the Borrower or any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and, to the extent permitted by applicable law, Parent and the Borrower and each Indemnitee hereby waive, release and agree not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor; provided that nothing contained in this paragraph shall limit the obligations of the Borrower under Section 9.3(b) in respect of any such damages claimed against the Indemnitees by Persons other than Indemnitees.

(d) All amounts due under this Section 9.3 shall be payable not later than 30 days after written demand therefor.

(e) Notwithstanding the foregoing, each Indemnitee shall be obligated to refund and return all amounts paid to such Indemnitee for fees, expenses or damages to the extent such Indemnitee is not entitled to payment of such amounts in accordance with the terms hereof, as determined by a final, non-appealable judgment of a court of competent jurisdiction.

 

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9.4 Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby (including any Affiliates of any Issuing Bank that issues any Letter of Credit), except that (i) except as otherwise expressly provided in Section 6.7, the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 9.4. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby (including any Affiliates of any Issuing Bank that issues any Letter of Credit), Participants (to the extent provided in paragraph (c) of this Section 9.4) and, to the extent expressly contemplated hereby, the Agents and Arrangers and the Related Parties of each of the Agents, Arrangers, each Issuing Bank and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) (i) Subject to the conditions set forth in paragraph (b)(ii) of this Section 9.4, any Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (each such consent not to be unreasonably withheld, delayed or conditioned) of:

(A) the Borrower; provided that no consent of the Borrower shall be required (i) for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund (in the case of an assignment of Revolving Credit Commitments or Revolving Credit Loans, only if such Lender, Affiliate of a Lender or Approved Fund is a Revolving Credit Lender, an Affiliate of a Revolving Credit Lender or an Approved Fund in respect of a Revolving Credit Lender) or a Purchasing Borrower Party (subject to Section 9.4(g)) or, if a Specified Event of Default has occurred and is continuing, any other Eligible Assignee and (ii) for any assignment during the primary syndication of the Term Loans to Persons identified to, and approved by, the Borrower prior to the date hereof; provided, further, that (x) the Borrower shall be deemed to have consented to any such assignment unless the Borrower shall have objected thereto by written notice to the Administrative Agent not later than the tenth Business Day following the date a written request for such consent is received and (y) the withholding of consent by the Borrower to any assignment to any Disqualified Lender shall be deemed reasonable (for the avoidance of doubt, it being understood and agreed that the Administrative Agent shall not have any responsibility or obligation to determine or notify the Borrower with respect to whether any Lender or potential Lender is a Disqualified Lender and the Administrative Agent shall have no liability with respect to any assignment made to a Disqualified Lender);

 

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(B) the Administrative Agent; and

(C) each Issuing Bank, provided that the consent of the Issuing Bank shall not be required for an assignment of all or any portion of a Term Loan.

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

(A) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Loans or Commitments of any Class, the amount of the Loans or Commitments 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) shall not be less than $1.0 million unless each of the Borrower and the Administrative Agent otherwise consent; provided that no such consent of the Borrower shall be required if a Specified Event of Default has occurred and is continuing;

(B) each partial assignment with respect to a Class 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 such Class; provided that this clause shall not be construed to prohibit the assignment of a proportionate part of all the assigning Lender’s rights and obligations in respect of one Class of Commitments or Loans;

(C) the parties to each assignment shall (1) execute and deliver to the Administrative Agent via an electronic settlement system acceptable to the Administrative Agent or (2) if previously agreed with the Administrative Agent, manually execute and deliver to the Administrative Agent an Assignment and Assumption, in each case together with (unless waived by the Administrative Agent in its sole discretion) a processing and recordation fee of $3,500 (treating, for purposes of such fee, multiple, simultaneous assignments by or to two or more Approved Funds as a single assignment);

(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about Parent, the Borrower, the Loan Parties and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws and any applicable tax forms; and

 

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(E) any assignment of any Loans to a Purchasing Borrower Party or Affiliated Lender shall be subject to the requirements of Sections 9.4(e) through (h), as applicable, and, in the case of Purchasing Borrower Parties, with respect to Dutch Auctions, Section 2.12(f).

(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section 9.4, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits, and subject to the obligations, of Sections 2.17, 2.18, 2.19 and 9.3). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.4 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section 9.4.

(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Assumption and each Affiliated Lender Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount (and related interest amounts) of the Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent, each Issuing Bank and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Issuing Bank and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

(v) Upon its receipt of a duly completed Assignment and Assumption or Affiliated Lender Assignment and Assumption, in each case executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless such assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section 9.4 and any written consent to such assignment required by paragraph (b) of this Section 9.4, the Administrative Agent shall accept such Assignment and Assumption or Affiliated Lender Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.8(b), 2.20(d) or 8.7, the Administrative Agent shall

 

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have no obligation to accept such Assignment and Assumption or Affiliated Lender Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.

(c) (i) Any Lender may, without the consent of or notice to the Borrower or the Administrative Agent or any issuing Bank, sell participations to one or more banks or other entities (other than any natural Person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of a natural Person) or any Disqualified Lender) (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, each Issuing Bank and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in subclauses (1) through (3) of clause (x) of Section 9.2(b) or subclause (1) of clause (y) of Section 9.2(b) that adversely affects the Participant. The Borrower agrees that, subject to paragraph (c)(ii) and (c)(iii) of this Section 9.4, each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations of such Sections, including the requirements under Section 2.19(e) (it being understood that the documentation required under Section 2.19(e) shall be delivered solely to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section 9.4. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.8 as though it were a Lender; provided that such Participant shall be subject to Section 2.20(c) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and related interest amounts) of each Participant’s interest in the Loans or other obligations under this Agreement or any other Loan Document (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and each Lender shall treat each Person whose name is recorded in such Lender’s Participant Register as the owner of such participation for all purposes of this Agreement, including payments of interest and principal, notwithstanding any notice to the contrary. The portion of the Participant Register relating to any Participant requesting payment from the Borrower under the Loan Documents shall be made available to the Borrower upon reasonable request. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

 

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(ii) A Participant shall not be entitled to receive any greater payment under Section 2.17, 2.18 or 2.19, with respect to any participation sold to such Participant, than its participating Lender would have been entitled to receive absent such participation (except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired such participation).

(iii) A Participant shall be subject to the provisions of Section 2.21 as if it were an assignee under paragraph (b) of this Section 9.4.

(iv) Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.21(b) with respect to any Participant.

(v) No participation may be sold to an Affiliated Lender, Defaulting Lender, Disqualified Lender or any Purchasing Borrower Party.

(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank, and this Section 9.4 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(e) Notwithstanding anything to the contrary contained herein, any Lender may assign all or any portion of its Term Loans hereunder to any Person who, after giving effect to such assignment, would be an Affiliated Lender; provided that:

(i) the assigning Lender and the Affiliated Lender purchasing such Lender’s Term Loans, as applicable, shall execute and deliver to the Administrative Agent an Affiliated Lender Assignment and Assumption in lieu of an Assignment and Assumption;

(ii) at the time of such assignment and after giving effect to such assignment, the Affiliated Lenders shall not, in the aggregate, hold Term Loans with an aggregate principal amount in excess of 25.0% of the principal amount of all Term Loans then outstanding; and

(iii) the applicable Affiliated Lender Assignment and Assumption shall include a customary “big boy” representation from the assignor or assignee, as the case may be (it being agreed that no Affiliated Lender shall be required to make a representation that, as of the date of any such purchase or assignment, it is not in possession of any MNPI with respect to Parent, the Borrower, their respective Subsidiaries or their respective securities).

 

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To the extent not previously disclosed to the Administrative Agent, the Borrower shall, upon reasonable request of the Administrative Agent (but not more frequently than once per calendar quarter), report to the Administrative Agent the amount and Class of Term Loans held by Affiliated Lenders and the identity of such holders.

(f) Notwithstanding anything in Section 9.2 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders have (but, for the avoidance of doubt, not for purposes of determining whether all Term Loan Lenders, or all affected Term Loan Lenders, have) (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document or (iii) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document (collectively, “Required Lender Consent Items”), an Affiliated Lender shall be deemed to have voted its interest as a Term Loan Lender in the same proportion as the allocation of voting with respect to such matter by Term Loan Lenders who are not Affiliated Lenders, unless the result of such Required Lender Consent Item would reasonably be expected to deprive such Affiliated Lender of its pro rata share (compared to Term Loan Lenders which are not Affiliated Lenders) of any payments to which such Affiliated Lender is entitled under the Loan Documents without such Affiliated Lender providing its consent or such Affiliated Lender is otherwise adversely affected thereby compared to Term Loan Lenders which are not Affiliated Lenders (in which case for purposes of such vote such Affiliated Lender shall have the same voting rights as other Term Loan Lenders which are not Affiliated Lenders).

No Affiliated Lender shall have any right to make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against the Administrative Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents in the absence, with respect to any such Person, of the gross negligence, bad faith or willful misconduct by such Person and its Related Parties (as determined by a court of competent jurisdiction by final and nonappealable judgment), except with respect to any claims that the Administrative Agent or any other such Lender is treating such Affiliated Lender, in its capacity as a Lender, in a disproportionate manner relative to the other Lenders.

Additionally, the Loan Parties and each Affiliated Lender hereby agree that each Affiliated Lender Assignment and Assumption by an Affiliated Lender shall provide a confirmation that, if a case under any Bankruptcy Law is commenced against any Loan Party, such Loan Party shall seek (and each Affiliated Lender shall consent) to provide that the vote of any Affiliated Lender (in its capacity as a Lender) with respect to any plan of reorganization of such Loan Party shall not be counted except that such Affiliated Lender’s vote (in its capacity as a Lender) may be counted to the extent any such plan of reorganization proposes to treat the Obligations or claims held by such Affiliated Lender in a manner that is less favorable to such Affiliated Lender than the proposed treatment of the Term Loans or claims held by Lenders that are not Affiliates of the Borrower.

 

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(g) Notwithstanding anything else to the contrary contained in this Agreement, any Lender may assign all or a portion of its Term Loans to any Purchasing Borrower Party in accordance with Section 9.4(b); provided that:

(i) the assigning Lender and the Purchasing Borrower Party purchasing such Lender’s Term Loans, as applicable, shall execute and deliver to the Administrative Agent an Affiliated Lender Assignment and Assumption in lieu of an Assignment and Assumption;

(ii) such assignment shall be made (x) pursuant to a Dutch Auction open to all Lenders of the applicable Class on a pro rata basis pursuant to the Dutch Auction Procedures set forth in Section 2.12(f) or (y) by way of an open market purchase;

(iii) any Term Loans assigned to any Purchasing Borrower Party shall be automatically and permanently cancelled upon the effectiveness of such assignment and will thereafter no longer be outstanding for any purpose hereunder;

(iv) immediately after giving effect to any such purchase, no Default or Event of Default shall exist;

(v) the applicable Affiliated Lender Assignment and Assumption shall include a customary “big boy” representation from each of the Purchasing Borrower Party and the assignee or assignor, as the case may be (it being agreed that no Purchasing Borrower Party shall be required to make a representation that, as of the date of any such purchase or assignment, it is not in possession of any MNPI with respect to Parent, the Borrower, their respective Subsidiaries or their respective securities); and

(vi) the aggregate outstanding principal amount of the Term Loans of the applicable Class shall be deemed reduced by the full par value of the aggregate principal amount of the Term Loans purchased pursuant to this Section 9.4(g) and each principal repayment installment with respect to the Term Loans of such Class shall be reduced pro rata by the aggregate principal amount of Term Loans purchased.

(h) Notwithstanding anything to the contrary contained herein, no Affiliated Lender nor any Purchasing Borrower Party shall have any right (in their capacity as a Lender) to (i) attend (including by telephone) any meeting or discussions (or portion thereof) attended solely by the Administrative Agent and any Lenders or (ii) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among Administrative Agent and one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives (and in any case, other than the right to receive notices of prepayments and other administrative notices in respect of its Loans required to be delivered to Lenders pursuant to this Agreement).

 

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9.5 Survival. All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, any Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid or any Letter of Credit is outstanding and so long as the Commitments have not expired or terminated. The provisions of Sections 2.17, 2.18, 2.19 and 9.3 and Section 8 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and Commitments or the termination of this Agreement or any provision hereof.

9.6 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.1, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission (e.g., “PDF” or “TIFF”) shall be effective as delivery of a manually executed counterpart of this Agreement.

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

9.8 Right of Setoff. If an Event of Default pursuant to Section 7.1(a), (g) or (h) (in the case of clauses (g) or (h), with respect to the Borrower only) shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time with the prior written consent of the Administrative Agent, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) (excluding any Exempt Account) at any time held and other obligations at any time owing by such Lender to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of each Lender under this Section 9.8 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have. Each Lender shall notify the Administrative Agent and the Borrower promptly after any such setoff.

 

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9.9 Governing Law; Jurisdiction; Consent to Service of Process. (a) This Agreement and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the transactions contemplated hereby shall be construed in accordance with and governed by the law of the State of New York; provided that (i) the interpretation of “Material Adverse Effect on Sprint” and whether a “Material Adverse Effect on Sprint” has occurred, (ii) the accuracy of any Business Combination Agreement Representations and whether as a result thereof the Borrower (or any of the Borrower’s subsidiaries) has the right under the Business Combination Agreement not to consummate the Acquisition as a result of such representations in the Business Combination Agreement being inaccurate and (iii) whether the Acquisition has been consummated in accordance with the terms of the Business Combination Agreement, shall be governed by, and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of laws provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

(b) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York sitting in New York County, 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 hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Notwithstanding the foregoing, any party hereto may bring an action or proceeding in other jurisdictions in respect of its rights under any Security Document governed by a law other than the laws of the State of New York or, with respect to the Collateral, in a jurisdiction where such Collateral is located.

(c) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section 9.9. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.1. Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

 

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9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

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

9.12 Confidentiality. (a) Each of the Administrative Agent, the Syndication Agents, each Issuing Bank and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its and its Affiliates’ employees, legal counsel, independent auditors, professionals and other experts or agents (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), (ii) to the extent requested or demanded by any regulatory authority claiming jurisdiction over it or its Affiliates (provided that such Agent, Issuing Bank or Lender, as applicable, shall notify the Borrower as soon as practicable in the event of any such disclosure by such Person (except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising routine examination or regulatory authority) to the extent practicable and not prohibited by applicable law, rule or regulation), (iii) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law or compulsory legal process based on the advice of counsel (provided that such Agent, Issuing Bank or Lender, as applicable, shall notify the Borrower promptly thereof prior to any such disclosure by such Person (except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising routine examination or regulatory authority) to the extent practicable and not prohibited by applicable law, rule or regulation), (iv) to any other party to this Agreement, (v) as reasonably determined to be necessary, 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, (vi) to bona fide or potential assignee, transferee or participant in connection with the contemplated assignment, transfer or participation of any Loans or any participations therein or by any direct or indirect contractual counterparties (or the professional advisors thereto) to any swap or derivative transaction relating to the Borrower and its obligations, but in any event not to any Disqualified Lender (provided that such assignees, transferees, participants, counterparties and advisors are advised of and agree to be bound by either the provisions of this Section 9.12 or other provisions at least as restrictive as this Section 9.12), (vii) to the extent that such information is independently developed by it, (viii) with the prior written consent of the

 

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Borrower, (ix) to the extent such Information (A) becomes available other than as a result of a breach of this Section 9.12 to the Administrative Agent, the Syndication Agents, any Issuing Bank or any Lender on a nonconfidential basis from a source other than the Borrower or any of its Affiliates or (B) to the extent that such information becomes publicly available other than by reason of improper disclosure by the Administrative Agent or any Lender or any of their Affiliates or any related parties thereto in violation of any confidentiality obligations owing to Parent, the Borrower, Sprint or any of their respective affiliates, (x) on a confidential basis to (1) any rating agency in connection with rating Parent, the Borrower or their Subsidiaries or the Facilities, (2) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Facilities or (3) market data collectors, similar services, providers to the lending industry and service providers to the Administrative Agent in connection with the administration and management of this Agreement and the Loan Documents, (xi) to the extent necessary or customary for inclusion in league table measurement, and (xii) for purposes of establishing a “due diligence” defense. For the purposes of this Section 9.12, “Information” means all information received from Parent, the Borrower or any of their Affiliates relating to Parent or the Borrower or any of their Subsidiaries or businesses, other than any such information that is available other than as a result of a breach of this Section 9.12 to the Administrative Agent, the Syndication Agents, any Issuing Bank or any Lender on a nonconfidential basis prior to disclosure by the Borrower; provided that, in the case of information received from the Borrower after the date hereof, such information is clearly identified on or before the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 9.12 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information which shall in no event be less than commercially reasonable care.

(b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MNPI, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL, STATE, PROVINCIAL AND TERRITORIAL SECURITIES LAWS.

(c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MNPI. ACCORDINGLY, EACH LENDER REPRESENTS AND WARRANTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.

 

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9.13 PATRIOT Act; Know Your Customer Checks. Each Lender that is subject to the requirements of the PATRIOT Act and the Beneficial Ownership Regulation hereby notifies each Loan Party that pursuant to the requirements of the PATRIOT Act and the Beneficial Ownership Regulation, it may be 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 to identify each Loan Party in accordance with the PATRIOT Act and the Beneficial Ownership Regulation.

9.14 Acknowledgment and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and

(b) the effects of any Bail-In Action on any such liability, including, if applicable:

(i) a reduction in full or in part or cancellation of any such liability;

(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.

9.15 Release of Liens and Guarantees; Secured Parties. (a) In the event that any Loan Party conveys, sells, leases (under a financing lease), assigns, transfers or otherwise disposes of all or any portion of any of the Capital Stock or assets of any Loan Party to a Person that is not (and is not required hereunder to become) a Loan Party in a transaction permitted under this Agreement (including the sale, transfer, conveyance or other disposal of any FCC Licenses, Spectrum or related property or assets to a Permitted Spectrum Financing Subsidiary in connection with the incurrence of Indebtedness by such Permitted Spectrum Financing Subsidiary permitted hereunder), or in the event that any SPV Holdco becomes an Unsecured SPV Holdco pursuant to an Unsecured SPV Holdco Election permitted hereunder, the Liens created by the Loan Documents in respect of such Capital Stock or assets (or, in the case of an SPV Holdco, the Liens created by the Loan Documents in respect of the assets of such SPV Holdco) shall automatically terminate and be released, without the requirement for any further action by any Person and the Administrative Agent and the Collateral Trustee shall, without recourse or warranty, promptly (and the Lenders hereby authorize the Administrative Agent and

 

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the Collateral Trustee to) take such action and execute any such documents as may be reasonably requested by Parent or the Borrower and at the Borrower’s expense to further document and evidence such termination and release of Liens created by any Loan Document in respect of such Capital Stock or assets. In the event that any Capital Stock or other asset previously constituting Collateral has become or is becoming an Excluded Asset, then, at the request of Parent or the Borrower, the Collateral Trustee agrees, without recourse or warranty, to promptly (and the Lenders hereby authorize the Collateral Trustee to) take such action and execute such documents (including mortgage release documents) as may be reasonably requested by Parent or the Borrower and at the Borrower’s expense to terminate and release (or to further document and evidence the termination and release of) the Liens created by any Security Document in respect of such assets upon it becoming an Excluded Asset. In the case of a transaction permitted under this Agreement the result of which is that a Loan Party would cease to be a Restricted Subsidiary or would become an Excluded Subsidiary (or in case any Restricted Subsidiary otherwise becomes an Excluded Subsidiary), the Guarantee obligations created by the Loan Documents in respect of such Loan Party (and all security interests granted by such Guarantor under the Loan Documents) shall automatically terminate and be released, without the requirement for any further action by any Person and the Administrative Agent and the Collateral Trustee shall promptly (and the Lenders hereby authorize the Administrative Agent and the Collateral Trustee to) take such action and execute any such documents as may be reasonably requested by Parent or the Borrower and at the Borrower’s expense to further document and evidence such termination and release of such security interests and such Loan Party’s Guarantee obligations in respect of the Obligations (including its Guarantee obligations under the Guarantee Agreement); provided that any Guarantor that ceases to constitute a Loan Party or becomes an Excluded Subsidiary solely by virtue of no longer being a Wholly Owned Subsidiary (a “Partially Disposed Subsidiary”) shall only be released from its Guarantee to the extent that the other person taking an equity interest in such Partially Disposed Subsidiary is not an Affiliate of the Borrower that is controlled by Parent, DT or their respective Subsidiaries or any employee of any of the foregoing and (y) at the time of such release, the Borrower would have been permitted to make an Investment in such Partially Disposed Subsidiary, and is deemed to have made a new Investment in such Partially Disposed Subsidiary for purposes of Section 6.1 (as if such Person were then newly acquired) in an amount equal to the portion of the fair market value (as determined by the Borrower in good faith) of the net assets of such Partially Disposed Subsidiary attributable to the Borrower’s equity interests therein. In connection with any request by the Parent or the Borrower for the Administrative Agent or the Collateral Trustee to take any action or execute any documents pursuant to this Section 9.15, the Parent and the Borrower shall deliver to the Administrative Agent and the Collateral Trustee an officer’s certificate of the Parent and the Borrower certifying that any such transaction has been consummated in compliance with this Agreement and the other Loan Documents, and such releases are permitted hereunder. Any representation, warranty or covenant contained in any Loan Document relating to any such Capital Stock, asset or Subsidiary of any Loan Party shall no longer be deemed to be made with respect thereto once such Capital Stock or asset or Subsidiary is so conveyed, sold, leased, assigned, transferred or disposed of to a Person that is not (and is not required hereunder to become) a Loan Party in a transaction permitted under this Agreement.

 

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(b) Upon the payment in full of the Obligations (excluding Designated Hedging Obligations, Designated L/C Facilities Obligations, Cash Management Agreements and contingent reimbursement and indemnification obligations, in each case, that are not due and payable or Letters of Credit that have been cash collateralized) and the termination or expiration of the Commitments, all Liens created by the Loan Documents shall automatically terminate and be released, without the requirement for any further action by any Person and the Administrative Agent and the Collateral Trustee shall promptly (and the Lenders hereby authorize the Administrative Agent and the Collateral Trustee to) take such action and execute any such documents as may be reasonably requested by Parent or the Borrower and at the Borrower’s expense to further document and evidence such termination and release of Liens created by the Loan Documents (including by way of assignment), and the Guarantee obligations created by the Loan Documents in respect of the Guarantors shall automatically terminate and be released, without the requirement for any further action by any Person and the Administrative Agent shall promptly (and the Lenders hereby authorize the Administrative Agent to) take such action and execute any such documents as may be reasonably requested by Parent or the Borrower and at the Borrower’s expense to further document and evidence such termination and release of the Guarantors’ Guarantee obligations in respect of the Obligations (including the Guarantee obligations under the Guarantee Agreement). Upon request by the Administrative Agent or the Collateral Trustee at any time, the Required Lenders will confirm in writing the Collateral Trustee’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guarantee pursuant to this Section 9.15.

(c) Except with respect to the exercise of setoff rights of any Lender in accordance with Section 9.8 or with respect to a Lender’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Trustee or the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Collateral Trustee on any of the Collateral pursuant to a public or private sale or other disposition, the Collateral Trustee, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Collateral Trustee, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Collateral Trustee on behalf of the Secured Parties at such sale or other disposition.

(d) In furtherance of the foregoing and not in limitation thereof, no Designated L/C Facility, Hedge Agreement or Cash Management Agreement, the obligations under which constitute Designated L/C Facilities Obligations, Designated Hedging Obligations or Cash Management Obligations, as applicable, will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement or any other Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Designated L/C Facility, Designated Hedge Agreement or Cash Management Agreement shall be deemed to have appointed the Administrative Agent to serve as administrative agent, and the Collateral Trustee to serve as collateral trustee, under the Loan Documents and agreed to be bound by the Loan Documents as a Secured party thereunder, subject to the limitations set forth in this paragraph.

 

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9.16 No Fiduciary Duty. Each Agent, each Arranger and each Lender and their respective Affiliates (collectively, solely for purposes of this paragraph, the “Lender Parties”) may have economic interests that conflict with those of the Loan Parties, their stockholders and/or their affiliates. Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender Parties, on the one hand, and such Loan Party, its stockholders or its affiliates, on the other. The Loan Parties acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lender Parties, on the one hand, and the Loan Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender Parties have assumed any advisory or fiduciary responsibility in favor of any Loan Party, its stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender Parties have advised, are currently advising or will advise any Loan Party, its stockholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y) the Lender Parties are acting solely as principals, and not as the agents or fiduciaries of any Loan Party, its management, stockholders, creditors or any other Person. Each Loan Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Loan Party agrees that it will not claim that the Lender Parties have rendered advisory services of any nature or respect, or owe a fiduciary or similar duty to such Loan Party, in connection with such transaction or the process leading thereto.

9.17 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 “Maximum Rate”). If any Agent, Issuing Bank or any Lender shall receive interest in an amount that exceeds the 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 an Agent, Issuing Bank or 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.

9.18 Intercreditor Agreements. The Administrative Agent and the Collateral Trustee are authorized and directed to, to the extent required or permitted by the terms of the Loan Documents, (x) enter into (i) any Security Document, (ii) the Collateral Trust Agreement, (iii) any other Senior Pari Passu Intercreditor Agreement, (iv) any Senior/Junior Intercreditor Agreement or (v) any other intercreditor, subordination or collateral trust agreement, in each case, contemplated hereunder (including, without limitation, any Intercreditor Agreement or

 

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other intercreditor, subordination or collateral trust agreement contemplated by Section 6.6) (each, an “Additional Agreement”) and (y) make or consent to any filings or take any other actions (including directing the Collateral Trustee under the Collateral Trust Agreement) in connection therewith (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, such agreements in connection with the incurrence by any Loan Party of any Indebtedness of such Loan Party that is permitted to be incurred and secured pursuant to Sections 6.2 and 6.3, in order to permit such Indebtedness to be secured by a valid, perfected lien on the Collateral (with such priority as may be designated by such Loan Party, to the extent such priority is permitted by the Loan Documents)), and the parties hereto acknowledge that any Additional Agreement contemplated hereunder, any Security Document, and any consent, filing or other action will be binding upon them. Each of the Lenders (including in its capacity as a Qualified Counterparty) and each of the Secured Parties (a) hereby agrees that it will be bound by and will take no actions contrary to the provisions of any Additional Agreement contemplated hereunder (if entered into) and (b) hereby authorizes and instructs the Administrative Agent and the Collateral Trustee to enter into any Additional Agreement contemplated hereunder or Security Document (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, such agreements in connection with the incurrence by any Loan Party of any Indebtedness of such Loan Party that is permitted to be incurred and secured pursuant to Sections 6.2 and 6.3, in order to permit such Indebtedness to be secured by a valid, perfected lien on the Collateral (with such priority as may be designated by such Loan Party, to the extent such priority is permitted by the Loan Documents)), and to subject the Liens on the Collateral securing the Obligations to the provisions thereof. The Secured Parties agree that in the event of a conflict between the Loan Documents (other than any Additional Agreement) and the Additional Agreement, the Additional Agreement shall control. References in any Loan Document relating to the delivery of collateral to or collateral held by the Administrative Agent (or references of similar effect), shall as applicable be deemed to be references to the Collateral Trustee or such other Person designated by the Administrative Agent to hold the Liens securing the Obligations pursuant to any Additional Agreement, as applicable.

9.19 Conflicts. Except as set forth in Section 9.18 above, in the event of any conflict between the terms of this Agreement and the terms of any other Loan Document, the terms of this Agreement shall control.

9.20 Execution of Assignments and Certain Other Documents The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries 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, physical delivery thereof 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, 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; provided that, in respect of documents to be signed by entities established within the European Union, the Electronic Signature qualifies as a “qualified electronic signature” within the meaning of the Regulation (EU) n°910/2014 of the European parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transaction in the internal market as amended from time to time and provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior written consent.

 

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9.21 Acknowledgment Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Hedge Agreement or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):

(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.

(b) As used in this Section 9.21, the following terms have the following meanings:

BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

 

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Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). (signature pages follow)

 

 

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

 

BORROWER:
T-MOBILE USA, INC.
/s/ J. Braxton Carter
Name:   J. Braxton Carter
Title:  

Executive Vice President and

Chief Financial Officer

 

 

[Signature Page – Project Lakes Credit Agreement]


ADMINISTRATIVE AGENT:
DEUTSCHE BANK AG NEW YORK BRANCH
/s/ Michael Strobel
Name:   Michael Strobel
Title:   Vice President
/s/ Alicia Schug
Name:   Alicia Schug
Title:   Vice President

 

[Signature Page – Project Lakes Credit Agreement]


ISSUING BANK:
BARCLAYS BANK PLC
/s/ Martin Corrigan
Name:   Martin Corrigan
Title:   Vice President

 

[Signature Page – Project Lakes Credit Agreement]


ISSUING BANK:
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
/s/ William O’Daly
Name:   William O’Daly
Title:   Authorized Signatory
/s/ D. Andrew Maletta
Name:   D. Andrew Maletta
Title:   Authorized Signatory

 

[Signature Page – Project Lakes Credit Agreement]


ISSUING BANK:
DEUTSCHE BANK AG NEW YORK BRANCH
/s/ Michael Strobel
Name:   Michael Strobel
Title:   Vice President
/s/ Alicia Schug
Name:   Alicia Schug
Title:   Vice President

 

[Signature Page – Project Lakes Credit Agreement]


GOLDMAN SACHS BANK USA
/s/ Robert Ehudin
Name:   Robert Ehudin
Title:   Authorized Signatory

 

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ISSUING BANK:
MORGAN STANLEY BANK, N.A.
/s/ Andrew Earls
Name:   Andrew Earls
Title:   Authorized Signatory

 

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ISSUING BANK:
MORGAN STANLEY SENIOR FUNDING, INC.
/s/ Andrew Earls
Name:   Andrew Earls
Title:   Authorized Signatory

 

[Signature Page – Project Lakes Credit Agreement]


ISSUING BANK:
ROYAL BANK OF CANADA
/s/ Kevin Quan
Name:   Kevin Quan
Title:   Authorized Signatory

 

[Signature Page – Project Lakes Credit Agreement]


ISSUING BANK:
BNP PARIBAS CORP.
/s/ Christopher Sked
Name:   Christopher Sked
Title:   Managing Director
/s/ Nicole Rodriguez
Name:   Nicole Rodriguez
Title:   Director

 

[Signature Page – Project Lakes Credit Agreement]


ISSUING BANK:
COMMERZBANK AG, NEW YORK BRANCH
/s/ Mathew Ward
Name:   Mathew Ward
Title:   Director
/s/ Robert Sullivan
Name:   Robert Sullivan
Title:   Vice President

 

[Signature Page – Project Lakes Credit Agreement]


ISSUING BANK:
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
/s/ Gordon Yip
Name:   Gordon Yip
Title:   Director
/s/ Rose Mary Perez
Name:   Rose Mary Perez
Title:   Director

 

[Signature Page – Project Lakes Credit Agreement]


ISSUING BANK:
THE TORONTO-DOMINION BANK, NEW YORK BRANCH
/s/ Brian MacFarlane
Name:   Brian MacFarlane
Title:   Authorized Signatory

 

[Signature Page – Project Lakes Credit Agreement]


ISSUING BANK:
WELLS FARGO BANK, NATIONAL ASSOCIATION
/s/ Monica Trautwein
Name:   Monica Trautwein
Title:   Director

 

[Signature Page – Project Lakes Credit Agreement]


ISSUING BANK:
BANCO SANTANDER, S.A., NEW YORK BRANCH
/s/ Pablo Urgoiti
Name:   Pablo Urgoiti
Title:   Managing Director
/s/ Rita Walz-Cuccioli
Name:   Rita Walz-Cuccioli
Title:   Executive Director

 

- 2 -


ISSUING BANK:
SOCIETÉ GENERALE
/s/ Shelley Yu
Name:   Shelley Yu
Title:   Director

 

[Signature Page – Project Lakes Credit Agreement]


ISSUING BANK:
TRUIST BANK
/s/ Mark Kelley
Name:   Mark Kelley
Title:   Managing Director

 

[Signature Page – Project Lakes Credit Agreement]


ISSUING BANK:
NATIONAL WESTMINSTER BANK PLC
/s/ Richard Bradbury
Name:   Richard Bradbury
Title:   Director

 

[Signature Page – Project Lakes Credit Agreement]


ISSUING BANK:
U.S. BANK NATIONAL ASSOCIATION
/s/ Daniel Damon
Name:   Daniel Damon
Title:   Managing Director

 

[Signature Page – Project Lakes Credit Agreement]


LENDER:
BARCLAYS BANK PLC
/s/ Martin Corrigan
Name:   Martin Corrigan
Title:   Vice President

 

[Signature Page – Project Lakes Credit Agreement]


LENDER:
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
/s/ William O’Daly
Name:   William O’Daly
Title:   Authorized Signatory
/s/ D. Andrew Maletta
Name:   D. Andrew Maletta
Title:   Authorized Signatory

 

[Signature Page – Project Lakes Credit Agreement]


LENDER:
DEUTSCHE BANK AG NEW YORK BRANCH
/s/ Michael Strobel
Name:   Michael Strobel
Title:   Vice President
/s/ Alicia Schug
Name:   Alicia Schug
Title:   Vice President

 

[Signature Page – Project Lakes Credit Agreement]


GOLDMAN SACHS BANK USA
/s/ Robert Ehudin
Name:   Robert Ehudin
Title:   Authorized Signatory

 

- 2 -


LENDER:
MORGAN STANLEY BANK, N.A.
/s/ Andrew Earls
Name:   Andrew Earls
Title:   Authorized Signatory

 

- 3 -


LENDER:
MORGAN STANLEY SENIOR FUNDING, INC.
/s/ Andrew Earls
Name:   Andrew Earls
Title:   Authorized Signatory

 

[Signature Page – Project Lakes Credit Agreement]


LENDER:
ROYAL BANK OF CANADA
/s/ Charles D. Smith
Name:   Charles D. Smith
Title:   Co-Head, U.S. Leveraged Finance

 

[Signature Page – Project Lakes Credit Agreement]


LENDER:
BNP PARIBAS CORP.
/s/ Christopher Sked
Name:   Christopher Sked
Title:   Managing Director
/s/ Nicole Rodriguez
Name:   Nicole Rodriguez
Title:   Director

 

[Signature Page – Project Lakes Credit Agreement]


LENDER:
COMMERZBANK AG, NEW YORK BRANCH
/s/ Mathew Ward
Name:   Mathew Ward
Title:   Director
/s/ Robert Sullivan
Name:   Robert Sullivan
Title:   Vice President

 

[Signature Page – Project Lakes Credit Agreement]


LENDER:
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK
/s/ Gordon Yip
Name:   Gordon Yip
Title:   Director
/s/ Rose Mary Perez
Name:   Rose Mary Perez
Title:   Director

 

[Signature Page – Project Lakes Credit Agreement]


LENDER:
THE TORONTO-DOMINION BANK, NEW YORK BRANCH
/s/ Brian MacFarlane
Name:   Brian MacFarlane
Title:   Authorized Signatory

 

[Signature Page – Project Lakes Credit Agreement]


LENDER:
WELLS FARGO BANK, NATIONAL ASSOCIATION
/s/ Monica Trautwein
Name:   Monica Trautwein
Title:   Director

 

[Signature Page – Project Lakes Credit Agreement]


LENDER:
BANCO SANTANDER, S.A., NEW YORK BRANCH
/s/ Pablo Urgoiti
Name:   Pablo Urgoiti
Title:   Managing Director
/s/ Rita Walz-Cuccioli
Name:   Rita Walz-Cuccioli
Title:   Executive Director

 

- 2 -


LENDER:
SOCIETÉ GENERALE
/s/ Shelley Yu
Name:   Shelley Yu
Title:   Director

 

[Signature Page – Project Lakes Credit Agreement]


LENDER:
TRUIST BANK
/s/ Mark Kelley
Name:   Mark Kelley
Title:   Managing Director

 

[Signature Page – Project Lakes Credit Agreement]


REVOLVING CREDIT LENDER:
NATIONAL WESTMINSTER BANK PLC
/s/ Richard Bradbury
Name:   Richard Bradbury
Title:   Director

 

[Signature Page – Project Lakes Credit Agreement]


TERM LENDER:
NATWEST MARKETS PLC
/s/ Richard Bradbury
Name:   Richard Bradbury
Title:   Director

 

[Signature Page – Project Lakes Credit Agreement]


LENDER:
U.S. BANK NATIONAL ASSOCIATION
/s/ Daniel Damon
Name:   Daniel Damon
Title:   Managing Director

 

[Signature Page – Project Lakes Credit Agreement]

EX-10.4

Exhibit 10.4

 

 

 

GUARANTEE AGREEMENT

dated as of April 1, 2020

among

T-MOBILE US, INC.,

T-MOBILE USA, INC.,

and THE OTHER GUARANTORS referred to herein

in favor of

DEUTSCHE BANK AG NEW YORK BRANCH,

as Administrative Agent

 

 

 


TABLE OF CONTENTS

 

SECTION 1. DEFINED TERMS

     2  

1.1.

  Definitions      2  

1.2.

  Other Definitional Provisions      3  

SECTION 2. GUARANTEE

     3  

2.1.

  Guarantee      3  

2.2.

  Guarantee of Payment      3  

2.3.

  No Limitations, Etc.      4  

2.4.

  Reinstatement      5  

2.5.

  Agreement To Pay; Subrogation      5  

2.6.

  Information      5  

2.7.

  Keepwell      5  

SECTION 3. INDEMNITY, SUBROGATION AND SUBORDINATION

     6  

3.1.

  Indemnity and Subrogation      6  

3.2.

  Contribution and Subrogation      6  

3.3.

  Subordination      6  

SECTION 4. MISCELLANEOUS

     7  

4.1.

  Amendments in Writing      7  

4.2.

  Notices      7  

4.3.

  No Waiver by Course of Conduct; Cumulative Remedies      7  

4.4.

  Enforcement Expenses; Indemnification      7  

4.5.

  Successors and Assigns      8  

4.6.

  Right of Setoff      8  

4.7.

  Counterparts; Integration      9  

4.8.

  Severability      9  

4.9.

  Section Headings      9  

4.10.

  GOVERNING LAW      9  

4.11.

  Jurisdiction; Consent to Service of Process      9  

4.12.

  WAIVER OF JURY TRIAL      10  

4.13.

  Acknowledgments      10  

4.14.

  Additional Guarantors; Releases      10  

4.15.

  Successor Administrative Agent      11  

4.16.

  Execution of Assignments and Certain Other Documents      11  

 

SCHEDULES   
Schedule 1    Notice Addresses of Guarantors
ANNEXES   
Annex 1    Assumption Agreement


GUARANTEE AGREEMENT

GUARANTEE AGREEMENT dated as of April 1, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”) made by T-MOBILE US, INC., a Delaware corporation (“Parent”), T- MOBILE USA, INC., a Delaware corporation (the “Borrower”) and certain other subsidiaries of Parent party hereto, in favor of DEUTSCHE BANK AG NEW YORK BRANCH, as administrative agent (together with its successors in such capacity, the “Administrative Agent”) for the Lenders from time to time party to the Credit Agreement, dated as of the date hereof (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the Lenders, the Issuing Banks and the Administrative Agent and other agents party thereto, and for the other Secured Parties (as hereinafter defined).

W I T N E S E T H:

WHEREAS, Parent and the Borrower are members of an affiliated group of companies that includes each Guarantor;

WHEREAS, on the date hereof, the Borrower has entered into the Credit Agreement, pursuant to which the Lenders have severally agreed to make extensions of credit, and the Issuing Banks have agreed to issue Letters of Credit, to or for the account of the Borrower, in each case subject to the terms and subject to the conditions set forth therein;

WHEREAS, in accordance with the Credit Agreement, it is contemplated that one or more of the Guarantors and other Group Members have entered into or may enter into one or more agreements with respect to Cash Management Obligations with one or more Qualified Counterparties;

WHEREAS, in accordance with the Credit Agreement, it is contemplated that one or more of the Guarantors and other Loan Parties have entered into or may enter into one or more Designated Hedge Agreements with one or more Qualified Counterparties;

WHEREAS, Parent, the Borrower and the other Guarantors will derive substantial direct and indirect benefit from the making of the extensions of credit under the Credit Agreement; and

WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective extensions of credit to the Borrower under the Credit Agreement, of certain Qualified Counterparties to enter into Designated Hedge Agreements or agreements with respect to Cash Management Obligations, and of the Issuing Banks to issue Letters of Credit, that the Guarantors shall have executed and delivered this Agreement to the Administrative Agent for the ratable benefit of the Secured Parties.

NOW, THEREFORE, in consideration of the above premises the parties hereto hereby agree as follows:


SECTION 1. DEFINED TERMS

1.1. Definitions. The following terms shall have the following meanings:

Additional Guarantor”: as defined in Section 4.14(a).

Administrative Agent”: as defined in the preamble hereto.

Agreement”: as defined in the preamble hereto.

Assumption Agreement”: an Assumption Agreement in the form of Annex 1 hereto.

Borrower”: as defined in the preamble hereto.

Borrower Obligations”: the Obligations (as defined in the Credit Agreement) of the Borrower.

Claiming Guarantor”: as defined in Section 3.2.

Commodity Exchange Act”: the Commodity Exchange Act (7 U.S.C. § 1 et seq.) as amended from time to time, and any successor statute.

Contributing Guarantor”: as defined in Section 3.2.

Credit Agreement”: as defined in the preamble hereto.

Deposit Account”: as defined in the New York UCC

Discharge of Obligations”: the satisfaction or payment in full in cash of the Obligations (excluding contingent reimbursement and indemnification obligations, Secured Cash Management Obligations and obligations under Designated Hedge Agreements, in each case, that are not due and payable) and termination and expiration of the Commitments.

Electronic Signature”: any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.

Guarantor Obligations”: with respect to any Guarantor, all obligations and liabilities of such Guarantor which may arise under or in connection with this Agreement (including Section 2) or any other Loan Document or any Designated Hedge Agreement to which such Guarantor is a party or in connection with any Cash Management Services, in each case whether on account of guarantee obligations, Swap Obligations, Cash Management Obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including all fees and disbursements of counsel to any Secured Party that are required to be paid by such Guarantor pursuant to the terms of this Agreement or any other Loan Document).

 

2


Guarantors”: with respect to the Obligations, the collective reference to (i) Parent (other than the Guarantor Obligations with respect to Parent), (ii) each Subsidiary of Parent (x) that is listed on the signature pages hereto under the caption “Guarantors” and (y) that becomes a party to this Agreement after the date hereof (in each case, other than the Guarantor Obligations with respect to such Subsidiary) and (iii) the Borrower (other than with respect to the Borrower Obligations).

New York UCC”: the Uniform Commercial Code as from time to time in effect in the State of New York.

Obligations”: the collective reference to the Borrower Obligations and the Guarantor Obligations.

Parent”: as defined in the preamble hereto.

Person”: any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

Qualified ECP Guarantor”: as defined in Section 2.7.

Secured Parties”: collectively, the Administrative Agent, the Collateral Trustee, the Arrangers, the Lenders, the Issuing Banks, each Qualified Counterparty and the Indemnitees.

1.2. Other Definitional Provisions. Except as otherwise expressly set forth herein, the rules of construction specified in Section 1.2 of the Credit Agreement also apply to this Agreement.

SECTION 2. GUARANTEE

2.1. Guarantee. Each Guarantor unconditionally guarantees, jointly with the other Guarantors and severally, as a primary obligor and not merely as a surety, the due and punctual payment and performance of the Obligations whether at stated maturity, upon acceleration or otherwise. Each Guarantor further agrees that the Obligations may be extended or renewed, in whole or in part, in accordance with the terms of the Loan Documents, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any extension or renewal of any Obligation. Each Guarantor waives presentment to, demand of payment from and protest to the Borrower or any other Loan Party of any Obligation, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment. Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the Loan Documents shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable Debtor Relief Laws (after giving effect to the right of contribution established in Section 3.2).

2.2. Guarantee of Payment. Each Guarantor further agrees that its guarantee hereunder constitutes a continuing, absolute and unconditional guarantee of payment when due whether at stated maturity, upon acceleration or otherwise and not of collection, and waives any right to require that any resort be had by the Administrative Agent or any other Secured Party to any security held for the payment of the Obligations or to any balance of any Deposit Account or credit on the books of the Administrative Agent or any other Secured Party in favor of the Borrower or any other person.

 

3


2.3. No Limitations, Etc. (a) Except for termination of a Guarantor’s obligations hereunder, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Administrative Agent or any other Secured Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document in accordance with its terms or any other agreement, including with respect to any other Guarantor under this Agreement, (iii) the release of, or any impairment of or failure to perfect any Lien on or security interest in, any security held by the Administrative Agent or any other Secured Party for the Obligations or any of them, (iv) any default, failure or delay, willful or otherwise, in the performance of the Obligations, (v) any illegality, lack of validity or enforceability of any Obligation, (vi) any change in the corporate existence, structure or ownership of any Loan Party, or any insolvency, bankruptcy or reorganization of any Loan Party (other than any insolvency, bankruptcy or reorganization of such Guarantor), (vii) the existence of any claim, set-off or other rights that such Guarantor may have at any time against the Borrower, the Administrative Agent, any other Secured Party or any other person, whether in connection herewith, the other Loan Documents or any unrelated transactions or (viii) any other circumstances or any act or omission that may or might in any manner or to any extent vary the risk of such Guarantor or otherwise operate as a defense to or discharge of such Guarantor as a matter of law or equity (other than the payment in full of all the Obligations (or release of such Guarantor in accordance with the terms of the Loan Documents). Each Guarantor expressly authorizes the Administrative Agent to take and hold security for the payment and performance of the Obligations, to exchange, waive or release any or all such security (with or without consideration), to enforce or apply such security and direct the order and manner of any sale thereof in its sole discretion or to release or substitute any one or more other guarantors or obligors upon or in respect of the Obligations, all without affecting the obligations of any Guarantor hereunder.

(b) To the fullest extent permitted by applicable law, each Guarantor waives any defense based on or arising out of any defense of the Borrower or any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Borrower or any other Loan Party, other than the Discharge of Obligations or a release of guarantee in accordance with Section 4.14 hereof and Section 9.15 of the Credit Agreement. The Administrative Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with the Borrower or any other Loan Party or exercise any other right or remedy available to them against the Borrower or any other Loan Party, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Discharge of Obligations has occurred. To the fullest extent

 

4


permitted by applicable law, each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against the Borrower or any other Loan Party, as the case may be, or any security.

2.4. Reinstatement. Each Guarantor agrees that its guarantee hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by the Administrative Agent or any other Secured Party upon the bankruptcy or reorganization of the Borrower, any other Loan Party or otherwise.

2.5. Agreement To Pay; Subrogation. In furtherance of the foregoing and not in limitation of any other right that the Administrative Agent or any other Secured Party has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Borrower or any other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration or otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Administrative Agent for distribution to the applicable Secured Parties in cash the amount of such unpaid Obligation. Upon payment by any Guarantor of any sums to the Administrative Agent as provided above, all rights of such Guarantor against the Borrower or any other Guarantor arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject to Section 3.

2.6. Information. Each Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s and each other Loan Party’s financial condition and assets and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that neither the Administrative Agent nor any other Secured Party will have any duty to advise such Guarantor of information known to it or any of them regarding such circumstances or risks.

2.7. Keepwell. Each Qualified ECP Guarantor (as defined below) hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party hereunder to honor all of its obligations under this Agreement and the other Loan Documents in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 2.7 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 2.7, or otherwise under this Agreement, as it relates to such Loan Party, voidable under any Requirement of Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 2.7 shall remain in full force and effect until the Obligations shall have been indefeasibly paid in full. Each Qualified ECP Guarantor intends that this Section 2.7 constitute, and this Section 2.7 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

5


For purposes of the foregoing, “Qualified ECP Guarantor” shall mean, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time by entering into a letter of credit or keepwell, support or other agreement under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

SECTION 3. INDEMNITY, SUBROGATION AND SUBORDINATION

3.1. Indemnity and Subrogation. In addition to all such rights of indemnity and subrogation as the Guarantors may have under applicable law (but subject to Section 3.3), the Borrower agrees that (a) in the event a payment shall be made by any Guarantor under this Agreement, the Borrower shall indemnify such Guarantor for the full amount of such payment and such Guarantor shall be subrogated to the rights of the Person to whom such payment shall have been made to the extent of such payment and (b) in the event any assets of any Guarantor shall be sold pursuant to this Agreement or any other Loan Document to satisfy in whole or in part a claim of any Secured Party, the Borrower shall indemnify such Guarantor in an amount equal to the greater of the book value or the fair market value of the assets so sold.

3.2. Contribution and Subrogation. Each Guarantor (a “Contributing Guarantor”) agrees (subject to Section 3.3) that, in the event a payment shall be made by any other Guarantor hereunder in respect of any Obligation, or assets of any other Guarantor shall be sold pursuant to any Loan Document to satisfy any Obligation owed to any Secured Party, and such other Guarantor (the “Claiming Guarantor”) shall not have been fully indemnified by the Borrower as provided in Section 3.1, the Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal to (i) the amount of such payment or (ii) the greater of the book value or the fair market value of such assets, as the case may be, in each case multiplied by a fraction of which the numerator shall be the net worth of the Contributing Guarantor on the date hereof and the denominator shall be the aggregate net worth of all the Guarantors on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 4.14 hereof, the date of the supplement hereto executed and delivered by such Guarantor). Any Contributing Guarantor making any payment to a Claiming Guarantor pursuant to this Section 3.2 shall be subrogated to the rights of such Claiming Guarantor under Section 3.1 to the extent of such payment.

3.3. Subordination. Notwithstanding any provision of this Agreement to the contrary, all rights of the Guarantors under Sections 3.1 and 3.2 and all other rights of indemnity, contribution or subrogation under applicable law or otherwise shall be fully subordinated to the indefeasible payment in full in cash of Obligations. No failure on the part of the Borrower or any Guarantor to make the payments required by Sections 3.1 and 3.2 (or any other payments required under applicable law or otherwise) shall in any respect limit the obligations and liabilities of any Guarantor with respect to its obligations hereunder, and the Borrower and each Guarantor shall remain liable for the full amount of its obligations hereunder.

 

6


SECTION 4. MISCELLANEOUS

4.1. Amendments in Writing. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except (i) in accordance with Section 9.2 of the Credit Agreement, (ii) pursuant to an Assumption Agreement or (iii) with respect to Schedule 1 to this Agreement, such Schedule may be amended or supplemented by any Guarantor at any time by delivering such amended or supplemented schedule to the Administrative Agent.

4.2. Notices. All notices, requests and demands to or upon the Administrative Agent or any Guarantor hereunder shall be effected in the manner provided for in Section 9.1 of the Credit Agreement; provided that any such notice, request or demand to or upon any Guarantor (other than Parent or the Borrower) shall be addressed to such Guarantor at its notice address set forth on Schedule 1 (as such schedule may be amended from time to time).

4.3. No Waiver by Course of Conduct; Cumulative Remedies. Neither the Administrative Agent nor any Secured Party shall by any act (except by a written instrument pursuant to Section 4.1), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of the Administrative Agent or any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Administrative Agent or any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Administrative Agent or such Secured Party would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.

4.4. Enforcement Expenses; Indemnification.

(a) Each Guarantor agrees to pay or reimburse (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, disbursements and other charges of legal counsel for the Administrative Agent, incurred in collecting against such Guarantor under the guarantee contained in Section 2 or otherwise enforcing or preserving any rights under this Agreement and the other Loan Documents to which such Guarantor is a party, and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the fees, charges and disbursements of legal counsel for the Administrative Agent, in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this Section 4.4(a), including all such reasonable and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the Loans; provided, that the Guarantors’ obligations under this Section 4.4(a) for fees and expenses of legal counsel shall be limited to fees and expenses of (x) one primary outside legal counsel for all Persons described in clauses (i) and (ii) above, taken as a whole, (y) in the case of any actual or perceived conflict of interest, one outside legal counsel for each group of affected Persons similarly situated, taken as a whole, in each appropriate jurisdiction and (z) if necessary, one regulatory counsel and one local or foreign legal counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions).

 

7


(b) Each Guarantor agrees to pay, and to save the Administrative Agent and the other Secured Parties harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Collateral to the extent the Borrower would be required to do so pursuant to Section 9.3 of the Credit Agreement.

(c) Each Guarantor agrees to pay, and to save the Administrative Agent and the Secured Parties harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, reasonable and documented out-of-pocket costs, expenses or disbursements of any kind or nature whatsoever with respect to (x) the execution, delivery, enforcement, performance and administration of this Agreement, (y) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by any Guarantor (including any predecessor entities), or any Environmental Liability relating to any Guarantor (including any predecessor entities), or (z) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether the Administrative Agent or the Secured Parties are a party thereto and whether or not such claim, litigation, investigation or proceeding is brought by any Guarantor or any of their respective Affiliates, their respective creditors or any other Person, in each case to the extent the Borrower would be required to do so pursuant to Section 9.3 of the Credit Agreement.

(d) The agreements in this Section 4.4 shall survive repayment of the Obligations and all other amounts payable under the Credit Agreement and the other Loan Documents.

4.5. Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Guarantor and shall inure to the benefit of the Administrative Agent and the other Secured Parties and their successors and assigns; provided that, to the extent prohibited or restricted by the terms of the Credit Agreement, no Guarantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent.

4.6. Right of Setoff. If an Event of Default pursuant to Section 7.1(a), (g) or (h) of the Credit Agreement (in the case of clauses (g) or (h), with respect to the Borrower only) shall have occurred and be continuing, each Secured Party is hereby authorized at any time and from time to time with the prior written consent of the Administrative Agent, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Secured Party to or for the credit or the account of any Guarantor against any of and all the obligations of such Guarantor now or hereafter existing under this Agreement held by such Secured Party, irrespective of whether or not such Secured Party shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of each Secured Party under this Section 4.6 are in addition to other rights and remedies (including other rights of setoff) which such Secured Party may have. Each Secured Party shall notify the Administrative Agent and the relevant Guarantor promptly after any such setoff.

 

8


4.7. Counterparts; Integration. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission (e.g., “PDF” or “TIFF”) shall be effective as delivery of a manually executed counterpart of this Agreement. 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.

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

4.9. Section Headings. The Section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.

4.10. GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

4.11. Jurisdiction; Consent to Service of Process.

(a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York sitting in New York County, 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 hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Notwithstanding the foregoing, any party hereto may bring an action or proceeding in other jurisdictions in respect of its rights under any Security Document governed by a law other than the laws of the State of New York or, with respect to the Collateral, in a jurisdiction where such Collateral is located.

(b) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (a) of this Section 4.11. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

9


(c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 4.2. Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

4.12. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.12.

4.13. Acknowledgments. Each Guarantor hereby acknowledges that:

(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party;

(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or duty to any Guarantor arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Guarantors, on the one hand, and the Administrative Agent and Lenders, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and

(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among the Guarantors and the Lenders.

4.14. Additional Guarantors; Releases.

(a) Each Domestic Subsidiary of Parent that is required to, or that Parent or the Borrower shall elect to, become a party to this Agreement pursuant to Section 5.9 of the Credit Agreement shall become a Guarantor for all purposes of this Agreement upon execution and delivery by such Subsidiary (an “Additional Guarantor”) of an Assumption Agreement in the form of Annex 1 hereto.

 

10


(b) In the case of a transaction permitted under the Credit Agreement the result of which is that a Guarantor would cease to be a Restricted Subsidiary or would become an Excluded Subsidiary (or in case any Restricted Subsidiary otherwise becomes an Excluded Subsidiary), the Guarantor Obligations created by this Agreement in respect of such Guarantor shall automatically terminate and be released, without the requirement for any further action by any Person and the Administrative Agent shall promptly take such action and execute any such documents as may be reasonably requested by Parent or the Borrower and at the Borrower’s expense to further document and evidence such termination and release of such Guarantor Obligations.

(c) Upon Discharge of Obligations, the Guarantor Obligations shall automatically terminate and be released, without the requirement for any further action by any Person and the Administrative Agent shall promptly take such action and execute any such documents as may be reasonably requested by Parent or the Borrower and at the Borrower’s expense to further document and evidence such termination and release of the Guarantor Obligations.

4.15. Successor Administrative Agent. Upon the appointment of any successor to the Administrative Agent pursuant to Section 8.9 of the Credit Agreement, such successor shall thereupon automatically succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent under this Agreement and all references to the Administrative Agent herein shall refer to such successor, and the retiring Administrative Agent shall thereupon be discharged from its duties and obligations under this Agreement. After any retiring Administrative Agent’s resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement.

4.16. Execution of Assignments and Certain Other Documents. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries 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, physical delivery thereof 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, 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; provided that, in respect of documents to be signed by entities established within the European Union, the Electronic Signature qualifies as a “qualified electronic signature” within the meaning of the Regulation (EU) n 910/2014 of the European parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transaction in the internal market as amended from time to time and provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior written consent.

(signature pages follow)

 

11


IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and delivered as of the date first above written.

 

BORROWER:
T-MOBILE USA, INC.
By:  

/s/ J. Braxton Carter

  Name: J. Braxton Carter
  Title: Executive Vice President and
            Chief Financial Officer

 

[Signature Page to Guarantee Agreement – Term Loan]


GUARANTORS:
T-MOBILE US, INC.
By:  

/s/ J. Braxton Carter

  Name: J. Braxton Carter
  Title:   Executive Vice President and
              Chief Financial Officer

 

[Signature Page to Guarantee Agreement – Term Loan]


IBSV LLC

LAYER3 TV, INC.

L3TV CHICAGOLAND CABLE SYSTEM, LLC

L3TV COLORADO CABLE SYSTEM, LLC

L3TV DALLAS CABLE SYSTEM, LLC

L3TV DC CABLE SYSTEM, LLC

L3TV DETROIT CABLE SYSTEM, LLC

L3TV LOS ANGELES CABLE SYSTEM, LLC

L3TV MINNEAPOLIS CABLE SYSTEM, LLC

L3TV NEW YORK CABLE SYSTEM, LLC

L3TV PHILADELPHIA CABLE SYSTEM, LLC

L3TV SAN FRANCISCO CABLE SYSTEM, LLC

L3TV SEATTLE CABLE SYSTEM, LLC

METROPCS CALIFORNIA, LLC

METROPCS FLORIDA, LLC

METROPCS GEORGIA, LLC

METROPCS MASSACHUSETTS, LLC

METROPCS MICHIGAN, LLC

METROPCS NETWORKS CALIFORNIA, LLC

METROPCS NETWORKS FLORIDA, LLC

METROPCS NEVADA, LLC

METROPCS NEW YORK, LLC

METROPCS PENNSYLVANIA, LLC

METROPCS TEXAS, LLC

PUSHSPRING, INC.

T-MOBILE CENTRAL LLC

T-MOBILE FINANCIAL LLC

T-MOBILE LEASING LLC

T-MOBILE LICENSE LLC

T-MOBILE NORTHEAST LLC

T-MOBILE PCS HOLDINGS LLC

T-MOBILE PUERTO RICO HOLDINGS LLC

T-MOBILE PUERTO RICO LLC

T-MOBILE RESOURCES CORPORATION

T-MOBILE SOUTH LLC

T-MOBILE SUBSIDIARY IV LLC

T-MOBILE WEST LLC

THEORY MOBILE, INC.

 

By:  

/s/ J. Braxton Carter

  Name: J. Braxton Carter
  Title: Authorized Person

 

[Signature Page to Guarantee Agreement – Term Loan]


SPRINT CORPORATION
By:  

/s/ Jud Henry

  Name: Jud Henry
  Title: Senior Vice President, Finance and Treasurer

SPRINT COMMUNICATIONS, INC.

SPRINT CAPITAL CORPORATION

ALDA WIRELESS HOLDINGS, LLC

AMERICAN TELECASTING DEVELOPMENT, LLC

AMERICAN TELECASTING OF ANCHORAGE, LLC

AMERICAN TELECASTING OF COLUMBUS, LLC

AMERICAN TELECASTING OF DENVER, LLC

AMERICAN TELECASTING OF FORT MYERS, LLC

AMERICAN TELECASTING OF FT. COLLINS, LLC

AMERICAN TELECASTING OF GREEN BAY, LLC

AMERICAN TELECASTING OF LANSING, LLC

AMERICAN TELECASTING OF LINCOLN, LLC

AMERICAN TELECASTING OF LITTLE ROCK, LLC

AMERICAN TELECASTING OF LOUISVILLE, LLC

AMERICAN TELECASTING OF MEDFORD, LLC

AMERICAN TELECASTING OF MICHIANA, LLC

AMERICAN TELECASTING OF MONTEREY, LLC

AMERICAN TELECASTING OF REDDING, LLC

AMERICAN TELECASTING OF SANTA BARBARA, LLC

AMERICAN TELECASTING OF SEATTLE, LLC

AMERICAN TELECASTING OF SHERIDAN, LLC

AMERICAN TELECASTING OF YUBA CITY, LLC

APC REALTY AND EQUIPMENT COMPANY, LLC

ASSURANCE WIRELESS OF SOUTH CAROLINA, LLC

ASSURANCE WIRELESS USA, L.P.

ATI SUB, LLC

BOOST WORLDWIDE, LLC

BROADCAST CABLE, LLC

CLEAR WIRELESS LLC

CLEARWIRE COMMUNICATIONS LLC

CLEARWIRE CORPORATION

CLEARWIRE HAWAII PARTNERS SPECTRUM, LLC

CLEARWIRE IP HOLDINGS LLC

CLEARWIRE LEGACY LLC

 

By:  

/s/ Jud Henry

  Name: Jud Henry
  Title: Vice President and Treasurer

 

[Signature Page to Guarantee Agreement – Term Loan]


CLEARWIRE SPECTRUM HOLDINGS II LLC

CLEARWIRE SPECTRUM HOLDINGS III LLC

CLEARWIRE SPECTRUM HOLDINGS LLC

CLEARWIRE XOHM LLC

FIXED WIRELESS HOLDINGS, LLC

FRESNO MMDS ASSOCIATES, LLC

INDEPENDENT WIRELESS ONE LEASED REALTY CORPORATION

KENNEWICK LICENSING, LLC

MINORCO, LLC

NEXTEL COMMUNICATIONS OF THE MID-ATLANTIC, INC.

NEXTEL OF NEW YORK, INC.

NEXTEL RETAIL STORES, LLC

NEXTEL SOUTH CORP.

NEXTEL SYSTEMS, LLC

NEXTEL WEST CORP.

NSAC, LLC

PCTV GOLD II, LLC

PCTV SUB, LLC

PEOPLE’S CHOICE TV OF HOUSTON, LLC

PEOPLE’S CHOICE TV OF ST. LOUIS, LLC

PRWIRELESS PR, LLC

SIHI NEW ZEALAND HOLDCO, INC.

SN HOLDINGS (BR I) LLC

SN UHC 1, INC.

SN UHC 3, INC.

SN UHC 4, INC.

SPEEDCHOICE OF DETROIT, LLC

SPEEDCHOICE OF PHOENIX, LLC

SPRINT (BAY AREA), LLC

SPRINT COMMUNICATIONS COMPANY L.P.

SPRINT COMMUNICATIONS COMPANY OF NEW HAMPSHIRE, INC.

SPRINT COMMUNICATIONS COMPANY OF VIRGINIA, INC.

SPRINT CONNECT LLC

SPRINT CORPORATION

SPRINT CORPORATION

SPRINT EBUSINESS, INC.

SPRINT ENTERPRISE MOBILITY, LLC

SPRINT ENTERPRISE NETWORK SERVICES, INC.

SPRINT EWIRELESS, INC.

SPRINT HOLDCO, LLC

SPRINT INTERNATIONAL COMMUNICATIONS CORPORATION

 

By:  

/s/ Jud Henry

  Name: Jud Henry
  Title: Vice President and Treasurer

 

[Signature Page to Guarantee Agreement – Term Loan]


SPRINT INTERNATIONAL HOLDING, INC.

SPRINT INTERNATIONAL INCORPORATED

SPRINT INTERNATIONAL NETWORK COMPANY LLC

SPRINT PCS ASSETS, L.L.C.

SPRINT SOLUTIONS, INC.

SPRINT SPECTRUM HOLDING COMPANY, LLC

SPRINT SPECTRUM L.P.

SPRINT SPECTRUM REALTY COMPANY, LLC

SPRINT/UNITED MANAGEMENT COMPANY

SPRINTCOM, INC.

SWV SIX, INC.

TDI ACQUISITION SUB, LLC

TRANSWORLD TELECOM II, LLC

US TELECOM, INC.

USST OF TEXAS, INC.

UTELCOM LLC

VIRGIN MOBILE USA – EVOLUTION, LLC

VMU GP, LLC

WBS OF AMERICA, LLC

WBS OF SACRAMENTO, LLC

WBSY LICENSING, LLC

WCOF, LLC

WIRELESS BROADBAND SERVICES OF AMERICA, L.L.C.

WIRELINE LEASING CO., INC.

 

By:  

/s/ Jud Henry

  Name: Jud Henry
  Title: Vice President and Treasurer

 

[Signature Page to Guarantee Agreement – Term Loan]


DEUTSCHE BANK AG NEW YORK BRANCH, as Administrative Agent
By:  

/s/ Michael Strobel

  Name: Michael Strobel
  Title: Vice President
By:  

/s/ Alicia Schug

  Name: Alicia Schug
  Title: Vice President

 

[Signature Page to Guarantee Agreement – Term Loan]

EX-10.5

Exhibit 10.5

 

 

 

BRIDGE TERM LOAN CREDIT AGREEMENT

dated as of

April 1, 2020

among

T-MOBILE USA, INC.,

THE LENDERS PARTY HERETO

and

GOLDMAN SACHS BANK USA,

as Administrative Agent,

and

BARCLAYS BANK PLC, CREDIT SUISSE LOAN FUNDING LLC, DEUTSCHE BANK SECURITIES INC., GOLDMAN SACHS BANK USA, MORGAN STANLEY SENIOR FUNDING, INC. and RBC CAPITAL MARKETS1,

as Joint Lead Arrangers, Joint Lead Bookrunners and Syndication Agents,

and

BNP PARIBAS SECURITIES CORP., COMMERZBANK AG, NEW YORK BRANCH, CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK, TD SECURITIES (USA) LLC and WELLS FARGO SECURITIES, LLC,

as Bookrunners,

and

BANCO SANTANDER, S.A., NEW YORK BRANCH, SOCIETE GENERALE, SUNTRUST ROBINSON HUMPHREY, INC., NATWEST MARKETS PLC and U.S. BANK NATIONAL ASSOCIATION,

as Co-Managers

 

 

 

 

 

1 RBC Capital Markets is a brand name for the capital markets activities of Royal Bank of Canada and its affiliates.


TABLE OF CONTENTS

 

SECTION 1. DEFINITIONS

     1  

1.1

  Defined Terms      1  

1.2

  Other Definitional Provisions      52  

1.3

  Classification of Loans and Borrowings      53  

1.4

  Accounting Terms; GAAP      53  

1.5

  Pro Forma Calculations; Certain Calculations and Tests      54  

1.6

  Classification of Permitted Items      55  

1.7

  Rounding      55  

1.8

  Timing of Payment or Performance      55  

1.9

  Currency Equivalents Generally      55  

1.10

  LIBOR Replacement      55  

SECTION 2. AMOUNT AND TERMS OF COMMITMENTS

     57  

2.1

  Commitments      57  

2.2

  Procedure for Borrowing Loans      57  

2.3

  Repayment of Loans      57  

2.4

  [Reserved]      57  

2.5

  Loans and Borrowings      57  

2.6

  [Reserved]      58  

2.7

  [Reserved]      58  

2.8

  Funding of Borrowings      58  

2.9

  Interest Elections      58  

2.10

  Termination of Commitments      59  

2.11

  Evidence of Debt      59  

2.12

  Prepayment of Loans      60  

2.13

  Fees      62  

2.14

  Mandatory Prepayments      63  

2.15

  Interest      64  

2.16

  Alternate Rate of Interest      65  

2.17

  Increased Costs      65  

2.18

  Break Funding Payments      66  

2.19

  Taxes      67  

2.20

  Payments Generally; Pro Rata Treatment; Sharing of Set-offs      70  

2.21

  Mitigation Obligations; Replacement of Lenders      72  

2.22

  Defaulting Lenders      73  

2.23

  Extension of Maturity Date      73  

2.24

  Illegality      74  

SECTION 3. REPRESENTATIONS AND WARRANTIES

     74  

3.1

  Financial Condition      74  

3.2

  No Change      75  

3.3

  Corporate Existence; Compliance with Law      75  

3.4

  Power; Authorization; Enforceable Obligations      75  

3.5

  No Legal Bar      76  

3.6

  Litigation      76  

 

-i-


3.7

  No Default      76  

3.8

  Ownership of Property; Liens      76  

3.9

  Intellectual Property      76  

3.10

  Taxes      77  

3.11

  Federal Regulations      77  

3.12

  Labor Matters      77  

3.13

  ERISA      77  

3.14

  Investment Company Act      78  

3.15

  [Reserved]      78  

3.16

  Use of Proceeds      78  

3.17

  Environmental Matters      78  

3.18

  Accuracy of Information, Etc      79  

3.19

  Security Documents      79  

3.20

  Solvency      79  

3.21

  PATRIOT Act; FCPA; OFAC; Sanctions      80  

SECTION 4. CONDITIONS PRECEDENT

     80  

4.1

  Conditions to Closing Date      80  

SECTION 5. AFFIRMATIVE COVENANTS

     83  

5.1

  Financial Statements      83  

5.2

  Certificates; Other Information      84  

5.3

  Payment of Obligations      85  

5.4

  Maintenance of Existence; Compliance      85  

5.5

  Maintenance of Property; Insurance      85  

5.6

  Inspection of Property; Books and Records; Discussions      86  

5.7

  Notices      86  

5.8

  Environmental Laws      87  

5.9

  Additional Collateral, New Subsidiaries, Etc      87  

5.10

  Use of Proceeds      88  

5.11

  Further Assurances      89  

5.12

  Maintenance of Ratings      89  

5.13

  Designation of Subsidiaries      89  

5.14

  Post-Closing Matters      89  

SECTION 6. NEGATIVE COVENANTS

     89  

6.1

  Liens      89  

6.2

  Merger, Consolidation, or Sale of Assets      90  

SECTION 7. EVENTS OF DEFAULT

     91  

7.1

  Events of Default      91  

7.2

  Action in Event of Default      94  

7.3

  Clean Up Period      94  

7.4

  Application of Proceeds      94  

 

-ii-


SECTION 8. THE AGENTS

     95  

8.1

  Appointment      95  

8.2

  Delegation of Duties      96  

8.3

  Exculpatory Provisions      96  

8.4

  Reliance by Administrative Agent      97  

8.5

  Notice of Default      97  

8.6

  Non-Reliance on Agents and Other Lenders; Certain ERISA Matters      97  

8.7

  Indemnification      99  

8.8

  Agent in Its Individual Capacity      99  

8.9

  Successor Administrative Agent      99  

8.10

  [Reserved]      100  

8.11

  Withholding Tax      100  

8.12

  Proofs of Claim      100  

SECTION 9. MISCELLANEOUS

     101  

9.1

  Notices      101  

9.2

  Waivers; Amendments      104  

9.3

  Expenses; Indemnity; Damage Waiver      106  

9.4

  Successors and Assigns      108  

9.5

  Survival      113  

9.6

  Counterparts; Integration; Effectiveness      113  

9.7

  Severability      114  

9.8

  Right of Setoff      114  

9.9

  Governing Law; Jurisdiction; Consent to Service of Process      114  

9.10

  WAIVER OF JURY TRIAL      115  

9.11

  Headings      115  

9.12

  Confidentiality      115  

9.13

  PATRIOT Act; “Know Your Customer” Checks      116  

9.14

  Acknowledgment and Consent to Bail-In of Affected Financial Institutions      117  

9.15

  Release of Liens and Guarantees; Secured Parties      117  

9.16

  No Fiduciary Duty      119  

9.17

  Interest Rate Limitation      119  

9.18

  Intercreditor Agreements      120  

9.19

  Conflicts      120  

9.20

  Execution of Assignments and Certain Other Documents      120  

9.21

  Acknowledgment Regarding Any Supported QFCs      121  

 

-iii-


SCHEDULES:
1.1(a)    Closing Date Refinancing Indebtedness
1.1(b)    [Reserved]
1.1(c)    Unrestricted Subsidiaries
1.1(d)    Unsecured SPV Holdcos
1.1(e)    Existing Financing Subsidiaries
2.1    Lenders
3.3    Governmental Requirements
3.4    Consents, Approvals, Registrations and Filings
3.8    Title Exceptions
3.9    Intellectual Property Exceptions
4.1(j)    Local Counsel Opinions
5.14    Post-Closing Matters
EXHIBITS:
A    Form of Collateral Agreement
B    Form of Guarantee Agreement
C    Form of Compliance Certificate
D    Form of Closing Certificate
E-1    Form of Assignment and Assumption
E-2    Form of Affiliated Lender Assignment and Assumption
F    Form of Senior Pari Passu Intercreditor Agreement
G    Form of Note
H-1H-4    Forms of US Tax Compliance Certificates
I    Form of Borrowing Request
J    Form of Solvency Certificate

 

-iv-


BRIDGE TERM LOAN CREDIT AGREEMENT (this “Agreement”), dated as of April 1, 2020 among T-MOBILE USA, INC., a Delaware corporation (the “Borrower”), the several banks and other financial institutions or entities from time to time parties to this Agreement as lenders and GOLDMAN SACHS BANK USA, as administrative agent (together with its successors and permitted assigns in such capacity, the “Administrative Agent”).

PRELIMINARY STATEMENTS

WHEREAS, pursuant to that certain Business Combination Agreement, dated as of April 29, 2018 (such agreement, together with all schedules and exhibits thereto, as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Business Combination Agreement”) by and among T-Mobile US, Inc., Huron Merger Sub LLC, Superior Merger Sub Corporation, Sprint Corporation, Starburst I, Inc., Galaxy Investment Holdings, Inc., Deutsche Telekom AG, Deutsche Telekom Holding B.V. and Softbank Group Corp., Parent will acquire (the “Acquisition”), directly or indirectly, all of the outstanding equity interests of Sprint and its direct and indirect subsidiaries;

WHEREAS, to finance a portion of the Acquisition and for other purposes described herein, the Lenders agreed to extend certain credit facilities consisting of Loans made available to the Borrower in an aggregate principal amount of $19,000.0 million;

WHEREAS, the Borrower has agreed to secure all of its Obligations by granting to the Collateral Trustee, for the benefit of the Secured Parties, a lien on substantially all of its assets (subject to certain limitations set forth in the Loan Documents); and

WHEREAS, each Guarantor has agreed to guarantee the Obligations of the Borrower and each Guarantor (other than the Unsecured Guarantors) has agreed to secure its respective Obligations by granting to the Collateral Trustee, for the benefit of the Secured Parties, a lien on substantially all of its assets (subject, in each case, to certain limitations set forth in the Loan Documents).

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

SECTION 1. DEFINITIONS

1.1 Defined Terms. As used in this Agreement, the terms listed in this Section 1.1 shall have the respective meanings set forth in this Section 1.1.

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

Acquisition”: as defined in the recitals hereto.

Additional Agreement”: as defined in Section 9.18 hereof.

Adjusted LIBO Rate”: with respect to any Eurodollar Borrowing, for any Interest Period, an interest rate per annum equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that the Adjusted LIBO Rate shall in no event be less than 0.00%.

Administrative Agent”: as defined in the preamble hereto.


Administrative Questionnaire”: an administrative questionnaire in a form supplied by the Administrative Agent.

Affected Financial Institution”: (a) any EEA Financial Institution or (b) any UK Financial Institution.

Affiliate”: as to any specified Person, any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control,” as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.

Affiliated Lender”: any Lender that is an Affiliate of the Borrower and any Affiliate of such Lender, other than (a) Parent, the Borrower or any Subsidiary of the Borrower or (b) any natural Person.

Affiliated Lender Assignment and Assumption”: an assignment and assumption entered into by a Lender and an Affiliated Lender (with the consent of any party whose consent is required by Section 9.4), and accepted by the Administrative Agent, in the form of Exhibit E-2 or any other form approved by the Administrative Agent and the Borrower.

Agent Indemnitee”: as defined in Section 8.7.

Agents”: the collective reference to the Administrative Agent, the Collateral Trustee and the Syndication Agents.

Aggregate Exposure”: with respect to any Lender at any time, an amount equal to (a) until the Closing Date, the aggregate amount of such Lender’s Commitments at such time and (b) thereafter, the aggregate then unpaid principal amount of such Lender’s Loans.

Aggregate Exposure Percentage”: with respect to any Lender at any time, the ratio (expressed as a percentage) of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of all Lenders at such time.

Agreement”: as defined in the preamble hereto.

Alternate Base Rate”: for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1.00% and (c) the Adjusted LIBO Rate that would be calculated as of such day (or, if such day is not a Business Day, as of the next preceding Business Day) in respect of a proposed Eurodollar Loan with a one-month Interest Period plus 1.00%; provided that for the purpose of clause (c), the Adjusted LIBO Rate for any day shall be based on the rate determined on such day at approximately 11:00 a.m. (London time) by reference to the ICE Benchmark Administration Limited (or such other Person that takes over the administration of such rate) LIBO Rate for deposits in US Dollars (as set forth by any service selected by the Administrative Agent that has been nominated by the ICE Benchmark Administration Limited (or such other Person that takes over the administration of such rate) as an authorized vendor for the purpose of displaying such rates). If the Administrative Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, including the inability or failure of the Administrative Agent to obtain sufficient quotations in accordance with the terms of the definition thereof, the Alternate Base Rate shall be determined without regard to clause (b) of the immediately preceding sentence until the circumstances giving rise to such inability no longer exist. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or such Adjusted LIBO Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or such Adjusted LIBO Rate, respectively.

 

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Applicable Discount”: as defined in Section 2.12(f)(iii).

Applicable Margin”: 0.25% per annum in the case of ABR Loans and 1.25% per annum in the case of Eurodollar Loans; provided that, until the earlier to occur (A) the payment in full of all Loans hereunder and (B) the Maturity Date, the Applicable Margin shall increase (x) by 0.25% on the date falling on the last day of the three-month period following the Closing Date and (y) by an additional 0.25% on the last day of each three-month period thereafter.

Approved Fund”: any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit as its primary activity and 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.

Arrangers”: the collective reference to Barclays Bank PLC, Credit Suisse Loan Funding LLC, Deutsche Bank Securities Inc., Goldman Sachs Bank USA, Morgan Stanley Senior Funding, Inc., RBC Capital Markets, BNP Paribas Securities Corp., Commerzbank AG, New York Branch, Credit Agricole Corporate and Investment Bank, TD Securities (USA) LLC, Wells Fargo Securities, LLC, Banco Santander, S.A., New York Branch, SOCIETE GENERALE, SunTrust Robinson Humphrey, Inc., NatWest Markets Plc and U.S. Bank National Association.

Asset Acquisition”:

(a) an Investment by the Borrower or any of its Restricted Subsidiaries in any other Person pursuant to which such Person shall become a Restricted Subsidiary or shall be merged into or consolidated with the Borrower or any of its Restricted Subsidiaries, or

(b) an acquisition by the Borrower or any of its Restricted Subsidiaries of the property and assets of any Person, other than the Borrower or any of its Restricted Subsidiaries, that constitute all or substantially all of a division, operating unit or line of business of such Person.

Asset Sale”:

(i) the sale, lease, conveyance or other disposition of any assets or rights (including any disposition of property to a Delaware Divided LLC pursuant to a Delaware LLC Division); provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries taken as a whole will be governed by Section 6.2 and shall not constitute an Asset Sale for purposes of Section 2.12; and

(ii) the issuance of Equity Interests in any of the Borrower’s Subsidiaries or the sale by the Borrower or any Subsidiary thereof of Equity Interests in any of its Subsidiaries (other than (x) directors’ qualifying shares or shares or interests required to be held by non-U.S. nationals or other third parties to the extent required by applicable law or (y) Preferred Stock or Disqualified Stock of a Subsidiary):

 

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Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale:

(a) any single transaction or series of related transactions that involves assets having a Fair Market Value of less than the greater of $250.0 million and 1.00% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period;

(b) a sale, lease, conveyance or other disposition of assets or Equity Interests between or among the Borrower and/or its Restricted Subsidiaries;

(c) an issuance or sale of Equity Interests by a Restricted Subsidiary of the Borrower to the Borrower or to a Restricted Subsidiary of the Borrower;

(d) the sale, lease, sublease, conveyance or other disposition of (a) assets, products, services or accounts receivable in the ordinary course of business, (b) equipment or other assets pursuant to a program for the maintenance or upgrading of such equipment or assets, or (c) damaged, worn-out, uneconomic or obsolete assets in the ordinary course of business;

(e) the sale, conveyance or other disposition of cash or Cash Equivalents;

(f) a surrender or waiver of contract rights or settlement, release or surrender of contract, tort or other claims in the ordinary course of business or a grant of a Lien not prohibited by this Agreement;

(g) a dividend, distribution on account of any Equity Interests or payment, purchase, redemption, defeasance or any otherwise acquisition or retirement for value of any Indebtedness;

(h) arm’s-length sales, leases or subleases (as lessor or sublessor), sale and leasebacks, assignments, conveyances, transfers or other dispositions of assets or rights to a Person that is a Joint Venture Investment;

(i) licenses and sales of Intellectual Property or other general intangibles (other than FCC Licenses) in the ordinary course of business;

(j) an Investment;

(k) the Dish Transactions and the Consent Decree Transactions;

(l) one or more sales, conveyances, leases, subleases, licenses, contributions, or other dispositions, assignments or transfers made as part of, or in connection with, any Permitted Tower Financing or Permitted Spectrum Financing;

(m) dispositions of financial assets and related assets pursuant to securitization or factoring agreements or other similar agreements or arrangements including to a Permitted Receivables Financing Subsidiary in connection with a Permitted Receivables Financing, to a Permitted Tower Financing Subsidiary in connection with a Permitted Tower Financing, or to a Permitted Spectrum Financing Subsidiary in connection with a Permitted Spectrum Financing, in each case so long as the consideration for any such disposition is in the form of cash, retained Capital Stock or subordinated interests in such Permitted Receivables Financing Subsidiary, Permitted Tower Financing Subsidiary or Permitted Spectrum Financing Subsidiary, as applicable, or deferred purchase price paid from or collections on subordinated interests in the assets being sold;

(n) any Sale Leaseback Transactions;

 

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(o) the settlement or early termination of any Permitted Bond Hedge Transaction or the unwinding of any other Hedging Obligations;

(p) any issuance, disposition or sale of Equity Interests in, or Indebtedness, assets or other securities of, an Unrestricted Subsidiary (other than any Unrestricted Subsidiary the primary assets of which consist of cash and Cash Equivalents);

(q) sales of assets received by the Borrower or any Restricted Subsidiary upon the foreclosure of a Lien;

(r) the sale, lease, assignment, license or sublease of inventory, equipment, accounts receivable, notes receivable or other current assets held for sale, lease, assignment, license or sublease and/or assets in connection with the lease of network assets such as mobile virtual network operator (MVNO) arrangements, in each case in the ordinary course of business, or the conversion of accounts receivable into a notes receivable;

(s) the lease, assignment or sublease of any real or personal property in the ordinary course of business and dispositions to landlords of improvements made to leased real property pursuant to customary terms of leases;

(t) any exchange of assets for assets (including a combination of assets and Cash Equivalents) related to a Permitted Business of comparable or greater market value, as determined in good faith by the Borrower;

(u) any sale or other disposition deemed to occur with creating, granting or perfecting a Lien not otherwise prohibited by this Agreement or the Loan Documents;

(v) foreclosures, condemnations, casualty events or any similar action on assets;

(w) sales of non-core assets to obtain the approval of Governmental Authorities in connection with the Acquisition;

(x) sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements;

(y) [reserved]; and

(z) the lapse, abandonment or other disposition of intellectual property rights in the ordinary course of business, which in the reasonable good faith determination of the Borrower are no longer commercially reasonable to maintain or are not material to the conduct of the business of the Borrower and the Restricted Subsidiaries, taken as a whole.

Assignment and Assumption”: an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.4) and accepted by the Administrative Agent, in the form of Exhibit E-1 or any other form approved by the Administrative Agent and the Borrower.

Auction”: as defined in Section 2.12(f).

Auction Amount”: as defined in Section 2.12(f).

 

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Auction Notice”: as defined in Section 2.12(f).

Bail-In Action”: the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

Bail-In Legislation”: (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

Bankruptcy Event”: with respect to any Person, (i) any case, action or proceeding before any court or Governmental Authority relating to a bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or the appointment of a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar person charged with the reorganization or liquidation of its business, or, in the good faith determination of the Administrative Agent, the taking of any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, or (ii) any general assignment for the benefit of creditors, formal or informal moratorium, marshaling of assets for creditors or other, similar arrangement in respect of creditors generally or any substantial portion of its creditors, in each case undertaken under any Bankruptcy Law; provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof; provided, further, that such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person.

Bankruptcy Law”: the United States Bankruptcy Code (11 U.S.C. Section 1.1 et seq.) or any similar federal or state law for the relief of debtors.

Beneficial Owner”: has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that (a) in calculating the Beneficial Ownership of any particular “person” (as such term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have Beneficial Ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time and (b) in the case of a “group” (as such term is used in Rule 13d 5(b)(1) under the Exchange Act) which group includes one or more Permitted Holders (or one or more Permitted Holders is deemed to share Beneficial Ownership with one or more other persons of any shares of Capital Stock), (i) such “group” shall be deemed not to have beneficial ownership of any shares held by such Permitted Holder and (ii) any person (other than such Permitted Holder) that is a member of such group (or sharing such Beneficial Ownership) shall be deemed not to have Beneficial Ownership of any shares held by such Permitted Holder (or in which any such Person shares beneficial ownership). The term “Beneficial Ownership” has a corresponding meaning.

Beneficial Ownership Regulation”: 31 C.F.R. § 1010.230.

Beneficial Tax Owner”: as defined in the definition of “Excluded Taxes”.

 

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Benefit Plan”: any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

Board”: the Board of Governors of the Federal Reserve System of the United States (or any successor thereto).

Board of Directors”:

(a) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board;

(b) with respect to a partnership, the board of directors or managing member of the general partner of the partnership;

(c) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and

(d) with respect to any other Person, the board or committee of such Person serving a similar function.

Boost Asset Purchase Agreement” means the Asset Purchase Agreement, dated as of July 26, 2019, among T-Mobile US, Inc., Sprint Corporation and DISH Network Corporation and any exhibits thereto, as amended, restated, amended and restated, supplemented or otherwise modified or replaced (including a replacement involving different counterparties) from time to time.

Boost Assets” means all assets that were sold by the Borrower, Sprint or any of their Subsidiaries pursuant to the Boost Asset Purchase Agreement upon the effectiveness of their sale, other than Excluded Assets (as defined in the Boost Asset Purchase Agreement).

Borrower”: as defined in the preamble hereto.

Borrower Materials”: as defined in Section 9.1.

Borrowing”: Loans of the same Type, made, converted, or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

Borrowing Request”: a request by the Borrower for a Borrowing substantially in the form of Exhibit I.

Business Combination Agreement”: as defined in the preliminary statements hereto.

Business Combination Agreement Representations”: such of the representations made by Sprint in the Business Combination Agreement as are material to the interests of the Lenders, but only to the extent the Borrower (or its affiliates) has the right under the Business Combination Agreement to terminate its obligations under the Business Combination Agreement or not to consummate the Acquisition as a result of such representations in the Business Combination Agreement being inaccurate.

Business Day”: any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall also exclude any day on which banks are not open for dealings in US Dollar deposits in the London interbank market.

 

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Capital Stock”:

(a) in the case of a corporation, corporate stock;

(b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(c) in the case of an exempted company, shares;

(d) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests, respectively; and

(e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

Captive Insurance Subsidiary”: any direct or indirect Subsidiary of Borrower that bears financial risk or exposure relating to insurance or reinsurance activities and any segregated accounts associated with any such Person.

Cash Equivalents”:

(a) United States dollars, pounds sterling, euros, Canadian dollars, Swiss francs, the national currency of any member state of the European Union or any other foreign currencies held by the Borrower and its Restricted Subsidiaries from time to time in the ordinary course of business;

(b) securities issued or directly and fully guaranteed or insured by the government of the United States of America, Canada, the United Kingdom, Switzerland or any country that is a member of the European Union or any agency or instrumentality thereof (provided that the full faith and credit of the United States, Canada, the United Kingdom, Switzerland or the relevant member state of the European Union, as the case may be, is pledged in support of those securities) having maturities of not more than two years from the date of acquisition;

(c) demand deposits, certificates of deposit and Eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $250.0 million, in the case of U.S. banks, and $100.0 million (or the foreign currency equivalent thereof), in the case of non-U.S. banks;

(d) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c) above;

(e) commercial paper having one of the two highest ratings obtainable from a Rating Agency at the date of acquisition and, in each case, maturing within one year after the date of acquisition;

 

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(f) securities issued and fully guaranteed by any state, commonwealth or territory of the United States, Canada, any country that is a member of the European Union, the United Kingdom or Switzerland or by any political subdivision or agency or instrumentality of the foregoing, rated at least “A” (or the equivalent thereof) by a Rating Agency at the date of acquisition and having maturities of not more than two years after the date of acquisition;

(g) auction rate securities rated at least “AA-” or “Aa3” (or the equivalent thereof) by a Rating Agency at the time of purchase and with reset dates of one year or less from the time of purchase;

(h) investments, classified in accordance with GAAP as current assets of the Borrower or any of its Restricted Subsidiaries, in money market funds, mutual funds or investment programs registered under the Investment Company Act of 1940, at least 90% of the portfolios of which constitute investments of the character, quality and maturity described in clauses (a) through (g) of this definition;

(i) any substantially similar investment to the kinds described in clauses (a) through (g) of this definition rated at least “P-2” by Moody’s or “A-2” by S&P or the equivalent thereof; and

(j) deposits or payments made to the FCC in connection with the auction or licensing of Governmental Authorizations that are fully refundable.

Cash Management Agreement”: any agreement in respect of Cash Management Obligations.

Cash Management Obligations”: obligations owed by any Group Member to any Qualified Counterparty in respect of or in connection with Cash Management Services and designated by such Qualified Counterparty and the Borrower in writing to the Administrative Agent and the Collateral Trustee as a “Cash Management Obligation”, solely to the extent such obligations owed by any Group Member are primary obligations of a Loan Party or are guaranteed by a Loan Party.

Cash Management Services”: any cash management facilities or services including treasury, depositary, disbursement, lockbox, funds transfer, pooling, netting, overdraft, stored value card, purchase card (including so-called “procurement cards” or “P-cards”), debit card, credit card, e-payable, cash management and similar services and any automated clearing house transfer of funds.

CFC”: a “controlled foreign corporation” within the meaning of Section 957 of the Code.

Change in Law”: (a) the adoption of any law, rule, regulation or treaty after the date of this Agreement or, if later, the date on which the applicable Lender becomes a Lender hereunder, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or, if later, the date on which the applicable Lender becomes a Lender hereunder or (c) compliance by any Lender (or, for purposes of Section 2.17(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement or, if later, the date on which the applicable Lender becomes a Lender hereunder; provided that, notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives promulgated thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, in each case shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted, promulgated or issued.

 

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Change of Control”: the occurrence of any of the following:

(a) the consummation of any transaction (including any merger or consolidation), the result of which is that any “person” (as defined above), other than a Permitted Holder, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of Parent (or its successor by merger, consolidation or purchase of all or substantially all of its assets or its equity), measured by voting power rather than number of shares; or

(b) the Borrower ceases to be a direct or indirect Wholly Owned Subsidiary of Parent;

provided that the Transactions, including the Acquisition, and the other transactions specifically contemplated by the Business Combination Agreement (including the changes to the Beneficial Ownership of the Voting Stock of Parent contemplated therein) shall not be a Change of Control.

Change of Control Triggering Event”: the occurrence of a Change of Control (x) that is accompanied or followed by a downgrade by one or more gradations (including gradations within ratings categories as well as between ratings categories) or withdrawal of the corporate rating of the Borrower within the Ratings Decline Period by both Moody’s and S&P and (y) the corporate rating of the Borrower on any day during such Ratings Decline Period is below the rating by each of Moody’s and S&P in effect immediately preceding the first public announcement of the Change of Control (or occurrence thereof if such Change of Control occurs prior to public announcement), provided that in making the relevant decision(s) referred to above to downgrade or withdraw such ratings, as applicable, the relevant Rating Agency announces publicly or confirms in writing during such Ratings Decline Period that such decision(s) resulted, in whole or in part, from the occurrence (or expected occurrence) of such Change of Control or the announcement of the intention to effect such Change of Control; provided, further, that no Change of Control Triggering Event shall be deemed to occur if at the time of the applicable downgrade the corporate rating of the Borrower by either Moody’s or S&P is investment grade; provided further that if that Facility ceases to be rated by either Moody’s or S&P, the Borrower is permitted to replace such Rating Agency with Fitch, in which case, references to such replaced Rating Agency in this definition shall be deemed to refer to Fitch.

Closing Date”: the date on which the conditions precedent set forth in Section 4.1 shall have been satisfied or waived in accordance with Section 9.2.

Closing Date Refinancing”: the repayment, repurchase and retirement, redemption, discharge (including constructive discharge) and/or call for redemption (or causing the applicable borrower or issuer to do so) of the Indebtedness set forth on Schedule 1.1(a).

Code”: the Internal Revenue Code of 1986, as amended.

Collateral”: all Property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is created or purported to be created by any Security Document; provided, however, that the Collateral shall not include any Excluded Assets.

Collateral Agreement”: the Collateral Agreement executed by Parent, each Subsidiary of Parent that, directly or indirectly, owns Equity Interests of the Borrower, the Borrower and each Subsidiary Guarantor (other than the Unsecured Guarantors) party thereto from time to time in favor of the Collateral Trustee, substantially in the form of Exhibit A, as the same may be amended, restated, supplemented, replaced or otherwise modified from time to time.

 

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Collateral Trust Agreement”: the Collateral Trust and Intercreditor Agreement, dated as of the date hereof, among Parent, the Borrower, the grantors party thereto, Deutsche Bank AG New York Branch, as first priority agent, Deutsche Bank AG New York Branch, as holder representative under the Senior Credit Facilities, the Administrative Agent, as holder representative under this Agreement, each other representative of the various secured parties described therein and the Collateral Trustee.

Collateral Trustee”: Deutsche Bank Trust Company Americas, in its capacity as Collateral Trustee under the Collateral Trust Agreement (or any successor collateral trustee thereunder).

Commitment”: as to any Lender, the obligation of such Lender to make a Loan to the Borrower in a principal amount not to exceed the amount set forth under the heading “Commitment” opposite such Lender’s name on Schedule 2.1. The original aggregate principal amount of the Commitments on the Closing Date is $19,000.0 million.

Commitment Letter”: the Second Amended and Restated Commitment Letter, dated as of September 6, 2019, among the Arrangers, the Borrower and the other parties thereto.

Commodity Exchange Act”: the Commodity Exchange Act (7 U.S.C. § 1, et seq.), as amended from time to time, and any successor statute.

Commonly Controlled Entity”: an entity, whether or not incorporated, that is under common control with the Borrower within the meaning of Section 4001 of ERISA or is part of a group that includes the Borrower and that is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under subsection (b), (c), (m) or (o) of Section 414 of the Code.

Communications”: as defined in Section 9.1.

Compliance Certificate”: a certificate duly executed by a Responsible Officer, substantially in the form of Exhibit C.

Connection Income Taxes”: Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

Consent Decree Transactions”: all transactions entered into pursuant to the consent decree, originally filed by the U.S. Department of Justice (the “DOJ”) with the U.S. District Court for the District of Columbia on July 26, 2019, as agreed to by the DOJ, T-Mobile, Deutsche Telekom, Sprint, SoftBank Group Corp., and DISH Network Corporation, as it may be further amended or modified.

Consolidated Cash Flow”: with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period plus, without duplication:

(a) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus

(b) the Consolidated Interest Expense of such Person and its Restricted Subsidiaries for such period, to the extent that such Consolidated Interest Expense was deducted in computing such Consolidated Net Income; plus

 

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(c) depreciation, amortization (including, non-cash impairment charges and any write-off or write-down or amortization of intangibles) and other non-cash expenses or charges (excluding any such non-cash expense to the extent that it represents an ordinary course accrual of or reserve for cash expense in any future period or amortization of any ordinary course prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses or charges were deducted in computing such Consolidated Net Income; plus

(d) any nonrecurring or unusual gains or losses or income, expenses or charges (including all fees and expenses relating thereto), including (i) any fees, expenses and costs relating to any Permitted Tower Financing or any Permitted Spectrum Financing, (ii) any fees, expenses (including legal and professional expenses) or charges (not covered under sub-clause (iv) below) related to any sale or offering of Equity Interests of such Person or Parent or any Investment, acquisition, disposition, dividend, distribution, return of capital, recapitalization or the incurrence of any Indebtedness, including refinancing thereof or the offering, amendment or modification of any debt instrument, including the offering, any amendment or other modification of the Senior Notes (in each case, whether or not successful and whether or not incurred prior to the Closing Date), (iii) any premium, penalty or fee paid in relation to any repayment, prepayment or repurchase of Indebtedness, (iv) any fees or expenses relating to the Transactions and the transactions contemplated in this Agreement and the Senior Credit Facilities, including any fees, expenses or charges related to any incurrence, issuance or offering of incremental facilities, replacement facilities, extension facilities or incremental equivalent debt, or any amendment or modification of this Agreement or other “Loan Document” executed and delivered in connection with the Senior Credit Facilities, any other Loan Document executed and delivered in connection with this Agreement or the Senior Credit Facilities or any documentation governing Incremental Equivalent Debt (as defined in the Senior Credit Agreement) (in each case, whether or not successful) and (v) restructuring charges, integration costs (including retention, relocation and contract termination costs) and related costs and charges, and costs in connection with strategic initiatives, transition costs and information systems-related costs (including non-recurring employee bonuses in connection therewith and non-recurring product and Intellectual Property development costs); plus

(e) losses or discounts on sales of Permitted Receivables Financing Assets in connection with any Permitted Receivables Financing; plus

(f) [reserved]; plus

(g) the “run rate” expected cost savings, operating expense reductions, other operating improvements and initiatives, restructuring charges and expenses and synergies that are reasonably identifiable, factually supportable and expected in good faith to be realized as a result of actions with respect to which substantial steps have been taken, will be, or are expected in good faith to be, taken within 24 months after the date of any acquisition, disposition, divestiture, restructuring, other operational changes or the implementation of a cost savings or other similar initiative, as applicable (calculated on a pro forma basis as though such cost savings, operating expense reductions, other operating improvements and initiatives, restructuring charges and expenses and synergies had been realized on the first day of such period as if such cost savings, operating expense reductions, other operating improvements and initiatives, restructuring charges and expenses and synergies were realized during the entirety of such period), net of the amount of actual benefits realized during such period from such actions; provided that (A) such actions or substantial steps have been, will be or are expected to be taken within 24 months after (x) if such cost savings, expense reductions, charge, expense, acquisition, divestiture, restructuring or initiative is initiated on or prior to the Closing Date, the Closing Date or (y) if such cost savings, expense reductions, charge, expense, acquisition, divestiture, restructuring, other operational changes or initiative is initiated after the Closing Date, the date on which such cost savings, expense reductions, charge, expense, acquisition,

 

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divestiture, restructuring other operational changes or initiative is initiated and (B) no cost savings, operating expense reductions, restructuring charges and expense or synergies shall be added pursuant to this defined term to the extent duplicative of any expenses or charges otherwise added to Consolidated Cash Flow, whether through a pro forma adjustment or otherwise, for such period (which adjustments may be incremental to pro forma adjustments made pursuant to the definition of “Total First Lien Net Leverage Ratio”); provided, further that the aggregate amount added back pursuant to this clause (g) and clause (h) below (excluding addbacks for restructuring and other one-time costs) shall not cumulatively exceed 25% of Consolidated Cash Flow for any Test Period (with such calculation being made prior to giving effect to any increase pursuant to this clause (g) and clause (h) below); plus

(h) in addition to (but not in duplication of) clause (g) above, the “run rate” expected cost savings, operating expense reductions, other operating improvements and initiatives, restructuring charges and expenses and synergies related to the Transactions that are reasonably identifiable, factually supportable and expected in good faith to be realized as a result of actions with respect to which substantial steps have been taken, will be, or are expected in good faith to be, taken within 36 months after the Closing Date (calculated on a pro forma basis as though such cost savings, operating expense reductions, other operating improvements and initiatives, restructuring charges and expenses and synergies had been realized on the first day of such period as if such cost savings, operating expense reductions, other operating improvements and initiatives, restructuring charges and expenses and synergies were realized during the entirety of such period), net of the amount of actual benefits realized during such period from such actions (which actions may be incremental to pro forma adjustments made pursuant to the definition of “Total First Lien Net Leverage Ratio”); provided, further that the aggregate amount added back pursuant to this clause (h) and clause (g) above (excluding addbacks for restructuring and other one-time costs) shall not cumulatively exceed 25% of Consolidated Cash Flow for any Test Period (with such calculation being made prior to giving effect to any increase pursuant to this clause (h) and clause (g) above); minus

(i) non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business, in each case, on a consolidated basis and determined in accordance with GAAP.

Notwithstanding the preceding, the provision for taxes based on the income or profits of, and the depreciation and amortization and other non-cash expenses of, a Restricted Subsidiary of the Borrower that is not a Subsidiary Guarantor will be added to Consolidated Net Income to compute Consolidated Cash Flow of the Borrower only to the extent that a corresponding amount would be permitted at the date of determination to be dividended to the Borrower by such Restricted Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Restricted Subsidiary or its stockholders.

For the avoidance of doubt, calculations of “Consolidated Cash Flow” of the Borrower for any period prior to the Closing Date for purposes of calculating the Total First Lien Net Leverage Ratio shall be on a pro forma basis as described in the last paragraph of the definition of “Total First Lien Net Leverage Ratio”.

Consolidated Indebtedness”: with respect to any Person as of any date of determination, the sum, without duplication, of (i) the total amount of Indebtedness of such Person and its Restricted Subsidiaries described in clauses (a)(1) and (2) (excluding, for the avoidance of doubt, surety bonds, performance bonds and similar instruments) of the definition of “Indebtedness”, determined on a consolidated basis, to the extent required to be recorded on a balance sheet in accordance with GAAP, including, without duplication, the outstanding principal amount of the Loans; provided that Consolidated Indebtedness shall not include (w) Indebtedness incurred in connection with any Permitted Tower Financing or other special purpose

 

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entity financing (other than Indebtedness incurred by a Permitted Spectrum Financing Subsidiary, including the Existing Sprint Spectrum Notes), (x) obligations in respect of letters of credit, except to the extent of any unreimbursed amounts thereunder or (y) Indebtedness constituting Financing Lease Obligations, purchase money debt or other similar Indebtedness.

Consolidated Interest Expense”: with respect to any Person for any period, the sum of, without duplication:

(a) the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued (including amortization of debt issuance costs or original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Financing Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of payments (if any) pursuant to Hedging Obligations); plus

(b) [reserved]; plus

(c) any interest expense on that portion of Indebtedness of another Person that is guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries (whether or not such Guarantee or Lien is called upon); plus

(d) the product of (x) all dividend payments on any series of Preferred Stock of such Person or any of its Restricted Subsidiaries, times (y) a fraction, the numerator of which is one and the denominator of which is one minus the then-current combined federal, state and local statutory tax rate of such Person, expressed as a decimal;

in each case, on a consolidated basis and in accordance with GAAP; excluding, however, (i) any amount of such interest of any Restricted Subsidiary of the referent Person if the net income of such Restricted Subsidiary is excluded in the calculation of Consolidated Net Income pursuant to clause (b) of the definition thereof (but only in the same proportion as the net income of such Restricted Subsidiary is excluded from the calculation of Consolidated Net Income pursuant to clause (b) of the definition thereof), (ii) annual agency fees paid to the administrative agents and collateral agents or similar agents under this Agreement or other credit facilities, (iii) any additional interest with respect to failure to comply with any registration rights agreement owing with respect to any securities, (iv) costs associated with obtaining Swap Obligations, (v) any expense resulting from the discounting of any Indebtedness in connection with the application of recapitalization accounting or, if applicable, purchase accounting in connection with the Transactions or any acquisition, (vi) penalties and interest relating to taxes, (vii) any “additional interest” or “liquidated damages” with respect to other securities for failure to timely comply with registration rights obligations, (viii) amortization or expensing of deferred financing fees, amendment and consent fees, debt issuance costs, commissions, fees, expenses and discounted liabilities and any other amounts of non-cash interest, (ix) any expensing of bridge, commitment and other financing fees and any other fees related to the Transactions or any acquisitions after the Closing Date, (x) any accretion of accrued interest on discounted liabilities and any prepayment premium or penalty, (xi) interest expense attributable to a parent entity resulting from push-down accounting, and (xii) any lease, rental or other expense in connection with a non-financing lease.

Consolidated Net Income”: with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that:

(a) the positive Net Income of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person;

 

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(b) [reserved];

(c) the effect of a change in accounting principles or in the application thereof (including any change to IFRS and any cumulative effect adjustment), in each case, will be excluded;

(d) unrealized losses and gains attributable to Hedging Obligations, including those resulting from the application of the Financial Accounting Standards Board (FASB) Accounting Standards Codification (ASC) 815, will be excluded;

(e) any non-cash compensation charge or expense realized from grants of stock, stock appreciation or similar rights, stock option or other rights to officers, directors and employees will be excluded;

(f) all extraordinary, unusual or non-recurring charges, gains and losses including, without limitation, all restructuring costs, severance costs, one-time compensation charges, transition costs, facilities consolidation, closing or relocation costs, costs incurred in connection with any acquisition (including the Acquisition) prior to or after the Closing Date (including integration costs), including all fees, commissions, expenses and other similar charges of accountants, attorneys, brokers and other financial advisors related thereto and cash severance payments made in connection with acquisitions, and any expense or charge related to the repurchase of Capital Stock or warrants or options to purchase Capital Stock), will be excluded;

(g) any fees and expenses, including prepayment premiums and similar amounts, incurred during such period, or any amortization thereof for such period, in connection with any equity issuance, acquisition, disposition, recapitalization, Investment, asset sale, issuance or repayment of Indebtedness (including any issuance of notes), financing transaction or amendment or modification of any debt instrument (including, in each case, any such transaction undertaken but not completed), will be excluded;

(h) any gains and losses from any early extinguishment of Indebtedness will be excluded;

(i) any gains and losses from any redemption or repurchase premiums paid with respect to Indebtedness will be excluded; and

(j) any write-off or amortization of deferred financing costs (including the amortization of original issue discount) associated with Indebtedness will be excluded.

Consolidated Net Tangible Assets”: with respect to any Person, the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (1) all current liabilities, except for (a) notes and loans payable, (b) current maturities of long-term debt and (c) current maturities of obligations under Financing Lease Obligations, and (2) to the extent included in such aggregate amount of assets, all intangible assets, goodwill, trade names, trademarks, patents, organization and development expenses, unamortized debt discount and expenses and deferred charges (other than capitalized unamortized product development costs, such as, without limitation, capitalized hardware and software development costs), determined on a consolidated basis in accordance with GAAP consistently applied, as determined on a Pro Forma Basis for the most recently ended Test Period.

 

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Consolidated Subsidiaries”: with respect to any Person, each other Person (whether now existing or hereafter created or acquired) the financial statements of which shall be (or should have been) consolidated with the financial statements of such first Person in accordance with GAAP.

Consolidated Total Assets”: with respect to any Person, the consolidated total assets of such Person and its Restricted Subsidiaries as set forth on the most recent balance sheet of such Person prepared in accordance with GAAP, as determined on a Pro Forma Basis.

Contractual Obligation”: with respect to any Person, (i) the Organizational Documents of such Person and (ii) any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its Property is bound.

Convertible Debt”: Debt of the Borrower (which may be Guaranteed by the Guarantors) permitted to be incurred hereunder that is either (a) convertible or exchangeable into common stock of Parent (and cash in lieu of fractional shares) and/or cash (in an amount determined by reference to the price of such common stock) or (b) sold as units with call options, warrants or rights to purchase (or substantially equivalent derivative transactions) that are exercisable for common stock of Parent and/or cash (in an amount determined by reference to the price of such common stock).

Credit Facilities”: one or more debt facilities or other Indebtedness, whether in the form of loans or securities (including the Senior Credit Facilities), financing leases, purchase money financings or commercial paper facilities, providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables), financing leases, purchase money debt, debt securities or letters of credit, in each case, as amended, restated, modified, renewed, refunded, replaced (whether upon or after termination or otherwise) or refinanced (including, in each case, by means of sales of debt securities) in whole or in part from time to time.

Credit Party”: the Administrative Agent or any other Lender.

Crown Towers Transaction Agreements”: (i) the Master Agreement, dated as of September 28, 2012 (as the same may be amended, modified or supplemented from time to time) among the Borrower, Crown Castle International Corp., a Delaware corporation, and certain Subsidiaries of the Borrower; and (ii) each of the other transaction documents entered into in connection therewith or contemplated thereby, as they may be amended, modified or supplemented from time to time.

Default”: any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.

Defaulting Lender”: any Lender that (a) has refused (whether verbally or in writing) to fund (and has not retracted such refusal) or has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans required to be funded by it hereunder or (ii) pay over to any Credit Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Borrower or the Administrative Agent in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such

 

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position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after written request by the Administrative Agent, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans (unless such Lender indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan under this Agreement cannot be satisfied) (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon the Administrative Agent’s and the Borrower’s receipt of such certification in form and substance reasonably satisfactory to the Administrative Agent), (d) admits that it is insolvent or has (or has a direct or indirect parent company that has) become the subject of a Bankruptcy Event or (e) becomes the subject of a Bail-In Action.

Delaware LLC”: any limited liability company organized or formed under the laws of the State of Delaware.

Delaware Divided LLC”: any Delaware LLC which has been formed upon consummation of a Delaware LLC Division.

Delaware LLC Division”: the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.

Designated Entity”: (i) any Designated Tower Entity or (ii) any Permitted Receivables Financing Subsidiary.

Designated Hedge Agreement” means any Hedge Agreement the obligations under which constitute Designated Hedging Obligations.

Designated Hedging Obligations”: Hedging Obligations under any Hedge Agreement entered into or assumed by any Loan Party and any Qualified Counterparty and designated by such Qualified Counterparty and the Borrower in writing to the Administrative Agent and the Collateral Trustee as “Designated Hedging Obligations”.

Designated L/C Facilities”: one or more letter of credit facilities entered into from time to time by the Borrower or a Restricted Subsidiary and designated by the Borrower in writing to the Administrative Agent and the Collateral Trustee as “Designated L/C Facilities” (in each case as may be amended, supplemented or otherwise modified from time to time).

Designated L/C Facilities Obligations”: obligations owed by any Group Member to any Person in respect of or in connection with the Designated L/C Facilities.

Designated Tower Entity”: any entity established solely or primarily for the limited purpose of holding wireless communications sites, towers, and related contracts, equipment, improvements, real estate, and other assets, and performing other activities incidental thereto or in connection with any Permitted Tower Financing. For the avoidance of doubt, T-Mobile USA Tower LLC and T-Mobile West Tower LLC are each Designated Tower Entities.

Discount Range”: as defined in Section 2.12(f)(i).

 

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Dish Transactions”: all transactions contemplated by the Asset Purchase Agreement, dated as of July 26, 2019, among T- Mobile US, Inc., Sprint Corporation, and DISH Network Corporation, and any exhibits attached thereto, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

Disqualified Lender”: (i) any bank, financial institution or other institutional lender that has been identified in writing to the Arrangers as a Disqualified Lender on or prior to April 29, 2018, (ii) any other Persons who are competitors of Parent or any Group Member that are separately identified in writing by the Borrower to the Arrangers (or, after the Closing Date, to the Administrative Agent) from time to time and (iii) in each case of the foregoing clauses (i) and (ii), any of such Person’s Affiliates (other than any bona-fide debt fund Affiliates of competitors identified pursuant to clause (ii)) that are either (x) identified in writing by the Borrower to the Administrative Agent from time to time or (y) clearly identifiable as an Affiliate on the basis of such Affiliate’s name; provided that any such designation shall not apply retroactively to disqualify any Lender that has previously acquired any Loans, Commitments or participation interest that is otherwise permitted pursuant to the terms of this Agreement; provided, further, that any such Lender shall not be permitted to acquire any further Loans, Commitments or participations from and after the date of such designation. Upon an inquiry by any Lender to the Administrative Agent, the Administrative Agent is permitted to disclose to such inquiring Lender the list of Disqualified Lenders.

Disqualified Stock”: any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case, at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the then applicable Maturity Date; provided that any class of Capital Stock of such Person that, by its terms, requires such Person to satisfy in full its obligations with respect to the payment of dividends or upon maturity, redemption (pursuant to a sinking fund or otherwise) or repurchase thereof or otherwise by the delivery of Capital Stock, and that is not convertible, puttable or exchangeable for cash, Disqualified Stock or Indebtedness, will not be deemed to be Disqualified Stock, so long as such Person satisfies its obligations with respect thereto solely by the delivery of Capital Stock. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require the Borrower to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock. The amount of Disqualified Stock deemed to be outstanding at any time for purposes of this Agreement will be the maximum amount that the Borrower and its Restricted Subsidiaries may become obligated to pay upon the maturity of, or pursuant to any mandatory redemption provisions of, such Disqualified Stock, exclusive of accrued dividends.

Domestic Subsidiary”: a Subsidiary of Parent that is not a Foreign Subsidiary.

DT”: Deutsche Telekom AG, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany.

Dutch Auction”: an auction of Loans conducted pursuant to Section 9.4(g) to allow a Purchasing Borrower Party to prepay Loans at a discount to par value and on a non-pro rata basis in accordance with the applicable Dutch Auction Procedures.

Dutch Auction Procedures”: Dutch auction procedures as set forth in Section 2.12(f) and otherwise as reasonably agreed upon by the applicable Purchasing Borrower Party and the Administrative Agent.

 

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EEA Financial Institution”: (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country”: any of the member states of the European Union, Iceland, Liechtenstein and Norway.

EEA Resolution Authority”: any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Electronic Signature”: any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.

Eligible Assignee”: (i) any Lender, any Affiliate of a Lender and any Approved Fund, (ii) any commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans in the ordinary course and (iii) subject to the terms of Section 2.12(f) and Sections 9.4(e) through (h), Affiliated Lenders and Purchasing Borrower Parties; provided that “Eligible Assignee” shall not include (x) any Disqualified Lender, (y) any Lender that is, as of the date of the applicable assignment, a Defaulting Lender or (z) any natural Person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of, a natural Person).

Environmental Laws”: any and all Governmental Requirements pertaining in any way to health, safety, pollution, the environment or the preservation or reclamation of natural resources, in effect at any time, including those relating to the manufacture, generation, handling, transport, storage, treatment, Release or threat of Release of Hazardous Materials.

Environmental Liability”: any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation or compliance with orders and directives, fines, penalties or indemnities), resulting from or based upon (a) compliance or non-compliance with any Environmental Law or any Environmental Permit, (b) the generation, use, handling, transportation, storage, or treatment 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 Permits”: any and all permits, licenses, approvals, registrations, and other authorizations of a Governmental Authority required under any Environmental Law.

Equity Interests”: Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).

ERISA”: the Employee Retirement Income Security Act of 1974, as amended.

ERISA Affiliate”: each trade or business (whether or not incorporated) which, together with Borrower or any of its Subsidiaries, would (at any relevant time) be deemed to be a “single employer” within the meaning of section 4001(b)(1) of ERISA or subsections (b), (c), (m) or (o) of section 414 of the Code.

 

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ERISA Event”: (a) a Reportable Event, (b) the withdrawal of the Borrower, a Subsidiary or any ERISA Affiliate from a Plan during a plan year in which it was a “substantial employer” as defined in Section 4001(a)(2) of ERISA, (c) the filing of a notice of intent to terminate a Plan or the treatment of a Plan amendment as a termination under section 4041 of ERISA, (d) the institution of proceedings to terminate a Plan by the PBGC, (e) receipt of a notice of withdrawal liability pursuant to Section 4202 of ERISA or (f) any other event or condition which would be reasonably likely to constitute grounds under section 4042 of ERISA for the termination of, or appointment of a trustee to administer, any Plan.

EU Bail-In Legislation Schedule”: the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

Euro” and “”: the single currency of Participating Member States.

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

Event of Default”: any of the events specified in Section 7; provided that any requirement for the giving of notice, the lapse of time, or both has been satisfied.

Exchange Act”: the Securities Exchange Act of 1934.

Excluded Assets”: the collective reference to:

(1) any owned or leased real property and any interest therein (including any fee or leasehold interests in real property) (it being agreed that no Loan Party shall be required to deliver landlord lien waivers, estoppels, bailee letters or collateral access letters);

(2) any motor vehicles and any other assets subject to a certificate of title, letter of credit rights or commercial tort claims (in each case except to the extent perfection of the security interest therein can be accomplished by the filing of a UCC financing statement) and aircraft and related assets;

(3) any “margin stock” within the meaning of such term under Regulation U as now and from time to time hereafter in effect;

(4) any asset (including any Governmental Authorization or any interest therein) if the granting of a security interest or pledge in such asset would be prohibited by any law, rule or regulation or agreements with any Governmental Authority, or by contractual requirement existing on the Closing Date or on the date of acquisition of the applicable Subsidiary or asset (in each case, not created in contemplation of the acquisition by the Borrower of such Subsidiary or asset) or would require the consent, approval, license or authorization of any Governmental Authority or other third party (pursuant to such contractual obligation and other than a Loan Party or a wholly-owned Restricted Subsidiary) unless such consent, approval, license or authorization has been received, in each case, after giving effect to the applicable anti-assignment provisions under applicable law (and, in the case of each of the foregoing, for so long as such restriction or any replacement or renewal thereof is in effect);

(5) Voting Stock of any CFC or FSHCO in excess of 65% of the outstanding Voting Stock of such CFC or FSHCO;

 

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(6) Equity Interests in (i) any Unrestricted Subsidiary, (ii) Parent, (iii) any Immaterial Subsidiary, (iv) any Captive Insurance Subsidiary, (v) any not-for-profit subsidiaries, (vi) Designated Tower Entities, (vii) any special purpose entities that are Permitted Receivables Financing Subsidiaries, Permitted Tower Financing Subsidiaries or Permitted Spectrum Financing Subsidiaries (other than any Spectrum SPV Equity Interests), (viii) any Person that is not a Wholly-Owned Subsidiary that is a Restricted Subsidiary to the extent the granting of a security interest therein would violate the terms of such Person’s organizational documents or any shareholders’ agreement, joint venture agreement or other applicable agreement relating to such Person and (ix) Rule 3-16 Capital Stock; provided that, if at any time any Spectrum SPV Equity Interests that otherwise constitute Excluded Assets have been pledged as security under any other Indebtedness, then such Spectrum SPV Equity Interests shall no longer be Excluded Assets hereunder;

(7) to the extent a security interest therein cannot be perfected automatically or by the filing of a UCC financing statement, deposit accounts, securities accounts or other similar accounts; provided that no proceeds of Collateral shall be excluded pursuant to this clause (7);

(8) any lease, license or other similar agreement (or any rights or interests thereunder), in each case, to the extent that a grant of a security interest therein under the Loan Documents or any other agreement governing First Priority Secured Obligations would violate or invalidate such lease, license or agreement or create a right of termination in favor of any other party thereto (other than a Loan Party or wholly-owned Restricted Subsidiary), in each case, after giving effect to the applicable anti-assignment provisions under applicable law, and other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under applicable law notwithstanding such restriction;

(9) any Property subject to purchase money security interests, financing leases, or similar arrangements permitted hereunder, to the extent that a grant of security interest therein would violate or invalidate such arrangement or create a right of termination in favor of the other party thereto (other than a Loan Party or wholly-owned Restricted Subsidiary), in each case, after giving effect to the applicable anti-assignment provisions under applicable law, and other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under applicable law notwithstanding such restriction;

(10) assets to the extent a security interest in such assets would result in material adverse tax consequences (including as a result of any law or regulation in any applicable jurisdiction similar to Section 956 of the Internal Revenue Code) as reasonably determined by the Borrower in consultation with the Administrative Agent;

(11) any intent-to-use United States trademark applications for which neither (i) an amendment to allege use to bring the application into conformity with 15 U.S.C. § 1051(a) has been filed with and accepted by the United States Patent and Trademark Office, nor (ii) a verified statement of use under 15 U.S.C. § 1051(d) has been filed with and accepted by the United States Patent and Trademark Office;

(12) any Intellectual Property or rights or licenses therein, in each case, other than US Patent Rights and US Trademark Rights, including any Intellectual Property, perfection of a Lien on which requires filing in a jurisdiction outside of the United States;

(13) all Permitted Receivables Financing Assets;

(14) any assets as to which the Administrative Agent reasonably determines in consultation with the Borrower that the costs of obtaining a security interest are excessive in relation to the value of the security afforded thereby;

 

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(15) any assets (including equity interests) sold, conveyed or otherwise transferred to or held by a Permitted Spectrum Financing Subsidiary or a Permitted Tower Financing Subsidiary or otherwise pledged in connection with a Permitted Spectrum Financing or a Permitted Tower Financing;

(16) for the avoidance of doubt, any assets held by an Unsecured Guarantor, an Excluded Subsidiary or an Immaterial Subsidiary (except to the extent such Excluded Subsidiary or Immaterial Subsidiary is designated as a Subsidiary Guarantor pursuant to clause (i) of the proviso of the definition of “Excluded Subsidiary”);

(17) any assets of Sprint or any Subsidiary of Sprint, to the extent that the granting, or continuation, of any lien or security interest thereon would, in the reasonable determination of the Borrower, require the Senior Notes issued by any Unsecured Guarantor to be secured on an equal and ratable basis;

(18) FCC Licenses, but only to the extent that at any time the Collateral Trustee may not validly possess a security interest directly in the FCC Licenses pursuant to the Communications Act of 1934, as amended, and the regulations promulgated thereunder, as in effect at such time, provided that, to the maximum extent permitted by law, the economic value of the FCC Licenses, all rights incident or appurtenant to the FCC Licenses and the right to receive all monies, consideration and proceeds derived from or in connection with the sale, assignment or transfer of the FCC Licenses, shall not be excluded pursuant to this clause (18);

(19) (i) any governmental licenses or state or local franchises, license, permits, charters and authorizations, to the extent security interests therein are prohibited or restricted thereby and (ii) any equity in a regulated Subsidiary or any asset owned by a regulated Subsidiary to the extent prohibited by any law, rule or regulation or that would if pledged, in the good faith judgment of Parent, result in adverse regulatory consequences or impair the conduct of the business of Parent or such Subsidiaries, in each of clauses (i) and (ii) after giving effect to the applicable anti-assignment provisions of applicable law; and

(20) the Boost Assets;

provided that Excluded Assets shall not include any proceeds, substitutions or replacements of any Excluded Assets referred to in clauses (1) through (20) (unless such proceeds, substitutions or replacements would constitute Excluded Assets referred to in clauses (1) through (20)); provided, further, that assets described above that were deemed “Excluded Assets” as a result of a prohibition or restriction described above shall no longer be “Excluded Assets” upon termination of the applicable prohibition or restriction that caused such assets to be treated as “Excluded Assets”.

Excluded Subsidiary”: any Subsidiary of Parent that is, at any time of determination, (i) not a Wholly Owned Subsidiary, (ii) an Immaterial Subsidiary, (iii) a Foreign Subsidiary, (iv) a Domestic Subsidiary that is (x) a FSHCO or (y) a direct or indirect Subsidiary of a Foreign Subsidiary that is a CFC, (v) an Unrestricted Subsidiary, (vi) a not-for-profit Subsidiary, (vii) a Captive Insurance Subsidiary, (viii) a special purpose securitization vehicle (or similar entity), including any Permitted Receivables Financing Subsidiary, any Permitted Spectrum Financing Subsidiary or any Permitted Tower Financing Subsidiary, or any of their respective Subsidiaries, (ix) prohibited from guaranteeing the Obligations by any applicable law (including financial assistance, fraudulent conveyance, preference, thin capitalization or other similar laws or regulations) or by any contractual requirement existing on the Closing Date or on the date of the acquisition of such Subsidiary or the date such Subsidiary became a Restricted Subsidiary (not created in contemplation of such acquisition or of such Restricted Subsidiary becoming a Restricted Subsidiary) (and for so long as such restriction or any replacement or renewal thereof is in effect), including any requirement to obtain the consent, approval, license or authorization of a Governmental Authority or third party (other than a Loan Party or wholly-owned Restricted Subsidiary)) (unless such consent, approval, license or

 

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authorization has been obtained), (x) [reserved], (xi) with respect to which the provision of a guarantee would, in the reasonable good faith determination of the Borrower in consultation with the Administrative Agent, be expected to result in materially adverse tax or regulatory consequences to the Borrower or any of its Subsidiaries or (xii) with respect to which the Borrower and the Administrative Agent reasonably agree that the cost or other consequences of providing a guarantee is likely to be excessive in relation to the value to be afforded thereby; provided that, notwithstanding the foregoing, (i) the Borrower may in its sole discretion designate any Excluded Subsidiary as a Subsidiary Guarantor and in connection therewith shall comply with the provisions of Section 5.9(b) and may, thereafter, re-designate such Subsidiary as an Excluded Subsidiary (so long as such Subsidiary otherwise then qualifies as an Excluded Subsidiary pursuant to any of clauses (ii) through (xii) above), upon which re-designation such Subsidiary shall automatically be released from its Guarantee in accordance with Section 9.15; provided that, in the case of any designation (or re-designation) of any Subsidiary that is not a Domestic Subsidiary as a Subsidiary Guarantor, (x) the jurisdiction of such Subsidiary shall be reasonably satisfactory to the Administrative Agent, (y) the Administrative Agent shall have received at least 3 Business Days prior to such Subsidiary becoming a Subsidiary Guarantor, all documentation and other information required by regulatory authorities with respect to such Subsidiary under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case as reasonably requested by the Administrative Agent at least 10 Business Days prior to such Subsidiary becoming a Subsidiary Guarantor and (z) the collateral documentation and other collateral arrangements with respect to such Subsidiary shall be on terms reasonably satisfactory to the Administrative Agent and (ii) no Subsidiary of Parent that provides a Guarantee of the Existing T-Mobile Notes shall constitute an Excluded Subsidiary.

Excluded Swap Obligation”: with respect to any Loan Party, any Swap Obligation if, and to the extent that, all or a portion of the guaranty of such Loan Party of, or the grant by such Loan Party of a security interest to secure, such Swap Obligation (or any guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Loan Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty of such Loan Party or the grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such guaranty or security interest is or becomes illegal.

Excluded Taxes”: any of the following Taxes imposed on or 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 any Loan Party hereunder or under any other Loan Document, or required to be withheld or deducted from any payment to any such recipient (a) Taxes imposed on (or measured by) net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes that are in effect and would apply to amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect (i) on the date on which such Lender acquires such interest in the applicable Commitment (or, to the extent a Loan is not funded pursuant to a prior Commitment, acquires such interest in the applicable Loan) or, where the beneficial owner for purposes of such withholding Tax (the “Beneficial Tax Owner”) is a Person other than the Lender (such as a direct or indirect owner of such Lender), on the date on which such Beneficial Tax Owner acquires its applicable direct or indirect interest in the applicable Commitment (or, to the extent a Loan is not funded pursuant to a prior Commitment, acquires such interest in the applicable Loan); provided that this clause (b)(i) shall not apply to an assignment pursuant to a request by the Borrower under Section 2.21(b) or (ii) on

 

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the date on which such Lender (or, as applicable, Beneficial Tax Owner) designates a new lending office, except in each case under clause (b)(i) and (b)(ii) to the extent that, pursuant to Section 2.19, additional amounts with respect to such Taxes were payable either to such Lender’s (or, as applicable, Beneficial Tax Owner’s) assignor (or, in the case of a Beneficial Tax Owner, the predecessor Beneficial Tax Owner(s)) immediately before such Lender (or Beneficial Tax Owner) acquired the applicable interest in such Loan or Commitment or to such Lender (or Beneficial Tax Owner) immediately before it changed its lending office, (c) Taxes attributable to such Lender’s failure to comply with Section 2.19(e) and (d) any Taxes imposed under FATCA.

Exempt Accounts”: deposit accounts, securities accounts or other similar accounts (i) for the sole purpose of funding payroll obligations, employee benefit or health benefit obligations, tax obligations, escrow arrangements or holding funds owned by Persons other than the Loan Parties, (ii) that constitute or are linked to zero-balance accounts, or (iii) that are accounts held by any Non-Loan Party Subsidiary.

Existing Receivables Financing Subsidiaries”: each Subsidiary designated as an “Existing Receivables Financing Subsidiary” on Schedule 1.1(e) hereof, together with their successors and assigns and any Subsidiary of the foregoing.

Existing Sprint Spectrum Financing Documents”: the Existing Sprint Spectrum Notes, the Existing Sprint Spectrum Indenture, the Initial Spectrum Performance Agreement, the Initial Intra-Company Spectrum Lease Agreement, dated as of October 27, 2016, among certain of the Existing Sprint Spectrum Subsidiaries, Sprint Communications, Inc., and the other parties thereto, each “Transaction Document” (as defined in the Existing Sprint Spectrum Indenture) and each other document related thereto, in each case as amended, supplemented or otherwise modified from time to time.

Existing Sprint Spectrum Issuers”: Sprint Spectrum Co LLC, Sprint Spectrum Co II LLC, Sprint Spectrum Co III LLC and their successors and assigns.

Existing Sprint Spectrum Indenture”: the Indenture, dated as of October 27, 2016, by and among Sprint Spectrum Co LLC, Sprint Spectrum Co II LLC, Sprint Spectrum Co III LLC and Deutsche Bank Trust Company Americas, as trustee, as amended, supplemented or otherwise modified from time to time, including as supplemented with respect to each series of Existing Sprint Spectrum Notes.

Existing Sprint Spectrum Notes”: the Existing Sprint Spectrum Issuers’ Series 2018-1 4.738% Senior Secured Notes, Class A-1, Series 2018-1 5.152% Senior Secured Notes, Class A-2, Series 2016-1 3.360% Senior Secured Notes, Class A-1, and any other note or series of notes issued under the Existing Sprint Spectrum Indenture from time to time.

Existing Sprint Spectrum Subsidiaries”: each Subsidiary designated as an “Existing Sprint Spectrum Subsidiary” on Schedule 1.1(e) hereof, together with their successors and assigns and any Subsidiary of the foregoing.

Existing T-Mobile Notes”: the senior unsecured notes issued by the Borrower and outstanding as of April 29, 2018.

Existing Tower Financing Subsidiaries”: each Subsidiary designated as an “Existing Tower Financing Subsidiary” on Schedule 1.1(e) hereof, together with their successors and assigns and any Subsidiary of the foregoing.

Existing Sprint Spectrum Transaction”: the transactions contemplated by the Existing Sprint Spectrum Financing Documents, including the issuance of any Existing Sprint Spectrum Notes.

 

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Extension Request”: as defined in Section 2.23(a).

Facility”: the Commitments and Loans made thereunder.

Fair Market Value”: the value that would be paid by a willing buyer to an unaffiliated willing seller in a transaction not involving distress or necessity of either party, determined in good faith by the Borrower’s Board of Directors or a senior officer of the Borrower, which determination shall be conclusive; provided that any sale, lease, license or other disposition of assets in connection with the Acquisition (including any required regulatory divestitures) shall be deemed to be for Fair Market Value regardless of whether such sale, lease, license or other disposition meets the requirements of this definition.

FATCA”: Sections 1471 through 1474 of the Code, as in effect on the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any intergovernmental agreements with respect thereto, any law, regulations, or other official guidance enacted in a non-US jurisdiction implementing such intergovernmental agreements, and any agreements entered into pursuant to current Section 1471(b)(1) of the Code (or any amended or successor version described above).

FCC”: the United States Federal Communications Commission and any successor agency that is responsible for regulating the United States telecommunications industry.

FCC Licenses”: all licenses or permits now or hereafter issued by the FCC.

FCPA”: United States Foreign Corrupt Practices Act of 1977.

Federal Funds Effective Rate”: for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1.00%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1.00%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it; provided that if the Federal Funds Effective Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.

Fee Letter”: the Second Amended and Restated Fee Letter, dated as of September 6, 2019, among the Arrangers, the Borrower and the other parties thereto.

Financing Lease Obligation”: at the time any determination is to be made, the amount of the liability in respect of a financing lease that would at that time be required to be capitalized and reflected as a liability on a balance sheet prepared in accordance with GAAP.

First Lien Obligations”: any Indebtedness that is secured by Liens on the Collateral on a pari passu basis with the Liens that secure the Loans (or any refinancing, extension or replacement of the Loans with loans or commitments or other Indebtedness having the same Lien priority as the Loans prior to such refinancing, extension or replacement). For the avoidance of doubt, “First Lien Obligations” shall include (x) the Loans (or the loans or commitments that refinance, extend or replace the Loans with loans or commitments or other Indebtedness having the same Lien priority as the Loans prior to such refinancing, extension or replacement), (y) the obligations under the Senior Credit Facilities and (z) the Senior Secured Notes.

First Priority Secured Obligations”: as defined in the Collateral Trust Agreement.

 

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Fitch”: Fitch Ratings, Inc. and its successors.

Fixed Amount”: as defined in Section 1.5(c).

Foreign Currency”: an official national currency (including the Euro) of any nation other than the United States and which constitutes freely-transferable and lawful money under the laws of the country or countries of issuance.

Foreign Lender”: any Lender that is not a “United States person” as defined in Section 7701(a)(30) of the Code.

Foreign Subsidiary”: any Subsidiary of Parent other than a Subsidiary organized under the laws of the United States or any state of the United States or the District of Columbia.

FSHCO”: any Subsidiary of Parent that owns no material assets (directly or through Subsidiaries) other than Equity Interests (or Equity Interests and Indebtedness) in one or more Foreign Subsidiaries that are CFCs.

GAAP”: generally accepted accounting principles as in effect on the date of any calculation or determination required under this Agreement. Notwithstanding the foregoing, at any time, (i) the Borrower may elect to apply IFRS accounting principles in lieu of GAAP and, upon any such election, references herein to GAAP or parts of the Accounting Standards Codification or “ASC” shall thereafter be construed to mean IFRS (except as otherwise provided in this Agreement) and (ii) the Borrower, on any date may elect to establish that GAAP shall mean GAAP as in effect on such date; provided that any such election, once made, shall be irrevocable; provided, further, that any calculation or determination in this Agreement that requires the application of GAAP for periods that include fiscal quarters ended prior to the Borrower’s election to apply IFRS shall remain as previously calculated or determined in accordance with GAAP. The Borrower shall give notice of any such election made in accordance with this definition to the Administrative Agent.

Governmental Authority”: any nation or government, any state, province, territory or other political subdivision thereof and any other agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

Governmental Authorization”: any permit, license, authorization, plan, directive, consent, permission, consent order or consent decree of or from any Governmental Authority, including but not limited to FCC Licenses.

Governmental Requirement”: any applicable law, treaty, statute, code, ordinance, order, determination, rule, regulation, common law, judgment, decree, injunction, franchise, Governmental Authorization, certificate, or other directive or requirement, whether now or hereinafter in effect.

Group Member”: any of the Borrower or any of the Restricted Subsidiaries of the Borrower.

Guarantee”: a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well, to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions

 

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or otherwise); provided, however, that the term Guarantee shall not include endorsements of instruments for deposit or collection in the ordinary course of business or customary indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation (or portion thereof) in respect of which such Guarantee is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

Guarantee Agreement”: the Guarantee Agreement executed by Parent and each Subsidiary Guarantor in favor of the Administrative Agent, substantially in the form of Exhibit B.

Guarantor”: Parent and any other Person who has guaranteed the obligations of the Borrower under this Agreement pursuant to the Guarantee Agreement, until released from such guarantee pursuant to the provisions of this Agreement, the Guarantee Agreement or any Intercreditor Agreement, as applicable.

Hazardous Materials”: (i) petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and explosive or radioactive substances or (ii) any chemical, material, waste, substance or pollutant that is prohibited, limited or regulated pursuant to any Environmental Law.

Hedge Agreements”: all agreements governing Hedging Obligations.

Hedging Obligations”: with respect to any specified Person, the obligations of such Person under:

(a) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements;

(b) other agreements or arrangements designed to manage interest rates or interest rate risk; and

(c) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices,

and any guarantee in respect thereof.

IFRS”: the international accounting standards promulgated by the International Accounting Standards Board and its predecessors, as adopted by the European Union, as in effect from time to time.

Immaterial Subsidiary”: any Subsidiary of the Borrower that at any time has Consolidated Total Assets accounting for less than 2.50% of the Borrower’s Consolidated Total Assets; provided that the aggregate Consolidated Total Assets of all Immaterial Subsidiaries shall not at any time exceed 5.00% of the Borrower’s Consolidated Total Assets.

Indebtedness”: with respect to any specified Person, without duplication,

(a) any indebtedness of such Person (excluding accrued expenses and trade payables), whether or not contingent:

 

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(i) in respect of borrowed money;

(ii) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);

(iii) in respect of banker’s acceptances;

(iv) representing Financing Lease Obligations;

(v) representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such services are completed, except any such balance that constitutes an accrued expense or a trade payable or escrow for obligations, including indemnity obligations; or

(vi) representing any Hedging Obligations; and

(b) any financial liabilities recorded in respect of the upfront proceeds received in connection with the Towers Transactions,

in each case, if and only to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person. Notwithstanding the foregoing, the following shall not constitute Indebtedness: (1) accrued expenses and trade accounts payable arising in the ordinary course of business; (2) any indebtedness that has been defeased in accordance with GAAP or defeased pursuant to the deposit of cash or Cash Equivalents (in an amount sufficient to satisfy all obligations relating thereto at maturity or redemption, as applicable, including all payments of interest and premium, if any) in a trust, escrow or account created or pledged for the sole benefit of the holders of such indebtedness, and in accordance with the other applicable terms of the instrument governing such indebtedness; (3) any obligation arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; (4) any obligation arising from any agreement providing for indemnities, Guarantees, escrows, purchase price adjustments, holdbacks, contingency payment obligations based on the performance of the acquired or disposed assets or similar obligations (other than Guarantees of Indebtedness) incurred by any Person in connection with the acquisition or disposition of assets; (5) Standard Securitization Undertakings and obligations incurred by a Permitted Receivables Financing Subsidiary in a Permitted Receivables Financing that is not recourse to Parent or any Group Member other than (A) one or more Permitted Receivables Financing Subsidiaries and (B) pursuant to Standard Securitization Undertakings; (6) accruals for payroll and other liabilities accrued in the ordinary course of business; (7) purchase price holdbacks in respect of a portion of the purchase price of an asset to satisfy warranty or other unperformed obligations of the seller; (8) all intercompany liabilities among the Borrower and/or the Restricted Subsidiaries having a term not exceed 364 days (inclusive of any roll-over or extensions of terms) and made in the ordinary course of business and (9) any operating lease that must be recognized on the balance sheet of such Person as a lease liability and right-of-use asset in accordance with the Financial Accounting Standards Board Update No. 2016-02, dated February 2016 (Leases (Topic 842)), which adopts Accounting Standards Codification 842.

 

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The amount of any Indebtedness outstanding as of any date will be:

(i) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;

(ii) in the case of Hedging Obligations, the termination value of the agreement or arrangement giving rise to such obligations that would be payable (giving effect to netting) by such Person at such time;

(iii) the principal amount of the Indebtedness, in the case of any other Indebtedness; and

(iv) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:

(A) the Fair Market Value of such assets at the date of determination; and

(B) the amount of the Indebtedness of the other Person.

Indebtedness for Borrowed Money”: with respect to any specified Person, without duplication, the Indebtedness described in clauses (a)(1) and (a)(2) of the definition of “Indebtedness”.

Indemnified Taxes”: all (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

Indemnitee”: as defined in Section 9.3(b).

Information”: as defined in Section 9.12(a).

Initial Intra-Company Spectrum Lease Agreement”: the Intra-Company Spectrum Lease Agreement, dated as of October 27, 2016, by and among, inter alia, various SpectrumCo1 entities, as lessors, Sprint Communications, Inc., as lessee, Sprint Corporation and the other guarantors party thereto (as amended from time to time).

Initial Spectrum Performance Agreement”: the SCI Payment and Performance Undertaking Agreement, dated as of October 27, 2016, between Sprint Communications, Inc., Sprint Corporation, the other grantors party thereto, and Deutsche Bank Trust Company Americas, as trustee (as amended from time to time).

Intellectual Property”: the collective reference to all rights, priorities and privileges relating to intellectual property, whether arising under United States, state, multinational or foreign laws or otherwise, including copyrights, copyright licenses, patents, patent licenses, trademarks, trademark licenses, service marks, trade dress, domain names, technology, know-how and processes, recipes, formulas, trade secrets and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.

Intercreditor Agreements”: the collective reference to the Collateral Trust Agreement and any other any Senior/Junior Intercreditor Agreement or Senior Pari Passu Intercreditor Agreement.

Interest Election Request”: a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.9.

 

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Interest Payment Date”: (a) with respect to any ABR Loan, the last Business Day of each March, June, September and December commencing with the last Business Day of June, 2020, and (b) with respect to any Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, each day prior to the last day of such Interest Period that occurs at intervals of three months’ duration after the first day of such Interest Period.

Interest Period”: with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months (or, to the extent agreed to by all applicable Lenders, twelve months) thereafter, as the Borrower may elect; provided that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

Interpolated Screen Rate”: in relation to the LIBO Rate for any Loan, the rate which results from interpolating on a linear basis between: (a) the rate appearing on ICE Benchmark Administration page (or on any successor or substitute page of such service) for the longest period (for which that rate is available) which is less than the applicable Interest Period and (b) the rate appearing on the ICE Benchmark Administration page (or on any successor or substitute page of such service) for the shortest period (for which that rate is available) which exceeds the applicable Interest Period, each as of approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.

Investments”: with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees), advances (excluding commission, travel, entertainment, drawing accounts and similar advances to directors, officers and employees made in the ordinary course of business and excluding the purchase of assets, equipment, property or accounts receivables created or acquired in the ordinary course of business) or capital contributions, and purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities. If the Borrower or any Restricted Subsidiary of the Borrower sells or otherwise disposes of any Capital Stock of any direct or indirect Restricted Subsidiary of the Borrower such that, after giving effect to any such sale or disposition, such Person is no longer a Restricted Subsidiary of the Borrower, the Borrower will be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Borrower’s Investments in such Restricted Subsidiary. Except as otherwise provided in this Agreement, the amount of an Investment will be determined at the time the Investment is made and without giving effect to subsequent changes in value.

IRS”: United States Internal Revenue Service.

Joint Venture Investment”: with respect to any specified Person, Investments in any other Person engaged in a Permitted Business of which at least 40% of the outstanding Capital Stock of such other Person is at the time owned directly or indirectly by the specified Person.

Junior Priority Secured Obligations”: as defined in the Collateral Trust Agreement.

LCT Election”: as defined in Section 1.5(b).

 

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LCT Test Date”: as defined in Section 1.5(b).

Lender Parties”: as defined in Section 9.16.

Lenders”: the Persons listed on Schedule 2.1 and any other Person that shall have become a party hereto as a lender pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto as a lender pursuant to an Assignment and Assumption.

LIBO Rate”: with respect to any Interest Period when used in reference to any Eurodollar Borrowing, (a) the rate of interest appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to such service as determined by Administrative Agent) as the London interbank offered rate administered by ICE Benchmark Administration Limited (or such other Person that takes over the administration of such rate) for deposits in US Dollars for a term comparable to such Interest Period, at approximately 11:00 a.m. (London time) on the date which is two Business Days prior to the commencement of such Interest Period, and (b) if any such rate is not available at such time for any reason, then the “LIBO Rate” for such Interest Period shall be the Interpolated Screen Rate.

LIBO Successor Rate”: as defined in Section 1.10(a).

LIBO Successor Rate Conforming Changes”: with respect to any proposed LIBO Successor Rate, any conforming changes to the definition of Alternate Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the reasonable discretion of the Administrative Agent and consented to by the Borrower, to reflect the adoption of such LIBO Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of such market practice is not administratively feasible or that no market practice for the administration of such LIBO Successor Rate exists, in such other manner of administration as the Administrative Agent elects with the consent of the Borrower).

Lien”: with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement and any lease in the nature thereof; provided that in no event shall an operating lease in and of itself constitute a Lien.

Limited Condition Transaction”: any acquisition or other Investment (including an acquisition of Spectrum or other assets) or irrevocable debt repurchase or redemption by the Borrower or one or more of its Restricted Subsidiaries, whose consummation is not conditioned on the availability of, or on obtaining, third party financing.

Loan”: any loan made by any Lender pursuant to this Agreement.

Loan Documents”: this Agreement, the Security Documents, the Guarantee Agreement, any Notes, the Collateral Trust Agreement, any other Intercreditor Agreements and any other document executed and delivered in conjunction with this Agreement from time to time and designated as a “Loan Document”.

Loan Parties”: the collective reference to the Borrower and the Guarantors; provided that to the extent such term is used in connection with an obligation to deliver collateral security, it shall not include any Unsecured Guarantor.

 

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Mandatory Prepayment Cap”: $1,000.0 million in the aggregate, less the amount of any Net Cash Proceeds received and not applied to prepay the Loans in reliance on the Mandatory Prepayment Cap.

Material Adverse Effect”: a material adverse effect on (a) the business, financial condition, assets or results of operations, in each case, of the Group Members, taken as a whole, (b) the ability of the Loan Parties, taken as a whole, to perform their payment obligations under the Loan Documents or (c) the rights and remedies of the Administrative Agent and the Lenders, taken as a whole, under any Loan Document.

Material Contractual Obligation”: as to any Person, any provision of any security issued by such Person or of any material agreement, instrument or other undertaking to which such Person is a party or by which it or any of its Property is bound.

Maturity Date”: March 31, 2021, or such later date to which the Maturity Date may be extended pursuant to Section 2.23.

Maximum Rate”: as defined in Section 9.17.

MNPI”: any material Nonpublic Information regarding Parent, the Borrower and their respective Subsidiaries or the Loans or securities of any of them that has not been disclosed to the Lenders generally (other than Lenders who elect not to receive such information). For purposes of this definition “material Nonpublic Information” shall mean Nonpublic Information with respect to the business of Parent, the Borrower and their respective Subsidiaries or that would reasonably be expected to be material to a decision by any Lender to participate in any Dutch Auction or assign or acquire any Loans or to enter into any of the transactions contemplated thereby or would otherwise be material for purposes of United States Federal and state securities laws.

Moodys”: Moody’s Investors Service, Inc. and its successors.

Multiemployer Plan”: a Plan that is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

Net Cash Proceeds”: (1) in connection with any Asset Sale, the aggregate cash proceeds received by the Borrower or any of its Restricted Subsidiaries in respect of such Asset Sale (including any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of all costs relating to such Asset Sale, including (a) legal, accounting and investment banking fees, finder’s fees, sales commissions, employee severance costs, and any relocation expenses incurred as a result of the Asset Sale, (b) taxes paid or payable (including, for the avoidance of doubt, taxes paid or payable by Parent) as a result of the Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, (c) amounts of Permitted Debt Repayments in respect of such Asset Sale, (d) all distributions and other payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Sale and (e) any amounts to be set aside in any reserve established in accordance with GAAP or any amount placed in escrow, in either case for adjustment in respect of the sale price of such properties or assets or for liabilities associated with such Asset Sale and retained by the Borrower or any of its Restricted Subsidiaries until such time as such reserve is reversed or such escrow arrangement is terminated, in which case Net Cash Proceeds shall include only the amount of the reserve so reversed or the amount returned to the Borrower or its Restricted Subsidiaries from such escrow arrangement, as the case may be, and (2) in connection with any issuance or incurrence of any Indebtedness, the cash proceeds received by any Group Member from such issuance or incurrence, net of reasonable out-of-pocket attorneys’ fees, investment banking and advisory fees, accountants’ fees, underwriting discounts and commissions and other customary out-of-pocket fees, costs and expenses actually incurred in connection therewith (including any swap breakage costs and other termination costs related to Hedge Agreements and any other fees and expenses actually incurred in connection therewith), in each case as determined reasonably and in good faith by a Responsible Officer of the Borrower.

 

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Net Income”: with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of Preferred Stock accretion or dividends, excluding however:

(a) any gain (or loss), together with any related provision for taxes on such gain (or loss) realized in connection with:

(i) dispositions of assets (other than in the ordinary course of business); or

(ii) the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and

(b) any extraordinary gain (or loss), together with any related provision for taxes on such extraordinary gain (or loss).

Non-Consenting Lender”: as defined Section 2.21(c).

Non-Loan Party Subsidiary”: any Restricted Subsidiary of the Borrower that is not a Loan Party.

Non-Recourse Debt”: Indebtedness:

(1) as to which neither the Borrower nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness), subject to customary “bad-boy” exceptions, (b) is directly or indirectly liable as a guarantor or otherwise, or (c) constitutes the lender;

(2) no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of the Borrower or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its stated maturity; and

(3) as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of the Borrower or any of its Restricted Subsidiaries;

provided that Non-Recourse Debt incurred by a Permitted Receivables Financing Subsidiary, Permitted Spectrum Financing Subsidiary or Permitted Tower Financing Subsidiary may have recourse to the Borrower and the other Group Members pursuant to Standard Securitization Undertakings.

Nonpublic Information”: information which has not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD.

Note”: any promissory note evidencing any Loan substantially in the form of Exhibit G.

Obligations”: the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed or allowable in such proceeding) the Loans and all other obligations

 

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and liabilities of the Loan Parties to the Administrative Agent or to any Lender or any Qualified Counterparty, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement or any other Loan Document or any Designated Hedge Agreement, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs or expenses (including all fees, charges and disbursements of counsel to the Arrangers, to the Agents or to any Lender that are required to be paid by the Borrower pursuant hereto and including fees, costs and expenses interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not allowed or allowable in such proceeding), any Designated L/C Facilities Obligations and any Cash Management Obligations; provided that (i) obligations of the Borrower or any other Loan Party in respect of any Designated L/C Facilities Obligations, Designated Hedging Obligations or Cash Management Obligations shall be secured and guaranteed pursuant to the Security Documents only to the extent that, and for so long as, the other Obligations are so secured and guaranteed and (ii) any release of Collateral or Guarantors effected in the manner permitted by this Agreement or any Security Document shall not require the consent of the holders of Designated L/C Facilities Obligations, holders of Designated Hedging Obligations or holders of any Cash Management Obligations. Notwithstanding the foregoing, “Obligations” of any Loan Party shall not include any Excluded Swap Obligation of such Loan Party.

OFAC”: as defined in Section 3.21(b).

Organizational Documents”: with respect to any Person and as applicable, the certificate of incorporation or formation, memorandum or articles of association, bylaws, limited liability company agreement, limited partnership agreement or other organizational documents of such Person.

Other Applicable Indebtedness”: as defined in Section 2.14(g).

Other Connection Taxes”: 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 any Loan Party under any Loan Document, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than a connection arising solely from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).

Other Taxes”: all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes imposed by any Governmental Authority arising from any payment made under any Loan Document or from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.21(b)).

Parent”: T-Mobile US, Inc., a Delaware corporation.

Parent Only Subsidiary”: any Subsidiary of Parent that is (x) not a Subsidiary of the Borrower or any other Loan Party (other than Parent) and (y) directly or indirectly owns Capital Stock of the Borrower.

Participant”: as defined in Section 9.4(c).

Participant Register”: as defined in Section 9.4(c).

 

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Participating Member State”: any member state of the European Community that adopts or has adopted the Euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.

PATRIOT Act”: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act of 2001), as amended.

PBGC”: the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA and any successor entity performing similar functions.

Permanent Financing”: one or more debt facilities or other Indebtedness, whether in the form of notes or loans and whether secured or unsecured, in each case the proceeds of which are used to refinance or replace the Facility or any other Permanent Financing in whole or in part.

Permitted Bond Hedge Transaction”: any call or capped call option (or substantively equivalent derivative transaction) on Parent’s common stock purchased by the Borrower in connection with the issuance of any Convertible Debt; provided that the purchase price for such Permitted Bond Hedge Transaction, does not exceed the net cash proceeds received by the Borrower from the sale of such Convertible Debt issued in connection with the Permitted Bond Hedge Transaction.

Permitted Business”: any business, service or other activity in which the Borrower and its Subsidiaries or any direct or indirect parent of the Borrower were engaged on the Closing Date, or any business similar, related, complementary, incidental or ancillary thereto or that constitutes a reasonable extension, development or expansion thereof, or any business reasonably related to the telecommunications industry, and the acquisition, holding or exploitation of any license relating to the delivery of those services.

Permitted Debt Repayment”: in connection with any Asset Sale, the prepayment, repayment, defeasance, redemption, purchase or other retirement of Indebtedness (and corresponding reduction of commitments with respect thereto, if such Indebtedness is revolving Indebtedness) and other obligations in respect of (x) any Indebtedness that is secured by property or assets that are subject to such Asset Sale; provided that, if such property or assets constitute Collateral, such Indebtedness is secured on a senior basis to the Loans with respect to such property; or (y) any other Indebtedness of a Group Member, if such Asset Sale relates to Excluded Assets.

Permitted Holder”: (i) DT and (ii) any direct or indirect Subsidiary of DT.

Permitted Liens”:

(a) Liens to secure any Credit Facility (including, without duplication, any Liens in respect of any Credit Facility incurred to renew, refund, refinance, replace, defease or discharge as a whole, or in part, any Credit Facility secured by any Lien under this clause (1)) in an aggregate principal amount not to exceed at any one time outstanding, the sum of (A) $8.0 billion, plus (B)(i) the greater of (x) $11.0 billion and (y) 0.50x Consolidated Cash Flow, plus (ii) an unlimited amount, so long as on a Pro Forma Basis (and calculated (x) as if any incremental revolving facility were fully drawn on the effective date thereof and (y) excluding any cash constituting proceeds of any Credit Facility), with respect to any Credit Facility that constitutes First Lien Obligations, the Total First Lien Net Leverage Ratio does not exceed 2.00 to 1.00 (or, if incurred in connection with an Asset Acquisition or other Investment, the Total First Lien Net Leverage Ratio would not exceed the Total First Lien Net Leverage Ratio immediately prior to such Asset Acquisition or other Investment); provided that Credit Facilities will be deemed to be incurred under the foregoing clause (ii) before clause (i), and to the extent amounts are incurred concurrently under the foregoing clauses (i) and (ii), the applicable ratio may exceed the applicable ratio level set forth in clause (ii) to the extent of such amounts incurred in reliance under clause (i);

 

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(b) Liens in favor of the Borrower or the Guarantors;

(c) Liens on property of a Person existing at the time such Person becomes a Subsidiary of the Borrower or is merged with or into or consolidated with the Borrower or any Subsidiary of the Borrower; provided that such Liens were in existence prior to the contemplation of such merger or consolidation and do not extend to any assets (other than improvements thereon, accessions thereto and proceeds thereof) other than those of the Person that becomes a Subsidiary or is merged into or consolidated with the Borrower or the Subsidiary;

(d) Liens on property (including Capital Stock) existing at the time of acquisition of the property by the Borrower or any Subsidiary of the Borrower; provided that such Liens were in existence prior to, and not incurred in contemplation of, such acquisition;

(e) (i) bankers’ Liens, rights of setoff or similar rights and remedies as to deposit accounts or other funds maintained with a depositary institution, and (ii) Liens, deposits (including deposits with the FCC) or pledges to secure the performance of bids, tenders, trade or governmental contracts, leases, licenses, statutory obligations, surety or appeal bonds, performance bonds or other obligations of a like nature incurred in the ordinary course of business;

(f) Liens to secure Indebtedness represented by Financing Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing (whether prior to or within 270 days after) all or any part of the purchase price or cost of design, construction, installation or improvement of property, plant or equipment or the Capital Stock of any Person owning such assets used in the business of the Borrower or its Subsidiaries; provided that Liens securing Indebtedness permitted to be incurred pursuant to this clause (f) extend only to the assets purchased with the proceeds of such Indebtedness, accessions to such assets, lease and sublease interests related thereto and upgrades thereof and the proceeds and products thereof, any lease of such assets (including accessions thereto) and the proceeds and products thereof and customary security deposits in respect thereof; provided, however, that individual financings of equipment provided by one lender may be cross collateralized to other financings of equipment provided by such lender;

(g) Liens existing on the Closing Date (other than Liens permitted by clause (a) above);

(h) Liens for taxes, assessments or governmental charges or claims that are not yet delinquent or that are being contested in good faith by appropriate proceedings; provided that any reserve or other appropriate provision as is required in conformity with GAAP has been made therefor;

(i) Liens imposed by law or contract, such as carriers’, warehousemen’s, suppliers’, vendors’, construction, repairmen’s, landlord’s and mechanics’ Liens or other similar Liens, in each case, incurred in the ordinary course of business;

(j) survey exceptions, encumbrances, leases, subleases, encroachments, protrusions, easements or reservations of, or rights of others for, licenses, sub-licenses, rights-of-way, servitudes, sewers, electric lines, drains, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including defects or irregularities in title and similar encumbrances) as to the use of real property that were not incurred in connection with Indebtedness, or Liens incidental to the conduct of business of such Person or to the ownership of its properties that were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

 

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(k) Liens arising by reason of a judgment, attachment, decree or court order, to the extent not otherwise resulting in an Event of Default, and any Liens that are required to protect or enforce any rights in any administrative, arbitration or other court proceedings in the ordinary course of business;

(l) Liens created for the benefit of (or to secure) (1) the Obligations under any Loan Document, (2) Designated Hedging Obligations, (3) Designated L/C Facilities Obligations, (4) Cash Management Obligations and (5) Senior Secured Notes in an aggregate principal amount of $19,000.0 million, less the outstanding amount of Loans;

(m) Liens to secure any renewal, refunding, refinancing, replacement, defeasance or discharge (or successive refinancing, refunding, restatement, exchange, extensions, renewals or replacements) as a whole, or in part, of any Indebtedness secured by any Lien included in this definition of “Permitted Liens”, so long as:

(i) the new Lien shall be limited to all or part of the same property and assets that secured or, under the written agreements pursuant to which the original Lien arose, could secure the original Lien (plus improvements and accessions to such property and assets and proceeds or distributions of such property and assets and improvements and accessions thereto); and

(ii) the Indebtedness secured by the new Lien is not increased to any amount greater than the sum of (x) the outstanding principal amount or, if greater, committed amount, of the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged and (y) an amount necessary to pay accrued and unpaid interest, any fees and expenses, including premiums, related to such renewal, refunding, refinancing, replacement, defeasance or discharge;

(n) (i) Liens contained in purchase and sale agreements or lease agreements limiting the transfer of assets pending the closing of the transactions contemplated thereby or the termination of the lease, respectively, (ii) spectrum leases or other similar lease or licensing arrangements contained in, or entered into in connection with, purchase and sale agreements, and (iii) Liens relating to deposits or escrows established in connection with purchase and sale agreements;

(o) Liens that may be deemed to exist by virtue of contractual provisions that restrict the ability of Borrower or any of its Subsidiaries from granting or permitting to exist Liens on their respective assets;

(p) Liens (x) in favor of the Collateral Trustee as provided for in this Agreement on money or property held or collected by the Collateral Trustee and (y) on Cash Equivalents securing obligations under any Indebtedness of the Borrower or any Subsidiary of the Borrower that has been called for redemption, defeasance or discharge;

(q) Liens on cash or Cash Equivalents securing (a) workers’ compensation claims, self-insurance obligations, unemployment insurance or other social security, old age pension, bankers’ acceptances, performance bonds, completion bonds, bid bonds, appeal bonds, indemnity bonds, specific performance or injunctive relief bonds, surety bonds, public liability obligations, or other similar bonds or obligations, or securing any Guarantees or letters of credit functioning as or supporting any of the foregoing, in each case incurred in the ordinary course of business or (b) letters of credit required to be issued for the benefit of any Person that controls a Joint Venture Investment to secure any put right for the benefit of the Person controlling the Joint Venture Investment;

 

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(r) Liens arising from Uniform Commercial Code financing statement filings (or similar filings in any other jurisdiction) regarding operating leases or consignments or sales of receivables entered into in the ordinary course of business covering only the property under lease (plus improvements and accessions to such property and proceeds or distributions of such property and improvements and accessions thereto), consignment or sale and other Liens arising solely from precautionary UCC financing statements or similar filings;

(s) any interest or title of a lessor, licensor or sublicensor in the property subject to any lease, license or sublicense entered into in the ordinary course of business;

(t) Liens on cash or Cash Equivalents on deposit to secure reimbursement obligations under letters of credit incurred in the ordinary course of business;

(u) Liens on and pledges of the Equity Interests of any Unrestricted Subsidiary or any Person that is a Joint Venture Investment owned by the Borrower or any Restricted Subsidiary to the extent securing Non-Recourse Debt or other Indebtedness of such Unrestricted Subsidiary or Person;

(v) Liens arising under operating agreements, joint venture agreements, partnership agreements, contracts for sale and other agreements arising in the ordinary course of business that are customary in the Permitted Business, and applicable only to the assets that are the subject of such agreements or contracts;

(w) Liens securing Hedging Obligations;

(x) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business;

(y) Liens encumbering reasonable customary initial deposits and margin deposits and similar Liens attaching to commodity trading accounts or other brokerage accounts incurred in the ordinary course of business and not for speculative purposes;

(z) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligations in respect of bankers’ acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods;

(aa) Liens securing any arrangement for treasury, depositary, disbursement, lockbox, funds transfer, pooling, netting, overdraft, stored value card, purchase card (including so-called “procurement cards or “P-cards”), debit card, credit card, e-payable, cash management and similar services and any automated clearing house transfer of funds provided to Parent or any of its Subsidiaries;

(bb) Liens with respect to obligations that do not exceed at any time, the greater of (x) $3,750.0 million and (y) 17.00% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period;

(cc) Liens encumbering deposits made to secure obligations arising from statutory, regulatory, contractual or warranty requirements;

 

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(dd) Liens, if any, incurred in connection with the Towers Transactions;

(ee) [reserved];

(ff) Liens securing obligations in respect of the operating lease payments owed to SpectrumCo1 or in respect of any other secured spectrum leases to which the Borrower or any of its Subsidiaries are a party, and any related payment and performance undertaking, secured by the Collateral on a pari passu or junior basis with the Obligations;

(gg) leases, licenses, subleases and sublicenses of, and the granting of an easement interest in and to, assets (including real property and intellectual property rights and other general intangibles) in the ordinary course of business;

(hh) pledges and deposits in the ordinary course of business to secure liability to insurance carriers, insurance companies and brokers;

(ii) grants of software and other technology licenses in the ordinary course of business;

(jj) Liens arising out of conditional sale, title retention, consignment or similar arrangement for the sale of goods in the ordinary course of business;

(kk) Liens on equipment of the Borrower or any Subsidiary granted in the ordinary course of business to the Borrower’s or such Subsidiary’s client at which such equipment is located;

(ll) Liens on receivables and related assets including proceeds thereof being sold in factoring arrangements in the ordinary course of business;

(mm) customary options, put and call arrangements, rights of first refusal and similar rights relating to Investments in joint ventures, partnerships and similar investment vehicles;

(nn) [reserved];

(oo) Liens arising out of or deemed to exist in connection with any financing transaction with respect to property owned, built or acquired by the Borrower or any Subsidiary of the Borrower;

(pp) Liens securing obligations in respect of the Designated L/C Facilities, which may be secured by cash collateral and/or by liens on the Collateral on a pari passu basis with the Obligations;

(qq) [reserved];

(rr) [reserved];

(ss) Liens on the cash proceeds (and the related escrow account, and any money market funds or securities in which such cash proceeds are invested during the applicable escrow period) of any issuance of Indebtedness in connection with the cash proceeds of such Indebtedness being placed into (and pending the release from) escrow;

(tt) Liens securing Junior Priority Secured Obligations; and

(uu) Liens incurred in connection with all transactions (i) contemplated by the Boost Asset Purchase Agreement and (ii) entered into pursuant to the consent decree originally filed by the U.S. Department of Justice with the U.S. District Court for the District of Columbia on July 26, 2019, as agreed to the U.S. Department of Justice, Parent, Deutsche Telekom, Sprint Corporation, Softbank Group Corp., and DISH Network Corporation, as it may be further amended or modified.

 

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Permitted Receivables Financing”: any Receivables Financing of a Permitted Receivables Financing Subsidiary the terms of which (including financing terms, covenants, termination events and other provisions) (a) have been negotiated at arm’s length and (b) are, in the good faith determination of the Borrower’s Board of Directors or a senior financial officer of the Borrower, which determination shall be conclusive, in the aggregate economically fair and reasonable to the Group Members.

Permitted Receivables Financing Assets”: financial assets, including accounts receivable, chattel paper and other payment rights, and related assets (including contract rights and insurance payments), and the proceeds thereof.

Permitted Receivables Financing Subsidiary”: collectively, (i) each Existing Receivables Financing Subsidiary, (ii) each other Wholly Owned Subsidiary of the Borrower that engages in no material activities other than in connection with Permitted Receivables Financings, and any business or activities incidental or related to such business and (iii) another Person formed for the purposes of engaging in a Permitted Receivables Financing in which the Borrower or any of its Restricted Subsidiaries makes an Investment and to which the Borrower or any of its Restricted Subsidiaries transfers Permitted Receivables Financing Assets that engages in no material activities other than in connection with Permitted Receivables Financings, and any business or activities incidental or related to such business, and in the case of clause (ii) or (iii) above which is designated by the Board of Directors of the Borrower (as provided below) as a Permitted Receivables Financing Subsidiary and in each case (a) no portion of the Indebtedness or similar obligations (contingent or otherwise) of which (i) is guaranteed by Parent or any Group Member, other than another Permitted Receivables Financing Subsidiary or (to the extent that it might be deemed a guaranty) pursuant to Standard Securitization Undertakings, or (ii) is recourse to or obligates Parent or any Group Member, other than another Permitted Receivables Financing Subsidiary, in any way other than pursuant to Standard Securitization Undertakings, (b) to which none of Parent or any Group Member, other than another Permitted Receivables Financing Subsidiary, has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results. Any such designation by the Board of Directors of the Borrower shall be evidenced to the Administrative Agent by delivery to the Administrative Agent of a certified copy of the resolution of the Board of Directors of the Borrower giving effect to such designation and a certificate executed by a Responsible Officer certifying that such designation complied with the foregoing conditions.

Permitted Spectrum Financing”: the Existing Sprint Spectrum Transaction.

Permitted Spectrum Financing Subsidiary”: collectively, (i) the Existing Sprint Spectrum Subsidiaries and (ii) any future special purpose vehicle Subsidiaries of Borrower (including any “Depositors” and “Intermediate HoldCos”) formed as part of and for the purpose of consummating a future sale and leaseback transaction similar to the Existing Sprint Spectrum Transaction and that engages in no material activities other than in connection with Permitted Spectrum Financings, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Borrower (as provided below) as a Permitted Spectrum Financing Subsidiary and (a) no portion of the Indebtedness or similar obligations (contingent or otherwise) of which (i) is guaranteed by Parent or any Group Member, other than another Permitted Spectrum Financing Subsidiary or (to the extent that it might be deemed a guaranty) pursuant to Standard Securitization Undertakings, or (ii) is recourse to or obligates Parent or any Group Member, other than another Permitted Spectrum Financing Subsidiary, in any way other than pursuant to Standard Securitization Undertakings, (b) to which none of Parent or any Group Member, other than another Permitted Spectrum Financing Subsidiary, has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results.

 

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Any such designation by the Board of Directors of the Borrower shall be evidenced to the Administrative Agent by delivery to the Administrative Agent of a certified copy of the resolution of the Board of Directors of the Borrower giving effect to such designation and a certificate executed by a Responsible Officer certifying that such designation complied with the foregoing conditions.

Permitted Tower Financing”: the Towers Transactions.

Permitted Tower Financing Subsidiary”: collectively, (i) each Existing Tower Financing Subsidiary and (ii) any other financing subsidiary formed in connection with a Permitted Tower Financing and that engages in no material activities other than in connection with Permitted Tower Financings, and any business or activities incidental or related to such business, and which is designated by the Board of Directors of the Borrower (as provided below) as a Permitted Tower Financing Subsidiary and (a) no portion of the Indebtedness or similar obligations (contingent or otherwise) of which (i) is guaranteed by Parent or any Group Member, other than another Permitted Tower Financing Subsidiary or (to the extent that it might be deemed a guaranty) pursuant to Standard Securitization Undertakings, or (ii) is recourse to or obligates Parent or any Group Member, other than another Permitted Tower Financing Subsidiary, in any way other than pursuant to Standard Securitization Undertakings, (b) to which none of Parent or any Group Member, other than another Permitted Tower Financing Subsidiary, has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results. Any such designation by the Board of Directors of the Borrower shall be evidenced to the Administrative Agent by delivery to the Administrative Agent of a certified copy of the resolution of the Board of Directors of the Borrower giving effect to such designation and a certificate executed by a Responsible Officer certifying that such designation complied with the foregoing conditions.

Person”: any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

Phoenix Towers Transaction Agreements”: (i) the Purchase and Sale Agreement, dated as of July 30, 2015 (as the same may be amended, modified, or supplemented from time to time), among the Borrower, certain Subsidiaries of the Borrower, PTI US Acquisitions, LLC, and each sale site subsidiary party thereto; (ii) the Purchase and Sale Agreement (PR Sale Sites), dated as of October 28, 2015 (as the same may be amended, modified, or supplemented from time to time), among the Borrower, certain Subsidiaries of the Borrower, PTI US Acquisitions, LLC, and each sale site subsidiary party thereto; and (iii) each of the other transaction documents entered into in connection therewith or contemplated thereby, as they may be amended, modified or supplemented from time to time.

Plan”: any employee pension benefit plan that is subject to Title IV of ERISA and in respect of which the Borrower or a Commonly Controlled Entity is or, if such plan were terminated, would under Section 4062 or Section 4069 of ERISA be deemed to be an “employer” as defined in Section 3(5) of ERISA.

Platform”: as defined in Section 9.1.

Pledged Capital Stock”: as defined in the Collateral Agreement.

Preferred Stock”: with respect to any Person, any Capital Stock of such Person that has preferential rights to any other Capital Stock of such Person with respect to dividends or payments upon liquidation.

 

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Prime Rate”: the rate of interest per annum determined from time to time published in the “Money Rates” section of The Wall Street Journal as being the “Prime Lending Rate” or, if more than one rate is published as the Prime Lending Rate, then the higher of the such rates (each change in the Prime Rate to be effective as of the date of publication in The Wall Street Journal of a “Prime Lending Rate” that is different from that published on the preceding domestic business day); provided that in the event that The Wall Street Journal shall, for any reason, fail or cease to publish the Prime Lending Rate, the Administrative Agent shall choose a reasonably comparable index or source to use as the basis for the Prime Lending Rate.

Principal Property”: the land, land improvements, buildings and fixtures (to the extent they constitute real property interests) (including any leasehold interest therein) constituting the principal corporate office and the equipment located thereon which (a) is owned by the Borrower or any of its Subsidiaries; (b) has not been determined in good faith by the Board of Directors of the Borrower not to be materially important to the total business conducted by Borrower and its Subsidiaries taken as a whole; and (c) has a net book value on the date as of which the determination is being made in excess of 1.0% of Consolidated Net Tangible Assets as most recently determined on or prior to such date (including, for purposes of such calculation, the land, land improvements, buildings and such fixtures comprising such office).

Private Lender Information”: as defined in Section 9.1.

Pro Forma Basis”: with respect to compliance with any test or covenant or calculation of any ratio hereunder, the determination or calculation of such test, covenant or ratio (including in connection with Pro Forma Transactions) in accordance with Section 1.5 and the provisions of the second paragraph and third paragraph of the definition of “Total First Lien Net Leverage Ratio”.

Pro Forma Transaction”: (a) the Transactions, (b) any incurrence or repayment of Indebtedness (other than for working capital purposes or in the ordinary course of business), the payment of dividends or distributions on account of Equity Interests, any Investment that results in a Person becoming a Subsidiary of the Borrower, any acquisition or disposition that results in a Subsidiary ceasing to be a Subsidiary or any Investment constituting an acquisition of assets constituting a business unit, line of business or division of another Person or any disposition of a business unit, line of business or division of the Borrower or any Subsidiary of the Borrower, in each case whether by merger, consolidation, amalgamation or otherwise and in each case under this clause (b) with a Fair Market Value in excess of $25,000,000 and (c) any restructuring or cost saving, operational change or business rationalization initiative or other initiative.

Property”: any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including Capital Stock.

PTE”: a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.

Public Lender”: as defined in Section 9.1.

Public Lender Information”: as defined in Section 9.1.

Purchasing Borrower Party”: Parent, the Borrower or any Subsidiary of the Borrower that becomes an Eligible Assignee pursuant to Section 9.4.

Qualified Counterparty”: with respect to any Designated Hedge Agreement or Cash Management Obligations, any counterparty thereto that, at the time such Designated Hedge Agreement or Cash Management Obligations were entered into or, in the case of a Designated Hedge Agreement or Cash Management Obligations, as the case may be, existing on the Closing Date, on the Closing Date, was an Agent, an Arranger, a Lender or an Affiliate, or an agent, an arranger or a lender under the Senior Credit Facilities, of any of the foregoing, regardless of whether any such Person shall thereafter cease to be an Agent, an Arranger, a Lender, or an agent, an arranger or a lender under the Senior Credit Facilities, or an Affiliate of any of the foregoing.

 

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Qualifying Bids”: as defined in Section 2.12(f)(iii).

Qualifying Lender”: as defined in Section 2.12(f)(iv).

Rating Agency”: each of Moody’s, S&P, Fitch and, if any of Moody’s, S&P or Fitch ceases to exist or ceases to rate the Senior Notes (other than any Permanent Financing that is not customarily rated) for reasons outside of the control of the Borrower, any other nationally recognized statistical rating organization selected by the Borrower as a replacement agency.

Ratings Decline Period”: the period that (i) begins on the earlier of (a) the date of the first public announcement of the occurrence of a Change of Control or of the intention by the Borrower or a shareholder of the Borrower, as applicable, to effect a Change of Control or (b) the occurrence thereof and (ii) ends 90 days following consummation of such Change of Control; provided that such period shall be extended for so long as the rating of the Senior Unsecured Notes of the applicable series, as noted by the applicable Rating Agency, is under publicly announced consideration for downgrade by the applicable Rating Agency.

Receivables Financing”: any transaction or series of transactions that may be entered into by Parent, the Borrower or any Restricted Subsidiary pursuant to which Parent or any Group Member may sell, convey or otherwise transfer to (a) a Permitted Receivables Financing Subsidiary (in the case of a transfer by Parent or any Group Member) or (b) any other Person (in the case of a transfer by a Permitted Receivables Financing Subsidiary), or a Permitted Receivables Financing Subsidiary may grant a security interest in, any Permitted Receivables Financing Assets of Parent or any Group Member.

Reference Rate”: (a) with respect to the Loans comprising each Eurodollar Borrowing for each day during each Interest Period with respect thereto, a rate per annum equal to the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing and (b) with respect to any ABR Loan, the Alternate Base Rate.

Register”: as defined in Section 9.4(b)(v).

Registered Equivalent Notes”: with respect to any notes originally issued in a Rule 144A or other private placement transaction under the Securities Act, substantially identical notes (having the same guarantees) issued in a dollar-for-dollar exchange therefor pursuant to an exchange offer registered with the SEC (or any securities regulator outside the United States).

Regulation”: The Council of the European Union Regulation No. 1346/2000 on Insolvency Proceedings.

Regulation FD”: Regulation FD as promulgated by the SEC under the Exchange Act, as in effect from time to time.

Regulation U”: Regulation U of the Board as in effect from time to time.

Related Parties”: with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, partners, members, trustees, managers, controlling persons, agents, advisors and other representatives of such Person and such Person’s Affiliates and the respective successors and permitted assigns of each of the foregoing.

 

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Release”: any actual or threatened release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or within any building, structure or facility.

Remedial Work”: any assessment, evaluation, investigation, monitoring, containment, cleanup, removal, repair, restoration, remediation or other remedial obligations required by any Environmental Law.

Reply Amount”: as defined in Section 2.12(f)(ii).

Reply Discount Price”: as defined in Section 2.12(f)(ii).

Reportable Event”: any of the “reportable events” set forth in Section 4043(c) of ERISA or the regulations issued thereunder, with respect to a Plan, other than those events as to which notice is waived pursuant to DOL Reg. Part 4043.

Required Lender Consent Items”: as defined in Section 9.4(f).

Required Lenders”: at any time, the holders of more than 50.0% of (a) until the Closing Date, the Commitments and (b) thereafter, the aggregate unpaid principal amount of the Loans then outstanding; provided that the Aggregate Exposure and Commitments of any Defaulting Lender shall be disregarded in making any determination under this definition.

Required Prepayment Amount”: as defined in Section 2.14(g).

Requirement of Law”: as to any Person, any law, treaty, rule or regulation, official administrative pronouncement, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.

Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

Responsible Officer”: as to any Person, the chief executive officer, president, chief financial officer, chief accounting officer, treasurer or director of such Person, but in any event, with respect to financial matters, the chief financial officer, chief accounting officer, treasurer or director of such Person. Unless otherwise qualified, all references to a “Responsible Officer” shall refer to a Responsible Officer of the Borrower.

Restricted Amount”: as defined in Section 2.14(i).

Restricted Subsidiary”: of a Person means any Subsidiary of the referenced Person that is not an Unrestricted Subsidiary.

Return Bid”: as defined in Section 2.12(f)(ii).

Rule 3-16 Capital Stock”: any Equity Interests of any Subsidiary, in the event that Rule 3-16 or 13-02 of Regulation S-X require or are amended, modified or interpreted by the SEC to require (or is replaced with another rule or regulation, or any other law, rule or regulation is adopted, which would require) the filing with the SEC (or any other governmental agency) of separate financial statements or summarized financial information of any such Subsidiary individually or on a combined basis due to the fact that such Subsidiary’s Equity Interests secure any registered debt securities (including any related note

 

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guarantees); provided that such Equity Interests shall automatically be deemed (in accordance with the terms of the applicable Security Document) not to be part of the Collateral securing the Obligations and such registered debt securities and related note guarantees only to the extent necessary to not be subject to such requirement.

S&P”: Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc., and its successors.

Sale Leaseback Transaction”: any arrangement with any Person or Persons, whereby in contemporaneous or substantially contemporaneous transactions the Borrower or any Restricted Subsidiary sells substantially all of its right, title and interest in any property and, in connection therewith, the Borrower or a Restricted Subsidiary acquires, leases or licenses back the right to use all or material portion of such property.

Sanctions”: as defined in Section 3.21(b).

SEC”: the Securities and Exchange Commission (or successors thereto or an analogous Governmental Authority).

Secured Parties”: collectively, the Administrative Agent, the Collateral Trustee, the Arrangers, the Lenders, each provider of Cash Management Services under a Cash Management Agreement, each counterparty to any Hedge Agreement the obligations under which constitute Designated Hedging Obligations, and the Indemnitees.

Securities Act”: the Securities Act of 1933, as amended.

Security Documents”: the collective reference to the Collateral Agreement, any US IP Security Agreements and all other security documents hereafter delivered to the Administrative Agent or the Collateral Trustee granting (or purporting to grant) a Lien on any Property of any Loan Party to secure any Obligations.

Senior Credit Agreement” means (a) the Credit Agreement, dated as of April 1, 2020 by and among the Borrower, as borrower, the financial institutions from time to time parties thereto and Deutsche Bank AG New York Branch, as administrative agent, together with the related documents thereto (including any term loans and revolving loans thereunder, any guarantees and security documents), as further amended, extended, renewed, restated, replaced, supplemented or otherwise modified (in whole or in part, and without limitation as to amount, terms, conditions, covenants and other provisions) from time to time, and (b) any agreement (and related document) governing indebtedness which is incurred to refinance, in whole or in part, the borrowings and commitments then outstanding or permitted to be outstanding under the Senior Credit Agreement or a successor Senior Credit Agreement, whether by the same or any other lender or group of lenders.

Senior Credit Facilities”: the credit facilities under the Senior Credit Agreement.

Senior/Junior Intercreditor Agreement”: a senior lien priority / junior lien priority intercreditor agreement between or among the Administrative Agent, the Collateral Trustee and one or more Senior Representatives for holders of Indebtedness secured by any of the Collateral, as shall be reasonably satisfactory to the Administrative Agent and the Borrower.

Senior Notes”: the collective reference to the Senior Unsecured Notes, the Senior Sprint Notes and the Senior Secured Notes.

 

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Senior Officer”: any individual holding the position of chief executive officer, president, chief financial officer or chief operating officer of any Group Member. Unless otherwise specified, all references herein to a Senior Officer mean a Senior Officer of the Borrower.

Senior Pari Passu Intercreditor Agreement”: the Collateral Trust Agreement or another Senior Pari Passu Intercreditor Agreement, dated as of the Closing Date, substantially in the form of Exhibit F hereto or otherwise in form and substance reasonably satisfactory to the Administrative Agent.

Senior Representative”: with respect to any Indebtedness permitted to be secured by the Collateral under this Agreement, the trustee, administrative agent, collateral agent, security agent or similar agent under the indenture or agreement pursuant to which such Indebtedness is issued, incurred or otherwise obtained, as the case may be, and each of their successors in such capacities.

Senior Secured Notes”: senior secured notes issued by the Borrower from time to time to replace all or a portion of Loans.

Senior Sprint Notes”: the (i) 7.250% Senior Notes due 2021 of Sprint, (ii) 7.875% Senior Notes due 2023 of Sprint, (iii) 7.125% Senior Notes due 2024 of Sprint, (iv) 7.625% Senior Notes due 2025 of Sprint, (v) 7.625% Senior Notes due 2026 of Sprint, (vi) 7.000% Senior Notes due 2020 of Sprint Communications, Inc., (vii) 11.500% Senior Notes due 2021 of Sprint Communications, Inc., (viii) 6.000% Senior Notes due 2022 of Sprint Communications, Inc., (ix) 6.875% Senior Notes due 2028 of Sprint Capital Corporation and (x) 8.750% Senior Notes due 2032 of Sprint Capital Corporation.

Senior Unsecured Notes”: the senior unsecured notes issued pursuant to the Senior Unsecured Notes Base Indenture on or after April 28, 2013 (and any Registered Equivalent Notes in respect thereof).

Senior Unsecured Notes Base Indenture”: the Base Indenture, dated as of April 28, 2013, among the Borrower, each of the guarantors party thereto and Deutsche Bank Trust Company Americas, as Trustee.

Significant Subsidiary”: any Restricted Subsidiary that as of the end of the most recent fiscal quarter for which financial statements are available, would be a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the Closing Date.

Solvent”: with respect to any Person, as of any date of determination, (a) the fair value of the assets of such Person exceeds the amount of all debts and liabilities of such Person, subordinated, contingent or otherwise; (b) the present fair saleable value of the property of such Person is greater than the amount that will be required to pay the probable liability of the debts and other liabilities of such Person, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured; (c) such Person is able to pay its debts and liabilities, subordinated, contingent or otherwise, as such liabilities become absolute and matured; and (d) such Person is not engaged in, and is not about to be engaged in, business for which it has unreasonably small capital. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that would reasonably be expected to become an actual and matured liability.

Specified Debt Incurrence”: any incurrence of Indebtedness, other than:

(a) Indebtedness under the Facility or the Senior Credit Facilities;

 

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(b) any Indebtedness, whether incurred before or after the Closing Date, permitted to be incurred or that would have been permitted to be incurred by Section 5.1(a)(viii) of the Business Combination Agreement (except, on or after the Closing Date, any Indebtedness (I) under subclause (B) thereof other than within 12 months of the existing maturity date of such Indebtedness (but without giving effect to the proviso to Section 5.1(a)(viii) of the Business Combination Agreement)) and (II) under subclause (E) thereof) or Sections 5.1(b)(viii)(A), (B) (only within 12 months of the existing maturity date of such Indebtedness unless the Majority Bridge Lead Arrangers (as defined in the Fee Letter) approve in their sole discretion), (C), (D) and (F) of the Business Combination Agreement;

(c) Indebtedness permitted to be incurred pursuant to clauses (ii), (iv), (v), (vi), (xiii), (xv), (xviii), (xxi), (xxiv), (xxvi) and (xxvii) of Section 6.3(b) of the Senior Credit Agreement as in effect on the Closing Date; and

(d) any other Indebtedness that does not constitute Indebtedness for Borrowed Money.

Specified Event of Default”: any Event of Default under Section 7.1(a), 7.1(g) or 7.1(h).

Specified Representations”: the representations and warranties with respect to the Borrower and the Guarantors set forth in this Agreement under:

(i) Section 3.3(a) (solely as it relates to the due organization or incorporation and valid existence of the Loan Parties);

(ii) the first two sentences of Section 3.4;

(iii) Section 3.5(b) (solely in respect of the execution, delivery and performance by each Loan Party of this Agreement and the other Loan Documents to which such Person is a party);

(iv) Section 3.7 (solely in respect of an Event of Default of the Borrower or Parent (but not, for the avoidance of doubt, any Restricted Subsidiary) under Section 7.1(g) or (h));

(v) Section 3.11;

(vi) Section 3.14;

(vii) the first sentence of Section 3.19 (subject to the last paragraph of Section 4.1);

(viii) Section 3.20;

(ix) Section 3.21(a)(ii);

(x) the last sentence of Section 3.21(a); and

(xi) the last sentence of Section 3.21(b).

Spectrum”: frequencies of electromagnetic spectrum used to provide fixed or mobile communications services as licensed or authorized by the FCC.

Spectrum SPV Equity Interests” means 100% of the Equity Interests in Sprint Spectrum Depositor LLC, Sprint Spectrum Depositor II LLC, Sprint Spectrum Depositor III LLC and any other SPV Holdco.

 

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Spot Rate”: on any day, with respect to any currency (the “Initial Currency”), the rate at which such currency may be exchanged into another currency (the “Exchange Currency”), as set forth at approximately 11:00 a.m. (London time) on such day on the Reuters World Currency Page for the Initial Currency; in the event that such rate does not appear on any Reuters World Currency Page, the Spot Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be reasonably selected by the Administrative Agent (in consultation with the Borrower), or, in the absence of such available service, such Spot Rate shall instead be the arithmetic average of the exchange rates of the Administrative Agent in the market where its foreign currency exchange operations in respect of the Initial Currency are then being conducted, at or about 10:00 a.m. (New York City time) on such date for the purchase of the Exchange Currency for delivery two Business Days later; provided that if at the time of any such determination, no such exchange rate can reasonably be quoted, the Administrative Agent may use any reasonable method as it deems applicable to determine such rate, and such determination shall be conclusive absent manifest error.

Sprint”: Sprint Corporation, a Delaware corporation.

Sprint Towers Transaction Agreements”: (i) the towers transactions agreements entered into prior to the Closing Date by Sprint Corporation or its affiliates and (ii) each of the other transaction documents entered into in connection therewith or contemplated thereby, as they may be amended, modified or supplemented from time to time.

SPV Holdco”: a Subsidiary of the Borrower that owns no material assets other than Equity Interests in one or more Permitted Spectrum Financing Subsidiaries, or in any holding company that owns no material assets other than Equity Interests in one or more Permitted Spectrum Financing Subsidiaries but excluding, if otherwise deemed to be an SPV Holdco, any Existing Sprint Spectrum Subsidiary.

Standard Securitization Undertakings”: representations, warranties, covenants and indemnities (including repurchase obligations in the event of a breach of representation and warranty) made or provided, and limited recourse guarantees, performance guarantees and servicing obligations undertaken, by any Group Member in connection with a Permitted Receivables Financing, a Permitted Spectrum Financing or a Permitted Tower Financing of a character appropriate for the assets being securitized and which have been negotiated at arm’s length with an unaffiliated third party. For the avoidance of doubt, the undertakings included in the Existing Sprint Spectrum Financing Documents (and substantially similar undertakings to the foregoing in any similar arrangements) constitute Standard Securitization Undertakings.

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

Subject Class”: as defined in Section 2.12(f)(i).

 

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Subsidiary”: with respect to any specified Person:

(a) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person (or a combination thereof); and

(b) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of such Person (or any combination thereof).

Subsidiary Guarantors”: collectively, the Guarantors that are Subsidiaries of the Borrower.

Swap Obligation”: with respect to any Loan Party, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.

Syndication Agents”: Barclays Bank PLC, Credit Suisse Loan Funding LLC, Deutsche Bank Securities Inc., Goldman Sachs Bank USA, Morgan Stanley Senior Funding, Inc. and RBC Capital Markets.

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

Test Period”: on any date of determination, the period of four consecutive fiscal quarters of Borrower (taken as one accounting period) then most recently ended for which internal financial statements are available immediately preceding the date on which the action for which such calculation is being made shall occur.

Total First Lien Net Leverage Ratio”: as of the last day of any period, the ratio of (a) (i) the Consolidated Indebtedness of such Person as of such date that constitutes First Lien Obligations (including, in any event, the aggregate amount of all Consolidated Indebtedness constituting Permitted Spectrum Financings) less (ii) the aggregate amount of unrestricted cash and Cash Equivalents of the Borrower and its Restricted Subsidiaries as of such date (it being agreed that cash and Cash Equivalents restricted in favor of the Administrative Agent or Collateral Trustee (which may also include cash and Cash Equivalents securing other Indebtedness that is secured on a pari passu or junior basis with the Obligations and subject to the terms of an Intercreditor Agreement, so long as the holders of such other Indebtedness do not have the benefit of a control agreement or other equivalent method of perfection (unless the Administrative Agent or Collateral Trustee also has the benefit of a control agreement or other equivalent method of perfection)) shall not be deemed to be restricted by virtue of such restriction) to (b) the Consolidated Cash Flow of such Person for such period, calculated on a Pro Forma Basis for such period, and with such pro forma adjustments to Consolidated Indebtedness and Consolidated Cash Flow as are appropriate and consistent with the pro forma adjustment provisions set out in Section 1.5 and the provisions of the second and third paragraph of this definition.

For purposes of making the computation referred to above:

(a) pro forma effect shall be given to Pro Forma Transactions (including giving pro forma effect to any related financing transactions and the application of proceeds of any Pro Forma Transaction) that occur during such four-quarter period or subsequent to such four-quarter period but on or prior to the date on which the Total First Lien Net Leverage Ratio is to be calculated as if they had occurred and such proceeds had been applied on the first day of such four-quarter period;

 

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(b) pro forma effect shall be given to any transaction (including the application of proceeds thereof) that has been made by any Person that has become a Restricted Subsidiary of the Borrower or has been merged with or into the Borrower or any Restricted Subsidiary during such four-quarter period or subsequent to such four-quarter period but on or prior to the date on which the Total First Lien Net Leverage Ratio is to be calculated and that would have constituted a Pro Forma Transaction had such transactions occurred when such Person was a Restricted Subsidiary, as if such transaction was a Pro Forma Transaction that occurred on the first day of such four-quarter period;

(c) to the extent that the pro forma effect of any transaction is to be made pursuant to clause (a) or (b) above, such pro forma effect shall be determined in good faith on a reasonable basis by a responsible financial or accounting officer of the specified Person, whose determination shall be conclusive, as if the subject transaction(s) had occurred on the first day of the four-quarter reference period and Consolidated Cash Flow for such reference period shall be calculated without giving effect to clause (c) of the proviso set forth in the definition of Consolidated Net Income;

(d) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of (without duplication of clauses (a) and (b) above), which disposition or discontinuation, as applicable, has been completed prior to the date on which the Total First Lien Net Leverage Ratio is to be calculated, shall be excluded;

(e) any Person that is a Restricted Subsidiary on the date on which the Total First Lien Net Leverage Ratio is to be calculated will be deemed to have been a Restricted Subsidiary at all times during such four-quarter period; and

(f) any Person that is not a Restricted Subsidiary on the date on which the Total First Lien Net Leverage Ratio is to be calculated will be deemed not to have been a Restricted Subsidiary at any time during such four-quarter period.

For the avoidance of doubt, if the Total First Lien Net Leverage Ratio is determined for any period commencing prior to the date that is four fiscal quarters after the fiscal quarter during which the Closing Date occurs, the Total First Lien Net Leverage Ratio shall be calculated giving pro forma effect to the Transactions as if the Transactions had occurred on the first day of the four-quarter reference period.

Towers Transactions”: the transactions contemplated by the Towers Transactions Agreements.

Towers Transactions Agreements”: the Crown Towers Transaction Agreements, the Phoenix Towers Transaction Agreements and the Sprint Towers Transaction Agreements.

Transaction Costs”: all fees (including original issue discount), costs and expenses incurred by Parent or any Group Member in connection with the Transactions.

Transactions”: the collective reference to (a) the consummation of the Acquisition, (b) the execution, delivery and performance by the Borrower and each other Loan Party of this Agreement and each other Loan Document required to be delivered hereunder, the borrowing of Loans and the use of proceeds thereof, (c) the incurrence of the Senior Credit Facilities and the use of proceeds thereof, (d) the consummation of the Closing Date Refinancing and (e) the payment of the Transaction Costs.

 

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

UCC” or “Uniform Commercial Code”: the Uniform Commercial Code as the same may from time to time be in effect in the State of New York or the Uniform Commercial Code (or similar code or statute) of another jurisdiction, to the extent it may be required to apply to any item or items of Collateral.

UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

United States” and “US”: the United States of America.

Unrestricted Subsidiary”: (i) the Subsidiaries existing on the Closing Date and listed on Schedule 1.1(c), (ii) any Subsidiary of the Borrower that is designated by the Borrower as such pursuant to Section 5.13 and (iii) any Subsidiary of an Unrestricted Subsidiary.

Unsecured Guarantor”: (i) each of Sprint, Sprint Communications, Inc. and Sprint Capital Corporation and (ii) each Unsecured SPV Holdco.

Unsecured SPV Holdco”: any SPV Holdco listed on Schedule 1.1(d) as of the Closing Date or any other SPV Holdco with respect to which the Borrower has made an Unsecured SPV Holdco Election; provided that such Unsecured SPV Holdco does not Guarantee (other than a Guarantee that is subordinated in right of payment to such SPV Holdco’s Guarantee of the Obligations) the Existing T-Mobile Notes or any other Indebtedness other than (i) the Senior Secured Notes or any other secured notes, (ii) any other Indebtedness that constitutes First Lien Obligations or (iii) any Indebtedness of Subsidiaries of such SPV Holdco.

Unsecured SPV Holdco Election”: an election of the Borrower, by written notice to the Administrative Agent, to cause the Guarantee by any SPV Holdco to become unsecured.

US Dollar Equivalent”: on any date of determination, (a) with respect to any amount in US Dollars, such amount, and (b) with respect to any amount in a Foreign Currency, the equivalent in US Dollars of such amount, determined by the Administrative Agent using the Spot Rate with respect to such Foreign Currency at the time in effect for such amount.

US Dollars” and “$”: lawful currency of the United States.

US IP Security Agreements”: the collective reference to each Intellectual Property Security Agreement required to be entered into and delivered pursuant to the terms of this Agreement and the Security Documents, in each case, in substantially the form of Exhibit A to the Collateral Agreement.

US Patent Rights”: (i) all patents of the United States, all reexaminations, reissues and extensions thereof, (ii) all applications for patents of the United States and all divisions, continuations and continuations-in-part thereof, (iii) all rights to obtain any reissues or extensions of the foregoing and (iv) all agreements, whether written or oral, providing for the grant for the grant by or to the Borrower or any Subsidiary Guarantor of any right to manufacture, use or sell any invention or design covered in whole or in part by any of the foregoing.

 

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US Tax Compliance Certificate”: as defined in Section 2.19(e)(B)(3).

US Trademark Rights”: (i) all trademarks, trade names, service marks or logos, and all goodwill associated therewith, now existing or hereafter adopted or acquired, that have been registered or are the subject of an application to register filed in the United States Patent and Trademark Office or in any similar office or agency of the United States or any State thereof, including all registrations and recordings thereof, and all applications in connection therewith, (ii) the right to obtain all renewals of any of the foregoing, and (iii) any agreement, whether written or oral, providing for the grant by or to the Borrower or any Subsidiary Guarantor of any right to use any of the foregoing.

Voting Stock”: of any specified Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

Wholly Owned Subsidiary”: as to any Person, any other Person all of the Capital Stock of which (other than (a) directors’ qualifying shares and (b) nominal shares issued to foreign nationals to the extent required by applicable Requirements of Law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.

Withholding Agent”: any Loan Party, the Administrative Agent and any other applicable withholding agent.

Write-Down and Conversion Powers”: (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

1.2 Other Definitional Provisions

(a) Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used in the other Loan Documents or any certificate or other document made or delivered pursuant hereto or thereto.

(b) As used herein and in the other Loan Documents, unless otherwise specified herein or in such other Loan Document:

(i) the words “hereof”, “herein” and “hereunder” and words of similar import when used in any Loan Document shall refer to such Loan Documents as a whole and not to any particular provision of thereof;

 

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(ii) Section, Schedule and Exhibit references refer to (A) the appropriate Section, Schedule or Exhibit in this Agreement or (B) to the extent such references are not present in this Agreement, to the Loan Document in which such reference appears;

(iii) the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”;

(iv) the word “will” shall be construed to have the same meaning and effect as the word “shall”;

(v) [reserved];

(vi) unless the context requires otherwise, the word “or” shall be construed to mean “and/or”;

(vii) unless the context requires otherwise, (A) any reference to any Person shall be construed to include such Person’s legal successors and permitted assigns, (B) any reference to any law or regulation shall refer to such law or regulation as amended, modified or supplemented from time to time, and any successor law or regulation, (C) the words “asset” and “property” shall be construed to have the same meaning and effect, and (D) references to agreements (including this Agreement) or other Contractual Obligations shall be deemed to refer to such agreements or Contractual Obligations as amended, restated, amended and restated, supplemented or otherwise modified from time to time (in each case, to the extent not otherwise prohibited hereunder); and

(viii) capitalized terms not otherwise defined herein and that are defined in the UCC shall have the meanings therein described.

(c) 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”.

(d) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

(e) The expressions “payment in full”, “paid in full” and any other similar terms or phrases when used herein with respect to the Obligations shall mean the discharge or payment in full in cash of all of the Obligations (excluding contingent reimbursement and indemnification obligations, Designated L/C Facilities Obligations, Cash Management Obligations and Designated Hedging Obligations, in each case, that are not then due and payable).

1.3 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar Borrowing” or an “ABR Borrowing”).

1.4 Accounting Terms; GAAP.

(a) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP.

(b) [reserved].

 

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(c) If at any time a change in GAAP would affect the computation of any financial ratio, standard of term set forth in any Loan Document, and the Borrower or the Required Lenders shall so request, the Administrative Agent and the Borrower shall negotiate in good faith to amend such ratio, standard or term to preserve the original intent thereof in light of such change in GAAP (subject to approval by the Borrower); provided that, until so amended, such ratio, standard or term shall continue to be computed in accordance with GAAP immediately prior to such change therein, and the Borrower shall provide to the Administrative Agent and the Lenders within fifteen (15) days after delivery of each certificate or financial report required hereunder that is affected thereby a written statement of the Borrower setting forth in reasonable detail the differences that would have resulted if such financial statements had been prepared giving effect to such change; provided, further, that, to the extent any such change would have a negative impact on the Borrower with respect to any ratio, financial calculation, financial reporting item or requirement computation, the Borrower may (in its sole discretion) elect to compute or report such ratio, financial calculation, financial reporting item or requirement in accordance with GAAP as changed and accordingly, if such an election is made, the Borrower shall not be required to deliver the written statement described in the immediately preceding proviso with respect thereto. Notwithstanding any other provision contained herein, (i) all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Statement of Financial Accounting Standards 159 or FASB ASC 825 (or any other financial accounting standard having a similar result or effect) to value any Indebtedness or other liabilities of Parent, the Borrower or any of the Restricted Subsidiaries at “fair value”, as defined therein and (ii) the financial ratios and related definitions set forth in the Loan Documents shall be computed to exclude the application of Financial Accounting Standards No. 133, 150 or 123(R) or any other financial accounting standard having a similar result or effect (to the extent that the pronouncements in Financial Accounting Standards No. 123(R) result in recording an equity award as a liability on a consolidated balance sheet of Parent, the Borrower and the Restricted Subsidiaries in the circumstance where, but for the application of the pronouncements, such award would have been classified as equity).

1.5 Pro Forma Calculations; Certain Calculations and Tests. (a) Notwithstanding anything to the contrary herein, the Consolidated Cash Flow and the Total First Lien Net Leverage Ratio shall be calculated in the manner prescribed by this Section 1.5.

(b) In the case of the incurrence of any Liens or any transaction of the types contemplated in Section 6.2, or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, in each case in connection with a Limited Condition Transaction, at the Borrower’s option (an “LCT Election”), the relevant ratios and baskets shall be determined, accuracy of representations and warranties (other than Specified Representations) shall be determined, and any Default or Event of Default blocker (other than any Specified Event of Default) shall be tested, as of the date the definitive acquisition agreements for such Limited Condition Transaction are entered into or the notice of redemption in connection therewith is given (the “LCT Test Date”), and calculated as if the acquisition or other transaction, and other pro forma events in connection therewith, were consummated on such date. If the Borrower has made such an LCT Election, then in connection with any subsequent calculation of any ratio or basket with respect to the incurrence of any Liens or any transaction of the types contemplated in Section 6.2, or the designation of any Restricted Subsidiaries or Unrestricted Subsidiaries, or any calculation of any ratio or basket for any other purpose, on or following the relevant LCT Test Date and prior to the earlier of the date on which such transaction is consummated or the definitive agreement therefor is terminated, any such ratio shall be calculated on a pro forma basis assuming such Limited Condition Transaction, and other pro forma events in connection therewith (including any incurrence of Indebtedness), have been consummated.

 

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(c) Notwithstanding anything to the contrary herein, with respect to any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that does not require compliance with a financial ratio (any such amounts, the “Fixed Amounts”) substantially concurrently with any amounts incurred or transactions entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio (including any Total First Lien Net Leverage Ratio test or the amount of Consolidated Cash Flow) (any such amounts, the “Incurrence-Based Amounts”), it is understood and agreed that (a) the Fixed Amounts shall be disregarded in the calculation of the financial ratio or test applicable to any substantially concurrent utilization of the Incurrence-Based Amounts and (b) the entire transaction shall be calculated on a Pro Forma Basis. In addition, for the avoidance of doubt, any Indebtedness (and associated Liens), Investments, liquidations, dissolutions, mergers, consolidations, dividends or any prepayments of Indebtedness incurred or otherwise effected in reliance on Fixed Amounts shall be automatically reclassified under the applicable Incurrence-Based Amounts at any time if the applicable ratio for such Incurrence-Based Amounts is satisfied on a Pro Forma Basis.

1.6 Classification of Permitted Items. For purposes of determining compliance at any time with Section 6.1, in the event that any Lien meets the criteria of more than one of the categories of transactions permitted pursuant to any clause of such Section 6.1, such transaction (or portion thereof) at any time shall be permitted under one or more of such clauses as determined by the Borrower in its sole discretion at such time of determination, and may be reclassified from time to time to be permitted under any one or more of such clauses to the extent meeting the criteria thereunder as of the time of reclassification.

1.7 Rounding. Any financial ratios required to be satisfied in order for a specific action to be permitted under 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).

1.8 Timing of Payment or Performance. Except as otherwise expressly provided herein, when the payment of any obligation or the performance of any covenant, duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day (except as specifically provided in the definition of “Interest Period”).

1.9 Currency Equivalents Generally.

(a) For purposes of determining compliance with Section 6.1 with respect to any amount of Indebtedness in a currency other than US Dollars, no Default shall be deemed to have occurred solely as a result of changes in rates of currency exchange occurring after the time such Indebtedness is incurred (so long as such Indebtedness, at the time incurred, was permitted hereunder).

(b) For purposes of determining the Total First Lien Net Leverage Ratio, amounts denominated in a currency other than US Dollars will be converted to US Dollars at the currency exchange rates used in preparing the Borrower’s financial statements corresponding to the Test Period with respect to the applicable date of determination and will, in the case of Indebtedness, reflect the currency translation effects, determined in accordance with GAAP, of Hedge Agreements permitted hereunder for currency exchange risks with respect to the applicable currency in effect on the date of determination of the US Dollar Equivalent of such Indebtedness.

1.10 LIBOR Replacement.

(a) Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Borrower notifies the Administrative Agent that, in its determination:

 

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(i) adequate and reasonable means do not exist for ascertaining the LIBO Rate for any requested Interest Period, including, without limitation, because the Interpolated Screen Rate is not available or published on a current basis and such circumstances are unlikely to be temporary, or

(ii) the administrator of the Interpolated Screen Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which the LIBO Rate or the Interpolated Screen Rate shall no longer be made available, or used for determining the interest rate of loans, or

(iii) syndicated loans currently being executed, or that include language similar to that contained in this Section, are being executed or amended (as applicable) to incorporate or adopt a new benchmark interest rate to replace LIBOR,

then, reasonably promptly after receipt by the Administrative Agent of such notice, the Borrower and the Administrative Agent may amend this Agreement to replace the LIBO Rate with an alternative benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein), giving due consideration to any evolving or then existing convention for similar U.S. dollar denominated credit facilities for such alternative benchmarks (any such rate, a “LIBO Successor Rate”), together with any LIBO Successor Rate Conforming Changes, and any such amendment shall become effective at 5:00 p.m. (New York City time) on the fifth Business day after the Administrative Agent shall have posted such proposed amendment to all Lenders and the Borrower, unless, prior to such time, Lenders comprising the Required Lenders have delivered to the Administrative Agent written notice that the Required Lenders do not accept such amendment.

Notwithstanding anything else herein, in no event shall such LIBO Successor Rate be less than zero for purposes of this Agreement.

(b) The interest rate on Eurodollar Loans is determined by reference to the LIBO Rate, which is derived from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on Eurodollar Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of the London interbank offered rate. In the event that the London interbank offered rate is no longer available or in certain other circumstances as set forth in Section 1.10(a) of this Agreement, such Section 1.10(a) provides a mechanism for determining an alternative rate of interest. The Administrative Agent may amend this Agreement together with the Borrower, pursuant to Section 1.10(a), in advance of or after any change to the reference rate upon which the interest rate on Eurodollar Loans is based. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 1.10(a), will be similar to, or produce the same value or economic equivalence of, the LIBO Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability.

 

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SECTION 2. AMOUNT AND TERMS OF COMMITMENTS

2.1 Commitments. Subject to the terms and conditions hereof, each Lender severally agrees to make a Loan to the Borrower on the Closing Date in US Dollars in an amount for each such Lender not to exceed the amount of the Commitment of such Lender on the Closing Date. The Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.2 and 2.9. The Commitments in effect on the Closing Date shall terminate upon the making of the Loans on the Closing Date or as otherwise set forth in Section 2.10.

2.2 Procedure for Borrowing Loans. The Borrower shall deliver to the Administrative Agent a Borrowing Request, not later than 11:00 a.m., New York City time, one Business Day before the anticipated Closing Date requesting that the Lenders make the Loans on the Closing Date. Such Borrowing Request may state that it is conditioned upon one or more conditions precedent, including the closing of the Acquisition, in which case such Borrowing Request may be revoked or automatically terminated if such conditions are not satisfied. The Borrowing Request must specify (i) the principal amount of the Loans to be borrowed, (ii) the requested date of the Borrowing (which shall be a Business Day), (iii) the Type of Loans to be borrowed, (iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period” and (v) the location and number of the account(s) to which funds are to be disbursed, which shall comply with the requirements of Section 2.8. If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be a Eurodollar Borrowing with an Interest Period of one month’s duration. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration. Upon receipt of such Borrowing Request, the Administrative Agent shall promptly notify each Lender thereof. Not later than 9:00 a.m., New York City time (or, if later, promptly following the satisfaction of the conditions precedent to the initial extension of credit hereunder set forth in Section 4.1), on the Closing Date each Lender shall promptly thereafter make available to the Administrative Agent an amount in immediately available funds equal to the Loans to be made by such Lender. The Administrative Agent shall make available to the Borrower the aggregate of the amounts made available to the Administrative Agent by the Lenders, in like funds as received by the Administrative Agent.

2.3 Repayment of Loans. The principal amount of the Loans shall be repaid on the Maturity Date in an amount equal to the aggregate principal amount of all Loans outstanding on such date. Any Loans paid or prepaid may not be reborrowed.

2.4 [Reserved].

2.5 Loans and Borrowings.

(a) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder.

(b) Subject to Section 2.16, each Borrowing shall be comprised entirely of (A) ABR Loans or (B) Eurodollar Loans as the Borrower may request in accordance herewith. Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the applicable Lender to make such Loan and the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.

 

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(c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $1.0 million. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $500,000 and not less than $500,000. Borrowings of more than one Type may be outstanding at the same time; provided that there shall not, at any time, be more than a total of thirty Eurodollar Borrowings outstanding.

(d) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the applicable Maturity Date for such Borrowing.

2.6 [Reserved].

2.7 [Reserved].

2.8 Funding of Borrowings. 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, such Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.2 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 Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, or (ii) in the case of the Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.

2.9 Interest Elections.

(a) Each Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an initial Interest Period as specified in such Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section 2.9. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.

(b) To make an election pursuant to this Section 2.9, the Borrower shall notify the Administrative Agent of such election by telephone or email by (i) in the case of a Eurodollar Borrowing, not later than 2:00 p.m., New York City time, three Business Days before the proposed effective date of the proposed election (or such later time and/or date as may be agreed by the Administrative Agent in its reasonable discretion) or (ii) in the case of an ABR Borrowing, not later than 2:00 p.m., New York City time, on the proposed effective date of the proposed election (or such later time and/or date as may be agreed by the Administrative Agent in its reasonable discretion). Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery, facsimile or other electronic transmission to the Administrative Agent of a written Interest Election Request signed by the Borrower.

 

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(c) Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.5:

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

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

(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and

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

If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period (x) of one month’s duration, in the case of a conversion of an ABR Borrowing to a Eurodollar Borrowing, and (y) of the same duration as the Interest Period then ending, in the case of a continuation of a Eurodollar Borrowing.

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

(e) If the Borrower fails to deliver a timely Interest Election Request with respect to a Eurodollar Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period, such Borrowing shall be continued as a Eurodollar Borrowing having the same Interest Period. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as an Event of Default is continuing (x) no outstanding Borrowing may be converted to or continued as a Eurodollar Borrowing and (y) unless repaid, each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto.

2.10 Termination of Commitments. The Commitments shall automatically terminate upon the making of the Loans on the Closing Date and, in any event, not later than 11:59 p.m., New York City time, on the Closing Date.

2.11 Evidence of Debt.

(a) [Reserved];

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

(c) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Type thereof and, if applicable, the Interest Period applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof.

 

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(d) The entries made in the accounts maintained pursuant to paragraph (b) of this Section 2.11 shall be conclusive, absent manifest error, of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement; provided further, that in the event of any conflict between the entries in the accounts maintained pursuant to paragraph (a) or (b) of this Section 2.11 and the entries in the Register maintained pursuant to Section 9.4(b)(v), the entries in the Register shall prevail.

(e) Any Lender may request through the Administrative Agent that Loans made by it be evidenced by a promissory note. In such event, the Borrower shall prepare, execute and deliver to such Lender a promissory note payable to such Lender or its registered assigns and in the form of Exhibit G. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.4) be represented by one or more promissory notes in such form payable to the payee named therein and its registered assigns.

2.12 Prepayment of Loans.

(a) The Borrower shall have the right at any time and from time to time to prepay any Borrowing made by it in whole or in part, without premium or penalty (but subject to Section 2.18), subject to prior notice in accordance with paragraph (c) of this Section 2.12.

(b) Prior to any optional or mandatory prepayment of Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to be prepaid and shall specify such selection in the notice of such prepayment pursuant to paragraph (c) of this Section 2.12. Each optional or mandatory prepayment of Loans shall be applied ratably to the Loans so prepaid (based on the respective outstanding principal amounts thereof).

(c) The Borrower shall notify the Administrative Agent by telephone (confirmed by facsimile or, in accordance with the second paragraph of Section 9.1, e-mail) of any prepayment hereunder (i) in the case of prepayment of a Eurodollar Borrowing, not later than 2:00 p.m., New York City time, three Business Days before the date of prepayment (or such later time and/or date as may be agreed by the Administrative Agent in its reasonable discretion), or (ii) in the case of prepayment of an ABR Borrowing, not later than 2:00 p.m., New York City time, on the date of prepayment (or such later time and/or date as may be agreed by the Administrative Agent in its reasonable discretion). Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid; provided that any notice of prepayment may be conditioned upon one or more conditions precedent, in which case such notice of prepayment may be revoked or automatically terminated if such conditions precedent are not satisfied. Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial prepayment of any Borrowing shall be in an integral multiple of $10.0 million and not less than $50.0 million. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.15. Other than a repayment pursuant to Section 2.21(c), each repayment of a Borrowing shall be applied ratably to the Loans included in the repaid Borrowing.

(d) Notwithstanding anything to the contrary set forth in this Agreement (including the final sentence of Section 2.12(c) or Section 2.20(c)) or any other Loan Document, the Purchasing Borrower Parties shall have the right at any time and from time to time to purchase Loans by way of assignment in accordance with Section 9.4(g), including pursuant to a Dutch Auction in accordance with Section 2.12(f).

 

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(e) [Reserved].

(f) Notwithstanding anything to the contrary contained in this Section 2.12 or any other provision of this Agreement and without otherwise limiting the rights in respect of prepayments of the Loans, so long as no Default or Event of Default has occurred and is continuing, any Purchasing Borrower Party may repurchase outstanding Loans in negotiated open market purchases pursuant to Section 9.4(g) or pursuant to this Section 2.12(f) (without prejudice to such Purchasing Borrower Party’s rights to repurchase outstanding Loans in accordance with Section 9.4(g)) on the following basis:

(i) Any Purchasing Borrower Party may conduct one or more auctions (each, an “Auction”) to repurchase all or any portion of the Loans (the “Subject Class”) by providing written notice to the Administrative Agent (for distribution to the Lenders) of the Loans that will be the subject of the Auction (an “Auction Notice”). Each Auction Notice shall be in a form reasonably acceptable to the Administrative Agent and shall contain (w) the total cash value of the bid, in a minimum amount of $5.0 million with minimum increments of $1.0 million (the “Auction Amount”), (x) the discount to par, which shall be a range (the “Discount Range”) of percentages of the par principal amount of the Loans at issue that represents the range of purchase prices that could be paid in the Auction, (y) the time when the bid expires and (z) any other conditions to which the bid is to be subject;

(ii) In connection with any Auction, each Lender may, in its sole discretion, participate in such Auction and may provide the Administrative Agent with a notice of participation (the “Return Bid”), which shall be in a form reasonably acceptable to the Administrative Agent and shall specify (x) a discount to par expressed as a percentage (the “Reply Discount Price”), which must be within the Discount Range, and (y) a principal amount of Loans which must be in increments of $1.0 million or in an amount equal to the Lender’s entire remaining amount of such Loans (the “Reply Amount”). Lenders may only submit one Return Bid per Auction. In addition to the Return Bid, the participating Lender must execute and deliver, to be held in escrow by the Administrative Agent, an Assignment and Assumption in a form reasonably acceptable to the Administrative Agent;

(iii) Based on the Reply Discount Prices and Reply Amounts received by the Administrative Agent, the Administrative Agent, in consultation with the Borrower, will determine the applicable discount (the “Applicable Discount”) for the Auction, which will be the lowest Reply Discount Price for which a Purchasing Borrower Party can complete the Auction at the Auction Amount; provided that, in the event that the Reply Amounts are insufficient to allow such Purchasing Borrower Party to complete a purchase of the entire Auction Amount, such Purchasing Borrower Party shall either, at its election, (x) withdraw the Auction or (y) complete the Auction at an Applicable Discount equal to the highest Reply Discount Price. Any Purchasing Borrower Party shall purchase Loans (or the respective portions thereof) from each Lender with a Reply Discount Price that is equal to or less than the Applicable Discount (“Qualifying Bids”) at the Applicable Discount; provided further, that if the aggregate proceeds required to purchase all Loans subject to Qualifying Bids would exceed the Auction Amount for such Auction, the Borrower shall purchase such Loans at the Applicable Discount ratably based on the principal amounts of such Qualifying Bids (subject to rounding requirements specified by the Administrative Agent). Each participating Lender will receive notice of a Qualifying Bid as soon as reasonably practicable but in no case later than five Business Days from the date the Return Bid was due;

 

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(iv) In connection with any Auction, upon submission by a Lender of a Qualifying Bid, such Lender (each, a “Qualifying Lender”) will be obligated to sell the entirety or its allocable portion of the Reply Amount, as the case may be, at the Applicable Discount. Each purchase of Loans in an Auction shall be consummated pursuant to procedures (including as to response deadlines, rounding amounts, type and Interest Period of accepted Loans, and calculation of the Applicable Discount referred to above) established by the Administrative Agent and agreed to by the Borrower; and

(v) The repurchases by any Purchasing Borrower Party of Loans pursuant to this Section 2.12(f) shall be subject to the following conditions: (A) the Auction is open to all Lenders of the Subject Class on a pro rata basis, (B) no Default or Event of Default has occurred or is continuing or would result therefrom, (C) the applicable Assignment and Assumption shall include a customary “big boy” representation from each of the Purchasing Borrower Party and the Qualifying Lender (it being agreed that no Purchasing Borrower Party shall be required to make a representation that, as of the date of any such purchase or assignment, it is not in possession of any MNPI with respect to Parent, the Borrower, their respective Subsidiaries or their respective securities) and (D) any Loans repurchased pursuant to this Section 2.12(f) shall be automatically and permanently canceled upon acquisition thereof by the Purchasing Borrower Party.

2.13 Fees.

(a) Duration Fee. The Borrower agrees to pay to the Administrative Agent for the account of each Lender a duration fee on each date set forth below (payable in the case of the last three dates below only if the Maturity Date has been extended past such dates in accordance with Section 2.23) in an amount equal to the percentage set forth opposite such date of the aggregate principal amount of Loans held by such Lender on such date:

 

Date

   Duration Fee Percentage

90 days after the Closing Date

   0.50%

180 days after the Closing Date

   0.50%

270 days after the Closing Date

   0.50%

364 days after the Closing Date

   0.50%

454 days after the Closing Date

   0.75%

544 days after the Closing Date

   0.75%

634 days after the Closing Date

   0.75%

(b) Maturity Extension Fee. If the Maturity Date is being extended in accordance with Section 2.23, the Borrower shall pay to the Administrative Agent for the account of each Lender an extension fee equal to twenty-five hundredths of one percent (0.25%) of the amount of such Lender’s Loans so extended. Such fee shall be due and payable in full on the effective date of each such extension.

 

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(c) Other Fees. The Borrower agrees to pay to the Administrative Agent and the Arrangers (and their respective affiliates) the fees in the amounts and on the dates set forth in any fee letter with such Persons and to perform and other obligations contained therein.

2.14 Mandatory Prepayments.

(a) If Indebtedness is incurred by any Group Member pursuant to a Specified Debt Incurrence, then on the date of such incurrence, an amount equal to 100% of the Net Cash Proceeds thereof in excess of the Mandatory Prepayment Cap shall be applied to the prepayment of the Loans (together with accrued and unpaid interest thereon) as set forth in Section 2.14(f).

(b) If any Group Member consummates an Asset Sale, then subject to Section 2.14(i), on the date of such incurrence, an amount equal to 100% of the Net Cash Proceeds thereof in excess of the Mandatory Prepayment Cap shall be applied to the prepayment of the Loans (together with accrued and unpaid interest thereon) as set forth in Section 2.14(f).

(c) The Borrower shall have the option to repay any loans outstanding under the Senior Credit Facilities (in the case of the revolving facility thereunder, to be accompanied by a permanent commitment reduction) in lieu of any amount otherwise required to be applied to prepay Loans pursuant to clause (a) or (b) above.

(d) [Reserved].

(e) [Reserved].

(f) Amounts to be applied pursuant to this Section 2.14 shall be applied first to reduce outstanding ABR Loans. Any amounts remaining after each such application shall be applied to prepay Eurodollar Loans; provided, however, that the Borrower may elect that the remainder of such prepayments not applied to prepay ABR Loans be held by the Borrower and applied to prepay the Eurodollar Loans on the last day of the next expiring Interest Period for Eurodollar Loans; provided that (A) interest shall continue to accrue thereon at the rate otherwise applicable under this Agreement to the Eurodollar Loan in respect of which such deposit was made, until such amounts are applied to prepay such Eurodollar Loan, and (B) at any time while an Event of Default has occurred and is continuing, upon written direction from the Required Lenders, the Administrative Agent shall, apply any or all of such amounts to the payment of Eurodollar Loans.

(g) Notwithstanding anything in this Section 2.14 to the contrary, if any amount shall be required to be applied to prepay Loans pursuant to clauses (a) or (b) above (such amount, the “Required Prepayment Amount”), and at the time that any such prepayment would be required, the Borrower is required to, or required to offer to, repurchase or redeem or repay or prepay any other Indebtedness secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the Borrower may apply such Required Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time; provided that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Loans in accordance with the terms hereof) to the prepayment of the Loans and to the repurchase or repayment of Other Applicable Indebtedness, and the amount of the prepayment of the Loans that would have otherwise been required pursuant to this Section 2.14 shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness so repurchased or repaid, the declined

 

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amount shall promptly (and in any event within five Business Days after the date of such rejection, or, if later, the date on which the portion of the Required Prepayment Amount allocated to the Loans are applied to prepayment of the Loans) be applied to prepay the Loans in accordance with the terms hereof (to the extent such amount would otherwise have been required to be so applied if such Other Applicable Indebtedness was not then outstanding).

(h) Notwithstanding anything in this Section 2.14 to the contrary, any Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery, facsimile or, in accordance with the second paragraph of Section 9.1, e-mail) at least one Business Day prior to the required prepayment date, to decline all of any mandatory prepayment of its Loans pursuant to clause (b) of this Section 2.14, in which case the aggregate amount of the prepayment that would have been applied to prepay Loans but was so declined may be retained by the Group Members.

(i) Notwithstanding the foregoing, all prepayments referred to in clause (b) above are subject to permissibility of upstreaming the applicable cash flow or cash proceeds under (i) local law (e.g. financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance and similar legal principles, restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant subsidiaries) and (ii) material organizational document restrictions as a result of minority ownership. Further, if the Borrower determines in good faith that any Group Member would incur a material adverse tax liability (taking into account, for the avoidance of doubt, any applicable withholding taxes), if all or a portion of the cash flow or cash proceeds referred to above attributable to a Foreign Subsidiary (or any direct or indirect Subsidiary thereof) were repatriated (a “Restricted Amount”), the amount that the Borrower will be required to mandatorily prepay shall be reduced by the Restricted Amount until such time as the relevant Restricted Subsidiary may upstream or transfer such Restricted Amount without incurring such tax liability.

2.15 Interest.

(a) Subject to Section 9.17, each Loan shall bear interest at the Reference Rate plus the Applicable Margin.

(b) Following the occurrence and during the continuation of a Specified Event of Default, the Borrower shall pay interest on overdue amounts hereunder at a rate per annum equal to (i) in the case of overdue principal of, or interest on, any Loan, 2.00% plus the rate otherwise applicable to such Loan as provided in paragraph (a) of this Section 2.15 or (ii) in the case of any other overdue amount, 2.00% plus the rate applicable to ABR Loans as provided in paragraph (a) of this Section 2.15.

(c) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to paragraph (b) of this Section 2.15 shall be payable on demand, (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (iii) in the event of any conversion of any Eurodollar Loan prior to the end of the current Interest Period therefor, accrued interest on such Loan shall be payable on the effective date of such conversion.

(d) All interest hereunder shall be computed on the basis of a year of 360 days (or a 365- or 366-day year, as the case may be, in the case of ABR Loans based on the Prime Rate). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.

 

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2.16 Alternate Rate of Interest. Subject to Section 1.10 (which shall apply solely in the circumstances set forth therein), if prior to the commencement of any Interest Period for a Eurodollar Borrowing:

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

(b) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period;

then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, facsimile or other electronic transmission as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing shall be deemed to be converted into a request for a Borrowing of ABR Loans in the amount specified therein.

2.17 Increased Costs.

(a) If any Change in Law shall:

(i) subject the Administrative Agent or any Lender to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes or (C) Connection Income Taxes) in respect of its loans, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

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

(iii) impose on any Lender or the London interbank market any other condition, cost or expense (excluding any condition relating to Taxes) affecting this Agreement or Eurodollar Loans made by such Lender;

and the result of any of the foregoing shall be to increase the cost to such Lender (or in the case of clause (i) above, to the Administrative Agent or such Lender, as the case may be) of making or maintaining any Eurodollar Loan (or in the case of clause (i) above, any Loan) (or of maintaining its obligation to make any such Loan) or to increase the cost to the Administrative Agent or such Lender, as the case may be, or to reduce the amount of any sum received or receivable by the Administrative Agent or such Lender, as the case may be, hereunder (whether of principal, interest or otherwise), then the Borrower will pay to the Administrative Agent or such Lender, as the case may be, such additional amount or amounts as will compensate the Administrative Agent or such Lender, as the case may be, for such additional costs incurred or reduction suffered; provided, in each case, that the Administrative Agent or such Lender certifies that it has requested such payments from similarly situated borrowers.

 

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(b) If any Lender determines that any Change in Law regarding capital or liquidity 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 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 or liquidity), then from time to time 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; provided, in each case, that the Administrative Agent or such Lender certifies that it has requested such payments from similarly situated borrowers.

(c) A certificate of a Lender setting forth in reasonable detail the matters giving rise to a claim under this Section 2.17 by such Lender or such Lender’s holding company, as the case may be, as specified in paragraph (a) or (b) of this Section 2.17 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within ten Business Days after receipt thereof.

(d) Failure or delay on the part of any Lender to demand compensation pursuant to this Section 2.17 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 this Section 2.17 for any increased costs or reductions incurred more than 180 days prior to the date that such Lender 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; provided further, that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.

(e) If any Lender reasonably determines that any Requirement 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 Loans, or to determine or charge interest rates based upon the Adjusted LIBO Rate, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, any obligation of such Lender to make or continue Eurodollar Loans or to convert ABR Loans to Eurodollar 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 may at its option revoke any pending request for a borrowing of, conversion to or continuation of Eurodollar Loans and shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Loans of such Lender to ABR Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Loans. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted. Each Lender agrees to designate a different lending office if such designation will avoid the need for such notice and will not, in the good faith judgment of such Lender, otherwise cause economic, legal or regulatory disadvantage to such Lender.

2.18 Break Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Eurodollar Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice is conditional as contemplated by Section 2.12(c) and such condition is not satisfied) or (d) the assignment of any Eurodollar Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.21(c), then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. Such loss, cost or expense to any Lender shall consist of an amount determined by such Lender to be the excess, if any, of (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted

 

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LIBO Rate (determined without regard to the proviso in the definition thereof) that would have been applicable to such Loan for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert or continue, for the period that would have been the Interest Period for such Loan), over (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for deposits of a comparable amount and in the same currency and period from other banks in the eurocurrency market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 2.18 shall be delivered to the Borrower and shall be conclusive absent manifest error. Absent manifest error in the determination of such amount, the Borrower shall pay such Lender the amount shown as due on any such certificate within ten Business Days after receipt thereof.

2.19 Taxes.

(a) All payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall be made free and clear of and without deduction or withholding for any Taxes, except as required by any Requirement of Law. If any applicable Withholding Agent shall be required (as determined by such Withholding Agent in its good faith discretion) by any Requirement of Law to deduct or withhold any Taxes from such payments, then (i) in the case of deduction or withholding for Indemnified Taxes the sum payable shall be increased by the applicable Loan Party as necessary so that after all required deductions have been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.19(a)) the Lender (or, in the case of payments made to the Administrative Agent for its own account, the Administrative Agent) receives an amount equal to the sum it would have received had no such deductions or withholdings been made, (ii) the applicable Withholding Agent shall make or cause to be made such deductions or withholdings and (iii) the applicable Withholding Agent shall pay or cause to be paid the full amount deducted to the relevant Governmental Authority in accordance with applicable Requirements of Law.

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

(c) The Borrower shall indemnify the Administrative Agent and each Lender, within 30 days after written demand therefor, for the full amount of any Indemnified Taxes payable or paid by the Administrative Agent or such Lender or required to be withheld or deducted from any payment to such Administrative Agent or Lender, as the case may be (including any Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.19) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate setting forth in reasonable detail the basis for such claim and the calculation of the amount of any such payment or liability shall be delivered to the Borrower by a Lender or by the Administrative Agent on its own behalf or on behalf of a Lender, and shall be conclusive absent manifest error.

(d) As soon as practicable after any payment of Taxes by a Loan Party to a Governmental Authority, the Borrower or such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

 

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(e) Any Lender that is entitled to an exemption from or reduction of any applicable withholding Tax with respect to any payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of 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,

(A) any Lender that is a “United States person” as defined in Section 7701(a)(30) of the Code shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two executed copies of IRS Form W-9 certifying that such Lender is exempt from US Federal backup withholding tax;

(B) any Foreign Lender shall, to the extent it is legally eligible to do so, deliver to the Borrower and the Administrative Agent 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 reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party with respect to payments of interest under any Loan Document, two executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, US Federal withholding Tax;

(2) two executed copies of IRS Form W-8ECI;

(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit H-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code and that no interest payments under any Loan Documents are effectively connected with such Foreign Lender’s conduct of a United States trade or business (a “US Tax Compliance Certificate”) and (y) two executed copies of IRS Form W-8BEN or W-8BEN-E, as applicable; or

(4) to the extent a Foreign Lender is not the beneficial owner (e.g., where the Lender is a partnership or a participating Lender), two executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, as applicable, a US Tax Compliance Certificate substantially in the form of Exhibit H-2 or Exhibit H-3, IRS Form W-9, and/or other certification documents from each

 

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beneficial owner, as applicable; provided that if the Foreign Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a US Tax Compliance Certificate substantially in the form of Exhibit H-4 on behalf of such direct and indirect partner(s);

(C) any Foreign Lender shall, to the extent it is legally eligible to do so, 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 reasonable request of the Borrower or the Administrative Agent), executed copies of any other form or other documentation prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction in US Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Requirements of Law to permit the Borrower or the Administrative Agent to determine any withholding or deduction required to be made; and

(D) if a payment made to a Lender under any Loan Document would be subject to US Federal withholding Tax imposed pursuant to FATCA if such Lender fails to comply with any requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent, on or before the date it becomes a party to this Agreement and from time to time thereafter upon the request of the Borrower or the Administrative Agent, such documentation prescribed by any applicable Requirement of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower or the Administrative Agent to comply with its obligations under FATCA, to determine whether such Lender has or has not complied with such Lender’s obligations under FATCA and to determine the amount, if any, to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or other documentation it previously delivered pursuant to this Section 2.19(e) expires or becomes obsolete or inaccurate in any respect, it shall update such form or other documentation or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so. Each Lender hereby authorizes the Administrative Agent to deliver to the Loan Parties and to any successor Administrative Agent any documentation provided by such Lender pursuant to this Section 2.19(e). Notwithstanding anything to the contrary in this Section 2.19(e), no Lender shall be required to deliver any documentation pursuant to this Section 2.19(e) that such Lender is not legally eligible to deliver.

(f) On or prior to the date on which it becomes a party to this Agreement, the Administrative Agent shall deliver to the Borrower either (1) a duly completed IRS Form W-9 certifying that it is exempt from US Federal backup withholding tax or (2) (x) with respect to payments received for the account of a Lender, a duly completed IRS Form W-8IMY evidencing the Administrative Agent’s agreement to be treated as a United States person for U.S. federal withholding tax purposes and assuming primary responsibility for U.S. federal income tax withholding and (y) a duly completed IRS Form W-8ECI

 

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(with respect to payments for which the Administrative Agent is the beneficial owner). The Administrative Agent shall, whenever any documentation described in the preceding sentence expires or becomes obsolete or inaccurate in any respect, deliver promptly to the Borrower updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower) or promptly notify the Borrower of its legal ineligibility to do so. Notwithstanding anything to the contrary in this Section 2.19(f), no Administrative Agent shall be required to deliver any documentation that such Administrative Agent is not legally eligible to deliver as a result of any Change in Law after the Closing Date.

(g) If the Administrative Agent or any Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified by a Loan Party or with respect to which a Loan Party has paid additional amounts pursuant to this Section 2.19, it shall pay over such refund to the applicable Loan Party within a reasonable period (but only to the extent of indemnity payments made, or additional amounts paid, by such Loan Party under this Section 2.19 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of the Administrative Agent or such Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided that such Loan Party, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Loan Party pursuant to this Section 2.19(g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 2.19(g), in no event will the Administrative Agent or such Lender be required to pay any amount to a Loan Party pursuant to this Section 2.19(g) the payment of which would place the Administrative Agent or such Lender in a less favorable net after-Tax position than the Administrative Agent or such Lender would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 2.19(g) 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 which it deems confidential) to any Loan Party or any other Person.

(h) Each party’s obligations under this Section 2.19 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.

2.20 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.

(a) The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest or fees or of amounts payable under Section 2.17, 2.18, and 2.19 or otherwise) prior to the time expressly required hereunder or under such other Loan Document for such payment (or if no such time is expressly required, prior to 1:00 p.m. New York City time), on the date when due, in immediately available funds, without set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at 200 West Street, New York, New York 10282, except that payments pursuant to Section 2.17, 2.18, 2.19, 9.3 or pursuant to the Dutch Auction Procedures shall be made directly to the Persons entitled thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient recorded in the Register promptly following receipt thereof. If any payment under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon shall be not payable for the period of such extension. All payments under each Loan Document of principal or interest in respect of any Loan (or of any breakage indemnity in respect of any Loan) shall be made in US Dollars and, except as otherwise set forth in any Loan Document, all other payments under each Loan Document shall be made in US Dollars.

 

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

(c) If any Lender shall, by exercising any right of set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary 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; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement (including Sections 2.21(b) or (c) and 9.4(g)) or 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 permitted under this Agreement. The Borrower 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 may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. For purposes of clause (b) of the definition of “Excluded Taxes”, a Lender that acquires a participation pursuant to this Section 2.20(c) shall be treated as having acquired such participation on the date(s) on which such Lender acquired the applicable interest(s) in the Loan(s) to which such participation relates.

(d) 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 applicable Lenders 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 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 Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.8, 2.20(d) or 8.7, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

 

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2.21 Mitigation Obligations; Replacement of Lenders.

(a) If any Lender requests compensation under Section 2.17, or if the Borrower is required to pay any Indemnified Taxes, Other Taxes or additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.19, or issues any notice under Section 2.24, 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 reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.17 or 2.19 or eliminate the need for the notice pursuant to Section 2.24, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise cause material economic, legal or regulatory disadvantage to such Lender. The Borrower hereby agrees to pay all reasonable and documented out-of-pocket costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b) If any Lender (or any Participant in the Loans held by such Lender) requests compensation under Section 2.17, or if the Borrower is required to pay any Indemnified Taxes, Other Taxes or additional amount to any Lender (or its Participant) or any Governmental Authority for the account of any Lender pursuant to Section 2.19 or if any Lender becomes a Defaulting Lender, or delivers a notice pursuant to Section 2.24, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, either (i) require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.4), all its interests, rights and obligations under this Agreement (other than surviving rights to payments pursuant to Section 2.17 or 2.19) and the related Loan Documents to an assignee (other than a Disqualified Lender) that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (A) the Borrower shall have received the prior written consent of the Administrative Agent, to the extent consent for an Assignment and Assumption would be required by such Person pursuant to Section 9.4, which consent, in each case, shall not be unreasonably withheld, conditioned or delayed, (B) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts) and (C) in the case of any such assignment resulting from a claim for compensation under Section 2.17 or payments required to be made pursuant to Section 2.18, such assignment will result in a reduction in such compensation or payments, or (ii) so long as no Default or Event of Default shall have occurred and be continuing, terminate the Commitment of such Lender and repay all obligations of the Borrower owing to such Lender relating to the Loans and participations held by such Lender as of such termination date. A Lender shall not be required to make any such assignment and delegation, or to have its Commitments terminated and its obligations hereunder repaid, 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, or to terminate such Commitments and repay such obligations, cease to apply.

(c) If any Lender (such Lender, a “Non-Consenting Lender”) has failed to consent to a proposed amendment, waiver, discharge or termination which pursuant to the terms of Section 9.2 requires the consent of all of the Lenders or all affected Lenders or all Lenders, and with respect to which the Required Lenders shall have granted their consent, then the Borrower shall have the right (unless such Non-Consenting Lender grants such consent) to either (i) replace such Non-Consenting Lender by requiring such Non-Consenting Lender to assign all or the affected portion of its Loans and its Commitments hereunder to one or more assignees reasonably acceptable to the Administrative Agent (other than a Disqualified Lender); provided that (A) all Obligations (other than Designated Hedging Obligations, Designated L/C Facilities Obligations, Cash Management Obligations, contingent reimbursement and indemnification obligations, in each case, which are not due and payable) of the Borrower owing to such Non-Consenting Lender being replaced shall be paid in full to such Non-Consenting Lender concurrently

 

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with such assignment, (B) the replacement Lender shall purchase the foregoing by paying to such Non-Consenting Lender a price equal to the principal amount thereof plus accrued and unpaid interest thereon, (C) in connection with any such assignment the Borrower, such Non-Consenting Lender and the replacement Lender shall otherwise comply with Section 9.4 (including obtaining the consent of the Administrative Agent if so required thereunder); provided that, if the required Assignment and Assumption is not executed and delivered by such Non-Consenting Lender, such Non-Consenting Lender will be unconditionally and irrevocably deemed to have executed and delivered such Assignment and Assumption as of the date such Non-Consenting Lender receives payment in full of the Obligations (other than Designated Hedging Obligations, Designated L/C Facilities Obligations, Cash Management Obligations, contingent reimbursement and indemnification obligations, in each case, which are not due and payable) of the Borrower owing to such Non-Consenting Lender, (D) the replacement Lender shall pay any processing and recordation fee referred to in Section 9.4(b)(ii)(C), if applicable, in accordance with the terms of such Section and (E) the replacement Lender shall grant its consent with respect to the applicable proposed amendment, waiver, discharge or termination, or (ii) so long as no Default or Event of Default shall have occurred and be continuing, terminate (on a non-pro rata basis) the Commitment of such Non-Consenting Lender and repay all obligations of the Borrower owing to such Lender relating to the Loans held by such Non-Consenting Lender as of such termination date; provided that such termination shall be sufficient (together with all other consenting Lenders and all other assignments or terminations under this Section 2.21(c)) to cause the adoption of the applicable waiver or amendment of the applicable Loan Document or Loan Documents.

(d) Each Lender agrees that if it is replaced pursuant to this Section 2.21, it shall execute and deliver to the Administrative Agent an Assignment and Assumption to evidence such sale and purchase and shall deliver to the Administrative Agent any Note (if the assigning Lender’s Loans are evidenced by Notes) subject to such Assignment and Assumption; provided that the failure of any Lender replaced pursuant to this Section 2.21 to execute an Assignment and Assumption or deliver such Notes shall not render such sale and purchase (and the corresponding assignment) invalid and such assignment shall be recorded in the Register and the Notes shall be deemed cancelled upon such failure. Each Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Lender’s attorney-in-fact, with full authority in the place and stead of such Lender and in the name of such Lender, from time to time in the Administrative Agent’s discretion, with prior written notice to such Lender, to take any action and to execute any such Assignment and Assumption or other instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of clause (b) or (c) of this Section 2.21.

2.22 Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then, so long as such Lender is a Defaulting Lender, the Commitments and Aggregate Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders or other requisite Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 9.2); provided that this paragraph shall not apply to the vote of a Defaulting Lender in the case of an amendment, waiver or other modification requiring the consent of such Lender or each Lender affected thereby if such amendment, waiver or modification would adversely affect such Defaulting Lender compared to other similarly affected Lenders; provided further, that no amendment, waiver or modification that would require the consent of a Defaulting Lender under clause (1), (2) or (3) of Section 9.2(b)(x) may be made without the consent of such Defaulting Lender.

2.23 Extension of Maturity Date. The Borrower shall have the right, exercisable two times, to extend the Maturity Date by 182 days for each extension. The Borrower may exercise such right only by the Borrower executing and delivering to the Administrative Agent at least three (3) Business Days prior to the current Maturity Date, a written request for such extension (an “Extension Request”). The

 

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Administrative Agent shall forward to each Lender a copy of the Extension Request delivered to the Administrative Agent promptly upon receipt thereof. Subject to satisfaction of the following conditions, the Maturity Date shall be extended for 182 days effective upon receipt of the Extension Request and payment of the fee referred to in the following clause (b) (and all other interest and fees due and payable on or prior such Extension Request): (a) immediately prior to such extension and immediately after giving effect thereto, no Specified Event of Default shall exist and (b) the Borrower shall have paid the fees payable under Section 2.13(b).

2.24 Illegality. If any Lender determines that any 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 Loans whose interest is determined by reference to the LIBO Rate, or to determine or charge interest rates based upon the LIBO 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, upon notice thereof by such Lender to the Borrower (through the Administrative Agent), (a) any obligation of such Lender to make or continue Eurodollar Loans or to convert ABR Loans to Eurodollar Loans shall be suspended, and (b) if such notice asserts the illegality of such Lender making or maintaining ABR Loans the interest rate on which is determined by reference to the LIBO Rate component of Alternate Base Rate, the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the LIBO Rate component of the Alternate Base Rate, in each case 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, (i) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Loans of such Lender to ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the LIBO Rate component of the Alternate Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Loans and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the LIBO Rate, the Administrative Agent shall during the period of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the LIBO Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the LIBO Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted, together with any additional amounts required pursuant to Section 2.17.

SECTION 3. REPRESENTATIONS AND WARRANTIES

To induce the Administrative Agent and the Lenders to enter into this Agreement and to make the Loans, the Borrower hereby represents and warrants to the Administrative Agent and each Lender that:

3.1 Financial Condition.

(a) The unaudited pro forma consolidated balance sheet of Parent and its Subsidiaries as at December 31, 2019 and the related pro forma consolidated statement of income of Parent and its Subsidiaries for the 12-month period ended December 31, 2019 have been prepared in good faith, based on assumptions believed by Parent to be reasonable as of the date of delivery thereof, and fairly present in all material respects on a pro forma basis the estimated pro forma financial position of Parent and its Subsidiaries as at December 31, 2019, assuming that the consummation of the Transactions had actually occurred at such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income).

 

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(b) The audited consolidated balance sheets as at December 31, 2017, December 31, 2018 and December 31, 2019 and the related consolidated statements of comprehensive income (loss), stockholders’ equity and cash flows for Parent for the fiscal years ended on December 31, 2017, December 31, 2018, and December 31, 2019, in each case reported on by and accompanied by unqualified reports from PricewaterhouseCoopers LLP, present fairly in all material respects the consolidated financial condition of Parent as of such date, and the consolidated results of its operations and its consolidated cash flows for the fiscal year then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein).

(c) The unaudited consolidated balance sheets as at December 31, 2019 and the related consolidated statements of comprehensive income (loss), stockholders’ equity and cash flows for Sprint for the fiscal quarter then ended, present fairly in all material respects the consolidated financial condition of Sprint as of such date, and the consolidated results of its operations and its consolidated cash flows for the fiscal year then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (subject to normal year end audit adjustments and the absence of footnotes) unless otherwise disclosed therein.

(d) The audited consolidated balance sheets as at March 31, 2017, March 31, 2018 and March 31, 2019 and the related consolidated statements of operations, comprehensive income (loss), stockholders’ equity and cash flows for Sprint for the fiscal year ended on March 31, 2017, March 31, 2018 and March 31, 2019, in each case reported on by and accompanied by unqualified reports from Deloitte & Touche LLP, present fairly in all material respects the consolidated financial condition of Sprint as of such date, and the consolidated results of its operations and its consolidated cash flows for the fiscal year then ended. All such financial statements, including the related schedules and notes thereto, have been prepared in accordance with GAAP applied consistently throughout the periods involved (except as approved by the aforementioned firm of accountants and disclosed therein).

3.2 No Change. Since December 31, 2019, there has been no development or event, either individually or in the aggregate, that has had or would reasonably be expected to have a Material Adverse Effect.

3.3 Corporate Existence; Compliance with Law. Each of Parent and each Group Member (a) is duly organized or, as the case may be, incorporated, validly existing and in good standing under the laws of the jurisdiction of its organization or incorporation (to the extent such concepts exist in such jurisdiction), (b) has all requisite organizational power and authority, and has all material governmental licenses, authorizations, consents and approvals necessary, to own its assets and to carry on its business as now conducted, (c) to the extent applicable in the relevant jurisdiction, is qualified to do business in, and is in good standing in, every jurisdiction where such qualification is required, and (d) in the case of each Group Member is, except as set forth on Schedule 3.3, in compliance with all Governmental Requirements applicable to it or its Property, except, in the case of the foregoing clauses (a) (except as it relates to the due organization and valid existence of Parent and the Borrower), (b), (c) and (d), as would not, in the aggregate, have or reasonably be expected to have a Material Adverse Effect.

3.4 Power; Authorization; Enforceable Obligations. The execution and delivery of this Agreement and the other Loan Documents are within the corporate, limited liability company or partnership (as applicable) powers of each of the Loan Parties party thereto, and have been duly authorized by all necessary corporate, limited liability company or partnership (as applicable) and, if required, stockholder, member or partner (as applicable) action (including, any action required to be taken by any class of directors of the Borrower, whether interested or disinterested, in order to ensure the due authorization of this Agreement) on the part of such Loan Parties. Each Loan Document has been duly executed and delivered

 

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by each applicable Loan Party and constitutes a legal, valid and binding obligation of such Loan Party enforceable against such Loan Party in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. The execution and delivery of this Agreement and the other Loan Documents dated as of even date herewith does not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority or any other third Person (including shareholders, or any class of directors, whether interested or disinterested, of the Borrower or any other person), nor is any such consent, approval, registration, filing or other action necessary for the validity or enforceability of any such Loan Document, except (i) such as have been obtained or made and are in full force and effect, (ii) those consents, approvals, registrations and filings listed on Schedule 3.4, (iii) the filings referred to in Section 3.19, (iv) filings necessary to create or perfect Liens on the Collateral granted by the Loan Parties in favor of the Secured Parties, (v) consents and approvals from Governmental Authorities required to be obtained in the ordinary course of business, (vi) such consents, approvals, registrations, filings or other actions, other than those specified in clause (vii) below, the absence of which or failure to obtain, would not reasonably be expected to have a Material Adverse Effect, and (vii) to the extent that the exercise of certain of the rights, powers, privileges and remedies of the Administrative Agent or the Lenders may constitute a de jure or de facto voluntary or involuntary assignment of an FCC License or a voluntary or involuntary transfer of de jure or de facto control of the holder of any such FCC License, the FCC’s prior consent thereto.

3.5 No Legal Bar. The execution, delivery and performance by each Loan Party of this Agreement and the other Loan Documents to which such Person is a party, the borrowings and guarantees hereunder and the use of the proceeds thereof (a) will not violate any applicable law, regulation or any order of any Governmental Authority (except for any violation of any applicable law, regulation or order of any Governmental Authority that would not reasonably be expected to have a Material Adverse Effect), (b) will not violate the charter, bylaws or other organizational documents of Parent or any other Loan Party, (c) will not violate or result in a default under any Material Contractual Obligation binding upon Parent or any Group Member or its Properties, or give rise to a right thereunder to require any payment to be made by Parent or such Group Member (except for any of the foregoing that would not reasonably be expected to have a Material Adverse Effect) and (d) will not result in the creation or imposition of any Lien on any Property of Parent or any Group Member (other than Permitted Liens).

3.6 Litigation. Except as disclosed to the Administrative Agent in writing (including by electronic mail) prior to the Closing Date, there are no actions, suits, investigations or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of the Borrower, threatened in writing against Parent or any Group Member that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect (after giving effect to applicable insurance).

3.7 No Default. No Default or Event of Default has occurred and is continuing.

3.8 Ownership of Property; Liens. Except as disclosed on Schedule 3.8, each Group Member has good title to, or a valid leasehold interest in, or easements or other limited property interests in, all real property and other Property material to the conduct of its business except where the failure to have such title or interests would not reasonably be expected to have a Material Adverse Effect.

3.9 Intellectual Property. Except as disclosed in Schedule 3.9, each Group Member owns, or is licensed to use, all trademarks, trade names, copyrights, patents and other Intellectual Property necessary to its business, and, to the extent the Group Member holds title to such Intellectual Property, the use thereof by such Group Member, and the operation of its business by such Group Member, does not infringe upon the rights of any other Person, except for any such failure to own, be licensed or infringements that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

 

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3.10 Taxes. Each Group Member has timely filed or caused to be filed all Tax returns and reports required to have been filed by it and has paid or caused to be paid all Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which adequate reserves have been set aside in accordance with GAAP or (b) to the extent that the failure to file such Tax returns or pay such Taxes would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. The charges, accruals and reserves on the books of the Group Members in respect of Taxes are adequate (in accordance with GAAP) in all material respects. No Tax Lien has been filed that is material and does not constitute a Permitted Lien, and, to the knowledge of the Borrower, no claim is being asserted in writing with respect to any material Tax of any Group Member (other than any the amount or validity of which are currently being contested in good faith by appropriate proceedings and for which adequate reserves have been set aside in accordance with GAAP).

3.11 Federal Regulations. No part of the proceeds of any Loan will be used for any purpose which violates the provisions of Regulations T, U or X of the Board.

3.12 Labor Matters. Except as, in the aggregate, would not reasonably be expected to have a Material Adverse Effect: (a) there are no strikes or other labor disputes against any Group Member pending; (b) hours worked by and payment made to employees of any Group Member have not been in violation of the Fair Labor Standards Act or any other applicable Requirement of Law dealing with such matters; and (c) all payments due from any Group Member on account of employee health and welfare insurance have been paid or accrued as a liability on the books of such Group Member.

3.13 ERISA.

(a) Except as would not reasonably be expected to result in a Material Adverse Effect, the Group Members and each ERISA Affiliate have complied in all respects with ERISA and, where applicable, the Code regarding each Plan.

(b) Except as would not reasonably be expected to result in a Material Adverse Effect, each Plan is, and has been, maintained in compliance with ERISA and, where applicable, the Code.

(c) Except as would not reasonably be expected to result in a Material Adverse Effect, to the knowledge of any Senior Officer of the Borrower, no act, omission or transaction has occurred which could reasonably be expected to result in imposition on any Group Member or any ERISA Affiliate (whether directly or indirectly) of (i) either a material civil penalty assessed pursuant to subsections (c), (i) or (l) of section 502 of ERISA or a material tax imposed pursuant to Chapter 43 of Subtitle D of the Code or (ii) material breach of fiduciary duty liability damages under section 409 of ERISA.

(d) No Plan or any trust created under any such Plan has been terminated in the six consecutive year period ending on the date hereof and no steps have been taken to terminate any Plan where such termination could reasonably be expected to result in a Material Adverse Effect. No liability to the PBGC (other than for the payment of current premiums which are not past due) has been or is reasonably expected to be incurred by any Group Member or any ERISA Affiliate with respect to any Plan that could reasonably be expected to result in a Material Adverse Effect. No ERISA Event with respect to any Plan has occurred where such ERISA Event could reasonably be expected to result in a Material Adverse Effect.

(e) Except as would not reasonably be expected to result in a Material Adverse Effect, (i) full payment when due has been made of all amounts which any Group Member or any ERISA Affiliate is required under the terms of each Plan or applicable law to have paid as contributions to such Plan as of the date hereof, and (ii) no failure to meet the minimum funding standard under section 303 of ERISA or section 430 of the Code, whether or not waived, exists with respect to any Plan.

 

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(f) Except as would not reasonably be expected to result in a Material Adverse Effect, the actuarial present value of the benefit liabilities under each Plan does not, as of the end of the Borrower’s most recently ended fiscal year, exceed the current value of the assets of such Plan allocable to such benefit liabilities, computed in accordance with the actuarial assumptions used for funding such Plan pursuant to Sections 412 and 430 of the Code for the applicable plan year.

(g) No contribution failure has occurred with respect to any Plan sufficient to give rise to a material lien under section 303(k) of ERISA in an amount in excess of $100.0 million.

(h) Neither any Group Member nor any ERISA Affiliate has incurred at any time in the six-year period immediately preceding the date hereof, or is reasonably expected to incur withdrawal liability under Section 4201 of ERISA to any Multiemployer Plan, except to the extent such withdrawal liability from such Multiemployer plan would not reasonably be expected to result in a Material Adverse Effect. Neither any Group Member nor, to the knowledge of the Borrower, any ERISA Affiliate has received any notice concerning the determination that a Multiemployer Plan is, or is expected to be, insolvent or in critical or endangered status, within the meaning of Title IV of ERISA, except as would not reasonably be expected to result in a Material Adverse Effect.

(i) Except as would not reasonably be expected to result in a Material Adverse Effect, there are no going-concern unfunded actuarial liabilities, past service unfunded liabilities or solvency deficiencies with respect to any employee benefit plan that is exempt from ERISA by reason of section 4(b)(4) thereof and is sponsored, maintained, or contributed to by any Group Member or any ERISA Affiliate.

3.14 Investment Company Act. No Loan Party is an “investment company” within the meaning of, and required to register under, the Investment Company Act of 1940, as amended.

3.15 [Reserved].

3.16 Use of Proceeds. The proceeds of the Loans shall be used on the Closing Date, together with cash on hand and/or drawings on other Indebtedness permitted to be incurred hereunder, to consummate the Closing Date Refinancing and the other Transactions, and otherwise for working capital and general corporate purposes of the Borrower and its Subsidiaries (including, without limitation, capital expenditures, acquisitions and other uses not restricted under this Agreement).

3.17 Environmental Matters. Except as would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect):

(a) Neither any Group Member nor, to the knowledge of the Borrower, any Property of any Group Member or the operations conducted thereon violate (i) any decree, order or requirement of any Governmental Authority arising under Environmental Law or (ii) any Environmental Laws or any related Environmental Permit;

(b) all Environmental Permits, if any, required to be obtained or filed in connection with the operation or use of any and all Property by each Group Member, including any such Environmental Permits required for the treatment, storage, disposal or Release of a Hazardous Material or solid waste into the environment, have been duly obtained or filed, and each Group Member is in compliance with the terms and conditions of all such Environmental Permits;

(c) all Hazardous Materials, if any, generated at any and all Property of any Group Member are and, to the knowledge of the Borrower, have in the past been released, stored, transported, treated and disposed of in accordance with Environmental Laws and so as not to pose an imminent and substantial endangerment to public health or welfare or the environment;

 

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(d) no Group Member is subject to or knows of any basis for any Environmental Liability or has any known contingent liability or Remedial Work in connection with any Release or threatened Release into the environment; and

(e) there have been no Releases of Hazardous Materials on any Property of any Group Member in a manner that is reasonably likely to require any Remedial Work.

3.18 Accuracy of Information, Etc. None of the reports, certificates or other written information (other than projected financial information and other forward-looking information, and information of a general economic or industry specific nature) furnished by or on behalf of any Group Member to the Administrative Agent or any Lender or any of their Affiliates in connection with the negotiation of this Agreement or any other Loan Document or delivered hereunder or under any other Loan Document (as modified or supplemented by other information so furnished), taken as a whole, as of the date so furnished and after giving effect to all supplements and updates thereto, contained any material misstatement of fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that with respect to financial statements other than projected financial information and other forward-looking information, the Borrower represents only that such financial statements present fairly in all material respects the consolidated financial condition of Parent or Sprint, as the case may be, as at the dates of such financial statements; provided, further, that with respect to projected financial information and any other projections and other forward-looking information, the Borrower represents only that such information was prepared in good faith based upon assumptions believed by the Borrower to be reasonable at the time prepared (it being understood that forecasts and projections by their nature are inherently uncertain, that actual results may differ significantly from the forecasted or projected results and that such differences may be material and no assurances are being given that the results reflected in the forecasts and projections will be achieved).

3.19 Security Documents. The Collateral Agreement and each other Security Document executed and delivered by a Loan Party is effective to create in favor of the Collateral Trustee, for the benefit of the Secured Parties, a legal, valid, binding and enforceable security interest in the Collateral described therein, except as enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. Subject to the terms of Section 5.9(c) in the case of (i) the Pledged Capital Stock described in the Collateral Agreement, when any stock certificates representing such Pledged Capital Stock (and constituting “certificated securities” within the meaning of the UCC) are delivered to the Collateral Trustee, (ii) Collateral with respect to which a security interest may be perfected only by possession or control, upon the taking of possession or control by the Collateral Trustee of such Collateral, and (iii) the other personal property Collateral described in the Security Documents as to which a security interest can be perfected by filing of a UCC financing statement, when financing statements in appropriate form are filed in the appropriate filing offices, appropriate assignments or notices are filed in the U.S. Patent and Trademark Office and such other filings as are specified by the Collateral Agreement have been completed, the Lien on the Collateral created by the Collateral Agreement shall (to the extent so required by Section 5.9(c) and the Security Documents) constitute a fully perfected Lien in favor of the Collateral Trustee for the benefit of the Secured Parties on, and security interest in, all right, title and interest of the Loan Parties in such Collateral, as security for the Obligations, in each case prior to the Liens of any other Person (except Permitted Liens).

3.20 Solvency. The Borrower, on a consolidated basis together with its Subsidiaries, giving effect to the Transactions, is Solvent as of the Closing Date.

 

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3.21 PATRIOT Act; FCPA; OFAC; Sanctions.

(a) Each Loan Party is in compliance, in all material respects, with (i) the Trading with the Enemy Act, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V) and any other enabling legislation or executive order relating thereto; (ii) the PATRIOT Act; and (iii) the FCPA. No part of the proceeds of the Loans will be used by the Loan Parties or any of their respective Subsidiaries, directly or, to the Loan Parties’ knowledge, indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the FCPA.

(b) Neither Parent nor any Group Member, nor any director or officer of Parent or any Group Member, nor, to the knowledge of Parent or the Borrower, any employee or controlled affiliate of Parent or any Group Member, (i) is a person or is owned or controlled by one or more persons on the list of “Specially Designated Nationals and Blocked Persons”; (ii) is currently the subject of (x) any US sanctions administered or enforced by the Office of Foreign Assets Control of the US Treasury Department (“OFAC”) or the U.S. Department of State or (y) any sanctions administered or enforced by the European Union, the United Nations Security Council or Her Majesty’s Treasury (“Sanctions”); or (iii) is located, organized or resident in a country, region or territory which is itself or whose government is the subject or target of any Sanctions. Except as authorized, including, but not limited to, by license, exemption or other provision of law, none of Parent or any Group Member will, directly or, to the knowledge of Parent or the Borrower, indirectly, use the proceeds of the Loans or otherwise make available such proceeds to any subsidiary, any joint venture partner or any other person to finance or facilitate the activities of any person currently the subject of any US sanctions administered by OFAC, or, in any other manner that will result in a violation of Sanctions.

SECTION 4. CONDITIONS PRECEDENT

4.1 Conditions to Closing Date. The agreement of each Lender to make the Loans requested to be made by it hereunder is subject to the satisfaction (or waiver in accordance with Section 9.2), prior to or concurrently with the making of such extension of credit (or making such commitments available) on the Closing Date, of the following conditions precedent:

(a) Loan Documents. The Administrative Agent shall have received (subject, in the case of clauses (ii), (iii) and (iv), to the last paragraph of this Section 4.1):

(i) this Agreement, executed and delivered by the Borrower;

(ii) the Guarantee Agreement, executed and delivered by the Loan Parties party thereto;

(iii) the Collateral Agreement, executed and delivered by the Loan Parties party thereto;

(iv) the Collateral Trust Agreement, executed and delivered by the Loan Parties party thereto;

(v) the US IP Security Agreements, executed and delivered by the Loan Parties party thereto;

 

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(vi) each Note, executed and delivered by the Borrower in favor of each Lender requesting the same prior to the Closing Date; and

(vii) a Borrowing Request, executed and delivered by the Borrower at least one Business Day prior to the Closing Date.

(b) Transaction. The Acquisition shall have been consummated, or substantially concurrently with the initial borrowing hereunder shall be consummated, on substantially the terms set forth in the Business Combination Agreement.

(c) Closing Date Refinancing. The Closing Date Refinancing shall have been consummated prior to or substantially concurrently with the initial borrowing under the Facility.

(d) Specified Representations and Business Combination Agreement Representations. The Arranger shall have received a certificate of a Responsible Officer stating that the Specified Representations and the Business Combination Agreement Representations shall be true and correct in all material respects as of the Closing Date; provided that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such date.

(e) Historical Financial Statements. The Arrangers shall have received (a) U.S. GAAP audited consolidated balance sheets and related statements of income (loss) or operations, stockholders’ equity and cash flows of each of Parent and Sprint for the three most recently completed fiscal years ended at least 90 days prior to the Closing Date and (b) U.S. GAAP unaudited consolidated balance sheets and related statements of income (loss) or operations, stockholders’ equity and cash flows of each of Parent and Sprint for each subsequent fiscal quarter ended at least 45 days before the Closing Date (other than the fourth quarter of any fiscal year and subject to normal year-end adjustments); provided that filing of the required financial statements on Form 10-K and Form 10-Q by Parent or Sprint will satisfy the foregoing requirements; and provided further that the Administrative Agent and Lenders acknowledge receipt of (i) the financial statements of Parent described in clause (a) above for the years ended December 31, 2019, December 31, 2018 and December 31, 2017 and (ii) (x) the financial statements of Sprint described in clause (a) above for the years ended March 31, 2018, March 31, 2017 and March 31, 2016 and (y) the financial statements of Sprint described in clause (b) above for the quarters ended June 30, 2019, September 30, 2019 and December 31, 2019.

(f) Pro Forma Financial Statements. The Arrangers shall have received a pro forma consolidated balance sheet and related pro forma consolidated statement of income of Parent and its subsidiaries, in a form customary for inclusion in a confidential information memorandum used to syndicate bank credit facilities, as of and for the 12-month period ending on the last day of the most recently completed four-fiscal quarter period for which financial statements have been delivered pursuant to clause (e) above, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of such statement of income).

(g) Solvency Certificate. The Administrative Agent shall have received a solvency certificate in the form of Exhibit J from the chief financial officer of the Borrower with respect to the solvency of the Borrower, on a consolidated basis together with its Subsidiaries, after giving effect to the Transactions.

 

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(h) Closing Certificate. The Administrative Agent shall have received a certificate of the Borrower, dated the Closing Date, substantially in the form of Exhibit D, certifying that the conditions set forth in clauses (b), (c), (d) and (n) of this Section 4.1 have been satisfied.

(i) Other Certifications. The Administrative Agent shall have received the following:

(i) a copy of the charter or other similar Organizational Document of each Loan Party and each amendment thereto, certified (as of a date reasonably near the date of the initial extension of credit) as being a true and correct copy thereof by the Secretary of State or other applicable Governmental Authority of the jurisdiction in which each such Loan Party is organized or incorporated;

(ii) a copy of a certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which each such Loan Party is organized, dated reasonably near the Closing Date, certifying that such Person is in good standing under the laws of such jurisdiction; and

(iii) a certificate of the Secretary, Assistant Secretary or other appropriate Responsible Officer of each Loan Party dated the Closing Date and certifying (A) that attached thereto is a true and complete copy of the by-laws, or operating, management or partnership agreement of such Loan Party as in effect on the Closing Date, (B) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or other applicable body) of such Loan Party authorizing the execution, delivery and performance of the Loan Documents to which such Person is a party and, in the case of the Borrower, the borrowings hereunder, and that such resolutions have not been modified, rescinded or amended and are in full force and effect, (C) that the certificate or articles of incorporation, partnership agreement or other constitutive document of such Loan Party have not been amended since the date the documents furnished pursuant to clause (i) above were certified, and (D) as to the incumbency and specimen signature of each officer executing any Loan Document or any other document delivered in connection herewith on behalf of such Loan Party.

(j) Legal Opinions. The Administrative Agent shall have received the legal opinions of Fried, Frank, Harris, Shriver & Jacobson LLP and Morrison & Foerster LLP, each as counsel to certain Loan Parties, in each case in form and substance reasonably satisfactory to the Administrative Agent and executed legal opinions of each local counsel to the Loan Parties set forth on Schedule 4.1(j), each of which shall be in form and substance reasonably satisfactory to the Administrative Agent.

(k) Pledged Capital Stock; Stock Powers. Subject to the last paragraph of this Section 4.1, to the extent delivery thereof is required under the applicable Security Document, the Collateral Trustee shall have received the certificates representing the shares of Capital Stock pledged pursuant to any Security Document (if such shares are certificated), together with, in the case of Capital Stock of any Domestic Subsidiary, an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof.

(l) Security Interests, Filings, Registrations and Recordings. Each document and instrument required to be entered into or delivered by the Borrower and the Guarantors to create and perfect the security interests of the Collateral Trustee in favor of the Administrative Agent and the other Secured Parties in the Collateral shall have been executed and delivered and, if applicable, be in proper form for filing.

 

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(m) Know Your Customer and Other Required Information. The Administrative Agent and the Lenders shall have received at least 3 Business Days prior to the Closing Date, all documentation and other information required by regulatory authorities with respect to the Borrower and the Guarantors under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, in each case as reasonably requested by the Lenders at least 10 Business Days prior to the Closing Date.

(n) No Material Adverse Effect on Sprint. Except as (i) set forth in any Sprint Filed SEC Documents (as defined in the Business Combination Agreement), excluding any disclosures in such Sprint Filed SEC Documents (as defined in the Business Combination Agreement) contained in any risk factors section, any section related to forward-looking statements and other disclosures that are predictive, cautionary or forward-looking in nature, or (ii) disclosed in the disclosure letter delivered by Sprint to T-Mobile (as defined in the Business Combination Agreement) at or prior to the execution of the Business Combination Agreement, since March 31, 2017, there have been no Effects (as defined in the Business Combination Agreement) that, individually or in the aggregate, have had or would reasonably be expected to have a “Material Adverse Effect on Sprint” (as defined in the Business Combination Agreement).

(o) Fees. The Arrangers, the Lenders and the Administrative Agent shall have received (or substantially simultaneously with the initial funding of the Facility on the Closing Date, shall receive) all fees and expenses required to be paid on or prior to the Closing Date, and all reasonable and documented out-of-pocket expenses required to be paid on the Closing Date for which reasonably detailed invoices have been presented pursuant to the Fee Letter, Commitment Letter and hereunder and, with respect to expenses, invoiced to the Borrower at least three (3) Business Days prior to the Closing Date.

Notwithstanding the foregoing or anything herein or in any Loan Document to the contrary, to the extent any Collateral (other than to the extent that a lien on such Collateral may be perfected by (x) the filing of a financing statement under the Uniform Commercial Code or (y) the delivery of stock certificates of the Borrower) is not or cannot be provided or perfected on the Closing Date after the Borrower’s use of commercially reasonable efforts to do so (consistent with the Business Combination Agreement), provision or perfection of a security interest in such Collateral shall not constitute a condition precedent to the availability of the Facility and the making of the Loans on the Closing Date, but shall be required to be provided or perfected within 90 days after the Closing Date (in each case, subject to extensions granted by the Administrative Agent in its sole discretion).

SECTION 5. AFFIRMATIVE COVENANTS

The Borrower hereby agrees that, so long as any Commitments remain in effect or any Loan or other amount (excluding Designated Hedging Obligations, Designated L/C Facilities Obligations, Cash Management Agreements and contingent reimbursement and indemnification obligations, in each case, that are not due and payable) is owing to any Lender, the Administrative Agent or any Arranger hereunder, the Borrower shall and shall cause each of its Restricted Subsidiaries to:

5.1 Financial Statements. Furnish to the Administrative Agent (except for those documents or other information filed with the SEC and which are publicly available):

(a) Annual Financial Statements. As soon as available, but in any event in accordance with then applicable law and not later than 90 days after the end of each fiscal year of Parent (or such later date on which Parent is permitted to file its Form 10-K under the SEC rules), Parent’s and its Consolidated Subsidiaries’ audited consolidated balance sheet and related statements of income and comprehensive income, stockholders’ equity and cash flows as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by PricewaterhouseCoopers LLP

 

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or other independent public accountants of recognized national standing (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit (other than any such exception or explanatory paragraph that is expressly solely with respect to, or expressly resulting solely from, (x) an upcoming maturity date under any Indebtedness, (y) any potential inability to satisfy any financial maintenance covenant on a future date or in a future period or (z) any breach of any financial covenant) to the effect that such consolidated financial statements present fairly in all material respects the financial condition and results of operations of Parent and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (except as approved by the Parent’s accountants and disclosed therein).

(b) Quarterly Financial Statements. As soon as available, but in any event in accordance with then applicable law and not later than 45 days after the end of each of the first three fiscal quarters of each fiscal year of Parent (or such later date on which Parent is permitted to file its Form 10-Q under the SEC rules), in each case, Parent’s and its Consolidated Subsidiaries’ consolidated balance sheet and related statements of income and comprehensive income and cash flows as of the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth in each case in comparative form the figures for the corresponding period or periods of (or, in the case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its senior financial officers as presenting fairly in all material respects the financial condition and results of operations of Parent and its Consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied (except as approved by Parent’s accountants and disclosed therein), subject to normal period-end audit adjustments.

(c) [Reserved].

(d) SEC Reports. Notwithstanding the foregoing, the obligations in clauses (a) and (b) of this Section 5.1 may be satisfied by furnishing (or filing with the SEC) the Form 10-K or 10-Q (or the equivalent), as applicable, of Parent or any parent thereof filed with the SEC; provided that to the extent such information relates to a parent of Parent, such information is accompanied by a description that explains in reasonable detail the differences between the information relating to such parent, on the one hand, and the information relating to Parent, the Borrower and the Consolidated Subsidiaries, on a stand-alone basis, on the other hand.

(e) Quarterly Lender Calls. Within a reasonable time after the required delivery of the financial statements referred to in clauses (a) and (b) above, the Borrower shall conduct a conference call (which may be password protected) to discuss such financial statements and the results of operations for the relevant reporting period, which conference call shall, unless otherwise elected by the Borrower and notified in advance to the Administrative Agent, be the same as the Borrower’s quarterly earnings call with holders of the Senior Unsecured Notes.

5.2 Certificates; Other Information. Furnish to the Administrative Agent in each case for further delivery to each Lender, or, in the case of clause (d), to the relevant Lender:

(a) concurrently with the delivery of any financial statements pursuant to Section 5.1(a) or (b), a Compliance Certificate of a senior financial officer certifying as to whether a Default or Event of Default has occurred and is continuing and, if a Default or Event of Default has occurred and is continuing, specifying the details thereof and any action taken or proposed to be taken with respect thereto;

 

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(b) concurrently with the delivery of any financial statements pursuant to Section 5.1(a) or (b), a narrative discussion and analysis of the financial condition and results of operations of Parent and its Consolidated Subsidiaries for such fiscal quarter and for the period from the beginning of the then current fiscal year to the end of such fiscal quarter, as compared to the comparable periods of the previous year; provided that the obligations in this clause (b) may be satisfied by furnishing (or filing with the SEC) the Form 10-K or 10-Q (or the equivalent), as applicable, of Parent or any parent thereof filed with the SEC;

(c) written notice within 45 days thereof of any change (i) in Parent’s or any Loan Party’s (other than an Unsecured Guarantor) corporate name, (ii) in the location of Parent’s or any Loan Party’s (other than an Unsecured Guarantor) chief executive office or principal place of business, (iii) in Parent’s or any Loan Party’s (other than an Unsecured Guarantor) corporate structure, (iv) in Parent’s or any Loan Party’s (other than an Unsecured Guarantor) jurisdiction of organization or such Person’s organizational identification number in such jurisdiction of organization, and (v) in Parent’s or any Loan Party’s (other than an Unsecured Guarantor) federal taxpayer identification number; and

(d) promptly following any request therefor, such other information that is reasonably available (upon the use of commercially reasonable efforts) to the Borrower regarding the operations, business affairs and financial condition of any Loan Party (including, any Plan or Multiemployer Plan and any reports or other information required to be filed under ERISA), or compliance with the terms of this Agreement or any other Loan Document, as the Administrative Agent may reasonably request (on its own behalf or on behalf of any Lender) in a written notice given in accordance with Section 9.1.

Notwithstanding anything to the contrary in this Section 5.2, none of Parent or any Group Member will be required to disclose any document, information or other matter (i) that constitutes trade secrets or proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by any Requirement of Law or any binding agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product.

5.3 Payment of Obligations. Pay, discharge or otherwise satisfy its obligations (other than Indebtedness), including Tax liabilities, before the same shall become delinquent or in default, except where (a) (i) the validity or amount thereof is being contested in good faith by appropriate proceedings and (ii) the applicable Group Member has set aside on its books adequate reserves with respect thereto in accordance with GAAP or (b) the failure to make such payment would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

5.4 Maintenance of Existence; Compliance. (a) (i) Preserve, renew and keep in full force and effect its corporate or other organizational existence (it being understood, for the avoidance of doubt, that the foregoing shall not limit any change in form of entity or organization) and (ii) take all reasonable action to maintain all rights, privileges, franchises, permits and licenses necessary in the normal conduct of its business, except, in each case, as otherwise permitted by Section 6.2 and except (other than in the case of the preservation of existence of Parent and the Borrower) to the extent that failure to do so would not reasonably be expected to have a Material Adverse Effect; (b) comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its Property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; and (c) maintain in effect policies and procedures reasonably designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers and employees with the FCPA and Sanctions.

5.5 Maintenance of Property; Insurance.

(a) Keep and maintain all Property useful and necessary in the conduct of its business in good working order and condition (ordinary wear and tear and casualty and condemnation excepted) and preserve, maintain and keep in good repair and working order (ordinary wear and tear and casualty and condemnation excepted) all of its Properties, including, all equipment, machinery and facilities, and prosecute, maintain, renew and preserve all Intellectual Property, except in each case where a failure to do so would not reasonably be expected to result in a Material Adverse Effect.

 

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(b) Maintain, with insurance companies the Borrower believes in its reasonable business judgment to be financially sound and reputable, insurance in such amounts (after giving effect to any self-insurance) and against such risks which in the reasonable business judgment of the Borrower are appropriate for companies engaged in the same or similar businesses operating in the same or similar locations.

(c) Within 90 days following the date hereof (subject to Section 5.14) and within 90 days following any date on which a new Grantor (as defined in the Collateral Agreement) is added to the Collateral Agreement or the date the relevant policy is obtained, cause the Collateral Trustee to be included as loss payee on the property insurance policy of such Grantor and as additional insured on the commercial general liability insurance policy (excluding, for the avoidance of doubt, directors and officers, worker’s compensation, health and benefit and similar liability policies) of such Grantor. The Grantors shall use commercially reasonable efforts to cause all such insurance to provide that the relevant insurer shall endeavor to provide the Administrative Agent with at least 30 days prior notice of the cancellation of the relevant policy of insurance.

5.6 Inspection of Property; Books and Records; Discussions.

(a) Keep proper books of record and account in which full, true and in all material respects correct entries in conformity with (i) GAAP and (ii) all Requirements of Law, are made of all material dealings and transactions in relation to its business and activities; and

(b) permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior written notice, and as coordinated by such Lenders through the Administrative Agent, to visit and inspect its Properties, to examine and make extracts from its books and records, and to discuss its affairs, finances and condition with its officers and independent accountants, all at such reasonable times during normal business hours and as often as reasonably requested on an individual and aggregate basis; provided that (1) any discussions with such independent accountants shall be in the presence of the Borrower’s officers, and (2) so long as no Event of Default has occurred and is continuing, such visits, inspections and examinations shall only be conducted by the Administrative Agent and shall be limited to one per fiscal year.

Notwithstanding anything to the contrary in this Section 5.6, none of Parent or any Group Member will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter (i) that constitutes trade secrets or proprietary information, (ii) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by any Requirement of Law or any binding agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product.

5.7 Notices. Promptly after (or, in the case of clause (c) or (d), within 30 days after) a Responsible Officer acquires knowledge thereof, give notice to the Administrative Agent of:

(a) the occurrence of any Default or Event of Default;

(b) the filing or commencement of any action, suit, proceeding, investigation or arbitration by or before any arbitrator or Governmental Authority against any Group Member not previously disclosed in writing to the Lenders that, if adversely determined, would reasonably be expected to result in a Material Adverse Effect;

 

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(c) the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, would reasonably be expected to result in a Material Adverse Effect; and

(d) any other development or event that has or would reasonably be expected to have a Material Adverse Effect.

Each notice pursuant to this Section 5.7 shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action (if any) the Borrower or the relevant Group Member proposes to take with respect thereto.

5.8 Environmental Laws.

(a) Comply in all respects with all applicable Environmental Laws, and obtain, maintain and comply with, any and all Environmental Permits, except to the extent the failure to so comply with Environmental Laws or obtain, maintain or comply with Environmental Permits would not reasonably be expected to have a Material Adverse Effect.

(b) Conduct and complete all investigations, studies, sampling and testing, and all remedial, removal and other corrective actions required pursuant to Environmental Laws and promptly comply in all respects with all lawful orders and directives of all Governmental Authorities regarding any violation of or non-compliance with Environmental Laws and any Release or threatened Release of Hazardous Materials, except, in each case, to the extent the failure to do so would not reasonably be expected to have a Material Adverse Effect or to the extent that Borrower’s 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 in accordance with GAAP.

5.9 Additional Collateral, New Subsidiaries, Etc.

(a) Subject to Section 5.9(c), with respect to any personal Property (other than Excluded Assets) acquired or created (including the filing of any applications for the registration or issuance of any Intellectual Property) after the Closing Date by any existing Loan Party (other than an Unsecured Guarantor), no later than the next date of delivery of financial statements pursuant to Section 5.1(a) or 5.1(b) covering a period that includes the date of such acquisition or creation of such Property (subject, in each case, to any specific time frame established in the relevant Loan Documents) (or such later date as may be agreed by the Administrative Agent), (x) execute and deliver to the Administrative Agent or the Collateral Trustee, as applicable, such amendments to the Security Documents (including schedules thereto) or such other documents as the Administrative Agent or the Collateral Trustee may reasonably request to grant to the Collateral Trustee, for the benefit of the Secured Parties, a security interest in such Property and (y) take all actions reasonably necessary (as determined by the Borrower in good faith) to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Permitted Liens) in such Property to the extent required under the Security Documents, including the filing of UCC financing statements in such United States jurisdictions as may be required by Security Documents.

(b) Subject to Section 5.9(c), cause any Parent Only Subsidiary or any Subsidiary of Borrower, in each case that is not an Excluded Subsidiary, if not already a Guarantor, promptly (and in any event within 60 days after such person becomes a Subsidiary that is not an Excluded Subsidiary, or ceases to be an Excluded Subsidiary, as the case may be, or such longer period as the Administrative Agent or the

 

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Collateral Trustee may approve in its sole discretion) (I) to become a party to the Collateral Agreement and/or the Guarantee Agreement, as the case may be, and (other than in respect of an Unsecured Guarantor) deliver to the Administrative Agent or the Collateral Trustee, as applicable, such amendments to the Security Documents (including schedules thereto) as the Administrative Agent or the Collateral Trustee reasonably deems necessary to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected first priority security interest (subject to Permitted Liens) in the Capital Stock of such new Guarantor (other than to the extent constituting Excluded Assets and other than any Parent Only Subsidiary), (II) to deliver to the Collateral Trustee the certificates, if any, representing such Capital Stock of such new Guarantor (other than any Parent Only Subsidiary) constituting certificated securities under the UCC, together with undated stock powers, in blank, to the extent required by the Collateral Agreement and necessary to perfect the Collateral Trustee’s security interests therein and (III) (other than in respect of an Unsecured Guarantor) to take such actions necessary to grant to the Collateral Trustee, for the benefit of the Secured Parties, a perfected security interest (subject to Permitted Liens) in the Collateral described in the applicable Security Documents with respect to such new Guarantor, including the filing of UCC financing statements in such United States jurisdictions as may be required by the Security Documents.

(c) Notwithstanding the foregoing provisions of this Section 5.9 or any other provision hereof or of any other Loan Document, (i) no Loan Party shall be required to grant a security interest in any Excluded Assets, (ii) no Loan Party shall be required to perfect any pledges, security interests and mortgages in the Collateral by any means other than (A)(1) filings pursuant to the Uniform Commercial Code in the office of the Secretary of State (or similar central filing office) of the relevant State in which such Loan Party is organized, and (2) filings in the U.S. Patent and Trademark Office with respect to intellectual property as expressly required in the Security Documents, (B) subject to any relevant Intercreditor Agreements, and any other intercreditor arrangements entered into pursuant to this Agreement, delivery to the Collateral Trustee of all certificates evidencing Capital Stock in the Borrower and the Subsidiary Guarantors and their respective subsidiaries to the extent constituting Collateral and required to be delivered in order to perfect the Collateral Trustee’s security interest therein, to be held in its possession, in each case as and to the extent expressly required in the Security Documents, (iii) no Loan Party shall be required to (A) deliver deposit or securities account control agreements or lockbox or similar arrangements, (B) otherwise deliver perfection by “control” (within the meaning of the UCC) (including with respect to deposit accounts, securities accounts and commodities accounts), other than as described in clause (ii)(B) above or (C) send notices to account debtors or other contractual third parties unless an Event of Default has occurred and is continuing, (iv) no Loan Party shall be required to take any action with respect to any assets located outside of the United States, (v) no Loan Party shall be required to take any actions in any jurisdiction other than the United States (or any political subdivision thereof) in connection with pledging Collateral or enter into any collateral documents governed by the laws of any country (or any political subdivision thereof) other than the United States (or any political subdivision thereof), (vi) no Unsecured Guarantor shall be required to pledge or grant a security interest in any assets of such Unsecured Guarantor (except to the extent such entity is designated as a Subsidiary Guarantor pursuant to clause (i) of the proviso of the definition of “Excluded Subsidiary”), (vii) neither Sprint nor any Subsidiary of Sprint shall be required to become a Subsidiary Guarantor prior to the first date on or after the Closing Date on which Sprint or such Subsidiary actually guarantees the Existing T-Mobile Notes and (viii) each Subsidiary of Parent that provides a Guarantee of the Existing T-Mobile Notes shall also become a Subsidiary Guarantor hereunder in accordance with the provisions set forth above (but regardless of whether such Subsidiary is an Excluded Subsidiary).

5.10 Use of Proceeds. Use the proceeds of the Loans only for the purposes specified in Section 3.16 and not in violation of Section 3.21.

 

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5.11 Further Assurances. Promptly execute and deliver to the Administrative Agent or the Collateral Trustee, as applicable, all such other documents, agreements and instruments and take such other actions as reasonably requested by the Administrative Agent or the Collateral Trustee (at the direction of the Administrative Agent) to comply with, cure any defects or accomplish the conditions precedent, covenants and agreements of the Parent and the other Group Members in the Loan Documents, or to more fully perfect, maintain or renew the rights of the Administrative Agent (or the Collateral Trustee, as applicable) and the Lenders with respect to the Collateral (or with respect to any additions thereto or replacements or proceeds or products thereof or with respect to any other property or assets hereafter acquired by any Loan Party which may be deemed to be part of the Collateral) pursuant hereto or thereto other than any Excluded Assets.

5.12 Maintenance of Ratings. At all times, the Borrower shall use commercially reasonable efforts (x) to maintain a public corporate credit rating from S&P and a public corporate family rating from Moody’s, in each case with respect to Parent, and (y) to cause the Facility to be continuously rated by S&P and Moody’s (it being understood that, in each case, there shall be no obligation to maintain specific ratings from either S&P or Moody’s).

5.13 Designation of Subsidiaries.

(a) The Borrower may designate any Restricted Subsidiary to be an Unrestricted Subsidiary and subsequently re-designate any Unrestricted Subsidiary as a Restricted Subsidiary if no Event of Default has occurred and is continuing or would result therefrom. The redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the incurrence at the time of designation of Liens of such Subsidiary existing at such time.

(b) Notwithstanding the foregoing, the Borrower may at any time and from time to time designate any Designated Entity by written notice to the Administrative Agent as an Unrestricted Subsidiary, and any such Subsidiary shall upon such notice immediately be designated and deemed an Unrestricted Subsidiary, without any further action by the Borrower (and, for the avoidance of doubt, shall not require delivery of a resolution of the Board of Directors or of an officer’s certificate). Notwithstanding the foregoing, as of the date hereof, each entity listed on Schedule 1.1(c) is an Unrestricted Subsidiary.

(c) Notwithstanding the foregoing, no Restricted Subsidiary may be designated as an Unrestricted Subsidiary unless it is also designated an Unrestricted Subsidiary under the Senior Credit Agreement.

5.14 Post-Closing Matters. As promptly as reasonably practicable, and in any event within the time periods specified on Schedule 5.14 (or such longer period as the administrative agent under the Senior Credit Agreement may agree), after the Closing Date, complete, or cause the applicable Loan Party to complete, such undertakings and deliveries, in each case, as are set forth on Schedule 5.14.

SECTION 6. NEGATIVE COVENANTS

The Borrower hereby agrees that, so long as any Commitments remain in effect or any Loan or other amount is owing to any Lender, the Administrative Agent or any Arranger hereunder (excluding Designated Hedging Obligations, Designated L/C Facilities Obligations, Cash Management Agreements and contingent reimbursement and indemnification obligations, in each case, that are not due and payable):

6.1 Liens. The Borrower will not, and will not permit any Guarantor to, directly or indirectly, create, incur or assume any Lien securing Indebtedness for Borrowed Money upon any Collateral or any Principal Property now owned or hereafter acquired, except Permitted Liens.

 

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For purposes of determining compliance with this Section 6.1, (x) a Lien need not be incurred solely by reference to one category of Permitted Liens, but may be incurred under any combination of such categories (including in part under one such category and in part under any other such category) and (y) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Permitted Liens, the Borrower shall, in its sole discretion, divide, classify or may subsequently reclassify at any time such Lien (or any portion thereof) in any manner that complies with this Section 6.1 and the definition of “Permitted Liens”.

This Section 6.1 requires only equal and ratable treatment in the application of proceeds of Collateral and does not require that the Collateral Trustee or the Collateral Trustee have any ability to control the Collateral or the enforcement of remedies.

Notwithstanding anything to the contrary in this Section 6.1, and solely to the extent any Spectrum SPV Equity Interests constitute Excluded Assets pursuant to clause (6) of the definition of “Excluded Assets”, the Borrower will not, and will not permit any Restricted Subsidiary to, directly or indirectly, create, incur or assume any Lien on such Spectrum SPV Equity Interests securing Indebtedness unless (i) such Lien is otherwise permitted under this Section 6.1 and (ii) a first priority Lien on such Equity Interests (which may be pari passu with such other Lien) is promptly granted to the Collateral Trustee for the benefit of the Secured Parties and any perfection requirements with respect thereto are satisfied within the time periods required by Section 5.9 hereof.

6.2 Merger, Consolidation, or Sale of Assets. The Borrower will not: (x) consolidate or merge with or into another Person (whether or not the Borrower is the surviving corporation); or (y) directly or indirectly sell, assign, lease, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Borrower and its Restricted Subsidiaries taken as a whole, in one or more related transactions, to another Person (including, in the case of both clauses (x) and (y), pursuant to a Delaware LLC Division), unless:

(a) either: (i) the Borrower is the surviving corporation; or (ii) the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or to which such sale, assignment, lease, transfer, conveyance or other disposition has been made is a corporation, limited liability company or partnership organized or existing under the laws of the United States, any state of the United States or the District of Columbia;

(b) the Person formed by or surviving any such consolidation or merger (if other than the Borrower) or the Person to which such sale, assignment, lease, transfer, conveyance or other disposition has been made expressly assumes, (x) by an assumption and joinder agreement, executed and delivered to the Administrative Agent, the payment of the principal of and any premium and interest on the Obligations and the performance or observance of every covenant of this Agreement on the part of the Borrower to be performed or observed, and (y) by amendment, supplement or other instrument (in form reasonably satisfactory to the Collateral Trustee), executed and delivered to the Collateral Trustee, all obligations of the Borrower under the Security Documents, and in connection therewith shall cause such instruments to be filed and recorded in such jurisdictions and take such other actions as may be required by applicable law to perfect or continue the perfection of the Liens (to the extent such collateral agreements require such Liens to be perfected) created under the Security Documents on the Collateral owned by or transferred to the surviving entity; and

(c) immediately after such transaction, no Default or Event of Default exists.

 

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Upon any consolidation or merger, or any sale, transfer, assignment, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Borrower and its Restricted Subsidiaries, taken as a whole, in a transaction that is subject to, and that complies with the provisions of, this Section 6.2, the successor Person formed by such consolidation or into or with which the Borrower is merged or to which such sale, transfer, assignment, lease, conveyance or other disposition is made, shall succeed to, and be substituted for, the Borrower (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Agreement and the other Loan Documents referring to the Borrower shall refer instead to the successor Person and not to the Borrower), and may exercise every right and power of the Borrower under this Agreement and the other Loan Documents with the same effect as if such successor Person had been named as the Borrower herein and therein. When the successor Person assumes all of the Borrower’s obligations under this Agreement and the other Loan Documents, the Borrower, except in the case of a lease, shall be discharged from its obligations under this Agreement and the other Loan Documents, including the obligation to pay the principal of or interest on the Loans.

Notwithstanding the foregoing, this Section 6.2 will not apply to:

(1) a merger of the Borrower with a direct or indirect Subsidiary of Parent solely for the purpose of reincorporating the Borrower in another jurisdiction in the United States so long as the amount of Indebtedness of the Borrower and its Restricted Subsidiaries is not increased thereby;

(2) any consolidation or merger, or any sale, assignment, transfer, conveyance, lease or other disposition of assets between or among the Borrower and its Restricted Subsidiaries; or

(3) the Transactions.

SECTION 7. EVENTS OF DEFAULT

7.1 Events of Default. An Event of Default shall occur if any of the following events shall occur and be continuing; provided that any requirement for the giving of notice, the lapse of time, or both has been satisfied:

(a) (i) the Borrower shall fail to pay any principal of any Loan when due in accordance with the terms hereof; or (ii) the Borrower shall fail to pay any interest on any Loan, or any Loan Party shall fail to pay any fee or other amount payable hereunder or under any other Loan Document, within five Business Days after any such interest, fee or other amount becomes due in accordance with the terms hereof or thereof;

(b) any representation or warranty made or deemed made by any Loan Party herein or in any other Loan Document or that is contained in any certificate, document or financial or other statement required to be furnished by such Loan Party at any time under this Agreement or any such other Loan Document shall prove to have been incorrect in any material respect on or as of the date made or deemed made or furnished;

(c) any Loan Party shall default in the observance or performance of any agreement contained in clause (i) of Section 5.4(a) (with respect to the Borrower only), Section 5.7(a) (provided that the delivery of the notice referred to in such Section 5.7(a) at any time will cure any such Event of Default arising from the failure to timely deliver such notice of default, except where a Responsible Officer had actual knowledge both that the underlying Default or Event of Default had occurred and that delivery of notice of such underlying Default or Event of Default was required, and such Responsible Officer failed to cause such notice to be delivered in accordance with Section 5.7(a)), Section 5.10 or Section 6;

 

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(d) any Loan Party shall default in the observance or performance of any covenant or other agreement contained in this Agreement or any other Loan Document (other than as provided in paragraphs (a) through (c) of this Section 7.1), and such default shall continue unremedied for a period of 30 days following delivery of written notice thereof to the Borrower by the Administrative Agent;

(e) Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary) shall default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for Borrowed Money by Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary) (or the payment of which Indebtedness for Borrowed Money is guaranteed by Parent, the Borrower or any of its Restricted Subsidiaries that together would constitute a Significant Subsidiary), whether such Indebtedness or Guarantee now exists, or is created hereafter, if that default:

(i) is caused by a failure to pay principal of, or interest or premium, if any, on, such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a “Payment Default”); or

(ii) results in the acceleration of such Indebtedness prior to its express maturity;

and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates an amount equal to the greater of $250.0 million and 1.00% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period, or more, in each case for so long as such failure or acceleration is continuing; provided that upon becoming an Event of Default, such Event of Default shall be deemed to have been remedied and shall no longer be continuing if any such defaults, events or conditions are remedied or waived prior to any acceleration of the Loans pursuant to the below provisions of this Section 7.1 by any of the holders or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such holders or beneficiaries) and, after giving effect thereto, at such time, one or more defaults, events or conditions of the type described in clause (i) or (ii) of this paragraph (e) shall no longer be continuing with respect to such Indebtedness;

(f) Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary) shall fail to pay or discharge final judgments entered by a court or courts of competent jurisdiction aggregating in excess of an amount equal to the greater of $250.0 million and 1.00% of Consolidated Cash Flow determined on a Pro Forma Basis as of the most recently ended Test Period (to the extent not covered by insurance), which judgments are not paid, discharged or stayed for a period of 60 consecutive days following entry of such final judgment or decree during which a stay of enforcement of such final judgment or decree, by reason of pending appeal or otherwise, is not in effect;

(g) Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary (or any Restricted Subsidiaries that together would constitute a Significant Subsidiary) shall:

(i) commence a voluntary case under any Bankruptcy Law,

(ii) consent to the entry of an order for relief against it in an involuntary case under any Bankruptcy Law,

 

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(iii) consent to the appointment of a custodian of it or for all or substantially all of its property,

(iv) make a general assignment for the benefit of its creditors, or

(v) generally not be paying its debts as they become due;

(h) a court of competent jurisdiction shall enter a final order or decree under any Bankruptcy Law that:

(i) is for relief against Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Borrower that, taken together, would constitute a Significant Subsidiary in an involuntary case;

(ii) appoints a custodian of Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Borrower that, taken together, would constitute a Significant Subsidiary or for all or substantially all of the property of Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Borrower that, taken together, would constitute a Significant Subsidiary; or

(iii) orders the liquidation of Parent, the Borrower or any of its Restricted Subsidiaries that is a Significant Subsidiary or any group of Restricted Subsidiaries of the Borrower that, taken together, would constitute a Significant Subsidiary;

and the final order or decree remains unstayed and in effect for 90 consecutive days (in respect of clause (i) above) or 60 consecutive days (in respect of clause (ii) and (iii) above);

(i) (x) any Security Document that creates a Lien with respect to a material portion of the Collateral shall cease, for any reason (other than by reason of the release or termination thereof pursuant to the provisions of the Loan Documents), to be in full force and effect, or any Loan Party (or any of its Affiliates that has the power, directly or indirectly, to direct or cause the direction of the management and policies of such Loan Party) shall so assert in writing (other than by reason of the release or termination thereof pursuant to the provisions of the Loan Documents), except to the extent that any lack of full force and effect or enforceability or such loss of perfection or priority results solely from the failure of the Collateral Trustee to maintain possession of certificates actually delivered to it representing securities pledged under the Collateral Agreement or otherwise solely as a result of acts or omissions by the Administrative Agent or any Lender or (y) any Lien created or purported to be created by the Security Documents shall cease to have the lien priority established or purported to be established by the Collateral Trust Agreement (other than in accordance with its terms);

(j) any Change of Control Triggering Event shall occur;

(k) there shall occur one or more ERISA Events which individually or in the aggregate results in or could reasonably be expected to result in liability of any Loan Party or any of their respective ERISA Affiliates that would reasonably be expected to result in a Material Adverse Effect during the term hereof or there shall be a lien in favor of any Plan as provided under Section 430(k) of the Code or under Section 303(k) of ERISA in an amount that would result in a Material Adverse Effect; and

 

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(l) the guarantee contained in the Guarantee Agreement shall cease, for any reason (other than by reason of the express release thereof pursuant to the provisions of the Loan Documents), to be in full force and effect or any Loan Party shall so assert in writing (other than by reason of the express release thereof pursuant to the provisions of the Loan Documents).

7.2 Action in Event of Default.

(a) Upon the occurrence of any Event of Default, (A) if such event is an Event of Default specified in paragraph (g) or (h) above with respect to the Borrower, the Commitments hereunder shall automatically and immediately terminate and the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents shall immediately become due and payable, and (B) if such event is any other Event of Default, then with the consent of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders, the Administrative Agent shall, by notice to the Borrower, (i) declare the Loans hereunder (with accrued interest thereon) and all other amounts owing under this Agreement and the other Loan Documents to be due and payable forthwith, whereupon the same shall immediately become due and payable and (ii) subject to the terms and conditions of any applicable Intercreditor Agreements and any other intercreditor arrangement entered into in connection with this Agreement, commence foreclosure actions with respect to the Collateral in accordance with the terms and procedures set forth in the Security Documents.

7.3 Clean Up Period. Notwithstanding anything in Section 7 or elsewhere in this Agreement to the contrary, during the period from the Closing Date until the date that is 60 days after the Closing Date, any breach of a covenant, inaccuracy of or inability to make a representation or warranty (other than a Specified Representation) or other Default or Event of Default (other than an Event of Default of the Borrower under Section 7.1(g) or (h)) by reason of any matter or circumstance relating to Sprint or its Subsidiaries will be deemed not to be a breach of a covenant, an inaccuracy of or failure to make a representation or warranty or a Default or Event of Default so long as the circumstances giving rise thereto:

(a) do not have a material adverse effect on the consolidated results of operations or financial condition of the Borrower and its Subsidiaries (including Sprint and its Subsidiaries) taken as a whole, such that the Borrower and its Subsidiaries (including Sprint and its Subsidiaries) taken as a whole would be unable to perform the payment obligations under the Facility;

(b) were not knowingly procured or approved by the Borrower;

(c) are capable of remedy and reasonable steps are being taken to remedy it; and

(d) do not constitute a breach of the covenants relating to the accession of Guarantors beyond the earlier of thirty (30) days after the Closing Date or the date on which any required Guarantor actually guarantees the Existing T-Mobile Notes.

7.4 Application of Proceeds.

(a) Subject to the Collateral Trust Agreement or any other Intercreditor Agreement, if an Event of Default shall have occurred and be continuing, at any time at the Collateral Trustee’s election, the Administrative Agent may apply all or any part of the net proceeds (after deducting all reasonable out-of-pocket costs, fees and expenses of the Collateral Trustee) of Collateral realized through the exercise by the Collateral Trustee of its remedies hereunder, whether or not held in any Collateral Account (as defined in the Collateral Agreement), and any proceeds of the guarantee set forth in the Guarantee Agreement, in payment of the Obligations in the following order:

 

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First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal, interest, and fees under Section 2.13(a) and, if applicable, Section 2.13(b), but including attorneys’ fees payable under the Credit Agreement and amounts payable under the Guarantee Agreement) 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, Cash Management Obligations, Designated L/C Facilities Obligations and Obligations under Designated Hedge Agreements and, to the extent payable under clause First, attorneys’ fees) payable to the Secured Parties (including attorneys’ fees payable hereunder and amounts payable under the Guarantee Agreement), ratably among them in proportion to the amounts described in this clause Second payable to them;

Third, to payment of that portion of the Obligations constituting accrued and unpaid interest on the Loans and other Obligations, ratably among the holders of such Obligations 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, Cash Management Obligations, Designated L/C Facilities and Designated Hedging Obligations, ratably among the holders of such Obligations 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 that are then due and payable to the Administrative Agent and the other Secured Parties on such date, ratably based upon the respective aggregate amounts of all such Obligations owing to the Administrative Agent and the other Secured Parties on such date; and

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

(b) The Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of proceeds in the amount agreed upon by the Administrative Agent or by the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Administrative Agent or such officer or be answerable in any way for the misapplication thereof.

SECTION 8. THE AGENTS

8.1 Appointment. Each Lender hereby irrevocably designates and appoints Goldman Sachs Bank USA (in its capacity as the Administrative Agent) as the administrative agent of such Lender under this Agreement and the other Loan Documents, and each such Lender irrevocably authorizes the Administrative Agent and the Collateral Trustee, in such capacity, to take such action on its behalf under the provisions of this Agreement and the other Loan Documents and to exercise such powers and perform such duties as are expressly delegated to the Administrative Agent and the Collateral Trustee by the terms of this Agreement and the other Loan Documents, together with such other powers as are reasonably incidental thereto. Without limiting the generality of the foregoing, each Lender hereby authorizes the Collateral Trustee to enter into each Security Document and any other intercreditor or subordination agreements contemplated hereby (including any Senior Pari Passu Intercreditor Agreement) on behalf of and for the benefit of the Lenders and the other Secured Parties and agrees to be bound by the terms thereof.

 

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Notwithstanding any provision to the contrary elsewhere in this Agreement, the Administrative Agent and the Collateral Trustee shall not have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against the Administrative Agent or the Collateral Trustee.

Each of the Lenders (including in its capacity as a Qualified Counterparty) hereby irrevocably appoints Deutsche Bank Trust Company Americas to act on its behalf as the Collateral Trustee hereunder and under the other Loan Documents and authorizes the Collateral Trustee to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Trustee by the terms hereof or thereof for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted under the Security Documents to secure any of the Obligations, together with such actions and powers as are reasonably incidental thereto. In this connection, the Collateral Trustee and any co-agents, sub-agents and attorneys-in-fact appointed by the Collateral Trustee pursuant to Section 8.3 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Security Documents, or for exercising any rights and remedies thereunder at the direction of the Collateral Trustee, shall be entitled to the benefits of all provisions of this Section 8 and Section 9 (including Section 9.3), as though the Collateral Trustee or such co-agents, sub-agents and attorneys-in-fact were the “Collateral Trustee” under the Loan Documents and as if set forth in full herein with respect thereto.

8.2 Delegation of Duties. Each Agent may perform any and all of its duties and exercise its rights and powers under this Agreement and the other Loan Documents by or through agents or attorneys in fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. No Agent shall not be responsible for the negligence or misconduct of any agents or attorneys-in fact selected by it with reasonable care. The exculpatory provisions of this Section 8 shall apply to any agent or attorney-in-fact, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as each Agent.

8.3 Exculpatory Provisions. None of any Agent or any of their respective officers, directors, employees, agents, advisors, attorneys-in-fact or affiliates shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, no Agent shall (i) be subject to any fiduciary or other implied duty, regardless of whether a Default has occurred and is continuing, (ii) be liable to any other Credit Party for any action (x) taken with the consent of the Required Lenders or (y) otherwise lawfully taken or omitted to be taken by it or such Person under or in connection with this Agreement or any other Loan Document (except to the extent that any of the foregoing are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from its or such Person’s own gross negligence or willful misconduct), (iii) 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 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 no Agent shall be required to take any action that, in its opinion or the opinion of its counsel, may expose the Agent to liability or that is contrary to any Loan Document or applicable law, (iv) 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 Agent or any of its Affiliates in any capacity or (v) responsible in any manner to any other Credit Party for (w) any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Loan Document or in any certificate, report, statement or other document referred to or provided for in, or received by the Agents under or in connection with, this Agreement or any other Loan Document, (x) the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan Document, or any other agreement,

 

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instrument or document or the creation, perfection or priority of any Lien purported to be created by the Security Documents (or that the Liens granted to the Collateral Trustee pursuant to any Security Documents have been properly or sufficiently or lawfully created, perfected, protected or enforced or are entitled to any particular priority) or the value or the sufficiency of any Collateral, (y) any failure of any Loan Party a party thereto to perform its obligations hereunder or thereunder or (z) the satisfaction of any condition set forth in Section 4 or elsewhere herein, other than to confirm receipt of items required to be delivered to the Administrative Agent or the Collateral Trustee. None of the Agents shall be under any obligation to any other Credit Party to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Loan Document, or to inspect the properties, books or records of any Loan Party.

8.4 Reliance by Administrative Agent. The Administrative Agent shall be entitled to rely, and shall not incur any liability for relying, upon any instrument, writing, resolution, notice, consent, certificate, affidavit, letter, facsimile or email message, statement, order or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons and upon advice and statements of legal counsel (including counsel to Parent or the Borrower), independent accountants and other experts selected by the Administrative Agent. The Administrative Agent may deem and treat the payee of any Note as the owner thereof for all purposes unless a written notice of assignment, negotiation or transfer thereof shall have been filed with the Administrative Agent. The Administrative Agent shall be fully justified in failing or refusing to take any action under this Agreement or any other Loan Document unless it shall first receive such advice or concurrence of the Required Lenders (or, if so specified by this Agreement, all affected Lenders or all Lenders) as it deems appropriate or it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense that may be incurred by it by reason of taking or continuing to take any such action. The Administrative Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement and the other Loan Documents in accordance with a request of the Required Lenders (or, if so specified by this Agreement, all affected Lenders or all Lenders), and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Lenders and all future holders of the Loans.

8.5 Notice of Default. The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Administrative Agent has received written notice from a Lender, Parent or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “notice of default”. In the event that the Administrative Agent receives such a notice, the Administrative Agent shall give notice thereof to the Lenders. The Administrative Agent shall take such action with respect to such Default or Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by this Agreement, all affected Lenders); provided that unless and until the Administrative Agent shall have received such directions, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable in the best interests of the Lenders.

8.6 Non-Reliance on Agents and Other Lenders; Certain ERISA Matters.

(a) Each Lender expressly acknowledges that neither the Agents nor any of their respective officers, directors, employees, agents, advisors, attorneys-in-fact or Affiliates have made any representations or warranties to it and that no act by any Agent hereafter taken, including any review of the affairs of a Loan Party or any Affiliate of a Loan Party, shall be deemed to constitute any representation or warranty by any Agent to any Lender. Each Lender represents to the Agents that it has, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it has deemed appropriate, made its own appraisal of, and investigation into, the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates and

 

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made its own decision to make its Loans hereunder and enter into this Agreement. Each Lender also represents that it will, independently and without reliance upon any Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Loan Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Loan Parties and their Affiliates. Except for notices, reports and other documents expressly required to be furnished to the Lenders by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of any Loan Party or any Affiliate of a Loan Party that may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, advisors, attorneys-in-fact or Affiliates.

(b) (i) Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that at least one of the following is and will be true:

(A) such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more Benefit Plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments or this Agreement,

(B) the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement,

(C) (1) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (2) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Commitments and this Agreement, (3) the entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (4) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement, or

(D) such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.

 

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(ii) In addition, unless either (1) sub-clause (A) in the immediately preceding clause (i) is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (D) in the immediately preceding clause (i), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).

8.7 Indemnification. The Lenders agree to indemnify each Agent and its officers, directors, employees, Affiliates, agents, advisors and controlling persons (each, an “Agent Indemnitee”) (to the extent not reimbursed by Parent or the Borrower and without limiting any obligation of Parent or the Borrower to do so), ratably according to their respective Aggregate Exposure Percentages in effect on the date on which indemnification is sought under this Section 8.7 (or, if indemnification is sought after the date upon which the Commitments shall have terminated and the Loans shall have been paid in full, ratably in accordance with such Aggregate Exposure Percentages immediately prior to such date), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs and expenses or disbursements of any kind whatsoever that may at any time (whether before or after the payment of the Loans) be imposed on, incurred by or asserted against such Agent Indemnitee in any way relating to or arising out of, the Commitments, this Agreement, any of the other Loan Documents or any documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or any action taken or omitted by such Agent Indemnitee under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final and nonappealable decision of a court of competent jurisdiction to have resulted from such Agent Indemnitee’s gross negligence, bad faith or willful misconduct. The agreements in this Section 8.7 shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder.

8.8 Agent in Its Individual Capacity. Each Agent and its affiliates may make loans to, accept deposits from and generally engage in any kind of business with any Loan Party as though such Agent were not an Agent. With respect to its Loans made or renewed by it, each Agent shall have the same rights and powers under this Agreement and the other Loan Documents as any Lender and may exercise the same as though it were not an Agent, and the terms “Lender” and “Lenders” shall include each Agent in its individual capacity.

8.9 Successor Administrative Agent. The Administrative Agent may resign as Administrative Agent upon 30 days’ notice to the Lenders and the Borrower. If the Administrative Agent shall resign as Administrative Agent, then the Required Lenders shall appoint from among the Lenders a successor agent for the Lenders, which successor agent shall be subject to written approval by the Borrower (which approval shall not be unreasonably withheld or delayed), whereupon such successor agent shall succeed to the rights, powers and duties of the Administrative Agent, and the term “Administrative Agent” shall mean such successor agent effective upon such appointment and approval, and the former Administrative Agent’s rights, powers and duties as Administrative Agent shall be terminated, without any other or further act or deed on the part of such former Administrative Agent or any of the parties to this Agreement or any holders of the Loans. If no successor agent has been appointed as Administrative Agent by the date that is 30 days following a retiring Administrative Agent’s notice of resignation, the retiring Administrative Agent’s

 

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resignation shall nevertheless thereupon become effective, and the Lenders shall assume and perform all of the duties of the Administrative Agent hereunder until such time, if any, as the Required Lenders, subject to written approval by the Borrower (which approval shall not be unreasonably withheld or delayed), appoint a successor agent as provided for above. After any retiring Administrative Agent’s resignation as Administrative Agent, the provisions of this Section 8 and of Section 9.5 shall continue to inure to its benefit. For purposes of this Section 8.9, it shall be reasonable for the Borrower to withhold its approval of any successor agent that is not a “United States person” as defined in Section 7701(a)(30) of the Code and not entitled to assume primary withholding responsibility for U.S. federal income tax purposes.

8.10 [Reserved].

8.11 Withholding Tax. To the extent required by any applicable Requirements of Law (including for this purpose, pursuant to any agreements entered into with a Governmental Authority), the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding Tax. If the IRS or any other authority of the United States or other Governmental Authority asserts a claim that the Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of, withholding Tax ineffective), such Lender shall indemnify and hold harmless the Administrative Agent (to the extent that the Administrative Agent has not already been reimbursed by the Loan Parties and without limiting the obligation of the Loan Parties to do so) for all amounts paid, directly or indirectly, by the Administrative Agent as Tax or otherwise, including any interest, additions to Tax or penalties thereto, together with all expenses incurred, including legal expenses and any other out-of-pocket expenses, whether or not such Tax was correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by an Administrative Agent shall be deemed presumptively correct absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this Section 8.11. The agreements in this Section 8.11 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other obligations. Unless required by applicable Requirements of Law, at no time shall the Administrative Agent have any obligation to file for or otherwise pursue on behalf of a Lender any refund of Taxes withheld or deducted from funds paid for the account of such Lender.

8.12 Proofs of Claim. In case of the pendency of any proceeding under any Bankruptcy Laws relative to any Credit Party, the Administrative Agent and the Collateral Trustee shall be entitled and empowered (but not obligated) 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, the Administrative Agent and the Collateral Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and the Collateral Trustee and their respective agents and counsel and all other amounts due Administrative Agent under Sections 2.13 and 9.3) 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;

 

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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 Administrative Agent and, in the event that Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent under Sections 2.13 and 9.3. To the extent that the payment of any such compensation, expenses, disbursements and advances of Administrative Agent, its agents and counsel, and any other amounts due Administrative Agent under Sections 2.13 and 9.3 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Lenders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.

Nothing contained herein shall be deemed to authorize the Administrative Agent or the Collateral Trustee 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 Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

SECTION 9. MISCELLANEOUS

9.1 Notices. 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 facsimile or other electronic transmission, as follows:

 

  (i)

if to any of Parent or the Borrower, to it at:

12920 SE 38th Street

Bellevue, Washington 98006

Attention: General Counsel

E-mail: David.Conroy@T-Mobile.com

with copies (which shall not constitute notice) to:

Fried, Frank, Harris, Shriver & Jacobson LLP

One New York Plaza

New York, NY 10004

Attention: Daniel Bursky

Facsimile: (212) 859-8000

E-mail: Daniel.Bursky@friedfrank.com

 

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  (ii)

if to the Administrative Agent, to it at:

Goldman Sachs Bank USA

2001 Ross Ave, 29th Floor

Dallas, TX 75201

Attention: SBD Operations

Telephone: (972) 368-2323

Facsimile: (646) 769-7829

E-mail: gs-dallas-adminagency@ny.email.gs.com and gs-sbdagency-borrowernotices@ny.email.gs.com

 

  (iii)

if to any other Lender, to it at its address (or facsimile number) set forth in its Administrative Questionnaire.

All notices and other communications given to any party hereto, in accordance with the provisions of this Agreement, shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service, or sent by fax or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 9.1, or in accordance with the latest unrevoked direction from such party given in accordance with this Section 9.1. As agreed to among Parent, the Borrower, the Administrative Agent and the applicable Lenders from time to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable Person provided from time to time by such Person.

Each of Parent and the Borrower hereby agrees, unless directed otherwise by the Administrative Agent or unless the electronic mail address referred to below has not been provided by the Administrative Agent to Parent and the Borrower, that it will, and will cause its Subsidiaries to, provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to the Loan Documents or to the Lenders under Section 5, including all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (a) is or relates to a Borrowing Request or a notice pursuant to Section 2.9, (b) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (c) provides notice of any Default or Event of Default under this Agreement or any other Loan Document or (d) is required to be delivered to satisfy any condition precedent to the effectiveness of this Agreement and/or any Borrowing or other extension of credit hereunder (all such nonexcluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium that is properly identified in a format acceptable to the Administrative Agent to an electronic mail address as directed by the Administrative Agent. In addition, Parent and the Borrower agree, and the Borrower agrees to cause its Subsidiaries, to continue to provide the Communications to the Administrative Agent or the Lenders, as the case may be, in the manner specified in the Loan Documents but only to the extent requested by the Administrative Agent.

Each of Parent and the Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders materials and/or information provided by, or on behalf of, the Borrower hereunder (collectively, the “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 wish to receive information and documentation that (x) is publicly available and (y) does not contain MNPI (collectively, “Public Lender Information”)) (each, a “Public Lender”). Each of Parent and the Borrower hereby agrees that (i) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word

 

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“PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Borrower Materials “PUBLIC”, the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as not containing any Private Lender Information (as defined below) (provided that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 9.12); (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated as “Public Investor”; and (iv) the Administrative Agent shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor”. Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC” unless the Borrower notifies the Administrative Agent promptly that any such document contains Private Lender Information: (A) the Loan Documents, (B) notification of changes in the terms of the Facility and (C) all information delivered pursuant to Section 5.1 and Section 5.2(a). “Private Lender Information” means any information and documentation that is not Public Lender Information.

Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to Communications that are not made available through the “Public Side Information” portion of the Platform and that may contain MNPI.

THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

The Administrative Agent agrees that the receipt of the Communications by the Administrative Agent at its electronic mail address set forth above shall constitute effective delivery of the Communications to the Administrative Agent for purposes of the Loan Documents. Each Lender agrees that receipt of notice to it (as provided in the next sentence) specifying that the Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees to notify the Administrative Agent in writing (including by electronic communication) from time to time of such Lender’s electronic mail address to which the foregoing notice may be sent by electronic transmission and that the foregoing notice may be sent to such e-mail address. Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.

 

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9.2 Waivers; Amendments.

(a) No failure or delay by the Administrative Agent or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Parent or the Borrower therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section 9.2, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default at the time.

(b) None of this Agreement, any other Loan Document or any provision hereunder or thereunder may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that, notwithstanding the foregoing, (x) solely with the written consent of each Lender directly and adversely affected thereby (but without the necessity of obtaining the consent of the Required Lenders, except for clause (1) below which shall also require the consent of the Required Lenders), any such agreement may:

(1) increase the Commitment of any Lender;

(2) reduce or forgive the principal amount of any Loan or reduce the rate of interest thereon, or reduce any fees or premiums payable hereunder (except in connection with the waiver of applicability of any post-Default increase in interest rates (which waiver shall be effective with the consent of the Required Lenders of each directly and adversely affected Facility));

(3) postpone the scheduled date of payment of the principal amount of any Loan or any interest thereon, or any fees or premiums payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Commitment; it being understood that the waiver of any Default, mandatory prepayment or mandatory reduction of Commitments shall not constitute a postponement of the scheduled date of payment of principal of any Loan or expiration of any Commitment of any Lender;

(4) impose additional restrictions on the ability of any Lender to assign any of its rights and obligations hereunder;

and (y) only with the written consent of each Lender, any such agreement may:

(1) change Section 2.20(b) or (c) in a manner that would alter the pro rata sharing of payments required thereby, or change the application of proceeds provision in any of Section 7.4 of this Agreement or any corresponding provision in any intercreditor agreement (including any Senior Pari Passu Intercreditor Agreement or Senior/Junior Intercreditor Agreement));

 

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(2) change any of the provisions of this Section 9.2 or the definition of “Required Lenders”, or any other provision hereof specifying the number or percentage of Lenders required to waive, amend or modify any rights hereunder or grant any consent hereunder; or

(3) except as otherwise expressly provided in Section 9.15 or in the Collateral Agreement, the Collateral Trust Agreement or the Guarantee Agreement, release all or substantially all of the Collateral or release Guarantors from their guarantee obligations under the Guarantee Agreement representing all or substantially all of the value of such guarantees, taken as a whole;

provided further, that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder in a manner adverse to the Administrative Agent without the prior written consent of the Administrative Agent.

(c) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the Administrative Agent and the Borrower, in their sole discretion and without the consent or approval of any other party, may amend, modify or supplement any provision of this Agreement or any other Loan Document to (i) amend, modify or supplement such provision or cure any ambiguity, omission, mistake, error, defect or inconsistency jointly identified by the Administrative Agent and the Borrower, and such amendment, modification or supplement shall become effective without any further action or consent of any other party to any Loan Documents if the same is not objected to in writing by the Required Lenders within five Business Days following receipt of notice thereof (provided that, if the Required Lenders make such objection in writing, such amendment, modification or supplement shall not become effective without the consent of the Required Lenders), and (ii) to permit additional affiliates of the Borrower to guarantee the Obligations and/or provide Collateral therefor. Such amendments shall become effective without any further action or consent of any other party to any Loan Document.

(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, no Lender consent is required to effect any amendment or supplement to any Senior Pari Passu Intercreditor Agreement or any Senior/Junior Intercreditor Agreement or any other intercreditor arrangements or to any Security Documents entered into pursuant to this Agreement that is expressly contemplated by such Senior Pari Passu Intercreditor Agreement or such Senior/Junior Intercreditor Agreement or any such other intercreditor arrangements, as applicable (it being understood that any such amendment or supplement may make such other changes to the applicable intercreditor agreement as, in the good faith determination of the Administrative Agent, are required to effectuate the foregoing; provided that such other changes are not adverse, in any material respect, to the interests of the Lenders); provided, further, that no such agreement shall directly and adversely amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder or under any other Loan Document without the prior written consent of the Administrative Agent.

(e) [Reserved].

(f) Notwithstanding anything to the contrary contained herein or in any other Loan Document, this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (and no other party to this Agreement) (i) to add one or more additional credit facilities to this Agreement and to permit the extensions of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share in the

 

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benefits of this Agreement and the other Loan Documents with the Loans and the accrued interest and fees in respect thereof and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders as conclusively determined by the Administrative Agent in consultation with the Borrower.

(g) Notwithstanding anything to the contrary contained herein or in any other Loan Document, guarantees, collateral security documents and related documents executed by Subsidiaries in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be, together with this Agreement, amended and waived with the consent of the Administrative Agent at the request of the Borrower without the need to obtain the consent of any other Lender if such amendment or waiver is delivered in order (i) to comply with local Requirements of Law or advice of local counsel, (ii) to cure ambiguities or defects or (iii) to cause such guarantee, collateral security document or other document to be consistent with this Agreement or any other Loan Documents. In addition, if the Administrative Agent and the Borrower shall have jointly identified an obvious error or any error or omission of a technical nature in this Agreement or any other Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend such provision without further action or consent by any other party; provided that the Required Lenders shall not have objected to such amendment within five Business Days after receiving a copy thereof.

9.3 Expenses; Indemnity; Damage Waiver.

(a) The Borrower shall pay (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arrangers and their respective Affiliates, including the reasonable fees, disbursements and other charges of legal counsel for the aforementioned parties, in connection with the syndication of the credit facilities provided for herein, the preparation and administration of this Agreement or any amendments, modifications or waivers of the provisions hereof and (ii) all out-of-pocket expenses of the Administrative Agent or any Lender or their respective Affiliates, including the fees, charges and disbursements of legal counsel for the Administrative Agent or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this Section 9.3(a), including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans; provided that the Borrower’s obligations under this Section 9.3(a) for fees and expenses of legal counsel shall be limited to fees and expenses of (x) one primary outside legal counsel for all Persons described in clauses (i) and (ii) above, taken as a whole, (y) in the case of any actual or perceived conflict of interest, one outside legal counsel for each group of affected Persons similarly situated, taken as a whole, in each appropriate jurisdiction and, if reasonably necessary, one firm of regulatory counsel in each appropriate jurisdiction and (z) if necessary, one regulatory counsel and one local or foreign legal counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions).

(b) The Borrower shall indemnify the Administrative Agent, each other Agent, each Arranger, each institution listed as a bookrunner or manager on the cover page hereof, 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, costs and related expenses (including the reasonable out-of-pocket fees, charges and disbursements of (i) one primary outside legal counsel to the Indemnitees, taken as a whole, (ii) in the case of any actual or perceived conflict of interest, one additional outside legal counsel for each group of affected Indemnitees similarly situated, taken as a whole, in each appropriate jurisdiction and, if reasonably necessary, one firm of regulatory counsel in each appropriate jurisdiction and (iii) if necessary, one regulatory counsel and one local or foreign legal counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions)), which may at any time be imposed on, incurred by or asserted or awarded against any such Indemnitee arising out of, in connection with, or as a result of (w) the execution or delivery of this

 

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Agreement or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the Transactions or any other transactions contemplated hereby, (x) any Loan or the use of the proceeds therefrom, (y) 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 relating to the Borrower or any of its Subsidiaries (including any predecessor entities), or (z) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto and whether or not such claim, litigation, investigation or proceeding is brought by Parent, the Borrower or any of their respective Affiliates, their respective creditors or any other Person; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (1) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or its Related Parties or a material breach of this Agreement or any other Loan Document by such Indemnitee or its Related Parties, (2) arise out of any claim, litigation, investigation or proceeding that does not involve an act or omission by the Borrower or any of its Subsidiaries and that is brought by an Indemnitee against any other Indemnitee (provided that in the event of such a claim, litigation, investigation or proceeding involving a claim or proceeding brought against any Agent or Arranger (in either case, in its capacity as such) by other Indemnitees, such Agent or Arranger, as the case may be (in its capacity as such), shall be entitled (subject to the other limitations and exceptions set forth above) to the benefit of the indemnities set forth above), (3) arise from any settlement entered into by any Indemnitee or any of its Related Parties in connection with the foregoing without the Borrower’s prior written consent (such consent not to be unreasonably withheld or delayed), or (4) are in respect of indemnification payments made pursuant to Section 8.7, to the extent the Borrower would not have been or was not required to make such indemnification payments directly pursuant to the provisions of this Section 9.3(b). This Section 9.3(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc., arising from any non-Tax claim.

(c) To the extent permitted by applicable law, none of Parent, the Borrower or any Indemnitee shall assert, and each of Parent, the Borrower and each Indemnitee hereby waives, any claim against Parent, the Borrower or any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) (whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement) arising out of, in connection with, as a result of, or in any way related to, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and, to the extent permitted by applicable law, Parent and the Borrower and each Indemnitee hereby waive, release and agree not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor; provided that nothing contained in this paragraph shall limit the obligations of the Borrower under Section 9.3(b) in respect of any such damages claimed against the Indemnitees by Persons other than Indemnitees.

(d) All amounts due under this Section 9.3 shall be payable not later than 30 days after written demand therefor.

(e) Notwithstanding the foregoing, each Indemnitee shall be obligated to refund and return all amounts paid to such Indemnitee for fees, expenses or damages to the extent such Indemnitee is not entitled to payment of such amounts in accordance with the terms hereof, as determined by a final, non-appealable judgment of a court of competent jurisdiction.

 

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9.4 Successors and Assigns.

(a) 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 (i) except as otherwise expressly provided in Section 6.2, the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section 9.4. 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 paragraph (c) of this Section 9.4) and, to the extent expressly contemplated hereby, the Agents and Arrangers and the Related Parties of each of the Agents, Arrangers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

(b) (i) Subject to the conditions set forth in paragraph (b)(ii) of this Section 9.4, any Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (each such consent not to be unreasonably withheld, delayed or conditioned) of:

(A) the Borrower; provided that no consent of the Borrower shall be required (i) for an assignment to a Lender, an Affiliate of a Lender or an Approved Fund or a Purchasing Borrower Party (subject to Section 9.4(g)) or, if a Specified Event of Default has occurred and is continuing, any other Eligible Assignee and (ii) for any assignment during the primary syndication of the Loans to Persons identified to, and approved by, the Borrower prior to the date hereof; provided, further, that (x) the Borrower shall be deemed to have consented to any such assignment unless the Borrower shall have objected thereto by written notice to the Administrative Agent not later than the tenth Business Day following the date a written request for such consent is received and (y) the withholding of consent by the Borrower to any assignment to any Disqualified Lender shall be deemed reasonable (for the avoidance of doubt, it being understood and agreed that the Administrative Agent shall not have any responsibility or obligation to determine or notify the Borrower with respect to whether any Lender or potential Lender is a Disqualified Lender and the Administrative Agent shall have no liability with respect to any assignment made to a Disqualified Lender); and

(B) the Administrative Agent.

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

(A) except in the case of an assignment of the entire remaining amount of the assigning Lender’s Loans or Commitments, the amount of the Loans or Commitments 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) shall not be less than $1.0 million unless each of the Borrower and the Administrative Agent otherwise consent; provided that no such consent of the Borrower shall be required if a Specified Event of Default has occurred and is continuing;

 

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(B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;

(C) the parties to each assignment shall (1) execute and deliver to the Administrative Agent via an electronic settlement system acceptable to the Administrative Agent or (2) if previously agreed with the Administrative Agent, manually execute and deliver to the Administrative Agent an Assignment and Assumption, in each case together with (unless waived by the Administrative Agent in its sole discretion) a processing and recordation fee of $3,500 (treating, for purposes of such fee, multiple, simultaneous assignments by or to two or more Approved Funds as a single assignment);

(D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about Parent, the Borrower, the Loan Parties and their related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws and any applicable tax forms; and

(E) any assignment of any Loans to a Purchasing Borrower Party or Affiliated Lender shall be subject to the requirements of Sections 9.4(e) through (h), as applicable, and, in the case of Purchasing Borrower Parties, with respect to Dutch Auctions, Section 2.12(f).

(iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section 9.4, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits, and subject to the obligations, of Sections 2.17, 2.18, 2.19 and 9.3). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 9.4 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section 9.4.

(iv) The Administrative Agent, acting for this purpose as an agent of the Borrower, shall maintain at one of its offices in the United States a copy of each Assignment and Assumption and each Affiliated Lender Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount (and related interest 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 absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

 

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(v) Upon its receipt of a duly completed Assignment and Assumption or Affiliated Lender Assignment and Assumption, in each case executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless such assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section 9.4 and any written consent to such assignment required by paragraph (b) of this Section 9.4, the Administrative Agent shall accept such Assignment and Assumption or Affiliated Lender Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.8, 2.20(d) or 8.7, the Administrative Agent shall have no obligation to accept such Assignment and Assumption or Affiliated Lender Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.

(c) (i) Any Lender may, without the consent of or notice to the Borrower or the Administrative Agent, sell participations to one or more banks or other entities (other than any natural Person (or a holding company, investment vehicle or trust for, or owned and operated by or for the primary benefit of, a natural Person) or any Disqualified Lender) (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in subclauses (1) through (3) of clause (x) of Section 9.2(b) or subclause (1) of clause (y) of Section 9.2(b) that adversely affects the Participant. The Borrower agrees that, subject to paragraph (c)(ii) and (c)(iii) of this Section 9.4, each Participant shall be entitled to the benefits of Sections 2.17, 2.18 and 2.19 (and subject to the requirements and limitations of such Sections, including the requirements under Section 2.19(e) (it being understood that the documentation required under Section 2.19(e) shall be delivered solely to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section 9.4. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 9.8 as though it were a Lender; provided that such Participant shall be subject to Section 2.20(c) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and related interest amounts) of each Participant’s interest in the Loans or other obligations under this Agreement or any other Loan Document (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) except to the extent that such disclosure is necessary to establish that such Commitment, Loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and each Lender shall treat each Person whose name is recorded in such Lender’s Participant

 

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Register as the owner of such participation for all purposes of this Agreement, including payments of interest and principal, notwithstanding any notice to the contrary. The portion of the Participant Register relating to any Participant requesting payment from the Borrower under the Loan Documents shall be made available to the Borrower upon reasonable request. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(ii) A Participant shall not be entitled to receive any greater payment under Section 2.17, 2.18 or 2.19, with respect to any participation sold to such Participant, than its participating Lender would have been entitled to receive absent such participation (except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired such participation).

(iii) A Participant shall be subject to the provisions of Section 2.21 as if it were an assignee under paragraph (b) of this Section 9.4.

(iv) Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.21(b) with respect to any Participant.

(v) No participation may be sold to an Affiliated Lender, Defaulting Lender, Disqualified Lender or any Purchasing Borrower Party.

(d) Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or other central bank, and this Section 9.4 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(e) Notwithstanding anything to the contrary contained herein, any Lender may assign all or any portion of its Loans hereunder to any Person who, after giving effect to such assignment, would be an Affiliated Lender; provided that:

(i) the assigning Lender and the Affiliated Lender purchasing such Lender’s Loans, as applicable, shall execute and deliver to the Administrative Agent an Affiliated Lender Assignment and Assumption in lieu of an Assignment and Assumption;

(ii) at the time of such assignment and after giving effect to such assignment, the Affiliated Lenders shall not, in the aggregate, hold Loans with an aggregate principal amount in excess of 25.0% of the principal amount of all Loans then outstanding; and

(iii) the applicable Affiliated Lender Assignment and Assumption shall include a customary “big boy” representation from the assignor or assignee, as the case may be (it being agreed that no Affiliated Lender shall be required to make a representation that, as of the date of any such purchase or assignment, it is not in possession of any MNPI with respect to Parent, the Borrower, their respective Subsidiaries or their respective securities).

To the extent not previously disclosed to the Administrative Agent, the Borrower shall, upon reasonable request of the Administrative Agent (but not more frequently than once per calendar quarter), report to the Administrative Agent the amount of Loans held by Affiliated Lenders and the identity of such holders.

 

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(f) Notwithstanding anything in Section 9.2 or the definition of “Required Lenders” to the contrary, for purposes of determining whether the Required Lenders have (but, for the avoidance of doubt, not for purposes of determining whether all Lenders, or all affected Lenders, have) (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document or (iii) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document (collectively, “Required Lender Consent Items”), an Affiliated Lender shall be deemed to have voted its interest as a Lender in the same proportion as the allocation of voting with respect to such matter by Lenders who are not Affiliated Lenders, unless the result of such Required Lender Consent Item would reasonably be expected to deprive such Affiliated Lender of its pro rata share (compared to Lenders which are not Affiliated Lenders) of any payments to which such Affiliated Lender is entitled under the Loan Documents without such Affiliated Lender providing its consent or such Affiliated Lender is otherwise adversely affected thereby compared to Lenders which are not Affiliated Lenders (in which case for purposes of such vote such Affiliated Lender shall have the same voting rights as other Lenders which are not Affiliated Lenders).

No Affiliated Lender shall have any right to make or bring (or participate in, other than as a passive participant in or recipient of its pro rata benefits of) any claim, in its capacity as a Lender, against the Administrative Agent or any other Lender with respect to any duties or obligations or alleged duties or obligations of such Agent or any other such Lender under the Loan Documents in the absence, with respect to any such Person, of the gross negligence, bad faith or willful misconduct by such Person and its Related Parties (as determined by a court of competent jurisdiction by final and nonappealable judgment), except with respect to any claims that the Administrative Agent or any other such Lender is treating such Affiliated Lender, in its capacity as a Lender, in a disproportionate manner relative to the other Lenders.

Additionally, the Loan Parties and each Affiliated Lender hereby agree that each Affiliated Lender Assignment and Assumption by an Affiliated Lender shall provide a confirmation that, if a case under any Bankruptcy Law is commenced against any Loan Party, such Loan Party shall seek (and each Affiliated Lender shall consent) to provide that the vote of any Affiliated Lender (in its capacity as a Lender) with respect to any plan of reorganization of such Loan Party shall not be counted except that such Affiliated Lender’s vote (in its capacity as a Lender) may be counted to the extent any such plan of reorganization proposes to treat the Obligations or claims held by such Affiliated Lender in a manner that is less favorable to such Affiliated Lender than the proposed treatment of the Loans or claims held by Lenders that are not Affiliates of the Borrower.

(g) Notwithstanding anything else to the contrary contained in this Agreement, any Lender may assign all or a portion of its Loans to any Purchasing Borrower Party in accordance with Section 9.4(b); provided that:

(i) the assigning Lender and the Purchasing Borrower Party purchasing such Lender’s Loans, as applicable, shall execute and deliver to the Administrative Agent an Affiliated Lender Assignment and Assumption in lieu of an Assignment and Assumption;

(ii) such assignment shall be made (x) pursuant to a Dutch Auction open to all Lenders on a pro rata basis pursuant to the Dutch Auction Procedures set forth in Section 2.12(f) or (y) by way of an open market purchase;

(iii) any Loans assigned to any Purchasing Borrower Party shall be automatically and permanently cancelled upon the effectiveness of such assignment and will thereafter no longer be outstanding for any purpose hereunder;

 

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(iv) immediately after giving effect to any such purchase, no Default or Event of Default shall exist;

(v) the applicable Affiliated Lender Assignment and Assumption shall include a customary “big boy” representation from each of the Purchasing Borrower Party and the assignee or assignor, as the case may be (it being agreed that no Purchasing Borrower Party shall be required to make a representation that, as of the date of any such purchase or assignment, it is not in possession of any MNPI with respect to Parent, the Borrower, their respective Subsidiaries or their respective securities); and

(vi) the aggregate outstanding principal amount of the Loans shall be deemed reduced by the full par value of the aggregate principal amount of the Loans purchased pursuant to this Section 9.4(g) and each principal repayment installment with respect to the Loans shall be reduced pro rata by the aggregate principal amount of Loans purchased.

(h) Notwithstanding anything to the contrary contained herein, no Affiliated Lender nor any Purchasing Borrower Party shall have any right (in their capacity as a Lender) to (i) attend (including by telephone) any meeting or discussions (or portion thereof) attended solely by the Administrative Agent and any Lenders or (ii) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among Administrative Agent and one or more Lenders, except to the extent such information or materials have been made available to the Borrower or its representatives (and in any case, other than the right to receive notices of prepayments and other administrative notices in respect of its Loans required to be delivered to Lenders pursuant to this Agreement).

9.5 Survival. All covenants, agreements, representations and warranties made by the Borrower herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid. The provisions of Sections 2.17, 2.18, 2.19 and 9.3 and Section 8 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans or the termination of this Agreement or any provision hereof.

9.6 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.1, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission (e.g., “PDF” or “TIFF”) shall be effective as delivery of a manually executed counterpart of this Agreement.

 

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

9.8 Right of Setoff. If an Event of Default pursuant to Section 7.1(a), (g) or (h) (in the case of clauses (g) or (h), with respect to the Borrower only) shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time with the prior written consent of the Administrative Agent, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) (excluding any Exempt Account) at any time held and other obligations at any time owing by such Lender to or for the credit or the account of the Borrower against any of and all the obligations of the Borrower now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of each Lender under this Section 9.8 are in addition to other rights and remedies (including other rights of setoff) which such Lender may have. Each Lender shall notify the Administrative Agent and the Borrower promptly after any such setoff.

9.9 Governing Law; Jurisdiction; Consent to Service of Process.

(a) This Agreement and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement and the transactions contemplated hereby shall be construed in accordance with and governed by the law of the State of New York; provided that (i) the interpretation of “Material Adverse Effect on Sprint” and whether a “Material Adverse Effect on Sprint” has occurred, (ii) the accuracy of any Business Combination Agreement Representations and whether as a result thereof the Borrower (or any of the Borrower’s subsidiaries) has the right under the Business Combination Agreement not to consummate the Acquisition as a result of such representations in the Business Combination Agreement being inaccurate and (iii) whether the Acquisition has been consummated in accordance with the terms of the Business Combination Agreement, shall be governed by, and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of laws provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

(b) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York sitting in New York County, 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 hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Notwithstanding the foregoing, any party hereto may bring an action or proceeding in other jurisdictions in respect of its rights under any Security Document governed by a law other than the laws of the State of New York or, with respect to the Collateral, in a jurisdiction where such Collateral is located.

(c) Each of the parties hereto irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (b) of this Section 9.9. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

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(d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.1. Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

9.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

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

9.12 Confidentiality.

(a) Each of the Administrative Agent, the Syndication Agents and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its and its Affiliates’ employees, legal counsel, independent auditors, professionals and other experts or agents (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), (ii) to the extent requested or demanded by any regulatory authority claiming jurisdiction over it or its Affiliates (provided that such Agent or Lender, as applicable, shall notify the Borrower as soon as practicable in the event of any such disclosure by such Person (except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising routine examination or regulatory authority) to the extent practicable and not prohibited by applicable law, rule or regulation), (iii) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law or compulsory legal process based on the advice of counsel (provided that such Agent or Lender, as applicable, shall notify the Borrower promptly thereof prior to any such disclosure by such Person (except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising routine examination or regulatory authority) to the extent practicable and not prohibited by applicable law, rule or regulation), (iv) to any other party to this Agreement, (v) as reasonably determined to be necessary, 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, (vi) to bona fide or potential assignee, transferee or participant in connection with the contemplated assignment, transfer or participation of any Loans or any participations therein or by any direct or indirect contractual counterparties (or the professional advisors thereto) to any swap or derivative transaction relating to the Borrower and its obligations, but in any event not to any Disqualified Lender (provided that such assignees, transferees, participants, counterparties and advisors are advised of and agree to be bound by either the provisions of this Section 9.12 or other provisions at least as restrictive as this Section 9.12), (vii) to the extent that such information is

 

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independently developed by it, (viii) with the prior written consent of the Borrower, (ix) to the extent such Information (A) becomes available other than as a result of a breach of this Section 9.12 to the Administrative Agent, the Syndication Agents or any Lender on a nonconfidential basis from a source other than the Borrower or any of its Affiliates or (B) to the extent that such information becomes publicly available other than by reason of improper disclosure by the Administrative Agent or any Lender or any of their Affiliates or any related parties thereto in violation of any confidentiality obligations owing to Parent, the Borrower, Sprint or any of their respective affiliates, (x) on a confidential basis to (1) any rating agency in connection with rating Parent, the Borrower or their Subsidiaries or the Facility, (2) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Facility or (3) market data collectors, similar services, providers to the lending industry and service providers to the Administrative Agent in connection with the administration and management of this Agreement and the Loan Documents, (xi) to the extent necessary or customary for inclusion in league table measurement, and (xii) for purposes of establishing a “due diligence” defense. For the purposes of this Section 9.12, “Information” means all information received from Parent, the Borrower or any of their Affiliates relating to Parent or the Borrower or any of their Subsidiaries or businesses, other than any such information that is available other than as a result of a breach of this Section 9.12 to the Administrative Agent, the Syndication Agents or any Lender on a nonconfidential basis prior to disclosure by the Borrower; provided that, in the case of information received from the Borrower after the date hereof, such information is clearly identified on or before the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 9.12 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information which shall in no event be less than commercially reasonable care.

(b) EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 9.12(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MNPI, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL, STATE, PROVINCIAL AND TERRITORIAL SECURITIES LAWS.

(c) ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MNPI. ACCORDINGLY, EACH LENDER REPRESENTS AND WARRANTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.

9.13 PATRIOT Act; Know Your Customer Checks. Each Lender that is subject to the requirements of the PATRIOT Act and the Beneficial Ownership Regulation hereby notifies each Loan Party that pursuant to the requirements of the PATRIOT Act and the Beneficial Ownership Regulation, it may be 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 to identify each Loan Party in accordance with the PATRIOT Act and the Beneficial Ownership Regulation.

 

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9.14 Acknowledgment and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and

(b) the effects of any Bail-In Action on any such liability, including, if applicable:

(i) a reduction in full or in part or cancellation of any such liability;

(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.

9.15 Release of Liens and Guarantees; Secured Parties.

(a) In the event that any Loan Party conveys, sells, leases (under a financing lease), assigns, transfers or otherwise disposes of all or any portion of any of the Capital Stock or assets of any Loan Party to a Person that is not (and is not required hereunder to become) a Loan Party in a transaction permitted under this Agreement (including the sale, transfer, conveyance or other disposal of any FCC Licenses, Spectrum or related property or assets to a Permitted Spectrum Financing Subsidiary in connection with the incurrence of Indebtedness by such Permitted Spectrum Financing Subsidiary permitted hereunder), or in the event that any SPV Holdco becomes an Unsecured SPV Holdco pursuant to an Unsecured SPV Holdco Election permitted hereunder, the Liens created by the Loan Documents in respect of such Capital Stock or assets (or, in the case of an SPV Holdco, the Liens created by the Loan Documents in respect of the assets of such SPV Holdco) shall automatically terminate and be released, without the requirement for any further action by any Person and the Administrative Agent and the Collateral Trustee shall, without recourse or warranty, promptly (and the Lenders hereby authorize the Administrative Agent and the Collateral Trustee to) take such action and execute any such documents as may be reasonably requested by Parent or the Borrower and at the Borrower’s expense to further document and evidence such termination and release of Liens created by any Loan Document in respect of such Capital Stock or assets. In the event that any Capital Stock or other asset previously constituting Collateral has become or is becoming an Excluded Asset, then, at the request of Parent or the Borrower, the Collateral Trustee agrees, without recourse or warranty, to promptly (and the Lenders hereby authorize the Collateral Trustee to) take such action and execute such documents (including mortgage release documents) as may be reasonably requested by Parent or the Borrower and at the Borrower’s expense to terminate and release (or to further document and evidence the termination and release of) the Liens created by any Security Document in respect of such assets upon it becoming an Excluded Asset. In the case of a transaction permitted under this Agreement the result of which is that a Loan Party would cease to be a Restricted Subsidiary or would become an Excluded Subsidiary (or in case any Restricted Subsidiary otherwise becomes an Excluded Subsidiary), the Guarantee obligations created by the Loan Documents in respect of such Loan Party (and all security interests granted by such Guarantor under the Loan Documents) shall automatically terminate and be released, without the requirement for any further action by any Person and

 

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the Administrative Agent and the Collateral Trustee shall promptly (and the Lenders hereby authorize the Administrative Agent and the Collateral Trustee to) take such action and execute any such documents as may be reasonably requested by Parent or the Borrower and at the Borrower’s expense to further document and evidence such termination and release of such security interests and such Loan Party’s Guarantee obligations in respect of the Obligations (including its Guarantee obligations under the Guarantee Agreement); provided that any Guarantor that ceases to constitute a Loan Party or becomes an Excluded Subsidiary solely by virtue of no longer being a Wholly Owned Subsidiary (a “Partially Disposed Subsidiary”) shall only be released from its Guarantee to the extent that the other person taking an equity interest in such Partially Disposed Subsidiary is not an Affiliate of the Borrower that is controlled by Parent, DT or any of their respective Subsidiaries or an employee of any of the foregoing. In connection with any request by the Parent or the Borrower for the Administrative Agent or the Collateral Trustee to take any action or execute any documents pursuant to this Section 9.15, the Parent and the Borrower shall deliver to the Administrative Agent and the Collateral Trustee an officer’s certificate of the Parent and the Borrower certifying that any such transaction has been consummated in compliance with this Agreement and the other Loan Documents, and such releases are permitted hereunder. Any representation, warranty or covenant contained in any Loan Document relating to any such Capital Stock, asset or Subsidiary of any Loan Party shall no longer be deemed to be made with respect thereto once such Capital Stock or asset or Subsidiary is so conveyed, sold, leased, assigned, transferred or disposed of to a Person that is not (and is not required hereunder to become) a Loan Party in a transaction permitted under this Agreement.

(b) Upon the payment in full of the Obligations (excluding Designated Hedging Obligations, Designated L/C Facilities Obligations, Cash Management Agreements and contingent reimbursement and indemnification obligations, in each case, that are not due and payable) and the termination or expiration of the Commitments, all Liens created by the Loan Documents shall automatically terminate and be released, without the requirement for any further action by any Person and the Administrative Agent and the Collateral Trustee shall promptly (and the Lenders hereby authorize the Administrative Agent and the Collateral Trustee to) take such action and execute any such documents as may be reasonably requested by Parent or the Borrower and at the Borrower’s expense to further document and evidence such termination and release of Liens created by the Loan Documents (including by way of assignment), and the Guarantee obligations created by the Loan Documents in respect of the Guarantors shall automatically terminate and be released, without the requirement for any further action by any Person and the Administrative Agent shall promptly (and the Lenders hereby authorize the Administrative Agent to) take such action and execute any such documents as may be reasonably requested by Parent or the Borrower and at the Borrower’s expense to further document and evidence such termination and release of the Guarantors’ Guarantee obligations in respect of the Obligations (including the Guarantee obligations under the Guarantee Agreement). Upon request by the Administrative Agent or the Collateral Trustee at any time, the Required Lenders will confirm in writing the Collateral Trustee’s authority to release or subordinate its interest in particular types or items of property, or to release any Guarantor from its obligations under the Guarantee pursuant to this Section 9.15.

(c) Except with respect to the exercise of setoff rights of any Lender in accordance with Section 9.8 or with respect to a Lender’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Loan Documents may be exercised solely by the Collateral Trustee or the Administrative Agent on behalf of the Secured Parties in accordance with the terms thereof. In the event of a foreclosure by the Collateral Trustee on any of the Collateral pursuant to a public or private sale or other disposition, the Collateral Trustee, the Administrative Agent or any Lender may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Collateral Trustee, as agent for and representative of the Secured Parties (but not any Lender or Lenders in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any collateral payable by the Collateral Trustee on behalf of the Secured Parties at such sale or other disposition.

 

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(d) In furtherance of the foregoing and not in limitation thereof, no Designated L/C Facility, Hedge Agreement or Cash Management Agreement, the obligations under which constitute Designated L/C Facilities Obligations, Designated Hedging Obligations or Cash Management Obligations, as applicable, will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party under this Agreement or any other Loan Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such Designated L/C Facility, Designated Hedge Agreement or Cash Management Agreement shall be deemed to have appointed the Administrative Agent to serve as administrative agent, and the Collateral Trustee to serve as collateral trustee, under the Loan Documents and agreed to be bound by the Loan Documents as a Secured party thereunder, subject to the limitations set forth in this paragraph.

9.16 No Fiduciary Duty. Each Agent, each Arranger and each Lender and their respective Affiliates (collectively, solely for purposes of this paragraph, the “Lender Parties”) may have economic interests that conflict with those of the Loan Parties, their stockholders and/or their affiliates. Each Loan Party agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender Parties, on the one hand, and such Loan Party, its stockholders or its affiliates, on the other. The Loan Parties acknowledge and agree that (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lender Parties, on the one hand, and the Loan Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender Parties have assumed any advisory or fiduciary responsibility in favor of any Loan Party, its stockholders or its affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender Parties have advised, are currently advising or will advise any Loan Party, its stockholders or its Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y) the Lender Parties are acting solely as principals, and not as the agents or fiduciaries of any Loan Party, its management, stockholders, creditors or any other Person. Each Loan Party acknowledges and agrees that it has consulted its own legal and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto. Each Loan Party agrees that it will not claim that the Lender Parties have rendered advisory services of any nature or respect, or owe a fiduciary or similar duty to such Loan Party, in connection with such transaction or the process leading thereto.

9.17 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 “Maximum Rate”). If any Agent or any Lender shall receive interest in an amount that exceeds the 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 an Agent or 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.

 

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9.18 Intercreditor Agreements. The Administrative Agent and the Collateral Trustee are authorized and directed to, to the extent required or permitted by the terms of the Loan Documents, (x) enter into (i) any Security Document, (ii) the Collateral Trust Agreement, (iii) any other Senior Pari Passu Intercreditor Agreement, (iv) any Senior/Junior Intercreditor Agreement or (v) any other intercreditor, subordination or collateral trust agreement, in each case, contemplated hereunder (including, without limitation, any Intercreditor Agreement or other intercreditor, subordination or collateral trust agreement contemplated by Section 6.1) (each, an “Additional Agreement”) and (y) make or consent to any filings or take any other actions (including directing the Collateral Trustee under the Collateral Trust Agreement) in connection therewith (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, such agreements in connection with the incurrence by any Loan Party of any Indebtedness of such Loan Party that is permitted to be secured pursuant to Section 6.1, in order to permit such Indebtedness to be secured by a valid, perfected lien on the Collateral (with such priority as may be designated by such Loan Party, to the extent such priority is permitted by the Loan Documents)), and the parties hereto acknowledge that any Additional Agreement contemplated hereunder, any Security Document, and any consent, filing or other action will be binding upon them. Each of the Lenders (including in its capacities as a Qualified Counterparty) and each of the Secured Parties (a) hereby agrees that it will be bound by and will take no actions contrary to the provisions of any Additional Agreement contemplated hereunder (if entered into) and (b) hereby authorizes and instructs the Administrative Agent and the Collateral Trustee to enter into any Additional Agreement contemplated hereunder or Security Document (and any amendments, amendments and restatements, restatements or waivers of or supplements to or other modifications to, such agreements in connection with the incurrence by any Loan Party of any Indebtedness of such Loan Party that is permitted to be secured pursuant to Section 6.1, in order to permit such Indebtedness to be secured by a valid, perfected lien on the Collateral (with such priority as may be designated by such Loan Party, to the extent such priority is permitted by the Loan Documents)), and to subject the Liens on the Collateral securing the Obligations to the provisions thereof. The Secured Parties agree that in the event of a conflict between the Loan Documents (other than any Additional Agreement) and the Additional Agreement, the Additional Agreement shall control. References in any Loan Document relating to the delivery of collateral to or collateral held by the Administrative Agent (or references of similar effect), shall as applicable be deemed to be references to the Collateral Trustee or such other Person designated by the Administrative Agent to hold the Liens securing the Obligations pursuant to any Additional Agreement, as applicable.

9.19 Conflicts. Except as set forth in Section 9.18 above, in the event of any conflict between the terms of this Agreement and the terms of any other Loan Document, the terms of this Agreement shall control.

9.20 Execution of Assignments and Certain Other Documents. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries 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, physical delivery thereof 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, 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; provided that, in respect of documents to be signed by entities established within the European Union, the Electronic Signature qualifies as a “qualified electronic signature” within the meaning of the Regulation (EU) n°910/2014 of the European parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transaction in the internal market as amended from time to time and provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior written consent.

 

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9.21 Acknowledgment Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any Hedge Agreement or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):

(a) In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.

(b) As used in this Section 9.21, the following terms have the following meanings:

BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).

(signature pages follow)

 

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

 

BORROWER:

 

T-MOBILE USA, INC.

/s/ J. Braxton Carter

Name: J. Braxton Carter

Title:   Executive Vice President and

            Chief Financial Officer

 

[Signature Page to Bridge Credit Agreement]


ADMINISTRATIVE AGENT:

 

GOLDMAN SACHS BANK USA

/s/ Robert Ehudin

Name: Robert Ehudin
Title:   Authorized Signatory

 

[Signature Page to Bridge Credit Agreement]


LENDERS:

 

BARCLAYS BANK PLC

/s/ Martin Corrigan

Name: Martin Corrigan
Title:   Vice President

 

[Signature Page to Bridge Credit Agreement]


CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH

/s/ William O’Daly

Name: William O’Daly
Title:   Authorized Signatory

/s/ D. Andrew Maletta

Name: Andrew Maletta
Title:   Authorized Signatory

 

[Signature Page to Bridge Credit Agreement]


DEUTSCHE BANK AG CAYMAN ISLANDS BRANCH

/s/ Michael Strobel

Name: Michael Strobel
Title:   Vice President

/s/ Alicia Schug

Name: Alicia Schug
Title:   Vice President

 

[Signature Page to Bridge Credit Agreement]


GOLDMAN SACHS BANK USA

/s/ Robert Ehudin

Name: Robert Ehudin
Title:   Authorized Signatory

 

[Signature Page to Bridge Credit Agreement]


MORGAN STANLEY SENIOR FUNDING, INC.

/s/ Andrew Earls

Name: Andrew Earls
Title:   Authorized Signatory

 

MORGAN STANLEY BANK, N.A.

/s/ Andrew Earls

Name: Andrew Earls
Title:   Authorized Signatory

 

[Signature Page to Bridge Credit Agreement]


ROYAL BANK OF CANADA

/s/ Kevin Quan

Name: Kevin Quan
Title:   Authorized Signatory

 

[Signature Page to Bridge Credit Agreement]


BNP PARIBAS

/s/ Christopher Sked

Name: Christopher Sked
Title:   Managing Director

/s/ Nicole Rodriguez

Name: Nicole Rodriguez
Title:   Director

 

[Signature Page to Bridge Credit Agreement]


COMMERZBANK AG, NEW YORK BRANCH

/s/ Mathew Ward

Name: Mathew Ward
Title:   Director

/s/ Robert Sullivan

Name: Robert Sullivan
Title:   Vice President

 

[Signature Page to Bridge Credit Agreement]


CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK

/s/ Gordon Yip

Name: Gordon Yip
Title:   Director

/s/ Rose Mary Perez

Name: Rose Mary Perez
Title:   Director

 

[Signature Page to Bridge Credit Agreement]


THE TORONTO-DOMINION BANK, NEW YORK BRANCH

/s/ Brian MacFarlane

Name: Brian MacFarlane
Title:   Authorized Signatory

 

[Signature Page to Bridge Credit Agreement]


WELLS FARGO BANK, NATIONAL ASSOCIATION

/s/ Monica Trautwein

Name: Monica Trautwein
Title:   Director

 

[Signature Page to Bridge Credit Agreement]


BANCO SANTANDER, S.A., NEW YORK BRANCH

/s/ Pablo Urgoiti

Name: Pablo Urgoiti
Title:   Managing Director

/s/ Rita Walz-Cuccioli

Name: Rita Walz-Cuccioli
Title:   Executive Director

 

[Signature Page to Bridge Credit Agreement]


SOCIETE GENERALE

/s/ Jonathan Logan

Name: Jonathan Logan
Title:   Director

 

[Signature Page to Bridge Credit Agreement]


TRUIST BANK

/s/ Mark Kelley

Name: Mark Kelley
Title:   Managing Director

 

[Signature Page to Bridge Credit Agreement]


NATIONAL WESTMINSTER BANK PLC

/s/ Richard Bradbury

Name: Richard Bradbury
Title:   Director

 

[Signature Page to Bridge Credit Agreement]


U.S. BANK NATIONAL ASSOCIATION

/s/ Daniel Damon

Name: Daniel Damon
Title:   Managing Director

 

[Signature Page to Bridge Credit Agreement]

EX-10.6

Exhibit 10.6

 

 

 

GUARANTEE AGREEMENT

dated as of April 1, 2020

among

T-MOBILE US, INC.,

T-MOBILE USA, INC.,

and THE OTHER GUARANTORS referred to herein

in favor of

GOLDMAN SACHS BANK USA,

as Administrative Agent

 

 

 


TABLE OF CONTENTS

 

SECTION 1. DEFINED TERMS

     2  

1.1.

 

Definitions

     2  

1.2.

 

Other Definitional Provisions

     3  

SECTION 2. GUARANTEE

     3  

2.1.

 

Guarantee

     3  

2.2.

 

Guarantee of Payment

     3  

2.3.

 

No Limitations, Etc.

     4  

2.4.

 

Reinstatement

     5  

2.5.

 

Agreement To Pay; Subrogation

     5  

2.6.

 

Information

     5  

2.7.

 

Keepwell

     5  

SECTION 3. INDEMNITY, SUBROGATION AND SUBORDINATION

     6  

3.1.

 

Indemnity and Subrogation

     6  

3.2.

 

Contribution and Subrogation

     6  

3.3.

 

Subordination

     6  

SECTION 4. MISCELLANEOUS

     6  

4.1.

 

Amendments in Writing

     6  

4.2.

 

Notices

     7  

4.3.

 

No Waiver by Course of Conduct; Cumulative Remedies

     7  

4.4.

 

Enforcement Expenses; Indemnification

     7  

4.5.

 

Successors and Assigns

     8  

4.6.

 

Right of Setoff

     8  

4.7.

 

Counterparts; Integration

     8  

4.8.

 

Severability

     9  

4.9.

 

Section Headings

     9  

4.10.

 

GOVERNING LAW

     9  

4.11.

 

Jurisdiction; Consent to Service of Process

     9  

4.12.

 

WAIVER OF JURY TRIAL

     10  

4.13.

 

Acknowledgments

     10  

4.14.

 

Additional Guarantors; Releases

     10  

4.15.

 

Successor Administrative Agent

     11  

4.16.

 

Execution of Assignments and Certain Other Documents

     11  

SCHEDULES

 

Schedule 1    Notice Addresses of Guarantors

ANNEXES

 

Annex 1    Assumption Agreement

 


GUARANTEE AGREEMENT

GUARANTEE AGREEMENT dated as of April 1, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”) made by T-MOBILE US, INC., a Delaware corporation (“Parent”), T- MOBILE USA, INC., a Delaware corporation (the “Borrower”) and certain other subsidiaries of Parent party hereto, in favor of GOLDMAN SACHS BANK USA, as administrative agent (together with its successors in such capacity, the “Administrative Agent”) for the Lenders from time to time party to the Bridge Term Loan Credit Agreement, dated as of the date hereof (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among the Borrower, the Lenders, the Administrative Agent, and for the other Secured Parties (as hereinafter defined).

W I T N E S E T H:

WHEREAS, Parent and the Borrower are members of an affiliated group of companies that includes each Guarantor;

WHEREAS, on the date hereof, the Borrower has entered into the Credit Agreement, pursuant to which the Lenders have severally agreed to make extensions of credit to or for the account of the Borrower, in each case subject to the terms and subject to the conditions set forth therein;

WHEREAS, in accordance with the Credit Agreement, it is contemplated that one or more of the Guarantors and other Group Members have entered into or may enter into one or more agreements with respect to Cash Management Obligations with one or more Qualified Counterparties;

WHEREAS, in accordance with the Credit Agreement, it is contemplated that one or more of the Guarantors and other Loan Parties have entered into or may enter into one or more Designated Hedge Agreements with one or more Qualified Counterparties;

WHEREAS, Parent, the Borrower and the other Guarantors will derive substantial direct and indirect benefit from the making of the extensions of credit under the Credit Agreement; and

WHEREAS, it is a condition precedent to the obligation of the Lenders to make their respective extensions of credit to the Borrower under the Credit Agreement, of certain Qualified Counterparties to enter into Designated Hedge Agreements or agreements with respect to Cash Management Obligations, that the Guarantors shall have executed and delivered this Agreement to the Administrative Agent for the ratable benefit of the Secured Parties.


NOW, THEREFORE, in consideration of the above premises the parties hereto hereby agree as follows:

SECTION 1. DEFINED TERMS

1.1. Definitions. The following terms shall have the following meanings:

Additional Guarantor”: as defined in Section 4.14(a).

Administrative Agent”: as defined in the preamble hereto.

Agreement”: as defined in the preamble hereto.

Assumption Agreement”: an Assumption Agreement in the form of Annex 1 hereto.

Borrower”: as defined in the preamble hereto.

Borrower Obligations”: the Obligations (as defined in the Credit Agreement) of the Borrower.

Claiming Guarantor”: as defined in Section 3.2.

Commodity Exchange Act”: the Commodity Exchange Act (7 U.S.C. § 1 et seq.) as amended from time to time, and any successor statute.

Contributing Guarantor”: as defined in Section 3.2.

Credit Agreement”: as defined in the preamble hereto.

Deposit Account”: as defined in the New York UCC

Discharge of Obligations”: the satisfaction or payment in full in cash of the Obligations (excluding contingent reimbursement and indemnification obligations, Secured Cash Management Obligations and obligations under Designated Hedge Agreements, in each case, that are not due and payable) and termination and expiration of the Commitments.

Electronic Signature”: any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.

Guarantor Obligations”: with respect to any Guarantor, all obligations and liabilities of such Guarantor which may arise under or in connection with this Agreement (including Section 2) or any other Loan Document or any Designated Hedge Agreement to which such Guarantor is a party or in connection with any Cash Management Services, in each case whether on account of guarantee obligations, Swap Obligations, Cash Management Obligations, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including all fees and disbursements of counsel to any Secured Party that are required to be paid by such Guarantor pursuant to the terms of this Agreement or any other Loan Document).

Guarantors”: with respect to the Obligations, the collective reference to (i) Parent (other than the Guarantor Obligations with respect to Parent), (ii) each Subsidiary of Parent (x) that is listed on the signature pages hereto under the caption “Guarantors” and (y) that becomes a party to this Agreement after the date hereof (in each case, other than the Guarantor Obligations with respect to such Subsidiary) and (iii) the Borrower (other than with respect to the Borrower Obligations).

 

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New York UCC”: the Uniform Commercial Code as from time to time in effect in the State of New York.

Obligations”: the collective reference to the Borrower Obligations and the Guarantor Obligations.

Parent”: as defined in the preamble hereto.

Person”: any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

Qualified ECP Guarantor”: as defined in Section 2.7.

Secured Parties”: collectively, the Administrative Agent, the Collateral Trustee, the Arrangers, the Lenders, each Qualified Counterparty and the Indemnitees.

1.2. Other Definitional Provisions. Except as otherwise expressly set forth herein, the rules of construction specified in Section 1.2 of the Credit Agreement also apply to this Agreement.

SECTION 2. GUARANTEE

2.1. Guarantee. Each Guarantor unconditionally guarantees, jointly with the other Guarantors and severally, as a primary obligor and not merely as a surety, the due and punctual payment and performance of the Obligations whether at stated maturity, upon acceleration or otherwise. Each Guarantor further agrees that the Obligations may be extended or renewed, in whole or in part, in accordance with the terms of the Loan Documents, without notice to or further assent from it, and that it will remain bound upon its guarantee notwithstanding any extension or renewal of any Obligation. Each Guarantor waives presentment to, demand of payment from and protest to the Borrower or any other Loan Party of any Obligation, and also waives notice of acceptance of its guarantee and notice of protest for nonpayment. Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the Loan Documents shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable Debtor Relief Laws (after giving effect to the right of contribution established in Section 3.2).

2.2. Guarantee of Payment. Each Guarantor further agrees that its guarantee hereunder constitutes a continuing, absolute and unconditional guarantee of payment when due whether at stated maturity, upon acceleration or otherwise and not of collection, and waives any right to require that any resort be had by the Administrative Agent or any other Secured Party to any security held for the payment of the Obligations or to any balance of any Deposit Account or credit on the books of the Administrative Agent or any other Secured Party in favor of the Borrower or any other person.

 

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2.3. No Limitations, Etc. (a) Except for termination of a Guarantor’s obligations hereunder, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Administrative Agent or any other Secured Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Loan Document in accordance with its terms or any other agreement, including with respect to any other Guarantor under this Agreement, (iii) the release of, or any impairment of or failure to perfect any Lien on or security interest in, any security held by the Administrative Agent or any other Secured Party for the Obligations or any of them, (iv) any default, failure or delay, willful or otherwise, in the performance of the Obligations, (v) any illegality, lack of validity or enforceability of any Obligation, (vi) any change in the corporate existence, structure or ownership of any Loan Party, or any insolvency, bankruptcy or reorganization of any Loan Party (other than any insolvency, bankruptcy or reorganization of such Guarantor), (vii) the existence of any claim, set-off or other rights that such Guarantor may have at any time against the Borrower, the Administrative Agent, any other Secured Party or any other person, whether in connection herewith, the other Loan Documents or any unrelated transactions or (viii) any other circumstances or any act or omission that may or might in any manner or to any extent vary the risk of such Guarantor or otherwise operate as a defense to or discharge of such Guarantor as a matter of law or equity (other than the payment in full of all the Obligations (or release of such Guarantor in accordance with the terms of the Loan Documents). Each Guarantor expressly authorizes the Administrative Agent to take and hold security for the payment and performance of the Obligations, to exchange, waive or release any or all such security (with or without consideration), to enforce or apply such security and direct the order and manner of any sale thereof in its sole discretion or to release or substitute any one or more other guarantors or obligors upon or in respect of the Obligations, all without affecting the obligations of any Guarantor hereunder.

(b) To the fullest extent permitted by applicable law, each Guarantor waives any defense based on or arising out of any defense of the Borrower or any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Borrower or any other Loan Party, other than the Discharge of Obligations or a release of guarantee in accordance with Section 4.14 hereof and Section 9.15 of the Credit Agreement. The Administrative Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with the Borrower or any other Loan Party or exercise any other right or remedy available to them against the Borrower or any other Loan Party, without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Discharge of Obligations has occurred. To the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against the Borrower or any other Loan Party, as the case may be, or any security.

 

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2.4. Reinstatement. Each Guarantor agrees that its guarantee hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by the Administrative Agent or any other Secured Party upon the bankruptcy or reorganization of the Borrower, any other Loan Party or otherwise.

2.5. Agreement To Pay; Subrogation. In furtherance of the foregoing and not in limitation of any other right that the Administrative Agent or any other Secured Party has at law or in equity against any Guarantor by virtue hereof, upon the failure of the Borrower or any other Loan Party to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration or otherwise, each Guarantor hereby promises to and will forthwith pay, or cause to be paid, to the Administrative Agent for distribution to the applicable Secured Parties in cash the amount of such unpaid Obligation. Upon payment by any Guarantor of any sums to the Administrative Agent as provided above, all rights of such Guarantor against the Borrower or any other Guarantor arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subject to Section 3.

2.6. Information. Each Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s and each other Loan Party’s financial condition and assets and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks that such Guarantor assumes and incurs hereunder, and agrees that neither the Administrative Agent nor any other Secured Party will have any duty to advise such Guarantor of information known to it or any of them regarding such circumstances or risks.

2.7. Keepwell. Each Qualified ECP Guarantor (as defined below) hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds or other support as may be needed from time to time by each other Loan Party hereunder to honor all of its obligations under this Agreement and the other Loan Documents in respect of Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 2.7 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 2.7, or otherwise under this Agreement, as it relates to such Loan Party, voidable under any Requirement of Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 2.7 shall remain in full force and effect until the Obligations shall have been indefeasibly paid in full. Each Qualified ECP Guarantor intends that this Section 2.7 constitute, and this Section 2.7 shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

For purposes of the foregoing, “Qualified ECP Guarantor” shall mean, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another person to qualify as an “eligible contract participant” at such time by entering into a letter of credit or keepwell, support or other agreement under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.

 

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SECTION 3. INDEMNITY, SUBROGATION AND SUBORDINATION

3.1. Indemnity and Subrogation. In addition to all such rights of indemnity and subrogation as the Guarantors may have under applicable law (but subject to Section 3.3), the Borrower agrees that (a) in the event a payment shall be made by any Guarantor under this Agreement, the Borrower shall indemnify such Guarantor for the full amount of such payment and such Guarantor shall be subrogated to the rights of the Person to whom such payment shall have been made to the extent of such payment and (b) in the event any assets of any Guarantor shall be sold pursuant to this Agreement or any other Loan Document to satisfy in whole or in part a claim of any Secured Party, the Borrower shall indemnify such Guarantor in an amount equal to the greater of the book value or the fair market value of the assets so sold.

3.2. Contribution and Subrogation. Each Guarantor (a “Contributing Guarantor”) agrees (subject to Section 3.3) that, in the event a payment shall be made by any other Guarantor hereunder in respect of any Obligation, or assets of any other Guarantor shall be sold pursuant to any Loan Document to satisfy any Obligation owed to any Secured Party, and such other Guarantor (the “Claiming Guarantor”) shall not have been fully indemnified by the Borrower as provided in Section 3.1, the Contributing Guarantor shall indemnify the Claiming Guarantor in an amount equal to (i) the amount of such payment or (ii) the greater of the book value or the fair market value of such assets, as the case may be, in each case multiplied by a fraction of which the numerator shall be the net worth of the Contributing Guarantor on the date hereof and the denominator shall be the aggregate net worth of all the Guarantors on the date hereof (or, in the case of any Guarantor becoming a party hereto pursuant to Section 4.14 hereof, the date of the supplement hereto executed and delivered by such Guarantor). Any Contributing Guarantor making any payment to a Claiming Guarantor pursuant to this Section 3.2 shall be subrogated to the rights of such Claiming Guarantor under Section 3.1 to the extent of such payment.

3.3. Subordination. Notwithstanding any provision of this Agreement to the contrary, all rights of the Guarantors under Sections 3.1 and 3.2 and all other rights of indemnity, contribution or subrogation under applicable law or otherwise shall be fully subordinated to the indefeasible payment in full in cash of Obligations. No failure on the part of the Borrower or any Guarantor to make the payments required by Sections 3.1 and 3.2 (or any other payments required under applicable law or otherwise) shall in any respect limit the obligations and liabilities of any Guarantor with respect to its obligations hereunder, and the Borrower and each Guarantor shall remain liable for the full amount of its obligations hereunder.

SECTION 4. MISCELLANEOUS

4.1. Amendments in Writing. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except (i) in accordance with Section 9.2 of the Credit Agreement, (ii) pursuant to an Assumption Agreement or (iii) with respect to Schedule 1 to this Agreement, such Schedule may be amended or supplemented by any Guarantor at any time by delivering such amended or supplemented schedule to the Administrative Agent.

 

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4.2. Notices. All notices, requests and demands to or upon the Administrative Agent or any Guarantor hereunder shall be effected in the manner provided for in Section 9.1 of the Credit Agreement; provided that any such notice, request or demand to or upon any Guarantor (other than Parent or the Borrower) shall be addressed to such Guarantor at its notice address set forth on Schedule 1 (as such schedule may be amended from time to time).

4.3. No Waiver by Course of Conduct; Cumulative Remedies. Neither the Administrative Agent nor any Secured Party shall by any act (except by a written instrument pursuant to Section 4.1), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of the Administrative Agent or any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Administrative Agent or any Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Administrative Agent or such Secured Party would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.

4.4. Enforcement Expenses; Indemnification.

(a) Each Guarantor agrees to pay or reimburse (i) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, disbursements and other charges of legal counsel for the Administrative Agent, incurred in collecting against such Guarantor under the guarantee contained in Section 2 or otherwise enforcing or preserving any rights under this Agreement and the other Loan Documents to which such Guarantor is a party, and (ii) all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the fees, charges and disbursements of legal counsel for the Administrative Agent, in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this Section 4.4(a), including all such reasonable and documented out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of the Loans; provided, that the Guarantors’ obligations under this Section 4.4(a) for fees and expenses of legal counsel shall be limited to fees and expenses of (x) one primary outside legal counsel for all Persons described in clauses (i) and (ii) above, taken as a whole, (y) in the case of any actual or perceived conflict of interest, one outside legal counsel for each group of affected Persons similarly situated, taken as a whole, in each appropriate jurisdiction and (z) if necessary, one regulatory counsel and one local or foreign legal counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions).

(b) Each Guarantor agrees to pay, and to save the Administrative Agent and the other Secured Parties harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Collateral to the extent the Borrower would be required to do so pursuant to Section 9.3 of the Credit Agreement.

 

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(c) Each Guarantor agrees to pay, and to save the Administrative Agent and the Secured Parties harmless from, any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, reasonable and documented out-of-pocket costs, expenses or disbursements of any kind or nature whatsoever with respect to (x) the execution, delivery, enforcement, performance and administration of this Agreement, (y) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by any Guarantor (including any predecessor entities), or any Environmental Liability relating to any Guarantor (including any predecessor entities), or (z) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether the Administrative Agent or the Secured Parties are a party thereto and whether or not such claim, litigation, investigation or proceeding is brought by any Guarantor or any of their respective Affiliates, their respective creditors or any other Person, in each case to the extent the Borrower would be required to do so pursuant to Section 9.3 of the Credit Agreement.

(d) The agreements in this Section 4.4 shall survive repayment of the Obligations and all other amounts payable under the Credit Agreement and the other Loan Documents.

4.5. Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Guarantor and shall inure to the benefit of the Administrative Agent and the other Secured Parties and their successors and assigns; provided that, to the extent prohibited or restricted by the terms of the Credit Agreement, no Guarantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Administrative Agent.

4.6. Right of Setoff. If an Event of Default pursuant to Section 7.1(a), (g) or (h) of the Credit Agreement (in the case of clauses (g) or (h), with respect to the Borrower only) shall have occurred and be continuing, each Secured Party is hereby authorized at any time and from time to time with the prior written consent of the Administrative Agent, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations at any time owing by such Secured Party to or for the credit or the account of any Guarantor against any of and all the obligations of such Guarantor now or hereafter existing under this Agreement held by such Secured Party, irrespective of whether or not such Secured Party shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of each Secured Party under this Section 4.6 are in addition to other rights and remedies (including other rights of setoff) which such Secured Party may have. Each Secured Party shall notify the Administrative Agent and the relevant Guarantor promptly after any such setoff.

4.7. Counterparts; Integration. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other

 

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electronic transmission (e.g., “PDF” or “TIFF”) shall be effective as delivery of a manually executed counterpart of this Agreement. 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.

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

4.9. Section Headings. The Section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.

4.10. GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

4.11. Jurisdiction; Consent to Service of Process.

(a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York sitting in New York County, 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 hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Notwithstanding the foregoing, any party hereto may bring an action or proceeding in other jurisdictions in respect of its rights under any Security Document governed by a law other than the laws of the State of New York or, with respect to the Collateral, in a jurisdiction where such Collateral is located.

(b) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other Loan Document in any court referred to in paragraph (a) of this Section 4.11. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

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(c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 4.2. Nothing in this Agreement or any other Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

4.12. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 4.12.

4.13. Acknowledgments. Each Guarantor hereby acknowledges that:

(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other Loan Documents to which it is a party;

(b) neither the Administrative Agent nor any Lender has any fiduciary relationship with or duty to any Guarantor arising out of or in connection with this Agreement or any of the other Loan Documents, and the relationship between the Guarantors, on the one hand, and the Administrative Agent and Lenders, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and

(c) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Lenders or among the Guarantors and the Lenders.

4.14. Additional Guarantors; Releases.

(a) Each Domestic Subsidiary of Parent that is required to, or that Parent or the Borrower shall elect to, become a party to this Agreement pursuant to Section 5.9 of the Credit Agreement shall become a Guarantor for all purposes of this Agreement upon execution and delivery by such Subsidiary (an “Additional Guarantor”) of an Assumption Agreement in the form of Annex 1 hereto.

(b) In the case of a transaction permitted under the Credit Agreement the result of which is that a Guarantor would cease to be a Restricted Subsidiary or would become an Excluded Subsidiary (or in case any Restricted Subsidiary otherwise becomes an Excluded Subsidiary), the Guarantor Obligations created by this Agreement in respect of such Guarantor shall automatically terminate and be released, without the requirement for any further action by any Person and the Administrative Agent shall promptly take such action and execute any such documents as may be reasonably requested by Parent or the Borrower and at the Borrower’s expense to further document and evidence such termination and release of such Guarantor Obligations.

 

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(c) Upon Discharge of Obligations, the Guarantor Obligations shall automatically terminate and be released, without the requirement for any further action by any Person and the Administrative Agent shall promptly take such action and execute any such documents as may be reasonably requested by Parent or the Borrower and at the Borrower’s expense to further document and evidence such termination and release of the Guarantor Obligations.

4.15. Successor Administrative Agent. Upon the appointment of any successor to the Administrative Agent pursuant to Section 8.9 of the Credit Agreement, such successor shall thereupon automatically succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent under this Agreement and all references to the Administrative Agent herein shall refer to such successor, and the retiring Administrative Agent shall thereupon be discharged from its duties and obligations under this Agreement. After any retiring Administrative Agent’s resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement.

4.16. Execution of Assignments and Certain Other Documents. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries 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, physical delivery thereof 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, 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; provided that, in respect of documents to be signed by entities established within the European Union, the Electronic Signature qualifies as a “qualified electronic signature” within the meaning of the Regulation (EU) n 910/2014 of the European parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transaction in the internal market as amended from time to time and provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior written consent.

(signature pages follow)

 

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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly executed and delivered as of the date first above written.

 

BORROWER:
T-MOBILE USA, INC.
By:   /s/ J. Braxton Carter
  Name: J. Braxton Carter
  Title:   Executive Vice President and
              Chief Financial Officer

[Signature Page to Guarantee Agreement – Bridge]


GUARANTORS:
T-MOBILE US, INC.
By:   /s/ J. Braxton Carter
  Name: J. Braxton Carter
  Title:   Executive Vice President and
              Chief Financial Officer

[Signature Page to Guarantee Agreement – Bridge]


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METROPCS MASSACHUSETTS, LLC
METROPCS MICHIGAN, LLC
METROPCS NETWORKS CALIFORNIA, LLC
METROPCS NETWORKS FLORIDA, LLC
METROPCS NEVADA, LLC
METROPCS NEW YORK, LLC
METROPCS PENNSYLVANIA, LLC
METROPCS TEXAS, LLC
PUSHSPRING, INC.
T-MOBILE CENTRAL LLC
T-MOBILE FINANCIAL LLC
T-MOBILE LEASING LLC
T-MOBILE LICENSE LLC
T-MOBILE NORTHEAST LLC
T-MOBILE PCS HOLDINGS LLC
T-MOBILE PUERTO RICO HOLDINGS LLC
T-MOBILE PUERTO RICO LLC
T-MOBILE RESOURCES CORPORATION
T-MOBILE SOUTH LLC
T-MOBILE SUBSIDIARY IV LLC
T-MOBILE WEST LLC
THEORY MOBILE, INC.
By:   /s/ J. Braxton Carter
  Name: J. Braxton Carter
  Title:   Authorized Person

[Signature Page to Guarantee Agreement – Bridge]


SPRINT CORPORATION
By:   /s/ Jud Henry
  Name: Jud Henry
  Title:   Senior Vice President, Finance and Treasurer
SPRINT COMMUNICATIONS, INC.
SPRINT CAPITAL CORPORATION
ALDA WIRELESS HOLDINGS, LLC
AMERICAN TELECASTING DEVELOPMENT, LLC
AMERICAN TELECASTING OF ANCHORAGE, LLC
AMERICAN TELECASTING OF COLUMBUS, LLC
AMERICAN TELECASTING OF DENVER, LLC
AMERICAN TELECASTING OF FORT MYERS, LLC
AMERICAN TELECASTING OF FT. COLLINS, LLC
AMERICAN TELECASTING OF GREEN BAY, LLC
AMERICAN TELECASTING OF LANSING, LLC
AMERICAN TELECASTING OF LINCOLN, LLC
AMERICAN TELECASTING OF LITTLE ROCK, LLC
AMERICAN TELECASTING OF LOUISVILLE, LLC
AMERICAN TELECASTING OF MEDFORD, LLC
AMERICAN TELECASTING OF MICHIANA, LLC
AMERICAN TELECASTING OF MONTEREY, LLC
AMERICAN TELECASTING OF REDDING, LLC
AMERICAN TELECASTING OF SANTA BARBARA, LLC
AMERICAN TELECASTING OF SEATTLE, LLC
AMERICAN TELECASTING OF SHERIDAN, LLC
AMERICAN TELECASTING OF YUBA CITY, LLC
APC REALTY AND EQUIPMENT COMPANY, LLC
ASSURANCE WIRELESS OF SOUTH CAROLINA, LLC
ASSURANCE WIRELESS USA, L.P.
ATI SUB, LLC
BOOST WORLDWIDE, LLC
BROADCAST CABLE, LLC
CLEAR WIRELESS LLC
CLEARWIRE COMMUNICATIONS LLC
CLEARWIRE CORPORATION
CLEARWIRE HAWAII PARTNERS SPECTRUM, LLC
CLEARWIRE IP HOLDINGS LLC
CLEARWIRE LEGACY LLC
By:   /s/ Jud Henry
  Name: Jud Henry
  Title:   Vice President and Treasurer

[Signature Page to Guarantee Agreement – Bridge]


CLEARWIRE SPECTRUM HOLDINGS II LLC
CLEARWIRE SPECTRUM HOLDINGS III LLC
CLEARWIRE SPECTRUM HOLDINGS LLC
CLEARWIRE XOHM LLC
FIXED WIRELESS HOLDINGS, LLC
FRESNO MMDS ASSOCIATES, LLC
INDEPENDENT WIRELESS ONE LEASED REALTY CORPORATION
KENNEWICK LICENSING, LLC
MINORCO, LLC
NEXTEL COMMUNICATIONS OF THE MID-ATLANTIC, INC.
NEXTEL OF NEW YORK, INC.
NEXTEL RETAIL STORES, LLC
NEXTEL SOUTH CORP.
NEXTEL SYSTEMS, LLC
NEXTEL WEST CORP.
NSAC, LLC
PCTV GOLD II, LLC
PCTV SUB, LLC
PEOPLE’S CHOICE TV OF HOUSTON, LLC
PEOPLE’S CHOICE TV OF ST. LOUIS, LLC
PRWIRELESS PR, LLC
SIHI NEW ZEALAND HOLDCO, INC.
SN HOLDINGS (BR I) LLC
SN UHC 1, INC.
SN UHC 3, INC.
SN UHC 4, INC.
SPEEDCHOICE OF DETROIT, LLC
SPEEDCHOICE OF PHOENIX, LLC
SPRINT (BAY AREA), LLC
SPRINT COMMUNICATIONS COMPANY L.P.
SPRINT COMMUNICATIONS COMPANY OF NEW HAMPSHIRE, INC.
SPRINT COMMUNICATIONS COMPANY OF VIRGINIA, INC.
SPRINT CONNECT LLC
SPRINT CORPORATION
SPRINT CORPORATION
SPRINT EBUSINESS, INC.
SPRINT ENTERPRISE MOBILITY, LLC
SPRINT ENTERPRISE NETWORK SERVICES, INC.
SPRINT EWIRELESS, INC.
SPRINT HOLDCO, LLC
SPRINT INTERNATIONAL COMMUNICATIONS CORPORATION
By:   /s/ Jud Henry
  Name: Jud Henry
  Title:   Vice President and Treasurer

[Signature Page to Guarantee Agreement – Bridge]


SPRINT INTERNATIONAL HOLDING, INC.
SPRINT INTERNATIONAL INCORPORATED
SPRINT INTERNATIONAL NETWORK COMPANY LLC
SPRINT PCS ASSETS, L.L.C.
SPRINT SOLUTIONS, INC.
SPRINT SPECTRUM HOLDING COMPANY, LLC
SPRINT SPECTRUM L.P.
SPRINT SPECTRUM REALTY COMPANY, LLC
SPRINT/UNITED MANAGEMENT COMPANY
SPRINTCOM, INC.
SWV SIX, INC.
TDI ACQUISITION SUB, LLC
TRANSWORLD TELECOM II, LLC
US TELECOM, INC.
USST OF TEXAS, INC.
UTELCOM LLC
VIRGIN MOBILE USA – EVOLUTION, LLC
VMU GP, LLC
WBS OF AMERICA, LLC
WBS OF SACRAMENTO, LLC
WBSY LICENSING, LLC
WCOF, LLC
WIRELESS BROADBAND SERVICES OF AMERICA, L.L.C.
WIRELINE LEASING CO., INC.
By:   /s/ Jud Henry
  Name: Jud Henry
  Title:   Vice President and Treasurer

[Signature Page to Guarantee Agreement – Bridge]


GOLDMAN SACHS BANK USA
as Administrative Agent
By:   /s/ Robert Ehudin
  Name: Robert Ehudin
  Title:   Authorized Signatory

[Signature Page to Guarantee Agreement – Bridge]

EX-10.7

Exhibit 10.7

 

 

 

COLLATERAL AGREEMENT

dated as of April 1, 2020

among

T-MOBILE US, INC.,

T-MOBILE USA, INC.,

and THE OTHER GRANTORS referred to herein

in favor of

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Collateral Trustee

 

 

 


TABLE OF CONTENTS

 

SECTION 1. DEFINED TERMS      1  

1.1.

  Definitions      1  

1.2.

  Other Definitional Provisions      7  
SECTION 2. [RESERVED]      7  
SECTION 3. GRANT OF SECURITY INTEREST      7  

3.1.

  Security Interest      7  
SECTION 4. REPRESENTATIONS AND WARRANTIES      10  

4.1.

  Title; No Other Liens      10  

4.2.

  Perfected First Priority Liens      11  

4.3.

  Name; Jurisdiction of Organization, etc.      11  

4.4.

  Investment Property and Pledged Securities      11  

4.5.

  Intellectual Property      12  

4.6.

  Commercial Tort Claims      12  
SECTION 5. COVENANTS      12  

5.1.

  Covenants in First Priority Debt Documents      13  

5.2.

  Delivery of Pledged Capital Stock      13  

5.3.

  Maintenance of Perfected Security Interest; Further Documentation      14  

5.4.

  Changes in Locations, Name, Jurisdiction of Incorporation, etc.      15  

5.5.

  Intellectual Property      15  

5.6.

  Commercial Tort Claims      15  
SECTION 6. REMEDIAL PROVISIONS      16  

6.1.

  [Reserved]      16  

6.2.

  Pledged Securities      16  

6.3.

  Proceeds to be Turned Over to Collateral Trustee      18  

6.4.

  Application of Proceeds      18  

6.5.

  Code and Other Remedies      18  

6.6.

  Remedies for Intellectual Property      20  

6.7.

  Waiver; Deficiency      21  

6.8.

  Governmental Approvals      21  
SECTION 7. THE COLLATERAL TRUSTEE      23  

7.1.

  Collateral Trustee’s Appointment as Attorney-in-Fact, etc.      23  

7.2.

  Duty of Collateral Trustee      25  

7.3.

  Financing Statements; Intellectual Property Filings      25  

7.4.

  Authority of Collateral Trustee      26  

7.5.

  Concerning the Collateral Trustee      26  
SECTION 8. [RESERVED]      26  
SECTION 9. MISCELLANEOUS      26  

9.1.

  Amendments in Writing      26  


9.2.

  Notices      26  

9.3.

  No Waiver by Course of Conduct; Cumulative Remedies      27  

9.4.

  Enforcement Expenses; Indemnification      27  

9.5.

  Successors and Assigns      27  

9.6.

  Right of Setoff      27  

9.7.

  Counterparts; Integration      27  

9.8.

  Severability      28  

9.9.

  Section Headings      28  

9.10.

  GOVERNING LAW      28  

9.11.

  Jurisdiction; Consent to Service of Process      28  

9.12.

  WAIVER OF JURY TRIAL      29  

9.13.

  Acknowledgments      29  

9.14.

  Additional Grantors; Releases      29  

9.15.

  Certain Specified Collateral      30  

9.16.

  Successor Collateral Trustee      30  

9.17.

  Collateral Trust Agreement Governs      31  

9.18.

  Electronic Execution      31  

SCHEDULES

 

Schedule 1    Notice Addresses of Grantors
Schedule 2    Description of Pledged Investment Property
Schedule 3    Filings and Other Actions Required to Perfect Security Interests
Schedule 4    Exact Legal Name, Location of Jurisdiction of Organization and Chief Executive Office
Schedule 5    Patents, Trademarks and Other Intellectual Property
Schedule 6    Commercial Tort Claims

EXHIBITS

 

Exhibit A    Intellectual Property Security Agreement

ANNEXES

 

Annex 1    Assumption Agreement

 

ii


COLLATERAL AGREEMENT

COLLATERAL AGREEMENT dated as of April 1, 2020 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Agreement”) made by T-MOBILE US, INC., a Delaware corporation (“Parent”), T- MOBILE USA, INC., a Delaware corporation (the “Company”), and certain other subsidiaries of Parent party hereto (together with the Company, Parent and any other entity that is or may become a party hereto as provided herein, the “Grantors”), in favor of DEUTSCHE BANK TRUST COMPANY AMERICAS, as collateral trustee (together with its successors in such capacity, the “Collateral Trustee”) under the Collateral Trust and Intercreditor Agreement, dated as of April 1, 2020 (the “Collateral Trust Agreement”), among, inter alia, Parent, the Company, the subsidiaries of Parent party thereto, the Collateral Trustee and the various Holder Representatives.

W I T N E S E T H:

WHEREAS, pursuant to various First Priority Debt Documents, certain First Priority Secured Parties have made extensions of credit and other accommodations to the Grantors upon the terms and subject to the conditions set forth therein;

WHEREAS, Parent and the Company are members of an affiliated group of companies that includes each Grantor;

WHEREAS, Parent, the Company and the other Grantors will derive substantial direct and indirect benefit from the making of the extensions of credit and other accommodations under the First Priority Debt Documents; and

WHEREAS, it is a condition precedent to the obligation of certain First Priority Secured Parties to make their respective extensions of credit to the Company and it is otherwise a related obligation of the Grantors under certain First Priority Debt Documents, that the Grantors shall have executed and delivered this Agreement to the Collateral Trustee for the ratable benefit of the First Priority Secured Parties.

NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, and to induce the First Priority Secured Parties to enter into their applicable respective First Priority Debt Documents, to induce the First Priority Secured Parties to make their respective extensions of credit or other accommodations under the respective First Priority Debt Documents and to otherwise satisfy the related obligations of the Grantors under certain First Priority Debt Documents, each Grantor hereby agrees with the Collateral Trustee, for the ratable benefit of the First Priority Secured Parties, as follows:

SECTION 1. DEFINED TERMS

1.1. Definitions. (a) Unless otherwise defined herein, terms defined in the Collateral Trust Agreement and used herein shall have the meanings given to them in the Collateral Trust Agreement; provided that each term defined in the New York UCC and not defined in this Agreement shall have the meaning specified in the New York UCC.

(b) The following terms shall have the following meanings:


After-Acquired Intellectual Property”: as defined in Section 5.5.

Agreement”: as defined in the preamble hereto.

Applicable Date”: means with respect to any Grantor, (i) the date of this Agreement if such Grantor is a party hereto on the Effective Date, (ii) the date on which an Assumption Agreement is executed and delivered by such Grantor if such Grantor is not a party hereto on the Effective Date, and (iii) with respect to a schedule to this Agreement that is amended or updated by a Grantor after the Effective Date pursuant to any First Priority Debt Document or otherwise from time to time, the date on which such Grantor provides such amendments or updates.

Assumption Agreement”: an Assumption Agreement in the form of Annex 1 hereto.

Capital Stock”:

(a) in the case of a corporation, corporate stock;

(b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(c) in the case of an exempted company, shares;

(d) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests, respectively; and

(e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

Cash Equivalents”:

(a) United States dollars, pounds sterling, euros, Canadian dollars, Swiss francs, the national currency of any member state of the European Union or any other foreign currencies held by the Company and the Grantors from time to time in the ordinary course of business;

(b) securities issued or directly and fully guaranteed or insured by the government of the United States of America, Canada, the United Kingdom, Switzerland or any country that is a member of the European Union or any agency or instrumentality thereof (provided that the full faith and credit of the United States, Canada, the United Kingdom, Switzerland or the relevant member state of the European Union, as the case may be, is pledged in support of those securities) having maturities of not more than two years from the date of acquisition;

 

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(c) demand deposits, certificates of deposit and Eurodollar time deposits with maturities of one year or less from the date of acquisition, bankers’ acceptances with maturities not exceeding one year and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $250.0 million, in the case of U.S. banks, and $100.0 million (or the foreign currency equivalent thereof), in the case of non-U.S. banks;

(d) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (b) and (c) above entered into with any financial institution meeting the qualifications specified in clause (c) above;

(e) commercial paper having one of the two highest ratings obtainable from a Rating Agency at the date of acquisition and, in each case, maturing within one year after the date of acquisition;

(f) securities issued and fully guaranteed by any state, commonwealth or territory of the United States, Canada, any country that is a member of the European Union, the United Kingdom or Switzerland or by any political subdivision or agency or instrumentality of the foregoing, rated at least “A” (or the equivalent thereof) by a Rating Agency at the date of acquisition and having maturities of not more than two years after the date of acquisition;

(g) auction rate securities rated at least “AA-” or “Aa3” (or the equivalent thereof) by a Rating Agency at the time of purchase and with reset dates of one year or less from the time of purchase;

(h) investments, classified in accordance with GAAP as current assets of the Company or any Grantor, in money market funds, mutual funds or investment programs registered under the Investment Company Act of 1940, at least 90% of the portfolios of which constitute investments of the character, quality and maturity described in clauses (a) through (g) of this definition;

(i) any substantially similar investment to the kinds described in clauses (a) through (g) of this definition rated at least “P-2” by Moody’s or “A-2” by S&P or the equivalent thereof; and

(j) deposits or payments made to the FCC in connection with the auction or licensing of Governmental Authorizations that are fully refundable.

Collateral”: as defined in Section 3.1(a).

Collateral Account”: any collateral deposit account established by the Collateral Trustee to hold cash pending application to the First Priority Secured Obligations in accordance with the terms hereof.

Collateral Trust Agreement”: as defined in the preamble hereto.

Collateral Trustee”: as defined in the preamble hereto.

Company”: as defined in the preamble hereto.

 

3


Discharge of Obligations”: the payment and performance in full (as such phrase is defined in the Collateral Trust Agreement) of the First Priority Secured Obligations.

Electronic Signature”: any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.

Excluded Assets”: shall mean all Excluded Assets (as such term is defined in the Initial Syndicated Credit Agreement); provided that, solely with respect to holders of the applicable Specified First Priority Secured Obligations, Specified Collateral that would otherwise constitute an Excluded Asset shall not be deemed an Excluded Asset.

FCC”: the United States Federal Communications Commission and any successor agency that is responsible for regulating the United States telecommunications industry

FCC Licenses”: all licenses or permits now or hereafter issued by the FCC.

Governmental Authority”: any nation or government, any state, province, territory or other political subdivision thereof and any other agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

Governmental Authorization”: any permit, license, authorization, plan, directive, consent, permission, consent order or consent decree of or from any Governmental Authority, including but not limited to FCC Licenses.

Grantors”: as defined in the preamble hereto.

Infringement”: infringement, misappropriation, dilution or other impairment or violation, and “Infringe” shall have a correlative meaning.

Initial Syndicated Credit Agreement” shall mean that certain Credit Agreement, dated as of April 1, 2020 (as amended, restated, amended and restated, refinanced, replaced, supplemented or otherwise modified from time to time), among the Company, the banks and financial institutions from time to time party thereto as lenders and issuing banks, and Deutsche Bank AG New York Branch, as administrative agent, and the other agents and parties named therein.

Intellectual Property”: the collective reference to all rights relating to the Patents, the Patent Licenses, the Trademarks, the Trademark Licenses, the Trade Secrets and the Trade Secret Licenses.

Intellectual Property Security Agreement”: an agreement substantially in the form of Exhibit A hereto.

 

4


Investment Property”: the collective reference to (i) all “investment property” as such term is defined in Section 9-102(a)(49) of the New York UCC and (ii) security entitlements, in the case of any United States Treasury book-entry securities, as defined in 31 C.F.R. section 357.2, or, in the case of any United States federal agency book-entry securities, as defined in the corresponding United States federal regulations governing such book-entry securities; provided that the term “Investment Property” shall not at any time include Excluded Assets.

Issuers”: the collective reference to each issuer of any Pledged Capital Stock.

Material Adverse Effect”: a material adverse effect on (a) the business, financial condition, assets or results of operations, in each case, of the Grantors, taken as a whole, (b) the ability of the Grantors, taken as a whole, to perform their payment obligations under the First Priority Debt Documents or (c) the rights and remedies of the Collateral Trustee and the Administrative Agent and the Secured Parties, taken as a whole, under any First Priority Debt Document.

New York UCC”: the Uniform Commercial Code as from time to time in effect in the State of New York.

Non-Parent Collateral”: as defined in Section 3.

Parent”: as defined in the preamble hereto.

Parent Collateral”: as defined in Section 3.

Parent Entity” means Parent and any Parent Only Subsidiary.

Parent Only Subsidiary”: Any Subsidiary of Parent that is (x) not a Subsidiary of the Company or any other Grantor and (y) directly or indirectly owns Capital Stock of the Company.

Patent License”: all written agreements naming any Grantor as licensor or licensee, providing for the granting by or to any Grantor of any right in or to a Patent.

Patents”: (i) all patents of the United States, all reexaminations, reissues, and extensions thereof, (ii) all applications for patents of the United States and all divisionals, continuations and continuations-in-part thereof and (iii) all rights to obtain any reissues or extensions of the foregoing in the United States.

Permitted Liens”: Liens that are not prohibited by the Initial Syndicated Credit Agreement or any other First Priority Debt Document.

Person”: any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.

 

5


Pledged Capital Stock”: all shares or other equity interests constituting Capital Stock now owned or hereafter acquired by (i) any Parent Entity in the Borrower or (ii) any other Grantor in any Subsidiary of such Grantor, including in each case all shares of Capital Stock described on Schedule 2 (as such schedule may be amended from time to time), and the certificates, if any, representing such Capital Stock and any interest of such Grantor in the entries on the books of the Issuer of such Capital Stock and all dividends, distributions, cash, warrants, rights, options, instruments, securities and other property or proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such Capital Stock and any other warrant, right or option to acquire any of the foregoing; provided that the Pledged Capital Stock shall not include any Excluded Asset.

Pledged Debt Securities”: all debt securities now owned or hereafter acquired by any Grantor (other than any Parent Entity), including the debt securities listed on Schedule 2 (as such schedule may be amended from time to time), provided that the Pledged Debt Securities shall not include any Excluded Asset.

Pledged Notes”: all promissory notes and other evidences of Indebtedness (as defined in the Initial Syndicated Credit Agreement) that constitute Instruments now owned or hereafter acquired by any Grantor (other than any Parent Entity), including those listed on Schedule 2 (as such schedule may be amended from time to time), provided that the Pledged Notes shall not include any Excluded Asset.

Pledged Securities”: the collective reference to the Pledged Debt Securities, the Pledged Notes and the Pledged Capital Stock.

Proceeds”: all “proceeds” as such term is defined in Section 9-102(a)(64) of the New York UCC and, in any event, shall include all dividends or other income from the Pledged Securities and Investment Property, collections thereon or distributions or payments with respect thereto.

Property”: any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including Capital Stock.

Registered Intellectual Property”: as defined in Section 4.5(a).

Requirement of Law”: as to any Person, any law, treaty, rule or regulation, official administrative pronouncement, or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.

Specified Collateral”: as defined in Section 9.15.

Trademark License”: any written agreement naming any Grantor as licensor or licensee providing for the granting by or to any Grantor of any right in or to any Trademark.

Trademarks” means (i) all trademarks, trade names, domain names, service marks or logos, trade dress, and all goodwill associated therewith, now existing or hereafter adopted or acquired, that have been registered or are the subject of an application to register filed in the United States Patent and Trademark Office or in any similar office or agency of the United States or any State thereof and (ii) the right to obtain all renewals of any of the foregoing.

 

6


Trade Secrets”: all trade secrets and all confidential and proprietary information, including know-how, manufacturing and production processes and techniques, inventions, research and development information, technical data, financial, marketing and business data, pricing and cost information, business and marketing plans, and customer and supplier lists and information, formulae, parts, diagrams, drawings, specifications, blue prints, lists of materials, and production manuals, in each case, that (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy, or (c) otherwise protected as a “trade secret” under applicable law.

Trade Secret License”: any written agreement naming any Grantor as licensor or licensee, providing for the granting by or to any Grantor of any right in or to any Trade Secret.

Uniform Commercial Code” or “UCC”: the New York UCC or, where the context requires, the Uniform Commercial Code or any equivalent statute of any other relevant jurisdiction.

United States” and “US”: the United States of America.

1.2. Other Definitional Provisions. (a) Except as otherwise expressly set forth herein, the rules of construction specified in Sections 1.1(c) through (h) of the Collateral Trust Agreement also apply to this Agreement.

(b) Where the context requires, terms relating to the Collateral or any part thereof, when used in relation to a Grantor, shall refer to such Grantor’s Collateral or the relevant part thereof.

SECTION 2. [RESERVED]

SECTION 3. GRANT OF SECURITY INTEREST

3.1. Security Interest

(a) Subject to Sections 3.1(c) and 3.1(d), Parent and any Parent Only Subsidiary hereby grants to the Collateral Trustee, for the benefit of the First Priority Secured Parties, a security interest in, all of Parent’s or such Parent Only Subsidiary’s right, title and interest in and to all the following property, in each case, wherever located and whether now owned or at any time hereafter acquired by Parent or such Parent Only Subsidiary or in which Parent or such Parent Only Subsidiary now has or at any time in the future may acquire any right, title or interest (the “Parent Collateral”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of the First Priority Secured Obligations of Parent or such Parent Only Subsidiary:

(i) all Pledged Capital Stock;

(ii) all books, records, ledger cards, files, correspondence and similar items that at any time evidence or contain information relating to any of the Parent Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon; and

 

7


(iii) to the extent not otherwise included, all Proceeds and products of any and all of the foregoing.

(b) Subject to Sections 3.1(c) and 3.1(d), each Grantor (other than any Parent Entity) hereby grants to the Collateral Trustee as collateral, for the benefit of the First Priority Secured Parties, a security interest in, all of such Grantor’s right, title and interest in and to all of the following property, in each case, wherever located and whether now owned or at any time hereafter acquired by such Grantor or in which such Grantor now has or at any time in the future may acquire any right, title or interest (collectively, but subject to Section 3.1(c), the “Non-Parent Collateral” and, together with the Parent Collateral, the “Collateral”), as collateral security for the prompt and complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of such Grantor’s First Priority Secured Obligations:

(i) all Accounts;

(ii) all Chattel Paper;

(iii) all Documents;

(iv) all Equipment;

(v) all Fixtures and other Goods;

(vi) all General Intangibles;

(vii) all Instruments;

(viii) all Intellectual Property;

(ix) all Inventory;

(x) all Investment Property;

(xi) all Pledged Securities;

(xii) all Deposit Accounts;

(xiii) all Supporting Obligations;

(xiv) all Letter of Credit Rights;

(xv) all Commercial Tort Claims listed on Schedule 6 (as such schedule may be amended or supplemented from time to time, including pursuant to Section 5.6);

 

8


(xvi) without limiting the generality of the foregoing, all rights of such Grantor under or relating to any FCC Licenses held by such Grantor and the proceeds of any FCC Licenses;

(xvii) all books, records, ledger cards, files, correspondence, customer lists, blueprints, technical specifications, manuals, computer software, computer printouts, tapes, disks and other electronic storage media and related data processing software and similar items that at any time evidence or contain information relating to any of the Non-Parent Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon; and

(xviii) to the extent not otherwise included, all other personal property of the Grantor and all Proceeds, products, accessions, rents and profits of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing.

(c) Notwithstanding anything to the contrary in this Agreement or any other First Priority Debt Document, this Agreement shall not constitute a grant of a security interest in any Excluded Assets and none of the Excluded Assets shall constitute Collateral (or Pledged Capital Stock or any other component definition of the Collateral); provided, however, that a security interest shall immediately be granted to the Collateral Trustee (for the benefit of the First Priority Secured Parties) and attach to, and Collateral shall immediately include, any asset (or portion thereof) upon such asset (or portion thereof) ceasing to be an Excluded Asset. Without limitation, with respect to the rights of any Grantor (other than any Parent Entity) under or relating to FCC Licenses, such security interest does not include at any time any portion of any FCC Licenses to the extent (but only to the extent) that at such time the Collateral Trustee may not validly possess a security interest in such portion (including pursuant to the Communications Act of 1934, as amended, as in effect at such time), but such security interest does include, to the maximum extent permitted by law, the economic value of the FCC Licenses, all rights incident or appurtenant to such FCC Licenses and the right to receive all proceeds derived from or in connection with the sale, assignment or transfer of such FCC Licenses.

(d) Notwithstanding anything to the contrary in this Agreement or any other First Priority Debt Document, none of the Grantors shall be required pursuant to this Agreement or any other First Priority Debt Document to:

(i) perfect any pledges, security interests and mortgages in the Collateral by any means other than (A)(1) filings pursuant to the Uniform Commercial Code in the office of the Secretary of State (or similar central filing office) of the relevant State in which such Grantor is organized, and (2) filings in the U.S. Patent and Trademark Office with respect to Registered Intellectual Property as expressly required in the First Priority Security Documents or (B) delivery to the Collateral Trustee (or its agent or bailee pursuant to the terms of the Collateral Trust Agreement or any other Intercreditor Agreement) of all certificates evidencing Collateral consisting of Capital Stock to be held in its possession, in each case as and to the extent expressly required by the First Priority Security Documents or any other First Priority Debt Documents or (C) as specified in Section 5.6;

 

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(ii) (A) deliver deposit or securities account control agreements or lockbox or similar arrangements, (B) otherwise deliver perfection by “control” (within the meaning of the UCC) (including with respect to deposit accounts, securities accounts and commodities accounts), other than as described in clause (i)(B) above or (C) send notices to account debtors or other contractual third parties unless an Event of Default has occurred and is continuing;

(iii) take any actions outside of the United States with respect to any assets located outside of the United States; or

(iv) take any actions in any jurisdiction other than the United States (or any political subdivision thereof) in connection with pledging Collateral or enter into any collateral documents governed by the laws of any country (or any political subdivision thereof) other than the United States (or any political subdivision thereof).

(e) Notwithstanding anything herein to the contrary, (i) each Grantor shall remain liable for all of its obligations in respect of the Collateral and nothing contained herein is intended or shall be a delegation of duties to the Collateral Trustee or any other First Priority Secured Party, (ii) each Grantor jointly and severally agrees to indemnify and hold harmless the Collateral Trustee and the other First Priority Secured Parties from and against any and all liability for performance under each contract, agreement or instrument relating to the Collateral unless resulting from the gross negligence or willful misconduct of such Person, (iii) each Grantor shall remain liable under each of its agreements included in the Collateral, and shall perform all of its obligations undertaken by it thereunder all in accordance with and pursuant to the terms and provisions thereof and neither the Collateral Trustee nor any other First Priority Secured Party shall have any obligation or liability under any of such agreements by reason of or arising out of this Agreement or any other document related thereto, nor shall the Collateral Trustee nor any other First Priority Secured Party have any obligation to make any inquiry as to the nature or sufficiency of any payment received by it or have any obligation to take any action to collect or enforce any rights under any agreement included in the Collateral and (iv) the exercise by the Collateral Trustee of any of its rights hereunder shall not release any Grantor from any of its duties or obligations under the contracts and agreements included in the Collateral.

SECTION 4. REPRESENTATIONS AND WARRANTIES

To induce the First Priority Secured Parties to enter into their applicable respective First Priority Debt Documents and to induce the First Priority Secured Parties to make their respective extensions of credit or other accommodations thereunder, each Grantor hereby, jointly and severally, represents and warrants to the First Priority Secured Parties (other than any Parent Entity, which represents and warrants to each First Priority Secured Party solely with respect to itself and the Parent Collateral, and solely as set forth in Sections 4.1, 4.2, 4.3, and 4.4) that:

4.1. Title; No Other Liens. Except as disclosed on Schedule 3.8 to the Initial Syndicated Credit Agreement, as of the Effective Date, such Grantor has good title to, or a valid leasehold interest in, all real property and other Property that is Collateral and that is material to the conduct of its business except where the failure to have such title or interests would not reasonably be expected to have a Material Adverse Effect. None of the Collateral is subject to any Lien except Permitted Liens.

 

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4.2. Perfected First Priority Liens. In each case subject to Section 9.16, the security interests granted pursuant to this Agreement constitute legal, valid, binding and enforceable and, subject to any Permitted Liens, first lien security interests in all of the Collateral in favor of the Collateral Trustee, for the benefit of the First Priority Secured Parties, as collateral security for the First Priority Secured Obligations, enforceable against each applicable Grantor in accordance with the terms hereof, except as enforceability may be limited by applicable Bankruptcy Laws and by general equitable principles (whether enforcement is sought in proceedings in equity or at law) and, other than with respect to Collateral a security interest in which cannot be perfected by taking the actions specified in Section 3.1(d)(i), as of the most recent Applicable Date, when financing statements in appropriate form are filed in the appropriate filing offices, Intellectual Property Security Agreements are filed in the United States Patent and Trademark Office and such other actions as specified on Schedule 3 (as such schedule may be amended from time to time) have been completed and upon the payment of all filing fees, will be perfected and are prior to the Liens on the Collateral of any other Person (except for Permitted Liens).

4.3. Name; Jurisdiction of Organization, etc. As of the most recent Applicable Date, such Grantor’s exact legal name (as indicated on the public record of such Grantor’s jurisdiction of formation or organization), jurisdiction of organization and the location of such Grantor’s chief executive office or sole place of business, as the case may be, are specified on Schedule 4 (as such schedule may be amended from time to time). Except as specified on Schedule 4 (as such schedule may be amended from time to time), no Grantor has changed its name (or used any other name on any filings with the Internal Revenue Service), jurisdiction of organization, chief executive office or principal place of business (as the case may be) within the five year period immediately prior to the Applicable Date.

4.4. Investment Property and Pledged Securities. (a) Such Grantor is the record and beneficial owner of all Pledged Capital Stock pledged by it hereunder, and such Grantor has good title to all such Pledged Capital Stock (except for such failure to have good title as would not conflict with Section 3.8 of the Initial Syndicated Credit Agreement and any corresponding provisions of the other First Priority Debt Documents) pledged by it hereunder, free of any and all Liens, except Permitted Liens.

(a) Schedule 2 (as such schedule may be amended from time to time) sets forth as of the most recent Applicable Date with respect to such Grantor under the heading “Pledged Capital Stock” all of the Pledged Capital Stock owned by such Grantor, and such Pledged Capital Stock as of such Applicable Date constitutes the percentage of issued and outstanding shares of stock, percentage of membership interests, percentage of partnership interests or percentage of beneficial interest of the respective Issuers thereof indicated on such schedule. Schedule 2 (as such schedule may be amended from time to time) sets forth as of the most recent Applicable Date with respect to each Grantor under the heading “Pledged Debt Securities” or “Pledged Notes” all of the Pledged Debt Securities and Pledged Notes owned by any Grantor.

 

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(b) The shares of Pledged Capital Stock pledged by such Grantor hereunder constitute all of the issued and outstanding shares of all classes of the Capital Stock of each Issuer of Capital Stock included in the Collateral owned by such Grantor. All the shares of the Pledged Capital Stock issued by any Issuer have been duly and validly authorized and issued and are fully paid and non-assessable.

(c) Each Grantor (i) as of the most recent Applicable Date, is and, subject to any transfers made in compliance with the First Priority Debt Documents, will continue to be the direct owner, beneficially and of record, of the Pledged Capital Stock indicated on Schedule 2 (as such schedule may be amended from time to time) as owned by such Grantor and (ii) will make no assignment, pledge, hypothecation or transfer of, or create or permit to exist any security interest in or other Lien on, the Pledged Capital Stock, except in each case as permitted by the First Priority Debt Documents.

(d) Except for restrictions and limitations imposed by the First Priority Debt Documents or securities laws generally or otherwise permitted to exist pursuant to the terms of the First Priority Debt Documents, the shares of Pledged Capital Stock are and will continue to be freely transferable and assignable, and as of the most recent Applicable Date, none of the Pledged Capital Stock is or will be subject to outstanding subscriptions, options, warrants, calls, rights or other agreements or commitments that might materially prohibit, impair, delay or otherwise affect the sale or disposition thereof pursuant hereto or the exercise by the Collateral Trustee of rights and remedies hereunder.

4.5. Intellectual Property. (a) Schedule 5 (as such schedule may be amended from time to time) lists as of the most recent Applicable Date all issued Patents and pending Patent applications of any Grantor with the United States Patent and Trademark Office, and all registered Trademarks and pending Trademark applications of any Grantor with the United States Patent and Trademark Office (collectively, “Registered Intellectual Property”).

(b) Except as disclosed in Schedule 3.9 to the Initial Syndicated Credit Agreement, each Grantor owns, or is licensed to use, all trademarks, trade names, copyrights, patents and other Intellectual Property necessary to its business, and, to the extent the Grantor holds title to such Intellectual Property, the use thereof by such Grantor does not infringe upon the rights of any other Person, except for any such failure to own, be licensed or infringements that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.

4.6. Commercial Tort Claims. Schedule 6 (as such schedule may be amended from time to time) lists, as of the most recent Applicable Date, each Commercial Tort Claim owned by any Grantor (other than any Parent Entity) that, in the reasonable determination of the Company, is estimated to be in excess of $70,000,000.

SECTION 5. COVENANTS

Each Grantor covenants and agrees (other than any Parent Entity, which covenants and agrees solely with respect to the Parent Collateral, and solely as set forth in Sections 5.2, 5.3 and 5.4) for the benefit of the First Priority Secured Parties that, until the Discharge of Obligations, in each case subject to the requirements of the Collateral Trust Agreement and any other intercreditor arrangements entered into pursuant to this Agreement and the First Priority Debt Documents:

 

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5.1. Covenants in First Priority Debt Documents. Such Grantor shall comply with the covenants in the First Priority Debt Documents pertaining to actions to be taken, or not taken, by such Grantor in respect of its portion of the Collateral (it being understood that nothing in this Section 5.1 shall require any Grantor to take, or forbear from taking, any action with respect to any Excluded Assets or any other action described in Section 3.1(d)).

5.2. Delivery of Pledged Capital Stock.

(a) If any of the Collateral consisting of Capital Stock of any Issuer is or shall become evidenced or represented by any certificate, such certificate shall be delivered to the Collateral Trustee (i) except as otherwise provided in Section 5.14 of the Initial Syndicated Credit Agreement, on the Effective Date in the case of the Capital Stock of any such Collateral owned by a Grantor on the Effective Date or (ii) in the case of any Capital Stock that is acquired or becomes evidenced or represented by a certificate after the Effective Date, no later than the next date of delivery of financials statements pursuant to Section 5.1(a) or (b) of the Initial Syndicated Credit Agreement covering a period that includes the date of such acquisition or the date on which such Capital Stock becomes so evidenced or represented (or if the Initial Syndicated Credit Agreement is no longer in effect, within 45 days (or, in the case of the fourth fiscal quarter of any fiscal year, 90 days) after the end of the fiscal quarter that includes the date of such acquisition or the date on which such Capital Stock becomes so evidenced or represented) (or such later date as the Controlling Party may agree in its reasonable discretion), in each case accompanied by undated stock powers or other instruments of transfer duly executed by the applicable Grantor in blank in a manner and form reasonably satisfactory to the Collateral Trustee, to be held as Collateral pursuant to this Agreement.

(b) Each Grantor acknowledges and agrees that, to the extent an interest in any limited liability company or limited partnership that is an Issuer and pledged hereunder is a “security” within the meaning of Article 8 of the New York UCC and is governed by Article 8 of the New York UCC, such interest shall be certificated, which certificate shall be delivered to the Collateral Trustee in accordance with Section 5.2(a). Each Grantor further acknowledges and agrees that with respect to any interest in any limited liability company or limited partnership that is an Issuer and pledged hereunder that is not a “security” within the meaning of Article 8 of the New York UCC, such Grantor shall at no time elect to treat any such interest as a “security” within the meaning of Article 8 of the New York UCC, nor shall such interest be represented by a certificate, unless such Grantor provides prior written notification to the Collateral Trustee of such election and such interest is thereafter represented by a certificate that is delivered to the Collateral Trustee (x) on the Effective Date (in the case of any such certificate owned by a Grantor on the Effective Date), (y) if such Collateral is acquired after the Effective Date (in the case of any other such Collateral) no later than the next date of delivery of financials statements pursuant to Section 5.1(a) or (b) of the Initial Syndicated Credit Agreement covering a period that includes the date of such acquisition of such Collateral (or if the Initial Syndicated Credit Agreement is no longer in effect, within 45 days (or, in the case of the fourth fiscal quarter of any fiscal year, 90 days) after the end of the fiscal quarter that includes the date of such

 

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acquisition of such Collateral) (or such later date as the Controlling Party may agree in its reasonable discretion) or (z) if such interest becomes represented by a certificate after the Effective Date (in the case Grantor elects to have such interest certificated after the dates specified in clause (x) or (y), as applicable) no later than the next date of delivery of financials statements pursuant to Section 5.1(a) or (b) of the Initial Syndicated Credit Agreement covering a period that includes the date on which such Collateral becomes so represented (or if the Initial Syndicated Credit Agreement is no longer in effect, within 45 days (or, in the case of the fourth fiscal quarter of any fiscal year, 90 days) after the end of the fiscal quarter that includes the date on which such Collateral becomes so represented) (or such later date as the Controlling Party may agree in its reasonable discretion), in each case pursuant to the terms hereof.

(c) Each Grantor which is either an Issuer or an owner of any Pledged Capital Stock hereby (A) consents to the grant by each other Grantor of the security interest hereunder in favor of the Collateral Trustee, (B) agrees to be bound by the terms of this Agreement relating to the Pledged Capital Stock issued by it and to comply with such terms insofar as such terms are applicable to it, (C) agrees to comply with instructions of the Collateral Trustee with respect to the applicable Pledged Capital Stock without further consent by the applicable Grantor following the occurrence and during the continuance of an Event of Default and (D) agrees to the transfer of any Pledged Capital Stock to the Collateral Trustee or its nominee following the occurrence and during the continuance of an Event of Default and, if an Event of Default has occurred and is continuing, to the substitution of the Collateral Trustee or its nominee as a partner, member or shareholder of the Issuer of the related Pledged Capital Stock that are included in the Collateral.

(d) Each delivery of shares of Pledged Capital Stock shall be accompanied by a schedule describing the applicable securities, which schedule shall be deemed attached hereto as part of Schedule 2 (as such schedule may be amended from time to time); provided that failure to attach any such schedule shall not affect the validity of the pledge of such Pledged Capital Stock. Each schedule so delivered shall supplement any prior schedules so delivered.

5.3. Maintenance of Perfected Security Interest; Further Documentation. (a) Subject to the provisions of Sections 3.1(c) and 3.1(d) hereof, and provided that in no event shall any Grantor be required to deliver Pledged Securities not required to be delivered pursuant to Section 5.2 hereof, such Grantor shall maintain the security interest created by this Agreement on the Collateral as a perfected security interest having at least the priority described in Section 4.2 hereof until the Collateral is released from such security interest pursuant to the terms of the Collateral Trust Agreement or by operation of law and shall cause such Collateral to remain free of Liens other than Permitted Liens.

(b) Subject to the provisions of Sections 3.1(c) and 3.1(d) hereof, at any time and from time to time, and at the sole expense of such Grantor, such Grantor will promptly and duly authorize, execute and deliver, and have recorded, such further instruments and documents and take such further actions as any First Priority Agent may reasonably request (or, if there is no First Priority Agent that is the agent in respect of any loan agreement, as is necessary or desirable or that a Holder Representative may reasonably request) to better assure, preserve, protect and perfect the security interests granted hereby, the full benefits of this Agreement and the rights and powers herein granted, including (i) the payment of any fees and taxes required in connection with the execution and delivery of this Agreement and the granting and perfecting of

 

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the security interests and (ii) the filing of any financing or continuation statements under the Uniform Commercial Code in effect in any applicable jurisdiction within the United States with respect to the security interests created hereby. Each Grantor will provide to the Collateral Trustee from time to time upon reasonable request, evidence reasonably satisfactory to the Collateral Trustee as to the perfection (to the extent required by this Agreement) and priority of the Lien created or intended to be created pursuant to this Agreement.

5.4. Changes in Locations, Name, Jurisdiction of Incorporation, etc. Such Grantor will not (i) change its jurisdiction of organization, the location of its chief executive office or the sole place of business from that referred to on Schedule 4 (as such schedule may be amended from time to time), (ii) change its name or (iii) change its type of organization, in each case unless such Grantor shall deliver to the Collateral Trustee and any First Priority Agent, on or before the date that is thirty (30) days (or such longer period as may be reasonably agreed to by the Controlling Party) following such event or occurrence, (i) written notice thereof and (ii) all additional financing statements and any other documents reasonably requested to maintain the validity, perfection and priority of the security interests in the Collateral provided for herein, subject to the provisions of Sections 3.1(c) and 3.1(d) hereof.

5.5. Intellectual Property. Each Grantor (other than any Parent Entity) agrees that, should it after the Effective Date acquire or file an application for the registration of any Registered Intellectual Property included in the Collateral (the “After-Acquired Intellectual Property”), (i) the provisions of Section 3 shall automatically apply thereto, (ii) any such After-Acquired Intellectual Property shall automatically become part of the Intellectual Property Collateral (except where it would be an Excluded Asset), and (iii) no later than the next date of delivery of financial statements pursuant to Section 5.1(a) of the Initial Syndicated Credit Agreement thereafter covering a period that includes the date on which such After-Acquired Intellectual Property is acquired or such application is filed, as the case may be (or if the Initial Syndicated Credit Agreement is no longer in effect, 90 days after the end of the fiscal year that includes the date on which such After-Acquired Intellectual Property is acquired or licensed or such application is filed, as the case may be) (or such later date as the Controlling Party may agree in its reasonable discretion), such Grantor shall (A) report such acquisition or filing to the Collateral Trustee and any First Priority Agent and (B) subject to Sections 3.1(c) and 3.1(d) hereof, execute and deliver, and have recorded with the United States Patent and Trademark Office, an Intellectual Property Security Agreement (or an amendment to any previously executed and filed Intellectual Property Security Agreement) with respect to such After-Acquired Intellectual Property, and any and all other agreements, instruments, documents, and papers as any First Priority Agent may reasonably request (or, if there is no First Priority Agent that is the agent in respect of any loan agreement, as is necessary or desirable or that a Holder Representative may reasonably request) to evidence the First Priority Secured Parties’ security interest in any such After-Acquired Intellectual Property.

5.6. Commercial Tort Claims. If such Grantor shall obtain an interest in any Commercial Tort Claim with an estimated value (in the reasonable determination of the Company) in excess of $70,000,000, such Grantor shall (a) on the Effective Date (in the case of any such interest in any Commercial Tort Claims owned by such Grantor on the Effective Date) or (b) promptly and in any event no later than the next date of delivery of financial statements pursuant to Section 5.1(a) or (b) of the Initial Syndicated Credit Agreement thereafter covering a

 

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period that includes the date of acquisition or creation of such Collateral (in the case of any other such interest in any Commercial Tort Claims) (or, if the Initial Syndicated Credit Agreement is no longer in effect, at the end of the first fiscal quarter that includes the date of acquisition or creation of such Collateral) (or such later date as the Controlling Party may agree in its reasonable discretion) sign and deliver a supplement to Schedule 6, reasonably identifying such new Commercial Tort Claim.

SECTION 6. REMEDIAL PROVISIONS

6.1. [Reserved].

6.2. Pledged Securities. (a) Unless an Event of Default shall have occurred and be continuing and the Collateral Trustee shall have given written notice to the relevant Grantor of the Collateral Trustee’s intent to exercise its corresponding rights pursuant to Section 6.2(b) (which notice shall be deemed to have been given immediately upon the occurrence of an “Event of Default” or similar term under Section 7.1(g) or (h) of the Initial Syndicated Credit Agreement or the corresponding provisions of any First Priority Debt Document, as applicable), each Grantor shall be permitted to (i) receive all dividends, interest, principal or other payments or distributions paid or made in respect of the Pledged Securities, to the extent not prohibited by the First Priority Debt Documents; provided, however, that any noncash dividends, interest, principal or other distributions that would constitute Pledged Capital Stock or Pledged Debt Securities, whether resulting from a subdivision, combination or reclassification of the outstanding equity interests of the issuer of any Pledged Securities or received in exchange for Pledged Securities or any part thereof, or in redemption thereof, or as a result of any merger, consolidation, acquisition or other exchange of assets to which such issuer may be a party or otherwise, shall be and become part of the Collateral, and, if received by such Grantor, shall not be commingled by such Grantor with any of its other funds or property but shall be held separate and apart therefrom, shall be held for the ratable benefit of the First Priority Secured Parties and shall (subject to Section 3.1(d)) be forthwith delivered to the Collateral Trustee in the same form as so received (with any necessary endorsement or instrument of assignment), and (ii) exercise all voting and corporate or other ownership rights with respect to the Pledged Securities; provided, however, that no Grantor shall in any event exercise such rights in any manner that would reasonably be expected to have a Material Adverse Effect. Unless an Event of Default shall have occurred and be continuing, the Collateral Trustee shall, upon written request of the relevant Grantor and at the relevant Grantor’s sole cost and expense, execute and deliver (or cause to be executed and delivered) to such Grantor all proxies and other instruments as such Grantor may reasonably request for the purpose of enabling such Grantor to exercise the voting and other rights that it is entitled to exercise pursuant to this Section 6.2.

(b) If an Event of Default shall occur and be continuing and the Collateral Trustee shall have given written notice to the relevant Grantor or Grantors of the Collateral Trustee’s intent to execute its rights pursuant to this Section 6.2(b) (which notice shall be deemed to have been given immediately upon the occurrence of an “Event of Default” or similar term under Section 7.1(g) or (h) of the Initial Syndicated Credit Agreement or the corresponding provisions of any First Priority Debt Document, as applicable): (i) the Collateral Trustee shall have the right to receive any and all dividends, interest, principal or other payments or distributions paid in respect to the Pledged Securities included in the Collateral and hold the

 

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proceeds thereof in the Collateral Account or make application thereof to the First Priority Secured Obligations in accordance with Section 6.4, (ii) all rights of each Grantor to exercise or refrain from exercising the voting and other consensual rights which it would otherwise be entitled to exercise pursuant hereto shall cease and all such rights shall thereupon become vested in the Collateral Trustee which shall thereupon have the sole right, but shall be under no obligation, to exercise or refrain from exercising such voting and other consensual rights and (iii) the Collateral Trustee shall have the right, without notice to any Grantor, to transfer all or any portion of the Investment Property included in the Collateral to its name or the name of its nominee or agent or the name of the applicable Grantor, endorsed or assigned in blank in favor of the Collateral Trustee, and each Grantor will, upon request, promptly give to the Collateral Trustee copies of any notices or other communications received by it with respect to Pledged Securities included in the Collateral registered in the name of such Grantor. In addition, if an Event of Default has occurred and is continuing, the Collateral Trustee shall have the right at any time, without notice to any Grantor, to exchange any certificates or instruments representing any Investment Property included in the Collateral for certificates or instruments of smaller or larger denominations. In order to permit the Collateral Trustee to exercise the voting and other consensual rights which it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions which it may be entitled to receive hereunder if an Event of Default has occurred and is continuing and notices have been provided in accordance with this Section 6.2, each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Collateral Trustee all proxies, dividend payment orders and other instruments as the Collateral Trustee may from time to time reasonably request and each Grantor acknowledges that the Collateral Trustee may utilize the power of attorney set forth herein. All dividends, interest, principal or other payments or distributions received by any Grantor contrary to the provisions of this Section 6.2(b) shall be held for the benefit of the Collateral Trustee, on behalf of the First Priority Secured Parties, shall be segregated from other property or funds of such Grantor and shall be promptly delivered to the Collateral Trustee promptly following demand in the same form as so received (with any necessary endorsement reasonably requested by the Collateral Trustee).

(c) Any notice given by the Collateral Trustee to the Company or any other Grantor under this Section 6.2 (i) may be given by telephone if promptly confirmed in writing, (ii) may be given with respect to one or more of the Grantors at the same or different times and (iii) may suspend the rights of the Grantors under paragraph (a) or (b) of this Section 6.2 in part without suspending all such rights (as specified by the Collateral Trustee) and without waiving or otherwise affecting the Collateral Trustee’s rights to give additional notices from time to time suspending other rights so long as an Event of Default has occurred and is continuing.

(d) Each Grantor hereby authorizes and instructs each Issuer of any Pledged Securities pledged by such Grantor hereunder to (i) comply with any instruction received by it from the Collateral Trustee in writing that (x) states that an Event of Default has occurred and is continuing and (y) is otherwise in accordance with the terms of this Agreement, without any other or further instructions from such Grantor, and each Grantor agrees that each Issuer shall be fully protected in so complying, and (ii) unless otherwise expressly permitted hereby, pay any dividends or other payments with respect to the Pledged Securities directly to the Collateral Trustee.

 

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6.3. Proceeds to be Turned Over to Collateral Trustee. Subject to the Collateral Trust Agreement, if an Event of Default shall occur and be continuing, at the written request of the Controlling Party or upon the commencement of any Collateral Enforcement Action permitted under the Collateral Trust Agreement, all Proceeds of Collateral received by any Grantor consisting of cash, Cash Equivalents and checks shall be held by such Grantor for the First Priority Secured Parties segregated from other funds of such Grantor, and shall forthwith upon receipt by such Grantor, be turned over to the Collateral Trustee in the exact form received by such Grantor (duly endorsed by such Grantor to the Collateral Trustee, if reasonably required). All such Proceeds of Collateral received by the Collateral Trustee under this Section 6.3 shall be held by the Collateral Trustee in the Collateral Account. All such Proceeds while held by the Collateral Trustee in a Collateral Account (or by such Grantor for the First Priority Secured Parties) shall continue to be held as collateral security for all the First Priority Secured Obligations and shall not constitute payment thereof until applied as provided in Section 6.4.

6.4. Application of Proceeds. The Collateral Trustee shall apply all or any part of Proceeds constituting Collateral, whether or not held in any Collateral Account, in payment of the First Priority Secured Obligations at the times and in the manner set forth in the Collateral Trust Agreement.

6.5. Code and Other Remedies. (a) If an Event of Default shall occur and be continuing, each Grantor agrees to deliver each item of Collateral to the Collateral Trustee promptly after demand therefor, and it is agreed that the Collateral Trustee, on behalf of the First Priority Secured Parties, may exercise, in addition to all other rights and remedies granted to them in this Agreement and in any other instrument or agreement securing, evidencing or relating to the First Priority Secured Obligations, all rights and remedies of a secured party under the New York UCC or its rights under any other applicable law or in equity. Without limiting the generality of the foregoing, the Collateral Trustee, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required under this Section 6.5 or otherwise required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses (other than the defense of payment or performance of the Discharge of Obligations), advertisements and notices are hereby waived to the extent permitted by applicable law), may in such circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part thereof, or consent to the use by any Grantor of any cash collateral arising in respect of the Collateral on such terms as the Collateral Trustee deems reasonable, and/or may forthwith sell, lease, license, assign, give option or options to purchase, or otherwise dispose of and deliver, or acquire by credit bid (either directly or through one or more acquisition vehicles) on behalf of the First Priority Secured Parties, the Collateral or any part thereof (or contract to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of any First Priority Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk, it being understood that any sale pursuant to the provisions of this Section 6.5 shall be deemed to conform to the commercially reasonable standards under the UCC with respect to any disposition of Collateral. Each First Priority Secured Party shall have the right upon any such public sale or sales, and, to the extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption in any Grantor, which right or equity is hereby waived and released. To the fullest extent

 

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permitted by applicable law, each purchaser at any such sale shall hold the property sold to it absolutely free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by applicable law) all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. Each Grantor agrees that, to the extent notice of sale shall be required by law, at least ten days’ notice to such Grantor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Collateral Trustee shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Collateral Trustee may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. The Collateral Trustee may sell the Collateral without giving any warranties as to the Collateral. Each such purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of any Grantor, and each Grantor hereby waives (to the extent permitted by law) all rights of redemption, stay and appraisal which such Grantor now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. As an alternative to exercising the power of sale herein conferred upon it, the Collateral Trustee may proceed by a suit or suits at law or in equity to foreclose this Agreement and to sell the Collateral or any portion thereof pursuant to a judgment or decree of a court or courts having competent jurisdiction or pursuant to a proceeding by a court-appointed receiver. In the event of a foreclosure by the Collateral Trustee on any of the Collateral pursuant to a public or private sale or other disposition, the Collateral Trustee or any First Priority Secured Party or any designee thereof (either directly or through one or more acquisition vehicles) may be the purchaser or licensor of any or all of such Collateral at any such sale or other disposition, and the Collateral Trustee shall be entitled to, subject to the terms of the Collateral Trust Agreement, as agent for and representative of the First Priority Secured Parties (but not any First Priority Secured Party or First Priority Secured Parties in its or their respective individual capacities unless the Majority First Priority Secured Parties shall otherwise agree in writing) shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such public sale, to use and apply any of the First Priority Secured Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Trustee on behalf of the First Priority Secured Parties at such sale or other disposition. For purposes hereof, a written agreement to purchase the Collateral or any portion thereof shall be treated as a sale thereof and the Collateral Trustee shall be free to carry out such sale pursuant to such agreement and no Grantor shall be entitled to the return of the Collateral or any portion thereof subject thereto, notwithstanding the fact that after the Collateral Trustee shall have entered into such an agreement all Event of Defaults shall have been remedied and the First Priority Secured Obligations paid in full. Each Grantor further agrees, at the Collateral Trustee’s reasonable request, if an Event of Default has occurred and is continuing, to assemble the Collateral and make it available to the Collateral Trustee at places which the Collateral Trustee shall reasonably select, whether at such Grantor’s premises or elsewhere.

(b) The Collateral Trustee shall apply the net proceeds of any action taken by it pursuant to this Section 6.5, after deducting all reasonable costs and expenses of the Collateral Trustee of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of the First Priority Secured Parties hereunder, including reasonable attorneys’ fees and disbursements, to the

 

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payment in whole or in part of the First Priority Secured Obligations in accordance with Section 6.4 and only after such application and after the payment by the Collateral Trustee of any other amount required by any provision of law, including Section 9- 615(a) of the New York UCC, need the Collateral Trustee account for the surplus, if any, to any Grantor. If the Collateral Trustee sells any of the Collateral upon credit, the Grantor will be credited only with payments actually made by the purchaser and received by the Collateral Trustee and applied to Indebtedness of the purchaser. In the event the purchaser fails to pay for the Collateral, the Collateral Trustee may resell the Collateral and the Grantor shall be credited with proceeds of the sale. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against any First Priority Secured Party arising out of the exercise by them of any rights hereunder.

(c) In view of the position of the Grantors in relation to the Collateral, or because of other current or future circumstances, a question may arise under the U.S. Securities Act of 1933, as now or hereafter in effect, or any similar statute hereafter enacted analogous in purpose or effect (such Act and any such similar statute as from time to time in effect being called the “Securities Laws”) with respect to any disposition of the Collateral permitted hereunder. Each Grantor understands that compliance with the Securities Laws might very strictly limit the course of conduct of the Collateral Trustee if the Collateral Trustee were to attempt to dispose of all or any part of the Collateral, and might also limit the extent to which or the manner in which any subsequent transferee of any Collateral could dispose of the same. Similarly, there may be other legal restrictions or limitations affecting the Collateral Trustee in any attempt to dispose of all or part of the Collateral under applicable “blue sky” or other state securities laws or similar laws analogous in purpose or effect. Each Grantor recognizes that in light of such restrictions and limitations the Collateral Trustee may, with respect to any sale of the Collateral, limit the purchasers to those who will agree, among other things, to acquire such Collateral for their own account, for investment, and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that in light of such restrictions and limitations, the Collateral Trustee, in its discretion (a) may proceed to make such a sale whether or not a registration statement for the purpose of registering such Collateral or part thereof shall have been filed under the Securities Laws and (b) may approach and negotiate with a limited number of potential purchasers (including a single potential purchaser) to effect such sale; provided that the Collateral Trustee is acting in accordance with the Securities Laws. Each Grantor acknowledges and agrees that any such sale might result in prices and other terms less favorable to the seller than if such sale were a public sale without such restrictions. In the event of any such sale, the Collateral Trustee shall incur no responsibility or liability for selling all or any part of the Collateral at a price that the Collateral Trustee, in its discretion, may in good faith deem reasonable under the circumstances, notwithstanding the possibility that a substantially higher price might have been realized if the sale were deferred until after registration as aforesaid or if more than a limited number of purchasers (or a single purchaser) were approached.

6.6. Remedies for Intellectual Property. (a) Upon the occurrence and during the continuance of an Event of Default, it is agreed that the Collateral Trustee shall have the right to take any of or all of the following actions at the same or different times with respect to any Collateral consisting of Intellectual Property, on demand, to cause the security interest granted hereunder to become an assignment, transfer and conveyance of any of or all such Collateral by the applicable Grantor (other than any Parent Entity) to the Collateral Trustee, for the benefit of

 

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the First Priority Secured Parties, or to license or sublicense, whether general, special or otherwise, and whether on an exclusive or nonexclusive basis, any such Collateral on such terms and conditions and in such manner as the Collateral Trustee shall determine; provided, however, that any such actions will be subject to any and all contractual terms governing the assignment, transfer, conveyance, licensing or sublicensing of such Collateral (including but not limited to the obtaining of consents and waivers).

(b) For the purpose of enabling the Collateral Trustee to exercise rights and remedies under this Agreement at such time as the Collateral Trustee shall be lawfully entitled to exercise such rights and remedies, each Grantor (other than any Parent Entity) hereby grants to the Collateral Trustee an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to such Grantor), to use, license or sublicense any of the Collateral consisting of Intellectual Property now owned or hereafter acquired by such Grantor, and wherever the same may be located, and including in such license access to all media in which any of the licensed items may be recorded or stored and to all computer software and programs used for the compilation or printout thereof, provided that such license shall automatically terminate upon the Discharge of Obligations. The use of such license by the Collateral Trustee may be exercised only upon the occurrence and during the continuance of an Event of Default; provided, however, that any license, sublicense or other transaction entered into by the Collateral Trustee in accordance herewith shall be binding upon each Grantor (other than any Parent Entity) notwithstanding any subsequent cure of an Event of Default. Any license granted herein by a Grantor to or under any of its Trademarks is subject to Grantor’s right to exercise reasonably sufficient quality control to avoid invalidation or abandonment of any such Trademark, and in the event the Collateral Trustee grants any licenses to any such Trademark pursuant to this Section, the Collateral Trustee or a Grantor must have the right under such license to exercise such quality control.

6.7. Waiver; Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of the Collateral are insufficient to pay its First Priority Secured Obligations and the fees and disbursements of any attorneys employed by any First Priority Secured Party to collect such deficiency.

6.8. Governmental Approvals.

(a) Notwithstanding anything herein to the contrary, this Agreement, the other First Priority Debt Documents and the transactions contemplated hereby and thereby, prior to the exercise of any rights and remedies provided in this Agreement or the other First Priority Debt Documents, including voting the Pledged Securities or a foreclosure of the security interest granted under this Agreement, except to the extent not prohibited by applicable Requirement of Law, (i) do not and will not constitute, create, or have the effect of constituting or creating, directly or indirectly, actual or practical ownership of the Company or any Subsidiary of the Company by the Collateral Trustee or the First Priority Secured Parties, or control, affirmative or negative, director indirect, by the Collateral Trustee or the First Priority Secured Parties over the management or any other aspect of the operation of the Company or any Subsidiary of the Company, which ownership and control remains exclusively and at all times in the Company and such Subsidiary, and (ii) do not and will not constitute the transfer, assignment, or disposition in any manner, voluntarily or involuntarily, directly or indirectly, of any Governmental Authorization at any time issued to the Company or any Subsidiary of the Company, or the transfer of control of the Company or any Subsidiary of the Company, including within the meaning of Section 310(d) of the Communications Act of 1934, as amended.

 

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(b) Notwithstanding any other provision of this Agreement, any foreclosure on, sale, transfer or other disposition of, or the exercise of any right to vote or consent with respect to, any of the Pledged Securities, as provided herein, or any other action taken or proposed to be taken by the Collateral Trustee hereunder which would affect the operational, voting or other control of the Company or any Subsidiary of the Company, shall be in accordance with applicable Requirements of Law.

(c) Notwithstanding anything to the contrary contained in this Agreement or in any other First Priority Debt Document, the Collateral Trustee shall not, without first obtaining the approval of the FCC or any other applicable Governmental Authority, take any action pursuant to this Agreement which would constitute or result in, or be deemed to constitute or result in, any assignment of any Governmental Authorization, including any FCC License, or any change of control of the Company or any Subsidiary of the Company, if such assignment or change in control would require, under then existing Requirements of Law (including the written rules and regulations promulgated by the FCC), the prior approval of the FCC or such other Governmental Authority.

(d) If the First Priority Agent or any other Holder Representative reasonably determines that the consent or approval of the FCC or any other Governmental Authority is required in connection with any of the actions which may be taken by the Collateral Trustee in the exercise of its rights under this Agreement or any of the other First Priority Debt Documents during the continuance of an Event of Default, then the Company, at its sole cost and expense, shall file or cause to be filed such applications for approval and shall take such other actions, in each case, as reasonably requested by the Controlling Party to obtain such consents or approvals, shall use its commercially reasonable efforts to secure such consent or approval and shall cooperate fully with the Collateral Trustee in any action to secure such consent or approval. Upon the exercise by the Collateral Trustee of any power, right, privilege or remedy pursuant to this Agreement during the continuance of an Event of Default which requires any consent, approval, recording, qualification or authorization of the FCC or any other Governmental Authority, the Company will promptly prepare, execute, deliver and file, or will promptly cause the preparation, execution, delivery and filing of, all applications, certificates, instruments and other documents and papers that the Collateral Trustee or the Controlling Party may reasonably request to obtain such governmental consent, approval, recording, qualification or authorization including the assignor’s or transferor’s portion of any application or applications for consent to the assignment of license necessary or appropriate under the rules and regulations of the FCC or any other Governmental Authority for approval of any sale, transfer or assignment to the Collateral Trustee or any other Person of the Pledged Securities. Subject to the provisions of applicable law, if the Company fails or refuses to execute, or fails or refuses to cause another Person to execute, such documents, the Collateral Trustee, as attorney-in-fact for the Company appointed pursuant to Section 7.1, or the clerk of any court of competent jurisdiction, may execute and file the same on behalf of the Company. In addition to the foregoing, during the continuance of an Event of Default, the Company agrees to take, or cause to be taken, any action which the Collateral Trustee or the Controlling Party may reasonably request in order to obtain

 

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and enjoy the full rights and benefits granted to the First Priority Secured Parties or the Collateral Trustee by this Agreement and any other instruments or agreements executed pursuant hereto, including, at the Company’s cost and expense, the exercise of the Company’s commercially reasonable efforts to cooperate in obtaining FCC or other governmental approval of any action or transaction contemplated by this Agreement or any other instrument or agreement executed pursuant hereto which is then required by law. Upon the occurrence and during the continuance of an Event of Default, the Collateral Trustee or the Controlling Party may seek from the FCC an involuntary transfer of control of any such FCC License for the purpose of seeking a bona fide purchaser to whom control will ultimately be transferred. Upon the occurrence and during the continuance of an Event of Default, at the Collateral Trustee’s request, the Grantor shall further use their reasonable best efforts to assist in obtaining approval of the FCC, if required, for any action or transactions contemplated hereby, including, without limitation, the preparation, execution and filing with the FCC of the assignor’s or transferor’s portion of any application for consent to the assignment of any FCC License or transfer of control necessary or appropriate under the FCC’s rules and regulations for approval of the transfer or assignment of any portion of the Collateral, together with any FCC License or other authorization.

SECTION 7. THE COLLATERAL TRUSTEE

7.1. Collateral Trustees Appointment as Attorney-in-Fact, etc. (a) Each Grantor hereby irrevocably constitutes and appoints the Collateral Trustee and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of such Grantor and in the name of such Grantor or in its own name, for the purpose of carrying out the terms of this Agreement, to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement, and, without limiting the generality of the foregoing, each Grantor hereby gives the Collateral Trustee the power and right (but, for the avoidance of doubt, not the obligation), on behalf of such Grantor, without notice to or assent by such Grantor, to do any or all of the following, in each case subject to the terms of the First Priority Debt Documents:

(i) [reserved];

(ii) in the case of any Intellectual Property owned by such Grantor and constituting Collateral, execute and deliver, and record or have recorded, any and all agreements, instruments, documents and papers as the First Priority Agent may reasonably request to evidence the First Priority Secured Parties’ security interest in such Intellectual Property and the goodwill and general intangibles of such Grantor relating thereto or represented thereby;

(iii) pay or discharge taxes and Liens (other than Permitted Liens) levied or placed on or threatened against the Collateral, effect any repairs or any insurance called for by the terms of this Agreement and pay all or any part of the premiums therefor and the costs thereof; provided, however, that if such taxes are being contested in good faith and by appropriate proceedings, the Collateral Trustee will consult with such Grantor before making any such payment;

 

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(iv) execute, in connection with the exercise of any right or remedy provided for in Section 6 hereof, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral; and

(v) (1) direct any party liable for any payment under any of the Collateral to make payment of any and all moneys due or to become due thereunder directly to the Collateral Trustee or as the Collateral Trustee shall direct; (2) ask or demand for, collect, and receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any Collateral and to give discharges and releases of all or any of the Collateral; (3) sign and endorse any invoices, freight or express bills, bills of lading, storage or warehouse receipts, drafts against debtors, assignments, verifications, notices and other documents in connection with any of the Collateral; (4) commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any portion thereof and to enforce any other right in respect of any Collateral; (5) defend any suit, action or proceeding brought against such Grantor with respect to any Collateral; (6) subject to the relevant Grantor’s approval, settle, compromise or adjust any such suit, action or proceeding and, in connection therewith, give such discharges or releases as the Collateral Trustee may deem appropriate; (7) assign any Patent or Trademark (along with the goodwill of the business to which any such Trademark pertains and subject to the covenant set forth in Section 6.6(b) hereof) included in the Collateral, for such term or terms, on such conditions, and in such manner, as the Collateral Trustee shall determine; and (8) generally, sell, transfer, pledge and make any agreement with respect to, or consent to any use of cash collateral arising in respect of, or otherwise deal with any of the Collateral as fully and completely as though the Collateral Trustee were the absolute owner thereof for all purposes, and do, at the Collateral Trustee’s option and such Grantor’s expense, at any time, or from time to time, all acts and things which the Collateral Trustee reasonably deems necessary to protect, preserve or realize upon the Collateral and the First Priority Secured Parties’ security interests therein and to effect the intent of this Agreement, all as fully and effectively as such Grantor might do, subject in each case to Section 6.8.

Anything in this Section 7.1(a) to the contrary notwithstanding, the Collateral Trustee agrees that it will not exercise any rights under the power of attorney provided for in this Section 7.1(a) unless an Event of Default shall have occurred and be continuing and the Collateral Trustee shall have given the Company prior written notice of its intent to exercise remedies under this Agreement.

(b) The reasonable and documented expenses of the Collateral Trustee incurred in connection with actions undertaken as provided in this Section 7.1, together with interest thereon at a rate per annum equal to the rate per annum at which interest would then be payable on past due “ABR Loans” or “base rate loans” (or similar term) (regardless of whether “ABR Loans” or “base rate loans” (or similar term) are then outstanding) under the Initial Syndicated Credit Agreement or, if the Initial Syndicated Credit Agreement is no longer in effect, any other syndicated credit agreement of the Company, from the date of payment by the Collateral Trustee to the date reimbursed by the relevant Grantor, shall be payable by such Grantor to the Collateral Trustee on demand and shall constitute First Priority Secured Obligations hereunder and under the First Priority Debt Documents.

 

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(c) Each First Priority Secured Party, by its authorization of the Collateral Trustee’s entering into this Agreement, consents to the exercise by the Collateral Trustee of any power, right or remedy provided for herein. All powers, authorizations and agencies contained in this Agreement are coupled with an interest and are irrevocable until the termination of this Agreement.

7.2. Duty of Collateral Trustee. Neither the Collateral Trustee nor any other First Priority Secured Party nor any of their respective officers, directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be liable for failure to demand, collect or realize upon any of the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of any Collateral upon the request of any Grantor or any other Person or to take any other action whatsoever with regard to the Collateral or any part thereof. The powers conferred on the First Priority Secured Parties hereunder are solely to protect the First Priority Secured Parties’ interests in the Collateral and shall not impose any duty upon any First Priority Secured Party to exercise any such powers. The First Priority Secured Parties shall be accountable only for amounts that they actually receive as a result of the exercise of such powers, and neither they nor any of their officers, directors, partners, employees, agents, attorneys and other advisors, attorneys-in-fact or affiliates shall be responsible to any Grantor for any act or failure to act hereunder, except to the extent that any such act or failure to act is found by a final and non-appealable decision of a court of competent jurisdiction to have resulted directly from their own gross negligence or willful misconduct.

7.3. Financing Statements; Intellectual Property Filings. (a) Each Grantor hereby authorizes the Collateral Trustee to file or record financing or continuation statements, and amendments thereto, and other filing or recording documents or instruments with respect to the Collateral in such form and in such offices as the Collateral Trustee reasonably determines appropriate to perfect or maintain the perfection of the security interests of the Collateral Trustee under this Agreement. Each Grantor agrees that such financing statements may describe the collateral in the same manner as described in the First Priority Security Documents or as “all assets” or “all personal property” of the undersigned, whether now owned or hereafter existing or acquired by the undersigned or such other description as the Collateral Trustee reasonably determines is necessary or advisable. Notwithstanding the foregoing authorizations, each Grantor agrees to prepare, record and file, at its own expense, such financing statements (and amendments or continuation statements when applicable) with respect to the Collateral now existing or hereafter created meeting the requirements of applicable state law in such manner and in such jurisdictions as are reasonably requested by the First Priority Agent (or, if there is no First Priority Agent that is the agent in respect of any loan agreement, as the Company determines is necessary or desirable) to perfect and maintain perfected the Security Interest in the Collateral, and to deliver a file stamped copy of each such financing statement or other evidence of filing to the Collateral Trustee.

 

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(b) The Collateral Trustee is authorized to file with the United States Patent and Trademark Office (“USPTO”) (or any successor office) such documents as may be necessary or advisable for the purpose of perfecting, confirming, continuing, enforcing or protecting the security interest in each item of Registered Intellectual Property of each Grantor included in the Collateral, and naming any Grantor or the Grantors as debtors and the Collateral Trustee as secured party and shall provide written notice to the Grantor prior to filing any such documents; provided that the failure to provide such prior notice shall not impact the effectiveness of any such filing or security interest. Notwithstanding the foregoing authorizations, each Grantor agrees to prepare, record and file, at its own expense, such filings with the USPTO with respect to the United States Intellectual Property constituting Collateral now existing or hereafter created meeting the requirements of applicable law as are reasonably requested by any First Priority Agent (or, if there is no First Priority Agent that is the agent in respect of any loan agreement, as the Company determines is necessary or desirable) to perfect and maintain perfected the Security Interest in the Collateral, and to deliver evidence of filing to the Collateral Trustee.

7.4. Authority of Collateral Trustee. Each Grantor acknowledges that the rights and responsibilities of the Collateral Trustee under this Agreement with respect to any action taken by the Collateral Trustee or the exercise or non-exercise by the Collateral Trustee of any option, voting right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Collateral Trustee and the other First Priority Secured Parties, be governed by the Collateral Trust Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between the Collateral Trustee and the Grantors, the Collateral Trustee shall be presumed to be acting as agent for the First Priority Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.

7.5. Concerning the Collateral Trustee. The Collateral Trustee shall be afforded all of the same rights, protections, immunities and indemnities afforded to it under the Collateral Trust Agreement as if the same were specifically set forth herein, mutatis mutandis.

SECTION 8. [RESERVED]

SECTION 9. MISCELLANEOUS

9.1. Amendments in Writing. None of the terms or provisions of this Agreement may be waived, amended, supplemented or otherwise modified except (i) in accordance with Section 6.3 of the Collateral Trust Agreement, (ii) pursuant to an Assumption Agreement or (iii) with respect to the Schedules to this Agreement, such Schedules may be amended or supplemented by any Grantor at any time by delivering such amended or supplemented schedule to the Collateral Trustee.

9.2. Notices. All notices, requests and demands to or upon the Collateral Trustee or any Grantor hereunder shall be effected in the manner provided for in Section 9.1 of the Collateral Trust Agreement; provided that any such notice, request or demand to or upon any Grantor (other than Parent or the Company) shall be addressed to such Grantor at its notice address set forth on Schedule 1 (as such schedule may be amended from time to time).

 

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9.3. No Waiver by Course of Conduct; Cumulative Remedies. Neither the Collateral Trustee nor any First Priority Secured Party shall by any act (except by a written instrument pursuant to Section 6.1), delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any Event of Default. No failure to exercise, nor any delay in exercising, on the part of the Collateral Trustee or any First Priority Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Collateral Trustee or any First Priority Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Collateral Trustee or such First Priority Secured Party would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies provided by law.

9.4. Enforcement Expenses; Indemnification.

(a) The parties hereto agree that the Collateral Trustee shall be entitled to indemnification and to reimbursement of its expenses incurred hereunder as provided in Section 4.5 of the Collateral Trust Agreement as if such section were set out in full herein and references to “the Company” therein were references to each Grantor, jointly and severally.

(b) Each Grantor agrees, jointly and severally, to pay, and to save the Collateral Trustee and the other First Priority Secured Parties harmless from, any and all liabilities with respect to, or resulting from any delay in paying, any and all stamp, excise, sales or other taxes which may be payable or determined to be payable with respect to any of the Collateral to the extent the Company would be required to do so pursuant to Section 9.3 of the Initial Syndicated Credit Agreement (and any corresponding provisions of the other First Priority Debt Documents).

(c) The agreements in this Section 9.4 shall survive resignation or removal of the Collateral Trustee and repayment of the First Priority Secured Obligations and all other amounts payable under the First Priority Debt Documents.

9.5. Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of the Collateral Trustee and the other First Priority Secured Parties and their successors and assigns; provided that, to the extent prohibited or restricted by the terms of any First Priority Debt Document, no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Collateral Trustee.

9.6. [Reserved].

9.7. Counterparts; Integration. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic transmission (e.g., “PDF” or “TIFF”) shall be effective as delivery of a manually executed counterpart of this Agreement. This Agreement and the other First Priority Debt Documents constitute the entire contract among the parties hereto and thereto, as applicable, relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.

 

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

9.9. Section Headings. The Section headings used in this Agreement are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof.

9.10. GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.

9.11. Jurisdiction; Consent to Service of Process.

(a) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York sitting in New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or any other First Priority Debt Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Notwithstanding the foregoing, the Collateral Trustee may bring an action or proceeding in other jurisdictions in respect of its rights under any First Priority Security Document governed by a law other than the laws of the State of New York or, with respect to the Collateral, in a jurisdiction where such Collateral is located.

(b) Each of the parties hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement or any other First Priority Debt Document in any court referred to in paragraph (a) of this Section 9.11. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

 

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(c) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.2. Nothing in this Agreement or any other First Priority Debt Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law.

9.12. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER FIRST PRIORITY DEBT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

9.13. Acknowledgments. Each Grantor hereby acknowledges that:

(a) it has been advised by counsel in the negotiation, execution and delivery of this Agreement and the other First Priority Debt Documents to which it is a party;

(b) neither the Collateral Trustee nor any other First Priority Secured Party has any fiduciary relationship with or duty to any Grantor arising out of or in connection with this Agreement or any of the other First Priority Debt Documents, and the relationship between the Grantors, on the one hand, and the Collateral Trustee and other First Priority Secured Parties, on the other hand, in connection herewith or therewith is solely that of debtor and creditor; and

(c) no joint venture is created hereby or by the other First Priority Debt Documents or otherwise exists by virtue of the transactions contemplated hereby among the First Priority Secured Parties or among the Grantors and the First Priority Secured Parties.

9.14. Additional Grantors; Releases.

(a) Each Person that is required to, or that Parent or the Company shall elect to, become a party to this Agreement pursuant to the Collateral Trust Agreement or any other First Priority Debt Document shall become a Grantor for all purposes of this Agreement upon execution and delivery by such Subsidiary (an “Additional Grantor”) of an Assumption Agreement in the form of Annex 1 hereto.

(b) The Liens on any asset constituting Collateral granted hereby securing all or any series of First Priority Secured Obligations will be released, in whole or in part, as provided in the Collateral Trust Agreement. The First Priority Secured Obligations created by this Agreement in respect of any Grantor (and all security interests granted by such Grantor hereunder) shall terminate and be released with respect to all or any series of First Priority Secured Obligations as provided in the Collateral Trust Agreement. Any representation, warranty or covenant contained in this Agreement relating to any such asset or Grantor shall no longer be deemed to be made with respect thereto once the Liens on such asset granted pursuant to this Agreement are released or this Agreement is terminated as to such Grantor.

 

29


(c) Upon Discharge of Obligations, all Liens created hereunder shall automatically terminate and be released, without the requirement for any further action by any Person and the Collateral Trustee shall, subject to the terms of the Collateral Trust Agreement (including the Collateral Trustee’s receipt of any officer’s certificate(s) or opinion(s) of counsel it may be entitled to thereunder) promptly execute any such documents as may be reasonably requested and prepared by Parent or the Company and at the Company’s expense to further document and evidence such termination and release of Liens created hereunder (including by way of assignment), and the First Priority Secured Obligations shall automatically terminate and be released, without the requirement for any further action by any Person and the Collateral Trustee shall promptly take such action and execute any such documents as may be reasonably requested by Parent or the Company and at the Company’s expense to further document and evidence such termination and release of the First Priority Secured Obligations; it being understood that the Collateral Trustee shall have no obligation to prepare any such requested documents.

9.15. Certain Specified Collateral. Notwithstanding anything to the contrary in this Collateral Agreement, the parties hereto acknowledge that, from and after the Closing Date, any Grantor or any of their Subsidiaries may, by written notice to the Collateral Trustee, elect to provide additional collateral for the benefit of the holders of any series of First Priority Secured Obligations, without providing such additional collateral for the benefit of the holders of any other series of First Priority Secured Obligations so long as such provision is not in violation of any First Priority Debt Documents (such collateral, the “Specified Collateral” and the First Priority Secured Obligations secured by such collateral, the “Specified First Priority Secured Obligations”). The security interest in any such Specified Collateral shall be held solely for the benefit of the holders of the series of First Priority Secured Obligations specified in such notice, and the rights of the holders of all First Priority Secured Obligations set forth herein shall be modified to the extent necessary so that the benefits of the security interest in such Specified Collateral are granted solely to the holders of such designated series of First Priority Secured Obligations. To the extent any Specified Collateral would otherwise have been an Excluded Asset, any reference in this Agreement to “Excluded Assets” shall be deemed to refer to such Specified Collateral only with respect to the First Priority Secured Obligations other than the applicable Specified First Priority Secured Obligations.

9.16. Successor Collateral Trustee. Upon the appointment of any successor to the Collateral Trustee pursuant to Section 8.9 of the Collateral Trust Agreement, such successor shall thereupon automatically succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Trustee under this Agreement and all references to the Collateral Trustee herein shall refer to such successor, and the retiring Collateral Trustee shall thereupon be discharged from its duties and obligations under this Agreement. After any retiring Collateral Trustee’s resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement.

 

30


9.17. Collateral Trust Agreement Governs. In the event of any conflict or inconsistency between the provisions of the Collateral Trust Agreement and this Agreement with respect to the Collateral and Liens securing the First Priority Secured Obligations, the provisions of the Collateral Trust Agreement shall prevail.

9.18. Electronic Execution. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries 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, physical delivery thereof 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, 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; provided that, in respect of documents to be signed by entities established within the European Union, the Electronic Signature qualifies as a “qualified electronic signature” within the meaning of the Regulation (EU) n°910/2014 of the European parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transaction in the internal market as amended from time to time Each party hereby consents to the use of any third party electronic signature capture service providers as may be reasonably chosen by a signatory hereof; provided that nothing herein shall require the Collateral Trustee to accept Electronic Signatures in any form or format without its prior written consent.

(signature pages follow)

 

31


IN WITNESS WHEREOF, each of the undersigned has caused this Collateral Agreement to be duly executed and delivered as of the date first above written.

 

COMPANY:
T-MOBILE USA, INC.
By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer

[Signature Page to Collateral Agreement]


GUARANTORS:
T-MOBILE US, INC.
By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer

[Signature Page to Collateral Agreement]


IBSV LLC

LAYER3 TV, INC.

L3TV CHICAGOLAND CABLE SYSTEM, LLC

L3TV COLORADO CABLE SYSTEM, LLC

L3TV DALLAS CABLE SYSTEM, LLC

L3TV DC CABLE SYSTEM, LLC

L3TV DETROIT CABLE SYSTEM, LLC

L3TV LOS ANGELES CABLE SYSTEM, LLC

L3TV MINNEAPOLIS CABLE SYSTEM, LLC

L3TV NEW YORK CABLE SYSTEM, LLC

L3TV PHILADELPHIA CABLE SYSTEM, LLC

L3TV SAN FRANCISCO CABLE SYSTEM, LLC

L3TV SEATTLE CABLE SYSTEM, LLC

METROPCS CALIFORNIA, LLC

METROPCS FLORIDA, LLC

METROPCS GEORGIA, LLC

METROPCS MASSACHUSETTS, LLC

METROPCS MICHIGAN, LLC

METROPCS NETWORKS CALIFORNIA, LLC

METROPCS NETWORKS FLORIDA, LLC

METROPCS NEVADA, LLC

METROPCS NEW YORK, LLC

METROPCS PENNSYLVANIA, LLC

METROPCS TEXAS, LLC

PUSHSPRING, INC.

T-MOBILE CENTRAL LLC

T-MOBILE FINANCIAL LLC

T-MOBILE LEASING LLC

T-MOBILE LICENSE LLC

T-MOBILE NORTHEAST LLC

T-MOBILE PCS HOLDINGS LLC

T-MOBILE PUERTO RICO HOLDINGS LLC

T-MOBILE PUERTO RICO LLC

T-MOBILE RESOURCES CORPORATION

T-MOBILE SOUTH LLC

T-MOBILE SUBSIDIARY IV LLC

T-MOBILE WEST LLC

THEORY MOBILE, INC.

 

By:  

/s/ J. Braxton Carter

  Name: J. Braxton Carter
  Title:   Authorized Person

[Signature Page to Collateral Agreement]


ALDA WIRELESS HOLDINGS, LLC

AMERICAN TELECASTING DEVELOPMENT, LLC

AMERICAN TELECASTING OF ANCHORAGE, LLC

AMERICAN TELECASTING OF COLUMBUS, LLC

AMERICAN TELECASTING OF DENVER, LLC

AMERICAN TELECASTING OF FORT MYERS, LLC

AMERICAN TELECASTING OF FT. COLLINS, LLC

AMERICAN TELECASTING OF GREEN BAY, LLC

AMERICAN TELECASTING OF LANSING, LLC

AMERICAN TELECASTING OF LINCOLN, LLC

AMERICAN TELECASTING OF LITTLE ROCK, LLC

AMERICAN TELECASTING OF LOUISVILLE, LLC

AMERICAN TELECASTING OF MEDFORD, LLC

AMERICAN TELECASTING OF MICHIANA, LLC

AMERICAN TELECASTING OF MONTEREY, LLC

AMERICAN TELECASTING OF REDDING, LLC

AMERICAN TELECASTING OF SANTA BARBARA, LLC

AMERICAN TELECASTING OF SEATTLE, LLC

AMERICAN TELECASTING OF SHERIDAN, LLC

AMERICAN TELECASTING OF YUBA CITY, LLC

APC REALTY AND EQUIPMENT COMPANY, LLC

ASSURANCE WIRELESS OF SOUTH CAROLINA, LLC

ASSURANCE WIRELESS USA, L.P.

ATI SUB, LLC

BOOST WORLDWIDE, LLC

BROADCAST CABLE, LLC

CLEAR WIRELESS LLC

CLEARWIRE COMMUNICATIONS LLC

CLEARWIRE CORPORATION

CLEARWIRE HAWAII PARTNERS SPECTRUM, LLC

CLEARWIRE IP HOLDINGS LLC

CLEARWIRE LEGACY LLC

CLEARWIRE SPECTRUM HOLDINGS II LLC

CLEARWIRE SPECTRUM HOLDINGS III LLC

CLEARWIRE SPECTRUM HOLDINGS LLC

CLEARWIRE XOHM LLC

FIXED WIRELESS HOLDINGS, LLC

FRESNO MMDS ASSOCIATES, LLC

INDEPENDENT WIRELESS ONE LEASED REALTY CORPORATION

KENNEWICK LICENSING, LLC

MINORCO, LLC

 

By:  

/s/ Jud Henry

  Name: Jud Henry
  Title:   Vice President and Treasurer

[Signature Page to Collateral Agreement]


NEXTEL COMMUNICATIONS OF THE MID-ATLANTIC, INC.

NEXTEL OF NEW YORK, INC.

NEXTEL RETAIL STORES, LLC

NEXTEL SOUTH CORP.

NEXTEL SYSTEMS, LLC

NEXTEL WEST CORP.

NSAC, LLC

PCTV GOLD II, LLC

PCTV SUB, LLC

PEOPLE’S CHOICE TV OF HOUSTON, LLC

PEOPLE’S CHOICE TV OF ST. LOUIS, LLC

PRWIRELESS PR, LLC

SIHI NEW ZEALAND HOLDCO, INC.

SN HOLDINGS (BR I) LLC

SN UHC 1, INC.

SN UHC 3, INC.

SN UHC 4, INC.

SPEEDCHOICE OF DETROIT, LLC

SPEEDCHOICE OF PHOENIX, LLC

SPRINT (BAY AREA), LLC

SPRINT COMMUNICATIONS COMPANY L.P.

SPRINT COMMUNICATIONS COMPANY OF NEW HAMPSHIRE, INC.

SPRINT COMMUNICATIONS COMPANY OF VIRGINIA, INC.

SPRINT CONNECT LLC

SPRINT CORPORATION

SPRINT CORPORATION

SPRINT EBUSINESS, INC.

SPRINT ENTERPRISE MOBILITY, LLC

SPRINT ENTERPRISE NETWORK SERVICES, INC.

SPRINT EWIRELESS, INC.

SPRINT HOLDCO, LLC

SPRINT INTERNATIONAL COMMUNICATIONS CORPORATION

SPRINT INTERNATIONAL HOLDING, INC.

SPRINT INTERNATIONAL INCORPORATED

SPRINT INTERNATIONAL NETWORK COMPANY LLC

SPRINT PCS ASSETS, L.L.C.

SPRINT SOLUTIONS, INC.

SPRINT SPECTRUM HOLDING COMPANY, LLC

SPRINT SPECTRUM L.P.

SPRINT SPECTRUM REALTY COMPANY, LLC

SPRINT/UNITED MANAGEMENT COMPANY

 

By:  

/s/ Jud Henry

  Name: Jud Henry
  Title:   Vice President and Treasurer

[Signature Page to Collateral Agreement]


SPRINTCOM, INC.

SWV SIX, INC.

TDI ACQUISITION SUB, LLC

TRANSWORLD TELECOM II, LLC

US TELECOM, INC.

USST OF TEXAS, INC.

UTELCOM LLC

VIRGIN MOBILE USA – EVOLUTION, LLC

VMU GP, LLC

WBS OF AMERICA, LLC

WBS OF SACRAMENTO, LLC

WBSY LICENSING, LLC

WCOF, LLC

WIRELESS BROADBAND SERVICES OF AMERICA, L.L.C.

WIRELINE LEASING CO., INC.

 

By:  

/s/ Jud Henry

  Name: Jud Henry
  Title:   Vice President and Treasurer

[Signature Page to Collateral Agreement]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Trustee
By:  

/s/ Annie Jaghatspanyan

  Name: Annie Jaghatspanyan
  Title:   Vice President
By:  

/s/ James Briggs

  Name: James Briggs
  Title:   Vice President

[Signature Page to Collateral Agreement]

EX-10.8

Exhibit 10.8

 

 

 

COLLATERAL TRUST AND INTERCREDITOR AGREEMENT

Dated as of April 1, 2020

among

T-MOBILE US, INC.,

T-MOBILE USA, INC.,

and

CERTAIN OF THEIR SUBSIDIARIES PARTIES HERETO,

as Grantors

DEUTSCHE BANK AG NEW YORK BRANCH,

as First Priority Agent

Each of the Holder Representatives party hereto,

and

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Collateral Trustee

 

 

 


TABLE OF CONTENTS

 

         Page  

PREAMBLE

     1  

DECLARATION OF TRUST:

     1  

SECTION 1. DEFINED TERMS

     2  

1.1

 

Definitions

     2  

SECTION 2. ENFORCEMENT OF SECURED OBLIGATIONS

     17  

2.1

 

Notices of Events of Default

     17  

2.2

 

General Authority of the Collateral Trustee over the Collateral

     18  

2.3

 

Right to Initiate Judicial Proceedings

     18  

2.4

 

Right to Appoint a Receiver

     18  

2.5

 

Exercise of Powers; Instructions of the Controlling Party

     19  

2.6

 

Remedies Not Exclusive

     19  

2.7

 

Waiver and Estoppel

     20  

2.8

 

Limitation on Collateral Trustee’s Duty in Respect of Collateral

     20  

2.9

 

Limitation by Law

     20  

2.10

 

Rights of Secured Parties under Secured Instruments

     21  

2.11

 

Collateral Use Prior to Event of Default

     21  

2.12

 

Copies to Company

     22  

SECTION 3. COLLATERAL ACCOUNT; DISTRIBUTIONS

     22  

3.1

 

The Collateral Account

     22  

3.2

 

Control of Collateral Account

     22  

3.3

 

Investment of Funds Deposited in Collateral Account

     22  

3.4

 

Application of Moneys

     23  

3.5

 

Amounts Held for Contingent Secured Obligations

     25  

3.6

 

Collateral Trustee’s Calculations

     26  

3.7

 

Pro Rata Sharing

     26  

3.8

 

Collateral Account Information and Access

     26  

SECTION 4. AGREEMENTS WITH COLLATERAL TRUSTEE

     26  

4.1

 

Delivery of Secured Instruments

     26  

4.2

 

Compensation and Expenses

     27  

4.3

 

Stamp and Other Similar Taxes

     27  

4.4

 

Filing Fees, Etc.

     27  

4.5

 

Indemnification

     28  

4.6

 

Trustee’s Lien

     28  

4.7

 

Further Assurances

     28  

4.8

 

Inspection of Properties and Books

     29  

 

-i-


         Page  

SECTION 5. THE COLLATERAL TRUSTEE

     29  

5.1

 

Acceptance of Trust

     29  

5.2

 

Exculpatory Provisions

     29  

5.3

 

Delegation of Duties

     31  

5.4

 

Reliance by Collateral Trustee

     31  

5.5

 

Limitations on Duties of Trustee

     32  

5.6

 

Moneys to be Held in Trust

     33  

5.7

 

Resignation and Removal of the Collateral Trustee

     33  

5.8

 

Status of Successor Collateral Trustee

     34  

5.9

 

Merger of the Collateral Trustee

     34  

5.10

 

Co-Collateral Trustee; Separate Collateral Trustee

     34  

5.11

 

Treatment of Payee or Indorsee by Collateral Trustee; Representatives of Secured Parties

     36  

SECTION 6. MISCELLANEOUS

     36  

6.1

 

Notices

     36  

6.2

 

No Waivers

     36  

6.3

 

Amendments, Supplements and Waivers

     36  

6.4

 

Holders of Secured Non-Loan Exposure

     38  

6.5

 

Headings

     39  

6.6

 

Severability

     39  

6.7

 

Successors and Assigns

     39  

6.8

 

Currency Conversions

     39  

6.9

 

Acknowledgements

     39  

6.10

 

Governing Law

     39  

6.11

 

Counterparts

     39  

6.12

 

Termination and Release

     40  

6.13

 

New Grantors

     41  

6.14

 

Inspection by Regulatory Agencies

     41  

6.15

 

Confidentiality

     42  

6.16

 

Submission to Jurisdiction; Waivers

     42  

6.17

 

WAIVERS OF JURY TRIAL

     42  

6.18

 

Conflicts

     43  

6.19

 

Consequential Damages

     43  

6.20

 

Force Majeure

     43  

6.21

 

USA PATRIOT Act

     43  

6.22

 

Incorporation by Reference

     43  

SECTION 7. DESIGNATION OF ADDITIONAL SECURED OBLIGATIONS

     43  

7.1

 

Designations of Secured Obligations

     43  

7.2

 

Termination of Designation

     44  

SECTION 8. INTERCREDITOR PROVISIONS

     45  

8.1

 

Junior Priority Debt

     45  

8.2

 

First Priority Debt

     51  

8.3

 

First Priority Secured Obligations Unconditional

     53  

8.4

 

Collateral

     53  

8.5

 

Certain Specified Collateral

     53  

8.6

 

Information Concerning Financial Condition of the Grantors

     54  

8.7

 

Similar Liens and Agreements

     54  

 

-ii-


ANNEXES

 

  I

Trust Security Documents

EXHIBITS

 

  A

Form of Notice of Event of Default

 

  B

Form of Notice of Acceleration

 

  C

Form of Joinder Agreement

 

  D

Form of Notice of Designation

 

  E

Form of Notice of Cancellation

 

-iii-


COLLATERAL TRUST AND INTERCREDITOR AGREEMENT, dated as of April 1, 2020, among T-MOBILE US, INC., a Delaware corporation (“Parent”), T-MOBILE USA, INC., a Delaware corporation (the “Company”), the subsidiaries of Parent from time to time parties hereto (together with Parent and the Company, the “Grantors”), DEUTSCHE BANK AG NEW YORK BRANCH, as First Priority Agent (as defined below), each Holder Representative (as defined below) from time to time party hereto, and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, as Collateral Trustee (together with any successors, the “Collateral Trustee”).

W I T N E S S E T H:

WHEREAS, Parent, the Company and the other Grantors have agreed to secure certain of their obligations from time to time outstanding:

DECLARATION OF TRUST:

NOW, THEREFORE, in order to secure the prompt and complete payment and performance when due of the Secured Obligations (such term and certain other capitalized terms used hereinafter being defined in subsection 1.1) and in consideration of the premises and the mutual agreements set forth herein, the Collateral Trustee does hereby declare that it holds and will hold in trust under this Collateral Trust Agreement all of its right, title and interest in, to and under the Trust Security Documents and the collateral granted to the Collateral Trustee thereunder whether now existing or hereafter arising (and the Grantors do hereby consent thereto).

TO HAVE AND TO HOLD the Trust Security Documents and the entire Collateral (the right, title and interest of the Collateral Trustee in, to and under the Trust Security Documents and the Collateral being hereinafter referred to as the “Trust Estate”) unto the Collateral Trustee and its successors in trust under this Collateral Trust Agreement and its assigns in accordance with the terms of this Collateral Trust Agreement.

IN TRUST NEVERTHELESS, under and subject to the conditions herein set forth and for the benefit of the Secured Parties, and for the security of the payment of all Secured Obligations, and as security for the performance of and compliance with the covenants and conditions of this Collateral Trust Agreement, each of the Secured Instruments and each of the Trust Security Documents.

PROVIDED, HOWEVER, that these presents are upon the condition that if the Grantors, their successors or assigns, shall satisfy the conditions set forth in subsection 6.12(a), then this Collateral Trust Agreement, and the estates and rights hereby assigned, shall cease, determine and be void; otherwise they shall remain and be in full force and effect.

IT IS HEREBY FURTHER COVENANTED AND DECLARED, that the Trust Estate is to be held and applied by the Collateral Trustee, subject to the further covenants, conditions and trusts hereinafter set forth.


SECTION 1.

DEFINED TERMS

1.1 Definitions.

(a) Unless otherwise defined herein, terms defined in the Initial Syndicated Credit Agreement and used herein shall have the meanings given to them in the Initial Syndicated Credit Agreement.

(b) The following terms shall have the respective meanings set forth below:

Acceleration Event” shall mean, with respect to any Secured Obligations, (i) such Secured Obligations are currently due and payable in full and have not been paid in full and any applicable grace period has expired or (ii) an Event of Default has occurred under the relevant Secured Instrument and, as a result thereof, all such Secured Obligations outstanding have become due and payable and have not been paid in full.

Bankruptcy Code” shall mean the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as amended from time to time.

Bankruptcy Law” shall mean each of the Bankruptcy Code and any similar federal, state or foreign law for the relief of debtors.

Business Day” shall mean any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed or are in fact closed.

Class” shall mean, as the context may require, the First Priority Class or the Junior Priority Class.

Collateral” shall mean, collectively, all collateral in which the Collateral Trustee is granted (or purported to be granted) a security interest pursuant to any Trust Security Document.

Collateral Account” shall have the meaning assigned in subsection 3.1.

Collateral Enforcement Action” shall mean, with respect to any Secured Party, for such Secured Party, whether or not in consultation with any other Secured Party, to exercise, seek to exercise or join any Person in exercising, or to institute or to maintain or to participate in any action or proceeding with respect to, any rights or remedies with respect to any Collateral, including (i) instituting or maintaining, or joining any Person in instituting or maintaining, any enforcement, contest, protest, attachment, collection, execution, levy or foreclosure action or proceeding with respect to any Collateral, whether under any Secured Instrument, Trust Security Document or otherwise, (ii) exercising any right of set-off with respect to any Grantor, or (iii) exercising any other enforcement right or remedy with respect to any Collateral under the Uniform Commercial Code of any applicable jurisdiction or under any Bankruptcy Law or other applicable law (but excluding, for the avoidance of doubt, the exercise of rights against any cash collateral provided by any Grantor to any holder of First Priority L/C Facility Obligations or any other letter of credit obligations or against any property not constituting “Collateral” hereunder).

 

-2-


Collateral Trust Agreement” shall mean this Collateral Trust and Intercreditor Agreement as the same may from time to time be amended, modified, supplemented, extended or renewed.

Collateral Trustee” shall have the meaning set forth in the recitals hereto.

Company” shall have the meaning set forth in the recitals hereto.

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 ownership of voting securities, by agreement or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

Controlling Party” shall mean (a) at any time when any First Priority Secured Obligations or commitments in respect thereof have not been paid in full, (i) the First Priority Agent or (ii) if (1) a Notice of Acceleration has been delivered (and remains in effect) in respect of any Material First Priority Secured Obligations and (2) both (x) the First Priority Secured Obligations in respect of which the First Priority Agent is the Holder Representative have not been accelerated (or subject to a termination event, as the case may be) and (y) the First Priority Agent has not commenced (or instructed the Collateral Trustee to commence) and is not diligently pursuing (or has not instructed the Collateral Trustee to diligently pursue) any Collateral Enforcement Action with respect to a material portion of any Collateral within 180 consecutive days since the delivery of such Notice of Acceleration, the Holder Representative for the series of obligations constituting the then highest Outstanding Amount of Material First Priority Secured Obligations in respect of which a Notice of Acceleration has been delivered, provided that upon the acceleration of (or the occurrence of a termination event in respect of) the First Priority Secured Obligations in respect of which the First Priority Agent is the Holder Representative or upon the commencement by the First Priority Agent (or the Collateral Trustee upon instruction of the First Priority Agent) of any Collateral Enforcement Action with respect to a material portion of any Collateral, the First Priority Agent shall become the Controlling Party, or (iii) if (1) a Notice of Acceleration has been delivered (and remains in effect) in respect of any Material Junior Priority Secured Obligations and (2) both (x) no series of Material First Priority Secured Obligations has been accelerated (or subject to a termination event, as the case may be) and (y) no Holder Representative of any Material First Priority Secured Obligations has commenced (or instructed the Collateral Trustee to diligently pursue) any Collateral Enforcement Action with respect to a material portion of any Collateral within 270 consecutive days since the delivery of such Notice of Acceleration, the Junior Priority Agent; provided that upon the acceleration of (or the occurrence of a termination event in respect of) any Material First Priority Secured Obligations or upon the commencement by any Holder Representative in respect of any series of Material First Priority Secured Obligations (or the Collateral Trustee upon instruction of such Holder Representative) of any Collateral Enforcement Action with respect to a material portion of the Collateral, such Holder Representative shall become the Controlling Party in accordance with the terms of clause (a) above and (b) at any time when all First Priority Secured Obligations or commitments in respect thereof have been paid in full and any Junior Priority Secured Obligations or commitments in respect thereof remain outstanding, the Junior Priority Agent.

Designated Cash Management Obligations” shall mean the due and punctual payment and performance of any and all obligations of the Company and each Subsidiary (whether absolute or contingent and however and whenever created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefor)) arising

 

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in respect of cash management facilities or services including treasury, depositary, disbursement, lockbox, funds transfer, pooling, netting, overdraft, stored value card, purchase card (including so-called “procurement cards” or “P-cards”), debit card, credit card, e-payable, cash management and similar services and any automated clearing house transfer of funds, in each case that have been designated by the Company in accordance with this Collateral Trust Agreement from time to time as constituting “Designated Cash Management Obligations”.

Designated Hedging Obligations” shall mean the due and punctual payment and performance of any and all obligations of the Company and each Subsidiary arising under each Hedge Agreement that has been designated by the Company in accordance with this Collateral Trust Agreement from time to time as constituting “Designated Hedging Obligations”.

Designated L/C Facility” means one or more letter of credit facilities that has been designated by the Company in accordance with this Collateral Trust Agreement from time to time as constituting “Designated L/C Facilities” (in each case as may be amended, supplemented or otherwise modified from time to time).

Designated L/C Facility Obligations” shall mean, collectively, the obligations and liabilities of the Grantors (including, without limitation, Post-Petition Interest), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with any Designated L/C Facility.

DIP Financing” shall mean any financing obtained by any Grantor during any Insolvency Proceeding or otherwise pursuant to any Bankruptcy Law, including any such financing obtained by any Grantor under Section 363 or 364 of the Bankruptcy Code or under any similar provision of any Bankruptcy Law or consisting of any arrangement for use of cash collateral held in respect of any Secured Obligation under Section 363 of the Bankruptcy Code or under any similar provision of any Bankruptcy Law.

Distribution Date” shall mean each date fixed by the Collateral Trustee for a distribution to the Secured Parties of funds held in the Collateral Account.

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

Effective Date” shall mean April 1, 2020.

Electronic Signature”: any electronic symbol or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.

Eligible First Priority Secured Parties” shall mean (a) in respect of any First Priority Debt Documents (other than the Intra-Company Lease Agreements and the Performance Agreements), the Secured Parties eligible to vote on applicable matters thereunder, and (b) in respect of the Intra-Company Lease Agreements and the Performance Agreements, the relevant Holder Representative.

Eligible Junior Priority Secured Parties” shall mean the Secured Parties eligible to vote on applicable matters under the applicable Junior Priority Debt Documents.

Existing Sprint Spectrum-Backed Notes” means the Existing Sprint Spectrum Issuers’ Series 2018-1 4.738% Senior Secured Notes, Class A-1, Series 2018-1 5.152% Senior Secured Notes, Class A-2, Series 2016-1 3.360% Senior Secured Notes, Class A-1, and any other note or series of notes issued under the Existing Sprint Spectrum Indenture from time to time.

 

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Existing Sprint Spectrum Indenture” means the Indenture, dated as of October 27, 2016, by and among Sprint Spectrum Co LLC, Sprint Spectrum Co II LLC, Sprint Spectrum Co III LLC, and Deutsche Bank Trust Company Americas, in its capacity as trustee, as amended, supplemented or otherwise modified from time to time, including as supplemented with respect to each series of Existing Sprint Spectrum-Backed Notes.

Extensions of Credit” shall mean, with respect to any holder of First Priority Secured Obligations or Junior Priority Secured Obligations, the aggregate principal amount of all loans, notes or letters of credit (including any reimbursement obligations and cash collateral obligations in respect thereof) under the First Priority Debt Documents or the Junior Priority Debt Document, as the case may be, held by such holder then outstanding.

Event of Default” shall mean an “Event of Default”, “Termination Event” or any equivalent term as such term is used in any First Priority Debt Document or Junior Priority Debt Document, respectively, or any other event constituting a breach of a Grantor’s contractual obligations under any First Priority Debt Document or Junior Priority Debt Document and the continuation thereof beyond any period of grace applicable thereto.

FCC Licenses” shall mean all licenses or permits now or hereafter issued by the United States Federal Communications Commission and any successor agency that is responsible for regulating the United States telecommunications industry.

First Priority Additional Debt” shall mean, collectively, any Indebtedness or other obligation designated by the Company as “First Priority Additional Debt” pursuant to subsection 7.1 provided, however, that, (i) such Indebtedness or other obligation is permitted to be incurred and secured on such basis by each First Priority Debt Document and each Junior Priority Debt Document and (ii) the Holder Representative in respect of such Indebtedness or other obligation shall have become party to this Collateral Trust Agreement pursuant to, and by satisfying the conditions set forth in, subsection 7.1 hereof.

First Priority Additional Debt Documents” shall mean any agreements or other documents entered into in connection with any First Priority Additional Debt.

First Priority Additional Debt Representative” shall mean any Person designated by the Company pursuant to subsection 7.1 as a “First Priority Additional Debt Representative” for any First Priority Additional Debt, and any successor First Priority Additional Debt Representative appointed under any First Priority Additional Debt Documents for such First Priority Additional Debt.

First Priority Additional Secured Obligations” shall mean, collectively, the unpaid principal of, and interest on, any First Priority Additional Debt and all other obligations and liabilities of any Grantor (including, without limitation, interest accruing at the then applicable rate provided in the applicable First Priority Additional Debt Documents after the maturity of the Indebtedness thereunder and all Post-Petition Interest) to the holders of such Indebtedness or other obligations, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter incurred, which may arise under, out of, or in connection with, the First Priority Additional Debt Documents or any other document made, delivered or given in connection with any of the foregoing, in each case whether on account of principal, interest, fees,

 

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prepayment premiums, indemnities, costs, expenses or otherwise (including without limitation all fees and disbursements of counsel to the First Priority Agent, the applicable Holder Representative or to the holders of such First Priority Additional Debt that are required to be paid by any of the Grantors pursuant to the terms of any of foregoing agreements).

First Priority Additional Sale/Leaseback Obligations” shall mean, collectively, the lease payments and all other obligations and liabilities of the Grantors (including, without limitation, Post-Petition Interest), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with (i) any Intra-Company Lease Agreement referred to in clause (ii) of the definition thereof (and the Initial Intra-Company Spectrum Lease Agreement to the extent relating to additional sales or transfers of Spectrum effected after the date of this Collateral Trust Agreement and any additional issuances of notes thereby) and (ii) any Performance Agreement referred to in clause (ii) of the definition thereof (and the Initial Spectrum Performance Agreement to the extent relating to additional sales or transfers of Spectrum effected after the date of this Collateral Trust Agreement and any additional issuances of notes thereby), in each case, whether on account of principal, lease payments, guarantee payments, interest, reimbursement obligations, fees, prepayment premiums, liquidated damages, indemnities, costs, expenses or otherwise; provided that notwithstanding anything to the contrary herein or in any other documents or agreements (and regardless of any underlying actual amounts owing or outstanding), the total amount of such obligations that may constitute “First Priority Additional Sale/Leaseback Obligations” shall be limited to an aggregate amount not to exceed the amounts expressly set forth in the Notices of Designation with respect to such First Priority Additional Sale/Leaseback Obligations pursuant to subsection 7.1.

First Priority Agent” shall mean:

(a) (i) until such time as a successor “First Priority Agent” is designated pursuant to clause (a)(ii) or (b) below, Deutsche Bank AG New York Branch, as Holder Representative in respect of the Initial Syndicated Credit Agreement (or any successor appointed in accordance with the terms of the Initial Syndicated Credit Agreement, or any administrative agent or analogous function under any successor First Priority Credit Agreement) and (ii) to the extent there are two or more Syndicated Credit Agreements outstanding that comprise First Priority Secured Obligations, the Holder Representative in respect of the Syndicated Credit Agreement designated (if different and so designated) as “First Priority Agent” in writing by the Company and representing the highest Outstanding Amount of such Syndicated Credit Agreements that comprise First Priority Secured Obligations, it being understood and agreed that if the outstanding Syndicated Credit Agreements consist only of the Initial Syndicated Credit Agreement and the First Priority Bridge Loan Agreement, clause (a)(i) shall apply;

(b) at any time when the aggregate Outstanding Amount of Indebtedness and unfunded commitments under the Initial Syndicated Credit Agreement (and any other First Priority Credit Agreement incurred to Refinance the Initial Syndicated Credit Agreement) and other Syndicated Credit Agreements referenced in clause (a)(ii) above is less than $1,000,000,000, (i) the agent or trustee designated as “First Priority Agent” by the Majority First Priority Secured Parties (or their Holder Representatives) or (ii) in the event the Majority First Priority Secured Parties (or their Holder Representatives) have not designated a First Priority Agent, then the Holder Representative for the series of obligations constituting the then highest Outstanding Amount of First Priority Secured Obligations.

 

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First Priority Bridge Loan Agreement” shall mean the Bridge Term Loan Agreement, dated as of April 1, 2020, among the Company, the lenders parties thereto, and Goldman Sachs Bank USA, as administrative agent, and the other agents and parties named therein.

First Priority Bridge Loan Agreement Documents” shall mean the First Priority Bridge Loan Agreement and the other “Loan Documents” (or similar term) under and as defined in the First Priority Bridge Loan Agreement and any other agreements or documents entered into in connection with the First Priority Bridge Loan Agreement.

First Priority Bridge Loan Agreement Obligations” shall mean, collectively, the unpaid principal of and interest on the loans and all other obligations and liabilities of the Grantors (including, without limitation, interest accruing at the then applicable rate provided in the First Priority Bridge Loan Agreement after the maturity of the applicable loans and Post-Petition Interest) to any First Priority Secured Party, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, the First Priority Bridge Loan Agreement Documents or any other document made, delivered or given in connection with any of the foregoing, in each case whether on account of principal, interest, reimbursement obligations, fees, prepayment premiums, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the applicable Holder Representatives or the Lenders that are required to be paid by the Grantors pursuant to the terms of any of the foregoing agreements).

First Priority Class” shall mean, collectively, (a) with respect to First Priority Debt Documents (other than those referred to in clause (b) below), the Secured Parties which are holders of any of the First Priority Secured Obligations thereunder, and (b) with respect to the Intra-Company Lease Agreements and the Performance Agreements, the Secured Parties represented by the relevant Holder Representatives.

First Priority Credit Agreement” shall mean (i) the Initial Syndicated Credit Agreement, and (ii) any other Syndicated Credit Agreement or other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Indebtedness or other financial accommodation that has been incurred to Refinance (whether by the same or different lenders) in whole or in part (under one or more agreements) the Indebtedness and other obligations outstanding under the Initial Syndicated Credit Agreement or any other agreement or instrument referred to in this clause (ii) (including, without limitation, increasing the amount available for borrowing or adding or removing Persons as a borrower, guarantor or other obligor thereunder) unless such agreement or instrument (or applicable Notice of Designation) expressly provides that it is not a First Priority Credit Agreement hereunder.

First Priority Credit Agreement Documents” shall mean each First Priority Credit Agreement and the other “Loan Documents” (or similar term) under and as defined in each First Priority Credit Agreement and any other agreements or documents entered into in connection with any First Priority Credit Agreement.

First Priority Credit Agreement Obligations” shall mean, collectively, the unpaid principal of and interest on the loans and all other obligations and liabilities of the Grantors (including, without limitation, interest accruing at the then applicable rate provided in any First Priority Credit Agreement after the maturity of the applicable loans and Post-Petition Interest) to any First Priority Secured Party, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in

 

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connection with, the First Priority Credit Agreement Documents or any other document made, delivered or given in connection with any of the foregoing, in each case whether on account of principal, interest, reimbursement obligations, fees, prepayment premiums, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the First Priority Agent, applicable Holder Representatives or the Lenders that are required to be paid by the Grantors pursuant to the terms of any of the foregoing agreements).

First Priority Debt Documents” shall mean the First Priority Credit Agreement Documents, any Intra-Company Lease Agreement, any Performance Agreement, the First Priority Notes Indenture Documents, the First Priority Bridge Loan Agreement Documents, any First Priority Additional Debt Documents and any agreements or other documents entered into in connection with any First Priority Additional Debt; provided that, at any time on or after an Investment Grade Event Election, the First Priority Notes Indenture Documents shall no longer constitute First Priority Debt Documents hereunder.

First Priority Initial Spectrum Obligations” shall mean, collectively, the lease payments and all other obligations and liabilities of the Grantors (including, without limitation, Post-Petition Interest), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with (i) the Initial Intra-Company Spectrum Lease Agreement and (ii) the Initial Spectrum Performance Agreement, in each case, whether on account of principal, lease payments, guarantee payments, interest, reimbursement obligations, fees, prepayment premiums, liquidated damages, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel that are required to be paid by any Grantors pursuant to the terms of any of the foregoing agreements); provided that notwithstanding anything to the contrary herein or in any other documents or agreements (and regardless of any underlying actual amounts owing or outstanding), the total amount of the foregoing obligations that may constitute “First Priority Initial Spectrum Obligations” shall be limited to an aggregate amount not to exceed at any time $3,500,000,000.

First Priority Notes” shall mean those certain Senior Secured Notes, if any, to be issued by the Company and identified as the “First Priority Notes” by written notice from the Company to the Collateral Trustee (which notice shall be substantively in the form of Exhibit D hereto), and any additional notes, in each case, issued under the First Priority Notes Indenture.

First Priority Notes Indenture” shall mean the Indenture governing the First Priority Notes, between the Company, as issuer, the guarantors party thereto and Deutsche Bank Trust Company Americas, as trustee, including supplements thereto.

First Priority Notes Indenture Documents” shall mean the First Priority Notes Indenture and the other “Notes Documents” (or similar term) under and as defined in the First Priority Notes Indenture and any other agreements or documents entered into in connection with the First Priority Notes Indenture.

First Priority Notes Obligations” shall mean, collectively, the unpaid principal of and interest on the First Priority Notes Indenture Documents and all other obligations and liabilities of the Company (including, without limitation, Post-Petition Interest), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with the First Priority Notes Indenture Documents.

 

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First Priority Secured Obligations” shall mean, without duplication, (a) all First Priority Credit Agreement Obligations and all Permitted First Priority Non-Loan Exposure; (b) all First Priority Initial Spectrum Obligations; (c) all First Priority Additional Sale/Leaseback Obligations; (d) all First Priority Notes Obligations (provided that following an Investment Grade Event Election, the First Priority Notes Obligations shall cease to be “First Priority Secured Obligations” hereunder), (e) all First Priority Bridge Loan Agreement Obligations and (f) all other First Priority Additional Secured Obligations; provided, however, that to the extent any payment with respect to the First Priority Secured Obligations (whether by or on behalf of any Grantor, as proceeds of Collateral, enforcement of any right of set off or otherwise) is declared to be fraudulent or preferential in any respect, set aside or required to be paid to a debtor in possession, trustee, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.

First Priority Secured Party” or “First Priority Secured Parties” shall mean at any time the Collateral Trustee (in its capacity as the holder of the Lien on the Collateral securing the First Priority Secured Obligations), the First Priority Agent and any other holder of First Priority Secured Obligations outstanding at such time (and including, for the avoidance of doubt, any Holder Representative in respect of such First Priority Secured Obligations).

First Priority Security Documents” shall mean all security agreements, pledge agreements, intercreditor agreements, collateral assignments, mortgages, deeds of trust, assignments of leases and rents, collateral agency agreements, control agreements or other grants or transfers for security executed and delivered by any Grantor, in each case, creating (or purporting to create) a Lien upon any property, rights or interests of such Grantor in favor of the Collateral Trustee, for the benefit of any holder of the First Priority Secured Obligations, in each case, as amended, modified, renewed, extended, restated or replaced, in whole or in part, from time to time, in accordance with its terms.

First Priority Voting Obligations” shall mean, as of any date (a) all Extensions of Credit (and, if no Notice of Acceleration is outstanding with respect thereto, unfunded commitments) eligible to be voted on with respect to a relevant matter under the First Priority Debt Documents (other than the Intra-Company Lease Agreements and Performance Agreements) on such date, plus (b) all Secured Spectrum and Sale/Leaseback Amounts as of such date.

Grantors” shall have the meaning assigned in the preamble hereto.

Holder Representative” shall mean (i) in respect of the Initial Syndicated Credit Agreement, Deutsche Bank AG New York Branch, as administrative agent (or any administrative agent or entity serving an analogous function under any successor First Priority Credit Agreement), (ii) in respect of the First Priority Initial Spectrum Obligations, Deutsche Bank Trust Company Americas, not in its individual capacity but solely as trustee under the Existing Sprint Spectrum Indenture, (iii) in respect of the First Priority Notes, Deutsche Bank Trust Company Americas, not in its individual capacity but solely as trustee under the First Priority Notes Indenture, (iv) in respect of any First Priority Additional Sale/Leaseback Obligations, the agent, trustee or other designee, as applicable, identified in the applicable Notice of Designation for the obligees of such obligations, (v) in respect of the First Priority Bridge Loan Agreement, Goldman Sachs Bank USA, as administrative agent, (vi) in respect of any First Priority Additional Debt, the agent, trustee or other designee, as applicable, identified in the applicable Notice of Designation for the holders of such obligations and (vii) in respect of any Junior Priority Secured Obligations, the agent, trustee or other designee, as applicable, identified in the applicable Notice of Designation for the holders of such obligations together, in each case, with its successors.

 

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Included Grantor” shall have the meaning assigned in subsection 6.12(c) hereto.

Initial Intra-Company Spectrum Lease Agreement” shall mean the Intra-Company Spectrum Lease Agreement, dated as of October 27, 2016, by and among, inter alia, various SpectrumCo1 entities, as lessors, Sprint Communications, as lessee, Sprint and the other guarantors party thereto (as amended by the First Amendment to Intra-Company Spectrum Lease Agreement, dated as of March 12, 2018 and the Second Amendment to Intra-Company Spectrum Lease, dated as of June 6, 2018).

Initial Spectrum Performance Agreement” shall mean the SCI Payment and Performance Undertaking Agreement, dated as of October 27, 2016, between Sprint Communications, Sprint, the other grantors party thereto, and Deutsche Bank Trust Company Americas, as trustee (as amended by the First Amendment to Intra-Company Spectrum Lease Agreement, dated as of March 12, 2018).

Initial Syndicated Credit Agreement” shall mean Credit Agreement, dated as of April 1, 2020, among the Company, the lenders parties thereto, and Deutsche Bank AG New York Branch, as administrative agent, and the other agents and parties named therein.

Insolvency Proceeding” shall mean each of the following, in each case with respect to the Company or any Grantor or any property or Indebtedness of the Company or any Grantor (a)(i) any voluntary or involuntary case or proceeding under any Bankruptcy Law or any other voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, (ii) any case or proceeding seeking receivership, liquidation, reorganization, winding up or other similar case or proceeding, (iii) any case or proceeding seeking arrangement, adjustment, protection, relief or composition of any debt and (iv) any case or proceeding seeking the entry of an order for relief or the appointment of a custodian, receiver, trustee or other similar official and (b) any general assignment for the benefit of creditors.

Intra-Company Lease Agreement” shall mean (i) the Initial Intra-Company Spectrum Lease Agreement and (ii) any other intra-company lease agreement between Grantors and any special purpose subsidiaries of the Parent entered into in connection with a Sale and Leaseback Transaction (including with respect to Spectrum) and identified to the Collateral Trustee as “First Priority Additional Sale/Leaseback Obligations” in a Notice of Designation pursuant to subsection 7.1.

Investment Grade Event Election” shall have the meaning assigned in the First Priority Notes Indenture.

Junior Priority Agent” shall mean, at any time, the Junior Priority Debt Representative acting as the agent, trustee or similar party in respect of the Junior Priority Debt constituting at such time the highest principal Outstanding Amount of Junior Priority Debt.

Junior Priority Class” shall mean, collectively, with respect to any Junior Priority Debt Documents, the Secured Parties which are holders of the Junior Priority Secured Obligations thereunder.

Junior Priority Debt Representative” shall mean any Person designated by the Company pursuant to subsection 7.1 as a “Junior Priority Debt Representative” for any Junior Priority Debt, and any successor Junior Priority Debt Representative appointed under the Junior Priority Debt Documents for such Junior Priority Debt.

 

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Junior Priority Debt” shall mean, collectively, any “Junior Priority Debt” designated by the Company as “Junior Priority Debt” pursuant to subsection 7.1; provided further, however, that, (i) such Indebtedness is permitted to be incurred and secured on such basis by each First Priority Debt Document and each Junior Priority Debt Document and (ii) the Holder Representative in respect of such Indebtedness shall have become party to this Collateral Trust Agreement pursuant to, and by satisfying the conditions set forth in, subsection 7.1 hereof.

Junior Priority Debt Documents” shall mean any agreements or other documents entered into in connection with any Junior Priority Debt.

Junior Priority Debt Obligations” shall mean, collectively, the unpaid principal of, and interest on, any Junior Priority Debt and all other obligations and liabilities of any Grantor (including, without limitation, interest accruing at the then applicable rate provided in the Junior Priority Debt Documents after the maturity of the Indebtedness thereunder and all Post-Petition Interest) to the holders of such Indebtedness or other obligations, whether direct or indirect, absolute or contingent, due or to become due, now existing or hereafter incurred, which may arise under, out of, or in connection with, the Junior Priority Debt Documents or any other document made, delivered or given in connection with any of the foregoing, in each case whether on account of principal, interest, fees, prepayment premiums, indemnities, costs, expenses or otherwise (including without limitation all fees and disbursements of counsel to any Junior Priority Agent or to the holders of such Junior Priority Debt that are required to be paid by any of the Grantors pursuant to the terms of any of foregoing agreements).

Junior Priority Secured Obligations” shall mean, without duplication, all Junior Priority Debt Obligations and all Permitted Junior Priority Non-Loan Exposure; provided, however, that to the extent any payment with respect to Junior Priority Secured Obligations (whether by or on behalf of any Grantor, as proceeds of Collateral, enforcement of any right of set off or otherwise) is declared to be fraudulent or preferential in any respect, set aside or required to be paid to a debtor in possession, trustee, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.

Junior Priority Secured Parties” shall mean at any time the Collateral Trustee (in its capacity as the holder of the Lien on the Collateral securing the Junior Priority Secured Obligations), the Junior Priority Agent and any other holder of Junior Priority Secured Obligations outstanding at such time (and including, for the avoidance of doubt, any Holder Representative in respect of such Junior Priority Secured Obligations).

Junior Priority Security Documents” shall mean all security agreements, pledge agreements, intercreditor agreements, collateral assignments, mortgages, deeds of trust, assignments of leases and rents, collateral agency agreements, control agreements or other grants or transfers for security executed and delivered by any Grantor, in each case, creating (or purporting to create) a Lien upon any property, rights or interests of such Grantor in favor of the Collateral Trustee, for the benefit of any holder of the Junior Priority Secured Obligations, in each case, as amended, modified, renewed, extended, restated or replaced, in whole or in part, from time to time, in accordance with its terms.

Junior Priority Voting Obligations” shall mean, as of any date, all Extensions of Credit (and, if no Notice of Acceleration is outstanding with respect thereto, unfunded commitments) eligible to be voted on with respect to a relevant matter under the Junior Priority Debt Documents on such date.

 

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

Majority Class Holders” shall mean, on any date, with respect to the applicable Class: (i) Eligible First Priority Secured Parties representing more than 50% of the aggregate First Priority Voting Obligations on such date; and (ii) Eligible Junior Priority Secured Parties representing more than 50% of the aggregate Junior Priority Voting Obligations on such date.

Majority First Priority Secured Parties” shall mean, on any date, Eligible First Priority Secured Parties representing more than 50% of the aggregate First Priority Voting Obligations on such date.

Majority Junior Priority Secured Parties” shall mean, on any date, the Eligible Junior Priority Secured Parties representing more than 50% of the Junior Priority Voting Obligations on such date.

Material First Priority Secured Obligations” means any series of First Priority Secured Obligations with an Outstanding Amount in excess of $1,000,000,000.

Material Junior Priority Secured Obligations” means any series of Junior Priority Secured Obligations with an Outstanding Amount in excess of $1,000,000,000.

Notice of Acceleration” shall mean a written notice delivered to the Collateral Trustee and (unless delivered by the First Priority Agent) the First Priority Agent substantially the form of Exhibit B, while any First Priority Secured Obligations are outstanding, by the relevant Holder Representative in respect of such First Priority Secured Obligations (and thereafter while any Junior Priority Secured Obligations are outstanding, by the relevant Holder Representative in respect of such Junior Priority Secured Obligations), stating that an Acceleration Event has occurred and is continuing in respect of the relevant Secured Obligations.

Notice of Cancellation” shall have the meaning assigned in subsection 2.1(c).

Notice of Designation” shall have the meaning assigned in subsection 7.1.

Notice of Event of Default” shall mean (a) a written notice delivered to the Collateral Trustee and (unless delivered by the First Priority Agent) the First Priority Agent, substantially in the form of Exhibit A, while any First Priority Secured Obligations are outstanding, by the relevant Holder Representative in respect of such First Priority Secured Obligations (and thereafter while any Junior Priority Secured Obligations are outstanding, by the relevant Holder Representative in respect of such Junior Priority Secured Obligations), stating that an Event of Default has occurred and is continuing under the relevant Secured Obligations and/or (b) a Notice of Acceleration.

Opinion of Counsel” shall mean an opinion in writing signed by legal counsel of recognized national standing, who may be counsel (including, in-house counsel) to the Company.

 

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Outstanding Amount” shall mean as of any date of determination (a) with respect to Indebtedness, the aggregate outstanding principal amount thereof, (b) with respect to any unfunded commitments, the aggregate amount of such obligations to make loans or other extensions of credit, (c) with respect to banker’s acceptances, letters of credit or letters of guarantee, the aggregate undrawn, unexpired face amount thereof plus the aggregate unreimbursed drawn amount thereof, (d) with respect to hedging obligations, the aggregate amount recorded by the Parent, the Company or any Subsidiary as its net termination liability thereunder calculated in accordance with the Parent’s or the Company’s customary accounting procedures, (e) with respect to cash management obligations or guarantees, the aggregate maximum amount thereof (i) that the relevant cash management provider is entitled to assert as such as agreed from time to time by the Parent, the Company or any Subsidiary and such provider or (ii) the principal amount of the Indebtedness being guaranteed or, if less, the maximum amount of such guarantee set forth in the relevant guarantee, (f) with respect to the First Priority Initial Spectrum Obligations and any First Priority Additional Sale/Leaseback Obligations, the maximum amount that the lessors, secured parties and guaranteed parties, as the case may be, are entitled to claim in respect of the guarantees and performance undertakings set forth therein (subject to the caps set forth under the definition of “First Priority Initial Spectrum Obligations” and “First Priority Additional Sale/Leaseback Obligations”, respectively), and (g) with respect to any other obligations, the aggregate outstanding amount thereof.

paid and performed in full” or “payment and performance in full” or “pay such amounts and perform in full” shall mean, as of any date, with respect to any Secured Obligations, that on or before such date: (i) the principal of and interest (including Post-Petition Interest) accrued to such date on each loan or other form of indebtedness shall have been paid in full in cash, (ii) all fees, expenses and other amounts then due and payable which constitute such Secured Obligations (other than Secured Non-Loan Exposure and contingent amounts, in each case, for which no claim or demand has been made) shall have been paid in full in cash, (iii) the commitments thereunder shall have expired or been terminated, (iv) any contingent letter of credit exposure shall have been secured by (x) the grant of a first priority, perfected Lien on cash or cash equivalents in an amount at least equal to the amount required under the applicable Secured Instrument or other collateral which is reasonably acceptable to the applicable issuing bank or (y) the issuance of a “back–to–back” letter of credit in form and substance reasonably acceptable to the applicable issuing bank with an original face amount at least equal to the amount that would be required pursuant to clause (x) above, (v) in respect of the First Priority Initial Spectrum Obligations and any First Priority Additional Sale/Leaseback Obligations, all obligations of the Grantors shall have terminated in accordance with the terms thereof and all amounts due and owing in connection with such termination shall have been paid in full in cash, (vi) the payment in full in cash of any other amounts due and owing in compliance with the applicable Secured Instrument documentation and (vii) in respect of any other contractual obligations not referenced in the foregoing clauses (i) through (vi), the performance and satisfaction of such obligations in full.

Parent” shall have the meaning set forth in the recitals hereto.

Performance Agreement” shall mean (i) the Initial Spectrum Performance Agreement and (ii) any similar or like performance and undertaking agreement entered into by the Grantors in connection with a Sale and Leaseback Transaction (including with respect to Spectrum) and identified to the Collateral Trustee as “First Priority Additional Sale/Leaseback Obligations” in a Notice of Designation pursuant to subsection 7.1; provided, however, that, (i) such obligations are permitted to be incurred and secured on such basis by each First Priority Debt Document and each Junior Priority Debt Document and (ii) the Holder Representative in respect of such obligations shall have become party to this Collateral Trust Agreement pursuant to, and by satisfying the conditions set forth in, subection 7.1 hereof.

 

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Permitted First Priority Non-Loan Exposure” shall mean Designated Hedging Obligations, Designated Cash Management Obligations, Designated L/C Facility Obligations and any other reimbursement obligations in respect of letters of credit and bank guarantees, and guarantees provided by the Company or a Grantor (including in respect of Indebtedness and other obligations of the Company or a Grantor that do not constitute Indebtedness) that have been designated as “Permitted First Priority Non-Loan Exposure” on the Effective Date or otherwise pursuant to subsection 7.1; provided, however, that, (i) such obligations are permitted to be incurred and secured on such basis by each First Priority Debt Document and each Junior Priority Debt Document and (ii) the Holder Representative in respect of such obligations shall have become party to this Collateral Trust Agreement pursuant to, and by satisfying the conditions set forth in, subsection 7.1 hereof.

Permitted Junior Priority Non-Loan Exposure” shall mean Designated Hedging Obligations, Designated Cash Management Obligations, reimbursement obligations in respect of letters of credit and bank guarantees, and guarantees provided by the Company or a Grantor (including in respect of Indebtedness and other obligations of the Company or a Grantor that do not constitute Indebtedness) that have been designated as “Permitted Junior Priority Non-Loan Exposure” pursuant to subsection 7.1; provided further, however, that, (i) such obligations are permitted to be incurred and secured on such basis by each First Priority Debt Document and each Junior Priority Debt Document and (ii) the Holder Representative in respect of such obligations shall have become party to this Collateral Trust Agreement pursuant to, and by satisfying the conditions set forth in, subsection 7.1 hereof.

Person” shall mean any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, or government or other entity.

Post-Petition Interest” shall mean all interest (or entitlement to fees or expenses or other charges) accruing or that would have accrued after the commencement of any Insolvency Proceeding, irrespective of whether a claim for post-filing or petition interest (or entitlement to fees or expenses or other charges) is allowed or allowable in any such Insolvency Proceeding.

Proceeds” shall mean all “proceeds” as such term is defined in Section 9-102(a)(64) of the Uniform Commercial Code in effect in the State of New York on the date hereof.

Post-Petition Securities” shall mean any debt securities or other Indebtedness received in full or partial satisfaction of any claim as part of any Insolvency Proceeding.

Refinancing or Refinance” shall mean, with respect to any Indebtedness, any other Indebtedness issued as part of a refinancing, extension, renewal, defeasance, discharge, amendment, restatement, modification, supplement, substitution, restructuring, replacement, exchange, refunding or repayment thereof.

Related Obligations” shall have the meaning assigned in subsection 6.4.

Responsible Officer” shall mean, with respect to any Person, the chief executive officer, president, chief financial officer, treasurer, controller, senior vice president of such Person, or any other senior officer with express authority to act on behalf of such Person, and when used with respect to the Collateral Trustee, means any officer of the Collateral Trustee with direct responsibility for the administration of this Collateral Trust Agreement.

 

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

Secured Instruments” shall mean at any time (i) the First Priority Debt Documents, (ii) the Junior Priority Debt Documents and (iii) any agreements or other instruments governing or evidencing any Secured Non-Loan Exposure.

Secured Non-Loan Exposure” shall mean, collectively, (i) all Permitted First Priority Non-Loan Exposure and (ii) all Permitted Junior Priority Non-Loan Exposure.

Secured Obligations” shall mean, collectively, (i) all First Priority Secured Obligations and (ii) all Junior Priority Secured Obligations.

Secured Parties” shall mean, collectively, (i) the Collateral Trustee, (ii) any First Priority Secured Party and (iii) any Junior Priority Secured Party.

Secured Spectrum and Sale/Leaseback Amounts” shall mean, at any time, the sum of:

(A) with respect to the First Priority Initial Spectrum Obligations, the lesser of (i) $3,500,000,000 and (ii) the sum of (x) the net present value at such time of the remaining unpaid operating lease payments owed to SpectrumCo1 under the Initial Intra-Company Spectrum Lease Agreement (discounted at a rate per annum equal to 10%, on a quarterly basis, assuming a 360-day year consisting of twelve 30-day months) and (y) the then Outstanding Amount (if any) of obligations under the Initial Spectrum Performance Agreement; and

(B) with respect to any First Priority Additional Sale/Leaseback Obligations, the lesser of (i) the dollar amount of First Priority Additional Sale/Leaseback Obligations designated by the Company as “First Priority Additional Sale/Leaseback Obligations” pursuant to subsection 7.1 and (ii) the sum of (x) the net present value at such time of the remaining unpaid operating lease payments owed by the Grantors under any applicable Intra-Company Lease Agreements referred to in clause (ii) of the definition thereof (discounted in a manner consistent with the provisions thereof) and (y) the then Outstanding Amount (if any) of obligations of the Grantors under any Performance Agreement referred to in clause (ii) of the definition thereof.

Spectrum” shall mean frequencies of electromagnetic spectrum used to provide fixed or mobile communications services as licensed or authorized by the FCC.

SpectrumCo1” shall mean, collectively, the Spectrum special purpose vehicle Subsidiaries of Parent existing on the date hereof that are part of, and were formed for the purpose of, the Sale and Leaseback Transaction relating to the First Priority Initial Spectrum Obligations (including in respect of any additional sales or transfers of Spectrum, any additional issuances of notes thereby and any amendments thereto).

Sprint Communications” means Sprint Communications, Inc., a Kansas corporation.

 

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Sprint” means Sprint Corporation, a Delaware corporation.

Subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. It is understood that unless otherwise noted herein, each reference to “Subsidiary” shall be a reference to a Subsidiary of Parent.

Syndicated Credit Agreement” shall mean the Initial Syndicated Credit Agreement and any other syndicated credit agreement or loan agreement entered into with banks and/or other institutional investors.

Trust Estate” shall have the meaning assigned in the Declaration of Trust in this Collateral Trust Agreement.

Trust Security Documents” shall mean (i) in the case of any First Priority Agent, First Priority Secured Obligations, First Priority Secured Party and any Holder Representative in respect of any First Priority Secured Obligations, all First Priority Security Documents and (ii) in the case of any Junior Priority Agent, Junior Priority Secured Obligations, Junior Priority Secured Party and any Holder Representative in respect of any Junior Priority Secured Obligations, all Junior Priority Security Documents.

Trustee Fees” shall mean all fees, costs, indemnities and expenses of the Collateral Trustee of the types described in subsections 4.2, 4.3, 4.4 and 4.5.

(c) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this Collateral Trust Agreement shall refer to this Collateral Trust Agreement as a whole and not to any particular provision of this Collateral Trust Agreement, and section and subsection references are to this Collateral Trust Agreement unless otherwise specified. References to agreements defined in subsection 1.1(b) shall, unless otherwise specified, be deemed to refer to such agreements as amended, supplemented, restated or otherwise modified from time to time.

(d) The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.

(e) The word “will” shall be construed to have the same meaning and effect as the word “shall”.

(f) Unless the context requires otherwise, (A) any reference to any Person shall be construed to include such Person’s legal successors and permitted assigns, (B) any reference to any law or regulation shall refer to such law or regulation as amended, modified, supplemented from time to time, and any successor law or regulation, (C) the words “asset” and “property” shall be construed to have the same meaning and effect and (D) references to agreements (including this Collateral Trust Agreement) or other contractual obligations shall be deemed to refer to such agreements or contractual agreements as amended, restated, amended and restated, supplemented or otherwise modified from time to time (in each case, to the extent not otherwise prohibited hereunder).

 

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(g) 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”.

(h) The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms.

(i) For purposes of making any determinations or taking any actions under this Collateral Trust Agreement deriving from being a “holder” of or “holding” or “representing” (and similar words of like meaning) obligations, in respect of the First Priority Initial Spectrum Obligations, the applicable Holder Representative shall be entitled to make such determinations or take such actions.

SECTION 2.

ENFORCEMENT OF SECURED OBLIGATIONS

2.1 Notices of Events of Default.

(a) Upon receipt by a Responsible Officer of the Collateral Trustee of a Notice of Event of Default, the Collateral Trustee shall promptly notify the Company and all the Holder Representatives of the receipt and contents thereof. So long as such Notice of Event of Default is in effect in accordance with subsection 2.1(b) hereof, the Collateral Trustee shall exercise the rights and remedies provided in this Collateral Trust Agreement and in the Trust Security Documents subject to the direction of the Controlling Party, as provided herein.

(b) A Notice of Event of Default delivered by a Holder Representative shall become effective upon receipt thereof by a Responsible Officer of the Collateral Trustee. Notwithstanding anything in this Collateral Trust Agreement to the contrary, a Notice of Event of Default shall be deemed to be in effect whenever (1) an “Event of Default” under clause (g) or (h) of Section 7.1 of the Initial Syndicated Credit Agreement (or any equivalent provision under any other Syndicated Credit Agreements) or an “Event of Default” under clause (g) or (h) of Section 7.1 of the First Priority Bridge Loan Credit Agreement (or any equivalent provision under the First Priority Notes Indenture) or (2) a “Termination Event” pursuant to Section 12(b)(i) of the Initial Intra-Company Spectrum Lease Agreement (or any equivalent provision under any other Intra-Company Lease Agreement), in each case, has occurred and is continuing. A Notice of Event of Default, once effective, shall remain in effect unless and until it is cancelled as provided in subsection 2.1(c).

(c) Any Holder Representative shall be entitled to cancel its own Notice of Event of Default by delivering a written notice of cancellation in the form attached hereto as Exhibit E (a “Notice of Cancellation”) to the Collateral Trustee (i) before the Collateral Trustee takes any action to exercise any remedy with respect to the Collateral or (ii) thereafter; provided, that (x) any actions taken by the Collateral Trustee prior to receipt of such Notice of Cancellation to exercise any remedy or remedies with respect to the Collateral which can, in a commercially reasonable manner, be reversed, cancelled or stopped, shall be so reversed, cancelled or stopped, and (y) any actions taken by the Collateral Trustee prior to receipt of such Notice of Cancellation to exercise any remedy or remedies with respect to the Collateral which cannot, in a commercially reasonable manner, be reversed, canceled or stopped, may be completed. The Collateral Trustee, notwithstanding such Notice of Cancellation, shall cooperate with the Company so that the actions referred to in clauses (x) and (y) above are done at the direction of the Company. The Collateral Trustee shall immediately notify the Company and all other Holder Representatives as to the receipt and contents of any such Notice of Cancellation. The Collateral Trustee shall not be liable to any Person for any losses, damages or expenses arising out of or related to actions taken at the direction of the Company after the issuance of a Notice of Cancellation.

 

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2.2 General Authority of the Collateral Trustee over the Collateral. (a) Each Grantor hereby irrevocably constitutes and appoints the Collateral Trustee and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full power and authority in its or his own name, from time to time in the Collateral Trustee’s reasonable discretion, subject to subsection 2.1, so long as any Notice of Event of Default is in effect, to take any and all appropriate action and to execute any and all documents and instruments which may be reasonably necessary or desirable to carry out the terms of this Collateral Trust Agreement and the Trust Security Documents and accomplish the purposes hereof and thereof and, without limiting the generality of the foregoing, each Grantor hereby gives the Collateral Trustee, subject to subsection 2.1, the power and right on behalf of such Grantor, without notice to or further assent by such Grantor, so long as any Notice of Event of Default is in effect, to take any Collateral Enforcement Actions permitted under the Trust Security Documents and to do, at its option and at the expense and for the account of Grantors, all acts and things which the Collateral Trustee reasonably deems necessary to protect or preserve the Collateral and to realize upon the Collateral in accordance with the provisions of the Trust Security Documents.

(b) Notwithstanding the foregoing, so long as no Notice of Event of Default is in effect, the Collateral Trustee shall take such actions as are permitted by this Collateral Trust Agreement or the Trust Security Documents in accordance with the instructions of the Controlling Party delivered to the Collateral Trustee.

2.3 Right to Initiate Judicial Proceedings. If a Notice of Event of Default is in effect, the Collateral Trustee, subject to the provisions of subsection 2.5(b) and Section 5, (i) shall have the right and power to institute and maintain such suits and proceedings as it may reasonably deem appropriate to protect and enforce the rights vested in it by this Collateral Trust Agreement and each Trust Security Document and (ii) may, either after entry, or without entry, proceed by suit or suits at law or in equity to enforce such rights and to foreclose upon the Collateral and to sell all or, from time to time, any of the Collateral under the judgment or decree of a court of competent jurisdiction.

2.4 Right to Appoint a Receiver. If a Notice of Event of Default is in effect, upon the filing of a bill in equity or other commencement of judicial proceedings to enforce the rights of the Collateral Trustee under this Collateral Trust Agreement or any Trust Security Document, the Collateral Trustee shall, to the extent permitted by law, with notice to the Company but without notice to any party claiming through the Grantors, without regard to the solvency or insolvency at the time of any Person then liable for the payment of any of the Secured Obligations, without regard to the then value of the Trust Estate, and without requiring any bond from any complainant in such proceedings, be entitled as a matter of right to the appointment by a court of law of a receiver or receivers (who may be the Collateral Trustee) of the Trust Estate, or any part thereof, and of the rents, issues, tolls, profits, royalties, revenues and other income thereof, pending such proceedings, with such powers as the court making such appointment shall confer, and to the entry of an order directing that the rents, issues, tolls, profits, royalties, revenues and other income of the property constituting the whole or any part of the Trust Estate be segregated, sequestered and impounded for the benefit of the Collateral Trustee and the Secured Parties, and each Grantor irrevocably consents to the appointments of such receiver or receivers and to the entry of such order; provided that, notwithstanding the appointment of any receiver, the Collateral Trustee shall be entitled to retain possession and control of all cash and Cash Equivalents (as defined in the Collateral Agreement) held by or deposited with it pursuant to this Collateral Trust Agreement or any Trust Security Document.

 

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2.5 Exercise of Powers; Instructions of the Controlling Party.

(a) All of the powers, remedies and rights of the Collateral Trustee as set forth in this Collateral Trust Agreement may be exercised by the Collateral Trustee in respect of any Trust Security Document as though set forth in full therein and all of the powers, remedies and rights of the Collateral Trustee, each Holder Representative and the other Secured Parties as set forth in any Trust Security Document may be exercised from time to time as herein and therein provided.

(b) The Controlling Party shall at all times have the exclusive right, by one or more notices in writing executed and delivered to the Collateral Trustee, to direct the time, method and place of conducting any proceeding for any right or remedy available to the Collateral Trustee, or of exercising any trust or power conferred on the Collateral Trustee, or for the appointment of a receiver, or to direct the taking or the refraining from taking of any action authorized by this Collateral Trust Agreement or any Trust Security Document, in each case without any consultation with, or consent of, any other Holder Representative or Secured Party; provided that (i) such direction shall not conflict with any requirement of law or this Collateral Trust Agreement or any Trust Security Document, (ii) the Collateral Trustee shall be adequately secured and indemnified as provided in subsection 5.4(d) and (iii) no Collateral Enforcement Action may be taken unless a Notice of Event of Default is in effect. In the absence of such direction, the Collateral Trustee shall have no duty to take or refrain from taking any action unless explicitly required herein.

(c) Whether or not any Insolvency Proceeding has been commenced by or against any Grantor, no Holder Representative or any other Secured Party shall do (and no such Holder Representative or Secured Party (other than the Controlling Party) shall direct the Collateral Trustee to do) any of the following without the consent of the Controlling Party: (i) take any Collateral Enforcement Action or commence, seek to commence or join any other Person in commencing any Insolvency Proceeding; or (ii) object to, contest or take any other action that is reasonably likely to hinder (1) any Collateral Enforcement Action initiated by the Collateral Trustee, (2) any release of Collateral permitted under subsection 6.12, whether or not done in consultation with or with notice to such Secured Party or (3) any decision by the Controlling Party to forbear or refrain from bringing or pursuing any such Collateral Enforcement Action or to effect any such release.

2.6 Remedies Not Exclusive.

(a) No remedy conferred upon or reserved to the Collateral Trustee herein or in the Trust Security Documents is intended to be exclusive of any other remedy or remedies, but every such remedy shall be cumulative and shall be in addition to every other remedy conferred herein or in any Trust Security Document or now or hereafter existing at law or in equity or by statute.

(b) No delay or omission by the Collateral Trustee to exercise any right, remedy or power hereunder or under any Trust Security Document shall impair any such right, remedy or power or shall be construed to be a waiver thereof, and every right, power and remedy given by this Collateral Trust Agreement or any Trust Security Document to the Collateral Trustee may be exercised from time to time and as often as may be deemed expedient by the Collateral Trustee.

(c) If the Collateral Trustee shall have proceeded to enforce any right, remedy or power under this Collateral Trust Agreement or any Trust Security Document and the proceeding for the enforcement thereof shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Collateral Trustee, then the Grantors, the Collateral Trustee and the Secured Parties shall, subject to any determination in such proceeding, severally and respectively be restored to their former positions and rights hereunder or thereunder with respect to the Trust Estate and in all other respects, and thereafter all rights, remedies and powers of the Collateral Trustee shall continue as though no such proceeding had been taken.

 

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(d) All rights of action and of asserting claims upon or under this Collateral Trust Agreement and the Trust Security Documents may be enforced by the Collateral Trustee without the possession of any Secured Instrument or instrument evidencing any Secured Obligation or the production thereof at any trial or other proceeding relative thereto, and any suit or proceeding instituted by the Collateral Trustee shall be, subject to subsections 5.5(c) and 5.10(b)(ii), brought in its name as Collateral Trustee and any recovery of judgment shall be held as part of the Trust Estate.

2.7 Waiver and Estoppel.

(a) Each Grantor agrees, to the extent it may lawfully do so, that it will not at any time in any manner whatsoever claim, or take the benefit or advantage of, any appraisement, valuation, stay, extension, moratorium, turnover or redemption law, or any law permitting it to direct the order in which the Collateral shall be sold, now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance or enforcement of this Collateral Trust Agreement, or any Trust Security Document, and hereby waives all benefit or advantage of all such laws and covenants that it will not hinder, delay or impede the execution of any power granted to the Collateral Trustee in this Collateral Trust Agreement or any Trust Security Document and will suffer and permit the execution of every such power as though no such law were in force.

(b) Each Grantor, to the extent it may lawfully do so, on behalf of itself and all who may claim through or under it, including without limitation any and all subsequent creditors, vendees, assignees and lienors, waives and releases all rights to demand or to have any marshalling of the Collateral upon any sale, whether made under any power of sale granted herein or in any Trust Security Document or pursuant to judicial proceedings or upon any foreclosure or any enforcement of this Collateral Trust Agreement or any Trust Security Document and consents and agrees that all the Collateral may at any such sale be offered and sold as an entirety.

(c) Each Grantor waives, to the extent permitted by applicable law, presentment, demand, protest and any notice of any kind (except notices explicitly required hereunder, under any Secured Instrument or under any other Trust Security Document) in connection with this Collateral Trust Agreement and the Trust Security Documents and any action taken by the Collateral Trustee with respect to the Collateral.

2.8 Limitation on Collateral Trustees Duty in Respect of Collateral. Beyond its duties (i) as to the custody of the Collateral expressly provided herein or in any Trust Security Document to which it is a party, (ii) to account to the Secured Parties and the Grantors for moneys and other property received by it hereunder or under any Trust Security Document to which it is a party and (iii) to exercise reasonable care with respect to any such Collateral in its possession, the Collateral Trustee shall not have any other duty to the Grantors or to the Secured Parties as to any Collateral or any income thereon or as to the preservation of rights against prior parties or any other rights pertaining thereto; provided that the Collateral Trustee will be deemed to have exercised reasonable care in respect of any Collateral if it exercises the same level of care as it does with respect to collateral held on behalf of third parties in accordance with its standard practices and procedures in effect from time to time.

2.9 Limitation by Law. All rights, remedies and powers provided in this Collateral Trust Agreement or any Trust Security Document may be exercised only to the extent that the exercise thereof does not violate any applicable requirement of law, and all the provisions hereof are intended to be subject to all applicable mandatory Requirements of Law which may be controlling and to be limited to the extent necessary so that they will not render this Collateral Trust Agreement invalid, unenforceable in whole or in part or not entitled to be recorded, registered or filed under the provisions of any applicable law.

 

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2.10 Rights of Secured Parties under Secured Instruments. Notwithstanding any other provision of this Collateral Trust Agreement or any Trust Security Document, the right of each Secured Party to receive payment of the Secured Obligations held by such Secured Party when due (whether at the stated maturity thereof, by acceleration or otherwise) as expressed in the related Secured Instrument or other instrument evidencing or agreement governing a Secured Obligation or to institute suit for the enforcement of such payment on or after such due date or to exercise any other remedy it may have as an unsecured creditor against the Grantors, and the obligation of the Grantors to pay such Secured Obligations when due, shall not be impaired or affected without the consent of such Secured Party given in the manner prescribed by the Secured Instrument under which such Secured Obligation is outstanding; provided, however, that in the event any Secured Party becomes a judgment lien creditor or otherwise obtains any Lien as a result of its enforcement of its rights as an unsecured creditor, such judgment lien and the Collateral subject thereto shall be subject to all of the terms and conditions of this Collateral Trust Agreement, and if such judgment lien is held by a Junior Priority Secured Party such Lien or Liens shall be junior and subordinate to the Liens securing the First Priority Secured Obligations hereunder on the same basis as any other Lien securing the Junior Priority Secured Obligations.

2.11 Collateral Use Prior to Event of Default.

(a) When a Notice of Event of Default is in effect, cash Proceeds received by the Collateral Trustee in connection with the sale or other disposition of Collateral pursuant to a Collateral Enforcement Action (including as a result of any collection, sale, foreclosure or other realization or distribution of or in respect of any Collateral (whether or not expressly characterized as such)) or in any Insolvency Proceeding (including any adequate protection payments)) shall be deposited in the Collateral Account. Any such Proceeds received by any Grantor shall be held by such Grantor in trust for the Collateral Trustee and shall, forthwith upon receipt by such Grantor, be turned over the Collateral Trustee, in same form as received by such Grantor (duly indorsed to the Collateral Trustee, if required) for deposit in the Collateral Account. Notwithstanding anything to the contrary in this Collateral Trust Agreement, unless a Notice of Event of Default is in effect, each Grantor may upon written request obtain the prompt release to it or its order of funds in the Collateral Account. Any written request or instruction by any Grantor pursuant to the preceding sentence shall be full authority for and direction to the Collateral Trustee to make the requested release, and the Collateral Trustee shall promptly do so. The Collateral Trustee in so doing shall have no liability to any Person.

(b) When a Notice of Event of Default is in effect and a Collateral Enforcement Action has been commenced, any insurance proceeds in respect of any Collateral, any Proceeds from the exercise of rights of eminent domain or condemnation in respect of any Collateral and any liquidating dividends paid in respect of any Collateral received by any of the Grantors shall be deposited in the Collateral Account, to be held therein and applied in accordance with Section 3 hereof. If for any reason any Grantor shall receive or hold any insurance proceeds, condemnation proceeds or liquidating dividends that are required to be held by the Collateral Trustee pursuant to the first sentence of this subsection 2.11(b), such Grantor shall hold such proceeds or dividends in trust for the Collateral Trustee and the Secured Parties and shall, as promptly as practicable, deliver such proceeds or dividends to the Collateral Trustee to be held in accordance with the provision of this subsection 2.11(b).

 

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2.12 Copies to Company. Notwithstanding any other provision of this Collateral Trust Agreement or any Trust Security Document, each Holder Representative (or, in the case any other Secured Party sends such notice, such Secured Party) shall send to the Company, simultaneously with transmittal of the same to the Collateral Trustee, a copy of each Notice of Event of Default, Notice of Acceleration, Notice of Cancellation, release direction or any other notice or other written communication sent by such Holder Representative or other Secured Party to the Collateral Trustee, except, in each case, to the extent delivery of such copy would violate an automatic stay or similar prohibition arising from a bankruptcy filing; provided that the failure to send such notice or other written communication to the Company shall not affect the effectiveness thereof.

SECTION 3.

COLLATERAL ACCOUNT; DISTRIBUTIONS

3.1 The Collateral Account. The Company shall use commercially reasonable efforts to establish, as soon as reasonably practicable after the Effective Date, and, at all times thereafter until the trusts created by this Collateral Trust Agreement shall have terminated, there shall be maintained in the name of the Company at the office of the Collateral Trustee’s corporate trust division (or at such other office selected by the Collateral Trustee) a non-interest bearing trust account (together with any other similar accounts which may be established by the Collateral Trustee, in coordination with the Controlling Party, as may be necessary or advisable to administer the moneys delivered to the Collateral Trustee pursuant to the terms, hereof, collectively, the “Collateral Account”). All moneys which are required by this Collateral Trust Agreement or any Trust Security Document to be delivered to the Collateral Trustee while a Notice of Event of Default is in effect or which are received by the Collateral Trustee or any agent or nominee of the Collateral Trustee in respect of the Collateral, whether in connection with the exercise of the remedies provided in this Collateral Trust Agreement or any Trust Security Document or otherwise, while a Notice of Event of Default is in effect shall be deposited in the Collateral Account, to be held by the Collateral Trustee as part of the Trust Estate and applied in accordance with the terms of this Collateral Trust Agreement. Upon the cancellation of all Notices of Event of Default pursuant to subsection 2.1(c) or the receipt by the Collateral Trustee of any moneys at any time when no Notice of Event of Default is in effect, the Collateral Trustee shall (subject to subsection 3.4(a)) cause all funds on deposit in the Collateral Account or otherwise received by the Collateral Trustee to be paid over as promptly as possible to the Company or as otherwise directed by the Company.

3.2 Control of Collateral Account. All right, title and interest in and to the Collateral Account shall vest in the Collateral Trustee, and funds on deposit in the Collateral Account shall constitute part of the Trust Estate. The Collateral Account shall be subject to the exclusive dominion and control of the Collateral Trustee. Each Grantor hereby grants (i) a security interest in the Collateral Account to the Collateral Trustee for the benefit of the First Priority Secured Parties, as collateral security for such Grantor’s First Priority Secured Obligations, and (ii) a security interest in the Collateral Account to the Collateral Trustee for the benefit of the Junior Priority Secured Parties, as collateral security for such Grantor’s Junior Priority Secured Obligations.

3.3 Investment of Funds Deposited in Collateral Account. The Collateral Trustee shall, following an Event of Default and at the direction of the Controlling Party (who, if a Holder Representative, shall be entitled to receive direction pursuant to any mechanisms provided for in the relevant Secured Instruments), invest and reinvest moneys on deposit in the Collateral Account at any time in Cash Equivalents (as defined in the Collateral Agreement). The Collateral Trustee shall have no obligation to invest or reinvest the funds held in the Collateral Account if deposited after 11:00 a.m. (E.S.T.) on such day of deposit. Instructions received after 11:00 a.m. (E.S.T.) will be treated as if received on the following Business Day. The Collateral Trustee shall have no responsibility for any investment losses resulting from the investment, reinvestment or liquidation of the funds. Any interest or other income received on such investment and reinvestment of the funds shall become part of the Collateral Account and any losses incurred on such investment and reinvestment of the funds shall be

 

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debited against the Collateral Account. All such investments and the interest and income received thereon and the net proceeds realized on the sale or redemption thereof shall be held in the Collateral Account as part of the Trust Estate. Neither the Collateral Trustee nor any other Secured Party shall be responsible for any diminution in funds resulting from such investments or any liquidation prior to maturity. In the absence of such directions, the Collateral Trustee shall have no obligation to invest or reinvest any moneys.

It is understood and agreed that the Collateral Trustee or its affiliates are permitted to receive fees and compensation associated with investments that could be deemed to be in the Collateral Trustee’s economic self-interest for (1) serving as investment adviser, administrator, shareholder servicing agent, custodian or sub custodian with respect to certain of the investments, (2) using affiliates to effect transactions in certain investments and (3) effecting transactions in investments. In no event shall the Collateral Trustee be deemed an investment manager or adviser in respect of any selection of investments hereunder.

3.4 Application of Moneys.

(a) The Collateral Trustee shall have the right (pursuant to subsection 4.6) at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Trustee Fees. The Collateral Trustee shall provide written notice to the Company of any such application of moneys.

(b) All moneys held by the Collateral Trustee in the Collateral Account while a Notice of Event of Default is in effect and all proceeds of Collateral received in connection with any Collateral Enforcement Action (including as a result of any collection, sale, foreclosure or other realization or distribution of or in respect of any Collateral (whether or not expressly characterized as such) or in any Insolvency Proceeding (including any adequate protection payments), shall, to the extent available for distribution (it being understood that the Collateral Trustee may liquidate investments prior to maturity in order to make a distribution pursuant to this subsection 3.4(b)), be distributed (subject to the provisions of subsections 3.4(c), 3.5, 3.7 and 8.2(f)) by the Collateral Trustee on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Trustee to the respective Holder Representative for the Secured Parties entitled thereto as provided in subsection 3.4(d), and each such Holder Representative shall be responsible for insuring that amounts distributed to it are distributed to its Secured Parties in the order of priority set forth in the Secured Instruments in respect of which it acts as Holder Representative):

First: to the Collateral Trustee or any Co-Collateral Trustee or agent of the Collateral Trustee for any unpaid Trustee Fees and then to any Secured Party which has theretofore advanced or paid any Trustee Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code or any similar provision of any other applicable Bankruptcy Law, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts and perform in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date;

Second: to the First Priority Agent and any Holder Representative ratably for any unpaid fees, costs, indemnities and expenses payable to it in its capacity as a Holder Representative pursuant to the First Priority Debt Documents to the extent the same constitute First Priority Secured Obligations and the Existing Sprint Spectrum Indenture;

 

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Third: to any Secured Party which has theretofore advanced or paid any Trustee Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts and perform in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date;

Fourth: to the holders of First Priority Secured Obligations in an amount equal to the unpaid principal and unpaid interest on and premium and other charges, if any, with respect to the First Priority Secured Obligations and any primary obligations to pay principal, lease payments, guarantee payments, interest, reimbursement obligations, repurchase amounts in respect of transferred assets, fees, prepayment premiums, liquidated damages or termination payments constituting First Priority Initial Spectrum Obligations, the amount of cash collateral required in respect of outstanding letters of credit, termination amounts in respect of Designated Hedging Obligations that constitute Permitted First Priority Non-Loan Exposure, amounts due in respect of Designated Cash Management Obligations that constitute Permitted First Priority Non-Loan Exposure, amounts due in respect of Designated L/C Facility Obligations that constitute Permitted First Priority Non-Loan Exposure, and interest and fees thereon, in each case, to the extent the same are due and payable, as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts and perform in full, then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date; provided, that following the commencement of any Insolvency Proceeding with respect to any Grantor, solely as among the holders of First Priority Secured Obligations and solely for purposes of this clause “Fourth” and not any other First Priority Debt Documents, in the event the value of the Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Priority Secured Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency Proceeding, the amount of First Priority Secured Obligations of each series of First Priority Secured Obligations shall include only the maximum amount of Post-Petition Interest on the First Priority Secured Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency Proceeding;

Fifth: to the holders of First Priority Secured Obligations in an amount equal to all other amounts constituting First Priority Secured Obligations, including but not limited to indemnities and payments for increased costs (but excluding amounts referenced in clause “Fourth” above), in each case to the extent the same are due and payable, as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts and perform in full, then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date;

Sixth: after the payment in full of all First Priority Secured Obligations, to the holders of Junior Priority Secured Obligations in an amount equal to all Junior Priority Secured Obligations which have not been paid, including termination amounts in respect of Designated Hedging Obligations that constitute Permitted Junior Priority Non-Loan Exposure, amounts due in respect of Designated Cash Management Obligations that constitute Permitted Junior Priority Non-Loan Exposure and all other Junior Priority Secured Obligations (including but not limited to the unpaid principal and unpaid interest on and premium and other charges, if any, with respect to such Junior Priority Secured Obligations) then outstanding, in each case to the extent then due and payable, as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts and perform in full, then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date; and

 

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Seventh: after the payment in full of all Junior Priority Secured Obligations, any surplus then remaining shall be paid to the Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

(c) Notwithstanding anything to the contrary above, the proceeds of any Specified Collateral shall be distributed (in the manner set forth above) solely to Secured Parties that are holders of the applicable Specified First Priority Secured Obligations and shall not be distributed to any other Secured Party.

(d) The term “unpaid” as used in subsection 3.4(b) with respect to the relevant Grantor(s), refers to all amounts of First Priority Secured Obligations or Junior Priority Secured Obligations, as the case may be, Outstanding as of a Distribution Date, whether or not such amounts are fixed or contingent, and, in the case of an Insolvency Proceeding, with respect to any Grantor, whether or not such amounts are allowed in such Insolvency Proceeding, to the extent that prior distributions (whether actually distributed or set aside pursuant to subsection 3.5) have not been made in respect thereof.

(e) The Collateral Trustee shall make all payments and distributions under this subsection 3.4: (i) on account of First Priority Secured Obligations to each applicable Holder Representative, pursuant to payment instructions and information supplied by such Holder Representative, in accordance with the provisions of this Collateral Trust Agreement; (ii) on account of Junior Priority Secured Obligations, to each applicable Holder Representative, pursuant to payment instructions and information supplied by such Holder Representative, in accordance with the provisions of this Collateral Trust Agreement, and (iii) on account of any other Secured Obligation, to the relevant Secured Party based on the payment instructions and information supplied to the Collateral Trustee by the relevant Secured Party or the Company pursuant to subsection 7.1.

If any Holder Representative or any holder of any Secured Obligations collects or receives any proceeds of such foreclosure, collection or other enforcement that was not, and should have been, applied to the payment of the Secured Obligations in accordance with clauses (a) and (b) of subsection 3.4, whether after the commencement of an Insolvency Proceeding or otherwise, such Holder Representative or such holder of Secured Obligations, as the case may be, will forthwith deliver the same to the Collateral Trustee, for the account of the holders of the Secured Obligations, to be applied in accordance with clauses (a) and (b) of subsection 3.4. Until so delivered, such proceeds will be held by that Debt Representative or that holder of Secured Obligations, as the case may be, for the benefit of the holders of the Secured Obligations.

3.5 Amounts Held for Contingent Secured Obligations. In the event any Secured Party shall be entitled to receive any moneys in respect of the unliquidated, unmatured or contingent portion of the outstanding Secured Obligations (including, without limitation, obligations under then outstanding letters of credit, guarantees and termination liabilities with respect to Designated Hedging Obligations which are not determinable or are unmatured), then the Collateral Trustee, pursuant to written direction of the Controlling Party as provided in accordance with subsection 3.3 shall invest such moneys as shall be specified in obligations of the kinds referred to in subsection 3.3 maturing within three months after they are acquired by the Collateral Trustee and shall hold all such amounts so distributable, and all such investments and the net proceeds thereof, in trust solely for such Secured Party and for no other purpose until (i) such Secured Party shall have notified the Collateral Trustee that all or part of such unliquidated, unmatured or contingent claim shall have become matured or fixed, in which case the Collateral Trustee shall distribute from such investments and the proceeds thereof an amount equal to such matured or fixed

 

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claim to such Secured Party for application to the payment of such matured or fixed claim, and shall promptly give notice thereof to the Company or (ii) all or part of such unliquidated, unmatured or contingent claim shall have been extinguished, whether as the result of an expiration without drawing of any letter of credit, payment of amounts secured or covered by any letter of credit other than by drawing thereunder, payment of amounts covered by any guarantee or otherwise, in which case (x) such Secured Party shall, as soon as practicable thereafter, notify the Company and the Collateral Trustee and (y) such investments, and the proceeds thereof, shall be held in the Collateral Account in trust for all Secured Parties pending application in accordance with the provisions of subsection 3.4.

3.6 Collateral Trustees Calculations. In making the determinations and allocations required by subsections 3.4 or 3.5, the Collateral Trustee may conclusively rely upon information supplied by the First Priority Agent through the applicable Holder Representative as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the First Priority Secured Obligations, information supplied by the Junior Priority Agent through the applicable Holder Representative as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Junior Priority Secured Obligations, and information supplied by the applicable Secured Party in respect of the relevant Secured Non-Loan Exposure as to the unpaid amount of such Secured Obligations, and the Collateral Trustee shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Grantor from contesting any amounts claimed by any Secured Party in any information so supplied. Upon the reasonable request of the Collateral Trustee or, if applicable, the First Priority Agent, the First Priority Agent, the Junior Priority Agent, the applicable Holder Representative or any other Secured Party, as the case may be, shall deliver to the Collateral Trustee or First Priority Agent a certificate (which may, for the avoidance of doubt, be the relevant report provided to it pursuant to the underlying First Priority Debt Documents or Junior Priority Debt Documents) setting forth the information specified in this subsection 3.6. All distributions made by the Collateral Trustee pursuant to subsection 3.4 shall be (subject to subsection 3.7 and to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Trustee shall have no duty to inquire as to the application by any Holder Representative in respect of any amounts distributed to them.

3.7 Pro Rata Sharing. If, through the operation of any Bankruptcy Law or otherwise, the Collateral Trustee’s security interest hereunder and under the Trust Security Documents is enforced with respect to some, but not all, of the Secured Obligations then outstanding, the Collateral Trustee shall nonetheless apply the proceeds of the Collateral for the benefit of the holders of all Secured Obligations in the proportions and subject to the priorities specified herein; provided, however, that nothing in this subsection 3.7 shall be deemed to require the Collateral Trustee to disregard or violate any court order binding upon it.

3.8 Collateral Account Information and Access. At such times as the Company or Controlling Party may reasonably request in writing, the Collateral Trustee shall provide a full accounting of all funds then standing to the credit of the Collateral Account. The Collateral Trustee shall also provide the necessary information to enable the Company to electronically access account statements and data for the Collateral Account.

SECTION 4.

AGREEMENTS WITH COLLATERAL TRUSTEE

4.1 Delivery of Secured Instruments. On the Effective Date, the Company shall deliver to the Collateral Trustee copies of each Secured Instrument and each Trust Security Document then in effect. The Company shall deliver to the Collateral Trustee, promptly upon request therefor, a copy of all amendments, modifications or supplements to any Secured Instrument entered into after the Effective Date.

 

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4.2 Compensation and Expenses. The Company agrees to pay to the Collateral Trustee, from time to time upon demand, (i) compensation as set forth in that certain separate fee agreement between the Company and the Collateral Trustee] and (ii) all of the reasonable and documented fees, costs and expenses of the Collateral Trustee (including, without limitation, the reasonable and documented fees and disbursements of its advisors and agents and one outside counsel to the Collateral Trustee and, if necessary, one additional counsel in each relevant jurisdiction) (A) arising in connection with the preparation, execution, delivery, modification, administration and termination of this Collateral Trust Agreement and each Trust Security Document or the enforcement of any of the provisions hereof or thereof, (B) incurred or required to be advanced in connection with the administration of the Trust Estate, the sale or other disposition of Collateral pursuant to any Trust Security Document and the preservation, protection or defense of the Collateral Trustee’s rights under this Collateral Trust Agreement and the Trust Security Documents and in and to the Collateral and the Trust Estate, (C) incurred by the Collateral Trustee in connection with the removal of the Collateral Trustee pursuant to subsection 5.7(a) or (D) incurred in connection with the execution of the directions provided by the Controlling Party. Such fees, costs and expenses are intended to constitute expenses of administration under any Bankruptcy Law relating to creditors’ rights generally. If the Company fails to pay any amounts owing to the Collateral Trustee pursuant to this subsection 4.2, the Secured Parties whose Holder Representative is the Controlling Party (excluding, for the avoidance of doubt, the Collateral Trustee and any applicable Holder Representative) shall indemnify the Collateral Trustee on a pro rata basis amongst such Secured Parties; provided that such Secured Parties may, subject to the immediately succeeding sentence, seek indemnification of any amounts paid by them to the Collateral Trustee pursuant to this subsection 4.2 from all the other Secured Parties (excluding, for the avoidance of doubt, the Collateral Trustee and any applicable Holder Representative) in an amount that will result in the sharing of such amounts paid to the Collateral Trustee pursuant to this subsection 4.2 on a pro rata basis amongst all the Secured Parties (other than the Collateral Trustee and any applicable Holder Representative), and such other Secured Parties shall indemnify the Secured Parties whose Holder Representative is the Controlling Party for such amounts. Notwithstanding the foregoing, it is expressly understood and agreed that the immediately preceding sentence shall not be, and shall not be deemed to be, an agreement by the Holder Representative in respect of the First Priority Initial Spectrum Obligations, on behalf of the holders of the First Priority Initial Spectrum Obligations or otherwise (including in respect of the holders of the Existing Sprint Spectrum-Backed Notes), to provide such indemnification. The agreements in this this subsection 4.2 shall survive the termination of the other provisions of this Collateral Trust Agreement and the resignation or removal of the Collateral Trustee hereunder.

4.3 Stamp and Other Similar Taxes. The Company agrees to indemnify and hold harmless the Collateral Trustee, each Holder Representative and each Secured Party from any present or future claim for liability for any stamp or any other similar tax, and any penalties or interest with respect thereto, which may be assessed, levied or collected by any jurisdiction in connection with this Collateral Trust Agreement, any Trust Security Document, the Trust Estate or any Collateral. The obligations of the Company under this subsection 4.3 shall survive the termination of the other provisions of this Collateral Trust Agreement, the resignation or removal of the Collateral Trustee hereunder and the resignation or removal of the relevant Holder Representative under the applicable First Priority Debt Documents.

4.4 Filing Fees, Etc. The Company agrees to pay or to reimburse the Collateral Trustee for any and all payments made by the Collateral Trustee in respect of all search, filing, recording and registration fees which may be payable in respect of the execution and delivery of this Collateral Trust Agreement and each Trust Security Document. For the avoidance of doubt, nothing herein shall require the Collateral Trustee to file financing statements or continuation statements, or be responsible for maintaining the security interests purported to be created as described herein (except for the safe custody of any Collateral in its possession and accounting for moneys actually received by it hereunder). The obligations of the Company under this subsection 4.4 shall survive the termination of the other provisions of this Collateral Trust Agreement and the resignation or removal of the Collateral Trustee hereunder.

 

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4.5 Indemnification. The Company agrees to pay, indemnify, and hold the Collateral Trustee (and its directors, officers, agents and employees) harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including, without limitation, the reasonable fees and expenses of counsel, advisors and agents) or disbursements of any kind or nature whatsoever with respect to the execution, delivery, enforcement, performance and administration of this Collateral Trust Agreement and the Trust Security Documents, except to the extent arising from the gross negligence or willful misconduct (in any case, as determined by a final judgment of a court of competent jurisdiction) of the indemnified party or any of its affiliates or any of their respective directors, officers, agents or employees, including for taxes in any jurisdiction in which the Collateral Trustee is subject to tax by reason of actions hereunder or under the Trust Security Documents, unless such taxes are imposed on or measured by compensation paid to the Collateral Trustee under subsection 4.2; provided that the Company shall not be liable for any settlement of claim, investigation, litigation or proceeding effected without the Company’s consent (which consent shall not be unreasonably withheld or delayed). If the Company fails to pay any amounts owing to the Collateral Trustee pursuant to this subsection 4.5, the Secured Parties whose Holder Representative is the Controlling Party (excluding, for the avoidance of doubt, the Collateral Trustee and any applicable Holder Representative) shall indemnify the Collateral Trustee on a pro rata basis amongst such Secured Parties; provided that such Secured Parties may, subject to the immediately succeeding sentence, seek indemnification of any amounts paid by them to the Collateral Trustee pursuant to this subsection 4.5 from all the other Secured Parties (excluding, for the avoidance of doubt, the Collateral Trustee and any applicable Holder Representative) in an amount that will result in the sharing of such amounts paid to the Collateral Trustee pursuant to this subsection 4.5 on a pro rata basis amongst all the Secured Parties (other than the Collateral Trustee and any applicable Holder Representative), and such other Secured Parties shall indemnify the Secured Parties whose Holder Representative is the Controlling Party for such amounts. Notwithstanding the foregoing, it is expressly understood and agreed that the immediately preceding sentence shall not be, and shall not be deemed to be, an agreement by the Holder Representative in respect of the First Priority Initial Spectrum Obligations, on behalf of the holders of the First Priority Initial Spectrum Obligations or otherwise (including in respect of the holders of the Existing Sprint Spectrum-Backed Notes), to provide such indemnification. The agreements in this subsection 4.5 shall survive the termination of the other provisions of this Collateral Trust Agreement and the resignation or removal of the Collateral Trustee hereunder.

4.6 Trustees Lien. Notwithstanding anything to the contrary in this Collateral Trust Agreement, as security for the payment of Trustee Fees (i) the Collateral Trustee is hereby granted a lien upon all Collateral which shall have priority ahead of all other Secured Obligations secured by such Collateral and (ii) the Collateral Trustee shall have the right to use and apply any of the funds held by the Collateral Trustee in the Collateral Account to cover such Trustee Fees.

4.7 Further Assurances. Each Grantor will promptly execute and deliver any and all such further instruments and documents and take such further action as is reasonably requested by the First Priority Agent (or, if there is no First Priority Agent, as is necessary or desirable) or that a Holder Representative may reasonably request pursuant to any Secured Instrument or Trust Security Document (and subject to any limitations set forth therein) further to perfect, or to protect the perfection of, the liens and security interests granted under the Trust Security Documents, including, without limitation, the filing of any financing or continuation statements under the Uniform Commercial Code in effect in any jurisdiction. Notwithstanding the foregoing, in no event shall the Collateral Trustee or any Holder Representative have any obligation to monitor the perfection or continuation of perfection or the sufficiency or validity of any security interest in or related to the Collateral.

 

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4.8 Inspection of Properties and Books. So long as a Notice of Event of Default shall be in effect, the Company and the Grantors shall give the Collateral Trustee access, at its request, to all Collateral and to all books, records, documents and information in the possession of the Company or any other Grantor or any of their respective Subsidiaries relating thereto. The Company and the Grantors shall not have any obligation to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter (i) that constitutes trade secrets or proprietary information, (ii) in respect of which disclosure to the Collateral Trustee (or its representatives or contractors) is prohibited by any applicable law or any binding agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product.

SECTION 5.

THE COLLATERAL TRUSTEE

5.1 Acceptance of Trust. The Company and the Grantors and each Holder Representative party hereto do hereby appoint (and each Holder Representative (on behalf of itself and each Secured Party that it represents) or Grantor that from time to time becomes a party hereto is deemed to appoint), pursuant to the terms and conditions of this Collateral Trust Agreement, Deutsche Bank Trust Company Americas to act as Collateral Trustee with the authority to take the actions of the Collateral Trustee under this Collateral Trust Agreement and the Trust Security Documents, together with such actions and powers as are reasonably incidental thereto. The Collateral Trustee, for itself and its successors, hereby accepts its obligations under this Collateral Trust Agreement upon the terms and conditions hereof. The Secured Parties hereby authorize the Collateral Trustee to enter into this Collateral Trust Agreement and the Trust Security Documents to which it is party.

5.2 Exculpatory Provisions.

(a) The Collateral Trustee shall not be responsible in any manner whatsoever for the correctness of any recitals, statements, representations or warranties herein, all of which are made solely by the Grantors. The Collateral Trustee makes no representations as to the value or condition of the Trust Estate or any part thereof, or as to the title of the Grantors thereto or as to the security afforded by this Collateral Trust Agreement or any Trust Security Document, or as to the validity, execution (except its execution), enforceability, legality or sufficiency of this Collateral Trust Agreement, the Trust Security Documents or the Secured Obligations, and the Collateral Trustee shall incur no liability or responsibility in respect of any such matters. The Collateral Trustee shall not be responsible for insuring the Trust Estate or for the payment of taxes, charges, assessments or liens upon the Trust Estate or otherwise as to the maintenance of the Trust Estate. The Collateral Trustee is acting solely as an agent for the Secured Parties hereunder and does not assume and shall not be deemed to have assumed any obligation of a fiduciary for or with any Grantor, the Secured Parties or any other party.

(b) The Collateral Trustee shall not be required to ascertain or inquire as to the performance by the Grantors of any of the covenants or agreements contained herein or in any Trust Security Document or Secured Instrument. Whenever it is necessary, or in the opinion of the Collateral Trustee advisable, for the Collateral Trustee to ascertain the amount of Secured Obligations then held by Secured Parties, the Collateral Trustee may rely on (i) a certificate of the First Priority Agent or relevant Holder Representative, in the case of First Priority Credit Agreement Obligations, (ii) a certificate of the Junior Priority Agent or relevant Holder Representative, in the case of any Junior Priority Debt Obligations, and (iii) a certificate of the relevant Secured Party, in the case of any Secured Non-Loan Exposure, and, if the First Priority Agent, the Junior Priority Agent or any relevant Secured Party shall not give such information to the Collateral Trustee, it shall not be entitled to

 

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receive distributions hereunder (in which case distributions to those Persons who have supplied such information to the Collateral Trustee shall be calculated by the Collateral Trustee using, for those Persons who have not supplied such information, the most recent information, if any, received by the Collateral Trustee), and the amount so calculated to be distributed to the Person who fails to give such information shall be held in trust for such Person until such Person does supply such information to the Collateral Trustee, whereupon on the next Distribution Date the amount distributable to such Person shall be recalculated using such information and distributed to it. Nothing in this subsection 5.2(b) shall prevent any Grantor from contesting any amounts claimed by any Secured Party in any certificate so supplied. Notwithstanding anything to the contrary set forth in this subsection 5.2(b), so long as no Notice of Event of Default is in effect, the Collateral Trustee may rely conclusively on a certificate of a Responsible Officer of the Company with respect to the matters set forth in the second sentence of this subsection 5.2(b).

(c) The Collateral Trustee shall be under no obligation or duty to take any action under this Collateral Trust Agreement or any Trust Security Document if taking such action (i) would subject the Collateral Trustee to a tax in any jurisdiction where it is not then subject to a tax, (ii) in its reasonable opinion or in the reasonable opinion of its counsel, may expose the Collateral Trustee to liability or that is contrary to this Collateral Trust Agreement or applicable law or (iii) would require the Collateral Trustee to qualify to do business in any jurisdiction where it is not then so qualified, unless the Collateral Trustee receives security or indemnity satisfactory to it against such tax (or equivalent liability), or any liability resulting from such qualification, in each case as results from the taking of such action under this Collateral Trust Agreement or any Trust Security Document.

(d) The Collateral Trustee shall have the same rights with respect to any Secured Obligation held by it as any other Secured Party and may exercise such rights as though it were not the Collateral Trustee hereunder, and may accept deposits from, lend money to, and generally engage in any kind of banking or trust business with, any of the Grantors as if it were not the Collateral Trustee.

(e) Notwithstanding any other provision of this Collateral Trust Agreement, the Collateral Trustee shall not be liable for any action taken or omitted to be taken in accordance with this Collateral Trust Agreement or the Trust Security Documents except to the extent of its own gross negligence or willful misconduct as determined pursuant to a final, non-appealable order of a court of competent jurisdiction.

(f) The Collateral Trustee shall have no responsibility for the preparation, filing or recording of any instrument, document or financing statement or for the maintenance of any security interest intended to be perfected thereby.

(g) In the event that the Collateral Trustee is required to acquire title to any real estate or equity interest-related collateral for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any obligation for the benefit of another, which in the Collateral Trustee’s sole discretion may cause the Collateral Trustee to be considered an “owner or operator” under the provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), or otherwise cause the Collateral Trustee to incur liability (including environmental liability) under CERCLA or any other federal, state or local law, the Collateral Trustee reserves the right, instead of taking such action, to either resign as Collateral Trustee or arrange for the transfer of the title or control of the asset to a court-appointed receiver. The Collateral Trustee shall not be liable to the Secured Parties, any Grantor or any other Person for any environmental liability or any other liability under any federal, state or local law, rule or regulation by reason of such Collateral Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment. If at any time it is necessary or advisable for any part of any

 

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Grantor’s property to be possessed, owned, operated or managed by any Person (including the Collateral Trustee) other than a Grantor, the Controlling Party (as directed by the requisite Secured Parties, if applicable) shall direct the Collateral Trustee to appoint an appropriately qualified Person (excluding the Collateral Trustee) who they shall designate to possess, own, operate or manage, as the case may be, such part of such Grantor’s property.

(h) The Collateral Trustee shall be afforded all of the same rights, protections, immunities and other indemnities afforded to it hereunder under each other Trust Security Document and any other document or agreement executed in connection herewith and therewith as if the same were specifically set forth therein.

5.3 Delegation of Duties. The Collateral Trustee may execute any of the trusts or powers hereof and perform any duty hereunder either directly or by or through agents (including, for the avoidance of doubt, in connection with any public or private sale of Collateral, one or more brokers, investment bankers, consultants, affiliates, liquidation agents or other professionals) or attorneys-in-fact. The Collateral Trustee shall be entitled to advice of counsel concerning all matters pertaining to such trusts, powers and duties. The Collateral Trustee shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it without gross negligence or willful misconduct.

5.4 Reliance by Collateral Trustee.

(a) Whenever in the administration of this Collateral Trust Agreement or the Trust Security Documents the Collateral Trustee shall deem it necessary or desirable that a factual matter be proved or established in connection with the Collateral Trustee taking, suffering or omitting any action hereunder or thereunder, such matter may be deemed to be conclusively proved or established by a certificate of a financial or other senior officer of the Company or Controlling Party, as applicable, delivered to the Collateral Trustee, and such certificate shall be full warrant to the Collateral Trustee for any action taken, suffered or omitted in reliance thereon, subject, however, to the provisions of subsection 5.5.

(b) The Collateral Trustee may consult with legal counsel, and any Opinion of Counsel (or other legal advice of such counsel) shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder or under any Trust Security Document in accordance therewith. The Collateral Trustee shall have the right at any time to seek instructions concerning the administration of this Collateral Trust Agreement and the Trust Security Documents from any court of competent jurisdiction.

(c) The Collateral Trustee may conclusively rely, and shall be fully protected in acting, upon any resolution, statement, certificate, instrument, opinion, report, notice, request, consent, order, bond or other paper or document which it has no reason to believe to be other than genuine and to have been signed or presented by the proper party or parties or, in the case of emails, cables, telecopies and telexes, to have been sent by the proper party or parties. In the absence of its own gross negligence or willful misconduct, the Collateral Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Collateral Trustee and conforming to the requirements of this Collateral Trust Agreement.

(d) The Collateral Trustee shall not be under any obligation to exercise any of the rights or powers vested in the Collateral Trustee by this Collateral Trust Agreement and the Trust Security Documents, at the request or direction of the Controlling Party pursuant to this Collateral Trust Agreement or otherwise, unless the Collateral Trustee shall have been provided security and indemnity satisfactory to it against the costs, expenses and liabilities which may be incurred by the Collateral Trustee in compliance with such request or direction, including such reasonable advances as may be requested by the Collateral Trustee.

 

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(e) Upon any application or demand by any of the Grantors to the Collateral Trustee to take or permit any action under any of the provisions of this Collateral Trust Agreement or any Trust Security Document, the Company shall furnish to the Collateral Trustee a certificate of a Responsible Officer of the Company stating that all conditions precedent, if any, provided for in this Collateral Trust Agreement, in any relevant Trust Security Document or in the First Priority Debt Documents or the Junior Priority Debt Documents relating to the proposed action have been (or, substantially contemporaneously with such action, shall be) complied with, and in the case of any such application or demand as to which the furnishing of any document is specifically required by any provision of this Collateral Trust Agreement or a Trust Security Document relating to such particular application or demand, such additional document shall also be furnished.

(f) Any Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate of a financial or other appropriate officer provided to such counsel in connection with such opinion or representations made by a financial or other senior officer in a writing filed with the Collateral Trustee.

5.5 Limitations on Duties of Trustee.

(a) The Collateral Trustee shall be obligated to perform such duties and only such duties as are specifically set forth in this Collateral Trust Agreement and the Trust Security Documents, and no implied covenants or obligations shall be read into this Collateral Trust Agreement or any Trust Security Document against the Collateral Trustee. The title “Collateral Trustee” is used herein for convenience and the Collateral Trustee shall not have any fiduciary obligations. If and so long as a Notice of Event of Default is in effect, the Collateral Trustee shall, subject to the provisions of subsection 2.5(b), exercise the rights and powers vested in the Collateral Trustee by this Collateral Trust Agreement and the Trust Security Documents, and shall not be liable with respect to any action taken, or omitted to be taken, in accordance with the direction of the Controlling Party.

(b) The Collateral Trustee shall not be under any obligation to take or refrain from any action which is discretionary in nature under the provisions hereof or of any Trust Security Document, except upon the written request of the Controlling Party as to the exercise of such discretion at such time. The Collateral Trustee shall make available for inspection and copying by each Holder Representative and each relevant Secured Party in respect of any Secured Non-Loan Exposure, each certificate or other paper furnished to the Collateral Trustee by any of the Grantors under or in respect of this Collateral Trust Agreement or any of the Collateral.

(c) No provision of this Collateral Trust Agreement or of any Trust Security Document shall be deemed to impose any duty or obligation on the Collateral Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the Collateral Trustee shall be unqualified or incompetent, to perform any such act or acts or to exercise any such right, power, duty or obligation or if such performance or exercise would constitute doing business by the Collateral Trustee in such jurisdiction or impose a tax on the Collateral Trustee by reason thereof or to risk its own funds or otherwise incur any financial liability in the performance of its duties hereunder.

 

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(d) Whenever reference is made in this Collateral Trust Agreement to any action by, consent, designation, specification, requirement of approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Trustee or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Trustee in this Collateral Trust Agreement and any Trust Security Document, it is understood that in all cases the Collateral Trustee shall only act, give, withhold, suffer, omit, take or otherwise undertake and exercise the same (or shall not undertake and exercise the same), as directed by the Company, the Controlling Party, First Priority Agent, Junior Priority Agent or Holder Representative, as applicable. In all cases the Collateral Trustee shall be fully justified in failing or refusing to take any such action under this Collateral Trust Agreement if it shall not have received such written instruction, advice or concurrence. Additionally, under no circumstances shall the Collateral Trustee be liable for any delay in acting, or liability caused by such delay, while it is awaiting such direction or indemnity. This provision is intended solely for the benefit of the Collateral Trustee and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.

(e) The permissive authorization, entitlements, powers and rights (including the right to request that a Grantor take an action or deliver a document and the exercise of remedies following an Event of Default) granted to the Collateral Trustee herein shall not be construed as duties.

(f) The Collateral Trustee shall not be deemed to have notice of any Event of Default unless a Responsible Officer has actual knowledge thereof (including by receipt of such Responsible Officer of a Notice of Event of Default).

5.6 Moneys to be Held in Trust. All moneys received by the Collateral Trustee under or pursuant to any provision of this Collateral Trust Agreement or any Trust Security Document (except Trustee Fees) shall be held in trust for the purposes for which they were paid or are held.

5.7 Resignation and Removal of the Collateral Trustee.

(a) The Collateral Trustee may at any time, by giving 30 days’ written notice to the Company and each Holder Representative, resign and be discharged of the responsibilities hereby created, such resignation to become effective upon (i) the appointment of a successor Collateral Trustee, (ii) the acceptance of such appointment by such successor Collateral Trustee and (iii) the approval of such successor Collateral Trustee evidenced by one or more instruments signed by the Controlling Party and, so long as no Notice of Event of Default is then in effect, by the Company (which approval, in each case, shall not be unreasonably withheld or delayed). If no successor Collateral Trustee shall be appointed and shall have accepted such appointment within 60 days after the Collateral Trustee gives the aforesaid notice of resignation, the Collateral Trustee, the Company or the Controlling Party may apply to any court of competent jurisdiction to appoint a successor Collateral Trustee to act until such time, if any, as a successor Collateral Trustee shall have been appointed as provided in this subsection 5.7. Any successor so appointed by such court shall immediately and without further act be superseded by any successor Collateral Trustee appointed by the Controlling Party, as provided in subsection 5.7(b). The Controlling Party may, at any time upon giving 30 days’ prior written notice thereof to the Collateral Trustee and each other Holder Representative, and with the consent of the Company (such consent not to be unreasonably withheld or delayed) remove the Collateral Trustee and appoint a successor Collateral Trustee, such removal to be effective upon the acceptance of such appointment by the successor. The Collateral Trustee shall be paid its Trustee Fees to the extent incurred or arising, or relating to events occurring, before such resignation or removal.

 

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(b) If at any time the Collateral Trustee shall resign or be removed or otherwise become incapable of acting, or if at any time a vacancy shall occur in the office of the Collateral Trustee for any other cause, a successor Collateral Trustee may be appointed by the Controlling Party with the consent (not to be unreasonably withheld or delayed) of the Company. The powers, duties, authority and title of the predecessor Collateral Trustee shall be terminated and cancelled without procuring the resignation of such predecessor and without any other formality (except for the consent of the Company referred to above and as may be required by applicable law) than appointment and designation of a successor in writing duly delivered to the predecessor and the Company. Such appointment and designation shall be full evidence of the right and authority to make the same and of all the facts therein recited, and this Collateral Trust Agreement and the Trust Security Documents shall vest in such successor, without any further act, deed or conveyance, all the estates, properties, rights, powers, trusts, duties, authority and title of its predecessor; but such predecessor shall, nevertheless, on the written request of the Controlling Party, the Company, or the successor, execute and deliver an instrument transferring to such successor all the estates, properties, rights, powers, trusts, duties, authority and title of such predecessor hereunder and under the Trust Security Documents and shall deliver all Collateral held by it or its agents to such successor, provided that any outstanding Trustee Fees have been paid in full. Should any deed, conveyance or other instrument in writing from any Grantor be required by any successor Collateral Trustee for more fully and certainly vesting in such successor the estates, properties, rights, powers, trusts, duties, authority and title vested or intended to be vested in the predecessor Collateral Trustee, any and all such deeds, conveyances and other instruments in writing shall, on request of such successor, be executed, acknowledged and delivered by such Grantor. If such Grantor shall not have executed and delivered any such deed, conveyance or other instrument within 15 Business Days after it received a written request from the successor Collateral Trustee to do so, or if a Notice of Event of Default is in effect, the predecessor Collateral Trustee may execute the same on behalf of such Grantor. Such Grantor hereby appoints any predecessor Collateral Trustee as its agent and attorney to act for it as provided in the next preceding sentence.

5.8 Status of Successor Collateral Trustee. Every successor Collateral Trustee appointed pursuant to subsection 5.7 shall be a bank or trust company in good standing and having power to act as Collateral Trustee hereunder, incorporated under the laws of the United States of America or any State thereof or the District of Columbia and having its principal corporate trust office within the 48 contiguous States and shall also have capital, surplus and undivided profits of not less than $500,000,000, if there be such an institution with such capital, surplus and undivided profits willing, qualified and able to accept the trust hereunder upon reasonable or customary terms.

5.9 Merger of the Collateral Trustee. Any corporation into which the Collateral Trustee may be merged, or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Collateral Trustee shall be a party, shall be Collateral Trustee under this Collateral Trust Agreement and the Trust Security Documents without the execution or filing of any paper or any further act on the part of the parties hereto.

5.10 Co-Collateral Trustee; Separate Collateral Trustee.

(a) If at any time or times it shall be necessary or prudent in order to conform to any law of any jurisdiction in which any of the Collateral shall be located, or to avoid any violation of law or imposition on the Collateral Trustee of taxes by such jurisdiction not otherwise imposed on the Collateral Trustee, or the Collateral Trustee shall be advised by counsel, satisfactory to it, that it is necessary or prudent in the interest of the Secured Parties, or any Holder Representative shall in writing so request the Collateral Trustee and the Grantors, or the Collateral Trustee shall deem it desirable for its own protection in the performance of its duties hereunder or under any Trust Security Document, the Collateral Trustee and each of the Grantors shall execute and deliver all instruments and agreements necessary or proper to constitute another bank or trust company, or one or more persons approved by the Collateral Trustee and the Grantors, either to act as co-trustee or co-trustees of all or any of the Collateral under this Collateral Trust Agreement or under any of the Trust Security Documents, jointly with the Collateral Trustee

 

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originally named herein or therein or any successor Collateral Trustee, or to act as separate trustee or trustees of any of the Collateral. If any of the Grantors shall not have joined in the execution of such instruments and agreements within 30 days after it receives a written request from the Collateral Trustee to do so, or if a Notice of Event of Default is in effect, the Collateral Trustee may act under the foregoing provisions of this subsection 5.10(a) without the concurrence of such Grantors and execute and deliver such instruments and agreements on behalf of such Grantors. Each of the Grantors hereby appoints the Collateral Trustee as its agent and attorney to act for it under the foregoing provisions of this subsection 5.10(a) in either of such contingencies.

(b) Every separate trustee and every co-trustee, other than any successor Collateral Trustee appointed pursuant to subsection 5.7, shall, to the extent permitted by law, be appointed and act and be such, subject to the following provisions and conditions:

(i) all rights, powers, duties and obligations conferred upon the Collateral Trustee in respect of the custody, control and management of moneys, papers or securities shall be exercised solely by the Collateral Trustee or any agent appointed by the Collateral Trustee;

(ii) all rights, powers, duties and obligations conferred or imposed upon the Collateral Trustee hereunder and under the relevant Trust Security Document or Documents shall be conferred or imposed and exercised or performed by the Collateral Trustee and such separate trustee or separate trustees or co-trustee or co-trustees, jointly, as shall be provided in the instrument appointing such separate trustee or separate trustees or co-trustee or co-trustees, except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed the Collateral Trustee shall be incompetent or unqualified to perform such act or acts, or unless the performance of such act or acts would result in the imposition of any tax on the Collateral Trustee which would not be imposed absent such joint act or acts, in which event such rights, powers, duties and obligations shall be exercised and performed by such separate trustee or separate trustees or co-trustee or co-trustees;

(iii) no power given hereby or by the relevant Trust Security Documents to, or which it is provided herein or therein may be exercised by, any such co-trustee or co-trustees or separate trustee or separate trustees shall be exercised hereunder or thereunder by such co-trustee or co-trustees or separate trustee or separate trustees except jointly with, or with the consent in writing of, the Collateral Trustee, anything contained herein to the contrary notwithstanding;

(iv) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and

(v) the Company and the Collateral Trustee, at any time by an instrument in writing executed by them jointly, may accept the resignation of or remove any such separate trustee or co-trustee and, in that case by an instrument in writing executed by them jointly, may appoint a successor to such separate trustee or co-trustee, as the case may be, anything contained herein to the contrary notwithstanding. If the Company shall not have joined in the execution of any such instrument within 30 days after it receives a written request from the Collateral Trustee to do so, or if a Notice of Event of Default is in effect, the Collateral Trustee shall have the power to accept the resignation of or remove any such separate trustee or co-trustee and to appoint a successor without the concurrence of the Company, the Company hereby appointing the Collateral Trustee its agent and attorney to act for it in such connection in such contingency. If the Collateral Trustee shall have appointed a separate trustee or separate trustees or co-trustee or co-trustees as above provided, the Collateral Trustee may at any time, by an instrument in writing, accept the resignation of or remove any such separate trustee or co-trustee and the successor to any such separate trustee or co-trustee shall be appointed by the Company and the Collateral Trustee, or by the Collateral Trustee alone pursuant to this subsection 5.10(b).

 

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5.11 Treatment of Payee or Indorsee by Collateral Trustee; Representatives of Secured Parties. The Collateral Trustee may treat the registered holder or, if none, the payee or indorsee of any promissory note or debenture evidencing a Secured Obligation as the absolute owner thereof for all purposes and shall not be affected by any notice to the contrary, whether such promissory note or debenture shall be past due or not.

SECTION 6.

MISCELLANEOUS

6.1 Notices. Unless otherwise specified herein, all notices, requests, demands or other communications given to any of the Grantors, the Collateral Trustee, the Controlling Party and any Holder Representative shall be given in writing (including, but not limited to, facsimile or electronic transmission) and shall be effective (i) if given by facsimile transmission, when such facsimile is transmitted to the facsimile number specified in this subsection 6.1 and the appropriate facsimile confirmation is received, (ii) if given by certified registered mail, return receipt requested, with first class postage prepaid, addressed as aforesaid, upon receipt or refusal to accept delivery, (iii) if given by a nationally recognized overnight carrier, 24 hours after such communication is deposited with such carrier with postage prepaid for next day delivery, (iv) if given by electronic transmission, when transferred by such electronic transmission to the appropriate electronic address specific in this subsection 6.1 and the electronic transmission is received or (v) if given by any other means, when delivered at the address specified in this subsection 6.1; provided, that any notice, request or demand to the Collateral Trustee shall not be effective until received by a Responsible Officer of the Collateral Trustee in writing (including by facsimile or electronic transmission) in the corporate trust division at the office designated by it pursuant to this subsection 6.1. All notices, requests and other communications to any party hereunder shall be given to such party at its address specified on the signature pages hereof or any other address which such party shall have specified as its address for the purpose of communications hereunder, by notice given in accordance with this subsection 6.1 to the party sending such communication.

6.2 No Waivers. No failure on the part of the Collateral Trustee, any co-trustee, any separate trustee, the Controlling Party, any Holder Representative or any Secured Party to exercise, no course of dealing with respect to, and no delay in exercising, any right, power or privilege under this Collateral Trust Agreement or any Trust Security Document shall operate as a waiver thereof nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

6.3 Amendments, Supplements and Waivers.

(a) So long as not in violation of any applicable Secured Instrument (as certified by the Company or the applicable Grantor(s) in accordance with subection 6.3(d)), the Collateral Trustee and the Grantors may with the written consent of the Controlling Party or, in the case of the Junior Priority Security Documents, the Junior Priority Agent (and, if the Controlling Party or, in the case of the Junior Priority Security Documents, the Junior Priority Agent provides written consent to such amendment (on which the Collateral Trustee shall have no liability for relying), the Collateral Trustee shall, subject to subsection 6.3(d)), from time to time, enter into (x) written agreements supplemental hereto or to any Trust Security Document for the purpose of adding to, amending, waiving, or otherwise modifying any provisions of this Collateral Trust Agreement or any Trust Security Document or changing in any manner the rights or priorities of the Collateral Trustee, the Secured Parties or the Grantors hereunder or

 

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thereunder or (y) additional Trust Security Documents securing First Priority Secured Obligations or Junior Priority Secured Obligations; provided that no such supplemental agreement shall (i) amend, modify or waive any provision of this subsection 6.3 without the written consent of each Holder Representative, (ii) reduce the percentages or change the numbers specified in or otherwise amend the definitions of Majority Class Holders, Majority First Priority Secured Parties, Majority Junior Priority Secured Parties, Controlling Party, First Priority Agent or Junior Priority Agent or amend, modify or waive any provision of subsection 3.4 or the definition of Secured Obligations, First Priority Secured Obligations or Junior Priority Secured Obligations or otherwise change the relative rights or priorities of the Secured Parties under this Collateral Trust Agreement in respect of payments or Collateral without the written consent of the Controlling Party and the Holder Representative of any series of First Priority Secured Obligations whose rights or priorities could reasonably be expected to be adversely affected thereby, (iii) amend, modify or waive any provision of subsection 8.1 without the written consent of the Junior Priority Agent if any Junior Priority Debt Obligations are then outstanding, but only if the relative rights or priorities of the Junior Priority Secured Parties in respect of such Junior Priority Debt Obligations could reasonably be expected to be adversely affected thereby, (iv) amend, modify or waive any provision of this Collateral Trust Agreement in a manner that is materially adverse to the holders of a particular series of First Priority Secured Obligations relative to the holders of other First Priority Secured Obligations without the consent of the Holder Representative of such series or (v) amend, modify or waive any provision of Section 4 or 5 or alter the duties, rights, privileges, protections, indemnities, immunities or obligations of the Collateral Trustee hereunder or under the Trust Security Documents without the written consent of the Collateral Trustee. Any such supplemental agreement shall be binding upon the Grantors, each Holder Representative, the Secured Parties and the Collateral Trustee and their respective successors. In the event that there is an amendment, modification or waiver to the First Priority Security Documents in accordance with this subsection 6.3, then such amendment, modification or waiver shall apply automatically to any comparable provision of the comparable Junior Priority Security Documents without the consent of any Junior Priority Secured Parties and without any action by any Holder Representative in respect of Junior Priority Secured Obligations or any other Grantor.

(b) Notwithstanding anything else to the contrary herein, solely with the consent of the Controlling Party or, in the case of the Junior Priority Security Documents, the Junior Priority Agent (and without the consent of any other Secured Party), the Collateral Trustee and any of the Grantors, at any time and from time to time, may enter into one or more agreements supplemental hereto or to any Trust Security Document, in form satisfactory to the Collateral Trustee, which supplemental agreements may add to, amend, waive, or otherwise modify any provisions of such documents, (i) to add to the covenants of such Grantor for the benefit of the Secured Parties or to surrender any right or power herein conferred upon such Grantor (so long as such addition or surrender applies to all Secured Parties within a Class to the extent applicable); (ii) to mortgage or pledge to the Collateral Trustee, or grant or perfect a security interest in favor of the Collateral Trustee in, any property or assets, including as additional security, for the Secured Obligations; or (iii) to cure any ambiguity, omission or mistake, to correct or supplement any provision herein or in any Trust Security Document which may be defective or inconsistent with any other provision herein or therein, to effect administrative changes of a technical or immaterial nature or to make any other provision with respect to matters or questions arising hereunder which shall not be inconsistent with any provision hereof; provided that no such supplemental agreement shall amend, modify or waive any provision of this Collateral Trust Agreement in a manner that is materially adverse to the holders of a particular series of Secured Obligations relative to other Secured Parties of the same Class without the consent of the Holder Representative of such series.

(c) At the direction of the Company and without the consent of any Secured Party, (x) this Collateral Trust Agreement or any Trust Security Document may be amended to the extent necessary to effect any changes required by subsection 8.5 hereof, or to the extent necessary to secure any Junior Priority Debt otherwise permitted to be incurred hereunder and under the First Priority Debt Documents

 

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and (y) the Collateral Trustee shall enter into any Trust Security Documents to secure First Priority Secured Obligations or Junior Priority Secured Obligations to the extent necessary to effect the provisions of subsection 8.5. The Collateral Trustee is hereby authorized to enter into, and shall (to the extent it has received the documents required by, and subject to, subsection 6.3(d)) enter into, any such amendment to the Collateral Agreement or Trust Security Document or any such additional Trust Security Document.

(d) In executing, or accepting the additional trusts created by, any amendment, supplement or waiver hereto or to any other Trust Security Document or any new Trust Security Document, permitted by this Collateral Trust Agreement or such other Trust Security Document, the Collateral Trustee, the Controlling Party and the Junior Priority Agent shall receive and shall be fully protected in conclusively relying upon, an Opinion of Counsel or a certificate of a Responsible Officer of the Company stating that (i) the execution of such Trust Security Document, amendment, supplement or waiver is authorized or permitted by this Collateral Trust Agreement, such Trust Security Document or the applicable Secured Instruments and (ii) all conditions precedent to the execution of such amendment, supplement or waiver have been satisfied. The Collateral Trustee shall sign any amendment, supplement or waiver authorized pursuant to this subsection 6.3 if such amendment, supplement or waiver does not adversely affect the rights, duties, liabilities, protections, privileges, indemnities or immunities of the Collateral Trustee. If it does, the Collateral Trustee may, but shall not be obligated to, sign. The Company shall promptly provide to each Holder Representative a copy of any amendment to this Collateral Trust Agreement or any Trust Security Document.

(e) No amendment, modification or waiver of this Collateral Trust Agreement or the Trust Security Documents shall be effective against a Holder Representative without its prior written consent (such consent not to be unreasonably withheld or delayed) if such amendment, modification or waiver would reasonably be expected to have a material adverse effect on the rights or duties of such Holder Representative in its capacity as such.

6.4 Holders of Secured Non-Loan Exposure. The benefit of the Trust Security Documents and of the provisions of this Collateral Trust Agreement relating to the Collateral shall extend to and be available in respect of any Secured Obligation arising under any Secured Non-Loan Exposure (collectively, the “Related Obligations”) solely on the condition and understanding, as among the Collateral Trustee and the Holder Representatives and all Secured Parties, that (i) the Related Obligations shall be entitled to the benefit of the Trust Security Documents and the Collateral to the extent expressly set forth in this Collateral Trust Agreement and the other Trust Security Documents and to such extent the Collateral Trustee shall hold, and have the right and power to act with respect to, the Related Obligations and the Collateral on behalf of and as agent for the holders of the Related Obligations, but the Collateral Trustee shall have no fiduciary duty, duty of loyalty, duty of care, duty of disclosure or other obligation whatsoever to any holder of Related Obligations, (ii) each Secured Party shall be bound by all actions taken or omitted, in accordance with the provisions of this Collateral Trust Agreement and the other Trust Security Documents, by the Collateral Trustee (at the direction of the relevant Secured Parties or Holder Representatives), which shall be entitled to act in accordance with the terms of this Collateral Trust Agreement without any duty or liability to any other Secured Party or as to any Related Obligation and without regard to whether any Related Obligation remains outstanding or is deprived of the benefit of the Collateral or becomes unsecured or is otherwise affected or put in jeopardy thereby, and (iii) no holder of Related Obligations and no other Secured Party (except the Holder Representatives to the extent set forth in this Collateral Trust Agreement) shall have any right to be notified of, or to direct, require or be heard with respect to, any action taken or omitted in respect of the Collateral or under this Collateral Trust Agreement or the Trust Security Documents.

 

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6.5 Headings. The table of contents and the headings of Sections and subsections have been included herein and in the Trust Security Documents for convenience only and should not be considered in interpreting this Collateral Trust Agreement or the Trust Security Documents.

6.6 Severability. Any provision of this Collateral Trust Agreement which is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

6.7 Successors and Assigns. This Collateral Trust Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns and shall inure to the benefit of each of the Secured Parties and their respective successors and assigns, and nothing herein is intended or shall be construed to give any other Person any right, remedy or claim under, to or in respect of this Collateral Trust Agreement or any Collateral.

6.8 Currency Conversions. In calculating the amount of Secured Obligations or Collateral proceeds for any purpose hereunder, including, without limitation, voting or distribution purposes, the amount of any Secured Obligation which is denominated in a currency other than Dollars shall be converted by the Collateral Trustee into Dollars using its own internal conversion rates on the Business Day on which such calculation is made. In no event shall the Collateral Trustee be liable to any party for the conversion rate so obtained. All funds to be deposited into the Collateral Account shall be in U.S. Dollars.

6.9 Acknowledgements. Each Grantor hereby acknowledges that:

(a) it has been advised by counsel in the negotiation, execution and delivery of this Collateral Trust Agreement and the other First Priority Debt Documents and Junior Priority Debt Documents to which it is a party;

(b) neither the Collateral Trustee nor any Secured Party has any fiduciary relationship with or duty to any Grantor arising out of or in connection with this Collateral Trust Agreement or any of the other First Priority Debt Documents and the Junior Priority Debt Documents; and

(c) no joint venture is created hereby or by the other First Priority Debt Documents or Junior Priority Debt Documents otherwise exists by virtue of the transactions contemplated hereby among the Secured Parties or among the Grantors and the Secured Parties.

6.10 Governing Law. This Collateral Trust Agreement shall be governed by, and construed and interpreted in accordance with, the law of the State of New York.

6.11 Counterparts. This Collateral Trust Agreement may be signed in any number of counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of an executed signature page of this Collateral Trust Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart thereof.

 

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6.12 Termination and Release.

(a) Upon receipt by the Collateral Trustee (x) from the Controlling Party of written directions to cause the Liens created by subsections 3.2 and 4.6 and by the Trust Security Documents to be released and discharged, provided that the Company shall have delivered a certificate of a Responsible Officer of the Company to the Collateral Trustee certifying that (i) such release of the Collateral is permitted under, and does not violate the terms of, the First Priority Debt Documents and the Junior Priority Debt Documents and (ii) all conditions precedent to such release of the Collateral have been (or, substantially contemporaneously with such action, shall be) satisfied or (y) of written notices from each Holder Representative stating that the conditions for release in connection with the termination of the applicable First Priority Debt Documents or the applicable Junior Priority Debt Documents, as the case may be, have been satisfied, the security interests created by subsection 4.6 and by the Trust Security Documents shall terminate forthwith and all right, title and interest of the Collateral Trustee in and to the Collateral shall revert to the Grantors, their successors and assigns.

(b) Upon the termination of the Collateral Trustee’s security interest and the release of the Collateral in accordance with subsection 6.12(a), the Collateral Trustee will promptly, at the Company’s written request and expense, (i) execute and deliver to the Company such documents as the Company shall reasonably request to evidence the termination of such security interest or the release of the Collateral and (ii) deliver or cause to be delivered to the Grantors all property of the Grantors then held by the Collateral Trustee or any agent thereof; provided that the Company shall have delivered a certificate of a Responsible Officer of the Company to the Collateral Trustee certifying that the conditions described in subsection 6.12(a) have been met and that such release of the Collateral is permitted under, and does not violate the terms of, the First Priority Debt Documents and Junior Priority Debt Documents.

(c) Upon the sale or other disposition of all the Capital Stock of a Grantor (other than the Company) to any Person (other than another Grantor) in a transaction permitted (or not prohibited, as the case may be) by the First Priority Debt Documents and the Junior Priority Debt Documents or upon such Grantor ceasing to be a guarantor as permitted (or not prohibited, as the case may be) by each such document: (i) such Grantor and each Subsidiary of such Grantor which is included in such sale or other disposition or which so ceases to be a guarantor (such Grantor and each such Subsidiary being referred to herein as “Included Grantors”) shall cease to be a Grantor hereunder or a party to any Trust Security Document and shall be released automatically from its obligations pursuant hereto and thereto, (ii) the security interests created by the Trust Security Documents entered into by such Included Grantors in all right, title and interest of such Included Grantors in the Collateral, and the security interests created by the Trust Security Documents in the Capital Stock of such Grantor, shall terminate automatically, in each case only with respect to such Included Grantors and such Capital Stock, (iii) all right, title and interest of the Collateral Trustee in and to the Collateral of such Included Grantors subject to such security interests shall revert automatically to such Included Grantors, their successors and assigns and (iv) any obligations of such Included Grantors shall, unless otherwise expressly notified by the Company to the Collateral Trustee and the Controlling Party in writing, automatically cease to be Secured Obligations. Upon any such termination and receipt by a Responsible Officer of the Collateral Trustee of a certificate from the Company or the relevant Grantor, and acknowledged in writing by the Controlling Party, stating that such sale or other disposition is to a Person other than another Grantor in a transaction permitted or not prohibited, as the case may be, by the First Priority Debt Documents and the Junior Priority Debt Documents and that the release of the Collateral is permitted under, and does not violate the terms of, the First Priority Debt Documents and Junior Priority Debt Documents, the Collateral Trustee will promptly, at the Company’s request and expense, (x) execute and deliver to such Included Grantors (and the Grantor that pledged such Capital Stock under the Trust Security Documents) such documents as the Company shall reasonably request to evidence the termination of such security interest or the release of such Collateral, in each case, without representation, warranty or recourse, (y) deliver or cause to be delivered to such Included Grantors all property of such Included Grantors then held by the Collateral Trustee or any agent thereof and (z) deliver such Capital Stock to the Grantor that pledged such Capital Stock under the Trust Security Documents.

 

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(d) Upon the sale or other disposition of all or any portion of the Collateral to any Person (other than another Grantor) in a transaction permitted (or not prohibited, as the case may be) by the First Priority Debt Documents and the Junior Priority Debt Documents (including pursuant to any consent to such sale and/or release of the security interest in such Collateral pursuant to the terms thereof), the security interests created by the Trust Security Documents in such Collateral shall terminate and such Collateral shall be automatically released from the Lien created by the Trust Security Documents. Upon any such release and receipt by the Collateral Trustee of a certificate from the Company or the relevant Grantor stating that such sale or other disposition is permitted or not prohibited, as the case may be, by (or the relevant consent has been received under) the First Priority Debt Documents and the Junior Priority Debt Documents and that the release of the Collateral is permitted under, and does not violate the terms of, the First Priority Debt Documents and Junior Priority Debt Documents, the Collateral Trustee will promptly at the Company’s request and expense execute and deliver such documents as the Company shall reasonably request to evidence the termination of such security interest and the release of such Collateral.

(e) Without limiting subsections (c) and (d) above, upon receipt by the Collateral Trustee of (i) written notice from the Controlling Party directing the Collateral Trustee to cause the Liens on a portion of the Collateral identified in such notice to be released and discharged and (ii) a certificate of the Company confirming that the Collateral identified in such notice in clause (i) above does not constitute all or substantially all of the Collateral and is permitted to be released under the First Priority Debt Documents and Junior Priority Debt Documents, the security interests created by the Trust Security Documents in such Collateral shall terminate forthwith and all right, title and interest of the Collateral Trustee in and to such Collateral shall revert to the Grantors, their successors and assigns.

(f) Notwithstanding any of the foregoing, if the Collateral Trustee is exercising its rights or remedies with respect to the Collateral under the Trust Security Documents in accordance with this Collateral Trust Agreement, and the Collateral Trustee releases any of the Liens securing any Secured Obligations on any part of the Collateral, then all the Liens securing the Secured Obligations on such Collateral shall be automatically, unconditionally and simultaneously released (and the Collateral Trustee shall take any actions reasonably requested by the Company to evidence the release of such Liens).

(g) This Collateral Trust Agreement shall terminate when the security interest granted under the Trust Security Documents has terminated and the Collateral has been released as provided in subsection 6.12(a); provided that all Trustee’s Fees (other than any indemnification obligation for which no claim or demand for payment has been made) shall have been paid in full.

6.13 New Grantors. During the term of this Collateral Trust Agreement, one or more additional Subsidiaries may, subject to any “know your customer” requirements of the Collateral Trustee, become a party to this Collateral Trust Agreement by executing a joinder agreement, substantially in the form of Exhibit C, whereupon such Subsidiary shall become a Grantor for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Collateral Trust Agreement.

6.14 Inspection by Regulatory Agencies. The Collateral Trustee shall make available, and shall cause each custodian and agent acting on its behalf in connection with this Collateral Trust Agreement to make available, all Collateral in such Person’s possession at all times for inspection by any regulatory agency having jurisdiction over any Grantor to the extent required by such regulatory agency in its discretion.

 

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6.15 Confidentiality. The Collateral Trustee agrees to keep confidential all non-public information (a) provided to it by or on behalf of the Company or any of its Subsidiaries pursuant to or in connection with this Collateral Trust Agreement or any Trust Security Document or (b) obtained by the Collateral Trustee based on a review of the books and records of the Company or any of its Subsidiaries; provided that nothing herein shall prevent the Collateral Trustee from disclosing any such information (i) to any Holder Representative or as may otherwise be required pursuant to this Collateral Trust Agreement or any Trust Security Document, (ii) to its affiliates and its employees, legal counsel, independent or internal auditors, professionals and other experts or agents (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), (iii) to the extent requested or demanded by any regulatory authority, self regulatory or supervisory authority having proper jurisdiction or claiming jurisdiction over it or its affiliates (provided, that the Collateral Trustee shall notify the Company as soon as practicable in the event of any such disclosure by such Person (except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising routine examination and regulatory authority) to the extent practicable and not prohibited by applicable law, rule or regulation, (iv) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law or compulsory legal process based on the advice of counsel (provided that the Collateral Trustee shall notify the Company promptly thereof prior to any such disclosure by such Person (except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising routine examination and regulatory authority) to the extent practicable and not prohibited by applicable law, rule or regulation), (v) as reasonably determined to be necessary, 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, or (vi) to the extent such information (A) becomes available other than as a result of a breach of this subsection 6.15 actually known to the Collateral Trustee on a nonconfidential basis from a source other than the Borrower or any of its Affiliates or (B) to the extent that such information becomes publicly available other than by reason of improper disclosure by the Collateral Trustee or any related parties thereto in violation of any confidentiality obligations owing to Parent, the Borrower or any of their respective affiliates.

6.16 Submission to Jurisdiction; Waivers. Each party hereto hereby irrevocably and unconditionally:

(a) submits for itself and its property in any legal action or proceeding relating to this Collateral Trust Agreement and the other Trust Security Documents to which it is a party, or for recognition and enforcement of any judgment in respect thereof, to the non-exclusive general jurisdiction of the Courts of the County of New York, State of New York, the courts of the United States of America for the Southern District of New York in the County of New York, and appellate courts from any thereof;

(b) to the extent permitted by applicable law, consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; and

(c) waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this subsection 6.16 any special, exemplary, punitive or consequential damages.

6.17 WAIVERS OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS COLLATERAL TRUST AGREEMENT OR ANY OTHER TRUST SECURITY DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.

 

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6.18 Conflicts. In the event of any conflict between the provisions of this Collateral Trust Agreement and the provisions of any First Priority Debt Document, any Junior Priority Debt Document or any other Secured Instrument, the provisions of this Collateral Trust Agreement shall govern.

6.19 Consequential Damages. In no event shall the Collateral Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Collateral Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.

6.20 Force Majeure. In no event shall the Collateral Trustee be responsible or liable or held in breach of this Collateral Trust Agreement, if prevented, hindered, or delayed in the performance or observance of any provision contained herein by reason of directly or indirectly, forces beyond its control, including, without limitation, riots, epidemics, governmental action or judicial order, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities (including mechanical, electronic or communication interruptions, disruptions or failures, including any unavailability of the Federal Reserve Bank wire), computer (software and hardware) services. The time required of the Collateral Trustee to perform under this Collateral Trust Agreement shall be extended for a period of time equivalent to the time lost because of any delay that persists; provided that the Collateral Trustee is using commercially reasonable efforts to perform.

6.21 USA PATRIOT Act. In order to comply with the laws, rules, regulations and executive orders in effect from time to time applicable to banking institutions, including, without limitation, those relating to the funding of terrorist activities and money laundering, including Section 326 of the USA PATRIOT Act of the United States (“Applicable AML Law”), the Collateral Trustee is required to obtain, verify, record and update certain information relating to individuals and entities which maintain a business relationship with the Collateral Trustee. Accordingly, each of the parties agree to provide to the Collateral Trustee, upon its request from time to time, such identifying information and documentation as may be available for such party in order to enable the Collateral Trustee to comply with Applicable AML Law.

6.22 Incorporation by Reference. In connection with its execution and acting hereunder, each Holder Representative for the First Priority Debt Documents and Junior Priority Debt Documents, as applicable, is entitled to all rights, privileges, protections, immunities, benefits and indemnities provided by the applicable Grantors to it as agent, trustee or other designee under its applicable Secured Instruments.

SECTION 7.

DESIGNATION OF ADDITIONAL SECURED OBLIGATIONS

7.1 Designations of Secured Obligations. The Company may at any time and from time to time, by delivery of a notice of designation substantially in the form of Exhibit D (each, a “Notice of Designation”), designate additional obligations (whether outstanding on the date of such designation or on a prospective “when issued basis”) as “First Priority Notes”, “First Priority Additional Sale/Leaseback Obligations”, “First Priority Additional Debt” or “Junior Priority Debt”, or “Designated Cash Management Obligations”, “Designated Hedging Obligations” , “Designated L/C Facility Obligations” or other “Secured Non-Loan Exposure” or any other relevant category defined hereunder, under this Collateral Trust Agreement, identifying the relevant “First Priority Additional Debt Representative” or “Junior Priority Debt Representative”, or “First Priority Secured Party” or “Junior Priority Secured Party” or any other relevant representative defined hereunder, as the case may be, which is secured by the

 

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Collateral pursuant to this Collateral Trust Agreement and the Trust Security Documents (which may be existing Trust Security Documents or new Trust Security Documents) in accordance with this Section 7 (it being understood that if such notice is prospective such designation is contingent upon the issuance or incurrence of the related obligations in compliance with the First Priority Debt Documents and Junior Priority Debt Documents). Such Designation shall become effective when the new First Priority Additional Debt Representative, Junior Priority Secured Party or other relevant representative accedes to this Collateral Trust Agreement by countersigning the Notice of Designation and satisfying the Collateral Trustee’s “know your customer” requirements. The Notice of Designation shall (i) identify the obligation it is designating and whether such additional obligations will be “First Priority Notes”, “First Priority Additional Sale/Leaseback Obligations”, “First Priority Additional Debt” or “Junior Priority Debt”, or “Designated Cash Management Obligations”, “Designated Hedging Obligations”, “Designated L/C Facility Obligations”, “Secured Non-Loan Exposure” or any other relevant category defined under this Collateral Trust Agreement, identifying the relevant “First Priority Additional Debt Representative” or “Junior Priority Debt Representative”, or “First Priority Secured Party” or “Junior Priority Secured Party”, (ii) in the case of any designation of Secured Non-Loan Exposure, note whether all or a portion of such Secured Non-Loan Exposure will be classified as Permitted First Priority Non-Loan Exposure or as Permitted Junior Priority Non-Loan Exposure and (iii) include a certification that the designation thereof is permitted, or not prohibited, as the case may be, by the First Priority Debt Documents and the Junior Priority Debt Documents. The Company shall furnish each Notice of Designation to the Collateral Trustee and each Holder Representative promptly after delivering the same to the Collateral Trustee. If each Holder Representative receives such notice and none of the parties notifies the Company and the Collateral Trustee within three (3) Business Days following the receipt thereof that it disagrees with the certification described in clause (iii) above, then the designation of such additional obligations as Secured Obligations shall be binding among the other holders of Secured Obligations for purposes of this Collateral Trust Agreement (it being agreed that no Holder Representative shall have the right to object to (x) any Designated L/C Facility designated on the Closing Date or (y) any First Priority Notes that are issued in any offering in connection with the refinancing of the First Priority Bridge Loan Agreement and, in each case, the designation of such additional obligations as Secured Obligations shall be effective immediately upon delivery of such Notice of Designation); provided, however that nothing in this sentence shall constitute a waiver of any right or remedy of any Holder Representative or other holder of First Priority Secured Obligations or Junior Priority Secured Obligations may have under any Secured Instrument with respect to the incurrence or designation of such obligations.

7.2 Termination of Designation. Any Secured Obligations hereunder, including Secured Obligations on the Effective Date and Secured Obligations designated as secured pursuant to this Section 7, shall remain secured pursuant to this Collateral Trust Agreement until the first to occur of (i) the termination of this Collateral Trust Agreement in accordance with subsection 6.12, (ii) the payment and performance in full of such Secured Obligations, (iii) the delivery to the Collateral Trustee of the written consent of the relevant Secured Party to the release of the security interest in the Collateral securing such Secured Obligations and (iv) solely in the case of the First Priority Note Obligations, at any time on or after an Investment Grade Event Election to the extent set forth under the applicable Secured Instrument.

 

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SECTION 8.

INTERCREDITOR PROVISIONS

8.1 Junior Priority Debt. The Junior Priority Agent for, and each Junior Priority Secured Party with respect to, the Junior Priority Secured Obligations shall be bound by the following terms and conditions:

(a) Any and all Liens now existing or hereafter created or arising in favor of any such Junior Priority Secured Party securing or purporting to secure the Junior Priority Secured Obligations, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, are expressly junior in priority, operation and effect to any and all Liens now existing or hereafter created or arising in favor of the First Priority Secured Parties securing or purporting to secure the First Priority Secured Obligations, notwithstanding (i) anything to the contrary contained in any agreement or filing to which any such Junior Priority Secured Party may now or hereafter be a party, and regardless of the time, order or method of grant, attachment, recording or perfection of any financing statements or other security interests, assignments, pledges, deeds, mortgages and other liens, charges or encumbrances or any defect or deficiency or alleged defect or deficiency in any of the foregoing, (ii) any provision of the Uniform Commercial Code or any applicable law or any agreement with respect to the First Priority Secured Obligations or the Junior Priority Secured Obligations or any other circumstance whatsoever and (iii) the fact that any such Liens in favor of any First Priority Secured Party securing or purporting to secure any of the First Priority Secured Obligations are (x) subordinated to any Lien securing any obligation of any Grantor other than the Junior Priority Secured Obligations or (y) otherwise subordinated, voided, avoided, invalidated or lapsed;

(b) No such Junior Priority Secured Party shall object to or contest, or support any other Person in contesting or objecting to, in any proceeding (including without limitation, any Insolvency Proceeding), the validity, extent, perfection, priority or enforceability of any security interest in the Collateral granted to, or the allowability of any claims asserted by, any First Priority Secured Party. Notwithstanding any failure by any First Priority Secured Party to perfect its security interests in the Collateral or any avoidance, invalidation or subordination by any third party or court of competent jurisdiction of the security interests in the Collateral granted to the First Priority Secured Parties, the priority and rights as between the First Priority Secured Parties and the Junior Priority Secured Parties with respect to the Collateral shall be as set forth herein;

(c) No such Junior Priority Secured Party shall, prior to the payment and performance in full of the First Priority Secured Obligations, assert, demand, request, plead or otherwise claim the benefit of, any marshalling, appraisal, valuation and any other right that may otherwise be available under any applicable requirement of law with respect to any Collateral to a creditor in its capacity as beneficiary of a junior lien on such Collateral;

(d) No such Junior Priority Secured Party shall, in or in connection with any Insolvency Proceeding, file any pleadings or motions, take any position at any hearing or proceeding of any nature, or otherwise take any action whatsoever, in each case in respect of any of the Collateral, including, without limitation, with respect to the determination of any Liens or claims held by any First Priority Secured Party or the value of any claims of such parties under Section 506(a) of the Bankruptcy Code or otherwise; provided that any such Junior Priority Secured Party may file a proof of claim in an Insolvency Proceeding, subject to the limitations contained in this Collateral Trust Agreement and only if consistent with the terms and the limitations on such Junior Priority Secured Party imposed hereby;

(e) If any Grantor becomes the subject of any Insolvency Proceeding, and if the First Priority Agent desires to consent (or not object) to the use of cash collateral under the Bankruptcy Code or to provide any DIP Financing to any Grantor or to consent (or not object) to the provision of any DIP Financing to any Grantor, whether or not proceeds of any such DIP Financing are being used to Refinance all or any portion of the First Priority Secured Obligations, then each such Junior Priority Secured Party (a) will be deemed to have consented to, and will raise no objection to, nor support any other Person objecting to, the use of such cash collateral or

 

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such DIP Financing, (b) will not request or accept adequate protection or any other relief in connection with the use of such cash collateral or such DIP Financing except as set forth in subsection 8.1(g) below and (c) will subordinate (and will be deemed hereunder to have subordinated) its Junior Priority Secured Obligations (i) to such DIP Financing on the same terms as the First Priority Secured Obligations are subordinated thereto (and such subordination will not alter in any manner the terms of this Collateral Trust Agreement) or, to the extent the proceeds of such DIP Financing refinance all or any portion of the First Priority Secured Obligations, on the same terms as the Junior Priority Secured Obligations are subordinated to the First Priority Secured Obligations pursuant to this Collateral Trust Agreement, (ii) to any adequate protection provided to the First Priority Secured Parties and (iii) to any “carve-out” agreed to by the First Priority Agent, and (d) agrees that notice received two calendar days prior to the entry of an order approving such usage of cash collateral or approving such financing shall be adequate notice;

(f) No such Junior Priority Secured Party will seek relief from the automatic stay or from any other stay in any Insolvency Proceeding or take any action in derogation thereof, in each case in respect of any Collateral, without the prior written consent of the Majority First Priority Secured Parties (to the extent there are any First Priority Secured Parties);

(g) No such Junior Priority Secured Party shall object to, contest, or support any other Person objecting to or contesting, (i) any request by any First Priority Secured Party for adequate protection or any adequate protection provided to any First Priority Secured Party or (ii) any objection by any First Priority Secured Party to any motion, relief, action or proceeding based on a claim of a lack of adequate protection or (iii) the allowance and/or payment of interest, fees, expenses or other amounts to any First Priority Secured Party under Section 506(b) or 506(c) of the Bankruptcy Code or otherwise. Notwithstanding anything contained in this subsection 8.1 (but subject to all other provisions of this Collateral Trust Agreement), in any Insolvency Proceeding, (x) if the First Priority Secured Parties (or any subset thereof) are granted adequate protection consisting of a Lien on additional or replacement collateral and/or superpriority claims in connection with any DIP Financing or use of cash collateral, and such First Priority Secured Parties do not object to the adequate protection being provided to them, then in connection with any such DIP Financing or use of cash collateral such Junior Priority Secured Parties may seek or accept adequate protection consisting solely of a Lien on the same additional or replacement collateral, subordinated to the Liens securing and providing adequate protection for the First Priority Secured Obligations and such DIP Financing on the same basis as the other Liens securing the Junior Priority Secured Obligations are so subordinated to the First Priority Secured Obligations under this Collateral Trust Agreement and superpriority claims junior in all respects to the superpriority claims granted to the First Priority Secured Parties and (y) in the event any such Junior Priority Secured Party seeks or accepts adequate protection in accordance with clause (x) above and such adequate protection is granted in the form of a Lien on additional collateral, then such Junior Priority Secured Party agrees that the First Priority Secured Parties shall also be granted a senior Lien on such additional collateral as security and adequate protection for the First Priority Secured Obligations and any such DIP Financing and that any Lien on such additional collateral securing or providing adequate protection for the Junior Priority Secured Obligations shall be subordinated to the Liens on such collateral securing the First Priority Secured Obligations and any such DIP Financing (and all Obligations relating thereto) and any other Liens granted to the First Priority Secured Parties as adequate protection, with such subordination to be on the same terms that the other Liens securing the Junior Priority Secured Obligations are subordinated to the Liens securing such First Priority Secured Obligations under this Collateral Trust Agreement. The Junior Priority Secured Parties agree that except as expressly set forth in this subsection 8.1 none of them shall seek or accept adequate protection without the prior written consent of the Majority First Priority Secured Parties (to the extent there are any First Priority Secured Parties);

 

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(h) If any First Priority Secured Party is required in any Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any Grantor, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then the First Priority Secured Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the payment and performance in full of the First Priority Secured Obligations shall be deemed not to have occurred. If this Collateral Trust Agreement shall have been terminated prior to such Recovery, this Collateral Trust Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. The Junior Priority Secured Parties agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Collateral Trust Agreement, whether by preference, fraudulent transfer or otherwise, it being understood and agreed that the benefits of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Collateral Trust Agreement;

(i) No such Junior Priority Secured Party shall, in an Insolvency Proceeding or otherwise, oppose any sale or disposition of any assets of any Grantor that is supported by the First Priority Agent, and each such Junior Priority Secured Party will be deemed to have consented under Section 363 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law (and otherwise) to any sale supported by the First Priority Agent and to have released its Liens on such assets; provided that the net cash proceeds of such sale shall have been applied to the Secured Obligations in accordance with subsection 3.4 or the parties’ respective Liens shall have been attached to such net cash proceeds in accordance with the Lien priorities set forth in this Collateral Trust Agreement;

(j) Each such Junior Priority Secured Party acknowledges and agrees that because of, among other things, their differing rights in the Collateral, the Junior Priority Secured Obligations are fundamentally different from the First Priority Secured Obligations and must be separately classified in any plan of reorganization or similar dispositive restructuring plan proposed, confirmed or adopted in an Insolvency Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that the claims of the First Priority Secured Parties and the Junior Priority Secured Parties in respect of the Collateral constitute only one secured claim (rather than separate classes of senior and junior secured claims), then the Junior Priority Secured Parties hereby acknowledge and agree that all distributions shall be made as if there were separate classes of senior and junior secured claims against the Grantors in respect of the Collateral (with the effect being that, to the extent that the aggregate value of the Collateral is sufficient (for this purpose ignoring all claims held by the Junior Priority Secured Parties), the First Priority Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of Post-Petition Interest before any distribution is made in respect of the claims held by the Junior Priority Secured Parties, with the Junior Priority Secured Parties hereby acknowledging and agreeing to turn over to the First Priority Secured Parties amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Junior Priority Secured Parties;

 

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(k) No Junior Priority Secured Party (whether in the capacity of a secured creditor or an unsecured creditor) shall propose, vote in favor of, or otherwise directly or indirectly support any plan of reorganization or similar dispositive restructuring plan that violates or is otherwise inconsistent with the priorities set forth in Section 3.4 or the other provisions of this Collateral Trust Agreement. To the extent that a Junior Priority Secured Party has not voted its claim with respect to the Junior Priority Secured Obligations in any Insolvency Proceeding on any proposed plan of reorganization or similar dispositive restructuring plan prior to the date which is 10 days before the expiration of the time to vote such claim, the Collateral Trustee may vote such claim on behalf of such Junior Priority Secured Party at the direction of the Controlling Party;

(l) No such Junior Priority Secured Party shall oppose or seek to challenge any claim by any First Priority Secured Party for allowance in any Insolvency Proceeding of Post-Petition Interest, fees or expenses in respect of any First Priority Secured Obligation. No First Priority Secured Party shall oppose or seek to challenge any claim by any Junior Priority Secured Party for the accrual (but not payment) in any Insolvency Proceeding of Post-Petition Interest (after taking into account the First Priority Secured Obligations);

(m) No such Junior Priority Secured Party shall (i) object to any motion by any First Priority Secured Party seeking relief from the automatic stay as provided in Section 362 of the Bankruptcy Code or any similar provision of any applicable Bankruptcy Law or any other stay in respect of the Collateral, (ii) object to, oppose, support any objection, or take any other action to impede, the right of any First Priority Secured Party to make an election under Section 1111(b)(2) of the Bankruptcy Code or any similar provision of any applicable Bankruptcy Law, or (iii) assert or enforce any claim under Section 506(c) of the Bankruptcy Code or any similar provision of any applicable Bankruptcy Law senior to or on a parity with the Liens securing the First Priority Secured Obligations for costs or expenses of preserving or disposing of any Collateral;

(n) Nothing contained herein shall prohibit or in any way limit any First Priority Secured Party from objecting in any Insolvency Proceeding or otherwise to any action taken by any Junior Priority Secured Party, including the seeking by any Junior Priority Secured Party of adequate protection (except as provided in subsection 8.1(g)) or the asserting by any Junior Priority Secured Party of any of its rights and remedies under any Junior Priority Debt Document in respect of Junior Priority Secured Obligations, the Trust Security Documents or otherwise;

(o) This Collateral Trust Agreement is a “subordination agreement” under section 510(a) of the Bankruptcy Code or any similar provision of any applicable Bankruptcy Law and shall be effective before, during and after the commencement of an Insolvency Proceeding;

(p) So long as the First Priority Secured Obligations and commitments in respect thereof have not been paid or terminated in full, as applicable, whether or not any Insolvency Proceeding has been commenced by or against the Company or any Grantor, any Collateral or proceeds thereof received by any Junior Priority Agent or any Junior Priority Secured Party in connection with the exercise of any right or remedy (including set-off) relating to the Collateral, or pursuant to subsection 3.4 hereof, shall be segregated and held in trust and forthwith paid over to the First Priority Agent for the benefit of the First Priority Secured Parties in the same form as received;

(q) If, prior to the payment and performance in full of the First Priority Secured Obligations, any such Junior Priority Secured Party receives any Post-Petition Securities on account of any Junior Priority Secured Obligations in any Insolvency Proceeding and such Post-Petition Securities are secured by any Lien upon any property of any reorganized debtor which is

 

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also subject to Liens securing Post-Petition Securities received on account of any First Priority Secured Obligations in such Insolvency Proceedings, such Liens shall be junior and subordinate to the Liens securing Post-Petition Securities received on account of the First Priority Secured Obligations to the same extent as all other Liens securing Junior Priority Secured Obligations hereunder and shall be subject to the terms of this Collateral Trust Agreement;

(r) Each Grantor and each Junior Priority Secured Party agrees that it shall not at any time execute or deliver any amendment or other modification to any of the Junior Priority Debt Documents that would (i) contravene the provisions of this Collateral Trust Agreement or (ii) result in the terms thereof, taken as a whole, being more restrictive to the Company than those contained in the First Priority Credit Agreement Documents. Each Junior Priority Secured Party agrees as to its respective Junior Priority Secured Documents that each Junior Priority Secured Document shall include the following language (or language to similar effect reasonably approved by the Collateral Trustee or the Controlling Party):

“Notwithstanding anything herein to the contrary, (i) the liens and security interests granted to the [Collateral Trustee] pursuant to this Agreement are expressly subject and subordinate to the liens and security interests granted in favor of the Collateral Trustee for the benefit of the First Priority Secured Parties (as defined in the Intercreditor Agreement referred to below) and (ii) the exercise of any right or remedy by the [Collateral Trustee] hereunder is subject to the limitations and provisions of the Collateral Trustee and Intercreditor Agreement dated as of April 1, 2020 (as amended, restated, supplemented or otherwise modified from time to time, the “Intercreditor Agreement”) among Deutsche Bank Trust Company Americas, as collateral trustee, T-Mobile USA, Inc., T-Mobile US, Inc., and certain of its subsidiaries, Deutsche Bank AG New York Branch, as First Priority Agent and the other Holder Representatives party thereto. In the event of any conflict between the terms of the Intercreditor Agreement and the terms of this Agreement, the terms of the Intercreditor Agreement shall govern.”

(s) Each such Junior Priority Secured Party agrees that any First Priority Debt Document may be amended at any time without the consent of any Junior Priority Secured Party, provided that this Collateral Trust Agreement and the Trust Security Documents may only be amended in accordance with the terms of this Collateral Trust Agreement;

(t) Each such Junior Priority Secured Party agrees that it will not enter into, or accept the benefit of, any security agreement or mortgage to secure the Junior Priority Secured Obligations and will not file any financing statements with respect to its Junior Priority Secured Obligations, it being understood that this Collateral Trust Agreement and the Trust Security Documents (together with the filings contemplated thereby) are the only such security documents permitted to secure the Junior Priority Secured Obligations; and

(u) Until the First Priority Secured Obligations have been paid and performed in full, any Collateral, including without limitation any such Collateral constituting Proceeds, that may be received by any Junior Priority Secured Party in violation of this Collateral Trust Agreement shall be segregated and held in trust and promptly paid over to the Collateral Trustee, for the benefit of the First Priority Secured Parties, in the same form as received, with any necessary endorsements, and each Junior Priority Secured Party hereby authorizes the Collateral Trustee to make any such endorsements as agent for the Junior Priority Agent (which authorization, being coupled with an interest, is irrevocable).

 

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(v) Until the First Priority Secured Obligations have been paid and performed in full, (a) none of the Grantors shall grant or permit any additional Liens on any asset or property of any Grantor to secure any Junior Priority Secured Obligation unless it has granted, or concurrently therewith grants, a Lien on such asset or property of such Grantor to secure the First Priority Secured Obligations; and (b) if the Collateral Trustee or any Junior Priority Secured Party shall hold any Lien on any assets or property of any Grantor securing any Junior Priority Secured Obligations that are not also subject to the first-priority Liens securing all First Priority Secured Obligations under the First Priority Debt Documents, the Collateral Trustee or such Junior Priority Secured Party (i) shall notify the Collateral Trustee and the First Priority Agent promptly upon becoming aware thereof and, unless such Grantor shall promptly grant a similar Lien on such assets or property to the Collateral Trustee as security for the First Priority Secured Obligations, shall assign such Lien to the Collateral Trustee as security for all First Priority Secured Obligations for the benefit of the First Priority Secured Parties (but may retain a junior lien on such assets or property subject to the terms hereof) and (ii) until such assignment or such grant of a similar Lien to the Collateral Trustee for the benefit of the First Priority Secured Parties, shall be deemed to hold and have held such Lien for the benefit of the Collateral Trustee and the other First Priority Secured Parties as security for the First Priority Secured Obligations. To the extent that the foregoing provisions are not complied with for any reason, without limiting any other rights and remedies available to the Collateral Trustee, First Priority Agent and/or the First Priority Secured Parties, the Collateral Trustee and each Junior Priority Debt Representative agrees that any amounts received by or distributed to any of them pursuant to or as a result of Liens granted in contravention of this subsection 8.1(v) shall be subject to subsection 3.4(b).

(w) Except as otherwise agreed by the Junior Priority Secured Parties in a separate agreement, it is the intention of the Junior Priority Secured Parties of each series of Junior Priority Secured Obligations that the holders of such series of Junior Priority Secured Obligations (and not the Junior Priority Secured Parties of any other series of Junior Priority Secured Obligations) bear the risk of (i) any determination by a court of competent jurisdiction that (x) any of the Junior Priority Secured Obligations of such series are unenforceable under applicable Law or are subordinated to any other obligations (other than another series of Junior Priority Secured Obligations), (y) any of the Junior Priority Secured Obligations of such series do not have an enforceable security interest in any of the Collateral securing any other series of Junior Priority Secured Obligations and/or (z) any intervening security interest exists securing any other obligations (other than another series of Junior Priority Secured Obligations) on a basis ranking prior to the security interest of such series of Junior Priority Secured Obligations but junior to the security interest of any other series of Junior Priority Secured Obligations or (ii) the existence of any collateral for any other series of Junior Priority Secured Obligations that is not Collateral (any such condition referred to in the foregoing clause (i) or (ii) with respect to any series of Junior Priority Secured Obligations, a “Junior Impairment” of such series). In the event of any Junior Impairment with respect to any series of Junior Priority Secured Obligations, the results of such Junior Impairment shall be borne solely by the holders of such series of Junior Priority Secured Obligations, and the rights of the holders of such series of Junior Priority Secured Obligations (including, without limitation, the right to receive distributions in respect of such series of Junior Priority Secured Obligations pursuant to subsection 3.4) set forth herein shall be modified to the extent necessary so that the effects of such Junior Impairment are borne solely by the holders of the series of such Junior Priority Secured Obligations subject to such Junior Impairment. Additionally, in the event the Junior Priority Secured Obligations of any series are modified pursuant to applicable law (including, without limitation, pursuant to Section 1129 of the Bankruptcy Code), any reference to such series of Junior Priority Secured Obligations or the Junior Priority Debt Documents governing such series of Junior Priority Secured Obligations shall refer to such obligations or such documents as so modified.

 

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8.2 First Priority Debt. The First Priority Agent for, and each First Priority Additional Debt Representative and each First Priority Secured Party with respect to, the First Priority Secured Obligations shall be bound by the following terms and conditions:

(a) Anything contained herein or in any of the First Priority Debt Documents to the contrary notwithstanding, if an Event of Default has occurred and is continuing, and the Collateral Trustee or the Controlling Party is taking action to enforce rights in respect of any Collateral, or any distribution is made in respect of any Collateral in any Insolvency Proceeding of a Grantor (including any adequate protection payments), the proceeds of any sale, collection or other liquidation of any such Collateral by any First Priority Secured Party or received by the Collateral Trustee shall be applied in accordance with the application set forth in subsection 3.4.

(b) It is acknowledged that any series of First Priority Secured Obligations may, subject to the limitations set forth in the then extant First Priority Debt Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in subsection 8.2(a) or the provisions of this Collateral Trust Agreement defining the relative rights of the First Priority Secured Parties of any other series within such Class.

(c) Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any series of First Priority Secured Obligations granted on the Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the First Priority Debt Documents or any defect or deficiencies in the Liens securing the First Priority Secured Obligations of any series of First Priority Secured Obligations or any other circumstance whatsoever, each First Priority Secured Party hereby agrees that the Liens securing each series of First Priority Secured Obligations on any Collateral shall be of equal priority.

(d) Only the Controlling Party and the Collateral Trustee shall act or refrain from acting with respect to any Collateral. No Holder Representative (other than the Controlling Party) shall or shall instruct the Collateral Trustee to, and no Holder Representative (other than the Controlling Party) shall, commence any judicial or non-judicial foreclosure proceedings with respect to, seek to have a trustee, receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any Collateral, whether under any security agreement, applicable law or otherwise, it being agreed that only the Collateral Trustee and the Controlling Party, acting in accordance with this Collateral Trust Agreement and the Trust Security Documents, shall be entitled to take any such actions or exercise any such remedies with respect to Collateral at such time.

(e) Each First Priority Secured Party hereby agrees that if it shall realize any proceeds or payment in respect of any Collateral, pursuant to any First Priority Debt Document or by the exercise of any rights available to it under applicable law or in any Insolvency Proceeding or through any other exercise of remedies, at any time when any First Priority Secured Obligations or commitments in respect thereof have not been paid and performed in full, then it shall hold such proceeds or payment in trust for the other First Priority Secured Parties and promptly transfer such proceeds or payment, as the case may be, to the Collateral Trustee, to be distributed in accordance with the provisions of subsection 3.4 hereof.

 

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(f) It is the intention of the First Priority Secured Parties of each series of First Priority Secured Obligations that the holders of such series of First Priority Secured Obligations (and not the holders of any other series of First Priority Secured Obligations) bear the risk of (i) any determination by a court of competent jurisdiction that (x) any of the First Priority Secured Obligations of such series of First Priority Secured Obligations are unenforceable under applicable law or are subordinated to any other obligations (other than another series of First Priority Secured Obligations), (y) any of the First Priority Secured Obligations of such series do not have an enforceable security interest in any of the Collateral securing any other series of First Priority Secured Obligations and/or (z) any intervening security interest exists securing any other obligations (other than another series of First Priority Secured Obligations) on a basis ranking prior to the security interest of such series of First Priority Secured Obligations but junior to the security interest of any other series of First Priority Secured Obligations or (ii) the existence of any collateral for any other series of First Priority Secured Obligations that is not Collateral (any such condition referred to in the foregoing clause (i) or (ii) with respect to any series of First Priority Secured Obligations, an “Impairment” of such series). In the event of any Impairment with respect to any series of First Priority Secured Obligations, the results of such Impairment shall be borne solely by the holders of such series of First Priority Secured Obligations, and the rights of the holders of such series of First Priority Secured Obligations (including, without limitation, the right to receive distributions in respect of such series of First Priority Secured Obligations pursuant to subsection 3.4) set forth herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of the series of such First Priority Secured Obligations subject to such Impairment. Additionally, in the event the First Priority Secured Obligations of any series are modified pursuant to applicable law (including, without limitation, pursuant to Section 1129 of the Bankruptcy Code), any reference to such series of First Priority Secured Obligations or the First Priority Debt Documents governing such series of First Priority Secured Obligations shall refer to such obligations or such documents as so modified.

(g) If the Company and/or any other Grantor shall become the subject of any Insolvency Proceeding and shall, as debtor(s)-in-possession, move for approval of DIP Financing to be provided by one or more lenders (the “DIP Lenders”) and/or the use of cash collateral under Section 363 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law, each First Priority Secured Party (other than any Controlling Party) agrees that it will raise no objection to any such DIP Financing or to the Liens on the Collateral securing the same (“DIP Financing Liens”) or to any use of cash collateral that constitutes Collateral, unless the Controlling Party shall then oppose or object to such DIP Financing or such DIP Financing Liens and/or use of cash collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Collateral for the benefit of the Controlling Party, each First Priority Secured Party (other than the Controlling Party) will subordinate its Liens with respect to such Collateral on the same terms as the Liens of the Controlling Party (other than any Liens of any First Priority Secured Parties constituting DIP Financing Liens) are subordinated thereto, and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such Collateral granted to secure the First Priority Secured Obligations of the Controlling Party, each First Priority Secured Party (other than the Controlling Party) will confirm the priorities with respect to such Collateral as set forth herein), in each case so long as (A) the First Priority Secured Parties of each series of First Priority Secured Obligations retain the benefit of their Liens on all such Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such Insolvency Proceeding, with the same priority vis-a-vis all the other First Priority Secured Parties

 

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(other than any Liens of the First Priority Secured Parties constituting DIP Financing Liens) as existed prior to the commencement of the Insolvency Proceeding, (B) the First Priority Secured Parties of each series of First Priority Secured Obligations are granted Liens on any additional or replacement collateral pledged to any First Priority Secured Parties as adequate protection or otherwise in connection with such DIP Financing and/or use of cash collateral, with the same priority vis-a-vis the First Priority Secured Parties (other than any Liens of the First Priority Secured Parties constituting DIP Financing Liens) as set forth in this Collateral Trust Agreement, (C) if any amount of such DIP Financing and/or cash collateral is applied to repay any of the First Priority Secured Obligations, such amount is applied pursuant to subsection 3.4, and (D) if any First Priority Secured Parties are granted adequate protection, including in the form of periodic payments, in connection with such DIP Financing and/or use of cash collateral, the proceeds of such adequate protection are applied pursuant to subsection 3.4; provided that the First Priority Secured Parties of each series of First Priority Secured Obligations shall have a right to object to the grant of a Lien to secure the DIP Financing over any Collateral subject to Liens in favor of the First Priority Secured Parties of such series of First Priority Secured Obligations or its Holder Representative that shall not constitute Collateral; and provided, further, that the First Priority Secured Parties receiving adequate protection shall not object to any other First Priority Secured Party receiving adequate protection comparable to any adequate protection granted to such First Priority Secured Parties (other than as a provider of DIP Financing) in connection with a DIP Financing and/or use of cash collateral.

8.3 First Priority Secured Obligations Unconditional. All rights and interests of the First Priority Secured Parties hereunder, and all agreements and obligations of the Junior Priority Secured Parties (and, to the extent applicable, the Grantors) hereunder, shall remain in full force and effect irrespective of:

(i) any lack of validity or enforceability of any First Priority Debt Document;

(ii) any change in the time, place or manner of payment of, or in any other term of, all or any portion of the First Priority Secured Obligations, or any amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of any First Priority Debt Document;

(iii) prior to the payment and performance in full of the First Priority Secured Obligations, any exchange, release, voiding, avoidance or non-perfection of any Lien in any Collateral or any other collateral, or any release, amendment, waiver or other modification, whether by course of conduct or otherwise, or any Refinancing of all or any portion of the First Priority Secured Obligations or any guarantee or guaranty thereof; or

(iv) any other circumstances that otherwise might constitute a defense available to, or a discharge of, any Grantor in respect of the First Priority Secured Obligations or any Junior Priority Secured Party in respect of this Collateral Trust Agreement.

8.4 [Reserved].

8.5 Certain Specified Collateral. Notwithstanding anything to the contrary in this Collateral Trust Agreement, the parties hereto agree that, from and after the Effective Date, any Grantor or any of their Subsidiaries may, by written notice to the Collateral Trustee, elect to provide additional collateral for the benefit of the holders of any series of First Priority Secured Obligations, without providing such additional collateral for the benefit of the holders of any other series of First Priority Secured Obligations so long as such provision is not in violation of any First Priority Debt Documents (such Collateral, the

 

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Specified Collateral” and such obligations, the “Specified First Priority Secured Obligations”). The security interest in any such Specified Collateral shall be held solely for the benefit of the holders of the series of First Priority Secured Obligations specified in such notice, and the rights of the holders of all First Priority Secured Obligations (including, without limitation, the right to receive distributions in respect of such First Priority Secured Obligations pursuant to subsection 3.4) set forth herein shall be modified to the extent necessary so that the benefits of the security interest in such Specified Collateral are granted solely to the holders of such designated series of First Priority Secured Obligations.

8.6 Information Concerning Financial Condition of the Grantors. Each Secured Party hereby assumes responsibility for keeping itself informed of the financial condition of the Company, Parent and each of the other Grantors and all other circumstances bearing upon the risk of nonpayment of the First Priority Secured Obligations or the Junior Priority Secured Obligations. No Secured Party shall have any duty to advise any other Secured Party of information known to it regarding such condition or any such circumstances. In the event any Secured Party, in its sole discretion, undertakes at any time or from time to time to provide any information to any other Secured Party, it shall be under no obligation (a) to provide any such information to such other Secured Party or any other party on any subsequent occasion, (b) to undertake any investigation not a part of its regular business routine, or (c) to disclose any other information.

8.7 Similar Liens and Agreements. The parties hereto agree that it is their intention that the Collateral for the First Priority Secured Obligations and the Collateral for the Junior Priority Secured Obligations be substantially identical (subject in each case to subsection 8.5). In furtherance of the foregoing, the parties hereto acknowledge, subject to the other provisions of this Collateral Trust Agreement, that the Grantors shall cause the First Priority Security Documents and the Junior Priority Security Documents to be in all material respects the same forms of documents other than as is necessary or appropriate to reflect the first lien and second lien nature of the Secured Obligations thereunder.

8.8 Concerning Certain Holder Representatives. (a) Notwithstanding anything herein or in any other document or agreement related hereto to the contrary, it is expressly understood and agreed that (i) this Collateral Trust Agreement is executed and delivered by Deutsche Bank Trust Company Americas (“DBTCA”) not individually or personally, but solely as trustee for the First Priority Initial Spectrum Obligations and as trustee for the First Priority Notes, in the exercise of the powers and authority conferred and vested in it, pursuant to the Existing Sprint Spectrum Indenture and the First Priority Debt Documents, respectively, (ii) each of the representations, undertakings and agreements by the trustee for the First Priority Initial Spectrum Obligations and the trustee for the First Priority Notes made herein are not made or intended as personal representations, undertakings and agreements by DBTCA (iii) nothing herein contained shall be construed as creating any liability on DBTCA, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any person claiming by, through or under the parties hereto, (iv) DBTCA has made no investigation as to the accuracy or completeness of any representations and warranties made by the parties hereto and (v) under no circumstances shall DBTCA be (a) personally liable for the payment of indebtedness or expenses or (b) liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken under this Collateral Trust Agreement or any other related document, except to the extent arising from its gross negligence or willful misconduct (in any case, as determined by a final judgment of a court of competent jurisdiction).

(b) DBTCA, as Holder Representative for the First Priority Initial Spectrum Obligations and as Holder Representative for the First Priority Notes, shall be entitled to all of the same rights, protections, immunities and indemnities afforded to it under the Existing Sprint Spectrum Indenture and the First Priority Debt Documents, as the case may be, as if the same were specifically set forth herein.

 

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(c) Whenever reference is made in this Collateral Trust Agreement or any other Trust Security Document to any action by, consent, designation, specification, requirement of approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by any Holder Representative (including if it then the Controlling Party) or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by a Holder Representative in this Collateral Trust Agreement and any Trust Security Document, it is understood that in all cases such Holder Representative shall be entitled to act, give, withhold, suffer, omit, take or otherwise undertake and exercise the same (or shall not undertake and exercise the same), as directed by the requisite secured parties in accordance with the applicable First Priority Debt Documents or the Existing Sprint Spectrum Indenture, as the case may be. In all cases a Holder Representative shall be fully justified in failing or refusing to take any such action under this Collateral Trust Agreement if it shall not have received such written instruction, advice or concurrence. Additionally, under no circumstances shall a Holder Representative be liable for any delay in acting, or liability caused by such delay, while it is awaiting such direction or indemnity. This provision is intended solely for the benefit of the Holder Representatives and their respective successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.

8.9 Execution of Certain Documents. The words “execution” execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries 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, physical delivery thereof 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, 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; provided that, in respect of documents to be signed by entities established within the European Union, the Electronic Signature qualifies as a “qualified electronic signature” within the meaning of the Regulation (EU) n°910/2014 of the European parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transaction in the internal market as amended from time to time. Each party hereby consents to the use of any third party electronic signature capture service providers as may be reasonably chosen by a signatory hereof; provided that nothing herein shall require the Collateral Trustee to accept Electronic Signatures in any form or format without its prior written consent.

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

 

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

 

T-MOBILE US, INC.
By:   /s/ J. Braxton Carter
  Name: J. Braxton Carter
 

Title:   Executive Vice President and Chief

            Financial Officer

T-MOBILE USA, INC.
By:   /s/ J. Braxton Carter
  Name: J. Braxton Carter
 

Title:   Executive Vice President and Chief

            Financial Officer

 

Address for Notices:

Address:

 

Attention:

 

Email:

 

Telephone:

 

Fax:

 

with a copy to (if applicable):

Address:

 

Attention:

 

Email:

 

Telephone:

 

Fax:

 

[Signature Page to Collateral Trust and Intercreditor Agreement]


EACH OF THE ENTITIES LISTED ON
ANNEX B ATTACHED HERETO
By:   /s/ J. Braxton Carter
  Name: J. Braxton Carter
 

Title:   Executive Vice President and Chief

            Financial Officer

 

Address for Notices:

Address:

 

Attention:

 

Email:

 

Telephone:

 

Fax:

 

with a copy to (if applicable):

Address:

 

Attention:

 

Email:

 

Telephone:

 

Fax:

 

[Signature Page to Collateral Trust and Intercreditor Agreement]


EACH OF THE ENTITIES LISTED ON
ANNEX A ATTACHED HERETO
By:   /s/ Jud Henry
  Name: Jud Henry
  Title:   Vice President and Treasurer

 

Address for Notices:

Address:

 

Sprint Corporation

 

6200 Sprint Parkway

 

Overland Park, Kansas 66251

Attention:

 

Jud Henry

Email:

 

jud.d.henry@sprint.com

Telephone:

Fax:

 

with a copy to (if applicable):

Address:

 

Attention:

 

Email:

 

Telephone:

 

Fax:

 

[Signature Page to Collateral Trust and Intercreditor Agreement]


Annex A

ALDA WIRELESS HOLDINGS, LLC

AMERICAN TELECASTING DEVELOPMENT, LLC

AMERICAN TELECASTING OF ANCHORAGE, LLC

AMERICAN TELECASTING OF COLUMBUS, LLC

AMERICAN TELECASTING OF DENVER, LLC

AMERICAN TELECASTING OF FORT MYERS, LLC

AMERICAN TELECASTING OF FT. COLLINS, LLC

AMERICAN TELECASTING OF GREEN BAY, LLC

AMERICAN TELECASTING OF LANSING, LLC

AMERICAN TELECASTING OF LINCOLN, LLC

AMERICAN TELECASTING OF LITTLE ROCK, LLC

AMERICAN TELECASTING OF LOUISVILLE, LLC

AMERICAN TELECASTING OF MEDFORD, LLC

AMERICAN TELECASTING OF MICHIANA, LLC

AMERICAN TELECASTING OF MONTEREY, LLC

AMERICAN TELECASTING OF REDDING, LLC

AMERICAN TELECASTING OF SANTA BARBARA, LLC

AMERICAN TELECASTING OF SEATTLE, LLC

AMERICAN TELECASTING OF SHERIDAN, LLC

AMERICAN TELECASTING OF YUBA CITY, LLC

APC REALTY AND EQUIPMENT COMPANY, LLC

ASSURANCE WIRELESS OF SOUTH CAROLINA, LLC

ASSURANCE WIRELESS USA, L.P.

ATI SUB, LLC

BOOST WORLDWIDE, LLC

BROADCAST CABLE, LLC

CLEAR WIRELESS LLC

CLEARWIRE COMMUNICATIONS LLC

CLEARWIRE CORPORATION

CLEARWIRE HAWAII PARTNERS SPECTRUM, LLC

CLEARWIRE IP HOLDINGS LLC

CLEARWIRE LEGACY LLC

CLEARWIRE SPECTRUM HOLDINGS II LLC

CLEARWIRE SPECTRUM HOLDINGS III LLC

CLEARWIRE SPECTRUM HOLDINGS LLC

CLEARWIRE XOHM LLC

FIXED WIRELESS HOLDINGS, LLC

FRESNO MMDS ASSOCIATES, LLC

INDEPENDENT WIRELESS ONE LEASED REALTY CORPORATION

KENNEWICK LICENSING, LLC

MINORCO, LLC

NEXTEL COMMUNICATIONS OF THE MID-ATLANTIC, INC.

NEXTEL OF NEW YORK, INC.

NEXTEL RETAIL STORES, LLC

NEXTEL SOUTH CORP.

NEXTEL SYSTEMS, LLC

NEXTEL WEST CORP.

NSAC, LLC

PCTV GOLD II, LLC


PCTV SUB, LLC

PEOPLE’S CHOICE TV OF HOUSTON, LLC

PEOPLE’S CHOICE TV OF ST. LOUIS, LLC

PRWIRELESS PR, LLC

SIHI NEW ZEALAND HOLDCO, INC.

SN HOLDINGS (BR I) LLC

SN UHC 1, INC.

SN UHC 3, INC.

SN UHC 4, INC.

SPEEDCHOICE OF DETROIT, LLC

SPEEDCHOICE OF PHOENIX, LLC

SPRINT (BAY AREA), LLC

SPRINT COMMUNICATIONS COMPANY L.P.

SPRINT COMMUNICATIONS COMPANY OF NEW HAMPSHIRE, INC.

SPRINT COMMUNICATIONS COMPANY OF VIRGINIA, INC.

SPRINT CONNECT LLC

SPRINT CORPORATION

SPRINT CORPORATION

SPRINT EBUSINESS, INC.

SPRINT ENTERPRISE MOBILITY, LLC

SPRINT ENTERPRISE NETWORK SERVICES, INC.

SPRINT EWIRELESS, INC.

SPRINT HOLDCO, LLC

SPRINT INTERNATIONAL COMMUNICATIONS CORPORATION

SPRINT INTERNATIONAL HOLDING, INC.

SPRINT INTERNATIONAL INCORPORATED

SPRINT INTERNATIONAL NETWORK COMPANY LLC

SPRINT PCS ASSETS, L.L.C.

SPRINT SOLUTIONS, INC.

SPRINT SPECTRUM HOLDING COMPANY, LLC

SPRINT SPECTRUM L.P.

SPRINT SPECTRUM REALTY COMPANY, LLC

SPRINT/UNITED MANAGEMENT COMPANY

SPRINTCOM, INC.

SWV SIX, INC.

TDI ACQUISITION SUB, LLC

TRANSWORLD TELECOM II, LLC

US TELECOM, INC.

USST OF TEXAS, INC.

UTELCOM LLC

VIRGIN MOBILE USA – EVOLUTION, LLC

VMU GP, LLC

WBS OF AMERICA, LLC

WBS OF SACRAMENTO, LLC

WBSY LICENSING, LLC

WCOF, LLC

WIRELESS BROADBAND SERVICES OF AMERICA, L.L.C.

WIRELINE LEASING CO., INC.


Annex B

IBSV LLC

LAYER3 TV, INC.

L3TV CHICAGOLAND CABLE SYSTEM, LLC

L3TV COLORADO CABLE SYSTEM, LLC

L3TV DALLAS CABLE SYSTEM, LLC

L3TV DC CABLE SYSTEM, LLC

L3TV DETROIT CABLE SYSTEM, LLC

L3TV LOS ANGELES CABLE SYSTEM, LLC

L3TV MINNEAPOLIS CABLE SYSTEM, LLC

L3TV NEW YORK CABLE SYSTEM, LLC

L3TV PHILADELPHIA CABLE SYSTEM, LLC

L3TV SAN FRANCISCO CABLE SYSTEM, LLC

L3TV SEATTLE CABLE SYSTEM, LLC

METROPCS CALIFORNIA, LLC

METROPCS FLORIDA, LLC

METROPCS GEORGIA, LLC

METROPCS MASSACHUSETTS, LLC

METROPCS MICHIGAN, LLC

METROPCS NETWORKS CALIFORNIA, LLC

METROPCS NETWORKS FLORIDA, LLC

METROPCS NEVADA, LLC

METROPCS NEW YORK, LLC

METROPCS PENNSYLVANIA, LLC

METROPCS TEXAS, LLC

PUSHSPRING, INC.

T-MOBILE CENTRAL LLC

T-MOBILE FINANCIAL LLC

T-MOBILE LEASING LLC

T-MOBILE LICENSE LLC

T-MOBILE NORTHEAST LLC

T-MOBILE PCS HOLDINGS LLC

T-MOBILE PUERTO RICO HOLDINGS LLC

T-MOBILE PUERTO RICO LLC

T-MOBILE RESOURCES CORPORATION

T-MOBILE SOUTH LLC

T-MOBILE SUBSIDIARY IV LLC

T-MOBILE WEST LLC

THEORY MOBILE, INC.


DEUTSCHE BANK AG NEW YORK BRANCH,
as First Priority Agent and as Holder Representative for the Initial Syndicated Credit Agreement

By:   /s/ Michael Strobel
  Name: Michael Strobel
  Title:   Vice President
By:   /s/ Alicia Schug
  Name: Alicia Schug
  Title:   Vice President
Address for Notices:
Address: 60 Wall Street
New York, NY 10005
Attention: Michael Strobel
Email: michael-p.strobel@db.com
Telephone: 212-250-0939

[Signature Page to Collateral Trust and Intercreditor Agreement]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Holder Representative for the First Priority Initial Spectrum Obligations

By:   /s/ Cynthia Valverde
  Name: Cynthia Valverde
  Title:   Assistant Vice President
By:   /s/ Katherine M. Wannenmacher
  Name: Katherine M. Wannenmacher
  Title:   Vice President
Address for Notices:
Deutsche Bank Trust Company Americas
1761 East St. Andrew Place, Santa Ana, CA 92705
Attention: Amy McNulty – Deal ID SPRT16
Email: amy.mcnulty@db.com

[Signature Page to Collateral Trust and Intercreditor Agreement]


GOLDMAN SACHS BANK USA,
as Holder Representative for the First Priority Bridge Loan Agreement

By:   /s/ Robert Ehudin
  Name: Robert Ehudin
  Title:   Authorized Signatory
Address for Notices:
Goldman Sachs Bank USA
2001 Ross Ave, 29th Floor
Dallas, TX 75201
Attention: SBD Operations
Telephone: (972) 368-2323
Facsimile: (646) 769-7829
E-mail: gs-dallas-adminagency@ny.email.gs.com and gs-sbdagency-borrowernotices@ny.email.gs.com

[Signature Page to Collateral Trust and Intercreditor Agreement]


DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Trustee

By:   /s/ Annie Jaghatspanyan
  Name: Annie Jaghatspanyan
  Title:   Vice President
By:   /s/ James Briggs
  Name: James Briggs
  Title:   Vice President
Address for Notices:
Deutsche Bank Trust Company Americas
Trust and Agency Services
60 Wall Street, 24th Floor
Mail Stop: NYC60 - 2410
New York, NY 10005
USA
Attention: Project Finance Agency Services, T-Mobile USA, Inc. SE4416
Facsimile: (646) 961 - 3317

[Signature Page to Collateral Trust and Intercreditor Agreement]

EX-10.13

Exhibit 10.13

GUARANTEE ASSUMPTION AGREEMENT

GUARANTEE ASSUMPTION AGREEMENT dated as of April 1, 2020 by T-Mobile US, Inc., a Delaware corporation, T-Mobile USA, Inc., a Delaware corporation and the additional guarantors listed on Schedule I hereto (collectively, the “Additional Guarantors”), in favor of Spectrum License Holder LLC (“License Holder I”), Sprint Spectrum License Holder II LLC (“License Holder II”), Sprint Spectrum License Holder III LLC (“License Holder III” and, together with License Holder I and License Holder II, “Lessors” and each, a “Lessor”) under that certain Intra-Company Spectrum Lease Agreement dated October 27, 2016 by and among Lessor, the Guarantors party thereto, Sprint Spectrum Intermediate HoldCo LLC and Sprint Communications, Inc. (as amended from time to time, the “Lease Agreement”).

Pursuant to Section 14 of the Lease Agreement, the Additional Guarantor hereby agrees to become a “Guarantor” for all purposes of the Lease Agreement. Without limiting the foregoing, the Additional Guarantor hereby:

(a) jointly and severally with the other Guarantors, guarantees to Lessors and their respective successors and assigns the prompt payment in full when due of any and all Guaranteed Obligations (as defined in the Lease Agreement) in the same manner and to the same extent as is provided in the Lease Agreement as if such Additional Guarantor were an original party thereto; and

(b) makes the representations and warranties as of the date hereof, and agrees to perform the covenants set forth in, Section 10 of the Lease Agreement with respect to itself and its obligations under this Guarantee Assumption Agreement.

This Guarantee Assumption Agreement shall be governed by, enforced and construed in accordance with, the laws of the State of New York without regard to conflict of laws principles.

[remainder of this page intentionally left blank]


IN WITNESS WHEREOF, the Additional Guarantor has caused this Guarantee Assumption Agreement to be duly executed and delivered as of the day and year first above written.

 

T-MOBILE USA, INC.
By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer
T-MOBILE US, INC.
By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer

[Guarantee Assumption Agreement]


IBSV LLC
LAYER3 TV, INC.
L3TV CHICAGOLAND CABLE SYSTEM, LLC
L3TV COLORADO CABLE SYSTEM, LLC
L3TV DALLAS CABLE SYSTEM, LLC
L3TV DC CABLE SYSTEM, LLC
L3TV DETROIT CABLE SYSTEM, LLC
L3TV LOS ANGELES CABLE SYSTEM, LLC
L3TV MINNEAPOLIS CABLE SYSTEM, LLC
L3TV NEW YORK CABLE SYSTEM, LLC
L3TV PHILADELPHIA CABLE SYSTEM, LLC
L3TV SAN FRANCISCO CABLE SYSTEM, LLC
L3TV SEATTLE CABLE SYSTEM, LLC
METROPCS CALIFORNIA, LLC
METROPCS FLORIDA, LLC
METROPCS GEORGIA, LLC
METROPCS MASSACHUSETTS, LLC
METROPCS MICHIGAN, LLC
METROPCS NETWORKS CALIFORNIA, LLC
METROPCS NETWORKS FLORIDA, LLC
METROPCS NEVADA, LLC
METROPCS NEW YORK, LLC
METROPCS PENNSYLVANIA, LLC
METROPCS TEXAS, LLC
PUSHSPRING, INC.
T-MOBILE CENTRAL LLC
T-MOBILE FINANCIAL LLC
T-MOBILE LEASING LLC
T-MOBILE LICENSE LLC
T-MOBILE NORTHEAST LLC
T-MOBILE PCS HOLDINGS LLC
T-MOBILE PUERTO RICO HOLDINGS LLC
T-MOBILE PUERTO RICO LLC
T-MOBILE RESOURCES CORPORATION
T-MOBILE SOUTH LLC
T-MOBILE SUBSIDIARY IV LLC
T-MOBILE WEST LLC
THEORY MOBILE, INC.
By:  

/s/ J. Braxton Carter

  Name: J. Braxton Carter
  Title:   Authorized Person

[Guarantee Assumption Agreement]


ACCEPTED AND AGREED:
SPRINT SPECTRUM LICENSE HOLDER LLC
By:  

/s/ Jud Henry

  Name: Jud Henry
  Title:   Vice President and Treasurer
SPRINT SPECTRUM LICENSE HOLDER II LLC
By:  

/s/ Jud Henry

  Name: Jud Henry
  Title:   Vice President and Treasurer
SPRINT SPECTRUM LICENSE HOLDER III LLC
By:  

/s/ Jud Henry

  Name: Jud Henry
  Title:   Vice President and Treasurer

[Guarantee Assumption Agreement]


Schedule I -

 

Entity

  

Jurisdiction of Organization

IBSV LLC    Delaware
Layer3 TV, Inc.    Delaware
L3TV Chicagoland Cable System, LLC    Delaware
L3TV Colorado Cable System, LLC    Delaware
L3TV Dallas Cable System, LLC    Delaware
L3TV DC Cable System, LLC    Delaware
L3TV Detroit Cable System, LLC    Delaware
L3TV Los Angeles Cable System, LLC    Delaware
L3TV Minneapolis Cable System, LLC    Delaware
L3TV New York Cable System, LLC    Delaware
L3TV Philadelphia Cable System, LLC    Delaware
L3TV San Francisco Cable System, LLC    Delaware
L3TV Seattle Cable System, LLC    Delaware
MetroPCS California, LLC    Delaware
MetroPCS Florida, LLC    Delaware
MetroPCS Georgia, LLC    Delaware
MetroPCS Massachusetts, LLC    Delaware
MetroPCS Michigan, LLC    Delaware
MetroPCS Networks California, LLC    Delaware
MetroPCS Networks Florida, LLC    Delaware
MetroPCS Nevada, LLC    Delaware
MetroPCS New York, LLC    Delaware
MetroPCS Pennsylvania, LLC    Delaware
MetroPCS Texas, LLC    Delaware
PushSpring, Inc.    Delaware
T-Mobile Central LLC    Delaware
T-Mobile Financial LLC    Delaware
T-Mobile Leasing LLC    Delaware
T-Mobile License LLC    Delaware
T-Mobile Northeast LLC    Delaware
T-Mobile PCS Holdings LLC    Delaware
T-Mobile Puerto Rico Holdings LLC    Delaware
T-Mobile Puerto Rico LLC    Delaware
T-Mobile Resources Corporation    Delaware
T-Mobile South LLC    Delaware
T-Mobile Subsidiary IV LLC    Delaware
T-Mobile US, Inc.    Delaware
T-Mobile West LLC    Delaware
Theory Mobile, Inc.    Delaware
EX-10.14

Exhibit 10.14

GUARANTEE ASSUMPTION AGREEMENT

GUARANTEE ASSUMPTION AGREEMENT dated as of May 7, 2020, by SFE 1, LLC, a limited liability company organized under the laws of the State of Delaware (“SFE 1”) and SFE 2, LLC, a limited liability company organized under the laws of the State of Delaware (together with SFE 1, the “Additional Guarantors” and each an “Additional Guarantor”), in favor of Spectrum License Holder LLC (“License Holder I”), Sprint Spectrum License Holder II LLC (“License Holder II”), Sprint Spectrum License Holder III LLC (“License Holder III” and, together with License Holder I and License Holder II, “Lessors” and each, a “Lessor”) under that certain Intra-Company Spectrum Lease Agreement dated October 27, 2016 by and among Lessor, the Guarantors party thereto, Sprint Spectrum Intermediate HoldCo LLC and Sprint Communications, Inc. (as amended from time to time, the “Lease Agreement”).

Pursuant to Section 14 of the Lease Agreement, each Additional Guarantor hereby agrees to become a “Guarantor” for all purposes of the Lease Agreement. Without limiting the foregoing, each Additional Guarantor hereby:

(a) jointly and severally with the other Guarantors, guarantees to Lessors and their respective successors and assigns the prompt payment in full when due of any and all Guaranteed Obligations (as defined in the Lease Agreement) in the same manner and to the same extent as is provided in the Lease Agreement as if such Additional Guarantor were an original party thereto; and

(b) makes the representations and warranties as of the date hereof, and agrees to perform the covenants set forth in, Section 10 of the Lease Agreement with respect to itself and its obligations under this Guarantee Assumption Agreement.

This Guarantee Assumption Agreement shall be governed by, enforced and construed in accordance with, the laws of the State of New York without regard to conflict of laws principles.

[remainder of this page intentionally left blank]


IN WITNESS WHEREOF, each Additional Guarantor has caused this Guarantee Assumption Agreement to be duly executed and delivered as of the day and year first above written.

 

SFE 1, LLC
SFE 2, LLC
By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer

[Guarantee Assumption Agreement]


Accepted and agreed:
SPRINT SPECTRUM LICENSE HOLDER LLC
SPRINT SPECTRUM LICENSE HOLDER II LLC
SPRINT SPECTRUM LICENSE HOLDER III LLC
By:  

/s/ J. Braxton Carter

  Name:   J. Braxton Carter
  Title:   Executive Vice President and
    Chief Financial Officer

[Guarantee Assumption Agreement]

EX-10.15

EXHIBIT 10.15

EXECUTION COPY

THIRD AMENDMENT TO THIRD AMENDED AND RESTATED RECEIVABLES

PURCHASE AND ADMINISTRATION AGREEMENT

THIS THIRD AMENDMENT TO THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AND ADMINISTRATION AGREEMENT (this “Amendment”), dated as of April 30, 2020 (the “Third Amendment Closing Date”), is by and among T-MOBILE HANDSET FUNDING LLC, as transferor (the “Transferor”), T-MOBILE FINANCIAL LLC (“Finco”), individually and as servicer, T-MOBILE US, INC. (“TMUS”) and T-MOBILE USA, INC. (“TMUSA”), jointly and severally as guarantors (collectively, the “Guarantor”), ROYAL BANK OF CANADA, as Administrative Agent (the “Administrative Agent”), and the various Funding Agents party to the RPAA referenced below.

RECITALS:

WHEREAS, the parties hereto are parties to the Third Amended and Restated Receivables Purchase and Administration Agreement, dated as of October 23, 2018 (as amended on December 21, 2018 and further amended on February 14, 2020, the “Existing RPAA” and, as further amended by this Amendment and as may be further amended, supplemented or otherwise modified from time to time, the “RPAA”); and

WHEREAS, the parties hereto wish to amend the Existing RPAA, as set forth in this Amendment, among other things, to permit various relief measures that the Servicer may apply to any Transferred Receivable whose Obligor has been affected by the COVID-19 pandemic, and address certain implications of such relief measures to the rights and obligations of the parties to the Existing RPAA;

NOW, THEREFORE, the parties hereto, in consideration of their mutual covenants hereinafter set forth and intending to be legally bound hereby, agree as follows:

ARTICLE 1

DEFINITIONS

Section 1.01 Capitalized Terms. Capitalized terms used in this Amendment (including in the introductory paragraph and the recitals) and not otherwise defined herein shall have the meanings ascribed thereto in the Existing RPAA.


ARTICLE 2

AMENDMENTS

Section 2.01 Amendments to the Existing RPAA. The parties hereto hereby agree, subject to the terms and conditions set forth herein and in reliance on the representations, warranties, covenants and agreements contained herein, that, effective as of the Third Amendment Closing Date, the Existing RPAA shall be amended to delete the struck text (indicated textually in the same manner as the following example: struck text) and to add the underlined text (indicated textually in the same manner as the following example: underlined text), as set forth in the marked conformed copy of the RPAA attached as Exhibit A hereto.

Section 2.02 Acknowledgment. In connection with allowing Transferred Receivables to become COVID Deferring Receivables (as defined in the RPAA, as amended hereby) in accordance with the COVID Deferral Program (as defined in the RPAA, as amended hereby), the Transferor hereby acknowledges that it shall (i) with respect to the Transferred Receivables that are in COVID Deferring Receivables status as of April 26, 2020, sell, transfer, assign and convey to the Administrative Agent (for the benefit of the owners) on April 30, 2020 Additional Receivables with an aggregate Receivable Matrix Amounts of approximately $94,000,000 in accordance with Article II of the RPAA and (ii) with respect to Transferred Receivables that become COVID Deferring Receivables after April 30, 2020, comply with all of its applicable obligations under the RPAA, including but not limited to, its obligations under Sections 2.1(c) of the RPAA with respect to the sale, transfer, assignment and conveyance of Additional Receivables in the circumstances described therein.

ARTICLE 3

EFFECTIVENESS; RATIFICATION

Section 3.01 Effectiveness. This Amendment shall become effective, and this Amendment thereafter shall be binding on each of the parties hereto and their respective successors and assigns, as of the Third Amendment Closing Date, upon the execution and delivery to the Administrative Agent and each Funding Agent of counterparts of this Amendment executed by each of the parties hereto.

Section 3.02 Incorporation; Ratification.

(a) On and after the Third Amendment Closing Date this Amendment shall be a part of the RPAA and each reference in the RPAA to “this Agreement” or “hereof”, “hereunder” or words of like import, and each reference in any other Related Document to the RPAA shall mean and be a reference to such RPAA as previously amended, and as amended, modified and consented to hereby.

(b) Except as expressly provided herein, the RPAA shall remain in full force and effect and is hereby ratified and confirmed by the parties hereto.

(c) After giving effect to this Amendment, the Performance Guaranty shall remain in full force and effect.

 

2


ARTICLE 4

MISCELLANEOUS

Section 4.01 Representations and Warranties.

(a) The Transferor hereby represents and warrants to the Administrative Agent and the Owners that its representations and warranties set forth in Section 3.1 of the RPAA are true and correct in all material respects as of the date hereof.

(b) Finco hereby represents and warrants to the Administrative Agent and the Owners that its representations and warranties set forth in Section 3.1 and Section 3.3 of the RPAA are true and correct in all material respects as of the date hereof.

(c) Each of TMUS and TMUSA hereby represents and warrants to the Administrative Agent and the Owners that its representations and warranties set forth in Section 3.4 of the RPAA are true and correct in all material respects as of the date hereof.

Section 4.02 No Other Amendments or Consents; Status of RPAA and Related Documents. The amendments set forth herein are limited as specified and shall not be construed as an amendment or consent to any other term or provision of the Existing RPAA. Nothing herein shall obligate the Administrative Agent, any Conduit Purchaser, Committed Purchaser or Funding Agent to grant (or consent to) any future amendment, consent or waiver of any kind under or in connection with the RPAA or entitle the Transferor to receive any such amendment, consent or waiver under the RPAA. Except as otherwise expressly provided herein, this Amendment shall not constitute a waiver of any right, power or remedy of the Owners, the Funding Agents or the Administrative Agent set forth in the RPAA and Related Documents, and except as expressly provided herein, this Amendment shall have no effect on any term or condition of the RPAA or Related Documents.

Section 4.03 Governing Law; Submission to Jurisdiction. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. EACH OF THE PARTIES TO THIS AMENDMENT HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF THE PARTIES HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS.

Section 4.04 Counterparts. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Amendment by signing such counterpart, it being understood and agreed that any counterpart may be executed in electronic signature format and such execution shall be effective as delivery of a manually executed original counterpart of this Amendment.

[Signatures on Following Page]

 

3


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

 

T-MOBILE HANDSET FUNDING LLC,
as Transferor
By:  

/s/ Dirk Wehrse

Name: Dirk Wehrse
Title: Senior Vice President, Treasury & Treasurer

T-MOBILE FINANCIAL LLC,

in its individual capacity and as Servicer

By:  

/s/ Dirk Wehrse

Name: Dirk Wehrse
Title: Assistant Treasurer

T-MOBILE US, INC.,

as Guarantor

By:  

/s/ Dirk Wehrse

Name: Dirk Wehrse
Title: Senior Vice President, Treasury & Treasurer

T-MOBILE USA, INC.,

as Guarantor

By:  

/s/ Dirk Wehrse

Name: Dirk Wehrse
Title: Senior Vice President, Treasury & Treasurer

[Signature Page to Third Amendment to 3rd A&R RPAA]


ROYAL BANK OF CANADA,
as Administrative Agent
By:  

/s/ Kevin P. Wilson

Name: Kevin P. Wilson
Title: Authorized Signatory
By:  

/s/ Chisolm L. Coleman

Name: Chisolm L. Coleman
Title: Authorized Signatory

ROYAL BANK OF CANADA,

as Funding Agent

By:  

/s/ Kevin P. Wilson

Name: Kevin P. Wilson
Title: Authorized Signatory
By:  

/s/ Chisolm L. Coleman

Name: Chisolm L. Coleman
Title: Authorized Signatory

[Signature Page to Third Amendment to 3rd A&R RPAA]


LANDESBANK HESSEN-THURINGEN GIROZENTRALE,
as a Funding Agent
By:  

/s/ Bjorn Reinecke

Name: Bjorn Reinecke
Title: Assistant Vice President
By:  

/s/ Bjorn Mollner

Name: Bjorn Mollner
Title: Senior Vice President

[Signature Page to Third Amendment to 3rd A&R RPAA]


MUFG BANK, LTD. F/K/A THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
as a Funding Agent
By:  

/s/ Christopher Pohl

Name: Christopher Pohl
Title: Managing Director

[Signature Page to Third Amendment to 3rd A&R RPAA]


BNP PARIBAS,
as a Funding Agent
By:  

/s/ Advait Joshi

Name: Advait Joshi
Title: Director
By:  

/s/ Chris Fukuoka

Name: Chris Fukuoka
Title: Vice President

[Signature Page to Third Amendment to 3rd A&R RPAA]


EXHIBIT A

CONFORMED COPY (NOT EXECUTED IN THIS FORM) OF THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AND ADMINISTRATION AGREEMENT, DATED AS OF OCTOBER 23, 2018 (CONFORMED WITH (I) FIRST AMENDMENT DATED AS OF DECEMBER 21, 2018, (II) SECOND AMENDMENT DATED AS OF FEBRUARY 14, 2020 AND (III) THIRD AMENDMENT DATED AS OF APRIL 30, 2020), MARKED TO SHOW THIRD AMENDMENT REVISIONS

[ATTACHED]


([CONFORMED WITH (I) FIRST AMENDMENT DATED AS OF DECEMBER 21, 2018 AND, (II) SECOND AMENDMENT DATED AS OF FEBRUARY 14, 2020), AND (III) THIRD AMENDMENT DATED AS OF APRIL 30, 2020]

 

 

 

THIRD AMENDED AND RESTATED

RECEIVABLES PURCHASE AND ADMINISTRATION AGREEMENT

among

T-MOBILE HANDSET FUNDING LLC,

as Transferor,

T-MOBILE FINANCIAL LLC,

in its individual capacity and as Servicer,

T-MOBILE US, INC.,

as a Guarantor,

T-MOBILE USA, INC.,

as a Guarantor,

THE CONDUIT PURCHASERS PARTY HERETO,

THE COMMITTED PURCHASERS PARTY HERETO,

THE FUNDING AGENTS PARTY HERETO,

and

ROYAL BANK OF CANADA,

as Administrative Agent

Dated as of October 23, 2018

 

 

 


TABLE OF CONTENTS

 

SECTION   HEADING    PAGE  

ARTICLE I.

  DEFINITIONS      2  

Section 1.1

  Certain Defined Terms      2  

Section 1.2

  Computation of Time Periods      4647  

Section 1.3

  Other Definitional Provisions      4647  

ARTICLE II.

  SALES AND SETTLEMENTS      4748  

Section 2.1

  Facility      4748  

Section 2.2

  Incremental Fundings      4950  

Section 2.3

  Payment of Cash Purchase Price      5152  

Section 2.4

  Filing of UCC Statements      5253  

Section 2.5

  Acceptance by Agent      5253  

Section 2.6

  Transfers and Sales; Security Interest      5253  

Section 2.7

  Non-Recourse Nature of Deferred Purchase Price      5354  

Section 2.8

  General Settlement Procedures      5354  

Section 2.9

  Payments and Computations, Etc.      5859  

Section 2.10

  Fees      5960  

Section 2.11

  Optional Purchase of Transferred Receivables by Finco      5960  

Section 2.12

  Mandatory Repurchase Under Certain Circumstances      5960  

Section 2.13

  Retransfer of Written-Off Receivables.      6061  

Section 2.14

  No Warranty Upon Retransfer      6061  

Section 2.15

  Jump Contracts; Credit Agreement Responsibility Transfers      6162  

Section 2.16

  No Representation or Warranty      6364  

Section 2.17

  Procedures for Extension of the Scheduled Expiry Date      6364  

Section 2.18

  Defaulting Ownership Groups.      6566  

Section 2.19

  Reduction and Increase of Purchase Limit      6768  

Section 2.20

  Protection of Ownership Interest      6970  

Section 2.21

  Malbec Receivables and No-Service Receivables      6970  

Section 2.22

  EPS Receivables      6970  

Section 2.23

  COVID Deferring Receivables      71  

 

-i-


ARTICLE III.

  REPRESENTATIONS AND WARRANTIES      7071  

Section 3.1

  Representations and Warranties of Finco and the Transferor      7071  

Section 3.2

  Representations and Warranties Relating to the Receivables      7476  

Section 3.3

  Additional Representations and Warranties of Finco      7678  

Section 3.4

  Additional Representations and Warranties of the Guarantor      7778  

Section 3.5

  Representations and Warranties of the Conduit Purchasers and Committed Purchasers      7980  

Section 3.6

  Covenants of the Transferor      7981  

Section 3.7

  Covenants of Finco and the Servicer      8587  

Section 3.8

  Covenants of the Guarantor      9697  

Section 3.9

  Additional Covenants of the Transferor, the Servicer and the Guarantor      98100  

Section 3.10

  Merger or Consolidation of, or Assumption, of the Obligations of the Guarantor, Finco or the Transferor      101102  

ARTICLE IV.

  CONDITIONS PRECEDENT      102103  

Section 4.1

  Conditions to 2018 Amendment Closing Date      102103  

Section 4.2

  Conditions to Incremental Funding      105107  

Section 4.3

  Conditions to Sales of Additional Receivables      106108  

ARTICLE V.

  OWNERSHIP GROUP PURCHASE LIMITS      107109  

Section 5.1.

  Ownership Group Purchase Limits      107109  

ARTICLE VI.

  PROTECTION OF THE OWNERS; ADMINISTRATION AND COLLECTIONS      108109  

Section 6.1

  Maintenance of Information and Computer Records      108109  

Section 6.2

  Inspections      108109  

Section 6.3

  Maintenance of Writings and Records      109110  

Section 6.4

  Performance of Undertakings Under the Transferred Receivables      109110  

Section 6.5

  Administration and Collections      109110  

Section 6.6

  Complete Servicing Transfer      112114  

Section 6.7

  Servicer Default      114115  

Section 6.8

  Finco Not to Resign as Servicer      115117  

Section 6.9

  Servicing Fee      116117  

Section 6.10

  Servicer Expenses      116117  

 

-ii-


Section 6.11

  Limitation on Liability of Servicer and Others      116118  

Section 6.12

  Monthly Report      117118  

Section 6.13

  Notices to the Transferor      117118  

Section 6.14

  Annual Statement of Compliance from Servicer; Annual Servicing Report of Independent Public Accountants      117118  

Section 6.15

  Adjustments      118119  

Section 6.16

  Liability of Servicer      118119  

Section 6.17

  Modifications to Credit Agreements      118120  

Section 6.18

  Compliance with Requirements of Law      118120  

Section 6.19

  Limitations on Liability of the Servicer and Others      119120  

Section 6.20

  Access to Certain Documentation and Information Regarding the Receivables      119120  

Section 6.21

  Examination of Records      119121  

Section 6.22

  Communications Regarding Compliance Matters      119121  

ARTICLE VII.

  TERMINATION EVENTS; AMORTIZATION EVENTS      120121  

Section 7.1

  Termination Events      120121  

Section 7.2

  Remedies Upon the Occurrence of a Termination Event      121122  

Section 7.3

  Amortization Events      122123  

ARTICLE VIII.

  INDEMNIFICATION      125126  

Section 8.1

  Indemnification      125126  

Section 8.2

  Tax Indemnification      129130  

Section 8.3

  Additional Costs      133134  

Section 8.4

  Other Costs and Expenses      134135  

ARTICLE IX.

  MISCELLANEOUS      134136  

Section 9.1

  Term of Agreement      134136  

Section 9.2

  Waivers; Amendments      135136  

Section 9.3

  Notices      136138  

Section 9.4

  Governing Law; Submission to Jurisdiction      138139  

Section 9.5

  WAIVER OF JURY TRIAL      138140  

Section 9.6

  Severability; Counterparts, Waiver of Setoff      139140  

Section 9.7

  Assignments and Participations      139140  

Section 9.8

  Confidentiality      140142  

Section 9.9

  No Bankruptcy Petition Against the Conduit Purchasers      141142  

Section 9.10

  Limited Recourse      141143  

 

-iii-


Section 9.11

  Excess Funds      142143  

Section 9.12

  Conflict Waiver      143144  

Section 9.13

  Funding Notices and Receivables Schedule      143144  

Section 9.14

  Recourse Limited to Transferred Receivables; Subordination      143144  

Section 9.15

  Integration      144145  

Section 9.16

  Tax Characterization      144145  

Section 9.17

  Right of First Refusal      144146  

Section 9.18

  Acknowledgement and Consent to Bail-In of Affected Financial Institutions      144146  

Section 9.19

  No Novation      145146  

ARTICLE X.

  THE ADMINISTRATIVE AGENT AND THE FUNDING AGENTS      145147  

Section 10.1

  Authorization and Action      145147  

Section 10.2

  UCC Filings      146148  

Section 10.3

  Administrative Agent’s and Funding Agents’ Reliance, Etc.      147148  

Section 10.4

  Non-Reliance on the Administrative Agent and the Funding Agents      148149  

Section 10.5

  Administrative Agent, Funding Agents and Affiliates      149150  

Section 10.6

  Indemnification      149150  

Section 10.7

  Successor Administrative Agent      150151  

Section 10.8

  Helaba Funding Agent’s Undertakings Related To German VAT      151152  

EXHIBITS

 

Exhibit A    Form of Assignment and Assumption Agreement
Exhibit B    Form of Daily Receivables File
Exhibit C    Form of Eligible Interest Rate Cap
Exhibit D    Hedging Requirements
Exhibit E    Form of Monthly Report
Exhibit F    Form of Receivables Schedule
Exhibit G    Form of Funding Notice
Exhibit H    Form of Investment Reduction Notice
Exhibit I    Form of Servicer’s Officer’s and Compliance Certificate
Exhibit J    Form of COVID Weekly Report

 

-iv-


SCHEDULES

 

Schedule I    Conduit Purchasers, Committed Purchasers, Funding Agents and Related Information
Schedule II    Schedule of Receivables
Schedule III    Organizational Information
Schedule IV    Documents Delivered on the Original Closing Date, the 2016 Amendment Closing Date, the 2017 Amendment Closing Date and the 2018 Amendment Closing Date
Schedule V    Designated Email Addresses

Annexes

 

Annex A    Aggregate Advance Amount Calculations
Annex B    Agreed-Upon Procedures
Annex C    T-Mobile Information - Data Confidentiality Provisions
Annex D    Form of Invoice

 

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THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AND

ADMINISTRATION AGREEMENT

THIRD AMENDED AND RESTATED RECEIVABLES PURCHASE AND ADMINISTRATION AGREEMENT, dated as of October 23, 2018 (as amended on December 21, 2018 (the “2018 Amendment”) and February 14, 2020 (the “2020 Amendment”) and as may be further modified, supplemented, amended or amended and restated from time to time, this “Agreement”), by and among T-MOBILE HANDSET FUNDING LLC, a Delaware limited liability company, as Transferor (as defined below), T-MOBILE FINANCIAL LLC, a Delaware limited liability company (“Finco”), in its individual capacity and as Servicer (as defined below), T-MOBILE US, INC., a Delaware corporation, in its capacity as performance guarantor under the Performance Guaranty (in such capacity, a “Guarantor”), T-MOBILE USA, INC., a Delaware corporation, in its capacity as performance guarantor under the Performance Guaranty (in such capacity, a “Guarantor”), the CONDUIT PURCHASERS (as defined below) party hereto from time to time, the COMMITTED PURCHASERS (as defined below) party hereto from time to time, the FUNDING AGENTS (as defined below) for the Ownership Groups from time to time party hereto, and ROYAL BANK OF CANADA (“RBC”), as administrative agent for the Owners (together with its successors in such capacity, the “Administrative Agent”).

R E C I T A L S :

WHEREAS, certain parties hereto have previously entered into the Receivables Purchase and Administration Agreement, dated as of November 18, 2015 (such agreement, as amended, the “Original Agreement”), pursuant to which (i) the Transferor from time to time sold, transferred, assigned and otherwise conveyed to the Administrative Agent (for the benefit of the Owners), its entire beneficial interest in certain unsecured retail equipment installment plan sales contracts and related rights in accordance with the terms of the Original Agreement and (ii) Finco serviced all such unsecured retail equipment installment plan sales contracts, in accordance with the terms of the Original Agreement;

WHEREAS, certain parties hereto have previously amended and restated the Original Agreement on June 6, 2016 (such agreement, as amended, supplemented, or otherwise modified, the “2016 RPAA”) to, among other things (i) add certain parties as Conduit Purchasers, Committed Purchasers and Funding Agents, (ii) reflect the Ownership Group Purchase Limit of each of the Owners party to the Original Agreement, and (iii) reflect an increase in the Purchase Limit;

WHEREAS, certain parties hereto have previously amended and restated the 2016 RPAA on August 21, 2017 (such agreement, as amended, supplemented, or otherwise modified prior to the date hereof, the “2017 RPAA”) to, among other things (i) add certain parties as Conduit Purchasers, Committed Purchasers and Funding Agents, (ii) reflect the Ownership Group Purchase Limit of each of the Owners party to the 2017 RPAA, and (iii) reflect a decrease in the Purchase Limit;


WHEREAS, the parties to the 2017 RPAA previously entered into (i) that certain First Amendment to Second Amended and Restated Receivables Purchase and Administration Agreement, dated as of December 18, 2017 (the “First Amendment”), which reflected an increase in the Purchase Limit, and (ii) that certain Second Amendment to Second Amended and Restated Receivables Purchase and Administration Agreement, dated as of April 3, 2018 (the “Second Amendment” and, collectively with the 2017 RPAA and the First Amendment, together, the “Existing Agreement”), pursuant to which TMUSA became an additional Guarantor under the Existing Agreement and the Performance Guaranty;

WHEREAS, the parties hereto wish to amend and restate the Existing Agreement in its entirety to, among other things (i) reflect the Ownership Group Purchase Limit of each of the Owners pursuant to this Agreement, and (ii) as otherwise specified herein;

WHEREAS, (i) the Transferor desires to continue to sell, transfer, assign and otherwise convey to the Administrative Agent (for the benefit of the Owners), from time to time, its entire beneficial interest in certain unsecured retail equipment installment plan sales contracts and related rights as may be specified from time to time in accordance with the terms of this Agreement and (ii) Finco will continue to service all such unsecured retail equipment installment plan sales contracts, in accordance with the terms of this Agreement;

WHEREAS, all other conditions precedent to the execution of this Agreement have been complied with.

NOW, THEREFORE, the parties hereto agree as follows:

ARTICLE I.

DEFINITIONS

Section 1.1 Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings:

2016 Amendment Closing Date” shall mean June 6, 2016.

2017 Amendment Closing Date” shall mean August 21, 2017.

2018 Amendment Closing Date” shall mean October 23, 2018.

2020 Amendment Closing Date” shall mean February 14, 2020.

Acceptable Differential” shall have the meaning specified in the Transaction Fee Letter.

Accessory” means an accessory or another item sold in T-Mobile stores, on-line or otherwise which is financed through a Credit Agreement.

Accessory Receivable” shall mean a Receivable related to an Accessory.

 

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Account Bank” shall mean U.S. Bank National Association or any other depositary bank in which the Collection Account is maintained.

Accrual Period” shall mean (i) with respect to the first Payment Date following the 2016 Amendment Closing Date, the period from (and including) the 2016 Amendment Closing Date to (but excluding) the Payment Date immediately succeeding the 2016 Amendment Closing Date, and (ii) for any Payment Date thereafter, the period from (and including) the Payment Date immediately preceding such Payment Date to (but excluding) such Payment Date.

Addition Date” shall mean, with respect to the transfer of Additional Receivables, the date on which the transfer of such Additional Receivables shall occur pursuant to Section 2.1(c).

Additional Costs” shall have the meaning specified in Section 8.3(a).

Additional Receivables” shall mean those Receivables, including any Replacement Receivables, designated by the Transferor after the Original Closing Date as Additional Receivables to be sold under this Agreement pursuant to Section 2.1(c), in each case identified on the related Daily Receivables File and the related updated Receivables Schedule.

Additional Rights” shall have the meaning specified in Section 3.9(i).

Administrative Agent” shall have the meaning specified in the first paragraph of this Agreement.

Administrative Agent Fee Letter” shall mean the Second Amended and Restated Administrative Agent Fee Letter, dated as of August 21, 2017 (which supersedes the Amended and Restated Administrative Agent Fee Letter dated as of June 6, 2016), among the Transferor, Finco and the Administrative Agent setting forth certain fees and expenses payable to the Administrative Agent by the Transferor in connection with this Agreement, as the same may be modified, supplemented, amended or amended and restated from time to time.

Advance Amount” shall mean, as of any date of determination for each Cohort (as defined in Annex A hereto), the amount determined in the manner provided in Annex A hereto.

Adverse Effect” shall mean, with respect to any action, that such action will (a) result in the occurrence of an Amortization Event or a Termination Event or (b) materially and adversely affect the amount or timing of distributions to be made to the Administrative Agent or any Funding Agent on behalf of their related Ownership Groups.

Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.

 

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Affected Party” shall mean the Administrative Agent, each of the Funding Agents and each of the Owners (and their respective directors, officers, employees, agents, successors and assigns).

Affiliate” shall mean any Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, another Person or a Subsidiary of such other Person. A Person shall be deemed to control another Person if the controlling Person owns, directly or indirectly, 10% or more of any class of voting securities of the controlled Person or possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of stock or otherwise.

Affiliate Conduit” shall mean an asset-backed commercial paper conduit administered by the Funding Agent or an Affiliate thereof which obtains funding from the issuance of Commercial Paper or other notes.

Aggregate Advance Amount” shall mean, as of any date of determination, 95% of the sum of the Advance Amounts for each Cohort as of such date.

Aggregate Net Investment” shall mean, at any time, the aggregate amount of the Owners’ Net Investments outstanding at such time.

Aggregate Unpaids” shall mean, at any time, an amount equal to the sum of, without duplication, (i) the aggregate accrued and unpaid Yield and Monthly Non-Use Fee at such time, (ii) the Aggregate Net Investment at such time, and (iii) any other fees, including Early Collection Fees, if any, and other amounts owed (whether due or accrued) hereunder or under the Fee Letters by the Transferor to the Owners, the Funding Agents or the Administrative Agent at such time.

Agreement” shall have the meaning specified in the first paragraph of this Agreement.

Amortization Date” shall mean the earliest to occur of (i) the occurrence or, if applicable, the declaration, of an Amortization Event, and (ii) the Scheduled Expiry Date.

Amortization Event” shall have the meaning specified in Section 7.3.

Amortization Rate” shall mean the rate specified as the “Amortization Rate” in the Transaction Fee Letter.

Anti-Corruption Laws” shall mean all laws, rules, and regulations of any jurisdiction applicable to the Transferor, Finco or their respective Subsidiaries from time to time concerning or relating to bribery or corruption.

Applicable EU Securitisation Regulation Due Diligence Requirements” shall mean the due diligence requirements of Article 5 of the EU Securitisation Regulation excluding those set out in sub-paragraph (e) of paragraph 1 of Article 5 of the EU Securitisation Regulation or any related EU Securitisation Rules.

 

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Asset Base Deficiency” shall mean, as of any date of determination, the condition that exists if (a) the Aggregate Net Investment exceeds (b) the sum of (i) the Aggregate Advance Amount plus (ii) amounts on deposit in the Collection Account which are available for reduction of Net Investment on the following Payment Date on such date (after taking into account payments with senior priority). If such term is used in a quantitative context, the amount of the Asset Base Deficiency shall be equal to the amount of such excess.

Assignment and Assumption Agreement” shall mean an assignment and assumption agreement in the form of Exhibit A hereto (with such changes as may be necessary or appropriate under the specific circumstances) executed and delivered in accordance with the terms of this Agreement.

Authorized Officer” shall mean:

(a) with respect to the Transferor, any officer of the Transferor who is identified on the list of Authorized Officers, containing the specimen signature of each such Person, delivered by the Transferor to the Administrative Agent on the Original Closing Date (as such list may be modified or supplemented from time to time thereafter); and

(b) with respect to the Finco, any officer of the Finco who is identified on the list of Authorized Officers, containing the specimen signature of each such Person, delivered by the Servicer to the Administrative Agent on the Original Closing Date (as such list may be modified or supplemented from time to time thereafter).

Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union (establishing a framework for the recovery and resolution of credit institutions and investment firms), the relevant implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-in Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

 

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Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that (a) in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time and (b) in the case of a “group” pursuant to Rule 13d-5(b)(1) of the Exchange Act which group includes one or more Permitted Holders (or one or more Permitted Holders is deemed to share Beneficial Ownership with one or more other persons of any shares of Capital Stock), (i) such “group” shall be deemed not to have Beneficial Ownership of any shares held by such Permitted Holder and (ii) any person (other than such Permitted Holder) that is a member of such group (or sharing such Beneficial Ownership) shall be deemed not to have Beneficial Ownership of any shares held by such Permitted Holder (or in which any such Person shares beneficial ownership). The term “Beneficial Ownership” has a corresponding meaning.

Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation, which certification, if applicable, shall be substantially similar in form and substance to the form of Certification Regarding Beneficial Owners of Legal Entity Customers published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities Industry and Financial Markets Association.

Beneficial Ownership Exemption Certification” means a Certification of Exemption from Beneficial Owner(s) Information Collection, in a form as provided by one or more Funding Agents, delivered on the 2018 Amendment Closing Date in connection with exemption from reporting under the Beneficial Ownership Regulation.

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

Board of Directors” means (a) with respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board; (b) with respect to a partnership, the Board of Directors of the general partner of the partnership; (c) with respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and (d) with respect to any other Person, the board or committee of such Person serving a similar function.

Business Day” shall mean any day other than a Saturday, Sunday or other day on which banking institutions or trust companies in the State of New York generally or The City of New York or the city of Seattle, Washington are authorized or obligated by law, regulation, executive order or governmental decree to be closed.

Cap Counterparty” shall mean any entity which has entered into an Eligible Interest Rate Cap with the Transferor.

Capital Stock” means:

(a) in the case of a corporation, corporate stock;

 

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(b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(c) in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests, respectively; and

(d) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.

Cash Purchase Price” shall have the meaning specified in Section 2.1(b)(i).

Change of Control” means the occurrence of any of the following: (a) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of TMUSA and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d) of the Exchange Act) other than any such disposition to a Subsidiary or a Permitted Holder; (b) the adoption of a plan relating to the liquidation or dissolution of TMUSA; (c) the consummation of any transaction (including any merger or consolidation), the result of which is that any “person” (as defined above), other than a Permitted Holder, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Shares of TMUS (or its successor by merger, consolidation or purchase of all or substantially all of its assets or its equity), measured by voting power rather than number of shares; or (d) TMUSA ceases to be a direct or indirect Wholly Owned Subsidiary of TMUS.

Change of Control Triggering Event” means the occurrence of a Change of Control:

(a)(i) that is accompanied or followed by a downgrade by one or more gradations (including gradations within ratings categories as well as between ratings categories) or withdrawal of the rating of any series of Senior Notes of TMUSA within the Ratings Decline Period by at least two out of the three Rating Agencies and (ii) the rating of any series of Senior Notes of TMUSA on any day during such Ratings Decline Period is below the rating by each such Rating Agency in effect immediately preceding the first public announcement of the Change of Control (or occurrence thereof if such Change of Control occurs prior to public announcement), provided that in making the relevant decision(s) referred to above to downgrade or withdraw such ratings, as applicable, the relevant Rating Agency announces publicly or confirms in writing during such Ratings Decline Period that such decision(s) resulted, in whole or in part, from the occurrence (or expected occurrence) of such Change of Control or the announcement of the intention to effect such Change of Control; provided, further that no Change of Control Triggering Event shall be deemed to occur if at the time of the applicable downgrade the rating of any series of Senior Notes of TMUSA by at least two out of the three Rating Agencies is investment grade; or

 

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(b) as to which the Administrative Agent has not had the opportunity to complete a satisfactory “know your client” review process; or

(c) which results in TMUS or any of its Affiliates being classified as a Sanctioned Person; or

(d) as to which, at the time of the Change of Control, each of the legal opinions in connection with this Agreement and the Performance Guaranty which were delivered on the 2018 Amendment Closing Date, has not been, upon request, timely re-issued in form and substance reasonably satisfactory to the Administrative Agent and its counsel.

Change of Responsibility Receivable” shall mean a Transferred Receivable where, in accordance with the Credit and Collection Policies, the related Obligor requests that the responsibility for payment obligations under the related Credit Agreement be transferred to a new transferee Obligor (which new Obligor may have a different credit profile than the transferring Obligor and will be evaluated by the Servicer at such time in accordance with the Credit and Collection Policies), and such change in responsibility request is accepted by Finco or any of its Affiliates without payment in full of all amounts owing under the related Credit Agreement.

Code” shall mean the Internal Revenue Code of 1986 and, unless otherwise specified herein, shall include all amendments, modifications and supplements thereto from time to time.

Collection Account” shall mean the Collection Account established and maintained pursuant to Section 6.5(i). As of the date hereof, the Collection Account has been established at U.S. Bank National Association, as account number 153595425080 (ABA# 125000105).

Collection Period” shall mean, with respect to any Payment Date, and the related Determination Date, the calendar month ending immediately preceding such Payment Date.

Collections” shall mean, with respect to any Receivable, any payments (or equivalent) made by or on behalf of the related Obligor with respect to such Receivable, in the form of cash, checks, wire transfers, electronic transfers, ATM transfers or any other form of payment with respect to a Credit Agreement in effect from time to time and all other amounts specified by this Agreement as constituting Collections, and any other cash proceeds of such Receivable, including Recoveries and cash proceeds of Related Rights with respect to such Receivable, and amounts paid by the Transferor pursuant to Section 2.12, Section 2.15(a) or Section 2.15(d).

 

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Combined Business Day” shall mean any day that is both (i) a Business Day and (ii) so long as Helaba is a Committed Purchaser hereunder, any day other than a Saturday, Sunday or other day on which banking institutions or trust companies in the city of Frankfurt am Main, Germany, are authorized or obligated by law, regulation, executive order or governmental decree to be closed.

Commercial Paper” shall mean the short-term promissory notes of each Conduit Purchaser issued by such Conduit Purchaser in the United States commercial paper market.

Commercial Paper Rate” shall mean, for any Accrual Period (or portion thereof): (i) with respect to the Old Line Owners, clause (A) of the definition of the Old Line Funding Rate; (ii) with respect to the Gotham Owners, clause (A) of the definition of the Gotham Funding Rate; (iii) with respect to the Starbird Owners, the Starbird Funding Rate; and (iv) with respect to any other Owner in an Ownership Group that includes one or more Conduit Purchasers that becomes a party to this Agreement from time to time, the amount specified (and agreed to by the Transferor) in the related Assignment and Assumption Agreement.

Committed Purchaser” shall mean (A) with respect to each Conduit Purchaser, each Person identified from time to time as a “Committed Purchaser” on Schedule I hereto in the description of the Ownership Group of such Conduit Purchaser and (B) Helaba. For the avoidance of doubt, (x) one identified Person may act as the Committed Purchaser with respect to itself, as a Conduit Purchaser and (y) notwithstanding anything to the contrary contained or implied herein, Helaba shall not have a related Conduit Purchaser.

Comparable Transaction” shall have the meaning specified in Section 3.9(i).

Complete Servicing Transfer” shall have the meaning specified in Section 6.6(a).

Conduit Purchaser” shall mean (i) each Person identified from time to time as a “Conduit Purchaser” on Schedule I hereto which, in the ordinary course of its business, issues Commercial Paper, the proceeds of which Commercial Paper are used by such Conduit Purchaser to acquire and maintain its Net Investment (and increases therein) and its undivided interest in the Transferred Assets, and (ii) each successor to or assignee of any Person described in preceding clause (i) that is (x) administered by the same Funding Agent (or an Affiliate of such Funding Agent) that administers such Person described in preceding clause (i), or (y) provided with a funding commitment and/or liquidity support by the same Committed Purchaser and/or Conduit Support Provider that provides a funding commitment and/or liquidity support to such Person described in preceding clause (i) and, in the case of this clause (ii), that is a receivables investment company which, in the ordinary course of its business, issues commercial paper or other securities (or otherwise obtains proceeds from the issuance of commercial paper or other securities) to fund its acquisition and maintenance of receivables (or interests therein). For the avoidance of doubt, one identified Person may act as a Conduit Purchaser and as a Committed Purchaser.

 

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Conduit Purchaser Rating Agency” shall mean, at any time, any nationally recognized statistical rating organization which assigns a rating to any Conduit Purchaser’s Commercial Paper.

Conduit Support Document” shall mean, with respect to any Conduit Purchaser, any agreement entered into by the applicable Conduit Support Provider providing for the issuance of one or more letters of credit for the account of such Conduit Purchaser, the issuance of one or more surety bonds for which such Conduit Purchaser is obligated to reimburse the applicable Conduit Support Provider for any drawings thereunder, the sale by such Conduit Purchaser to any Conduit Support Provider of the Transferred Assets (or any portion thereof) and/or the making of loans and/or other extensions of credit to such Conduit Purchaser in connection with such Conduit Purchaser’s securitization program (whether for liquidity or credit enhancement support), together with any letter of credit, surety bond or other instrument issued thereunder, including, without limitation of the foregoing, a liquidity asset purchase agreement related to the Transferred Assets.

Conduit Support Provider” shall mean, with respect to any Conduit Purchaser, any Person now or hereafter extending credit, or having a commitment to extend credit to or for the account of, or to make purchases from, such Conduit Purchaser or issuing a letter of credit, surety bond or other instrument to support any obligations arising under or in connection with such Conduit Purchaser’s securitization program.

Confidential Information” shall have the meaning specified in Section 9.8(a).

Consolidated Debt” shall mean, as of any date of determination, for TMUS and its consolidated Subsidiaries, an amount equal to (a) the amount of long-term debt, plus (b) the amount of short-term debt, minus (c) cash and cash equivalents, each as of the end of the preceding calendar quarter, each as determined in accordance with GAAP and shown in the consolidated balance sheets of TMUS as of such date.

Consolidated EBITDA” shall mean an amount equal to the Consolidated Net Income for such period plus (a) each of the following to the extent deducted in calculating such Consolidated Net Income: (i) interest expense (net of interest income) payable by TMUS and its Subsidiaries for such period, (ii) the provision for Federal, state, local and foreign income taxes payable (including those deferred) by TMUS and its Subsidiaries for such period, (iii) depreciation and amortization expenses of TMUS and its Subsidiaries for such period, (iv) other deducted income and expenses, (v) expenses constituting stock-based compensation and (vi) other non-recurring expenses of TMUS and its Subsidiaries reducing such Consolidated Net Income which are not reflective of ongoing operations.

Consolidated Equity Ratio” shall mean, as of any date of determination, a fraction, expressed as a percentage, the numerator of which is (a) Consolidated Shareholders’ Equity and the denominator of which is (b) Consolidated Total Assets.

 

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Consolidated Leverage Ratio” shall mean, as of any date of determination, a fraction, expressed as a percentage, the numerator of which is (a) Consolidated Debt as of such date and the denominator of which is (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended.

Consolidated Net Income” shall mean, for any fiscal quarter for TMUS and its consolidated Subsidiaries, the net income of TMUS and its consolidated Subsidiaries as of the end of such fiscal quarter, determined in the accordance with GAAP and shown in the consolidated statements of income of TMUS and its consolidated Subsidiaries for such date.

Consolidated Shareholders’ Equity” shall mean, as of any date of determination, the stockholders’ equity of TMUS and its consolidated Subsidiaries on a consolidated basis as of the end of the prior calendar quarter determined in accordance with GAAP and shown in the consolidated balance sheets of TMUS as of such date.

Consolidated Total Assets” shall mean, as of any date of determination, the total assets of TMUS and its consolidated Subsidiaries on a consolidated basis as of the end of the prior calendar quarter, determined in accordance with GAAP and shown in the consolidated balance sheets of TMUS as of such date.

Contract Financing Rate” shall mean, with respect to any Transferred Receivable, the annualized percentage rate of finance charges applicable to the related Credit Agreement at the time of origination, if applicable.

Control” shall have the meaning specified in Section 9-104 or 9-106 (or other applicable section of similar content) of the Relevant UCC, as applicable.

Control Agreement” shall mean the Blocked Account Control Agreement, dated as of November 18, 2015, among the Transferor, the Servicer, the Administrative Agent, as secured party, and the Account Bank, and any future agreement among the Transferor, the Servicer, the Administrative Agent and any bank or other financial institution at which the Collection Account subject to the Control Agreement is maintained, as any of the same may be modified, supplemented, amended or amended and restated from time to time.

“COVID Covered Period” shall mean the period from April 30, 2020 through October 1, 2020; provided that, so long as no Termination Event, Amortization Event or Asset Base Deficiency has occurred and is continuing, the Transferor may, one-time only and with the prior written consent of the Administrative Agent and Funding Agents representing Ownership Groups having in the aggregate at such time Ownership Group Percentages greater than 50%, extend such period by sixty-one calendar days (or, if such day is not a Business Day, the immediately following Business Day).

“COVID Deferral Period” shall mean, with respect to any COVID Deferring Receivable, the period from and including the first day of the Collection Period during which the first payment that would have otherwise been due on such COVID Deferring Receivable is deferred pursuant to the terms of the COVID Deferral Program through the last day of the Collection Period during which the last payment that would have otherwise been due on such COVID Deferring Receivable is deferred pursuant to the terms of the COVID Deferral Program.

 

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“COVID Deferral Program” shall mean a program, in accordance with the Credit and Collection Policies, whereby, with respect to any Transferred Receivable, an Obligor affected by the COVID-19 pandemic may elect, during the COVID Covered Period, to have his or her payment obligations under the related Credit Agreement deferred or collection efforts with respect thereto forborne, in each case, during an agreed COVID Deferral Period, and subsequently paid in one or more installments either on one or more of the remaining payment dates under such Credit Agreement occurring after the end of such COVID Deferral Period (in addition to amounts otherwise owing on such payment dates) or on one or more additional payment dates occurring subsequent to the original payment dates under such Credit Agreement.

“COVID Deferring Receivable” shall mean any Transferred Receivable (i) that is not an EPS Receivable and (ii) with respect to which (x) the related Obligor has elected, during the COVID Covered Period, to participate in the COVID Deferral Program and (y) the COVID Deferral Period applied to such Transferred Receivable has not yet ended. For the avoidance of doubt, a Transferred Receivable shall only constitute a COVID Deferring Receivable from and including the first day of the related COVID Deferral Period through and including the last day of the related COVID Deferral Period.

Credit Agreement” shall mean, with respect to a Receivable, the unsecured retail equipment installment plan sales contract related to a handset device, a Smart Watch and/or one or more Accessories, along with the agreements between Finco or another Subsidiary of TMUS and the related Obligor governing the terms and conditions of such contract, as such agreements may be amended, modified or otherwise changed from time to time.

Credit and Collection Policies” shall mean, with respect to the Receivables and Related Rights, those policies and procedures of Finco (or one of its Affiliates) relating to the operation of its unsecured retail equipment installment plan sales contract financing business, including the established policies and procedures for determining the creditworthiness of sales contract customers, and relating to the origination, underwriting, servicing, administration, and maintenance of and collection of unsecured retail equipment installment plan sales contract receivables, as in effect on the date hereof, as such policies and procedures may be amended, modified, or otherwise changed from time to time subject to the terms of Section 3.7(t).

Credit and Collection Policies Log” shall have the meaning specified in Section 3.7(t)(ii).

Cross Currency Margin” shall have the meaning specified in the Transaction Fee Letter.

CRR Cost” shall have the meaning specified in Section 3.7(jj)(iv).

 

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Daily Receivables File” shall mean, with respect to each Addition Date, the applicable schedule identifying each Additional Receivable sold by the Transferor to the Administrative Agent (for the benefit of the Owners) pursuant to this Agreement on each such Addition Date, which schedule shall be electronically signed by the Transferor and shall constitute a security agreement, each of which shall be incorporated into this Agreement and which shall be in the form of Exhibit B hereto.

Date of Processing” shall mean, with respect to any transaction or receipt of Collections, the date on which such transaction is first recorded on the Servicer’s computer systems, which recording or processing shall not be delayed as a result of negligence or intentional delay on the part of the Servicer, unless such delay was in connection with regular systems updates or routine maintenance to the Servicer’s computer systems.

Debt” of any Person shall mean, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (iii) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person (other than customary reservations or retentions of title under agreements with suppliers entered into in the ordinary course of business), (iv) all obligations of such Person issued or assumed as the deferred purchase price of property or services purchased by such Person (other than trade debt incurred in the ordinary course of business and due within twelve months of the incurrence thereof) which would appear as liabilities on a balance sheet of such Person, (v) all obligations of such Person under take-or-pay or similar arrangements or under commodities agreements, (vi) all indebtedness of others secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on, or payable out of the proceeds of production from, property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed; provided that for purposes hereof the amount of such indebtedness shall be limited to the greater of (A) the amount of such indebtedness as to which there is recourse to such Person and (B) the fair market value of the property which is subject to the Lien, (vii) all guarantees of such Person, (viii) the principal portion of all obligations of such Person under capitalized leases, (ix) all obligations of such Person in respect of interest rate protection agreements, foreign currency exchange agreements, commodity purchase or option agreements or other interest or exchange rate or commodity price hedging agreements, (x) the maximum amount of all standby letters of credit issued or bankers’ acceptances facilities created for the account of such Person and, without duplication, all drafts drawn thereunder (to the extent unreimbursed), (xi) all preferred stock issued by such Person and required by the terms thereof to be redeemed, or for which mandatory sinking fund payments are due by a fixed date, and (xii) the principal balance outstanding under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product to which such Person is a party, where such transaction is considered borrowed money indebtedness for tax purposes. The Debt of any Person shall include the indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer, but only to the extent to which there is recourse to such Person for payment of such indebtedness.

 

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Default Rate” shall mean the rate specified as the “Default Rate” in the Transaction Fee Letter.

Default Ratio” shall mean, at the end of any Collection Period, the product of (a) 12 times (b) the quotient of (i) the aggregate of the Receivable Balances of the Transferred Receivables that (x) are not COVID Deferring Receivables (in each case, for the avoidance of doubt, solely during the related COVID Deferral Period) and (y) became Defaulted Receivables during the Collection Period over (ii) the Pool Balance at the beginning of the Collection Period.

Defaulted Receivable” shall have the meaning given to such term in Annex A hereto.

Defaulting Ownership Group” shall mean any Ownership Group which includes a Committed Purchaser that has (a) failed to make an Incremental Funding (or any portion thereof) within two (2) Combined Business Days of the date required to be made by it hereunder, (b) notified the Transferor or the Administrative Agent in writing that it does not intend to comply with any of its purchase or funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its purchase or funding obligations under this Agreement, (c) failed, within two (2) Combined Business Days after request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to make prospective Incremental Fundings, (d) otherwise failed to pay over to the Administrative Agent, its related Funding Agent or any other Owner in its Ownership Group any other amount required to be paid by it hereunder within two (2) Combined Business Days of the date when due, unless the subject of a good faith dispute, or (e) become the subject of (i) a bankruptcy, insolvency or similar proceeding, or has had a receiver, conservator, trustee or custodian appointed for it or (ii) a Bail-In Action.

Deferred Purchase Price” shall mean all amounts received with respect to the Transferred Receivables and Related Rights other than (i) amounts payable to the Administrative Agent (for the benefit of the Owners) and the Owners and (ii) fees, indemnities, and expenses payable hereunder (after application of amounts received from the Eligible Interest Rate Cap(s)).

Delayed Amount” shall have the meaning specified in Section 2.2(c)(i).

Delayed Purchase Date” shall have the meaning specified in Section 2.2(c)(i).

Delayed Purchase Notice” shall have the meaning specified in Section 2.2(c)(i).

Delaying Ownership Group” shall have the meaning specified in Section 2.2(c)(i).

Delaying Purchaser” shall have the meaning specified in Section 2.2(c)(i).

Delinquency Ratio” shall have the meaning specified in Annex A hereto.

 

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Delinquent Receivable” shall have the meaning specified in Annex A hereto.

Designated Email Address” shall mean an email address specified on Schedule V hereto, and such other email addresses of representatives of Finco or the Transferor as may be provided to the Administrative Agent from time to time in connection with the delivery of Daily Receivables Files and Receivables Schedules.

Determination Date” shall mean, with respect to any Payment Date, the fourth (4th) Combined Business Day prior to such Payment Date.

Deutsche Telekom” shall mean Deutsche Telekom AG, a public law corporation incorporated under the laws of Germany.

Dilution” shall mean, with respect to any Receivable, the aggregate amount of any reductions or adjustments in the Principal Balance of such Receivable as a result of any defective, rejected, returned, repossessed or foreclosed goods or any credit, rebate, sales allowance, discount or other adjustment or setoff (including any reduction in the Principal Balance of such Receivable as a result of a portion of such Receivable becoming an EPS Receivable); provided that any adjustment in the Principal Balance of any Eligible Jump Receivable shall be excluded.; and, provided further, that, for the avoidance of doubt, no payment deferral pursuant to the COVID Deferral Program with respect to any COVID Deferring Receivable during the COVID Deferral Period related thereto shall be considered a Dilution.

Dilution Ratio” shall have the meaning given to such term in Annex A hereto.

Discount Percentage” shall mean the sum of (i) the Servicing Fee Rate, (ii) the Program Fee, (iii) the Required Hedge Rate, (iv) 0.60%, and (v)(a) the Cross Currency Margin multiplied by (b) a fraction, (x) the numerator of which is the Net Investment of Helaba, and (y) the denominator of which is the Aggregate Net Investment.

Dollars” or “$” shall mean the lawful currency of the United States of America.

Due Date” shall mean, with respect to any Receivable, any date on which such Receivable becomes due and payable pursuant to the corresponding Invoice.

Early Collection Fee” shall mean, for any Tranche Period during which the Net Investment for any Owner allocated to such Tranche Period is reduced, or which is terminated prior to the end of the period for which it was originally scheduled to last (the amount of such reduction or, in the case of a termination of a Tranche Period, the amount of the Net Investment allocated to such Tranche Period being herein referred to as the “Allocated Amount”), the excess, if any, of (i) the Yield that would have accrued during the remainder of such Tranche Period subsequent to the date of such reduction or termination on the Allocated Amount if such reduction or termination had not occurred over (ii) the sum of (A) to the extent the Allocated Amount is allocated to another Tranche Period for the applicable Owner, the Yield actually accrued on the portion of Allocated Amount so allocated during the remainder of such Tranche Period, and (B) to the extent the Allocated Amount is not allocated to another Tranche Period for the applicable Owner, the income, if any, actually received by the applicable Owner from investing the portion of the Allocated Amount not so allocated.

 

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EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Eligible Account” shall mean a depositary account which is either (i) a segregated trust account with the trust department of a depository institution organized under the laws of the United States of America or any State thereof or the District of Columbia (or any domestic branch of a foreign bank), having a long-term deposit rating of at least A2 by Moody’s, having trust powers and acting as trustee for funds deposited in such account or (ii) a segregated account with a depository institution organized under the laws of the United States of America or any State thereof (or any United States branch of a foreign bank) the long-term deposit obligations of which are rated Aa3 or higher by Moody’s or the short-term debt obligations of which are rated at least “A-1” by S&P and “P-1” by Moody’s.

Eligible Cap Counterparty” shall mean (i) a Person with commercial paper or short-term deposit ratings which are equal to “A-1” or higher by S&P and “P-1” by Moody’s on such date, (ii) if a Person does not have a commercial paper or short-term deposit rating on such date, such Person has unsecured debt obligations which are rated at least “A-” by S&P and “A3” by Moody’s, and (iii) in the case of either (i) or (ii), such Person is not on negative watch for downgrade.

Eligible Interest Rate Cap” shall mean an interest rate cap agreement in substantively the form of Exhibit C attached hereto, entered into between the Transferor and an Eligible Cap Counterparty for the benefit of the Owners, as the same may be modified, supplemented, amended or amended and restated from time to time in accordance with the terms thereof, including by the addition of any credit support agreement in connection therewith.

 

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Eligible Jump Receivable” shall mean each Receivable that has a Jump Contract associated therewith and as of any date of determination:

(a) the Jump Contract Feature has not yet been exercised by the related Obligor;

(b) upon exercise by the Obligor of the Jump Contract Feature, the Jump Contract Payment Right will become due and owing and such Jump Contract Payment Right has been assigned to the Administrative Agent (for the benefit of the Owners); and

(c) the related Jump Contract allows TMUS or its Affiliates to cancel the Obligor’s participation in the related upgrade program at any time at TMUS’s or its Affiliates’ sole discretion.

Eligible Receivable” shall mean any Receivable, which (i) in the case of the Initial Receivables, as of the Original Closing Date, and, (ii) in the case of any Additional Receivable, as of the applicable Addition Date, meets the following criteria:

(a) is payable in United States dollars;

(b) has an Obligor who (i) has provided, as his or her most recent billing address, an address located in the United States or a military address and (ii) is not identified by Finco in its computer files as being the subject of a voluntary or involuntary bankruptcy proceeding;

(c) is not a COVID Deferring Receivable (solely during the COVID Deferral Period related thereto), a Defaulted Receivable or Delinquent Receivable;

(d) to Finco’s knowledge, such Receivable was not originated through fraud on the part of the related Obligor;

(e) does not give rise to any claim against any government agency, including, without limitation, the United States or any state thereof, or any agency, instrumentality, or department thereof;

(f) (i) has an original term of 25 months or less if it relates to an Accessory or Smart Watch; or (ii) has an original term of 37 months or less if it relates to a handset device;

(g) the sale, assignment or transfer of such Receivable by Finco does not require any consent or approval by the related Obligor;

(h) has an Obligor who is not an Affiliate of Finco or any governmental authority;

(i) (i) for a Receivable relating to a Credit Agreement with a new Obligor (i.e., an Obligor Tenure of “0”), the later of the following two events has occurred: (A) thirty (30) days have passed since the date of execution of such Credit Agreement, and (B) after the first Scheduled Payment is made with respect to the related Credit Agreement, and (ii) for a Receivable relating to any Credit Agreement other than as described in clause (i) above, at least thirty (30) days have passed since the date of execution of such Credit Agreement;

 

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(j) has, or in the case of an Accessory Receivable, its related billing account number has, a Credit Agreement that relates to a service agreement for airtime service provided by an Affiliate of the Servicer, a termination of which service agreement by the related Obligor causes acceleration of amounts due under the Credit Agreement;

(k) is either an Eligible Jump Receivable or a Receivable unrelated to a Jump Contract;

(l) was created in compliance in all material respects with Finco’s Credit and Collection Policies and all Requirements of Law applicable to Finco and pursuant to a Credit Agreement which complies with all Requirements of Law applicable to Finco;

(m) with respect to which all material consents, licenses, approvals or authorizations of, or registrations or declarations with, any governmental authority required to be obtained, effected or given by Finco in connection with the creation of such Receivable or the execution, delivery and performance by Finco of its obligations, if any, under the related Credit Agreement have been duly obtained, effected or given and are in full force and effect;

(n) at the time of sale of such Receivable to the Transferor under the Sale Agreement, Finco has good and marketable title thereto and which itself is free and clear of all liens;

(o) each of such Receivable, and the related Credit Agreement, constitutes a legal, valid and binding payment obligation of the Obligor thereon, enforceable against such Obligor in accordance with its terms, except as such enforceability may be limited by applicable debtor relief laws and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity);

(p) constitutes an “account,” a “general intangible,” a “payment intangible,” or “chattel paper” as defined in Article 9 of the UCC as then in effect in the State of Delaware and the State of New York;

(q) at the time of its sale to the Transferor under the Sale Agreement, has not been waived or modified except as permitted in accordance with the Credit and Collection Policies and which waiver or modification is reflected in Finco’s computer file of retail equipment installment sales contracts at the time of its sale to the Transferor;

(r) at the time of its sale to the Transferor under the Sale Agreement, is not subject to any right of rescission, setoff, counterclaim or any other defense (including the defenses arising out of violations of usury laws), other than defenses arising out of applicable debtor relief laws or other similar laws affecting the enforcement of creditors’ rights in general and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity);

(s) at the time of its sale to the Transferor under the Sale Agreement, Finco has not taken any action which would impair, or omitted to take any action the omission of which would impair, the rights of the Transferor therein;

 

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(t) at the time of its sale to the Transferor under the Sale Agreement, Finco has satisfied and fully performed all of its obligations under the related Credit Agreement;

(u) the related handset device or Smart Watch or Accessory, to the extent applicable has no material defects (including, without limitation, material defects for which any credit, rebate or reduction will be given with respect to such Receivables) which would entitle the Obligor to refuse to pay such Receivable or which would otherwise prevent the operation of such handset device, Smart Watch or Accessory; and

(v) is not a Malbec Receivable or a No-Service Receivable.

Eligible Servicer” shall mean an entity which, at the time of its appointment as Servicer, (a) is legally qualified and has the capacity to service the Receivables, (b) has demonstrated the ability to service professionally and competently a portfolio of similar receivables in accordance with market standards of skill and care, (c) is qualified to use the software that is then being used to service the Receivables or obtains the right to use or has its own software which is adequate to perform its duties under this Agreement, and (d)(i) with respect to an entity that is not an Affiliate of Finco, has a net worth of at least $50,000,000 as of the end of its most recent fiscal quarter, or (ii) is an Affiliate of Finco whose servicing activities as Servicer under this Agreement and the Related Documents are guaranteed by the Guarantor under the Performance Guaranty.

EPS Program” shall mean a program, in accordance with the Credit and Collection Policies, by which the Servicer may permit an Obligor who is delinquent on his or her payment obligations under a Credit Agreement to be made current on delinquent amounts under his or her Credit Agreement by application of a credit amount to the delinquent Receivable.

EPS Receivable” shall mean the amount of interest and principal credited on a Transferred Receivable where (a) the related Obligor is or has been past due on payment obligations, (b) the related Obligor requests or has requested that the Servicer allow him or her to be part of the EPS Program, and (c) such request is accepted by the Servicer and an amount credited on the Transferred Receivable.

ERISA” shall mean the United States Employee Retirement Income Security Act of 1974, as amended.

ERISA Group” shall mean all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Guarantors, are treated as a single employer under Section 414 of the Code.

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

EU Sanctions” shall mean economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the European Union.

 

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EU Securitisation Regulation” shall have the meaning specified in Section 3.7(jj)(i).

EU Securitisation Rules” means the EU Securitisation Regulation, as in effect and applicable on the 2020 Amendment Closing Date, together with any relevant regulatory and/or implementing technical standards adopted by the European Commission in relation thereto, any relevant regulatory and/or implementing technical standards applicable in relation thereto pursuant to any transitional arrangements made pursuant to the EU Securitisation Regulation, and, in each case, any relevant guidance published in relation thereto by the European Banking Authority or the European Securities and Markets Authority (or, in either case, any predecessor authority) or by the European Commission.

Eurodollar Rate” shall mean, with respect any Accrual Period or portion thereof, a rate per annum equal to the quotient (expressed as a percentage and rounded upwards, if necessary, to the nearest 1/16 of 1%) obtained by dividing (i) LIBOR for such Accrual Period by (ii) 100% minus the LIBOR Reserve Percentage for such Accrual Period, if any.

Eurodollar Spread Rate” shall mean, for any Ownership Group, the per annum rate specified as such in the Transaction Fee Letter.

Excess Concentrations” shall have the meaning specified in Annex A hereto.

Excess Funds” shall have the meaning specified in Section 9.11(a).

Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

Existing Agreement” shall have the meaning specified in the Recitals.

Excluded Taxes” shall have the meaning specified in Section 8.2(a).

Extending Purchaser” shall have the meaning specified in Section 2.17.

FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code (or any amended or successor version as described above), any intergovernmental agreement entered into in connection with such sections of the Code and any legislation, law, regulation or practice enacted or promulgated pursuant to such intergovernmental agreement.

Federal Bankruptcy Code” shall mean the Bankruptcy Code of the United States of America.

 

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Federal Funds Effective Rate” shall mean, on any day with respect to any Ownership Group, the rate 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, as published for such day (or, if such day is not a Business Day, for the preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average of the quotations for such day for such transactions received by the related Funding Agent from three federal funds brokers of recognized standing selected by such Funding Agent.

Fee Letters” shall mean, collectively, (i) the Administrative Agent Fee Letter, and (ii) the Transaction Fee Letter.

Final Payment Date” shall mean the date that is thirty-six (36) months following the occurrence of the Scheduled Expiry Date, or such other date mutually agreed upon in writing by the parties hereto pursuant to the terms of this Agreement.

Financed Equipment” shall mean (i) an item of wireless handset equipment, (ii) a Smart Watch, and/or (iii) one or more Accessories, in each case which was purchased by an Obligor and financed by such Obligor pursuant to the terms of the related Credit Agreement.

Finco” shall mean T-Mobile Financial LLC, a Delaware limited liability company, and its successors.

Fitch” shall mean Fitch Inc. and its successors.

Framework Substitution Effective Date” shall mean any date designated by the Transferor in a written notice to the Administrative Agent, the Funding Agents and the Servicer as the date on and subsequent to which the Aggregate Advance Amount will no longer be calculated using the definitions in Part I of Annex A hereto and shall instead be calculated using the definitions in Part II of Annex A hereto; provided that such date may not be earlier than two (2) calendar days following the date of such written notice, unless the Administrative Agent and the Funding Agents consent in writing to an earlier date; provided further that such date may not be earlier than March 1, 2020.

Framework Substitution Outstanding Receivables” shall mean all outstanding Transferred Receivables as of the Framework Substitution Effective Date.

Funding Agent” shall mean, (A) with respect to each Conduit Purchaser, its related Committed Purchasers and Conduit Support Providers, the entity identified as such from time to time on Schedule I hereto, (B) with respect to Helaba, itself or, if different, the entity identified as such from time to time on Schedule I hereto, and (C) with respect to any other party, the Funding Agent specified in the applicable Assignment and Assumption Agreement.

Funding Date” shall mean the Original Closing Date, the 2016 Amendment Closing Date and each date on which an Incremental Funding is made.

Funding Notice” shall have the meaning specified in Section 2.2(b)(i).

 

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GAAP” shall mean generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board, the American Institute of Certified Public Accountants and the Financial Accounting Standards Board, consistently applied.

Gotham” shall mean Gotham Funding Corporation, a Delaware corporation, together with its successors and assigns.

Gotham Asset Purchase Agreement” shall mean the liquidity asset purchase agreement, dated as of July 15, 2016, among Gotham, the Gotham Funding Agent and each of the Gotham Purchasers signatory thereto, as the same may from time to time be amended, restated, supplemented or otherwise modified.

Gotham Funding Agent” shall mean the Funding Agent for the Gotham Owners identified on Schedule I hereto, together with its successors and assigns.

Gotham Funding Rate” shall mean:

(A) with respect to any Accrual Period, to the extent any Gotham Purchaser (or an Affiliate Conduit which is an assignee of Gotham) is funding the related Ownership Tranche during such Accrual Period through the issuance of commercial paper, the sum of (i)(x) unless the Gotham Funding Agent has determined that the Gotham Pooled CP Rate shall be applicable, a rate per annum equal to the rate per annum calculated by the Gotham Funding Agent to reflect Gotham’s (or such Affiliate Conduit’s) cost of funding such Ownership Tranche, taking into account the weighted daily average interest rate payable in respect of such commercial paper notes during such period (determined in the case of discount commercial paper notes by converting the discount to an interest bearing equivalent rate per annum), applicable placement fees and commissions, and such other costs and expenses as the Gotham Funding Agent in good faith deems appropriate, or (y) to the extent the Gotham Funding Agent has determined that the Gotham Pooled CP Rate shall be applicable, the Gotham Pooled CP Rate and (ii) the Program Fee; provided, however, that if any component of the rate determined pursuant to this clause (A) is a discount rate, in calculating the “Gotham Funding Rate” for such Accrual Period the Gotham Funding Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum; or

(B) to the extent that Gotham or any other Owner that is a member of its related Ownership Group is funding or maintaining any Net Investment (or portion thereof) other than through the issuance of Commercial Paper, a rate equal to the Liquidity Funding Rate for such Accrual Period or portion thereof;

provided, however, that if an Amortization Event has occurred and is continuing, then the Gotham Funding Rate shall be the rate determined pursuant to clause (A) or clause (B) above, as applicable, plus the Amortization Rate; provided further, that if a Termination Event has occurred and is continuing, then the Gotham Funding Rate shall be the rate determined pursuant to clause (A) or clause (B) above, as applicable, plus the Default Rate.

 

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Gotham Owners” shall mean the Gotham Funding Agent, Gotham, each assignee of Gotham which is an Affiliate Conduit and the Gotham Purchasers, and any assignee thereof chosen by the Gotham Funding Agent with the consent of the Transferor, which consent shall not be unreasonably withheld.

Gotham Pooled CP Rate” shall mean, for each day with respect to any Ownership Tranches as to which the Gotham Pooled CP Rate is applicable, the sum of (i) discount or yield accrued (including, without limitation, any associated with financing the discount or interest component on the roll-over of any Pooled Commercial Paper) on its Pooled Commercial Paper on such day, plus (ii) any and all accrued commissions in respect of its placement agents and commercial paper dealers, and issuing and paying agent fees incurred, in respect of such Pooled Commercial Paper for such day, plus (iii) other costs (including without limitation those associated with funding small or odd-lot amounts) with respect to all receivable purchase, credit and other investment facilities which are funded by the applicable Pooled Commercial Paper for such day. The Gotham Pooled CP Rate shall be determined by the Gotham Funding Agent, whose determination shall be conclusive. As used in this definition, “Pooled Commercial Paper” means commercial paper notes of Gotham which are subject to any particular pooling arrangement, as determined by the Gotham Funding Agent (it being recognized that there may be more than one distinct groups of Pooled Commercial Paper at any time).

Gotham Purchasers” shall mean each of the purchasers party to the Gotham Asset Purchase Agreement and any other Conduit Support Provider related to Gotham.

Governmental Actions” shall mean any and all consents, approvals, permits, orders, authorizations, waivers, exceptions, variances, exemptions or licenses of, or registrations, declarations or filings with, any Governmental Authority required under any Governmental Rules.

Governmental Authority” shall mean the United States of America, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

Governmental Rules” shall mean any and all laws, statutes, codes, rules, regulations, ordinances, orders, writs, decrees and injunctions, of any Governmental Authority and any and all legally binding conditions, standards, prohibitions, requirements and judgments of any Governmental Authority.

Group ID” shall have the meaning given to such term in Annex A hereto.

Grouping Summary” shall have the meaning given to such term in Annex A hereto.

 

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Guarantor” means TMUS and TMUSA, jointly and severally, and in the future, any other Person acting as guarantor pursuant to a Performance Guaranty.

Hedging Requirements” shall mean the requirements contained in Exhibit D.

Helaba” shall mean Landesbank Hessen-Thüringen, a public law company incorporated under the laws of Germany.

Helaba Funding Agent” shall mean the Funding Agent for the Helaba Owners identified on Schedule I hereto, together with its successors and assigns.

Helaba Funding Rate” shall mean for any Accrual Period or portion thereof, a rate calculated in good faith by Helaba and notified by Helaba to the Transferor and the Servicer prior to each Payment Date in accordance with Section 2.8(c), equal to (A) at any time prior to the Helaba LIBOR Election Date, the sum of (i) Helaba’s Cost of Funds Rate and (ii) the Program Fee, and (B) on and after the Helaba LIBOR Election Date, the Helaba Benchmark Funding Rate; provided in each case, however, that (1) if an Amortization Event has occurred and is continuing, then the Helaba Funding Rate shall be such rate plus the Amortization Rate, and (2) if a Termination Event has occurred and is continuing, then the Helaba Funding Rate shall be such rate plus the Default Rate.

Helaba Benchmark Funding Rate” shall mean, for any Accrual Period or portion thereof, (i) LIBOR plus (ii) the Program Fee; provided, however, that if (I) Helaba determines that LIBOR cannot be determined for any reason, including the unavailability of rate bids or the general unavailability of the London interbank market for U.S. Dollar borrowings, to fund Helaba’s Net Investment for any Accrual Period (or portion thereof), or (ii) Helaba determines that it would be contrary to law or to the directive of any central bank or other Governmental Authority to obtain U.S. Dollars in the London interbank market to fund or maintain its Net Investment for any Accrual Period (or portion thereof), or (iii) Helaba advises the Transferor that LIBOR will not adequately and fairly reflect Helaba’s cost of funding its Net Investment based on the Helaba Benchmark Funding Rate, or (iv) such funding occurs without two (2) London Business Days’ notice to Helaba, or (v) a funding by Helaba occurs on a date other than an Addition Date, then in each case for the period commencing on the date of such funding and ending on the date immediately preceding the first day of the next succeeding Accrual Period, the Helaba Benchmark Funding Rate for such Accrual Period or portion thereof shall be the greater of (I) the sum of (A) the Federal Funds Effective Rate for each day in such Accrual Period or portion thereof plus (B) 0.50% plus (C) the Program Fee, and (II) the applicable Prime Rate plus the Program Fee for each day in such Accrual Period or portion thereof.

Helaba LIBOR Election Date” shall have the meaning specified in Section 2.8(h).

 

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Helaba’s Cost of Funds Rate” shall mean, with respect to any day during any Accrual Period, the rate per annum, calculated in good faith by Helaba, which reflects the Helaba Owners’ cost of funding their Net Investment, taking into account such costs and expenses related thereto as Helaba shall determine to be appropriate, and as notified by Helaba to the Transferor and the Servicer on the Combined Business Day prior to each Payment Date (beginning with the December 2018 Payment Date) on which the Helaba Funding Rate shall be based on Helaba’s Cost of Funds Rate.

Helaba Owners” shall mean the Helaba Funding Agent and Helaba.

Imminent Written-Off Receivable” shall have the meaning specified in Section 2.13(a).

Incremental Funding” shall mean an increase in the Aggregate Net Investment of the Owners made pursuant to Section 2.2.

Indemnified Amounts” shall have the meaning specified in Section 8.1(a).

Indemnified Party” shall have the meaning specified in Section 8.2(a).

Independent Director” shall mean a member of the board of directors or managers of the Transferor who (i) shall not have been at the time of such Person’s appointment or at any time during the preceding five years, and shall not be as long as such Person is a director or manager of the Transferor, (A) a director, officer, employee, partner, shareholder, member, manager or Affiliate of any of the Independent Parties, (B) a supplier to any of the Independent Parties (provided that a provider of registered agent for process services shall not be deemed a supplier), (C) a Person controlling or under common control with any partner, shareholder, member, manager, Affiliate or supplier of any of the Independent Parties (provided that a provider of registered agent for process services shall not be deemed a supplier), or (D) a member of the immediate family of any director, officer, employee, partner, shareholder, member, manager, Affiliate or supplier of any of the Independent Parties (provided that a provider of registered agent for process services shall not be deemed a supplier); (ii) has prior experience as an independent director for a corporation or limited liability company whose charter documents required the unanimous consent of all independent directors thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (iii) has at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities; provided, however, that the foregoing shall not prohibit a Person from serving as an Independent Director of the Transferor who acts as an “Independent Director” or “Independent Member” or in a similar capacity for an Affiliate of the Transferor which is organized as a bankruptcy remote, special purpose entity.

Independent Parties” shall mean, collectively, the Transferor, Finco, the Servicer or any of their respective Subsidiaries or Affiliates (other than the Transferor).

Ineligible Receivables” shall have the meaning specified in Section 2.12(b).

 

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Initial Cash Purchase Price” shall mean the portion of the Initial Purchase Price representing the Cash Purchase Price for such Initial Receivables hereunder.

Initial Cut-off Date” shall mean 11:45 p.m. (Pacific time) on November 15, 2015.

Initial Purchase Price” shall mean the amount paid to the Transferor for the Initial Receivables sold hereunder on the Original Closing Date, which amount shall be equal to the sum of (a) $800,000,000 (representing the Cash Purchase Price for such Initial Receivables hereunder) and (b) the Deferred Purchase Price.

Initial Receivables” shall mean the Receivables transferred by Finco to the Transferor on the Original Closing Date pursuant to the Sale Agreement and sold by the Transferor to the Administrative Agent (for the benefit of the Owners) hereunder.

Insolvency Event” shall mean, with respect to a specified Person, (a) such Person shall file a petition commencing a voluntary case under any chapter of the federal bankruptcy laws; or such Person shall file a petition or answer or consent seeking reorganization, arrangement, adjustment, or composition under any other similar Insolvency Law, or shall consent to the filing of any such petition, answer, or consent; or such Person shall appoint, or consent to the appointment of, a custodian, receiver, liquidator, trustee, assignee, sequestrator or other similar official in bankruptcy or insolvency of it or of any substantial part of its property; such Person shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due; or (b) the commencement by a court having jurisdiction in the premises of an involuntary action seeking: (i) a decree or order for relief in respect of such Person in a case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, (ii) the appointment of a custodian, receiver, liquidator, conservator, assignee, trustee, sequestrator, or other similar official of such Person or (iii) the winding up or liquidation of the affairs of such Person, and notwithstanding the objection by such Person, any such action shall have remained undischarged or unstayed for a period of sixty (60) consecutive days or any order or decree providing the sought after relief, remedy or other action shall have been entered.

Insolvency Law” shall mean the Bankruptcy Code and any other applicable federal or state bankruptcy, insolvency or other similar law.

Inspection” shall have the meaning specified in Section 6.2(a).

Investment Company Act” shall have the meaning specified in Section 3.1(i).

Investment Reduction Amount” shall have the meaning specified in Section 2.8(e)(i).

Investment Reduction Notice” shall have the meaning specified in Section 2.8(e)(i).

 

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Invoice” shall mean, with respect to any Receivable, the monthly bill related to such Receivable issued by or on behalf of the Servicer to the related Obligor.

Jump Contract” shall mean with respect to a Receivable and the related Credit Agreement (a) a program that provides the related Obligor with the option to upgrade such Obligor’s handset device prior to the completion of the term of the original Credit Agreement and prior to the payment by such Obligor of the amount owing under the related Credit Agreement; (b) under which, in connection with exercising the option, such Obligor will be required to pay (or have previously paid) at least the minimum amount or percentage of the principal balance payable under the original Credit Agreement, as specified in the upgrade terms and conditions of the original Credit Agreement; and (c) upon exercise of the option, the Obligor under the original Credit Agreement will enter into a new Credit Agreement with Finco relating to a new handset device and the balance of the original Credit Agreement will be reduced to zero (subject to the maximum reimbursement amount specified in the related Credit Agreement or upgrade program terms and conditions).

Jump Contract Feature” shall mean the features described in items (a)-(c) set forth in the definition of “Jump Contract.”

Jump Contract Payment Right” shall mean, with respect to a Jump Contract, all rights to payment and amounts receivable relating to the exercise of the applicable Jump Contract Feature, where Finco or any other Person is obligated to pay off at least the full outstanding Principal Balance of the Receivable relating to the Jump Contract.

Jump Termination Date” has the meaning set forth in Section 2.15(b).

Jump Termination Event” shall mean the occurrence and continuance of any one of the following events:

(a) a Servicer Default; or

(b) TMUSA (or any of its Affiliates) terminates or transfers its respective obligations under, or amends the terms of the Jump Contract Feature or related program in a manner that would result in an Adverse Effect to the Administrative Agent or the Funding Agents without the prior written approval of the Required Owners; or

(c) an Insolvency Event with respect to TMUS or Finco (whether or not Finco shall then be the Servicer).

Jump Termination Notice” shall have the meaning specified in Section 2.15(b).

LIBOR” shall mean, with respect to any day during any Accrual Period, a rate determined at approximately 11:00 a.m. (London time) two London Business Days prior to the first day of such Accrual Period, equal to the interest rate per annum designated as LIBOR for the related Funding Agent (or its Affiliate) appearing on Reuters Screen LIBOR01 page on the Reuters Service (or such other page as may replace the LIBOR01 page on that service or such

 

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other service as may be nominated by the ICE Benchmark Administration (“ICE”) (or the successor thereto if ICE is no longer making LIBOR available), in each case, for the purpose of displaying London interbank offered rates of major banks) as the rate for U.S. Dollar deposits for a period comparable to such Accrual Period and in an amount comparable to the applicable portion of the Aggregate Net Investment to accrue interest by reference to such interest rate. In the event no rate is so posted, “LIBOR” shall mean the arithmetic average (rounded up to only four decimal places) of the rates per annum offered to the principal London office of the related Funding Agent (or if any Funding Agent does not maintain a London office, the principal London office of an Affiliate of such Funding Agent) by three (3) London banks, selected by the Funding Agent in good faith, for U.S. Dollar deposits for a period comparable to such Accrual Period and in an amount comparable to the applicable portion of the Aggregate Net Investment to accrue interest by reference to such interest rate. If fewer than three (3) quotations are provided as requested, the rate for that Accrual Period will be the arithmetic mean of the three (3) rates quoted by major banks selected by the related Funding Agent in good faith in New York City for loans in United States dollars to leading European banks for a period comparable to such Accrual Period, such mean to be calculated by the Administrative Agent at approximately 11:00 a.m., New York City time, on that day.

LIBOR Reserve Percentage” shall mean, for any portion of the Aggregate Net Investment to accrue interest by reference to the Eurodollar Rate and any Accrual Period therefor, the maximum reserve percentage, if any, applicable to the related Owner under Regulation D during such Accrual Period (or if more than one percentage shall be applicable, the daily average of such percentages for those days in such Accrual Period during which any such percentage shall be applicable) for determining such Owner’s reserve requirement (including any marginal, supplemental or emergency reserves) with respect to liabilities or assets having a term comparable to such accrual period consisting or included in the computation of Eurocurrency Liabilities (as defined in Regulation D). Without limiting the effect of the foregoing, but without duplicating the provisions of Section 8.3, the LIBOR Reserve Percentage shall reflect any other reserves required to be maintained by an Owner by reason of any Regulatory Change, in which such relevant rule, guideline or directive was adopted, changed or reinterpreted after the Original Closing Date, against (a) any category of liabilities which includes deposits by reference to which LIBOR is to be determined or (b) any category of extensions of credit or other assets which include LIBOR-based credits or assets.

Lien” shall mean any security interest, mortgage, deed of trust, pledge, hypothecation, assignment, deposit arrangement, equity interest, encumbrance, lien (statutory or other), preference, participation interest, priority or other security agreement or preferential arrangement of any kind or nature whatsoever, including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing and the filing of any financing statement under the UCC or comparable law of any jurisdiction to evidence any of the foregoing.

 

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Liquidity Funding Rate” shall mean for any applicable portion of the Aggregate Net Investment and Accrual Period and the applicable Funding Agent and its related Ownership Group, a rate per annum equal to the lesser of:

 

  (x)

the sum of (A) Eurodollar Rate for such Accrual Period plus (B) the Eurodollar Spread Rate (the “Eurodollar Liquidity Funding Rate”); or

 

  (y)

the greater of (I) the sum of (A) the Federal Funds Effective Rate for each day in such Accrual Period plus (B) 0.50% plus (C) the Program Fee, and (II) the applicable Prime Rate plus the Program Fee for each day in such Accrual Period (the “Alternate Liquidity Funding Rate”);

provided, however, that if (i) any Owner determines that the Eurodollar Rate cannot be determined for any reason, including the unavailability of rate bids or the general unavailability of the London interbank market for U.S. Dollar borrowings, to fund the Net Investment of any Owner for any Accrual Period (or portion thereof), or (ii) any Owner determines that it would be contrary to law or to the directive of any central bank or other Governmental Authority to obtain U.S. Dollars in the London interbank market to fund or maintain its Net Investment for any Accrual Period (or portion thereof), or (iii) the related Funding Agent advises the Transferor that the Eurodollar Liquidity Funding Rate will not adequately and fairly reflect the cost of the related Owner of funding the applicable portion of its Net Investment based on the Liquidity Funding Rate, or (iv) such funding occurs without two (2) London Business Days’ notice to the related Funding Agent, or (v) a funding by any Owner occurs on a date other than an Addition Date, then in each case for the period commencing on the date of such assignment or funding and ending on the date immediately preceding the first day of the next succeeding Accrual Period, the Liquidity Funding Rate shall be the Alternate Liquidity Funding Rate for each day in such Accrual Period.

LLC Agreement” shall mean the Amended and Restated Limited Liability Company Agreement of the Transferor, dated as of November 18, 2015, as the same may be modified, supplemented, amended or amended and restated from time to time.

London Business Day” shall mean any Business Day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.

Malbec Receivable” means a Transferred Receivable with respect to which the Obligor has received a marketing promotion in which such Obligor receives a contingent incentive for the related handset device, Smart Watch or Accessory which is administered as monthly bill credits over the term of the Receivable associated with such handset device, Smart Watch or Accessory.

 

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Material Adverse Effect” shall mean a material adverse effect on (i) the financial condition or operations of Finco, the Transferor, or the Guarantor, as applicable, together with its respective subsidiaries (in each case taken as a whole), (ii) the ability of any of Finco, the Transferor, or the Guarantor to perform its respective obligations under this Agreement, the Sale Agreement or the Performance Guaranty, as applicable, (iii) the legality, validity or enforceability of this Agreement, the Sale Agreement or the Performance Guaranty, (iv) the rights or interests of the Administrative Agent or the Funding Agents hereunder or with respect to the Transferred Assets or (v) the collectability of the Transferred Receivables generally or any material portion thereof (in each case, taken as a whole).

Monthly Non-Use Fee” shall mean, for each Accrual Period (or any portion thereof) during the Revolving Period and each Owner, an amount equal to the product of (i) the amount by which (A) such Ownership Group’s average daily Ownership Group Purchase Limit during the immediately preceding Accrual Period exceeds (B) such Ownership Group’s average daily Net Investment during the immediately preceding Accrual Period, (ii) the Non-Use Fee Rate applicable to the immediately preceding Accrual Period (or portion thereof), and (iii) a fraction, the numerator of which is the actual number of days in the related Accrual Period and the denominator of which is 360.

Monthly Report” shall mean a report prepared by the Servicer in substantially the form of Exhibit E hereto.

Moody’s” shall mean Moody’s Investors Service, Inc., together with its successors.

Multi-Seller Conduit” shall mean a single vehicle structured as a special-purpose entity that (i) acquires interests in pools of financial assets from multiple sellers and (ii) funds such acquisitions (a) by selling short-term notes to investors that are not secured solely by the cash flows of receivables purchased from the Transferor, (b) solely with respect to Gotham, by obtaining loans or liquidity loans from MUFG Bank, Ltd., (c) solely with respect to Old Line, by obtaining loans or liquidity loans from Royal Bank of Canada (or an affiliate thereof) or (d) solely with respect to Starbird, by obtaining loans or liquidity loans from BNP Paribas (or an affiliate thereof).

Net Investment” shall mean, with respect to any Owner at any time, the portion of the Initial Cash Purchase Price paid by such Owner plus the portion of the aggregate Incremental Fundings paid by such Owner from time to time minus, without duplication, (i) the aggregate of all Principal Distribution Amounts and any other amounts received and applied to reduce such Net Investment pursuant to Section 2.8 and (ii) in connection with the assignment by such Owner of any of its Net Investment, the assigned Net Investment; provided that such Owner’s Net Investment shall be increased by any amount so received and applied if at any time the distribution of any such amount is rescinded or must otherwise be returned or restored for any reason.

No-Service Receivable” shall mean a Transferred Receivable where, in accordance with the Credit and Collection Policies (i) the related Obligor has requested cancellation of such Obligor’s wireless service, (ii) such request is accepted by the Servicer or its applicable Affiliate without payment in full of amounts owing under the related Credit Agreement, and (iii) all Scheduled Payments and other amounts due under the related Credit Agreement remain outstanding and payable by such Obligor following such cancellation of wireless service. For the avoidance of doubt, a Transferred Receivable becomes a No-Service Receivable on the date on which the Servicer accepts such request in accordance with the Credit and Collection Policies.

 

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Non-Delaying Ownership Group” shall have the meaning specified in Section 2.1(d)(ii).

Non-Extending Purchaser” shall have the meaning specified in Section 2.17.

Non-Use Fee Rate” shall mean, with respect to any Ownership Group and any Accrual Period, the per annum rate specified as such in the Transaction Fee Letter for the related Funding Agent.

Nonconforming Jump Receivables” shall mean each Eligible Jump Receivable where, as of any date of determination: (a) a TMUS Event has occurred and is continuing; or (b) a Jump Termination Event has occurred and is continuing.

NRSRO” shall have the meaning specified in Section 9.8(a).

Obligor” shall mean, with respect to any Receivable and the related Credit Agreement, the Person or Persons party to the Credit Agreement who is (are) obligated to make payments with respect to such Receivable, which, for the avoidance of doubt, is not necessarily the subscriber, but the Person or Persons related to the billing account number.

Obligor Credit Class” shall have the meaning given to such term in Annex A hereto.

Obligor Credit Score” shall have the meaning given to such term in Annex A hereto.

Obligor Financed Amount” shall have the meaning given to such term in Annex A hereto.

Obligor States” shall have the meaning given to such term in Annex A hereto.

Obligor Tenure” shall have the meaning given to such term in Annex A hereto.

Officer’s Certificate” shall mean a certificate signed by an Authorized Officer.

Old Line” shall mean Old Line Funding, LLC, a Delaware limited liability company, together with its successors and assigns.

Old Line Funding Agent” shall mean the Funding Agent for the Old Line Owners identified on Schedule I hereto, together with its successors and assigns.

 

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Old Line Funding Rate” shall mean:

(A) with respect to any Accrual Period, to the extent any Old Line Purchaser (or an Affiliate Conduit which is an assignee of Old Line) is funding the related Ownership Tranche during such Accrual Period through the issuance of commercial paper, the sum of (i)(x) unless the Old Line Funding Agent has determined that the Old Line Pooled CP Rate shall be applicable, a rate per annum equal to the rate per annum calculated by the Old Line Funding Agent to reflect Old Line’s (or such Affiliate Conduit’s) cost of funding such Ownership Tranche, taking into account the weighted daily average interest rate payable in respect of such commercial paper notes during such period (determined in the case of discount commercial paper notes by converting the discount to an interest bearing equivalent rate per annum), applicable placement fees and commissions, and such other costs and expenses as the Old Line Funding Agent in good faith deems appropriate, or (y) to the extent the Old Line Funding Agent has determined that the Old Line Pooled CP Rate shall be applicable, the Old Line Pooled CP Rate and (ii) the Program Fee; provided, however, that if any component of the rate determined pursuant to this clause (A) is a discount rate, in calculating the “Old Line Funding Rate” for such Accrual Period the Old Line Funding Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum; or

(B) to the extent that Old Line or any other Owner that is a member of its related Ownership Group is funding or maintaining any Net Investment (or portion thereof) other than through the issuance of Commercial Paper, a rate equal to the Liquidity Funding Rate for such Accrual Period or portion thereof;

provided, however, that if an Amortization Event has occurred and is continuing, then the Old Line Funding Rate shall be the rate determined pursuant to clause (A) or clause (B) above, as applicable, plus the Amortization Rate; provided further, that if a Termination Event has occurred and is continuing, then the Old Line Funding Rate shall be the rate determined pursuant to clause (A) or clause (B) above, as applicable, plus the Default Rate.

Old Line Liquidity Asset Purchase Agreement” shall mean the amended and restated liquidity asset purchase agreement, dated as of the 2017 Amendment Closing Date and as amended by the First Amendment thereto dated as of the 2018 Amendment Closing Date, among Old Line, the Old Line Funding Agent and each of the Old Line Purchasers signatory thereto, as the same may from time to time be amended, restated, supplemented or otherwise modified.

Old Line Owners” shall mean the Old Line Funding Agent, Old Line, each assignee of Old Line which is an Affiliate Conduit and the Old Line Purchasers, and any assignee thereof chosen by the Old Line Funding Agent with the consent of the Transferor, which consent shall not be unreasonably withheld.

 

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Old Line Pooled CP Rate” shall mean, for any day during any Accrual Period, the per annum rate equivalent to the weighted average of the per annum rates paid or payable by Old Line from time to time as interest on or otherwise (by means of interest rate hedges or otherwise taking into consideration any incremental carrying costs associated with short-term promissory notes issued by Old Line maturing on dates other than those certain dates on which Old Line is to receive funds) in respect of the promissory notes issued by Old Line that are allocated, in whole or in part, by the Funding Agent (on behalf of Old Line) to fund or maintain any Net Investment during such period, as determined by the Funding Agent (on behalf of Old Line) and reported to the Transferor, which rates shall reflect and give effect to (1) the commissions of placement agents and dealers in respect of such promissory notes, to the extent such commissions are allocated, in whole or in part, to such promissory notes by the Funding Agent (on behalf of Old Line) and (2) other borrowings by Old Line, including, without limitation, borrowings to fund small or odd dollar amounts that are not easily accommodated in the commercial paper market; provided, however, that if any component of such rate is a discount rate, in calculating the Old Line Pooled CP Rate, the Funding Agent shall for such component use the rate resulting from converting such discount rate to an interest bearing equivalent rate per annum.

Old Line Purchasers” shall mean each of the purchasers party to the Old Line Liquidity Asset Purchase Agreement and any other Conduit Support Provider related to Old Line.

Omnibus First Amendment” shall have the meaning specified in the Recitals.

Opinion of Counsel” shall mean one or more written opinions of counsel who may be an employee of or counsel to the Transferor or the Servicer, as applicable, which counsel shall be reasonably acceptable to the Administrative Agent (after consultation with the Funding Agents).

Original Agreement” shall have the meaning specified in the Recitals.

Original Closing Date” shall mean November 19, 2015.

Other Assets” shall mean any assets (or interests therein) (other than the Transferred Assets) transferred or purported to be transferred by the Transferor to another Person or Persons other than the Administrative Agent (for the benefit of the Owners), whether by way of a sale, capital contribution or by virtue of the granting of a lien.

Other Transferors” shall have the meaning specified in Section 8.1(a).

Outage Amount” shall have the meaning specified in Section 2.8(g).

Outage Day” shall mean a day upon which the Servicer is unable to determine and process Collections of Transferred Receivables received within two (2) Business Days of the Date of Processing of such Collections; provided, however, that the Servicer’s negligence or intentional disruption or omission relating to the processing of Collections shall not result in an Outage Day, unless such act or omission was in connection with regular systems updates or routine maintenance to the Servicer’s computer systems.

 

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Owner Distribution Amount” shall mean, for each Payment Date, (a) 95% of the Total Distribution Amount for the related Payment Date plus (b) all payments received by the Transferor under Eligible Interest Rate Caps on (or with respect to) such Payment Date.

Owner’s Percentage” shall mean, at any time with respect to any Owner in an Ownership Group, the percentage equivalent of a fraction, the numerator of which is the Net Investment of such Owner at such time and the denominator of which is the aggregate of the Net Investments of all Owners in such Ownership Group at such time.

Owners” shall mean the Conduit Purchasers (if any), the Committed Purchasers, the Conduit Support Providers and any of their assignees of all or any portion of the Transferred Assets permitted under this Agreement (which shall not include any Participant).

Ownership Group” shall mean each separate group identified from time to time on Schedule I hereto consisting of (i) a Funding Agent, (ii) if applicable, one or more Conduit Purchasers administered by such Funding Agent, (iii) one or more Committed Purchasers, and (iv) each other related Owner.

Ownership Group Percentage” shall mean, on any date, with respect to any Ownership Group, the applicable percentage set forth for such Ownership Group on such date on Schedule I hereto (equivalent to a fraction, the numerator of which is the Ownership Group Purchase Limit of such Ownership Group and the denominator of which is the Purchase Limit), as the same may be adjusted in connection with an assignment pursuant to Section 9.7, in connection with a Delaying Ownership Group pursuant to Section 2.2(c), in connection with the extension of the Scheduled Expiry Date or otherwise pursuant to Section 2.17, in connection with a Defaulting Ownership Group pursuant to Section 2.18 or in connection with a reduction or increase pursuant to Section 2.19; provided, that, on and after the Amortization Date, the Ownership Group Percentage of each Ownership Group shall at all times be the percentage equivalent to a fraction, the numerator of which is the aggregate of the Net Investments of the Owners in such Ownership Group and the denominator of which is the outstanding Aggregate Net Investment.

Ownership Group Purchase Limit” shall mean, on any date, with respect to any Ownership Group, the applicable amount set forth for such Ownership Group on such date on Schedule I hereto, as the same may be adjusted in connection with an assignment pursuant to Section 9.7, in connection with the extension of the Scheduled Expiry Date or otherwise pursuant to Section 2.17, in connection with a Defaulting Ownership Group pursuant to Section 2.18, in connection with a reduction or increase pursuant to Section 2.19; provided that on and after the Amortization Date, the Ownership Group Purchase Limit for each Ownership Group shall at all times equal the aggregate of the Net Investments of the Owners in such Ownership Group.

 

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Ownership Tranche” shall mean the portion of the Net Investment of any Owner allocated to a Tranche Period, which shall be identical in all respects, except for their respective Ownership Group Purchase Limit and principal amounts funded in respect of such tranches, and certain matters relating to the rate and payment of interest applicable to each Ownership Tranche. The initial allocation among Ownership Tranches and any modifications thereto shall be made by the related Owner and Funding Agent and notice of such allocation shall promptly be provided to the Transferor and Servicer.

Participant” shall have the meaning specified in Section 9.7(c).

PATRIOT Act” shall have the meaning specified in Section 3.5(d).

Payment Date” shall mean the 20th day of each month or, if such day is not a Combined Business Day, the immediately following Combined Business Day, commencing on July 20, 2016.

PBGC” shall mean the Pension Benefit Guaranty Corporation, or any successor thereto.

Performance Guaranty” shall mean the Performance Guaranty dated as of April 3, 2018 provided by each Guarantor to the Administrative Agent for the benefit of the guaranteed parties named therein, as amended, restated, supplemented or otherwise modified from time to time.

Permitted Holder” means (i) Deutsche Telekom and (ii) any direct or indirect Subsidiary of Deutsche Telekom.

Permitted Transferee” shall mean for all Ownership Groups, (i) each initial Owner, (ii) each Funding Agent (in its individual capacity), (iii) the Administrative Agent (in its individual capacity), (iv) any asset-backed commercial paper conduit whose Commercial Paper is rated A-1 or higher by S&P and P-1 by Moody’s that is administered by the Administrative Agent, a Funding Agent or any Affiliate thereof, (v) any Support Party, and (vi) any other Person (other than a TMUS Competitor) who has been consented to as a potential Participant or assignee by the Transferor (which consent shall not be unreasonably withheld, delayed or conditioned); provided, that after (a) an Amortization Event occurs and is continuing, a “Permitted Transferee” shall mean any Person other than a TMUS Competitor, and the consent of the Transferor shall not be required for any transferee other than a TMUS Competitor, and (b) a Termination Event occurs and is continuing, a “Permitted Transferee” shall mean any Person, including a TMUS Competitor, and the consent of the Transferor shall not be required for any transferee.

Person” shall mean any corporation (including a business trust), natural person, firm, joint venture, joint stock company, limited liability company, partnership, trust, unincorporated organization, enterprise, government or any department or agency of any government.

 

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Plan” shall mean at any time an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code and is either (a) maintained by a member of the ERISA Group for employees of a member of the ERISA Group or (b) maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which a member of the ERISA Group is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions.

Pool Balance” as of the close of business as of the Initial Cut-off Date and on the last day of a Collection Period, shall mean the aggregate Receivable Balance of the Transferred Receivables.

Potential Amortization Event” shall mean any event, condition or circumstance that, with the giving of notice or lapse of time, or both, would constitute an Amortization Event.

Potential Servicer Default” shall mean any event, condition or circumstance that, with the giving of notice or lapse of time, or both, would constitute a Servicer Default.

Potential Termination Event” shall mean an event which, but for the lapse of time or the giving of notice or both, would constitute a Termination Event.

Primary Servicing Duties” shall mean (a) establishment, maintenance and updates of collection practices under the Credit and Collection Policies, (b) recordation, reconciliation and processing of Collections on the Servicer’s computer systems, (c) establishment and maintenance of, (i) Servicer accounts for receipt of Collections and (ii) the Collection Account, (d) performing any calculations required to be performed by the Servicer under the Agreement, (e) preparing any reports required to be prepared by the Servicer under the Agreement, (f) applying Collections under Section 2.8 and (g) any other servicing obligations determined by the Administrative Agent in its reasonable discretion to be primary servicing obligations, as notified in writing by the Administrative Agent to the Servicer.

Prime Rate” shall mean, for any day, the rate of interest publicly announced from time to time by the Administrative Agent as its prime rate in effect at its principal office in New York City.

Principal Balance” of a Receivable, shall mean, as of any date of determination, the outstanding principal balance of such Receivable as of such date.

Principal Distribution Amount” shall mean, with respect to any Payment Date, the greater of (a) the amount necessary to cause the Aggregate Advance Amount as of such Payment Date to equal the Aggregate Net Investment as of such Payment Date, and (b) the Investment Reduction Amount.

Proceeds” shall mean “proceeds” as defined in Section 9-102(a)(64) (or other applicable section of similar content) of the Relevant UCC.

 

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Program Fee” shall have the meaning specified in the Transaction Fee Letter.

Projected Pool Balance” shall mean, as of any date, an amount which the Servicer reasonably estimates will be the Pool Balance at the end of the current Collection Period.

Purchase Limit” shall mean $1,300,000,000, as such amount may be reduced from time to time pursuant to Section 2.17, Section 2.18 or Section 2.19(a) or increased from time to time pursuant to Section 2.19(b) or Section 2.19(c) or as agreed upon by the Transferor and the Funding Agents (other than a Funding Agent acting on behalf of a Reducing Ownership Group or a Funding Agent acting on behalf of a Defaulting Ownership Group); provided, however, that at any time on and after the Amortization Date, the “Purchase Limit” shall mean the outstanding Aggregate Net Investment at such time.

Purchase Price” shall have the meaning specified in Section 2.1(b).

Rating Agency” means each of Moody’s, S&P, Fitch and, if any of Moody’s, S&P or Fitch ceases to exist or ceases to rate the Senior Notes for reasons outside of the control of TMUSA, any other nationally recognized statistical rating organization selected by TMUSA as a replacement agency.

Ratings Decline Period” means the period that (i) begins on the earlier of (a) the date of the first public announcement of the occurrence of a Change of Control or of the intention by TMUSA or a shareholder of TMUSA, as applicable, to effect a Change of Control or (b) the occurrence thereof and (ii) ends 90 days following consummation of such Change of Control; provided that such period shall be extended for so long as the rating of the Senior Notes of the applicable series, as noted by the applicable Rating Agency, is under publicly announced consideration for downgrade by the applicable Rating Agency.

RBC” shall have the meaning specified in the preamble to this Agreement.

Receivable” shall mean indebtedness, payment obligations or other amounts owed to the Transferor (after giving effect to the sale by Finco to the Transferor under the Sale Agreement) by an Obligor (without giving effect to any transfer hereunder) from time to time in connection with a Credit Agreement related to a handset device, a Smart Watch and/or Accessory, including amounts payable for Scheduled Payments, whether constituting an account, chattel paper, instrument, payment intangible or general intangible arising out of or in connection with the sale of new or used unsecured retail equipment installment plan sales contracts and includes the right of payment of any finance charges and other obligations of the Obligor with respect thereto.

Receivable Balance” shall mean, with respect to any Receivable, as of any date of determination, the present value of the unpaid Scheduled Payments thereon discounted at the greater of (a) the Contract Financing Rate and (b) the Discount Percentage; provided, that the Receivable Balance of any Receivable may not exceed the outstanding principal amount, if any, owing by the related Obligor; provided further, that the Receivable Balance of (i) a COVID Deferring Receivable (solely, for the avoidance of doubt, during the COVID Deferral Period related thereto), (ii) a Defaulted Receivable or (iiiii) any Transferred Receivable which has been identified as an Ineligible Receivable but not repurchased by the Transferor pursuant to Section 2.12 or Section 2.13, shall be zero.

 

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Receivable Matrix Amount” shall mean, with respect to any Receivable and any date of determination, the product of (i) the Receivable Balance of such Receivable as of such date and (ii) the corresponding Matrix Rate (as defined in Annex A hereto) relating to such Receivable.

Receivables Schedule” shall mean the computer file identifying each Receivable sold on the Original Closing Date and each Additional Receivable sold on each Addition Date by Finco to the Transferor under the Sale Agreement and immediately thereafter sold by the Transferor to the Administrative Agent (for the benefit of the Owners) on the Original Closing Date and on each Addition Date, as applicable, pursuant to this Agreement, in the form of Exhibit F hereto, as such file and schedule will be updated and supplemented from time to time, and incorporated by reference into this Agreement.

Recharacterization” shall have the meaning specified in Section 2.6.

Records” shall mean all Credit Agreements and other documents, books, records and other information (including, without limitation, the original or a copy of the credit application fully executed by the Obligor, the file stamped copy of the relevant UCC financing statements, if any, or such other documents that the Transferor or Finco or its affiliates shall keep on file, in accordance with its customary procedures, computer programs, tapes, discs, punch cards, data processing software and related property and rights) maintained by the Servicer or the Transferor with respect to the Transferred Receivables and the related Obligors.

Recoveries” shall mean, for any period, Collections on Written-Off Receivables during such period (including Receivables transferred to the Transferor under Section 2.13, but not Receivables repurchased under Section 2.12 or Section 2.15(d)); provided, that the parties agree that (a) tax refunds, whether in the form of cash or otherwise, with respect to Receivables, and (b) any cash payments (or equivalent) or any other cash proceeds collected on EPS Receivables (including cash proceeds of Related Rights with respect to such EPS Receivables) shall not constitute Collections or Recoveries.

Reducing Ownership Group” shall have the meaning specified in Section 2.17(ii).

Regulation D” shall mean Regulation D of the Board of Governors of the Federal Reserve System, as the same may be amended, supplemented or otherwise modified and in effect from time to time.

 

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Regulatory Change” shall mean (i) the adoption after the date hereof of any applicable law, rule or regulation (including any applicable law, rule or regulation regarding capital adequacy or liquidity coverage), or any change therein, by any United States or foreign governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, after the date hereof, (ii) any change after the date hereof in the interpretation or administration thereof by any United States or foreign governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance with any request or directive (whether or not having the force of law) issued after the date hereof by any such authority, central bank or comparable agency, or (iii) the compliance, whether commenced prior to or after the date hereof, by any Owner, Participant or Support Party with the requirements of (a) the Dodd-Frank Wall Street Reform and Consumer Protection Act, or (b) any existing or future rules, regulations, guidance, interpretations or directives from the U.S. bank regulatory agencies relating to the Dodd-Frank Wall Street Reform and Consumer Protection Act (whether or not having the force of law), or (c) the rules, guidelines and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or any United States or foreign regulatory authorities, in each case relating to the international regulatory framework for banking capital and liquidity measurements, standards and monitoring known collectively as “Basel III”, regardless of the date when enacted, adopted, issued or implemented.

Related Document” shall mean this Agreement, the Sale Agreement, the Performance Guaranty, each Control Agreement, each Eligible Interest Rate Cap, the Administrative Agent Fee Letter, each other Fee Letter, the LLC Agreement, each updated Daily Receivables File, each updated Receivables Schedule, and such other documents and certificates executed and delivered in connection therewith.

Related Rights” shall mean, with respect to any Transferred Receivable, all of Finco’s and the Transferor’s right, title and interest in, to and under:

(i) the related Credit Agreement (but not Finco’s obligations, if any, under such Credit Agreement), all security interests, hypothecations, reservations of ownership, liens or other adverse claims and property subject thereto from time to time purporting to secure payment of such Transferred Receivable, whether pursuant to the contract pursuant to which such Transferred Receivable was originated, together with all financing statements, registrations, hypothecations, charges or other similar filings or instruments against an Obligor and all security agreements describing any collateral securing such Transferred Receivable, if any;

(ii) all guarantees, insurance policies (including any rights to payments to be made directly or indirectly by an insurance company or an insurer to Finco, one of Finco’s Affiliates or the related Obligor in connection with the exercise by such Obligor of the Jump Contract Feature of a Jump Contract), if applicable, and other agreements or arrangements of whatsoever character from time to time supporting of such Transferred Receivable whether pursuant to the related Credit Agreement or otherwise;

(iii) all Collections with respect to such Transferred Receivable;

 

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(iv) any Jump Contract Payment Rights;

(v) all of the Transferor’s right, title and interest in, to and under the Sale Agreement, including, without limitation, all amounts due or to become due to the Transferor from Finco under the Sale Agreement and all rights, remedies, powers, privileges and claims of the Transferor against Finco under the Sale Agreement (whether arising pursuant to the terms of the Sale Agreement or otherwise available to the Transferor at law or in equity); and

(vi) all proceeds of the foregoing, including, without limitation, all related amounts on deposit in the Collection Account.

Relevant UCC” shall mean the Uniform Commercial Code as in effect from time to time in all applicable jurisdictions.

Replacement Receivable” shall mean any Receivable transferred on an Addition Date pursuant to Section 2.15(a), Section 2.15(d) or Section 2.21.

Repurchase Amount” shall mean with respect to any Transferred Receivable, the Principal Balance as of the close of business on the last day of the immediately preceding Collection Period.

Repurchased Receivable” shall mean a Transferred Receivable purchased as of the close of business on the last day of a Collection Period by the Servicer pursuant to Section 2.11 or repurchased or retransferred as of such time by the Transferor pursuant to Section 2.12, Section 2.13 or Section 2.15(d), as applicable.

Required Hedge Rate” shall mean, a percentage equal to, for all Eligible Interest Rate Caps in effect as of any date of determination, the highest weighted average strike rate calculated at any time over the remaining hedge notional schedules under all such Eligible Interest Rate Caps then in effect, weighted based on the applicable notional amounts at such point in time; provided, that for the purposes of this Required Hedge Rate calculation, if at any time any interest rate cap agreement no longer qualifies as an Eligible Interest Rate Cap as a result of the Cap Counterparty no longer qualifying as an Eligible Cap Counterparty, the Required Hedge Rate will be determined inclusive of such interest rate cap agreement’s strike rate until such Cap Counterparty is replaced in accordance with Exhibit D.

Required Owners” shall mean, at any time, the Funding Agents representing Ownership Groups having in the aggregate at such time Ownership Group Percentages equal to at least 66-2/3%; provided, that, if at any time there exists one or more Defaulting Ownership Groups, “Required Owners” shall mean Funding Agents representing Non-Defaulting Ownership Groups having in the aggregate Non-Defaulting Ownership Group Percentages equal to 66-2/3%, where:

Non-Defaulting Ownership Group” shall mean, at any time, each Ownership Group other than a Defaulting Ownership Group; and

 

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Non-Defaulting Ownership Group Percentage” shall mean, at any time, with respect to any Non-Defaulting Ownership Group, the percentage equivalent of a fraction, the numerator of which is the Ownership Group Purchase Limit of such Non-Defaulting Ownership Group and the denominator of which is the aggregate of the Ownership Group Purchase Limits of all Non-Defaulting Ownership Groups.

Notwithstanding the foregoing, if at any time all Ownership Groups are Defaulting Ownership Groups, then “Required Owners” shall at such time be determined in accordance with the preceding sentence without giving effect to the proviso contained therein.

Requirements of Law” shall mean, as to any Person, any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject, whether federal, state or local (including usury laws and the federal Truth in Lending Act).

Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

Response Date” shall have the meaning specified in Section 2.17.

Revolving Period” shall mean the period from and including the Original Closing Date to (but excluding) the Amortization Date.

Rule 17g-5” shall have the meaning specified in Section 9.8(a).

S&P” shall mean Standard & Poor’s Rating Services, a division of McGraw-Hill Financial, together with any successors to the business of the division.

Sale Agreement” shall mean the Third Amended and Restated Receivables Sale Agreement, dated as of October 23, 2018, between Finco, as seller, and the Transferor, as purchaser, as the same may be modified, supplemented, amended or amended and restated from time to time.

Sanctioned Country” shall mean, at any time, a country which is the subject or target of any Sanctions.

Sanctioned Person” shall mean, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or the European Union, (b) any Person operating, organized or resident in a Sanctioned Country or (c) any Person controlled by any such Person.

Sanctions” shall mean EU Sanctions and U.S. Sanctions.

 

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Scheduled Expiry Date” shall mean November 19, 2020, unless extended from time to time in accordance with Section 2.17.

Scheduled Payment” on a Receivable shall mean the scheduled periodic payment of principal and, if applicable, interest, required to be made by the Obligor.

Section 8.2 Costs” shall have the meaning specified in Section 8.2(h).

Section 8.3 Costs” shall have the meaning specified in Section 8.3(c).

Senior Notes” means the senior unsecured notes issued pursuant to the base indenture, dated as of April 28, 2013, among TMUSA, each of the guarantors party thereto, Deutsche Bank Trust Company Americas, as trustee, as amended, supplemented or otherwise modified from time to time (and any substantially identical notes issued in respect thereof).

Servicer” shall mean Finco, as the servicer of the Transferred Receivables, and each successor to Finco (in the same capacity) pursuant to Section 6.6.

Servicer Default” shall mean an event specified in Section 6.7.

Servicing Fee” shall mean the fee payable to the Servicer for services rendered during the respective Collection Period, determined pursuant to Section 6.9.

Servicing Fee Rate” shall mean 1.00% per annum.

Servicing Officer” means any officer of the Servicer or any designee of any officer of the Servicer that has been approved in writing by the Administrative Agent who, in each case, is involved in, or responsible for, the administration and servicing of Receivables.

Smart Watch” shall mean a smart watch that has a SIM card.

Smart Watch Receivable” shall mean a Receivable related to a Smart Watch.

Sprint Transaction” shall mean the transactions contemplated by that certain Business Combination Agreement, dated as of April 29, 2018, by and among TMUS, Huron Merger Sub LLC, a Delaware limited liability company and a wholly owned subsidiary of TMUS (“Merger Company”), Superior Merger Sub Corporation, a Delaware corporation and a wholly owned subsidiary of Merger Company, Sprint Corporation, a Delaware corporation, Starburst I, Inc., a Delaware corporation, Galaxy Investment Holdings, Inc., a Delaware corporation, and for the limited purposes of certain covenants and representations and warranties that are expressly obligations of such persons, Deutsche Telekom AG, an Aktiengesellschaft organized and existing under the laws of the Federal Republic of Germany, Deutsche Telekom Holding B.V., a besloten vennootschap met beperkte aansprakelijkheid organized and existing under the laws of the Netherlands, and SoftBank Group Corp., a Japanese kabushiki kaisha.

 

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Starbird” shall mean Starbird Funding Corporation, a Delaware corporation, together with its successors and assigns.

Starbird Funding Agent” shall mean the Funding Agent for the Starbird Owners identified on Schedule I hereto, together with its successors and assigns.

Starbird Funding Rate” shall mean:

(A) with respect to any Accrual Period, to the extent Starbird is funding the related Ownership Tranche during such Accrual Period through the issuance of commercial paper, the sum of (i) a rate per annum equal to the rate per annum calculated by the Starbird Funding Agent to reflect Starbird’s cost of funding such Ownership Tranche, taking into account the weighted average rate at which interest or discount is accruing on or in respect of such commercial paper notes during such period (determined in the case of discount commercial paper notes by converting the discount to an annual yield equivalent rate calculated on the basis of a 360-day year), any fees attributable to paying agents and the commissions of placement agents and dealers in respect of such commercial paper and any costs associated with funding small or odd-lot amounts, to the extent that such commissions or costs are allocated, in whole or in part, to such commercial paper by such Agent, and (ii) the Program Fee; or

(B) to the extent that Starbird or any other Owner that is a member of its related Ownership Group is funding or maintaining any Net Investment (or portion thereof) other than through the issuance of Commercial Paper, a rate equal to the Liquidity Funding Rate for such Accrual Period or portion thereof;

provided, however, that if an Amortization Event has occurred and is continuing, then the Starbird Funding Rate shall be the rate determined pursuant to clause (A) or clause (B) above, as applicable, plus the Amortization Rate; provided further, that if a Termination Event has occurred and is continuing, then the Starbird Funding Rate shall be the rate determined pursuant to clause (A) or clause (B) above, as applicable, plus the Default Rate.

Starbird Liquidity Asset Purchase Agreement” shall mean the Amended and Restated Global Liquidity Asset Purchase Agreement, dated as of December 14, 2015, among Starbird, the Starbird Funding Agent, as liquidity agent, each of the Starbird Liquidity Providers signatory thereto, and BNP Paribas, New York Branch, as administrator, as amended by the Amended and Restated Supplement No. 143 thereto, dated as of the 2017 Amendment Closing Date, as the same may from time to time be amended, restated, supplemented or otherwise modified.

Starbird Liquidity Providers” shall mean each of the liquidity providers party to the Starbird Asset Purchase Agreement and any other Conduit Support Provider related to Starbird.

 

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Starbird Owners” shall mean the Starbird Funding Agent, Starbird, each assignee of Starbird which is an Affiliate Conduit and the Starbird Liquidity Providers, and any assignee thereof chosen by the Starbird Funding Agent with the consent of the Transferor, which consent shall not be unreasonably withheld.

Subsidiary” means, with respect to any specified Person (i) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and (ii) any partnership (A) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (B) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof).

Successor Servicer” shall mean an event specified in Section 6.6(b).

Support Facility” shall mean any liquidity or credit support agreement in favor a Conduit Purchaser which relates to this Agreement, Net Investment of the Ownership Group of which such Conduit Purchaser is a member and the other documents relating hereto (including any agreement to purchase an assignment of or participation in, or to extend a liquidity loan with respect to, such Conduit Purchaser’s interest in such Net Investment).

Support Party” shall mean any bank, insurance company or other financial institution extending or having a commitment or option to extend funds to or for the account of a Conduit Purchaser (including by agreement to purchase an assignment of, or participation in, the Net Investment of the Ownership Group of which such Conduit Purchaser is a member) under a Support Facility. Each Committed Purchaser shall be deemed to be a Support Party for the Conduit Purchaser(s) in the related Ownership Group.

T-Mobile Information” shall mean, with respect to each Receivable sold hereunder from time to time, the following: (a) billing account number, (b) invoice number, (c) invoice Due Date, (d) invoice date, (e) invoice amount, and (f) and outstanding balance.

Taxes” shall have the meaning specified in Section 8.2(a).

Termination Date” shall mean the earlier to occur of (i) a Termination Event (other than a Termination Event under Section 7.1(a)) and the delivery by the Administrative Agent of a notice of termination pursuant to Section 7.2, or the occurrence of a Termination Event under Section 7.1(a) and (ii) the date which is thirty-six (36) months following the occurrence of the Amortization Date (other than due to the occurrence of a Termination Event).

Termination Event” shall mean an event described in Section 7.1.

 

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Termination Notice” shall mean an event specified in Section 6.6(a).

Thirty-Six Month Contract Receivable Transfer Date” shall mean the date on which the first Receivable related to a handset device with a contract term of more than 25 months (but not in excess of 37 months) is transferred from Finco to the Transferor pursuant to the Sale Agreement.

TMUS” shall mean T-Mobile US, Inc., a Delaware corporation, and its successors in interest to the extent permitted hereunder.

TMUS Competitor” shall mean Verizon Communications Inc., Sprint Corporation, AT&T Inc., Comcast Corporation, Charter Communications, Inc., DISH Network Corporation, TracFone Wireless, Inc., Alphabet Inc. and any other entity agreed to be a competitor between the Servicer and the Administrative Agent and any affiliates and successors thereof, unless such entity is an Affiliate of TMUS. The Administrative Agent will notify the Funding Agents of any such other entity agreed upon between the Servicer and the Administrative Agent.

TMUS Event” shall mean TMUS’s long-term unsecured debt rating falls below “B1” by Moody’s and TMUSA’s long-term unsecured debt rating falls below “B+” by S&P.

TMUSA” shall mean T-Mobile USA, Inc., a Delaware corporation, and its successors in interest to the extent permitted hereunder.

Total Distribution Amount” shall mean, for each Payment Date, the sum of (i) the aggregate Collections in respect of Transferred Receivables deposited in the Collection Account and not previously applied and (ii) any interest received in connection with funds on deposit in the Collection Account and not previously applied. For the avoidance of doubt, the parties hereto acknowledge and agree that clause (ii) of the defined term “Total Distribution Amount” does not include collateral (if any) posted by a Cap Counterparty pursuant to the terms of an Eligible Interest Rate Cap.

Tranche Period” shall mean a specified period (as determined by the related Owner or Funding Agent) during which an Ownership Tranche will accrue interest by reference to a component of a Yield Rate, including the Eurodollar Rate, the Prime Rate or a Federal Funds Effective Rate.

Transaction Fee Letter” shall mean the Third Amended and Restated Transaction Fee Letter, dated as of October 23, 2018 (which supersedes the Second Amended and Restated Transaction Fee Letter dated as of August 21, 2017), by and among the Transferor, the Gotham Funding Agent, the Helaba Funding Agent, the Starbird Funding Agent and the Old Line Funding Agent, setting forth certain fees and expenses payable to each such Funding Agent (for the benefit of its respective Owners) by the Transferor in connection with this Agreement, as the same may be amended, restated, supplemented or otherwise modified from time to time.

 

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Transferor” shall mean T-Mobile Handset Funding LLC, a Delaware limited liability company, and its successors in interest to the extent permitted hereunder.

Transferor Distribution Amount” shall mean, for each Payment Date, 5% of the Total Distribution Amount for the related Payment Date.

Transferred Assets” shall have the meaning specified in Section 2.1(a).

Transferred Receivable” shall mean the Receivables which are transferred by the Transferor to the Administrative Agent (for the benefit of the Owners), pursuant to this Agreement and which are identified on Schedule II hereto, with respect to the Initial Receivables (as such Schedule II may be modified from time to time pursuant the updated Receivables Schedules to be delivered pursuant to Section 2.1(c)); provided, that if any Transferred Receivable is reconveyed to the Transferor or conveyed to the Servicer, in each case, as specified in Section 2.11, Section 2.12 or Section 2.13, as applicable, such Receivable shall no longer constitute a Transferred Receivable.

UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

U.S. Sanctions” shall mean economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State.

Volcker Rule” shall have the meaning specified in Section 3.1(i).

Voting Shares” means, with respect to any specified Person as of any date, the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.

Wholly Owned Subsidiary” means, as to any Person, any other Person all of the Capital Stock of which (other than (a) directors’ qualifying shares and (b) nominal shares issued to foreign nationals to the extent required by applicable Requirement of Law) is owned by such Person directly and/or through other Wholly Owned Subsidiaries.

 

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Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

Written-Off Receivable” shall mean any Receivable which has been written off as uncollectible by the Servicer in accordance with the Servicer’s Credit and Collection Policies.

Yield” shall have the meaning specified in Section 2.8(c).

Yield Overage” shall have the meaning specified in Section 2.8(c).

Yield Rate” shall mean, with respect to each Owner, such Owner’s Net Investment and any Accrual Period or portion thereof, the following: (A) a rate equal to the Old Line Funding Rate, with respect to Old Line, (B) a rate equal to the Gotham Funding Rate, with respect to Gotham, (C) a rate equal to the Helaba Funding Rate, with respect to Helaba, (D) a rate equal to the Starbird Funding Rate, with respect to Starbird, or (E) the applicable rate specified in the related Assignment and Assumption Agreement to which any other Owner becomes a party to this Agreement.

Yield Shortfall” shall have the meaning specified in Section 2.8(c).

Section 1.2 Computation of Time Periods. Unless otherwise stated in this Agreement, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding.”

Section 1.3 Other Definitional Provisions. (a) All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.

(b) As used in this Agreement and in any certificate or other document made or delivered pursuant hereto or thereto, accounting terms not defined in this Agreement or in any such certificate or other document, and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, shall have the respective meanings given to them under GAAP. To the extent that the definitions of accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under generally accepted accounting principles, the definitions contained in this Agreement or in any such certificate or other document shall control.

 

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(c) The words “hereof,” “herein,” “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; Section, Schedule and Exhibit references contained in this Agreement are references to Sections, Schedules and Exhibits in or to this Agreement unless otherwise specified; and the term “including” shall mean “including without limitation.”

(d) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

ARTICLE II.

SALES AND SETTLEMENTS

Section 2.1 Facility.

(a) Sales of Receivables. Upon the terms and subject to the conditions herein set forth (including, without limitation, the applicable conditions set forth in Article IV), in consideration of the payment of the Purchase Price and upon receipt of the related Cash Purchase Price for the relevant Transferred Assets, the Transferor hereby sells, transfers, assigns and conveys to the Administrative Agent (for the benefit of the Owners), without recourse except as provided herein, all of its right, title and interest in, to and under (i) the Initial Receivables existing at the close of business on the Initial Cut-Off Date, in the case of Receivables sold, transferred, assigned and conveyed on the Original Closing Date, and the Additional Receivables hereafter acquired by the Transferor to be sold, transferred, assigned and conveyed by the Transferor to the Administrative Agent (for the benefit of the Owners) after the Original Closing Date on each Addition Date, in each case as identified in the Receivables Schedule and the Daily Receivables File to be maintained and updated from time to time by the Servicer, (ii) all Related Rights relating thereto, and Recoveries, (iii) all monies due or to become due and all amounts received or receivable with respect thereto, (iv) the rights, remedies, powers, privileges and claims of the Transferor under or with respect to the Sale Agreement (whether arising pursuant to the terms of the Sale Agreement or otherwise available to the Transferor at law or in equity), (v) the Collection Account and all amounts from time to time credited to the Collection Account (including, without limitation, interest, cash and other property from time to time received, receivable or otherwise distributed in respect of or in connection with amounts on deposit in the Collection Account), and (vi) all proceeds (including “proceeds” as defined in the UCC) thereof (such property, collectively, the “Transferred Assets”). Each Conduit Purchaser, in its sole discretion, may fund its Ownership Group Percentage of any requested purchase of Transferred Assets, and in the event such Conduit Purchaser elects not to fund its Ownership Group Percentage of any requested purchase of Transferred Assets, the related Committed Purchaser shall make such purchase; provided that, no such purchase shall be made by an Owner to the extent that, after giving effect thereto, (x) the Aggregate Net Investment would exceed the Purchase Limit or (y) the aggregate of the Net Investments of the Owners in any Ownership Group would exceed the Ownership Group Purchase Limit for such Ownership Group. The parties hereto hereby agree that to the extent an Ownership Group includes only Committed Purchasers and does not include any Conduit Purchasers, conditions precedent to funding requirements relating to Conduit Purchasers in such Ownership Group shall be deemed inapplicable.

 

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Notwithstanding anything to the contrary contained in this Agreement or any Daily Receivables File or updated Receivables Schedule (whether expressed or implied), the parties hereto from time to time acknowledge and agree that (i) in connection with the sales, transfers and assignments of Transferred Assets, the Administrative Agent is acting solely as an agent for the Owners and their respective Funding Agents and not in a fiduciary capacity and (ii) the Administrative Agent does not, by virtue of its accepting such sales, transfers and assignments of Transferred Assets, assume any obligation to any Funding Agent or any Owner except such obligations as may be expressly set forth in this Agreement.

(b) Purchase Price. The purchase price payable to the Transferor for the Transferred Assets shall be paid as follows:

(i) from the cash paid by the Owners (or the related Funding Agents on behalf of such Owners) on the Original Closing Date to purchase Initial Receivables, if any, and cash paid on any other Funding Date or Addition Date (to the extent funds are available and used to purchase Additional Receivables) (the “Cash Purchase Price”);

(ii) to the extent available, in cash from the proceeds of the sale of the Transferred Assets and Collections available pursuant to Section 2.8(a)(i)(B); and

(iii) to the extent cash proceeds are unavailable, by an increase in the Deferred Purchase Price payable to the Transferor hereunder (collectively, the “Purchase Price”).

The parties hereto agree that the cash component of the Purchase Price of the Transferred Receivables paid to the Transferor from time to time shall be allocated, upon receipt, first to payment of the Purchase Price of Receivables that, at such time, has been appropriately categorized as “earned” for accounting purposes by the Servicer.

(c) Addition of Receivables. Subject to satisfaction of the conditions specified in Section 4.3, the Transferor may sell, transfer, assign and convey Additional Receivables on any Addition Date. On each Addition Date, the Servicer shall provide the Administrative Agent with a Daily Receivables File identifying all Additional Receivables sold on such Addition Date. On the Original Closing Date and on each Determination Date starting in December 2015, the Servicer shall provide the Administrative Agent with an updated Receivables Schedule identifying the Transferred Receivables sold on or prior to such date. Each Receivables Schedule and Daily Receivables File shall be incorporated herein by reference and shall be made a part of this Agreement. Notwithstanding the conditions for the sale and transfer of Additional Receivables on an Addition Date, there shall be no conditions for the transfer and sale of Replacement Receivables from the Transferor to the Administrative Agent (for the benefit of the Owners) relating to and following the exercise of Jump Contract Features. Notwithstanding anything in this Agreement to the contrary, the Transferor may sell, assign, transfer or otherwise convey Additional Receivables to the Administrative Agent (for the benefit of the Owners) to the extent necessary to cure an Asset Base Deficiency.

 

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(d) The Transferor hereby appoints the Servicer as its agent to receive payment of the Purchase Price for Receivables sold by it to the Administrative Agent (for the benefit of the Owners) hereunder and hereby authorizes the Administrative Agent and/or the Funding Agents (each for the benefit of the related Owners) to make all payments due to the Transferor directly to, or as directed by, the Servicer. The Servicer hereby accepts and agrees to such appointment.

(e) Following each sale of Receivables, (i) the Transferor shall have sold all right, title and interest in the Transferred Receivables and Related Rights to the Administrative Agent (for the benefit of the Owners); (ii) the Transferor shall have no retained right, title or interest in the Receivables or any rights with respect to the Obligors thereof; (iii) the Transferor shall have the right to the Deferred Purchase Price payable in accordance with the terms hereof; (iv) the payment obligation of the Obligors is owed to the Owners, and the Owners will look to the Collections on the Receivables and not the Transferor or Finco for the payment of such obligations; and (v) the Transferor and the Servicer will apply Collections with respect to the Receivables in accordance with the terms of this Agreement.

(f) The Transferor shall on or prior to (i) the Original Closing Date, in the case of Initial Receivables, and (ii) the applicable Addition Date, in the case of Additional Receivables, indicate in its books and records and in the appropriate computer files that such Receivables and the related Transferred Assets have been conveyed by the Transferor to the Administrative Agent (for the benefit of the Owners) pursuant to this Agreement.

Section 2.2 Incremental Fundings. (a) Subject to the conditions specified in this Section 2.2, the Transferor may from time to time on any date during the Revolving Period request that the Owners make an Incremental Funding and the Owners shall make such Incremental Funding to the extent that the applicable conditions set forth below and in Section 4.2 are satisfied. To the extent an Ownership Group consists of only a Committed Purchaser, such Committed Purchaser shall make such Incremental Funding; and to the extent an Ownership Group includes one or more Conduit Purchasers, each Conduit Purchaser in such Ownership Group may, in its sole discretion, make an Incremental Funding in connection therewith and in the event such Conduit Purchaser elects not to make such Incremental Funding, each related Committed Purchaser shall make such Incremental Funding instead; provided, that no Incremental Funding shall be made by any Owner to the extent that, after giving effect thereto, (x) the Aggregate Net Investment would exceed the Purchase Limit or (y) the aggregate of the Net Investments of the Owners in any Ownership Group would exceed the Ownership Group Purchase Limit for such Ownership Group, and no Incremental Funding shall be made by any Owner in a Reducing Ownership Group or a Defaulting Ownership Group. Subject to the terms and conditions hereof (and except as expressly contemplated in Section 2.1(a), Section 2.2(c), Section 2.17, Section 2.18 or Section 2.19(b)), Incremental Fundings shall be allocated among the Owners pro rata in accordance with the respective Ownership Group Percentages of their related Ownership Groups. The aggregate minimum amount of any Incremental Funding shall be equal to $500,000 (or an integral multiple of $100,000 if in excess thereof).

 

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(b) No Incremental Funding shall be made by any Owner unless:

(i) at least four (4) Combined Business Days preceding the requested Funding Date, the Transferor and Finco, in its individual capacity and as Servicer, shall have executed a funding notice in substantially the form of Exhibit G to this Agreement (a “Funding Notice”), and the Servicer shall have delivered to each Funding Agent and the Administrative Agent, a signed copy of such Funding Notice (which may be in electronic form), which Funding Notice shall contain the information contemplated in Exhibit G hereto (and such additional information as the Administrative Agent (on behalf of any Funding Agent) may reasonably request); provided, that such notice requirement shall not apply to any funding to occur on the Original Closing Date or the 2016 Amendment Closing Date; and

(ii) on or prior to such Funding Date, all of the applicable conditions set forth in Section 4.2 shall have been satisfied.

(i) Notwithstanding anything to the contrary contained in this Agreement (including Section 2.2(a) and 2.2(b)), after the Servicer delivers a Funding Notice in connection with a proposed Incremental Funding pursuant to Section 2.2(b), a Committed Purchaser (or its related Funding Agent) may, not later than 10:00 a.m. (New York time), on the Business Day immediately preceding the proposed Funding Date, deliver a written notice (a “Delayed Purchase Notice” to the Transferor and the Administrative Agent of its intention to fund its share of the related Incremental Funding (such share, the “Delayed Amount”) on a date (the date of such funding, the “Delayed Purchase Date”) that is on or before the thirty-fifth (35th) day following the requested Funding Date (or if such day is not a Business Day, then on the next succeeding Business Day) rather than on the requested Funding Date. Any such Committed Purchaser (or its Funding Agent) shall also deliver to the Transferor and the Servicer such Committed Purchaser’s certification that it intends to take similar action in other substantially similar financing arrangements (which are subject to comparable funding levels) in which it is involved in a correlative role. A Committed Purchaser that delivers a Delayed Purchase Notice with respect to any Funding Date shall be referred to herein as a “Delaying Purchaser” with respect to such Funding Date, and any Ownership Group containing a Delaying Purchaser shall be referred to as a “Delaying Ownership Group” with respect to such Funding Date.

(ii) If one or more Delaying Purchasers timely deliver Delayed Purchase Notices with respect to any Funding Date, the Administrative Agent shall, by no later than 12:00 p.m. (New York time), on the Combined Business Day preceding such Funding Date, request the Owners in each Ownership Group that is not a Delaying Ownership Group with respect to such Funding Date (each a “Non-Delaying Ownership Group”) to fund an additional portion of the related Incremental Funding on such Funding Date, equal to such Non-Delaying Ownership Group’s proportionate share (based upon its respective Ownership Group Purchase Limit relative to the sum of the Ownership Group Purchase Limits for all Non-Delaying Ownership Groups) of the aggregate Delayed Amount with respect to such Funding Date (not to exceed such Non-Delaying Ownership Group’s Ownership Group Purchase Limit). Each Non-Delaying Ownership Group shall use commercially reasonable efforts to fund such portion of the aggregate Delayed Amount with respect to such Funding Date, on the requested Funding Date, but in any event shall fund such amount, not later than two (2) Combined Business Days after such requested Funding Date. For the avoidance of doubt, each Non-Delaying Ownership Group’s obligation to fund any portion of the aggregate Delayed Amount under this Section 2.2(c)(ii) shall, as contemplated in Section 2.2(b), be subject to satisfaction of each of the conditions precedent set forth in Section 2.2(b) and Section 4.2, and shall be subject to the limits set forth in Section 2.2(a).

 

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(iii) If the additional amounts to be funded by the Non-Delaying Ownership Groups under Section 2.2(c)(ii) are not sufficient to provide the aggregate amount requested by the Transferor in the related Funding Notice, the Transferor may (x) revoke the related Funding Notice or (y) reduce the amount of the requested Incremental Funding by prompt written notice to the Administrative Agent following such determination.

(d) (i) If the conditions to the Incremental Funding on the requested Funding Date described in Section 2.2(a), Section 2.2(b) and Section 4.2 are satisfied on the requested Funding Date, there shall be no conditions whatsoever (including, without limitation, the occurrence of the Amortization Date, notwithstanding any statement to the contrary in Section 2.2(a)) to the obligation of any Committed Purchaser in a Delaying Ownership Group to fund the amount described in this Section 2.2(d)(i) on the related Delayed Purchase Date except as expressly set forth in this clause (i). On each Delayed Purchase Date with respect to a Funding Date, the Funding Agent for each Delaying Ownership Group shall fund its proportionate share (based upon the Ownership Group Purchase Limit for such Delaying Ownership Group relative to the sum of the Ownership Group Purchase Limits for all Delaying Ownership Groups) of an amount equal to (A) the Delayed Amount for such Delayed Purchase Date minus (B) the portion of payments in reduction of the Aggregate Net Investment made to the Non-Delaying Ownership Groups pursuant to Section 2.8(f)(z) on any date occurring after delivery of the Delayed Purchase Notice for such Delayed Purchase Date but prior to such Delayed Purchase Date, and such amount shall be distributed to (x) first, the Funding Agent for each Non-Delaying Ownership Group, pro rata, based on the relative amount funded by such Non-Delaying Ownership Group pursuant to Section 2.2(c)(ii), up to the amount funded by such Non-Delaying Ownership Group, such that after giving effect to the funding and payments to take place on such Delayed Purchase Date, the aggregate amount of the Net Investments of the Owners in each Non-Delaying Ownership Group as a percentage of the Aggregate Net Investment is equal to the Ownership Group Percentage for each such Non-Delaying Ownership Group and (y) second, any excess shall be paid to an account specified by the Transferor to the extent that such payment will not result in an Asset Base Deficiency.

(ii) Notwithstanding anything to the contrary contained in this Agreement or any Related Document, the parties acknowledge and agree that an Ownership Group which includes a Committed Purchaser that (i) has timely delivered a Delayed Purchase Notice to the Transferor with respect to any Funding Date and (ii) funds its full share of the requested Incremental Funding (as such amount may have been reduced pursuant to any updated Funding Notice delivered pursuant to Section 2.2(c)(iii)) on or before the applicable Delayed Purchase Date will not constitute a Defaulting Ownership Group solely due to such Committed Purchaser’s failure to fund its share of such Incremental Funding on the requested Funding Date.

Section 2.3 Payment of Cash Purchase Price. On the Original Closing Date (subject to the satisfaction of the conditions specified in Section 4.1), each Funding Agent, on behalf of its applicable Owners, paid its Ownership Group Percentage of the Initial Cash Purchase Price for the Transferred Assets relating to the Initial Receivables, not later than 2:00 p.m. New York City time on the Original Closing Date by wire transfer of immediately available funds to the Transferor’s account specified by the Transferor in a notice to each Funding Agent. On the 2016 Amendment Closing Date and on each Funding Date (subject to the satisfaction of the conditions

 

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specified in Section 4.2), each Funding Agent, on behalf of its applicable Owners, shall pay its Ownership Group Percentage of the Incremental Funding not later than 2:00 p.m. New York City time on such Funding Date by wire transfer of immediately available funds to the Transferor’s account specified by the Transferor in a notice to each Funding Agent at least four (4) Combined Business Days prior to such Funding Date.

Section 2.4 Filing of UCC Statements. The Transferor agrees to record and file, at its own expense, a UCC-1 financing statement on the Original Closing Date and any financing statements (and amendments and continuation statements with respect to such financing statements when applicable) with respect to the Transferred Assets sold, assigned, transferred and conveyed by the Transferor existing on the Initial Cut-Off Date (in connection with the Initial Receivables) and thereafter created or arising in connection with Additional Receivables sold, assigned, transferred and conveyed on each Addition Date, meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary or desirable to perfect, and maintain the perfection of, the sale, transfer, assignment conveyances of its interest in the Transferred Receivables and the other Transferred Assets to the Administrative Agent (for the benefit of the Owners), and to deliver a file stamped copy of each such financing statement and amendment or other evidence of such filing to the Administrative Agent as soon as practicable after receipt thereof. Each of the Transferor and Finco, as applicable, hereby authorizes the filing of the Form UCC-1 financing statements (and amendments and continuation statements with respect to such financing statements when applicable) described in this Section 2.4 and Section 4.1(f)

Section 2.5 Acceptance by Agent. The Administrative Agent hereby acknowledges its acceptance (for the benefit of the Owners) of all right, title and interest to the property, now existing and hereafter acquired and transferred pursuant to Section 2.1, and acknowledges that the Servicer has delivered the initial Receivables Schedule.

Section 2.6 Transfers and Sales; Security Interest. It is the intention of the parties hereto that the sale, transfer, assignment and conveyance of the Transferred Assets to the Administrative Agent (for the benefit of the Owners) shall constitute a sale of the Transferred Assets by the Transferor to the Administrative Agent (for the benefit of the Owners) and the beneficial interest in and title to the Transferred Assets sold, transferred, assigned and conveyed pursuant to Section 2.1 shall not be part of the Transferor’s estate in the event of the filing of a bankruptcy petition by or against the Transferor under any bankruptcy law. However, in the event that, notwithstanding the intent of the parties, a court of competent jurisdiction determines that such transfer and conveyance did not constitute such a sale or that such sale shall for any reason be ineffective or unenforceable or that such beneficial interest is a part of the Transferor’s estate (any of the foregoing, a “Recharacterization”), then this Agreement shall be deemed to be a security agreement and the conveyances provided for in Section 2.1 shall be deemed to be a grant by the Transferor to the Administrative Agent (for the benefit of the Owners) of, and the Transferor hereby grants to the Administrative Agent (for the benefit of the Owners), a security interest in all of the Transferor’s right, title, and interest, whether now owned or hereafter acquired, in and to the Transferred Assets to secure the performance of the obligations of the Transferor under this Agreement. In the case of any Recharacterization, it is the Transferor’s intention that each remittance of Collections by or on behalf of the Transferor hereunder or in connection herewith will have been (i) in payment of a debt incurred by the Transferor in the ordinary course of business or financial affairs of the Transferor and (ii) made in the ordinary course of business or financial affairs of the Transferor.

 

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Without limiting the generality of any other provision of this Agreement, the Transferor hereby grants to the Administrative Agent (for the benefit of the Owners) a security interest in, all of the Transferor’s right, title and interest in and to the Transferred Assets and each Eligible Interest Rate Cap.

Section 2.7 Non-Recourse Nature of Deferred Purchase Price. (a) The aggregate unpaid Deferred Purchase Price for all purchases hereunder shall be payable solely from Collections on the Transferred Receivables available therefore at the times and in the manner provided herein.

(b) Notwithstanding any provision contained in this Agreement or any other Related Document to the contrary, the Administrative Agent and the Funding Agents, on behalf of their respective Owners, shall not, and shall not be obligated to, pay any amount to the Transferor in respect of any portion of the Deferred Purchase Price, except to the extent of Collections on Transferred Receivables available for distribution to the Transferor in accordance with this Agreement. Any amount that the Administrative Agent or any Funding Agent is not obligated to pay pursuant to the prior sentence shall not constitute a claim (as defined in §101 of the Federal Bankruptcy Code) against, or corporate obligation of, the Administrative Agent, the Funding Agents, or any Owner, as applicable, for any such insufficiency unless and until such amount becomes available from Collections for distribution to the Transferor pursuant to the terms hereof.

Section 2.8 General Settlement Procedures. (a) The Servicer shall, no later than two (2) Business Days following the Date of Processing of Collections of Transferred Receivables by the Servicer (subject to the provisions of Section 2.8(g) in the event of any Outage Day), apply such Collections in the following order of priority:

(i) If the Amortization Date has not occurred:

(A) first, to deposit such Collections into the Collection Account until such time as the amount on deposit is equal to the product of (I) the distributions anticipated by the Servicer to be required to make the payments contemplated by Section 2.8(d)(i)(A)-(D) and (F) on the following Payment Date, and (II) a fraction, the numerator of which is twenty (20) and the denominator of which is nineteen (19);

(B) second, to the extent any Additional Receivables are sold on such day, to pay on behalf of the Administrative Agent to the Transferor a Cash Purchase Price for each Additional Receivable in an amount equal to the applicable Receivable Balance for each such Transferred Receivable (which amounts shall be aggregated and paid to the Transferor in a single payment on each such date); provided, that following any such sale of Additional Receivables and remittance of the related Cash Purchase Price(s) pursuant to this Section 2.8(a)(i)(B), no Asset Base Deficiency shall exist; and

 

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(C) finally, to deposit any remaining Collections in the Collection Account for application on the next succeeding Payment Date (provided that with respect to the period from the 2018 Amendment Closing Date to the Payment Date occurring in November 2018, any such remaining Collections may be paid to the Transferor on any Business Day during such period in payment of the Deferred Purchase Price so long as no Asset Base Deficiency shall exist before or after giving effect to any such payment); and

(ii) if the Amortization Date has occurred, to deposit such Collections in the Collection Account.

(b) On each Determination Date, the Servicer shall determine the Total Distribution Amount, the Owner Distribution Amount, the Transferor Distribution Amount, the Principal Distribution Amount, the amount, if any, payable to the Transferor under the Eligible Interest Rate Caps, and all other amounts required to be paid on the next Payment Date pursuant to Section 2.8(d).

(c) Each Owner’s Net Investment shall accrue yield for each Accrual Period at a rate per annum equal to the Yield Rate applicable to such Owner. On or prior to the fourth (4th) Combined Business Day preceding the last day of each Accrual Period, each Funding Agent will provide to the Servicer and the Transferor an invoice showing the amount of yield (“Yield”) due for such Accrual Period (including a good faith estimate for the remaining days in such Accrual Period), which shall be an amount for each Owner during each day during such Accrual Period equal to the product of (i) the Yield Rate for such Ownership Group on such day, (ii) the aggregate Net Investment of the related Ownership Group on such day and (iii) 1/360; provided, however, that when calculating the Yield Rate for any Ownership Group by reference to LIBOR, in the event LIBOR would be a rate less than zero percent per annum, such rate shall be rounded up to zero percent per annum. If any such invoice contains an estimate that does not equal the actual Yield due for the related Accrual Period, (1) the invoice delivered by the applicable Funding Agent to the Servicer and the Transferor for the immediately following Accrual Period shall include, as applicable, the amount by which (A) the Yield shown in the current invoice exceeds the estimated Yield shown in the immediately prior month’s invoice (a “Yield Shortfall”) or (B) the Yield shown in the current invoice is less than the Yield shown in the immediately prior month’s invoice (a “Yield Overage”), and (2) the amount of such Yield Shortfall shall be added to, or the amount such Yield Overage shall be deducted from, the Yield payable to the applicable Funding Agent on the following Payment Date. Yield shall accrue on each day occurring during the applicable Accrual Period and shall be payable to the Administrative Agent (for distribution in accordance with Section 2.8(d), to each Funding Agent), on each Payment Date. The Transferor hereby agrees to cause the Servicer to pay, and the Servicer shall pay, to the Owners entitled thereto in accordance with this Agreement, from Collections in respect of the Transferred Receivables and other available amounts on deposit in the Collection Account on each Payment Date, in accordance with the terms of this Agreement, all amounts due and payable with respect to the accrued Yield owed to the respective Owners on such day. If any amount hereunder shall be payable on a day which is not a Combined Business Day, such amount shall be payable on the next succeeding Combined Business Day.

 

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(d) Total Distribution Amount.

(i) On each Payment Date, the Servicer shall apply the Owner Distribution Amount for such Payment Date as follows:

(A) first, to pay to the Servicer 95% of the sum of (1) the Servicing Fee for the preceding Collection Period and (2) any unpaid Servicing Fee from prior Collection Periods;

(B) second, to pay to each Funding Agent (on behalf of the Owners in its Ownership Group) in accordance with Section 2.8(f), any Yield due on such Payment Date subject to the provisions of Section 2.8(c); provided, that following the occurrence of an Amortization Event or a Termination Event, the portion of the applicable Yield payable to any Funding Agent (on behalf of the Owners in its Ownership Group) relating to the applicable Amortization Rate or Default Rate shall be paid pursuant to clause (vii) below;

(C) third, to pay to each Funding Agent (on behalf of the Owners in its Ownership Group) in accordance with Section 2.8(f), the Principal Distribution Amount with respect to such Payment Date and any unpaid Principal Distribution Amount with respect to any prior Payment Date to be used, in each case, to reduce the Aggregate Net Investment;

(D) fourth, to pay to the Administrative Agent (for its own account) 95% of any accrued and unpaid fees then due and owing in accordance with the Administrative Agent Fee Letter;

(E) fifth, if the Amortization Date has occurred, to pay to each Funding Agent (on behalf of the Owners in its Ownership Group) in accordance with Section 2.8(f), amounts remaining to reduce the Aggregate Net Investment to zero;

(F) sixth, to pay any other Aggregate Unpaids (other than those payable under Section 2.8(d)(i)(G) or Section 2.8(d)(i)(H), if any) then due and owing;

(G) seventh, following the occurrence of an Amortization Event or Termination Event, the portion of the Yield payable to each Funding Agent (on behalf of the Owners in its Ownership Group) relating to the applicable Amortization Rate or Default Rate due on such Payment Date;

(H) eighth, during the Revolving Period, to pay to the Funding Agent (on behalf of the Owners in its Ownership Group) for each Reducing Ownership Group (if any), the outstanding Net Investment of such Reducing Ownership Group as of such Payment Date; and

 

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(I) ninth, to pay to the Transferor any amount remaining with respect to such Payment Date as payment of the Deferred Purchase Price.

(ii) On each Payment Date, the Servicer shall apply the Transferor Distribution Amount for such Payment Date as follows:

(A) first, to pay to the Servicer 5% of the sum of (1) the Servicing Fee for the preceding Collection Period and (2) any unpaid Servicing Fee from prior Collection Periods;

(B) second, to pay to the Transferor as payment of the Deferred Purchase Price an amount equal to the product of (1) the aggregate amount distributed to the Funding Agents pursuant to Section 2.8(d)(i)(B) on such Payment Date, and (2) a fraction, the numerator of which is five (5) and the denominator of which is ninety-five (95); provided, that in the event any Yield payable to the Funding Agents is attributable to any Yield Rate in excess of the Required Hedge Rate, the amount of such payment shall be reduced by an amount equal to (1) the amount of such excess multiplied by (2) a fraction, the numerator of which is five (5) and the denominator of which is ninety-five (95);

(C) third, to pay to the Transferor as payment of the Deferred Purchase Price an amount equal to the product of (1) the aggregate amount distributed to the Funding Agents pursuant to Section 2.8(d)(i)(C) on such Payment Date, and (2) a fraction, the numerator of which is five (5) and the denominator of which is ninety-five (95);

(D) fourth, to pay to the Administrative Agent (for its own account) 5% of any accrued and unpaid fees then due and owing in accordance with the Administrative Agent Fee Letter; and

(E) fifth, to pay to the Transferor any amount remaining with respect to such Payment Date as payment of the Deferred Purchase Price.

In the event that, pursuant to Section 6.5(i) and the Control Agreement, the Administrative Agent delivers a “shifting control notice” to the depositary bank at which the Collection Account is maintained following a Servicer Default or Termination Event, the Administrative Agent will direct or cause the direction of the depositary bank in connection with the application of Collections in the Collection Account pursuant to this Section 2.8(d) and otherwise as required under this Agreement.

 

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(e) On any Payment Date, the Transferor may elect to cause a reduction of the Aggregate Net Investment in accordance with this Section 2.8(e). For the avoidance of doubt, the Transferor shall only be permitted to reduce the Aggregate Net Investment from Collections and other amounts on deposit in the Collection Account. The Transferor may do so as follows:

(i) the Transferor shall deliver to the Administrative Agent, the Funding Agents and the Servicer written notice in substantially the form of Exhibit H (the “Investment Reduction Notice”) at least four (4) Combined Business Days’ prior to the Payment Date for such reduction of the Aggregate Net Investment, which notice shall include the amount of such proposed reduction (the “Investment Reduction Amount”) and the proposed date on which such reduction will commence;

(ii) on the proposed date of the commencement of such reduction and on each day thereafter, the Servicer shall cause Collections to be applied to reduce the Aggregate Net Investment until the amount thereof not so used shall equal the desired amount of the reduction of the Aggregate Net Investment; and

(iii) the Servicer shall hold (or cause the Transferor to set aside and hold) such Collections in trust for the Owners, for payment to the Funding Agents on behalf of such Owners on the Payment Date specified in the notice described in clause (i) above;

provided, (A) that the amount of any such reduction (if not a reduction to zero) shall be not less than $1,000,000 or an integral multiple of $100,000 in excess thereof; (B) the Transferor shall choose a reduction amount, and the date of commencement thereof, so that to the extent practicable such reduction shall commence and conclude in the same Collection Period, (C) such reduction shall be applied to reduce the Net Investment of each Ownership Group ratably in accordance with its Ownership Group Percentage and (D) the Transferor shall pay to the Funding Agents (for the account of the Owners in the related Ownership Group), the amount of any Early Collection Fee incurred by the Owners in connection with such reduction. For the avoidance of doubt, any such reduction in the Aggregate Net Investment shall only be funded by Collections and any other amounts on deposit in the Collection Account and available for distribution in accordance with Section 2.8(d).

(f) All amounts payable to the Funding Agents (for the account of the Owners in the related Ownership Group) (x) in reduction of the Aggregate Net Investment pursuant to Section 2.8(d) or Section 2.8(e) shall be distributed by 1:30 p.m. (New York time) on the day such amounts are payable in immediately available funds; (y) in payment of Yield and the Monthly Non-Use Fee pursuant to Section 2.8(d) shall be distributed by 1:30 p.m. (New York time) on the day such amounts are payable in immediately available funds based on the applicable Monthly Report delivered to the Administrative Agent pursuant to Section 6.12; and (z) in reduction of the Aggregate Net Investment pursuant to Section 2.8(d) occurring after a Delayed Purchase Notice but before the related Delayed Purchase Date, shall be distributed by 1:30 p.m. (New York time) (A) first, to the related Funding Agents for each Non-Delaying Ownership Group, pro rata based on the relative amounts funded by each such Non-Delaying Ownership Group pursuant to Section 2.2(c)(ii), until the aggregate of the Net Investments of the Owners in each Ownership Group as a percentage of the Aggregate Net Investment is equal to the Ownership Group Percentage for each such Ownership Group and (B) second, to each Funding Agent in accordance with its respective Ownership Group Percentage. All amounts distributed by the Servicer to any Funding Agent shall in turn be distributed by such Funding Agent to the Owners entitled thereto and such Funding Agent shall be responsible for the proper allocation of such amounts among the Owners in its Ownership Group. Any payment received after 1:30pm (New York time) pursuant to this Section 2.8(f) shall be deemed to be received on the next Business Day (or with respect to Helaba, the next Combined Business Day).

 

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(g) To the extent an Outage Day shall have occurred and is continuing, the Servicer shall (i) notify the Administrative Agent (which notification may be delivered via email) of the occurrence of each such Outage Day, and (ii) assume that Collections were received in an amount equal to the prior four-week average daily Collections of Transferred Receivables received on the same day of the week (that were not Outage Days) that the related Date of Processing for the Outage Day should have occurred (each such amount, the “Outage Amount”) and shall make a servicing advance of such amount and treat it as Collections in accordance with the requirements of Section 2.8(a)(i). By way of illustration and for the avoidance of doubt, if the Date of Processing for an Outage Day would have been a Monday, the four-week average referenced in the immediately preceding sentence shall mean the average of the amount of Collections received on the four immediately preceding Mondays that were not Outage Days. Upon determination of the actual amount of Collections received on an Outage Day, (1) the Servicer will reimburse itself for the servicing advance made on such Outage Day from Collections received on such Outage Day or subsequent Business Days, up to the amount actually advanced, (2) to the extent the actual amount of Collections received on the Outage Day is greater than the Outage Amount for such Outage Day, the Servicer will increase the amount of Collections applied in accordance with Section 2.8(a)(i) on the next Business Day by the amount of such excess, and (3) to the extent the actual amount of Collections received on the Outage Day is less than the Outage Amount for such Outage Day, the Servicer shall reduce the amount of Collections applied in accordance with Section 2.8(a)(i) on the next Business Day by the amount of such deficiency. The provisions of this Section 2.8(g) shall apply to each Outage Day, not to exceed thirty (30) consecutive Outage Days. Following thirty (30) consecutive Outage Days, the estimates, Servicer advances and reconciliations provided in this Section 2.8(g) shall not apply and the Servicer shall be required to deposit Collections pursuant to Section 2.8(a) (without giving effect to this Section 2.8(g)).

(h) If, at any time, Helaba’s Cost of Funds Rate is more than the Acceptable Differential in excess of LIBOR, then the Transferor may give irrevocable notice to Helaba that it wishes to base future payments of the Yield due to the Helaba Owners under this Agreement on LIBOR beginning with the first day of the Accrual Period (the “Helaba LIBOR Election Date”) following the date of delivery of such notice. For the avoidance of doubt, upon delivery of such notice, the Transferor shall not again be permitted to request to base any future payments of such Yield on Helaba’s Cost of Funds Rate.

Section 2.9 Payments and Computations, Etc. All amounts to be paid or deposited by the Transferor or the Servicer to (i) any Funding Agent on behalf of its respective Owners hereunder shall be paid or deposited to such Funding Agent’s account for funds transfers specified from time to time in Schedule I thereto (until otherwise notified by such Funding Agent in accordance with the terms hereof) and (ii) the Administrative Agent shall be paid or deposited to account number 920-1-033363 (Reference: T-Mobile Handset Funding LLC) and maintained at JP Morgan Chase, New York, Account Name: Royal Bank of Canada New York (ABA Number 0210-0002-1) (until otherwise notified by the Administrative Agent in accordance with the terms hereof), in each case, no later than 1:30pm (New York time) on the day when due in

 

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immediately available funds; provided, that any payment or deposit received after 1:30pm (New York time) shall be deemed to be received on the next Business Day (or with respect to Helaba, the next Combined Business Day). The Transferor shall, to the extent permitted by law, pay to (or for the account of) the applicable Funding Agents (for the account of the Owners in the related Ownership Group), upon demand, interest (but without duplication for Yield) on all amounts not paid or deposited when due in accordance with the terms of this Agreement at a rate equal to the Default Rate. All computations of interest hereunder shall be made on a monthly basis based on the actual number of days in any given month assuming a 360-day year. Any payment to be made to (or for the account of) the Owners hereunder shall be made to their respective Funding Agents on behalf of such Owners as described above and such payment shall conclusively satisfy the Transferor’s or Servicer’s payment duties hereunder. Notwithstanding any provision to the contrary herein, all payments to be made to or for the benefit of the Administrative Agent, the Owners or the Funding Agents hereunder in respect of principal, Yield, Monthly Non-Use Fee, other fees, indemnities or otherwise shall be made by the Transferor or the Servicer, as the case

may be, without offset or reduction of any kind and shall be paid on the due date therefor in immediately available funds in the manner specified herein except as otherwise expressly provided herein.

Section 2.10 Fees. Notwithstanding any limitation on recourse contained in this Agreement, the Transferor shall pay the fees set forth in the Transaction Fee Letter and the Administrative Agent Fee Letter.

Section 2.11 Optional Purchase of Transferred Receivables by Finco. For so long as Finco is the Servicer, Finco shall have the right to purchase all of the existing Transferred Receivables if, at any time, the aggregate Receivable Balance of the Transferred Receivables is 10% or less of the Aggregate Net Investment as of the Original Closing Date. Finco shall be entitled to effectuate such purchase on the next Payment Date following written notice to each Funding Agent and deposit of an amount into the Collection Account equal to the Aggregate Unpaids on such Payment Date.

Section 2.12 Mandatory Repurchase Under Certain Circumstances.

(a) Notice of Breach. The representations and warranties set forth in Section 3.1, Section 3.2, Section 3.3 and Section 3.4 shall survive the sales of the Transferred Assets to the Administrative Agent and the pledge of the Transferred Assets to the Administrative Agent. Upon discovery by any Authorized Officer of the Transferor or the Servicer of a breach of any of the representations and warranties set forth in Section 3.1, Section 3.2, Section 3.3 or Section 3.4, the party discovering such breach shall give notice to the other parties and to the Servicer and the Administrative Agent within five (5) Business Days following such discovery; provided that the failure to give notice within five (5) Business Days does not preclude subsequent notice after such five (5) Business Day period.

(b) In the event any representation or warranty contained in Sections 3.2(b) through 3.2(j) (x) is not true and correct in any material respect as of the date specified therein with respect to any Transferred Receivable and (y) such breach will have a material adverse effect on such Transferred Receivable or could have an Adverse Effect, then the Transferor shall

 

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repurchase or replace such Receivable (each, an “Ineligible Receivable”) on the terms and conditions set forth in Section 2.12(c) below; provided, that such Transferred Receivables will not be deemed to be Ineligible Receivables but will be deemed Eligible Receivables and such Transferred Receivables shall be included in determining the Pool Balance if, on any day prior to the end of the sixty-day period referenced in Section 2.12(c) below, (x) the relevant representation and warranty shall be true and correct in all material respects as if made on such day and (y) the Transferor shall have delivered an Officer’s Certificate of the Transferor to the Administrative Agent describing the nature of such breach and the manner in which the relevant representation and warranty became true and correct.

(c) Each Ineligible Receivable may be (i) replaced with one or more Replacement Receivables having aggregate Receivable Matrix Amounts equal to or greater than the remaining Receivable Matrix Amount of the original Receivable being replaced, or (ii) repurchased for a repurchase price payable by the Transferor, which amount shall be equal to the Repurchase Amount of such Receivable. The repurchase price payable in connection with clause (ii) above shall either be paid by the Transferor directly by deposit of immediately available funds in the amount of the Repurchase Amount into the Collection Account or the Transferor shall direct Finco to deposit immediately available funds in the amount of such Repurchase Amount into the Collection Account on its behalf. Such payment or replacement shall be made no later than the next Payment Date following sixty (60) days from the discovery of the breach by a Servicing Officer of the Servicer or an Authorized Officer of the Transferor, as applicable, with respect to the related Receivable.

Section 2.13 Retransfer of Written-Off Receivables.

(a) Receivables Subject to Imminent Write-Offs. On each Business Day, each Transferred Receivable that the Servicer has determined will become a Written-Off Receivable in accordance with the Credit and Collection Policies (each such Transferred Receivable, an “Imminent Written-Off Receivable”) shall be retransferred by the Administrative Agent to the Transferor, automatically, and without any further action by the Administrative Agent or the Transferor.

(b) Order of Retransfer. The Transferor may designate the order in which Imminent Written-Off Receivables are retransferred back during a Collection Period in a notice delivered to the Servicer and the Administrative Agent. The Transferor may change such order at any time by notice delivered by it to the Servicer and the Administrative Agent.

(c) Retransfer Consideration. For each Imminent Written-Off Receivable retransferred pursuant to this Section 2.13, the consideration for such retransfer shall be a reduction in the Deferred Purchase Price payable to the Transferor.

Section 2.14 No Warranty Upon Retransfer. (a) Upon a repurchase of any Receivable pursuant to Section 2.12, Section 2.13 or Section 2.15(d), the Administrative Agent shall automatically and without further action on the part of the Administrative Agent transfer, assign, set over and otherwise convey to the Transferor or its designee, without recourse, representation or warranty, all the right, title and interest of the Administrative Agent in and to such Receivable,

 

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as applicable, and all Related Rights allocable thereto, all Collections with respect thereto, all monies and amounts due or to become due and all proceeds thereof, and such repurchased Ineligible Receivable or Imminent Written-Off Receivable, as applicable, shall be treated by the Administrative Agent as collected in full as of the date on which it was repurchased. The obligation of the Transferor to accept repurchase of any Ineligible Receivables or Imminent Written-Off Receivables sold to the Administrative Agent by the Transferor, and to make the deposits, if any, as provided in this Section 2.14, shall constitute the sole remedy respecting the event giving rise to such obligation available to the Administrative Agent or any other Person. The Administrative Agent shall take such other actions as shall reasonably be requested and provided by the Transferor to effect the conveyance of such Ineligible Receivables or Imminent Written-Off Receivables pursuant to this Section 2.14. Notwithstanding any of the foregoing, the Servicer shall continue to monitor the status of all of the Receivables transferred back to the Transferor pursuant to this Section 2.14 in order to determine when such Receivables become Written-Off Receivables and to identify and report to the Transferor and the Administrative Agent any Recoveries thereon. The Administrative Agent shall execute such documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested and provided by the Transferor to effect the retransfer of such Receivables pursuant to this Section 2.14.

(b) The Servicer and the Transferor shall deposit or cause to be deposited in the Collection Account the aggregate Repurchase Amount with respect to Repurchased Receivables as specified in Section 2.12, Section 2.13 and Section 2.15(d), as applicable.

Section 2.15 Jump Contracts; Credit Agreement Responsibility Transfers.

(a) Prior to the Occurrence of a Jump Termination Date. In the event that an Obligor initiates the exercise of the Jump Contract Feature of a Jump Contract prior to the occurrence of a Jump Termination Date, and as a result an Asset Base Deficiency would exist if one of the actions described in clauses (i) or (ii) below is not taken, the Transferor shall, within two (2) Business Days of such exercise, either (i) deposit cash into the Collection Account in an amount equal to the Receivable Matrix Amount of the related Eligible Jump Receivable immediately prior to the exercise of the Jump Contract Feature, or (ii) replace the original Eligible Jump Receivable with one or more Replacement Receivables having aggregate Receivable Matrix Amounts equal to or greater than the remaining Receivable Matrix Amount of the original Receivable being replaced; provided, that the Transferor shall transfer Replacement Receivables in an amount necessary to cure the amount of an Asset Base Deficiency that would exist solely as a result of such replacement. The Transferor shall cause any such Replacement Receivable to be transferred to the Administrative Agent (for the benefit of the Owners), and such Replacement Receivable shall be an Additional Receivable and shall be deemed to be transferred on an Addition Date, and the terms of this Agreement shall apply to such Replacement Receivable as if it had been sold under Article II herein without further action from any party hereto. Following this deposit of cash or transfer of a Replacement Receivable (or if no action is required pursuant to clauses (i) or (ii) above), the Jump Contract Payment Right relating to the original Receivable that has been terminated shall hereby be automatically reassigned to the Transferor without any further action and the Administrative Agent, Funding Agents and Owners shall no longer have any interest in or right to the Jump Contract Payment Right with respect to the original Receivable. The Replacement Receivable will be an Additional Receivable for purposes of this Agreement.

 

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(b) Following the Occurrence of a Jump Termination Event. Following the occurrence of a Jump Termination Event, the Required Owners will have the right to require that the Jump Contract Feature of Eligible Jump Receivables that are part of the Transferred Assets be terminated by notice to the Servicer. As soon as is reasonably practicable, but in any event within two (2) Business Days, following receipt by the Servicer of the original notice from the Required Owners, the Servicer will send (or will cause TMUS to send) notice to the Obligors of Eligible Jump Receivables that the Jump Contract Feature will be terminated (the “Jump Termination Notice”). The Jump Termination Notice will provide that the Jump Contract Feature of the Eligible Jump Receivables that are part of the Transferred Assets be terminated thirty (30) days following the date of delivery of such notice (the “Jump Termination Date”). The Servicer and TMUS will agree to terminate (or cause their Affiliates to terminate) the Jump Contracts of the Eligible Jump Receivables that are part of the Transferred Assets on the Jump Termination Date. The Servicer and TMUS shall execute (or cause their Affiliates to execute) such termination documents and take such other actions as shall reasonably be requested by the Required Owners. In connection with this Section 2.15(b), TMUS acknowledges and agrees that it shall act upon the direction of the Servicer (including any Successor Servicer) in connection with any termination of the Jump Contracts of the Eligible Jump Receivables that are part of the Transferred Assets on the Jump Termination Date.

(c) [Reserved]

(d) Credit Agreement Responsibility Transfers.

(i) Subject to clause (iii) below, in the event that a Transferred Receivable becomes a Change of Responsibility Receivable, and as a result of such event an Asset Base Deficiency would occur if one of the actions described in clauses (A) or (B) below is not taken, the Transferor shall, no later than the next date on which a Monthly Report is deliverable in accordance with this Agreement, either (A) replace such Change of Responsibility Receivable with one or more Replacement Receivables having aggregate Receivable Matrix Amounts equal to or greater than the remaining Receivable Matrix Amount of such Transferred Receivable immediately prior to the time it became a Change of Responsibility Receivable or (B) repurchase the related Change of Responsibility Receivable in an amount equal to the Receivable Matrix Amount of such Transferred Receivable immediately prior to the time it became a Change of Responsibility Receivable, and deposit such funds in the Collection Account, to be treated as Collections. The Transferor shall cause any such Replacement Receivable to be transferred to the Administrative Agent (for the benefit of the Owners), and such Replacement Receivable shall be an Additional Receivable and shall be deemed to be transferred on an Addition Date, and the terms of this Agreement shall apply to such Replacement Receivable as if it had been sold under Article II herein without further action from any party hereto. Following this deposit of cash or transfer of a Replacement Receivable (in accordance with clauses (A) or (B) above), the Administrative Agent, Funding Agents and Owners shall no longer have any interest in or right to the Change of Responsibility Receivable. The Replacement Receivable will be an Additional Receivable for purposes of this Agreement.

 

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(ii) Subject to clause (iii) below, in the event that an Asset Base Deficiency would not occur as a result of a Transferred Receivable becoming a Change of Responsibility Receivable, the Transferor shall have the option (but not obligation) to either replace or repurchase, as applicable, the Change of Responsibility Receivable under the same terms and conditions set forth in clause (i) above.

(iii) For purposes of this Section 2.15(d), the Transferor shall be prohibited from repurchasing or replacing Change of Responsibility Receivables pursuant to clauses (i) and (ii) above if at the time of such repurchase or replacement, as applicable, and after giving effect thereto, the aggregate Receivables Balances immediately prior to the repurchase or replacement, as applicable, for all repurchased and replaced Change of Responsibility Receivables during the past twelve (12) months would exceed 3.75% of the Pool Balance. In the event that such prohibition applies, Finco will no longer consent to (or permit its Affiliates to consent to) any Transferred Receivable becoming a Change of Responsibility Receivable.

Section 2.16 No Representation or Warranty. The parties acknowledge and agree that any transfer to the Transferor or the Servicer of any Repurchased Receivable and Related Rights hereunder shall be made without recourse, representation or warranty of any kind by the Administrative Agent, the Funding Agents or the Owners other than such Repurchased Receivable and Related Rights shall be free and clear of any Lien, or other right or claim in, of or on such Repurchased Receivable and Related Rights, in each case, created by or through the Administrative Agent, such Funding Agent or such Owner.

Section 2.17 Procedures for Extension of the Scheduled Expiry Date. So long as the Amortization Date has not occurred and no Potential Termination Event or Potential Amortization Event shall have occurred and be continuing, no more than sixty (60) and no less than forty-five (45) days prior to the then current Scheduled Expiry Date, the Transferor may request that each Funding Agent consent to the extension of the Scheduled Expiry Date for an additional period of up to 364 days as provided in this Section 2.17, which decision shall be made by each Funding Agent (after consultation with its related Owners) in its sole discretion. Each Funding Agent shall notify the Transferor of its willingness or its determination not to consent to such extension of the Scheduled Expiry Date as soon as practical after receiving such notice, and in any event by the thirtieth (30th) day preceding the then current Scheduled Expiry Date (the “Response Date”). Notwithstanding the foregoing, the Funding Agent acting only on behalf of any then Reducing Ownership Group or the Funding Agent acting on behalf of any then Defaulting Ownership Group shall have no right to consent (or withhold its consent) to the extension of the Scheduled Expiry Date. Any Funding Agent which notifies the Transferor of its determination not to extend or which does not expressly notify the Transferor that it is willing to extend prior to the Response Date shall be deemed to be a “Non-Extending Purchaser” and each Funding Agent which notifies the Transferor that it is willing to extend shall be an “Extending Purchaser.” If (i) each Funding Agent has agreed by the Response Date to the extension of the Scheduled Expiry Date and (ii) as of the then-current Scheduled Expiry Date, the Amortization

 

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Date shall not have occurred and no Potential Termination Event or Potential Amortization Event shall have occurred and be continuing, then, in such event, on the then-current Scheduled Expiry Date, the Scheduled Expiry Date shall be extended to the date selected by the Transferor (or to such other date as may be agreed in writing among the Transferor and the Extending Purchasers) or, if such day is not a Combined Business Day, the next preceding Combined Business Day. If there are one or more Non-Extending Purchasers and there is at least one Extending Purchaser on the then-current Scheduled Expiry Date, then one or more of the following shall occur (in the following order) on or before the then-current Scheduled Expiry Date, and the Scheduled Expiry Date shall be extended to the date selected by the Transferor (or to such other date as may be agreed in writing among the Transferor and the Extending Purchasers) or, if such day is not a Combined Business Day, the next preceding Combined Business Day:

(i) the Transferor may request that one or more Extending Purchasers (on behalf of their related Owners), or a replacement Ownership Group, acquire by assignment all of such Non-Extending Purchaser’s (and its related Owners’) interest in the Transferred Assets and all rights and obligations hereunder pursuant to Section 9.7(a), subject to (A) the execution and delivery of an Assignment and Assumption Agreement and (B) payment to the Funding Agent for such Non-Extending Purchaser (for distribution to such Non-Extending Purchaser and the applicable Owners entitled thereto) of an amount equal to its Ownership Group Percentage of the Aggregate Net Investment together with accrued and unpaid Yield thereon, their respective Ownership Group Percentage of the accrued and unpaid Monthly Non-Use Fee and any other Aggregate Unpaids then due and owing to such Non-Extending Purchaser and its related Owners; or

(ii) if on the then-current Scheduled Expiry Date the Amortization Date has not occurred and no Potential Termination Event or Potential Amortization Event shall have occurred and be continuing, then, on the then-current Scheduled Expiry Date: (A) the Purchase Limit and the Ownership Group Purchase Limit of each Non-Extending Purchaser (each such Ownership Group, during the Revolving Period only, a “Reducing Ownership Group”) shall each be automatically reduced by an amount equal to the excess (if any) of the Ownership Group Purchase Limit of each such Reducing Ownership Group (as in effect immediately before such Ownership Group became a Reducing Ownership Group) on such date over the aggregate of the Net Investments of the Owners in each such Reducing Ownership Group on such date, and (B) the Ownership Group Percentage of each Reducing Ownership Group and the Ownership Group Percentage of each Extending Purchaser shall be recalculated as follows during the Revolving Period (only):

(1) except as expressly provided in Section 2.18, solely for purposes of making distributions pursuant to Section 2.8(d)(i)(C) and Section 2.8(d)(i)(H) during the Revolving Period, the Ownership Group Percentage for each Ownership Group (including each Reducing Ownership Group) shall continue to equal its respective percentage set forth in Schedule I, which Ownership Group Percentages shall (for such purpose only) remain in effect without modification during the Revolving Period; and

 

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(2) except as provided in preceding clause (1), the Ownership Group Percentage of each Ownership Group shall, on any date, equal the percentage equivalent of a fraction, the numerator of which is the Ownership Group Purchase Limit of such Ownership Group on such date and the denominator of which is the Purchase Limit on such date.

In connection with this clause (ii), any Reducing Ownership Group will be paid amounts owing to such Reducing Ownership Group pursuant to Section 2.8(d) until the Net Investment and any other Aggregate Unpaids of each such Reducing Ownership Group have been paid in full. In addition to the foregoing, each of the Purchase Limit and the Ownership Group Purchase Limit for each Reducing Ownership Group shall, during the Revolving Period, be reduced by the amount of all payments to each Funding Agent for a Reducing Ownership Group which are applied in accordance with the terms of this Agreement to reduce the Net Investments of the Owners in each such Reducing Ownership Group, and upon payment in full of all amounts owing to the Funding Agent and the Owners comprising any Reducing Ownership Group, the Ownership Group Percentage and the Ownership Group Purchase Limit of such Reducing Ownership Group shall thereafter be zero and Schedule I attached hereto shall be revised to reflect the Ownership Group Percentage of each Ownership Group (which shall equal, for each Ownership Group, the percentage equivalent of a fraction, the numerator of which is the Ownership Group Purchase Limit of such Ownership Group and the denominator of which is the Purchase Limit); provided that, notwithstanding the foregoing, on and after the Amortization Date, the Ownership Group Percentage of each Ownership Group shall be determined in accordance with the definition of “Ownership Group Percentage” without reference to this Section 2.17(ii).

Section 2.18 Defaulting Ownership Groups.

Notwithstanding any provision of this Agreement to the contrary, if at any time there exists a Defaulting Ownership Group, then the following provisions shall apply for so long as there exists a Defaulting Ownership Group:

(a) The Funding Agent acting on behalf of a Defaulting Ownership Group shall not be included in determining whether the Required Owners have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 9.2), provided, however, that any waiver, amendment or modification requiring the consent of all Funding Agents shall require the consent of the Funding Agent acting on behalf of such Defaulting Ownership Group.

(b) On the date on which an Ownership Group becomes a Defaulting Ownership Group (A) the Purchase Limit and the Ownership Group Purchase Limit of such Defaulting Ownership Group shall each be automatically reduced by an amount equal to the excess (if any) of the Ownership Group Purchase Limit of such Defaulting Ownership Group (as in effect immediately before such Ownership Group became a Defaulting Ownership Group) on such date over the aggregate of the Net Investments of the Owners in such Defaulting Ownership Group on such date and (B) the Ownership Group Percentage of each Ownership Group shall be recalculated as follows during the Revolving Period (only):

 

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(i) solely for purposes of making distributions pursuant to Section 2.8(d)(i)(C) on any Payment Date during the Revolving Period, the Ownership Group Percentage for each Reducing Ownership Group (if any) shall be determined in accordance with Section 2.17(ii) and the Ownership Group Percentage for each other Ownership Group (including each Defaulting Ownership Group) shall, on such Payment Date, equal the product of (x) 100% minus the aggregate of the Ownership Group Percentages of the Reducing Ownership Groups (if any) on such Payment Date and (y) the percentage equivalent of a fraction, the numerator of which is the aggregate of the Net Investments of the Owners in such Ownership Group (before giving effect to such distribution) on such Payment Date and the denominator of which is the aggregate of the Net Investments of all Owners in all Ownership Groups (other than the Owners in any Reducing Ownership Group) on such Payment Date;

(ii) for purposes of making Incremental Fundings, the Ownership Group Percentage of each Defaulting Ownership Group shall be zero and the Ownership Group Percentage of each other Ownership Group (other than a Reducing Ownership Group) shall equal the percentage equivalent of a fraction, the numerator of which is the Ownership Group Purchase Limit of such Ownership Group and the denominator of which is the sum of the Ownership Group Purchase Limits for all Ownership Groups (other than Defaulting Ownership Groups and Reducing Ownership Groups); and

(iii) except as provided in preceding clause (i) or (ii), the Ownership Group Percentage of each Ownership Group shall, on any date, equal the percentage equivalent of a fraction, the numerator of which is the Ownership Group Purchase Limit of such Ownership Group on such date and the denominator of which is the Purchase Limit on such date.

(c) On and after the date on which an Ownership Group becomes a Defaulting Ownership Group, all amounts received hereunder by the Funding Agent (on behalf of such Defaulting Ownership Group) shall continue to be applied in accordance with this Agreement; provided, that such Funding Agent shall make no further Incremental Fundings (and no such amount shall be applied to make any Incremental Funding). In addition to the foregoing, each of the Purchase Limit and the Ownership Group Purchase Limit for each Defaulting Ownership Group shall, during the Revolving Period, be reduced by the amount of all payments to each Funding Agent for a Defaulting Ownership Group which are applied in accordance with the terms of this Agreement to reduce the Net Investments of the Owners in each such Defaulting Ownership Group and, upon payment in full of all amounts owing to the Funding Agent and the Owners comprising any Defaulting Ownership Group, the Ownership Group Percentage and the Ownership Group Purchase Limit of such Defaulting Ownership Group shall thereafter be zero and Schedule I attached hereto shall be revised to reflect the Ownership Group Percentage of each Ownership Group (which shall, except as expressly provided in Section 2.17(ii)), equal, for each Ownership Group, the percentage equivalent of a fraction, the numerator of which is the Ownership Group Purchase Limit of such Ownership Group and the denominator of which is the Purchase Limit); provided, that, notwithstanding the foregoing, on and after the Amortization Date, the Ownership Group Percentage of each Ownership Group shall be determined in accordance with the definition of “Ownership Group Percentage” without reference to this Section 2.18(c).

 

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(d) Without limiting the generality of Section 2.18(b)(ii) (but notwithstanding anything to the contrary contained in this Agreement), but subject in all respects to Section 2.2(c), if on any Addition Date a Funding Agent (acting on behalf of the Owners in its related Ownership Group) fails to make its portion of the Incremental Funding (or any portion thereof) on such Addition Date, and such failure is not cured in all respects within two (2) Combined Business Days of such Addition Date, then upon the written request of the Transferor to the Administrative Agent and each Funding Agent (other than the Funding Agent which failed to make such Incremental Funding), made not later than 10:00 a.m. (New York time) on or prior to such second Combined Business Day, each Funding Agent (acting on behalf of the Owners in its related Ownership Group) other than the Funding Agent acting on behalf of the Defaulting Ownership Group shall, on the day such notice is delivered (or, if such day is not a Combined Business Day, the next succeeding Combined Business Day), fund the portion of the Incremental Funding not made by the Funding Agent acting on behalf of such Defaulting Ownership Group on such Addition Date, pro rata based on its Ownership Group Purchase Limit as a percentage of the Ownership Group Purchase Limits for all Ownership Groups other than the Defaulting Ownership Group (and any Reducing Ownership Group); provided, that a Funding Agent (acting on behalf of the Owners in its related Ownership Group) shall not be obligated to make that portion (if any) of its share of such Incremental Funding which would, after giving effect thereto, cause the aggregate of the Net Investments of the Owners in its related Ownership Group to exceed the Ownership Group Purchase Limit for such Ownership Group.

(e) If at any time the Funding Agent acting on behalf of a Defaulting Ownership Group is also the Administrative Agent, then the Transferor shall have the right to replace the Administrative Agent pursuant to the terms of Section 10.7(b) but without regard to the obligation to deliver notice at least 120 days prior to the then current Scheduled Expiry Date.

(f) For the avoidance of doubt, no provision of this Agreement, including without limitation, this Section 2.18, shall be deemed to relieve any Committed Purchaser of its commitment to make Incremental Fundings in accordance with Section 2.2.

Section 2.19 Reduction and Increase of Purchase Limit. (a) The Transferor may at any time, upon at least ten (10) Combined Business Days’ prior written notice to the Administrative Agent and each Funding Agent, request to terminate in whole or reduce in part the Purchase Limit (but not below the Aggregate Net Investment or any Ownership Group’s Net Investment at such time); provided, however, that each partial reduction shall (i) be in an amount equal to $10,000,000 or any integral multiples of $1,000,000 in excess thereof and (ii) reduce each Ownership Group Purchase Limit hereunder ratably in accordance with the respective Ownership Group’s Ownership Group Percentage of such reduction to the Purchase Limit. Upon the date specified in such notice and agreement, if the conditions set forth in this Section 2.19 have been met, the Purchase Limit shall be reduced by the amount specified in such notice.

 

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(b) The Transferor may, from time to time upon at least thirty (30) days’ prior written notice to the Administrative Agent and each Funding Agent (or such shorter period as shall be approved by the Administrative Agent and the Funding Agents of the Ownership Groups increasing their commitments), request an increase to the Purchase Limit. Each such notice shall be in a form reasonably acceptable to the Administrative Agent and shall specify (i) the proposed date such increase shall become effective, (ii) the proposed amount of such increase, which amount shall be at least $25,000,000 or an integral multiple of $5,000,000 in excess thereof; (iii) the identity of the Ownership Group(s) (and members thereof) whose Ownership Group Purchase Limit(s) will be increased in connection therewith; (iv) the identity of all Owners in such Ownership Group; and (v) a recalculation of the Ownership Group Percentages which will become effective upon such increase in the Purchase Limit. No such increase shall become effective unless and until (A) the Ownership Group Purchase Limit(s) of the Owners in one or more existing Ownership Groups have been increased by the amount of such increase in the Purchase Limit (or a portion thereof, if such increase is accomplished by a combination of means pursuant to clause (D) below), as evidenced by an agreement in writing executed by the Transferor, the Servicer, the Committed Purchasers and the Funding Agents for such increasing Ownership Groups, (B) one or more additional Ownership Groups have become parties to this Agreement by executing a joinder agreement in form and substance reasonably acceptable to the Owners and the Transferor, which new Ownership Groups have Ownership Group Purchase Limits equal to the amount of such increase in the Purchase Limit (or a portion thereof, if such increase is accomplished by a combination of means pursuant to clause (D) below), (C) the available commitments of the Conduit Support Providers hereunder or under the applicable Conduit Support Documents of the applicable Conduit Purchasers are increased as necessary to maintain the then-current ratings of such Conduit Purchaser’s Commercial Paper, or (D) a combination of the foregoing. Notwithstanding anything to the contrary set forth herein, nothing contained in this Agreement shall constitute a commitment or obligation on the part of any Owner to increase its Ownership Group Purchase Limit hereunder.

(c) The Transferor may, upon at least ten (10) days’ (or such shorter period as the Administrative Agent and the Funding Agents may agree) prior written notice to the Administrative Agent (and the Administrative Agent shall promptly forward such written notice to each Funding Agent), cause an increase in the Purchase Limit, upon satisfaction of the following conditions: (i) the Transferor shall offer each Ownership Group the right to increase its Ownership Group Purchase Limit by its ratable share of the increase in the Purchase Limit; (ii) if any Ownership Group elects not to increase its Ownership Group Purchase Limit pursuant to clause (i) above, the Transferor shall offer such Ownership Group’s portion to the other Ownership Groups, or another Owner in a new Ownership Group; (iii) each new Ownership Group, if any, shall execute a joinder agreement in a form reasonably acceptable to the Transferor and the Administrative Agent; (iv) no Termination Event, Amortization Event or Servicer Default shall have occurred and be continuing; and (v) the Purchase Limit shall not exceed $1,500,000,000 immediately after giving effect to any such increase. Schedule I to this Agreement shall be deemed to be amended in connection with any such increase to add each new Ownership Group (if any), to reflect the Ownership Group Purchase Limit of each Ownership Group with a new or increasing Ownership Group Purchase Limit. The Transferor shall repay or cause to be repaid through the applicable joinder agreement any Net Investment outstanding on the effective date of any such increase (and pay any outstanding fees due hereunder or under any Fee Letter) to the extent necessary to keep the outstanding Net Investment of the Owners in each Ownership Group equal to such Ownership Group’s ratable share (after giving effect to the increase in any Ownership Group Purchase Limit pursuant to this Section 2.19(c)).

 

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Section 2.20 Protection of Ownership Interest. The Transferor agrees that from time to time, at its expense, it will promptly execute and deliver all instruments and documents and take all action that the Administrative Agent may reasonably request in order to perfect or protect the Transferred Assets or to enable the Administrative Agent, for the benefit of the Owners, to exercise or enforce any of its or their rights hereunder. Without limiting the foregoing, the Transferor will, upon the request of the Administrative Agent, in order to accurately reflect this transaction, file such financing or continuation statements or amendments thereto or assignments thereof as may be reasonably requested by the Administrative Agent and mark its master data processing records with a notation describing the acquisition by the Administrative Agent (for the benefit of the Owners) of the Transferred Assets, as the Administrative Agent may reasonably request. To the fullest extent permitted by applicable law, the Administrative Agent shall be permitted to file continuation statements and amendments thereto and assignments thereof if, after notice to the Transferor, the Transferor shall have failed to file such continuation statements, amendments or assignments within ten (10) Business Days

after receipt of such notice from the Administrative Agent. The Transferor shall neither change its name, identity or corporate structure (within the meaning of Sections 9-506, 9-507 or 9-508 (or other applicable sections of similar content) of the Relevant UCC), nor change where the Transferred Receivables are located nor change its jurisdiction of organization unless it shall have: (i) given the Administrative Agent at least thirty (30) days prior notice thereof and (ii) delivered to the Administrative Agent all financing statements, instruments and other documents reasonably requested by the Administrative Agent in connection with such change or relocation.

Section 2.21 Malbec Receivables and No-Service Receivables. If the Servicer determines that a Transferred Receivable is a Malbec Receivable or a No-Service Receivable, the Transferor shall, no later than the Payment Date following two (2) Business Days after such determination, replace such Transferred Receivable with one or more Replacement Receivables having aggregate Receivable Matrix Amounts equal to or greater than the remaining Receivable Matrix Amount of the original Transferred Receivable being replaced; provided, that the Transferor shall transfer Replacement Receivables in an amount necessary to cure the amount of an Asset Base Deficiency that would exist solely as a result of such replacement. The Transferor shall cause any such Replacement Receivable to be transferred to the Administrative Agent (for the benefit of the Owners), and such Replacement Receivable shall be an Additional Receivable and shall be deemed to be transferred on an Addition Date, and the terms of this Agreement shall apply to such Replacement Receivable as if it had been sold under Article II herein without further action from any party hereto. Following this transfer of a Replacement Receivable, the relevant original Receivable shall hereby be automatically reassigned to the Transferor without any further action and the Administrative Agent, Funding Agents and Owners shall no longer have any interest in or right with respect to the original Receivable. The Replacement Receivable will be an Additional Receivable for purposes of this Agreement.

Section 2.22 EPS Receivables. (a) The Servicer may allow a portion of a Transferred Receivable to become an EPS Receivable in accordance with the Credit and Collection Policies. In the event that a portion of a Transferred Receivable becomes an EPS Receivable, the EPS Receivable shall hereby be automatically retransferred to the Transferor without any further action and the Administrative Agent, Funding Agents and Owners shall no longer have any interest in or right to such EPS Receivables.

 

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(b) For each EPS Receivable retransferred pursuant to this Section 2.22, the consideration for such retransfer shall be a reduction in the Deferred Purchase Price payable to the Transferor.

(c) The Servicer shall not permit any portion of any Receivable to become an EPS Receivable during any Collection Period to the extent that the aggregate amounts of all EPS Receivables that become part of the EPS Program during such Collection Period (determined immediately prior to the time such amounts became EPS Receivables) would exceed 0.1% of the Projected Pool Balance.

Section 2.23 COVID Deferring Receivables.

(a) During the COVID Covered Period, the Servicer may allow any Transferred Receivable that is not an EPS Receivable to become a COVID Deferring Receivable in accordance with the COVID Deferral Program.

(b) On April 30, 2020 and on the first Business Day of each calendar week thereafter during the COVID Covered Period (beginning on May 4, 2020), the Servicer shall prepare and deliver to the Administrative Agent a weekly report, substantially in the form of Exhibit J hereto (the “COVID Weekly Report”), concerning all Transferred Receivables that are in COVID Deferring Receivables status as of the close of business of the Servicer on the last Business Day of the prior calendar week. The COVID Weekly Report shall include, among other things, a line item indicating the aggregate Principal Balance of all Transferred Receivables that are in COVID Deferring Receivables status as of the cutoff date for such COVID Weekly Report.

ARTICLE III.

REPRESENTATIONS AND WARRANTIES

Section 3.1 Representations and Warranties of Finco and the Transferor. Each of Finco and the Transferor represents and warrants (each with respect to itself only) to the Owners, the Funding Agents and the Administrative Agent that as of the 2018 Amendment Closing Date and as of each Addition Date thereafter and, with respect to a particular representation, as of each specific date referenced in such representation:

(a) Organization, Qualification and Good Standing. It is a duly organized and validly existing corporation or limited liability company in good standing under the laws of the State of Delaware, with the power and authority under its organizational documents and under the laws of Delaware to own its assets and to conduct its business in which it is currently engaged. It is duly qualified to do business as a foreign company and is in good standing in each jurisdiction in which the character of the business transacted by it or properties owned or leased by it requires such qualification and in which the failure so to qualify could reasonably be expected to have a material adverse effect on the business, properties, assets, or condition (financial or otherwise) of it or its ability to perform its duties under this Agreement and the other Related Documents to which it is a party.

 

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(b) Due Authorization; Binding Obligation. It has the power and authority to make, execute, deliver and perform this Agreement and the other Related Documents to which it is a party, and all of the transactions contemplated under this Agreement and the other Related Documents to which it is a party, and has taken all necessary limited liability company or trust action to authorize the execution, delivery and performance of this Agreement and the other Related Documents to which it is a party. This Agreement and the other Related Documents to which it is a party have been duly executed and delivered by it and constitute the legal, valid and binding obligation of such party, enforceable in accordance with their terms, except as enforcement of such terms may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally, any applicable law imposing limitations upon, or otherwise affecting, the availability or enforcement of rights to indemnification hereunder, and by the availability of equitable remedies.

(c) No Conflict. The execution and delivery of this Agreement and the other Related Documents to which it is a party, and the performance by it of the transactions contemplated by this Agreement and the other Related Documents to which it is a party and the fulfillment of the terms hereof and thereof by it will not conflict with or violate any provision of any existing law or regulation or any order or decree of any court or the certificate of formation or limited liability company agreement of such party, or constitute (with or without notice or lapse of time or both) a default under or material breach of any mortgage, indenture, contract, deed of trust, instrument or other agreement to which it is a party or by which it or any of its properties may be bound, nor result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument, nor violate any law or, to the best of such party’s knowledge, any order, rule or regulation applicable to such party of any Governmental Authority having jurisdiction over it or its properties (other than violations of such laws, regulations, orders, decrees, mortgages, indentures, contracts and other agreements which do not affect the legality, validity or enforceability of any of such agreements or the Receivables and which, individually or in the aggregate, would not have a material adverse effect on such party or the transactions contemplated by, or its ability to perform its obligations under, this Agreement or the other Related Documents to which it is a party).

(d) No Proceedings. There are no actions, suits, proceedings or investigations pending, or to the best knowledge of such party, threatened against it before any court, arbitrator or Governmental Authority (i) asserting the invalidity of this Agreement and the other Related Documents to which it is a party, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement and the other Related Documents to which it is a party, (iii) seeking any determination or ruling that, in the reasonable judgment of such party, would materially and adversely affect the performance by it of its obligations under this Agreement and the other Related Documents to which it is a party, (iv) seeking any determination or ruling that would materially and adversely affect the validity or enforceability of this Agreement and the other Related Documents to which it is a party, which, in each case, if adversely determined would be reasonably likely to result in a Material Adverse Effect, or (v)

 

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seeking to materially and adversely affect the income or franchise tax attributes of the Transferor under the United States federal or any state income or franchise tax systems. It is not in default with respect to any order, judgment or decree of any court, arbitrator or Governmental Authority, except to the extent that any such default does not have a Material Adverse Effect.

(e) All Consents. All authorizations, consents, orders or approvals of or registrations or declarations with any Governmental Authority required to be obtained, effected or given by such party in connection with the execution and delivery by it of this Agreement and the other Related Documents to which it is a party and the performance of the transactions contemplated by this Agreement and the other Related Documents to which it is a party by such party have been duly obtained, effected or given and are in full force and effect, except for those which the failure to obtain would not have a material adverse effect on this Agreement, the other Related Documents or the transactions contemplated thereby or on the ability of such party to perform its obligations under this Agreement or the other Related Documents to which it is a party.

(f) Licensing. It is properly licensed in each jurisdiction to the extent required by the laws of such jurisdiction in order to originate, acquire, own or hold the Receivables, as applicable.

(g) Compliance with Requirements of Law. It (i) shall duly satisfy all obligations on its part to be fulfilled under or in connection with each Receivable, and (ii) in the case of Finco in its capacity as the Servicer, it (A) will maintain in effect all qualifications required under Requirements of Law in order to service properly each Receivable, and (B) will comply in all material respects with all other Requirements of Law in connection with servicing each Receivable, except where the failure to so comply would not have an Adverse Effect.

(h) Protection of Rights. It shall take no action in violation of this Agreement which, nor omit to take in violation of this Agreement any action the omission of which, would substantially impair the rights of the Owners, the Funding Agents or the Administrative Agent in any Transferred Receivable.

(i) Investment Company Act. The Transferor (i) is not a “covered fund” under Section 13 of the Bank Holding Company Act of 1956, as amended (together with the implementing regulations thereunder, commonly referred to as the “Volcker Rule”) and (ii) is neither required to be registered as an “investment company” nor is it “controlled by” an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act”). In determining that the Transferor is not a “covered fund,” the Transferor is entitled to rely on the exception to the definition of “investment company” set forth in Section 3(c)(5) of the Investment Company Act of 1940, as amended.

(j) Legal Name; Location. Its sole jurisdiction of organization is the State of Delaware and such jurisdiction has not changed within four months prior to the date of this Agreement. Its principal place of business and chief executive office and its federal employer identification number and Delaware organizational identification number is set forth on Schedule III hereto. It has not, and has not used at any time during the past five years, any prior legal names, trade names, fictitious names, assumed names or “doing business as” names except as set forth on Schedule III hereto.

 

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(k) Accuracy of Information. All certificates, reports, statements, documents and other information furnished by it to the Administrative Agent, the Funding Agents or any Owner pursuant to any provision of this Agreement or any other Related Document, or in connection with or pursuant to any amendment or modification of, or waiver under, this Agreement or any other Related Document, shall, at the time the same are so furnished, be complete and correct in all material respects on the date the same are furnished.

(l) Solvency. No Insolvency Event with respect to it has occurred and no transfer of the Transferred Receivables and the Related Rights has been made in contemplation of the occurrence thereof. It: (i) is able to pay its debts as they come due; and (ii) does not have unreasonably small capital for the business in which it is engaged or for any business or transaction in which it is about to engage.

(m) Use of Proceeds. No proceeds of a funding hereunder will be used by the Transferor for a purpose that violates or would be inconsistent with Regulations T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time.

(n) Taxes. It has filed all United States federal income tax returns (if any) and all other material tax returns which are required to be filed by it and has paid all material taxes and similar assessments or governmental charges that are due and payable by it pursuant to such returns or pursuant to any assessment received by it; provided, that it may contest in good faith any such taxes, assessments and other charges and, in such event, may permit the taxes, assessments or other charges so contested to remain unpaid during any period, including appeals, when it is in good faith contesting the same, so long as (i) adequate reserves have been established in accordance with GAAP, (ii) enforcement of the contested tax, assessment or other charge is effectively stayed for the entire duration of such contest if such enforcement could reasonably be expected to have a material adverse effect on its financial condition or operations or its ability to perform its obligations under this Agreement or the other Related Documents to which it is a party, and (iii) any tax, assessment or other charge determined to be due, together with any interest or penalties thereon, is promptly paid as required after final resolution of such contest. The Transferor is exclusively resident for tax purposes in the United States and, for the purposes of this Agreement and the other Related Documents to which it is a party, will not act through any branch or permanent establishment located outside of the United States.

(o) ERISA. It does not maintain or contribute to any Plan, nor has it maintained or contributed to any Plan within the preceding five years (and, for the avoidance of doubt, a Person shall not be deemed to maintain or contribute to any Plan, solely due to the fact that a member of such Person’s ERISA Group maintains or contributes to any Plan).

(p) No Termination Event or Amortization Event. No Termination Event or Amortization Event has occurred and is continuing.

 

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(q) Eligibility. As of the 2018 Amendment Closing Date, each Addition Date thereafter and each date thereafter on which each of the Aggregate Advance Amount and the Aggregate Net Investment is calculated, each Transferred Receivable included in such calculation as an Eligible Receivable is an Eligible Receivable.

(r) Commodity Futures Trading Act. It is not a “commodity pool” such that an Owner would be a “commodity pool operator” with respect thereto or a “commodity pool” by reason of its ownership of the Transferred Receivables.

(s) Compliance with Credit and Collection Policies. It has complied in all material respects with the Credit and Collection Policies with regard to each Credit Agreement and the related Transferred Receivables and Related Rights. It has not made any change to such Credit and Collection Policies, other than as permitted under Section 3.7(t).

(t) Separateness. Finco is, and all times since its organization has been, operated in such a manner that it would not be substantively consolidated with the Transferor and such that the separate existence of the Transferor would not be disregarded in the event of a bankruptcy or insolvency of Finco.

(u) Related Documents. Each of its representations and warranties in the Related Documents to which it is a party is true and correct in all material respects.

(v) Multi-Seller Conduit. None of Finco, the Transferor or any of their respective Affiliates has any control with respect to the funding or investing activities of any Conduit Purchaser.

(w) Anti-Money Laundering. Each of the Transferor and the Servicer warrants that it is acting on its own behalf with respect to all matters associated with this Agreement. Each of the Transferor and the Servicer undertakes to provide each Funding Agent and Owner, upon its reasonable request, with all information and documents which such Funding Agent or Owner requires in order to comply with its obligations under all applicable anti-money laundering laws (including Geldwäschegesetz).

(x) Authentication of Daily Receivables Files and Receivables Schedules. The Transferor represents, warrants and agrees that transmission of each Daily Receivables File and each Receivables Schedule consisting of, including or accompanied by an electronic file (which may be a PDF or the insertion of the relevant language and names in a Word, Excel or other electronic document) and transmitted either (a) from a Designated Email Address or (b) through a virtual data room (including but not limited to Intralinks) acceptable to the Administrative Agent, shall be evidence of its present intent to adopt or accept such record as the authentication of a security agreement for purposes of Sections 9-102 and 9-203 of any Relevant UCC.

(y) U.S. Risk Retention. The transactions contemplated by this Agreement and the other Related Documents (including the purchase by the Administrative Agent (for the benefit of the Owners) of the Transferred Receivables and Related Rights from the Transferor) are not intended to cause, and do not contemplate, the issuance of an “asset-backed security” as such term is defined in Section 3(a)(79) of the Exchange Act (15 U.S.C. 78c(a)(79)).

 

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(z) Eligible Assets. The Transferred Receivables are “eligible assets” as such term is defined in Rule 3a-7 of the Investment Company Act.

(aa) Beneficial Ownership Certification. As of the 2018 Amendment Closing Date, the information included in the Beneficial Ownership Exemption Certification is true and correct in all respects.

Section 3.2 Representations and Warranties Relating to the Receivables. The Transferor hereby represents and warrants to the Owners, the Funding Agents and the Administrative Agent with respect to the Initial Receivables as of the Original Closing Date and, with respect to Additional Receivables, as of the related Addition Date that:

(a) as of the Initial Cut-Off Date, with respect to the Transferred Assets sold and transferred on the Original Closing Date, the Receivables Schedule delivered to the Administrative Agent on the Original Closing Date on Schedule II relating to the Transferred Receivables and Related Rights sold and transferred hereunder on such date, and as of the related Addition Date with respect to Additional Receivables designated pursuant to Section 2.1(c), the applicable Daily Receivables File delivered on such Addition Date, contains an accurate list of such Transferred Receivables as of such date;

(b) on the date each Receivable is conveyed to the Administrative Agent (for the benefit of the Owners) by the Transferor, the Transferor owns and has good and marketable title to each such Receivable and such Receivable has been conveyed to the Administrative Agent (for the benefit of the Owners) free and clear of any Lien, claim or encumbrance of any Person;

(c) all authorizations, consents, orders or approvals of or registrations or declarations with any Governmental Authority required to be obtained, effected or given by the Transferor in connection with the conveyance by the Transferor of Receivables to the Administrative Agent (for the benefit of the Owners) have been duly obtained, effected or given and are in full force and effect;

(d) this Agreement constitutes a valid sale, transfer and assignment to the Administrative Agent (for the benefit of the Owners) of all right, title and interest of the Transferor in the Transferred Receivables and Related Rights conveyed to the Administrative Agent (for the benefit of the Owners) by the Transferor and the proceeds thereof and Recoveries identified as relating to the Receivables conveyed to the Administrative Agent (for the benefit of the Owners) by the Transferor or, if this Agreement does not constitute a sale of such property, it creates and constitutes a grant of a first priority perfected “security interest” (as defined in the UCC) in such property to the Administrative Agent (for the benefit of the Owners), which, in the case of existing Receivables and the Related Rights and the proceeds thereof, is enforceable upon execution and delivery of this Agreement, and which will be enforceable with respect to such Receivables hereafter and thereafter created and the proceeds thereof upon such creation and which security interest is prior to all other Liens. Upon the filing of the financing statements and, in the case of Receivables hereafter created and the proceeds thereof, upon the creation thereof, the Administrative Agent (for the benefit of the Owners) shall have a first priority perfected security or ownership interest in such Receivables and proceeds;

 

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(e) each Receivable sold to the Administrative Agent (for the benefit of the Owners) by the Transferor is an Eligible Receivable;

(f) no selection procedures believed by the Transferor to be materially adverse to the interests of the Administrative Agent or any Funding Agent or Owner have been used in selecting such Receivables;

(g) each Transferred Receivable has been the subject of a valid sale and assignment from (A) Finco to the Transferor of all Finco’s right, title and interest therein and (B) the Transferor to the Administrative Agent (for the benefit of the Owners) of all the Transferor’s right, title and interest therein;

(h) immediately prior to the transfer of a Transferred Receivable hereunder, the Transferor shall be the legal and beneficial owner of the Transferred Receivables and Related Rights with respect thereto, free and clear of any Lien. This Agreement and each Receivables Schedule and Daily Receivables File, together with the financing statements filed in connection herewith (or therewith), are effective to, and shall create in favor of the Administrative Agent, for the benefit of the Owners, a valid and perfected first priority ownership or security interest in each Transferred Receivable and in the Related Rights and Collections (to the extent provided by Section 9-315 (or other applicable section of similar content) of the Relevant UCC) in respect thereof, free and clear of any Lien (other than Liens created by this Agreement). This Agreement, together with the Control Agreement(s) executed in connection herewith, are effective to, and shall create in favor of the Administrative Agent, for the benefit of the Owners, a valid and perfected first priority ownership or security interest in the Collection Account, and all amounts held, deposited or carried therein, free and clear of any Lien (except as created by this Agreement). On or prior to the Original Closing Date, all financing statements and other documents required to be recorded or filed in order to perfect the Administrative Agent’s interest (for the benefit of the Owners) in the Transferred Assets against all creditors of and transferees from the Transferor will have been duly filed in each filing office necessary for such purpose and all filing fees and taxes, if any, payable in connection with such filings shall have been paid in full. No effective financing statement or other instrument similar in effect covering any Credit Agreement relating to a Transferred Receivable or the Related Rights or Collections in respect thereof or covering the Collection Account is on file in any recording office, except those filed pursuant to this Agreement;

(i) the Transferor has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Receivables and Related Rights sold to the Administrative Agent (for the benefit of the Owners) under this Agreement; and

(j) other than the security interest granted to the Administrative Agent (for the benefit of the Owners) pursuant to this Agreement, the Transferor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Transferred Receivables, Related Rights or other components of the Transferred Assets; the Transferor has not authorized the filing of and is not aware of any financing statements against the Transferor that include a description of collateral covering the Transferred Receivables and Related Rights other than any financing statement filed in connection with this Agreement; the Transferor is not aware of any judgment or tax lien filings against it.

 

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Section 3.3 Additional Representations and Warranties of Finco. Finco, in its capacity as initial Servicer, represents and warrants to the Owners, the Funding Agents and the Administrative Agent that as of the Original Closing Date, as of the 2016 Amendment Closing Date, as of the 2017 Amendment Closing Date, as of the 2018 Amendment Closing Date and as of each Addition Date:

(a) Ownership of the Transferor. It owns of record all of the issued and outstanding membership interests of the Transferor, all of which have been validly issued, are fully paid and nonassessable and are owned free and clear of all Liens, warrants, options and rights to purchase.

(b) Anti-Corruption Laws and Sanctions. It has implemented and maintains in effect policies and procedures designed to ensure compliance by it and its Subsidiaries, directors, officers, employees and agents with Anti-Corruption Laws and applicable U.S. Sanctions, and it, each of its respective Subsidiaries, its respective officers and employees, and to its knowledge, its respective directors and agents, is in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. None of it, any of its Subsidiaries or any director, officer, employee, agent or affiliate of it or any of its Subsidiaries that will act in any capacity in connection with or benefit from the facility established hereby, is a Sanctioned Person. No Incremental Funding, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.

(c) Authority. It is duly qualified to do business and is in good standing (or is exempt from such requirements) in each State of the United States where the nature of its business requires it to be so qualified and the failure to be so qualified and in good standing would have a Material Adverse Effect on the interests of the Owners.

Section 3.4 Additional Representations and Warranties of the Guarantor. Each of TMUS and TMUSA represents and warrants to the Owners, the Funding Agents and the Administrative Agent that as of the 2018 Amendment Closing Date and as of each Addition Date thereafter:

(a) Organization and Good Standing. It is a duly organized and validly existing corporation in good standing under the laws of the State of Delaware, with the power and authority under its organizational documents and under the laws of Delaware to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted and to execute, deliver and perform its obligations under this Agreement, and the Performance Guaranty.

(b) Licenses and Approvals. It is duly qualified to do business and is in good standing as a foreign corporation (or is exempt from such requirements) and has obtained all necessary licenses and approvals in order to be able to execute, deliver and perform its obligations under the Performance Guaranty and this Agreement, in each jurisdiction in which the conduct of its business requires such qualification, except where the failure to do so would not have a Material Adverse Effect.

 

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(c) Power and Authority. It has the power and authority to execute and deliver this Agreement and the Performance Guaranty and to perform its obligations hereunder and thereunder; and the execution, delivery and performance of this Agreement and the Performance Guaranty, and the consummation by it of the transactions provided for or contemplated thereby, have been duly authorized by it by all necessary corporate action.

(d) Binding Obligation. This Agreement and the Performance Guaranty constitute legal, valid and binding obligations of it, enforceable against it in accordance with their respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and to general principles of equity, whether applied in a proceeding in equity or at law.

(e) No Violation. The execution and delivery of this Agreement and the Performance Guaranty, the performance of the transactions contemplated by this Agreement and the Performance Guaranty, and the fulfillment of the terms of this Agreement and the Performance Guaranty by it, will not conflict with, result in any breach of any of the terms or provisions of or constitute (with or without notice or lapse of time or both) a default under, its organizational documents or any indenture, agreement, mortgage, deed of trust or other instrument to which it is a party or by which it or its properties is bound, or violate any material Requirements of Law applicable to it.

(f) No Proceedings. There are no actions, suits, proceedings or investigations pending, or to its knowledge threatened, against it before any court, arbitrator or Governmental Authority having jurisdiction over it: (i) asserting the invalidity of this Agreement or the Performance Guaranty; (ii) seeking to prevent the consummation of any of the transactions contemplated by this Agreement or the Performance Guaranty; or (iii) seeking any determination or ruling that would have a Material Adverse Effect. It is not in default with respect to any order, judgment or decree of any court, arbitrator or Governmental Authority.

(g) No Consents. No consent, license, approval, registration, authorization or declaration of or with any Governmental Authority or other Person is necessary in connection with the execution of delivery of this Agreement or the Performance Guaranty, or performance of the transactions contemplated hereby or thereby, that has not already been obtained except where the failure to so obtain would not have a material adverse effect on the ability of the Guarantor to perform its obligations hereunder.

(h) Financial Statements. (i) The audited consolidated balance sheet of TMUS and its consolidated subsidiaries as of December 31, 2017 and the related consolidated statements of income and cash flows for the fiscal year then ended, delivered to the Administrative Agent on or prior to the 2018 Amendment Closing Date, fairly present, in conformity with GAAP, the consolidated financial position of TMUS and its consolidated subsidiaries as of such date and their consolidated results of operations and cash flows for such fiscal year; and (ii) the unaudited consolidated balance sheet of TMUS and its consolidated subsidiaries as of June 30, 2018 and

 

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the related unaudited consolidated statements of income and cash flows for the three months then ended, delivered to the Administrative Agent on or prior to the 2018 Amendment Closing Date, fairly present in all material respects, in conformity with GAAP applied on a basis consistent with the financial statements referred to in clause (i) above (except as described in the notes thereto), the financial position of TMUS and its consolidated subsidiaries as of such date and their consolidated results of operations and cash flows for such three month period (subject to normal year-end adjustments).

(i) ERISA. It does not maintain or contribute to any Plan, nor has it maintained or contributed to any Plan within the preceding five (5) years, except for, effective as of the date of the closing of the Sprint Transaction, the Sprint Retirement Pension Plan with respect to which no liability that would reasonably be expected to result in a Material Adverse Effect has occurred or will occur.

(j) Anti-Money Laundering. The Guarantor warrants that it is acting on its own behalf with respect to all matters associated with this Agreement. The Guarantor undertakes to provide each Funding Agent and Owner, upon its reasonable request, with all information and documents which such Funding Agent or Owner requires in order to comply with its obligations under all applicable anti-money laundering laws (including Geldwäschegesetz).

Section 3.5 Representations and Warranties of the Conduit Purchasers and Committed Purchasers.

(a) Each Conduit Purchaser hereby represents and warrants to the Transferor, Finco and the Guarantor that it is not required to register as an “investment company” nor is it controlled by an “investment company” within the meaning of the Investment Company Act.

(b) Each Conduit Purchaser (each with respect to itself only) hereby represents and warrants to the Transferor, Finco and the Guarantor that it is a Multi-Seller Conduit.

(c) Each Conduit Purchaser and Committed Purchaser (each with respect to itself only) represents and warrants that it is a “qualified institutional buyer” as defined in Rule 144A of the Securities Act of 1933, as amended; provided, that such party makes no representation or statement as to whether the purchase of Transferred Assets hereunder constitutes a security.

(d) The Conduit Purchasers and Committed Purchasers hereby notify the Transferor that pursuant to the requirements of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT Act”), it is required to obtain, verify and record information that identifies the Transferor, which information includes the name, address, tax identification number and other information that will allow the Conduit Purchasers and Committed Purchasers, as applicable, to identify the Transferor in accordance with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act.

 

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Section 3.6 Covenants of the Transferor. The Transferor covenants and agrees, through the Termination Date, that:

(a) Compliance with Covenants. It will perform and observe for the benefit of the Owners each of the covenants and agreements required to be performed or observed by it in this Agreement and the Related Documents to which it is a party.

(b) Maintain Existence. It will preserve and maintain its existence, rights, franchises and privileges in the jurisdiction of its formation, and qualify and remain qualified in good standing as a foreign trust or limited liability company in each jurisdiction where its business is conducted, and will obtain and maintain all requisite authority to conduct its business in each jurisdiction in which its business requires such authority.

(c) Compliance with Requirements of Law. It shall comply in all material respects with all Requirements of Law and preserve and maintain its existence, rights, franchises, qualifications, and privileges except to the extent that the failure so to comply with such applicable Requirements of Law or the failure so to preserve and maintain such existence, rights, franchises, qualifications and privileges would not materially adversely affect the collectability of the Receivables, its ability to conduct its business or its ability to perform its obligations under this Agreement and the Related Documents in all material respects.

(d) Ownership. It shall take all necessary action to (i) vest legal and equitable title in the Transferred Receivables and Related Rights on such Transferred Receivables in the Administrative Agent (for the benefit of the Owners), free and clear of any Liens (including, without limitation, the filing of all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the Administrative Agent’s (for the benefit of the Owners) interest in such Transferred Receivables and Related Rights on such Transferred Receivables, and such other action to perfect, protect or more fully evidence the interest of the Administrative Agent (for the benefit of the Owners) therein as the Administrative Agent may reasonably request, and (ii) cooperate (as the Administrative Agent may reasonably request) in the establishment and maintenance, in favor of the Administrative Agent’s (for the benefit of the Owners), of a valid and perfected first priority perfected security interest in the Transferred Assets to the full extent contemplated herein and in the Sale Agreement, free and clear of any Liens (including, without limitation, the filing of all financing statements or other similar instruments or documents necessary under the Relevant UCC (or any comparable law) of all appropriate jurisdictions to perfect the Administrative Agent’s (for the benefit of the Owners) security interest in the Transferred Assets and such other action to perfect, protect or more fully evidence the interest of the Administrative Agent (for the benefit of the Owners) as the Administrative Agent may reasonably request.

(e) Furnish Certain Information; Further Assurances. It will furnish (or cause to be furnished) to the Administrative Agent and each Funding Agent: (i) promptly after the execution thereof, copies of all amendments of and waivers with respect to this Agreement and the other Related Documents; (ii) copies of all financial statements that the Transferor furnished (or required to be furnished) pursuant to this Agreement and the other Related Documents concurrently therewith; (iii) a copy of each material certificate, report, statement, notice or other communication furnished (or required to be furnished) by or on behalf of the Transferor pursuant to this Agreement and the other Related Documents concurrently therewith; (iv) a copy of each material notice, demand or other communication furnished (or required to be furnished) by or on

 

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behalf of the Transferor pursuant to this Agreement and the other Related Documents concurrently therewith; and (v) such other information, documents, records or reports respecting the Transferred Assets, the related Obligors, the Transferor which is in the possession or under the control of the Transferor as any such Funding Agent may from time to time reasonably request; provided, that (x) prior to the occurrence and continuation of an Amortization Event, Servicer Default or Termination Event, such information provided to the Administrative Agent and the Funding Agents shall be limited to the T-Mobile Information, and (y) following the occurrence or, to the extent required, declaration, of an Amortization Event, Servicer Default or Termination Event, the Administrative Agent and each Funding Agent shall receive any information with respect to the Receivables that it in good faith believes is reasonably necessary for the Administrative Agent and the Funding Agents to evaluate and/or enforce their rights and remedies under this Agreement and the other Related Documents with respect to such Transferred Receivables.

(f) No Liens. Except for any conveyance under this Agreement and the other Related Documents, it will not sell, pledge, assign (by operation of law or otherwise) or transfer to any other Person, or otherwise dispose of, or grant, create, incur, assume or suffer to exist any Lien on, any Transferred Receivable, Related Rights or Collections on such Transferred Receivables, whether now existing or hereafter created, or any interest therein, or assign any right to receive income in respect thereof, or take any other action inconsistent with the Administrative Agent’s (for the benefit of the Owners) ownership of, the Transferred Receivables, Related Rights and Collections on such Transferred Receivables, except to the extent arising under this Agreement and the other Related Documents, and it shall defend the right, title and interest of the Administrative Agent (for the benefit of the Owners) in, to and under the Transferred Receivables, the Related Rights and the Collections on such Transferred Receivables, whether now existing or hereafter created, against all claims of third parties claiming through or under Finco or its assigns.

(g) Name Change, Offices and Records. It will not make any change to its name (within the meaning of Section 9-507 of any applicable enactment of the UCC), type or jurisdiction of organization or location of its books and records unless, at least thirty (30) days prior to the effective date of any such name change, change in type or jurisdiction of organization, or change in location of its books and records it notifies the Servicer and the Administrative Agent thereof and (except with respect to a change of location of books and records) delivers to the Administrative Agent (i) such financing statements (Forms UCC-1 and UCC-3) which the Administrative Agent may reasonably request to reflect such name change, or change in type or jurisdiction of organization, (ii) if the Administrative Agent shall so request, an opinion of counsel, in form and substance reasonably satisfactory to such Person, as to the perfection and priority of the Administrative Agent’s ownership of and security interest in the Transferred Receivables and Related Rights (for the benefit of the Owners) and (iii) such other documents, agreements and instruments that the Administrative Agent may reasonably request in connection therewith.

 

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(h) Protection of Owners’ Rights. It will take no action, nor omit to take any action, which could reasonably be expected to materially impair the rights of the Administrative Agent and the Owners in the Transferred Receivables and the Related Rights granted pursuant to this Agreement, or materially adversely affect the collectability of the Transferred Assets, or reschedule, revise or defer payments due on any Transferred Receivable, or amend, modify or waive in any material respect any term or condition relating to payments due on any Transferred Receivable, or modify the terms of any Transferred Receivable in a manner that would result in the dilution of such Transferred Receivable or that would otherwise prevent such Transferred Receivable from being an Eligible Receivable, except (i) in accordance with the Credit and Collection Policies (ii) as ordered by a court of competent jurisdiction or other Governmental Authority, (iii) such Transferred Receivable is deemed not to be an Eligible Receivable and such event does not result in an Asset Base Deficiency, (iv) with the prior consent of the Required Owners, (v) as otherwise stated herein, or (vi) pursuant to Requirements of Law, or (vii) with respect to any COVID Deferring Receivable in accordance with the COVID Deferral Program.

(i) Inspection. It shall cooperate with Finco, the Administrative Agent and each Funding Agent in connection with any Inspection pursuant to Section 6.2(a); provided, that any such inspection of the Transferor shall occur at the same time as any Inspection of Finco pursuant to Section 6.2(a).

(j) Fulfillment of Obligations. It will (i) duly observe and perform, or cause to be observed or performed, all material obligations and undertakings on its part to be observed and performed under this Agreement, the Related Documents and the Receivables, (ii) subject to the terms hereof and the Credit and Collection Policies, duly observe and perform all material provisions, covenants and other promises required to be observed by it under the Receivables, and (iii) pay when due (or contest in good faith) any taxes, including without limitation any sales tax, excise tax or other similar tax or charge, payable by the Transferor in connection with the Receivables and their creation and satisfaction.

(k) Enforcement. It will take all action necessary and appropriate to enforce its rights and claims under this Agreement and the other Related Documents.

(l) Notices. It will notify each Funding Agent in writing of any of the following promptly upon learning of the occurrence thereof, describing the same and, if applicable, such written notice shall be accompanied by a statement of the chief financial officer or chief accounting officer of the Transferor describing the steps, if any, being taken with respect thereto:

(i) any Asset Base Deficiency, Amortization Event, Potential Amortization Event, Termination Event, Potential Termination Event, Servicer Default or Potential Servicer Default, but in any event within five (5) days;

(ii) the institution of any litigation, investigation, arbitration proceeding or governmental proceeding against the Transferor which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or the entry of any judgment or decree or the institution of any litigation, investigation, arbitration proceeding or governmental proceeding against the Transferor which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, but in any event within ten (10) Business Days;

 

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(iii) any Lien made or asserted against a material portion of the Transferred Assets, other than conveyances hereunder and under the Sale Agreement, to the extent such notice is not provided by Finco; and

(iv) any Material Adverse Effect.

(m) [Reserved].

(n) Eligible Interest Rate Caps. The Transferor (i) entered into an Eligible Interest Rate Cap on the Original Closing Date, (ii) entered into an Eligible Interest Rate Cap on the 2016 Amendment Closing Date, (iii) entered into a new Eligible Interest Rate Cap in connection with the 2017 Amendment Closing Date, (iv) will enter into a new Eligible Interest Rate Cap prior to November 20, 2018, and (v) shall at all times maintain in full force and effect the Eligible Interest Rate Caps or any other hedging agreements in accordance with the Hedging Requirements specified on Exhibit D hereto.

(o) Statement for and Treatment of Sales. The Transferor shall not treat any transfer of Receivables, Related Rights and Collections on such Receivables by Finco to the Transferor under the Sale Agreement in any manner other than as a sale for all purposes (other than tax purposes).

(p) Compliance and Separateness.

(i) During the term of this Agreement, the Transferor will, subject to the terms of this Agreement, keep in full force and effect its existence, rights and franchises as a limited liability company under the laws of the jurisdiction of its formation and will obtain and preserve its qualification to do business in each jurisdiction in which such qualification is or shall be necessary to protect the validity and enforceability of this Agreement and the other Related Documents to which it is a party, and each other instrument or agreement necessary or appropriate to the proper administration of this Agreement and the transactions contemplated thereby.

(ii) Except as otherwise provided in the Related Documents, during the term of this Agreement the Transferor will observe the following applicable legal requirements for the recognition of the Transferor as a legal entity separate and apart from its Affiliates, and the Transferor shall:

 

  (1)

maintain books and records separate from any other person or entity;

 

  (2)

maintain its own deposit, securities and other account or accounts, separate from any other person or entity, with financial institutions;

 

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  (3)

ensure that, to the extent that it jointly contracts with any of its members or Affiliates to do business with vendors or service providers or to share overhead expenses, the costs incurred in so doing shall be allocated fairly among such entities, and each such entity shall bear its fair share of such costs. To the extent that the Transferor contracts or does business with vendors or service providers where the goods and services provided are partially for the benefit of any other Person, the costs incurred in so doing shall be fairly allocated to or among such entities for whose benefit the goods and services are provided, and each such entity shall bear its fair share of such costs;

 

  (4)

conduct its affairs strictly in accordance with its limited liability company agreement and observe all necessary, appropriate and customary company formalities;

 

  (5)

ensure that its board of directors shall at all times include at least one Independent Director;

 

  (6)

not commingle its assets with those of any other person or entity;

 

  (7)

conduct its business (i) in its own name and not that of an Affiliate, and (ii) to the extent it maintains office space, from an office separate from that of the Member (but which may be located in the same facility as and leased from the Member) at which will be maintained its own separate limited liability company books and records;

 

  (8)

other than as contemplated herein, in the Sale Agreement or in one of the Related Documents and related documentation, pay its own liabilities and expenses only out of its own funds;

 

  (9)

observe all formalities required under the Delaware Limited Liability Company Act;

 

  (10)

not guarantee or become obligated for the debts of any other person or entity;

 

  (11)

ensure that no Affiliate of the Transferor shall advance funds to the Transferor, and no Affiliate of the Transferor will otherwise guaranty debts of the Transferor;

 

  (12)

not hold out its credit as being available to satisfy the obligation of any other person or entity;

 

  (13)

not acquire the obligations or securities of its Affiliates;

 

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  (14)

not make loans to any other person or entity or buy or hold evidence of indebtedness issued by any other person or entity;

 

  (15)

other than as contemplated herein, in the Sale Agreement or in one of the Related Documents and related documentation, not pledge its assets for the benefit of any other person or entity;

 

  (16)

hold itself out as a separate entity from its Affiliates and not conduct any business in the name of any of its Affiliates;

 

  (17)

correct any known misunderstanding regarding its separate identity;

 

  (18)

ensure that decisions with respect to its business and daily operations shall be independently made by the Transferor (although the officer making any particular decision may also be an officer or director of an Affiliate of the Transferor) and shall not be dictated by an Affiliate of the Transferor;

 

  (19)

other than organizational expenses and as expressly provided herein, pay all expenses, indebtedness and other obligations incurred by it using its own funds;

 

  (20)

not identify itself as a division of any other person or entity;

 

  (21)

conduct business with its Affiliates on an arm’s-length basis on terms no more favorable to either party than the terms that would be found in a similar transaction involving unrelated third parties;

 

  (22)

not engage in any business or activity of any kind, or enter into any transaction, indenture, mortgage, instrument, agreement, contract, lease or other undertaking which is not directly related to the transactions contemplated and authorized by this Agreement or the other Related Documents; and

  (23)

comply with the limitations on its business and activities as set forth in its certificate of formation and shall not incur indebtedness other than pursuant to or as expressly permitted by the Related Documents.

(iii) During the term of this Agreement, the Transferor will comply with the limitations on its business and activities, as set forth in its certificate of formation, and will not incur indebtedness other than pursuant to or as expressly permitted by herein or in one of the other Related Documents.

 

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(q) Beneficial Ownership Rule. Promptly following any change in the information included in the Beneficial Ownership Exemption Certification delivered on the 2018 Amendment Closing Date that would result in a change to the status as an exempt party identified in such certification, or a change in the address of any beneficial owners or control party, the Transferor shall execute and deliver to the related Funding Agent(s) a Beneficial Ownership Certification or an updated Beneficial Ownership Exemption Certification, as applicable.

(r) PATRIOT Act. Promptly following any request therefor, the Transferor shall deliver to the Funding Agents all documentation and other information required by bank regulatory authorities requested by any Funding Agent for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act, the Beneficial Ownership Rule or other applicable anti-money laundering laws, rules and regulations.

Section 3.7 Covenants of Finco and the Servicer. Each of Finco and the Servicer covenants and agrees through the Termination Date, that:

(a) Compliance with Covenants. Finco will perform and observe for the benefit of the Owners each of the covenants and agreements required to be performed or observed by it in this Agreement and the other Related Documents to which it is a party.

(b) Furnish Certain Information. Finco will furnish (or cause to be furnished) to each Funding Agent: (i) promptly after the execution thereof, copies of all amendments of and waivers with respect to this Agreement and the other Related Documents; (ii) copies of all financial statements, compliance certificates and other financial reports that Finco or the Servicer furnished (or required to be furnished) pursuant to this Agreement and the other Related Documents concurrently therewith; (iii) a copy of each certificate, report, statement, notice or other communication furnished (or required to be furnished) by or on behalf of Finco, the Transferor or the Servicer to the Servicer or the Administrative Agent pursuant to this Agreement and the other Related Documents concurrently therewith; (iv) a copy of each material notice, demand or other communication furnished (or required to be furnished) by or on behalf of Finco, the Transferor or the Servicer pursuant to this Agreement and the other Related Documents concurrently therewith; and (v) such other information, documents, records or reports respecting the Transferred Assets, the Obligors, Finco or the Servicer, or the condition or operations, financial or otherwise, of Finco, which is in the possession or under the control of Finco as any such Funding Agent may from time to time reasonably request; provided, that (x) prior to the occurrence and continuation of an Amortization Event, Servicer Default or Termination Event, such information provided to the Administrative Agent and the Funding Agents shall be limited to the T-Mobile Information, and (y) following the occurrence or, to the extent required, declaration, of an Amortization Event, Servicer Default or Termination Event, the Administrative Agent and each Funding Agent shall receive any information with respect to the Receivables that it in good faith believes is reasonably necessary for the Administrative Agent and the Funding Agents to evaluate and/or enforce their rights and remedies under this Agreement and the other Related Documents with respect to such Transferred Receivables.

 

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(c) Reporting. Finco will maintain a system of accounting established and administered in accordance with GAAP, and furnish or cause to be furnished to the Administrative Agent and each Funding Agent on or before April 30 of each year a copy of the Credit and Collection Policies then in effect.

(d) Notices. Finco will notify each Funding Agent in writing of any of the following promptly upon learning of the occurrence thereof, describing the same and, if applicable, such written notice shall be accompanied by a statement of the chief financial officer or chief accounting officer of Finco describing the steps, if any, being taken with respect thereto:

(i) any Asset Base Deficiency, Amortization Event, Potential Amortization Event, Termination Event, Potential Termination Event, Servicer Default or Potential Servicer Default, but in any event within five (5) days;

(ii) the institution of any litigation, investigation, arbitration proceeding or governmental proceeding against Finco or any of its subsidiaries which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or the entry of any judgment or decree or the institution of any litigation, investigation, arbitration proceeding or governmental proceeding against Finco or any of its subsidiaries which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and in any event within ten (10) Business Days;

(iii) any Lien made or asserted against a material portion of the Transferred Assets, other than conveyances hereunder and under the Sale Agreement;

(iv) the decision to appoint a new director or manager of the Transferor as the “Independent Director” for purposes of this Agreement, such notice to be issued not less than ten (10) days prior to the effective date of such appointment and to certify that the designated Person satisfies the criteria set forth in the definition herein of “Independent Director”; and

(v) any Material Adverse Effect.

(e) Compliance with Requirements of Law. Finco shall duly satisfy all obligations on its part to be fulfilled under or in connection with the Transferred Assets and the related Receivables, will maintain in effect all material qualifications required under applicable Requirements of Law in order to properly service the Transferred Assets and the related Receivables and will comply in all material respects with all other applicable Requirements of Law in connection with servicing the Transferred Assets and the related Receivables.

(f) Maintenance of Records and Books. Finco shall maintain and implement administrative and operating procedures (including the ability to recreate records evidencing the Receivables (and the Related Rights) in the event of the destruction of the originals thereof), and keep and maintain all documents, books, computer records and other information, reasonably necessary or advisable for the Collection of all the Transferred Assets. Such documents, books and computer records shall reflect all facts giving rise to the Receivables (and the Related Rights), all payments and credits with respect thereto, and such documents, books and computer

 

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records shall identify the Transferred Assets clearly and unambiguously to reflect that the Transferred Assets are owned by the Administrative Agent (for the benefit of the Owners). Finco will give the Administrative Agent and each Funding Agent prompt notice of any material change in the administrative and operating procedures referred to in the previous sentence, to the extent such change is likely to have a Material Adverse Effect.

(g) Compliance with Credit and Collection Policies. Finco will timely and fully (i) perform and comply in all material respects with provisions, covenants and other promises required to be observed by it under the Credit Agreements related to the Transferred Receivables, and (ii) comply in all material respects with the Credit and Collection Policies in regard to the Transferred Receivables and the related Credit Agreements.

(h) Ownership. Finco will take all necessary action to (i) vest legal and equitable title to the Transferred Receivables, Related Rights and Collections on the related Transferred Receivables irrevocably in the Administrative Agent (for the benefit of the Owners), free and clear of any Liens (including, without limitation, the filing of all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the Administrative Agent’s (for the benefit of the Owners) interest in such Transferred Receivables, Related Rights and Collections on the related Transferred Receivables and such other action to perfect, protect or more fully evidence the interest of the Administrative Agent (for the benefit of the Owners) therein as the Administrative Agent or the Funding Agents may reasonably request, and (ii) cooperate (as the Funding Agents or the Administrative Agent may reasonably request) in the establishment and maintenance, in favor of the Administrative Agent, of a valid and perfected first priority perfected security interest in the Transferred Assets to the full extent contemplated herein, free and clear of any Liens (including, without limitation, the filing of all financing statements or other similar instruments or documents necessary under the UCC (or any comparable law) of all appropriate jurisdictions to perfect the Administrative Agent’s security interest in the Transferred Assets and such other action to perfect, protect or more fully evidence the interest of the Administrative Agent as the Administrative Agent may reasonably request).

(i) Collections. The Servicer shall instruct all Obligors on the Transferred Receivables to remit all payments with respect to the Transferred Assets directly to the Servicer or to an account designated by the Servicer. The Servicer shall cause Collections on the Transferred Receivables and other amounts on deposit in the Servicer’s accounts to be remitted to the Collection Account to the extent provided under this Agreement. The Servicer will not instruct any Obligor to make payments in respect of the Receivables or the other Transferred Assets to any Person, address or location other than to the Servicer, or to any account other than the account or accounts designated by the Servicer. The Servicer shall not make any change in its instructions to Obligors regarding payments to be made to it (other than changes with respect to the mailing addresses for remittances) unless the Funding Agents shall have received, at least ten (10) Combined Business Days before the proposed effective date therefore, written notice of such change.

 

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(j) Protection of Owners’ Rights. Finco shall take no action, nor omit to take any action, which could reasonably be expected to materially impair the rights of the Owners in the Transferred Receivables or materially adversely affect the collectability of the Transferred Assets, except with respect to any COVID Deferring Receivable in accordance with the COVID Deferral Program.

(k) [Reserved].

(l) Jump Contracts. Finco agrees not to take any action with respect to the Jump Contracts, Jump Contract Features or Eligible Jump Receivables that could reasonably be expected to have a Material Adverse Effect without the prior written consent of the Required Owners.

(m) Taxes. Finco will file all material tax returns and reports required by law to be filed by it (including proper extensions) and will promptly pay all material taxes and governmental charges at any time owing by it, except any such taxes which are not yet delinquent or are being contested in good faith by appropriate proceedings and for which adequate reserves have been established on its books and records in accordance with GAAP.

(n) Separate Existence. Finco will take all reasonable steps (including, without limitation, all steps necessary or that the Administrative Agent may from time to time reasonably request) to maintain the Transferor’s identity as a separate legal entity from it and to make it manifest to third parties that the Transferor is an entity with assets and liabilities distinct from those of it and each of its other Affiliates. Without limiting the generality of the foregoing, Finco shall:

(i) cause the board of directors or managers of the Transferor to at all times have at least one (1) member of which is an Independent Director;

(ii) cause the Transferor to conduct its affairs strictly in accordance with its limited liability company agreement and to observe all necessary, appropriate and customary company formalities as a distinct entity, and ensure that all company actions relating to (A) the selection, maintenance or replacement of any Independent Director, (B) its dissolution or liquidation or (C) the initiation of, participation in, acquiescence in or consent to any bankruptcy, insolvency, reorganization or similar proceeding of it are duly authorized by unanimous vote of its board of directors or managers (including the Independent Directors);

(iii) maintain its books and records separate from those of the Transferor and maintain records of all intercompany debits and credits and transfers of funds made by it on the Transferor’s behalf;

(iv) except as otherwise contemplated under this Agreement or the other Related Documents, prevent the commingling of its funds or other assets with those of the Transferor, and not maintain bank accounts or other depository accounts to which the Transferor is an account party, into which the Transferor makes deposits or from which the Transferor has the power to make withdrawals except as otherwise contemplated hereunder or under the other Related Documents with respect to the Servicer’s administration of Collections on the Receivables;

 

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(v) not enter into or permit to exist any transaction (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with the Transferor which is on terms that are less favorable to it than those that might be obtained in an arm’s length transaction at the time from Persons who are not Affiliates and which is not evidenced by or pursuant to a written agreement;

(vi) not pay the operating expenses and liabilities of the Transferor;

(vii) conduct its business separate and distinct from the offices of, or any space occupied by, the Transferor and allocate fairly with the Transferor any overhead, if relevant, for shared office space or business facilities or equipment;

(viii) conduct its business and act solely in its own name, through its own officials or representatives where relevant, and not hold the Transferor out as a “division” or “part” of it (although litigation may be filed with respect to the Collections on the Receivables in the name of the Servicer);

(ix) have business forms separate from that of the Transferor;

(x) cause any financial statements consolidated with those of the Transferor to state that the Transferor’s business consists of the purchase of Receivables from it and that the Transferor is a separate legal entity with its own separate creditors who, in any liquidation of the Transferor, will be entitled to be satisfied out of the Transferor’s assets prior to any value in the Transferor becoming available to the Transferor’s equity holders; and

(xi) take all other actions reasonably necessary on its part to operate its business and perform its obligations under this Agreement and the Sale Agreement in a manner consistent with the factual assumptions described in the legal opinions with respect to non-consolidation and true sale matters of Mayer Brown LLP delivered to the Administrative Agent and the Funding Agents pursuant to this Agreement and the Related Documents on the 2020 Amendment Closing Date, as applicable, to the extent applicable to it.

(o) Further Assurances. Subject to Section 3.7(b), Finco shall furnish the Administrative Agent and any Funding Agent from time to time such statements and schedules further identifying and describing the Transferred Assets and such other reports or other information reasonably related to this Agreement, the Sale Agreement and the Related Documents in connection with the Transferred Assets as the Administrative Agent or such Funding Agent may reasonably request, all in reasonable detail.

(p) Independent Accountants’ Reports and Servicing Reviews. In the event that any report, compliance statement or attestation, including the reports of the independent accountants, prepared pursuant to this Agreement discloses or identifies any material weakness, deficiency or other adverse occurrence relating to the performance of the Servicer’s or the Transferor’s obligations pursuant to this Agreement or the Related Documents, then the Servicer shall, and shall cause the Transferor to, use commercially reasonable efforts as promptly as reasonably possible to remedy, cure or correct the issues giving rise to such disclosure.

 

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(q) No Liens. Except for the conveyances under this Agreement or the Related Documents, Finco will not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any Lien on, any Transferred Receivable, the Related Rights or Collections on such Transferred Receivable, whether now existing or hereafter created, or any interest therein, and Finco shall defend the right, title and interest of the Transferor and the Administrative Agent (for the benefit of the Owners) in, to and under the Transferred Receivable, the Related Rights and the Collections on such Transferred Receivables, whether now existing or hereafter created, against all claims of third parties claiming through or under Finco or its assigns.

(r) Name Change, Offices and Records. Finco will not make any change to its name (within the meaning of Section 9-507 of any applicable enactment of the UCC), type or jurisdiction of organization or location of its books and records unless, at least thirty (30) days prior to the effective date of any such name change, change in type or jurisdiction of organization, or change in location of its books and records Finco notifies the Administrative Agent thereof and (except with respect to a change of location of books and records) delivers to the Administrative Agent (i) such financing statements (Forms UCC-1 and UCC-3) which the Administrative Agent may reasonably request to reflect such name change, or change in type or jurisdiction of organization, (ii) if the Administrative Agent shall so request, an opinion of counsel, in form and substance reasonably satisfactory to such Person, as to the perfection and priority of the Owners’ ownership interest in, and the Administrative Agent’s security interest in the Transferred Receivable, Related Rights and Collections on the Transferred Receivable and (iii) such other documents, agreements and instruments that the Administrative Agent may reasonably request in connection therewith.

(s) Third Party Reviews; Reports. (i) If an Amortization Event, Potential Amortization Event, Termination Event, Potential Termination Event, Servicer Default or Potential Servicer Default is not continuing, then once per year (A) on or prior to July 31 of each calendar year (or, with respect to the first such report delivered hereunder, on or prior to August 31, 2016), or (B) on or prior to such other date as the Administrative Agent, each Funding Agent and the Transferor may mutually agree, or (ii) if an Amortization Event, Potential Amortization Event, Termination Event, Potential Termination Event, Servicer Default or Potential Servicer Default has occurred and is continuing, then at such frequency and on such dates as the Administrative Agent may request, but not more frequently than once per calendar quarter, the Administrative Agent and each Funding Agent shall receive a written report delivered by an independent accounting firm reasonably acceptable to the Administrative Agent and each Funding Agent addressing such procedures and scope identified on Annex B hereto, or otherwise addressing such additional procedures and scope reasonably requested by the Administrative Agent and the Funding Agents from time to time and consented to by the Transferor (which consent shall not be unreasonably withheld). The procedures performed and written report prepared with respect thereto shall be at the expense of the Servicer and shall be in form and substance satisfactory to the Administrative Agent and each Funding Agent.

 

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(t) Modifications to Credit and Collection Policies. (i) Finco shall provide prompt written notice to the Administrative Agent and each Funding Agent in connection with any material change in, or any material amendment to, the Credit and Collection Policies. Except for (x) changes mandated by Requirements of Law or (y) changes with respect to any COVID Deferring Receivable in accordance with the COVID Deferral Program, Finco will not, without the prior written consent of the Required Owners (as provided in the following sentence), make any proposed change or amendment to the Credit and Collection Policies that would be reasonably likely to materially adversely affect the collectability of the Transferred Receivables (or any Related Rights), or materially decrease the credit quality of any new Transferred Receivables (in each case, taken as a whole). If consent of the Required Owners is required pursuant to the immediately preceding sentence, then Finco will furnish or cause to be furnished to the Administrative Agent and each Funding Agent at least ten (10) days prior to the effectiveness of any material change in or material amendment to the Credit and Collection Policies, a copy of the Credit and Collection Policies then in effect, a notice indicating such change or amendment, and a request for consent thereto.

(ii) So long as this Agreement remains in effect, Finco shall keep accurate and complete records describing each amendment or other change to (A) the Credit and Collection Policies implemented and adopted from time to time, whether or not material and whether or not consented to by the Required Owners pursuant to the terms of this Agreement or (B) the system used by Finco or TMUS (as the case may be) to monitor and/or score the creditworthiness of the Obligors (the “Credit and Collection Policies Log”). On or before April 30 of each year, beginning in 2016, Finco agrees to provide to Helaba a copy of the Credit and Collection Policies Log for the twelve months ended the immediately preceding December 31. In connection with their receipt of the Credit and Collection Policies Log, Helaba: (a) agrees to be bound by the same terms and conditions relating to receipt of information and confidentiality set forth in this Agreement, and (b) may reasonably request additional information from Finco reasonably required to analyze, evaluate or interpret any entries relating to the Credit and Collection Policies Log; provided, that such information shall not include any Subscriber Information (as such term is defined in Annex C hereto).

(u) Extension or Amendment of Receivables. Subject to compliance with all Requirements of Law, Finco, may, in accordance with the Credit and Collection Policies, extend the maturity, adjust the Principal Balance or otherwise modify the payment terms of any Transferred Receivable as it deems appropriate; provided, that such extension, adjustment or modification shall not (i) except with respect to any COVID Deferring Receivable in accordance with the COVID Deferral Program, modify or alter the status of any Transferred Receivable as a Defaulted Receivable or a Delinquent Receivable, (ii) after giving effect to any such adjustment or modification cause an Adverse Effect or (iii) after giving effect to any such adjustment or modification cause an Asset Base Deficiency to exist.

(v) Limitation on Transactions with the Transferor. Finco will not enter into, or be a party to any transaction with the Transferor, except for (i) the transactions contemplated by this Agreement and the other Related Documents; (ii) capital contributions by Finco to the Transferor which are in compliance with this Agreement and the other Related Documents; and (iii) to the extent not otherwise prohibited under this Agreement or the other Related Documents, other transactions in the nature of employment contracts and directors’ fees, upon fair and reasonable terms materially no less favorable to the Transferor than would be obtained in a comparable arm’s-length transaction with a Person not an Affiliate.

 

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(w) Accounting. Except for treatment with respect to tax reporting and treatment of transactions under this Agreement (which will not affect the legal true sale of the Transferred Receivables and Related Rights), Finco will not, and will not permit any Affiliate to, account for or treat (whether in financial statements or otherwise) the transactions contemplated by the Sale Agreement and this Agreement, as applicable, in any manner other than the sales and contributions of the Transferred Assets by Finco to the Transferor, and the transfers of the Transferred Assets by the Transferor to the Administrative Agent (for the benefit of the Owners), or in any other respect account for or treat the transactions contemplated hereby in any manner other than as sales of such Transferred Assets to the Transferor and transfers of such Transferred Assets to the Administrative Agent (for the benefit of the Owners).

(x) Receivables Schedules. It shall deliver to the Administrative Agent the initial Receivables Schedule delivered to the Administrative Agent and Funding Agents on the Original Closing Date and each updated or supplemented Receivables Schedule and Daily Receivables File delivered to the Administrative Agent pursuant to this Agreement or the Sale Agreement on each Determination Date or Addition Date, as applicable (which delivery may occur in electronic format).

(y) Maintain Existence. Finco will preserve and maintain its existence, rights, franchises and privileges in the jurisdiction of its incorporation, and qualify and remain qualified in good standing as a corporation in each jurisdiction where its business is conducted, and will maintain all requisite authority to conduct its business in each jurisdiction in which its business requires such authority.

(z) Fulfillment of Obligations. Finco will (i) duly observe and perform, or cause to be observed or performed, all material obligations and undertakings on its part to be observed and performed under this Agreement, the Related Documents and the Receivables, (ii) subject to the terms hereof and the Credit and Collection Policies, duly observe and perform all material provisions, covenants and other promises required to be observed by it under the Receivables, (iii) do nothing to materially impair the rights, title and interest of the Owners in and to the Transferred Assets and (iv) pay when due (or contest in good faith) any material taxes, including without limitation any sales tax, excise tax or other similar tax or charge, payable by Finco in connection with the Receivables and their creation and satisfaction.

(aa) Total Systems Failure. Finco shall promptly notify the Administrative Agent and each Funding Agent of any total failure of any systems necessary for the performance of its servicing obligations under this Agreement or the other Related Documents (a “total systems failure”) and shall advise the Administrative Agent and each Funding Agent of the estimated time required to remedy such total systems failure and of the estimated date on which a Monthly Report can be delivered. Until a total systems failure is remedied, Finco shall (i) furnish to the Administrative Agent and each Funding Agent such periodic status reports and other information relating to such total systems failure as the Administrative Agent and any Funding Agent may

 

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reasonably request and (ii) promptly notify the Administrative Agent and each Funding Agent if Finco believes that such total systems failure cannot be remedied by the estimated date, which notice shall include a description of the circumstances which gave rise to such delay, the action proposed to be taken in response thereto, and a revised estimate of the date on which the Monthly Report can be delivered. Finco shall promptly notify the Administrative Agent and each Funding Agent when a total systems failure has been remedied.

(bb) Insurance. Finco shall keep insured by financially sound and reputable insurers all property of a character usually insured by companies engaged in the same or similar business similarly situated against loss or damage of the kinds and in the amounts customarily insured against by such companies, and carry such other insurance as is usually carried by such companies.

(cc) Modification of Systems. Finco agrees, promptly after the replacement or any material modification of any computer system, automation system or other operating system (in respect of hardware or software) used to perform its material services as servicer or to make any calculations or reports hereunder, to give notice of any such replacement or modification to the Administrative Agent and each Funding Agent.

(dd) Monthly Report. In addition to the information required to be included in each Monthly Report pursuant to Section 6.12, Finco shall include in each Monthly Report such other information or calculations relating to the Transferred Assets owned by the Administrative Agent (for the benefit of the Owners) on an aggregate basis as the Administrative Agent may reasonably request.

(ee) [Reserved].

(ff) Keeping of Records and Books of Account. The Servicer will maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing Transferred Receivables in the event of the destruction of the originals thereof), and keep safely for the benefit of the Owners all Records, and keep and maintain, or obtain, as and when required, all documents, books, records and other information reasonably necessary or advisable for the identification and collection of all Transferred Receivables (including, without limitation, records adequate to permit the identification of all Collections in respect of and adjustments to each existing Transferred Receivable).

(gg) Customer List. The Servicer shall at all times maintain a current list (which may be stored on magnetic tapes or disks) of all Obligors under Credit Agreements related to Transferred Receivables, including the name, address, telephone number and account number of each such Obligor.

(hh) Compliance Certificate. The Servicer shall furnish to the Administrative Agent and each Funding Agent a compliance certificate in substantially the form of Exhibit I hereto in accordance with the requirements of Section 6.14 stating, among other things, that no Amortization Event, Potential Amortization Event, Termination Event, Potential Termination Event, Servicer Default or Potential Servicer Default exists, or if any such event exists, stating the nature and status thereof.

 

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(ii) [Reserved].

(jj) EU Securitisation Compliance.

(i) From the 2020 Amendment Closing Date, Finco, in its capacity as originator, undertakes for the benefit of the Owners to retain on an on-going basis a material net economic interest which shall not be less than 5%, determined in accordance with Article 6 of Regulation (EU) No. 2017/2402 (the “EU Securitisation Regulation”), as in effect and applicable on the 2020 Amendment Closing Date. Finco shall not, and shall not permit any Affiliate, to enter into any credit risk mitigation or any other hedge or to sell, transfer or otherwise surrender all or part of the rights, benefits and obligations arising from the retained interest, except to the extent permitted under the EU Securitisation Rules. As of the 2020 Amendment Closing Date, Finco shall retain such net economic interest in a manner intended to comply with sub-paragraph (a) of paragraph 3 of Article 6 of the EU Securitisation Regulation, by retaining a 5% ownership interest in each Transferred Receivable. Finco shall not change the retention option or the method of calculating such retained net economic interest except as permitted by the EU Securitisation Rules.

(ii) For purposes of each Monthly Report delivered pursuant to this Agreement, Finco shall confirm whether Finco is in compliance with Section 3.7(jj)(i), which confirmation shall be deemed satisfied by delivery of each Monthly Report.

(iii) Finco shall cooperate with each Funding Agent (on behalf of its related Owners) that is subject to the EU Securitisation Rules by providing information or documents reasonably requested by such party in order to allow such Funding Agent (on behalf of its related Owners) to conduct its due diligence required under Applicable EU Securitisation Regulation Due Diligence Requirements so that such Funding Agent (on behalf of its related Owners) shall be able to demonstrate to the competent authorities (who have jurisdictional authority over such Funding Agent (or its related Owners)) that such Funding Agent (on behalf of its related Owners) has performed its due diligence and monitoring obligations (to the extent applicable) under the Applicable EU Securitisation Regulation Due Diligence Requirements with respect to the transactions contemplated by the Related Documents; provided that any information provided by Finco, (i) is subject to the confidentiality provisions set forth in Section 9.8 of this Agreement, and (ii) relating to the Receivables or the related Obligors shall be limited to the T-Mobile Information; and provided further that (x) except as may be separately agreed to by Finco in writing (in its sole and absolute discretion), to the extent that any Funding Agent (on behalf of its related Owners) requests asset-level data or aggregated asset-level data relating to a Receivable, Finco will only be required to provide T-Mobile Information with respect to such Receivable and (y) with respect to any information that is not T-Mobile Information and that Finco was not required to provide pursuant to this Section 3.7(jj)(iii) before it was amended by the Second Amendment, Finco shall cooperate in good faith with each

 

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Funding Agent (on behalf of its related Owners) that is subject to the EU Securitisation Rules, subject to all confidentiality and other applicable restrictions by which Finco is bound under this Agreement or any applicable law which restrict or prohibit Finco from sharing and/or disclosing certain information (including, but not limited to, customer information concerning any customer that is a federal government customer), to provide such information to such Funding Agent (on behalf of its related Owners) in a form, level of detail or other manner contemplated by Article 5(1)(e) or Article 7 of the EU Securitisation Regulation or any related EU Securitisation Rules.

(iv) In the event of a breach of clause (i), (ii) or (iii) of this Section 3.7(jj) by Finco, the only remedy available for an Owner would be that, to the extent that such breach resulted in an additional risk-weighted capital charge (“CRR Cost”) imposed on such Owner pursuant to Article 270a of Regulation (EU) 575/2013 as amended, such CRR Cost would be treated as an Additional Cost for such Owner and shall be payable by Finco as an Additional Cost in accordance with the terms of Section 8.3 hereof. The parties hereto acknowledge and agree that in no event shall a breach of clause (i), (ii) or (iii) of this Section 3.7(jj) by Finco result in a Potential Termination Event, a Termination Event, a Potential Amortization Event or an Amortization Event.

Section 3.8 Covenants of the Guarantor. The Guarantor covenants and agrees through the Termination Date, that:

(a) Compliance with Covenants. It will perform and observe for the benefit of the Owners each of the covenants and agreements required to be performed or observed by it in the Related Documents to which it is a party and the Performance Guaranty.

(b) Financial Reporting. It shall furnish to the Administrative Agent and each Funding Agent, as soon as practicable after the issuance, sending or filing thereof, but in no event any later than 30 days after sending copies of all proxy statements, financial statements, reports and other communications which TMUS sends to its security holders generally, and if TMUS is required to file reports with the Securities and Exchange Commission pursuant to the Exchange Act, copies of all regular, periodic and special reports which TMUS files with the Securities and Exchange Commission or with any securities exchange on Form 10-K, 10-Q, 8-K or any successor form thereto; provided, that the requirements of this paragraph may be satisfied by the timely filing of any such report with the Securities and Exchange Commission if such report is available via EDGAR or TMUS’s website.

(c) Reporting. TMUS will maintain a system of accounting established and administered in accordance with GAAP, and furnish or cause to be furnished to the Administrative Agent and each Funding Agent:

(i) within 120 days after the close of each of its fiscal years, audited financial statements (which shall include balance sheets, statements of income and retained earnings and a statement of cash flows) of TMUS and its consolidated subsidiaries for such fiscal year, and copies of all reports and management letters, if any, from the independent certified public accountants to TMUS, all certified by the chief financial officer of TMUS; provided, that the requirements of this clause (i) may be satisfied by the timely filing of any such report with the Securities and Exchange Commission if such report is available via EDGAR or TMUS’s website;

 

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(ii) within 60 days after the close of the first three (3) quarterly periods of each of its respective fiscal years, balance sheets of TMUS and its consolidated subsidiaries, as at the close of each such period and statements of income and retained earnings and a statement of cash flows for TMUS for the period from the beginning of such fiscal year to the end of such quarter, all certified by the chief financial officer of TMUS; provided, that the requirements of this clause (ii) may be satisfied by the timely filing of any such report with the Securities and Exchange Commission if such report is available via EDGAR or TMUS’s website; and

(iii) promptly, from time to time, such other information, documents, records or reports relating to the condition or operations, financial or otherwise, of TMUS as any Funding Agent may from time to time reasonably request; provided, that (x) prior to the occurrence and continuation of an Amortization Event, Servicer Default or Termination Event, such information provided to the Administrative Agent and the Funding Agents shall be limited to the T-Mobile Information, and (y) following the occurrence or, to the extent required, declaration, of an Amortization Event, Servicer Default or Termination Event, the Administrative Agent and each Funding Agent shall receive any information with respect to the Receivables that it in good faith believes is reasonably necessary for the Administrative Agent and the Funding Agents to evaluate and/or enforce their rights and remedies under this Agreement, the Sale Agreement and Related Documents with respect to such Transferred Receivables.

(d) Notices. It will notify each Funding Agent in writing of any of the following promptly upon learning of the occurrence thereof, describing the same and, if applicable, such written notice shall be accompanied by a statement of the chief financial officer or chief accounting officer of the Guarantor describing the steps, if any, being taken with respect thereto:

(i) any Asset Base Deficiency, Amortization Event, Potential Amortization Event, Termination Event, Potential Termination Event, Servicer Default or Potential Servicer Default, but in any event within five (5) days;

(ii) the institution of any litigation, investigation, arbitration proceeding or governmental proceeding against the Guarantor or any of its subsidiaries which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, or the entry of any judgment or decree against the Guarantor or any of its subsidiaries which, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect, and in any event within ten (10) Business Days; and

(iii) any material adverse change in the business, operations or financial condition of the Guarantor which reasonably could have a material adverse effect on the ability of the Guarantor to perform its obligations under this Agreement, the Related Documents or the Performance Guaranty.

 

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(e) Maintain Existence. It will preserve and maintain its existence, rights, franchises and privileges in the jurisdiction of its formation, and qualify and remain qualified in good standing as a corporation in each jurisdiction where its business is conducted and which requires such qualification, and will maintain all requisite authority to conduct its business in each jurisdiction in which its business requires such authority, except where the failure to so comply would not reasonably be expected to have a Material Adverse Effect.

(f) Compliance with Requirements of Law. It shall duly satisfy all obligations on its part to be fulfilled under or in connection with the Related Documents and the Performance Guaranty, will maintain in effect all material qualifications required under applicable Requirements of Law in order to conduct its business and will comply in all material respects with all other applicable Requirements of Law in connection with the Related Documents and the Performance Guaranty.

(g) Fulfillment of Obligations. It will duly observe and perform, or cause to be observed or performed, all material obligations and undertakings on its part to be observed and performed under this Agreement, the Related Documents and the Performance Guaranty, and will do nothing to materially impair the rights, title and interest of the Administrative Agent, any Funding Agent or any Owner in and to the Transferred Assets.

(h) ERISA Events. The Guarantor shall give the Administrative Agent and each Funding Agent a written notice promptly, but in no event later than ten (10) Business Days, following the date that any member of the ERISA Group (i) gives or is required to give notice to the PBGC of any “reportable event” (as defined in Section 4043 of ERISA) with respect to any Plan which might constitute grounds for a termination of such Plan under Title IV of ERISA, or knows that the plan administrator of any Plan has given or is required to give notice of any such reportable event, a copy of the notice of such reportable event given or required to be given to the PBGC; (ii) receives notice of complete or partial withdrawal liability under Title IV of ERISA, a copy of such notice; or (iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate or appoint a trustee to administer any Plan, a copy of such notice.

(i) German Value-Added Tax. The Guarantor shall pay on demand to each Helaba Owner any and all amounts necessary to indemnify such Helaba Owner from and against any and all Indemnified Amounts relating to or resulting from any value added tax plus any interest and other ancillary Tax charges (A) applicable to the payment of the Servicing Fee, the supply of the services rendered by the Servicer or in connection with the sale and collection of the Transferred Receivables and the Related Rights pursuant to this Agreement or (B) arising as a result of a breach by the Transferor, the Servicer, the Guarantor or any of their Affiliates of Section 3.9(j) (German Value-Added Tax) (less any respective value added tax credits or deductions as are obtained by or credited any of the Helaba Owners, which credits or deductions shall be taken into account following the final and unchangeable determination thereof by the German tax authorities; whereby such Helaba Owner shall take reasonable steps to receive eligible value added tax credits or deductions by filing respective returns).

 

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Section 3.9 Additional Covenants of the Transferor, the Servicer and the Guarantor. Each of the Transferor, the Servicer and the Guarantor severally covenants and agrees, in each case as to itself individually or in such respective capacities, each with respect to itself only, unless otherwise consented to or waived in accordance with the provisions of Section 9.2, that:

(a) Ratings of Commercial Paper. To the extent that any rating provided with respect to a Conduit Purchaser’s Commercial Paper by any Conduit Purchaser Rating Agency is conditional upon the furnishing of documents or the taking of any other action by the Transferor, the Servicer or the Guarantor, then such party, as applicable, shall take all reasonable actions to furnish such documents and take any such other action.

(b) Information from the Transferor, the Servicer and the Guarantor. Prior to the Termination Date, each of the Transferor, the Servicer and the Guarantor will furnish to the Administrative Agent and each Funding Agent:

(i) a copy of each material certificate, opinion, report, statement, notice or other communication (other than investment instructions) furnished by or on behalf of such party under this Agreement, the Sale Agreement or the Related Documents, and promptly after receipt thereof, a copy of each notice, demand or other communication received by or on behalf of such party under this Agreement, the Sale Agreement or the Related Documents and applicable to the transactions contemplated by this Agreement, the Sale Agreement or the Related Documents, as applicable; and

(ii) such other information (including non-financial information), documents, records or reports reasonably related to this Agreement or the Related Documents or the transactions contemplated thereby and respecting the Receivables, the Transferor, Finco, the Guarantor and the Servicer, as the Administrative Agent, any Conduit Purchaser or any Funding Agent may from time to time reasonably request; provided, that (x) prior to the occurrence and continuation of an Amortization Event, Servicer Default or Termination Event, such information provided to the Administrative Agent and the Funding Agents shall be limited to the T-Mobile Information, and (y) following the occurrence or, to the extent required, declaration, of an Amortization Event, Servicer Default or Termination Event, the Administrative Agent and each Funding Agent shall receive any information with respect to the Receivables that it in good faith believes is reasonably necessary for the Administrative Agent and the Funding Agents to evaluate and/or enforce their rights and remedies under this Agreement and the other Related Documents with respect to such Transferred Receivables.

(c) Amendments. Neither the Transferor nor the Servicer will make, or permit any Person to make, any amendment, modification or change to, or provide any waiver under the Related Documents, or waive the occurrence of any breach of any representation, warranty or covenant under the Related Documents, without, in each case, the prior written consent of the Required Owners (except as otherwise permitted under Section 9.2).

(d) Prohibition on Indebtedness. Except as permitted by this Agreement or the Sale Agreement, the Transferor agrees that during the term of this Agreement, it shall not incur any indebtedness, or assume or guarantee indebtedness of any other entity, without the consent of Funding Agents representing Ownership Groups having in the aggregate at such time Ownership Group Percentages equal to 100%.

 

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(e) Mutual Obligations. On and after the Original Closing Date, the Transferor and Servicer will do, execute and perform all such other acts, deeds and documents as the other parties hereto may from time to time reasonably require in order to carry out the intent of this Agreement.

(f) Notice of Liens; Documentation of Transfer. The Transferor and the Servicer each agree that it will notify the Administrative Agent and each Funding Agent within ten (10) Business Days of any event that would cause Finco, the Transferor, the Servicer or the Administrative Agent to be required to file financing statements, continuation statements or amendments thereto under the UCC pursuant to the Sale Agreement or this Agreement or otherwise as would be necessary to perfect and maintain the security interest (and its priority) in and to the Transferred Assets contemplated by this Agreement and the other Related Documents.

(g) Delegation of Duties. Except as permitted herein, the Servicer agrees that it will not delegate any of its duties hereunder without the prior written consent of the Required Owners.

(h) Anti-Corruption Laws and Sanctions.

(i) The Servicer will maintain in effect and enforce policies and procedures designed to ensure compliance by the Servicer and the Transferor, and each of their respective Subsidiaries and their respective directors, officers, employees and agents, with Anti-Corruption Laws and applicable U.S. Sanctions.

(ii) The Transferor will not sell Receivables or make any Incremental Fundings, and neither of the Servicer nor the Transferor shall procure for its Subsidiaries, and its or their respective directors, officers, employees and agents shall not use, the proceeds of any sale of Receivables hereunder (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, or (C) in any manner that would result in the violation of any Sanctions applicable to any party hereto.

(i) Competing Arrangements. Each of Finco and the Transferor represents and warrants that none of TMUS, TMUSA, Finco or the Transferor has entered into any securitization arrangement involving receivables (including transactions similar to the transactions under this Agreement or the airtime service securitization facility initially entered into by Finco’s Affiliates on March 3, 2014) (“Comparable Transactions”) prior to the date hereof, except as disclosed in the periodic or special reports which the Guarantor files with the Securities and Exchange Commission pursuant to the Exchange Act. Each of Finco and the Transferor agrees to promptly provide to the Administrative Agent a copy of the relevant portions of the transaction documents for any Additional Rights (as defined below) contained in

 

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any Comparable Transactions into which TMUS, TMUSA, Finco or the Transferor may enter from time to time following the date of this Agreement, and the delivery to the Administrative Agent of such copy shall constitute the granting of Additional Rights (as defined below) created by such Comparable Transactions as required by the next sentence. The Owners shall be entitled to receive the same rights granted in any Comparable Transaction to the extent that any such Comparable Transaction provides for terms that are more favorable than the terms of this Agreement in effect at such time, relating to the definition of or calculation of, or any trigger, amortization event, termination event or event of default, relating to the (i) Consolidated Equity Ratio (or any component thereof) or (ii) Consolidated Leverage Ratio (or any component thereof) (collectively, the “Additional Rights”). The Transferor and Finco agree that any granting of Additional Rights to the Owners pursuant to this Section 3.9(i) shall be incorporated into this Agreement and the Transferor and Finco shall take such actions as are necessary to cause the Additional Rights to be applicable to the Owners.

(j) German Value-Added Tax. None of the Transferor, the Servicer, the Guarantor or any of their respective Affiliates shall exercise any option (if any) available to it under German law to have value added tax apply with respect to any supply, for German value added tax purposes, rendered in connection with the sale of the Receivables contemplated by the Related Documents, provided that any party having such an option right shall be required to exercise such option if the Helaba Funding Agent shall so request in writing.

Section 3.10 Merger or Consolidation of, or Assumption, of the Obligations of the Guarantor, Finco or the Transferor. (a) The Transferor shall not consolidate or merge with any other Person.

(b) Any Person (i) into which the Guarantor or Finco may be merged or consolidated, (ii) resulting from any merger or consolidation to which the Guarantor or Finco, as applicable, shall be a party, (iii) that acquires by conveyance, transfer or lease substantially all of the assets of the Guarantor or Finco, as applicable, or (iv) succeeding to the business of the Guarantor or Finco, as applicable, which Person shall execute an agreement of assumption to perform every obligation of the Guarantor or Finco, as applicable, under this Agreement, shall be the successor to the Guarantor or Finco, as applicable, under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties to this Agreement. The Guarantor or Finco, as applicable, shall provide notice of any merger, consolidation, succession, conveyance or transfer pursuant to this Section 3.10(b) to each Funding Agent.

(c) Notwithstanding the foregoing, Finco shall not consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, unless:

(i) the Person formed by such consolidation or into which Finco is merged or the Person which acquires by conveyance or transfer the properties and assets of Finco substantially as an entirety shall be a Person organized and existing under the laws of the United States of America or any State or the District of Columbia and, if Finco is not the surviving Person, such Person shall assume, without the execution or filing of any paper or any further act on the part of any of the parties hereto, the performance of every covenant and obligation of Finco or the Transferor, as applicable, hereunder;

 

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(ii) immediately after giving effect to such transaction, no representation or warranty made pursuant to Article III shall have been breached (for purposes hereof, such representations and warranties shall speak as of the date of the consummation of such transaction) and no Amortization Event, Potential Amortization Event, Termination Event, Potential Termination Event, Servicer Default or Potential Servicer Default shall have occurred; and

(iii) Finco has delivered to the Administrative Agent and each Funding Agent an Officer’s Certificate stating that such consolidation, merger, conveyance or transfer complies with this Section 3.10 and that all conditions precedent herein provided for relating to such transaction have been complied with, and an Opinion of Counsel to the effect that the agreement referred to in Section 3.10(b)(iv) above is the legal, valid and binding obligation of such successor Person enforceable against such successor Person in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally from time to time in effect and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity).

ARTICLE IV.

CONDITIONS PRECEDENT

Section 4.1 Conditions to 2018 Amendment Closing Date. On or prior to the 2018 Amendment Closing Date, the Transferor shall deliver to the Funding Agents the following documents and instruments, all of which shall be in form and substance reasonably acceptable to the Administrative Agent (any or all of which may be waived by the Funding Agents in their sole discretion, including to the extent such documents were provided to any such Funding Agent in connection with the Original Agreement on the Original Closing Date or the Existing Agreement on the 2016 Amendment Closing Date or the 2017 Amendment Closing Date):

(a) Corporate Documents. The Administrative Agent and each Funding Agent shall have received copies, each of which shall be in form and substance satisfactory to the Administrative Agent and each Funding Agent, of the (i) certificate of formation or certificate of incorporation, limited liability company agreement or by-laws, and good standing certificate of the Transferor, Finco, the Servicer and the Guarantor, as applicable, (ii) members’, managers’ or Board of Directors’ resolutions, as applicable, of the Transferor, Finco, the Servicer and the Guarantor with respect to the this Agreement and the Sale Agreement to which such Person is a party, and (iii) incumbency certificate of the Transferor, Finco, the Servicer and the Guarantor, in each case as certified by appropriate corporate authorities, if applicable.

 

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(b) Documents. The Administrative Agent and the Funding Agents shall have received on or before the 2018 Amendment Closing Date each of the items listed on Schedule IV hereto, each (unless otherwise indicated) dated as of the Original Closing Date, the 2016 Amendment Closing Date, the 2017 Amendment Closing Date or the 2018 Amendment Closing Date, as applicable, duly executed by the parties thereto and in form and substance reasonably satisfactory to the Administrative Agent and the Funding Agents, including:

(i) an executed copy of the Sale Agreement, including a complete schedule of the Transferred Receivables (which may be on a compact disc (in a format acceptable to the Administrative Agent) or such other medium as is acceptable to the Administrative Agent);

(ii) an executed copy of each of the Administrative Agent Fee Letter and the Transaction Fee Letter (each as amended and restated as of the 2018 Amendment Closing Date), together with payment to the Person(s) entitled thereto of any and all fees referred to therein payable on the 2018 Amendment Closing Date, including, without limitation, the payment of all reasonable legal fees and expenses of counsel to the Administrative Agent, the Funding Agents and the Owners;

(iii) an executed copy of the Control Agreement with respect to the Collection Account;

(iv) good standing certificates of each of Finco, the Transferor and the Guarantor from the Secretary of State of the State of Delaware dated a date reasonably near the 2018 Amendment Closing Date;

(v) a Confirmation of Guaranty relating to the Performance Guaranty, confirming continuing applicability of the Performance Guaranty in connection with the execution of this Agreement, including the addition of the Starbird Owners as parties to this Agreement;

(vi) resolutions of the member, manager or board of directors, as applicable, of each of Finco, the Transferor and the Guarantor in connection with the execution of this Agreement; and

(vii) a Monthly Report, after giving effect to this Agreement and the transactions contemplated in connection herewith on the 2018 Amendment Closing Date;

(c) Performance by Finco, the Transferor and the Guarantor. All of the terms, covenants, agreements and conditions set forth this Agreement, the Sale Agreement, the Related Documents and the Performance Guaranty to be complied with and performed by Finco, the Transferor, the Servicer or the Guarantor, as the case may be, by the 2018 Amendment Closing Date shall have been complied with or otherwise waived by the Administrative Agent and the Funding Agents.

 

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(d) Representations and Warranties. Each of the representations and warranties of Finco, the Transferor, the Servicer or the Guarantor made in this Agreement, the Sale Agreement, the Related Documents and the Performance Guaranty, as applicable, shall be true and correct in all material respects as of the 2018 Amendment Closing Date as though made as of such time (except to the extent that they expressly relate to an earlier or later time).

(e) Officer’s Certificate. The Administrative Agent and each Funding Agent shall have received an Officer’s Certificate from the Servicer and the Transferor in form and substance reasonably satisfactory to the Administrative Agent and each Funding Agent and their respective counsel, dated as of the 2018 Amendment Closing Date, certifying as to the satisfaction of the conditions set forth in Section 4.1(c) and Section 4.1(d).

(f) Financing Statements; Search Reports. The Administrative Agent and each Funding Agent shall have received evidence satisfactory to it that financing statements, as may be necessary or, in the opinion of the Administrative Agent, desirable under the UCC of all appropriate jurisdictions or any comparable law to perfect the transfers (including grants of security interests) under the this Agreement and the Sale Agreement have been delivered and, if appropriate, have been duly filed or recorded and that all filing fees, taxes or other amounts required to be paid in connection therewith have been paid, including:

(i) an acknowledgment copy of a proper financing statement (Form UCC-1) for the State of Delaware, dated a date reasonably near to the Original Closing Date naming the Transferor, as the transferor (debtor), with respect to the Transferred Receivables and the Related Rights, and the Administrative Agent (for the benefit of the Owners), as transferee (secured party);

(ii) an acknowledgment copy of a proper financing statement (Form UCC-1) for the State of Delaware, dated a date reasonably near to the Original Closing Date, naming Finco, as the transferor (debtor), with respect to the Transferred Receivables and the Related Rights, and the Transferor, as transferee (secured party), with an assignment by the Transferor to the Administrative Agent (for the benefit of the Owners); and

(iii) certified copies of requests for information or copies of Form UCC-11 (or a similar search report certified by parties acceptable to the Administrative Agent) dated a date reasonably near the 2018 Amendment Closing Date listing all effective financing statements which name (i) the Transferor (under its present name or any previous name) as transferor or debtor and which are filed in the State of Delaware and (ii) Finco (under its present name or any previous name) as transferor or debtor and which are filed in the State of Delaware, in each case together with copies of such financing statements (none of which shall cover any Transferred Receivables or Related Rights, other than any such financing statement filed in connection with this Agreement);

(g) Ratings. The Administrative Agent and each Funding Agent shall have received evidence that each Conduit Purchaser’s Commercial Paper will not be downgraded as a result of entering into this transactions contemplated by this Agreement, including any funding to occur hereunder on the 2018 Amendment Closing Date.

 

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(h) No Actions or Proceedings. No action, suit, proceeding or investigation by or before any Governmental Authority shall have been instituted to restrain or prohibit the consummation of, or to invalidate, the transactions contemplated by this Agreement, the Sale Agreement and the documents related thereto in any material respect.

(i) Approvals and Consents. All Governmental Actions of all Governmental Authorities required with respect to the transactions contemplated by this Agreement, the Sale Agreement, the Related Documents and the Performance Guaranty, as applicable, and the other documents related thereto, shall have been obtained or made.

(j) Asset Base. The Administrative Agent and each Funding Agent shall have received evidence that no Asset Base Deficiency exists.

(k) Opinions of Counsel. Counsel to each of the Transferor, Finco and the Guarantor shall have delivered (i) to the Administrative Agent, each Funding Agent and their counsel, (x) a favorable opinion, dated as of the 2018 Amendment Closing Date and reasonably satisfactory in form and substance to the Administrative Agent, each Funding Agent and their counsel, with respect to corporate matters, validity and enforceability of this Agreement, the Sale Agreement, the Related Documents and the Performance Guaranty, no conflict of law and non-contravention of charter documents and certain material agreements, in substantially the form of the corporate and enforceability opinion delivered by counsel on the 2017 Amendment Closing Date, and addressed to the Administrative Agent and each Funding Agent, (y) a favorable opinion, dated as of the 2018 Amendment Closing Date and reasonably satisfactory in form and substance to the Administrative Agent, each Funding Agent and their counsel, with respect to true sale matters, substantive consolidation matters, Volcker Rule and Investment Company Act matters, in substantially the form of the corresponding opinions delivered by counsel on the 2017 Amendment Closing Date, and addressed to the Administrative Agent and each Funding Agent.

(l) Security Interest Opinion. Counsel to the Transferor shall have delivered to the Administrative Agent and each Funding Agent an opinion of counsel, dated as of the 2018 Amendment Closing Date, with respect to the creation and perfection of the security interest of the Administrative Agent (for the benefit of the Owners) in the Transferred Receivables granted pursuant to this Agreement under the Relevant UCC in substantially the form of the security interest opinion delivered by counsel on the 2017 Amendment Closing Date.

(m) Collection Account. The Administrative Agent and each Funding Agent shall have received evidence that the Collection Account has been established in accordance with the terms of this Agreement.

(n) No Amortization Events, Termination Events, etc. No Amortization Event, Potential Amortization Event, Termination Event, Potential Termination Event, Servicer Default, or Potential Servicer Default shall have occurred and be continuing (in each case, before and after giving effect to the purchase).

(o) Other Documents. The Administrative Agent and each Funding Agent shall have received such additional documents, instruments, certificates or letters as the Administrative Agent or such Funding Agent may reasonably request.

 

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Section 4.2 Conditions to Incremental Funding. Each Incremental Funding shall be subject to satisfaction of the following applicable conditions precedent:

(a) the Administrative Agent and each Funding Agent shall have timely received a properly completed Funding Notice;

(b) after giving effect to the initial transfer of the Transferred Assets on the Original Closing Date or the transfer of Additional Receivables on such Addition Date, as applicable, all representations and warranties of Finco, the Transferor, the Guarantor and the Servicer contained in this Agreement, the Sale Agreement and the Performance Guaranty, as applicable, or otherwise made in writing pursuant to any of the provisions hereof or thereof shall be true and correct in all material respects with the same force and effect as though such representations and warranties had been made on and as of such date (other than representations and warranties which specifically relate to an earlier date, which shall be true and correct in all material respects as of such earlier date);

(c) Finco, the Transferor, the Guarantor and the Servicer shall be in compliance in all material respects with all of their respective covenants contained in this Agreement, the Sale Agreement, the Related Documents and the Performance Guaranty to be performed on or prior to such date;

(d) the Transferor or the Servicer shall have delivered to the Administrative Agent an executed Daily Receivables File relating to the applicable Transferred Receivables and Related Rights;

(e) the Transferor and the Servicer shall have taken any actions necessary or advisable to maintain the Administrative Agent’s perfected security interest in the Transferred Assets (including in Additional Receivables) for the benefit of the Owners;

(f) no Asset Base Deficiency, Amortization Event, Potential Amortization Event, Termination Event, Potential Termination Event, Servicer Default or Potential Servicer Default shall have occurred and be continuing (in each case, before and after giving effect to such Incremental Funding);

(g) immediately after giving effect to such Incremental Funding and the related transfer of Additional Receivables, (i) the Aggregate Net Investment shall not exceed the Purchase Limit and (ii) the aggregate of the Net Investments of the Owners in any Ownership Group shall not exceed the Ownership Group Purchase Limit for such Ownership Group;

(h) the Scheduled Expiry Date shall not have occurred;

(i) with respect to a Conduit Purchaser, such Conduit Purchaser has agreed to participate in such Incremental Funding;

(j) the Administrative Agent and the Funding Agents shall have received a Monthly Report, computed after giving effect to the Incremental Funding on such Funding Date;

 

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(k) no event has occurred and is continuing that would have a Material Adverse Effect; and

(l) the Servicer shall have delivered each Monthly Report, certificate or report required to be delivered by it pursuant to this Agreement and the Sale Agreement.

Section 4.3 Conditions to Sales of Additional Receivables.

Each sale of Additional Receivables hereunder shall be subject to satisfaction of the following applicable conditions precedent on the related Addition Date:

(a) after giving effect to such sale, all representations and warranties of Finco, the Transferor, the Guarantor and the Servicer contained in this Agreement, the Sale Agreement and the Performance Guaranty, as applicable, or otherwise made in writing pursuant to any of the provisions hereof or thereof shall be true and correct in all material respects with the same force and effect as though such representations and warranties had been made on and as of such date (other than representations and warranties which specifically relate to an earlier date, which shall be true and correct in all material respects as of such earlier date);

(b) Finco, the Transferor, the Guarantor and the Servicer shall be in compliance in all material respects with all of their respective covenants contained in this Agreement, the Sale Agreement, the Related Documents and the Performance Guaranty to be performed on or prior to such date;

(c) the Transferor or the Servicer shall have delivered to the Administrative Agent an executed Daily Receivables File relating to the applicable Transferred Receivables and Related Rights;

(d) the Transferor and the Servicer shall have taken any actions necessary or advisable to maintain the Administrative Agent’s perfected security interest in the Transferred Assets (including in Additional Receivables) for the benefit of the Owners;

(e) no Amortization Event, Termination Event, or Servicer Default shall have occurred and be continuing;

(f) the Scheduled Expiry Date shall not have occurred;

(g) after giving effect to the proposed sale of Additional Receivables on the proposed Addition Date, the Aggregate Advance Amount shall not exceed the product of (1) 125% (or, with the prior written consent of the Administrative Agent, such greater percentage as the Administrative Agent may agree to) and (2) the Aggregate Net Investment as of such date;

(h) no event has occurred and is continuing that would have a Material Adverse Effect; and

(i) the Servicer shall have delivered each Monthly Report, certificate or report required to be delivered by it pursuant to this Agreement and the Sale Agreement.

 

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For the avoidance of doubt, notwithstanding the conditions specified in this Section 4.3, there shall be no conditions for the transfer and sale of Replacement Receivables from the Transferor to the Administrative Agent (for the benefit of the Owners) relating to and following the exercise of Jump Contract Features.

ARTICLE V.

OWNERSHIP GROUP PURCHASE LIMITS

Section 5.1. Ownership Group Purchase Limits. On the 2018 Amendment Closing Date, the Ownership Group Purchase Limit and Ownership Group Percentage of each of the Ownership Groups consisting of the Gotham Owners, the Helaba Owners, the Old Line Owners and the Starbird Owners shall be the applicable amount specified on Schedule I hereto.

ARTICLE VI.

PROTECTION OF THE OWNERS; ADMINISTRATION AND COLLECTIONS

Section 6.1 Maintenance of Information and Computer Records. The Servicer will hold in trust and keep safely for the Owners all evidence of the Administrative Agent’s right, title and interest (for the benefit of the Owners) in and to the Records and the Transferred Assets. The Transferor will, or will cause the Servicer to, place an appropriate code or notation in its Records to indicate that the Administrative Agent (for the benefit of the applicable Owners) owns the Transferred Receivables.

Section 6.2 Inspections.

(a) Finco shall furnish to the Administrative Agent and each Funding Agent from time to time such information with respect to it and the Transferred Assets as the Administrative Agent or such Funding Agent may reasonably request. Finco will, and will cause each of the Servicer, the Transferor and Finco to, from time to time at Finco’s sole cost and expense, and during regular business hours upon reasonable prior notice, permit each of the Administrative Agent and the Funding Agents (or their respective agents or representatives), not more than one (1) time per calendar year unless an Amortization Event, Termination Event, or Servicer Default has occurred and is continuing, to visit and inspect any of its properties, to examine and make abstracts from any of its books and records (including, without limitation, computer files and records) in the possession or under the control of the Servicer, the Transferor relating to the Transferred Assets and the related Transferred Receivables, Credit Agreements and Obligors, subject to any applicable restrictions or limitations on access to any information that is classified or restricted by contract or by law, regulation or governmental guidelines, and to discuss its affairs, finances and accounts with its officers, directors, employees and independent public accountants (such visit, inspection and examination, collectively, an “Inspection”); provided, that (x) prior to the occurrence and continuation of an Amortization Event, Servicer Default or Termination Event, such information provided to the Administrative Agent and the Funding Agents shall be limited to (A) the T-Mobile Information and (B) information required under Section 3.7(t)(ii), and (y) following the occurrence or, to the extent required, declaration, of an Amortization Event, Servicer Default or Termination Event, the Administrative Agent and each Funding Agent shall receive any information with respect to the Receivables that it in good faith believes is reasonably necessary for the Administrative Agent and the Funding Agents to evaluate and/or enforce their rights and remedies under this Agreement, the Sale Agreement and Related Documents with respect to such Transferred Receivables. From and after the occurrence of an

 

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Amortization Event, Servicer Default or Termination Event, the Administrative Agent shall be entitled to conduct an unlimited number of Inspections at the expense of Finco. Nothing in this Section 6.2(a) shall derogate from the obligation of the Administrative Agent or Finco to observe any applicable Requirement of Law prohibiting disclosure of information regarding the Obligors, and the failure of Finco to provide access as provided in this Section 6.2(a) as a result of such obligation shall not constitute a breach of this Section 6.2(a).

(b) Nothing in this Section 6.2 shall affect the obligation of the Transferor or the Servicer to observe any applicable law prohibiting the disclosure of information regarding the Obligors, and the failure of the Transferor or the Servicer to provide access to information as a result of such obligation shall not constitute a breach of this Section 6.2.

Section 6.3 Maintenance of Writings and Records. The Servicer will at all times until completion of a Complete Servicing Transfer keep or cause to be kept at its chief executive office or at an office of the Servicer designated in advance to the Administrative Agent (who, in turn, will notify each Funding Agent of such designation), each writing or Record which evidences, and which is reasonably necessary or desirable to establish or protect, including such books of account and other Records as will enable the Administrative Agent or its designees to determine at any time the status of, the interest of the Owners in each Transferred Receivable.

Section 6.4 Performance of Undertakings Under the Transferred Receivables. The Servicer will at all times observe and perform, or cause to be observed and performed, all material obligations and undertakings to the Obligors arising in connection with each Transferred Receivable or related Credit Agreement and will not take any action or cause any action to be taken to materially impair the rights of the Administrative Agent, any Funding Agent or any Owner.

Section 6.5 Administration and Collections.

(a) General. Finco agrees to act as the Servicer under this Agreement and the Administrative Agent and the Owners hereby consent to Finco acting as Servicer. The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to collect each Transferred Receivable from time to time, all in accordance with Requirements of Law, with reasonable care and diligence, and in accordance with the Credit and Collection Policies. The Transferor and the Administrative Agent hereby appoint the Servicer, from time to time designated pursuant to this Section 6.5 as agent for themselves to enforce their respective rights and interests in the Transferred Receivables and Related Rights. In performing its duties as Servicer, the Servicer shall exercise the same care and apply the same policies as it would exercise and apply if it owned such Transferred Receivables. The Servicer may delegate and/or assign its servicing duties hereunder to an Affiliate of the Servicer for the servicing, administration or collection of the Transferred Receivables. Any such delegation or assignment

 

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shall not affect the Servicer’s liability for performance of its duties and obligations pursuant to the terms hereof. The Servicer may delegate its servicing duties hereunder to any Person for the servicing, administration or collection of the Transferred Receivables except for its Primary Servicing Duties. Any such delegation shall not affect the Servicer’s liability for performance of its duties and obligations pursuant to the terms hereof. If in any enforcement suit or legal proceeding it shall be held that the Servicer may not enforce a Transferred Receivable on the ground that it shall not be a real party in interest or a holder entitled to enforce such Transferred Receivable, the Administrative Agent shall (at its option), at the Servicer’s expense either (i) take steps to enforce such Transferred Receivable, including bringing suit in any of their names or the name of the Owners or (ii) take such steps as are necessary to enable the Servicer to enforce such Transferred Receivable.

(b) Collection of Receivable Payments. The Servicer shall service and administer the Transferred Receivables and Related Rights, shall collect and deposit Collections on such Transferred Receivables into the Collection Account and shall charge-off as uncollectible Transferred Receivables, all in accordance with its customary and usual servicing procedures for servicing receivables comparable to the Transferred Receivables and in accordance with the Credit and Collection Policies and in the manner set forth in this Agreement. The Servicer shall have full power and authority, acting alone or through any party properly designated by it hereunder, to do any and all things in connection with such servicing and administration which it may deem necessary or desirable. Without limiting the generality of the foregoing and subject to Section 6.7, the Servicer or its designee is hereby authorized and empowered, unless such power is revoked by the Administrative Agent following the occurrence and continuance of a Servicer Default pursuant to Section 6.7, (i) to make withdrawals and payments from the Collection Account as set forth in this Agreement, (ii) to take any action required or permitted in this Agreement, (iii) to execute and deliver, on behalf of the Administrative Agent, any and all instruments of satisfaction or cancellation, or of partial or full release or discharge, and all other comparable instruments, with respect to the Transferred Receivables and Related Rights and, after the delinquency of any Transferred Receivables and to the extent permitted under and in compliance with applicable Requirements of Law, to commence collection proceedings with respect to such Transferred Receivables and (iv) to make any filings, reports, notices, applications and registrations with, and to seek any consents or authorizations from, the Securities and Exchange Commission and any state securities authority on behalf of the Transferor as may be necessary or advisable to comply with any federal or state securities or reporting requirements or other laws or regulations. The Transferor shall, upon the written request of the Servicer, furnish the Servicer with any documents relating to the Transferor or the Transferred Assets in such Person’s possession reasonably necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties hereunder.

(c) The Servicer shall comply with and perform its servicing obligations with respect to the Transferred Receivables in accordance with the Credit Agreements relating to the Transferred Receivables and the Credit and Collection Policies, except insofar as any failure to so comply or perform would not have an Adverse Effect. Subject to compliance with all Requirements of Law, the Servicer, may, in accordance with the Credit and Collection Policies, extend the maturity or adjust the Principal Balance of any Transferred Receivables or otherwise modify the payment terms of any Transferred Receivables as it deems appropriate; provided, that such extension, adjustment or modification shall not (i) modify or alter the status of any Transferred Receivable as a Defaulted Receivable or a Delinquent Receivable, (ii) after giving effect to any such adjustment or modification cause an Adverse Effect, or (iii) after giving effect to any such adjustment or modification cause an Asset Base Deficiency to exist.

 

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(d) Finco, the Servicer and their Affiliates shall perform their respective obligations under the Credit Agreements related to the Transferred Receivables to the same extent as if Transferred Receivables had not been sold and the exercise by the Administrative Agent of its rights under this Agreement shall not release Finco, the Servicer and their Affiliates from any of their duties or obligations with respect to any Transferred Receivables or related Credit Agreements. The Administrative Agent shall have no obligation or liability with respect to any Transferred Receivables or related Credit Agreements, nor shall it be obligated to perform the obligations of Finco, the Servicer and their Affiliates thereunder.

(e) The Servicer shall, as soon as practicable following receipt, turn over to the owner thereof any cash collections or other cash proceeds received with respect to receivables not constituting Transferred Receivables.

(f) The Servicer shall pay out of its own funds, without reimbursement (except as provided herein), all expenses incurred in connection with the servicing activities hereunder including expenses related to enforcement of the Transferred Receivables.

(g) The Servicer (i) shall duly satisfy all obligations on its part to be fulfilled under or in connection with each Transferred Receivable, (ii) will maintain in effect all qualifications required under Requirements of Law in order to service properly each Transferred Receivable, and (iii) will comply in all material respects with all other Requirements of Law in connection with servicing each Transferred Receivable, except where the failure to so comply would not have an Adverse Effect.

(h) The Servicer shall take no action in violation of this Agreement which, nor omit to take in violation of this Agreement any action the omission of which, would substantially impair the rights of the Administrative Agent in any Transferred Receivable, nor shall it reschedule, revise or defer payments due on any Transferred Receivable except (i) in accordance with the Credit and Collection Policies or, (ii) in accordance with its customary and usual servicing procedures, or (iii) with respect to any COVID Deferring Receivable, in accordance with the COVID Deferral Program.

(i) Collection Account. The Transferor shall establish and maintain an Eligible Account (the “Collection Account”) for receiving and disbursing amounts in accordance with Section 2.8. The Servicer shall advise the Administrative Agent in writing of the location of the Collection Account. The Collection Account shall be used only for the collection of the amounts and for application of such amounts as described in Section 2.8. The Collection Account will be governed by the Control Agreement pursuant to which the Administrative Agent shall have Control pursuant to the terms of the Control Agreement. If the Collection Account ceases to be an Eligible Account, the Servicer shall within ten (10) Business Days of receipt of notice of such change in eligibility transfer the property credited to the Collection Account to an account

 

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meeting the requirements of an Eligible Account, which is established pursuant to a substitute Control Agreement, and as to which the Administrative Agent shall have Control. The Servicer shall promptly notify the Administrative Agent of the establishment of a replacement Collection Account and shall provide the Administrative Agent with such information with respect thereto as the Administrative Agent may reasonably request. To the extent of its interest therein (if any), the Servicer hereby grants to the Administrative Agent (for the benefit of the Owners) a security interest in all of the Servicer’s right, title and interest in the Collection Account and all amounts from time to time credited to the Collection Account (including, without limitation, interest, cash and other property from time to time received, receivable or otherwise distributed in respect of or in connection with amounts on deposit in the Collection Account). In the event there shall have been deposited in the Collection Account any amount not required to be deposited therein and so identified to the Administrative Agent, such amount shall be withdrawn from the Collection Account, any provision herein to the contrary notwithstanding, and any such amounts shall not be deemed to be a part of the Collection Account.

All amounts deposited in the Collection Account shall remain in a deposit account maintained at the Account Bank. On each Payment Date, all interest received on funds on deposit in the Collection Account, if any, shall be deposited into the Collection Account and shall be deemed to constitute a portion of the Total Distribution Amount.

The Servicer and the Transferor agree to take all actions reasonably necessary, including the filing of appropriate financing statements and the giving of proper registration instructions relating to any investments, to protect the Administrative Agent’s interest (on behalf of the Owners) in the Collection Account and any moneys therein and to enable the Administrative Agent to enforce its rights (on behalf of the Owners) under the Control Agreement(s) relating to the Collection Account. Following a Servicer Default or Termination Event, the Administrative Agent may, or shall at the direction of the Required Owners, deliver a “shifting control notice” to the depositary bank at which the Collection Account is maintained, upon receipt of which notice, such depositary bank will follow the direction of the Administrative Agent as to application of Collections in such Collection Account.

(j) Enforcement Proceedings. In the event of a default under any Transferred Receivable, the Servicer shall, at the Servicer’s sole expense, to the full extent permitted by law and pursuant to its customary servicing procedures, have the power and authority, on behalf of each Owner, to take or cause to be taken any action in respect of any such Transferred Receivable as the Servicer may deem advisable. The Servicer shall use reasonable efforts, consistent with its customary servicing procedures, to realize upon the Transferred Receivable as to which the Servicer, pursuant to its customary servicing procedures, shall have determined eventual payment in full is unlikely. The Servicer shall follow such customary and usual practices and procedures as it shall deem necessary or advisable in its servicing of comparable receivables. In no event shall the Servicer or the Transferor, as the case may be, be entitled to make or authorize any Person to make the Administrative Agent, any Funding Agent or any Owner a party to any litigation without such Person’s express prior written consent.

 

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(k) Direction of Servicer Following Certain Events. Subject to any other more specific terms of this Agreement, upon the occurrence and during the continuation of a Servicer Default or Termination Event, the Administrative Agent may direct the Servicer to take all steps and actions permitted to be taken under this Agreement with respect to any Transferred Receivable which the Administrative Agent, in its reasonable discretion, may deem necessary or advisable to negotiate or otherwise realize on any right in connection with the Transferred Assets.

Section 6.6 Complete Servicing Transfer.

(a) General. If at any time a Servicer Default or a Termination Event shall have occurred and be continuing, the Administrative Agent may, with the consent, or shall at the direction, of the Required Owners, by notice in writing to the Servicer (a “Termination Notice”), terminate the Servicer’s capacity as Servicer in respect of the Transferred Receivables (such termination referred to herein as a “Complete Servicing Transfer”).

(b) On and after the receipt by the Servicer of a Termination Notice pursuant to Section 6.6(a), the Servicer shall continue to perform all servicing functions under this Agreement until the date specified in the Termination Notice or otherwise specified by the Administrative Agent. The Administrative Agent shall as promptly as possible after the giving of a Termination Notice appoint an Eligible Servicer as a successor servicer (the “Successor Servicer”), acting at the written direction of the Required Owners, and such Successor Servicer shall accept its appointment by a written assumption in a form acceptable to the Administrative Agent. In the event that a Successor Servicer has not been appointed or has not accepted its appointment at the time when the Servicer ceases to act as Servicer, the Administrative Agent shall petition a court of competent jurisdiction to appoint any Person qualifying as an Eligible Servicer as the Successor Servicer hereunder. The Administrative Agent shall give prompt notice to the Transferor upon the appointment of a Successor Servicer.

(c) Upon its appointment, the Successor Servicer shall be the successor in all respects to the Servicer with respect to servicing functions under this Agreement and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof, and all references in this Agreement to the Servicer shall be deemed to refer to the Successor Servicer.

In connection with any Termination Notice, the Administrative Agent will review any bids which it obtains from Eligible Servicers and may appoint, or at the written direction of the Required Owners shall appoint, any Eligible Servicer submitting such a reasonable market bid to act as the Successor Servicer; provided, however, that the Transferor shall be responsible for payment of any portion of the Servicing Fee and other amounts paid to a Successor Servicer as servicing compensation in excess of the Servicing Fee and amounts paid to the Servicer prior to the Complete Servicing Transfer. The Administrative Agent shall have the right, at the Servicer’s and the Transferor’s expense, to retain the services of a financial advisor or consultant to assist with the appointment of a Successor Servicer.

 

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(d) Transition. The Servicer agrees to cooperate with the Successor Servicer and the Transferor in effecting the termination of the responsibilities and rights of the Servicer to conduct servicing of the Transferred Receivables. Upon a Complete Servicing Transfer, the Servicer shall within fifteen (15) days of such Complete Servicing Transfer, transfer the Records relating to the Transferred Assets or facilitate the transfer of such Records to the Successor Servicer. To the extent that compliance with this Section 6.6 shall require the Servicer to disclose to the Successor Servicer information of any kind which the Servicer deems to be confidential, the Successor Servicer shall be required to enter into such customary licensing and confidentiality agreements as the Servicer shall deem necessary to protect its interests.

(e) Collections. If at any time there shall be a Complete Servicing Transfer, the existing Servicer will cause to be transmitted and delivered directly to the Successor Servicer, for the account of the Owners, or deposited in the Collection Account, all Collections in respect of Transferred Receivables (properly endorsed, where required), so that such items may be collected by the Successor Servicer. All such Collections consisting of cash shall not be commingled with other items or monies of the existing Servicer for a period longer than two Business Days. If the Administrative Agent (or its designated agent) or the Successor Servicer receives items or monies that are not payments on account of the Transferred Receivables, such items or monies shall be held in trust by the Administrative Agent or the Successor Servicer for Finco’s benefit and delivered promptly to the existing Servicer after being so identified by the Administrative Agent (or its designated agent) or the Successor Servicer.

(f) Collection and Administration at Expense of the Transferor. The Servicer agrees that in the event of a Complete Servicing Transfer, it will reimburse the Administrative Agent for all reasonable out-of-pocket expenses (including, without limitation, attorneys’ and accountants’ and other third parties’ reasonable fees and expenses, expenses incurred by each such Person, as the case may be, expenses of litigation or preparation therefor, and expenses of audits and visits to the offices of the Transferor and the Servicer) incurred by each such Person in connection with and following the transfer of functions following a Complete Servicing Transfer.

(g) Payments by Obligors. The Administrative Agent shall be entitled to notify the Obligors of Transferred Receivables to make payments directly to the Administrative Agent (for the benefit of the Owners) of amounts due thereunder at any time and from time to time following the occurrence of (i) a Termination Event or (ii) a Complete Servicing Transfer and, at the request of the Required Owners, the Administrative Agent shall so notify the Obligors.

(h) Following a Servicer Default, the Servicer will agree to (i) in the case of a Servicer Default specified in Section 6.7(d) and in the case of a Servicer Default specified in Section 6.7(e) relating to the occurrence of an Insolvency Event of the Servicer defined in clause (b)(iii) of the definition of “Insolvency Event”, cooperate with, or facilitate, the transfer of wireless service of the Obligors to a successor wireless service provider, and (ii) facilitate any transfer of servicing as described in this Article VI.

Section 6.7 Servicer Default. A “Servicer Default” shall mean the occurrence and continuance of one or more of the following events or conditions:

(a) the Servicer shall fail to (i) make any payment, transfer or deposit required under this Agreement on or before the date such payment, transfer or deposit is required to be made (or direction given), which failure continues unremedied for a period of five (5) Business Days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given in accordance with Section 9.3 or to an Authorized Officer of the Servicer or after discovery of such failure by an Authorized Officer of the Servicer, or (ii) deliver a Monthly Report in accordance with Section 6.12 within five (5) Business Days after the due date thereof; or

 

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(b) the Servicer shall fail to (i) deliver any report, other than delivery of a Monthly Report, required to be delivered to the Administrative Agent or any Funding Agent within fifteen (15) days after the due date thereof or (ii) duly observe or perform in any material respect any other covenant or agreement of the Servicer set forth in this Agreement or the Sale Agreement, which failure (A) results in an Adverse Effect on the Administrative Agent or any Funding Agent and (B) continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given in accordance with Section 9.3 or to an Authorized Officer of the Servicer by the Transferor, or to an Authorized Officer of the Servicer or the Transferor by the Administrative Agent or any Funding Agent, or after discovery of such failure by an Authorized Officer of the Servicer; or

(c) any representation, warranty or certification made by the Servicer in this Agreement or the Sale Agreement or in any certificate, report, or financial statement delivered by the Servicer pursuant hereto or thereto proves to have been incorrect in any material respect when made and such inaccuracy (A) results in an Adverse Effect on the Administrative Agent, the Funding Agents or the Owners and (B) continues unremedied for a period of thirty (30) days after the date on which written notice of such inaccuracy, requiring the same to be remedied, shall have been given in accordance with Section 9.3 or to an Authorized Officer of the Servicer by the Transferor, or to an Authorized Officer of the Servicer or the Transferor by the Administrative Agent or any Funding Agent, or after discovery of such inaccuracy by an Authorized Officer of the Servicer; or

(d) neither the Servicer nor any of its Affiliates is engaged in the mobile communications business in the United States; or

(e) an Insolvency Event with respect to the Servicer shall have occurred; or

(f) the Servicer shall resign pursuant to Section 6.8 and an Affiliate of the Servicer has not become the Successor Servicer pursuant to Section 6.8; or

(g) except as permitted herein, the Servicer shall assign or delegate its servicing duties or obligations hereunder.

Notwithstanding the foregoing, no Servicer Default shall occur under clause (a) above for a period of ten (10) Business Days after the applicable grace period or under clause (b) or (c) above for a period of sixty (60) days after the applicable grace period if such delay or failure could not have been prevented by the exercise of reasonable diligence by the Servicer and such delay or failure was caused by an event that occurs as a result of an act of God, an act of the public enemy, acts of declared or undeclared war (including acts of terrorism), public disorder, rebellion, sabotage, epidemics, landslides, lightning, fire, hurricane, earthquakes, floods or

 

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similar causes; provided, that the Servicer shall use all commercially reasonable efforts to perform its obligations in a timely manner in accordance with the terms of this Agreement, and the Servicer shall provide the Administrative Agent and the Transferor with an Officer’s Certificate of the Servicer giving prompt notice of such failure or delay by it, together with a description of its efforts so to perform its obligations.

Within five (5) Business Days after an Authorized Officer of the Servicer has actual knowledge of any Servicer Default, the Servicer shall give notice thereof to the Administrative Agent.

Section 6.8 Finco Not to Resign as Servicer. Finco shall not resign from the obligations and duties hereby imposed on it as Servicer under this Agreement except upon determination that the performance of its duties under this Agreement shall no longer be permissible under applicable law. Notice of any such determination permitting the resignation of Finco shall be communicated to the Funding Agents at the earliest practicable time (and, if such communication is not in writing, shall be confirmed in writing at the earliest practicable time) and any such determination shall be evidenced by an opinion of counsel to such effect delivered to the Funding Agents concurrently with or promptly after such notice. Unless required by law, no such resignation shall become effective until the Administrative Agent or the Successor Servicer shall (i) have taken the actions required by Section 6.6 to effect the termination of the responsibilities and rights of the predecessor Servicer under this Agreement, including the transfer to the Administrative Agent or the Successor Servicer for administration by it of all cash amounts that shall at the time be held by the predecessor Servicer for deposit, or shall thereafter be received with respect to a Transferred Receivable and the delivery of the Records relating to the Transferred Receivables, and the related accounts and records maintained by the Servicer, and (ii) have assumed the responsibilities and obligations of Finco hereunder in writing.

Section 6.9 Servicing Fee. (a) As full compensation for its servicing activities hereunder and as reimbursement for any expense incurred by it in connection therewith, on each Payment Date, the Servicer shall be entitled to receive a servicing fee (the “Servicing Fee”) in respect of the immediately preceding Collection Period equal to the product of (a) one-twelfth of the Servicing Fee Rate and (b) the aggregate Principal Balances of the Transferred Receivables as of the close of business on the last day of the immediately preceding Collection Period.

(b) The Servicer shall issue a separate invoice to each of the Helaba Owners on the services rendered during any month and the Servicing Fee thereon by the Payment Date in the following month. Such invoices shall be materially in the form specified in Annex D. The Helaba Funding Agent shall inform the Servicer of any required change to the invoicing should the relevant statutory VAT provisions or their interpretation change. Notwithstanding the receipt of invoices by the Helaba Owners from the Servicer, the Servicing Fee shall be payable only from Collections pursuant to Section 2.8.

Section 6.10 Servicer Expenses. The Servicer shall be required to pay all expenses incurred by it in connection with its activities hereunder, including fees and disbursements of independent accountants, fees and disbursements incurred in connection with collection and enforcement of Transferred Receivables (other than amounts incurred in connection with the liquidation of a Transferred Receivable which amounts shall be netted against the Recoveries, if any), taxes imposed on the Servicer and expenses incurred in connection with distributions and reports to the Administrative Agent, any Funding Agent and any Owner.

 

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Section 6.11 Limitation on Liability of Servicer and Others. Notwithstanding anything to the contrary herein, none of the Servicer or any of the directors or officers or employees or agents of the Servicer, as the case may be, shall be under any liability to the Affected Parties, except as provided under this Agreement, for any action taken or for refraining from the taking of any action pursuant to this Agreement or for errors in judgment; provided, however, that this provision shall not protect the Servicer or any such person against any liability that would otherwise be imposed by reason of willful misfeasance, bad faith or negligence in the performance of duties or by reason of reckless disregard of obligations and duties under this Agreement. The Servicer and any director or officer or employee or agent of the Servicer, as the case may be, may rely in good faith on any document of any kind prima facie properly executed and submitted by any person respecting any matters arising under this Agreement.

Without limiting any other provision of this Agreement, the Servicer shall be obligated to appear in, prosecute and defend only legal actions that are incidental to its duties to service the Transferred Receivables in accordance with this Agreement.

Section 6.12 Monthly Report. On each Determination Date, with respect to each Payment Date and the related Collection Period, the Servicer shall prepare and deliver (i) to each Funding Agent, an electronic copy of the Monthly Report (and, upon request of any Funding Agent, the Servicer shall deliver a copy thereof by such other means as such Funding Agent may reasonably request) and (ii) to the Administrative Agent, a signed copy of the Monthly Report, in each case, as of the close of business of the Servicer on the last day of the immediately preceding Collection Period. The Servicer may deliver the updated Receivables Schedule on the related Determination Date along with the Monthly Report to be delivered on such date. In the event that neither Finco nor any of its Affiliates is the Servicer, the Successor Servicer shall deliver each Monthly Report (and updated Receivables Schedule, if applicable) in the manner described above. Each Monthly Report delivered pursuant to this Section 6.12 shall be accompanied by a certificate of a Servicing Officer certifying the accuracy of the Monthly Report.

Section 6.13 Notices to the Transferor. In the event that T-Mobile Financial LLC is no longer acting as Servicer, any Successor Servicer shall deliver or make available to the Transferor each certificate and report to be provided thereafter pursuant to Section 6.12.

Section 6.14 Annual Statement of Compliance from Servicer; Annual Servicing Report of Independent Public Accountants. (a) The Servicer will deliver to the Administrative Agent and each Funding Agent, on or before April 30 of each year commencing April 30, 2016 (or in the case of the Successor Servicer, the year after such entity becomes the Successor Servicer), an Officer’s Certificate substantially in the form of Exhibit I, stating that (a) a review of the activities of the Servicer during the twelve months ended the immediately preceding December 31 (or with respect to the first Officer’s Certificate to be delivered on or before April 30, 2016, with respect to the period from the Original Closing Date to and including December 31, 2015),

 

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which represents the fiscal year end of the Servicer (or other applicable date), and of its performance under this Agreement was made under the supervision of the officer signing such certificate and (b) to such officer’s knowledge, based on such review, the Servicer has fully performed or caused to be performed in all material respects all of its obligations under this Agreement throughout such period, and no Servicer Default has occurred or is continuing, or, to the extent known to such officer if there has been a Servicer Default, specifying each such default known to such officer and the nature and status thereof and the steps being taken or necessary to be taken to remedy such event. Notwithstanding the foregoing, the parties hereto agree that the first Officer’s Certificate to be delivered with respect to the period from the Original Closing Date to and including December 31, 2015 shall be delivered on or prior to August 31, 2016.

(b) The Servicer shall at its expense appoint independent public accountants (which may be the audit firm of TMUS) to prepare and deliver the report(s) specified in Section 3.7(s).

Section 6.15 Adjustments. (a) If the Servicer adjusts downward the amount of any Receivable because of a Dilution or posting error to an Obligor, because such Receivable was created in respect of a handset device, a Smart Watch or an Accessory which was refused or returned by an Obligor, or if the Servicer otherwise adjusts downward the amount of any Receivable without receiving Collections therefor or charging off such amount as uncollectible, then, in any such case (other than cases resulting from Servicer error, a remedy for which is provided in Section 6.15(b)), any amount required herein to be calculated by reference to the amount of Receivables, will be reduced by the amount of the adjustment. Any adjustment required pursuant to the preceding sentence shall be made on or prior to the end of the Collection Period in which such adjustment obligation arises. In the event that, following the exclusion of such Receivables from a calculation, an Asset Base Deficiency exists, the Transferor shall make a deposit into the Collection Account in immediately available funds in an amount equal to the lesser of (i) the amount of such Asset Base Deficiency, and (ii) the Principal Balance of such Receivables.

(b) If (i) the Servicer makes a deposit into the Collection Account in respect of a Collection of a Receivable and such Collection was received by the Servicer in the form of a check which is not honored for any reason or (ii) the Servicer makes a mistake with respect to the amount of any Collection and deposits an amount that is less than or more than the actual amount of such Collection, the Servicer shall appropriately adjust the amount subsequently deposited into the Collection Account to reflect such dishonored check or mistake. Any Receivable in respect of which a dishonored check is received shall be deemed not to have been paid.

(c) Adjustments made pursuant to this Section 6.15 shall not require any change in any report previously delivered pursuant to Section 6.12, except to the extent the Servicer determines that the aggregate amount of adjustments could have an Adverse Effect.

Section 6.16 Liability of Servicer. The Servicer shall be liable under this Article VI only to the extent of the obligations specifically undertaken by the Servicer in its capacity as Servicer.

 

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Section 6.17 Modifications to Credit Agreements. Subject to compliance with all Requirements of Law, the Servicer may change the terms and provisions of the applicable Credit Agreements in any respect, provided that any such change would not be reasonably likely to (a) materially affect the collectability of the related Receivables, taken as a whole, or (b) have an Adverse Effect; provided, that any material change to the Credit Agreements that could reasonably be likely to adversely affect the Owners shall be subject to consent of the Required Owners.

Section 6.18 Compliance with Requirements of Law. The Servicer shall duly satisfy all obligations on its part to be fulfilled under or in connection with each Receivable and the related Credit Agreement, if any, will maintain in effect all qualifications and licenses required under Requirements of Law in order to service properly each Receivable and the related Credit Agreement, if any, and will comply in all material respects with all other Requirements of Law in connection with servicing the Receivables, except to the extent the failure to so comply would not have an Adverse Effect.

Section 6.19 Limitations on Liability of the Servicer and Others. Neither the Servicer nor any of the directors, officers, members, managers, employees or agents of the Servicer in its capacity as Servicer shall be under any liability to the Transferor, the Administrative Agent, the Owners, the Cap Counterparty or any other Person for any action taken or for refraining from the taking of any action in good faith in its capacity as Servicer pursuant to this Agreement; provided, however, that this provision shall not protect the Servicer or any such Person against any liability which would otherwise be imposed by reason of willful misfeasance, bad faith or gross negligence in the performance of duties or by reason of reckless disregard of obligations and duties hereunder. The Servicer and any director, officer, member, manager, employee or agent of the Servicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person (other than the Servicer) respecting any matters arising hereunder. The Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties as Servicer in accordance with this Agreement and which in its reasonable judgment may involve it in any expense or liability. The Servicer may, in its sole discretion, undertake any such legal action which it may deem necessary or desirable for the benefit of the Owners with respect to this Agreement and the rights and duties of the parties hereto and the interests of the Owners hereunder.

Section 6.20 Access to Certain Documentation and Information Regarding the Receivables. The Servicer shall provide to the Transferor or the Administrative Agent, as applicable, access to the documentation regarding the Receivables in such cases where the Transferor or the Administrative Agent, as applicable, is required in connection with the enforcement of the rights of Owners or by applicable statutes or regulations to review such documentation, such access being afforded without charge but only (a) upon reasonable request, (b) during normal business hours, (c) subject to the Servicer’s normal security and confidentiality procedures, (d) at reasonably accessible offices in the continental United States designated by the Servicer, and (e) once per calendar year. Nothing in this Section 6.20 shall derogate from the obligation of the Transferor, the Administrative Agent and the Servicer to observe any applicable law prohibiting disclosure of information regarding the Obligors and the failure of the Servicer to provide access as provided in this Section 6.20 as a result of such obligation shall not constitute a breach of this Section 6.20.

 

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Section 6.21 Examination of Records. The Transferor and the Servicer shall indicate in their computer files or other records that the Transferred Receivables have been conveyed to the Administrative Agent (for the benefit of the Owners) pursuant to this Agreement. The Transferor and the Servicer shall, prior to the sale or transfer to a third party of any receivable held in its custody, examine its computer records and other records to determine that such receivable is not, and does not include, a Transferred Receivable sold to the Administrative Agent (for the benefit of the Owners).

Section 6.22 Communications Regarding Compliance Matters. The Servicer agrees to comply with, and any Successor Servicer, by accepting its appointment as such, agrees to cooperate in good faith with any reasonable request by Finco or the Transferor for information which is required in order to enable Finco or the Transferor to comply with reporting requirements under the Exchange Act and any other Requirements of Law to the extent applicable.

ARTICLE VII.

TERMINATION EVENTS; AMORTIZATION EVENTS

Section 7.1 Termination Events. The occurrence of any one or more of the following events shall constitute a Termination Event:

(a) an Insolvency Event with respect to the Transferor, the Servicer, Finco (whether or not Finco shall then be the Servicer) or the Guarantor shall have occurred;

(b) default in the payment of any Yield owing to any Funding Agent or Owner pursuant to Section 2.8 of this Agreement when the same becomes due and payable and such default shall continue for a period of five (5) Business Days;

(c) default in the payment of any outstanding Net Investment on the Final Payment Date, if and to the extent not previously paid;

(d) default in the performance or observance of (i) any covenant or agreement of the Transferor made in this Agreement for the benefit of the Administrative Agent, the Funding Agents or the Owners (other than a covenant or agreement, a default in the performance or observance of which is elsewhere in this Section 7.1 specifically dealt with), or (ii) any representation or warranty of the Transferor made in this Agreement for the benefit of the Administrative Agent, the Funding Agents or the Owners proving to have been incorrect in any material respect as of the time when the same shall have been made, which default or inaccuracy, as applicable, has an Adverse Effect on the Administrative Agent, the Funding Agents or the Owners and continues unremedied for sixty (60) days after the date on which written notice of such failure or inaccuracy, shall have been given in writing to an Authorized Officer of the Transferor by the Administrative Agent or the Funding Agents;

 

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(e) failure on the part of Finco, the Transferor or the Servicer to make any payment, transfer or deposit required by the terms of this Agreement or the Sale Agreement on or before the date such payment, transfer or deposit is required to be made herein or therein and such failure shall continue for a period of five (5) Business Days after written notice to an Authorized Officer of Finco, the Servicer or the Transferor, or actual knowledge by an Authorized Officer of Finco, the Servicer or the Transferor;

(f) the Transferor is required to register as an investment company under the Investment Company Act;

(g) a breach of any covenant of the Transferor or Finco in this Agreement or the Sale Agreement, as applicable, which breach (i) has an Adverse Effect on the interest of any Funding Agent or any Owner and (ii) continues for a period of thirty (30) days after the date on which written notice of such breach, requiring the same to be remedied, shall have been given in accordance with Section 9.3 or to an Authorized Officer of the Transferor or Finco, as applicable, or after discovery of such breach, requiring the same to be remedied, by an Authorized Officer of the Transferor or Finco, as applicable;

(h) as of any date of determination, an Asset Base Deficiency exists, and such condition continues unremedied for a period of sixty (60) consecutive days;

(i) all of the following conditions shall have occurred: (A) a Termination Notice shall have been delivered to the Servicer by the Administrative Agent pursuant to Section 6.6(a) of this Agreement, and (B) a Successor Servicer shall not have been appointed and assumed the servicing of the Transferred Receivables pursuant to a servicing agreement reasonably acceptable to the Required Owners by the date which is sixty (60) days after the date on which such Servicer Default initially occurred;

(j) the Administrative Agent (for the benefit of the Owners) shall fail to have a first priority perfected security interest in a material portion of the Transferred Assets.

For the avoidance of doubt, the five (5) Business Day grace period provided for in the Termination Events described in paragraphs (b) and (d) above shall run contemporaneously with the comparable five (5) Business Day grace period relating to the comparable covenant or obligation of the Transferor or the Servicer, as applicable, to pay, transfer or deposit funds in this Agreement or the Sale Agreement.

The Transferor shall deliver to the Administrative Agent, promptly, but in any event within five (5) days after the occurrence of any Termination Event, written notice in the form of an Officer’s Certificate of the Transferor of such Termination Event, its status and what action the Transferor is taking or proposes to take with respect thereto.

Section 7.2 Remedies Upon the Occurrence of a Termination Event. (a) If a Termination Event occurs and is continuing, (i) the Administrative Agent shall at the request, or may with the consent, of the Required Owners, by notice to the Transferor, declare a Termination Date to have occurred and all outstanding Tranche Periods to be ended; provided that, in the case of a Termination Event under Section 7.1(a), (b), (c), (e), (f), (h) or (i), the

 

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Termination Date shall automatically occur and all Tranche Periods shall be ended, (ii) the Administrative Agent shall at the request, or may with the consent, of the Required Owners, exercise its rights and remedies under the Control Agreement(s) relating to the Collection Account and as otherwise contemplated herein, (iii) the Administrative Agent, on behalf of the Owners, shall accept no further transfers of Receivables, and (iv) the Purchase Limit then in effect shall be reduced to an amount equal to the Aggregate Net Investment at such time. In addition, if a Termination Event occurs and is continuing and, if the Servicer is Finco or any Affiliate thereof at such time, the Administrative Agent shall at the request, or may with the consent, of the Required Owners, terminate Finco or such Affiliate thereof as Servicer hereunder in accordance with Section 6.6. If a Termination Date occurs, then the Administrative Agent (for the benefit of the Owners) shall have all rights of the Transferor (i) as “Purchaser” under the Sale Agreement and otherwise with respect to Receivables and (ii) under or with respect to the Eligible Interest Rate Caps. In addition, following the occurrence and during the continuance of a Termination Event, each Owner shall fund its Net Investment at the Default Rate as provided herein.

(b) Upon the occurrence and during the continuance of a Termination Event, the Administrative Agent (for the benefit of the Owners) shall have, in addition to all rights and remedies under this Agreement or otherwise, all other rights and remedies provided under the UCC of the applicable jurisdiction and under other applicable laws, which rights shall be cumulative. The Administrative Agent may with the consent, or shall at the direction of the Required Owners, exercise from time to time some or all of the rights and remedies described in the preceding sentence. No failure or delay on the part of any party in exercising any power, right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or remedy preclude any other further exercise thereof or the exercise of any other power, right or remedy.

(c) In addition to any rights and remedies granted to the Administrative Agent pursuant to the terms of this Agreement, following the occurrence and continuance of a Termination Event, the Administrative Agent may appoint an independent auditor of national reputation reasonably acceptable to the Servicer to verify that all prior Monthly Reports delivered under this Agreement have been prepared and delivered in accordance with the terms of this Agreement.

Section 7.3 Amortization Events. The occurrence of any one or more of the following events shall constitute an Amortization Event:

(a) the occurrence, continuance and, to the extent required, declaration of a Termination Event;

(b) a Servicer Default shall have occurred or, to the extent required, been declared;

(c) Finco, the Transferor or the Servicer, as applicable, shall fail to:

(i)(A) deliver a Monthly Report required to be delivered to the Administrative Agent within five (5) Business Days after the due date thereof, or (B) deliver any report (other than a Monthly Report) required to be delivered to the Administrative Agent within fifteen (15) days after the due date thereof,

 

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(ii) duly observe or perform the covenants set forth in this Agreement with respect to Liens relating to the Transferred Receivables, which continues unremedied for a period of three (3) Business Days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given in accordance with Section 9.3 or to an Authorized Officer of Finco, the Transferor or the Servicer, as applicable, or after discovery of such failure by an Authorized Officer of Finco, the Transferor or the Servicer, as applicable, or

(iii) duly observe or perform in any material respect any other covenant or agreement of Finco, the Transferor or the Servicer, as the case may be, set forth in this Agreement or the Sale Agreement, which failure (A) results in an Adverse Effect on the Funding Agents or the Owners and (B) continues unremedied for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given in accordance with Section 9.3 or to an Authorized Officer of Finco, the Transferor or the Servicer, as applicable, or after discovery of such failure by an Authorized Officer of Finco, the Transferor or the Servicer, as applicable; provided, however, no Amortization Event shall be deemed to occur if the relevant Transferred Receivables are repurchased in accordance with this Agreement;

(d) any representation or warranty made by the Transferor or Finco in this Agreement or the Sale Agreement, proves to have been incorrect in any material respect when made and such inaccuracy results in an Adverse Effect on the Funding Agents or the Owners and such Adverse Effect continues for a period of thirty (30) days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given in accordance with Section 9.3 or to an Authorized Officer of Finco or the Transferor, as applicable, or after discovery of such failure by an Authorized Officer of the Transferor or Finco, as applicable; provided, however, that no Amortization Event shall be deemed to occur if the relevant Transferred Receivables relating to such representation or warranty are repurchased in accordance with this Agreement;

(e) an Asset Base Deficiency exists and such condition has existed unremedied for a period of five (5) consecutive days;

(f) the three-month average Default Ratio relating to the Transferred Receivables shall exceed 8.00%;

(g) the three-month average Delinquency Ratio relating to the Transferred Receivables shall exceed 3.50%;

(h) the three-month average Dilution Ratio relating to the Transferred Receivables shall exceed 4.00%

(i) the Transferor shall fail to comply with the Hedging Requirements and such failure shall continue unremedied for more than ten (10) days after written notice thereof being given in accordance with Section 9.3 to an Authorized Officer of the Transferor or the Servicer by the Administrative Agent or any Funding Agents;

 

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(j) a Change of Control Triggering Event shall have occurred;

(k) litigation, arbitration or governmental proceedings shall have been instituted involving Finco, the Transferor or the Transferred Receivables that could reasonably be expected to materially and adversely affect Finco, the Transferor or the collectability of the Transferred Receivables;

(l) any money judgment, writ or warrant of attachment or similar process involving in the aggregate at any time an amount in excess of $250,000 (in either case to the extent not adequately covered by insurance as to which a solvent insurance company has not denied coverage) shall be entered or filed against the Transferor or any of its assets and shall remain undischarged, unpaid, unvacated, unappealed, unbonded or unstayed for a period of thirty (30) days (or in any event later than five days prior to the date of any proposed sale thereunder);

(m) Finco, the Transferor, TMUS or TMUSA shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $100,000,000 in the aggregate, in each case when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure to pay shall continue for two (2) days after the applicable grace period, if any, specified in the agreement or instrument relating to such Debt;

(n) there shall have occurred an event or situation with respect to the Transferor, either Guarantor, or Finco that shall have a material adverse effect on the legality, validity or enforceability of any of this Agreement, the Sale Agreement or the Performance Guaranty, or any such party’s ability to perform its respective obligations thereunder, other than such material adverse effects which are the direct result of actions or omissions of the Administrative Agent, any Funding Agent or any Owner;

(o) the Transferor is a “covered fund” for purposes of regulations adopted under the Volcker Rule;

(p)(i) either Guarantor shall purport to revoke or terminate the Performance Guaranty, or the Performance Guaranty shall no longer be in effect, or either Guarantor shall fail to make any payments required thereunder in a timely manner; or (ii) either Guarantor shall fail to perform, in a timely manner, any of its obligations under the Performance Guaranty or this Agreement, or there shall have occurred any material breach of any of the representations and warranties, or any covenants or other agreements, made by either Guarantor under the Performance Guaranty;

(q) the Consolidated Equity Ratio shall at any time be less than the greater of (i) 17.50% and (ii) such higher amount as any of TMUS, TMUSA, the Servicer or the Transferor may agree, whether by way of similar provision, representation, covenant or warranty, in any Comparable Transaction in any similar provision, for so long as any such Comparable Transaction is outstanding;

 

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(r) the Consolidated Leverage Ratio shall at any time be greater than the lesser of (i) 500% and (ii) such lower amount as any of TMUS, TMUSA, the Servicer or the Transferor may agree, whether by way of similar provision, representation, covenant or warranty, in any Comparable Transaction in any similar provision, for so long as such Comparable Transaction is outstanding; or

(s) the PBGC shall, or shall indicate its intention to, file notice of a lien pursuant to Section 4068 of ERISA, or a contribution failure occurs sufficient to give rise to a lien under Section 303(k) of ERISA or Section 430(k) of the Code, with regard to any of the assets of Finco or the Transferor, and, in each case, such lien shall not have been released within thirty (30) days;

then, in the case of any event described in subsections (b), (c), (d), (e), (i), (k), (m), (n), or (p)(ii), after the applicable grace period, if any, set forth in such subparagraphs, the Required Owners or the Administrative Agent, acting at the direction of the Required Owners, by notice then given in writing to the Transferor and the Servicer may declare that an amortization event (each, an “Amortization Event”) has occurred as of the date of such notice, and in the case of any event described in subsections (a), (f), (g), (h), (j), (l), (o), (p)(i), (q), (r) or (s), an Amortization Event shall occur without any notice or other action on the part of the Administrative Agent or the Required Owners immediately upon the occurrence of such event. In addition, following the occurrence and during the continuance of an Amortization Event, each Owner shall fund its Net Investment at the Amortization Rate as provided herein.

ARTICLE VIII.

INDEMNIFICATION

Section 8.1 Indemnification. (a) Without limiting any other rights which any Owner, any Funding Agent or the Administrative Agent may have hereunder or under applicable law, the Transferor hereby agrees to indemnify each Affected Party from and against any and all damages, losses, claims, liabilities, costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any of them arising out of or as a result of this Agreement or the ownership, either directly or indirectly, by any Affected Party of the Transferred Assets, excluding, however, (x) Indemnified Amounts to the extent resulting from the gross negligence or willful misconduct on the part of such Affected Party, (y) recourse (except as otherwise specifically provided in this Agreement) for uncollectible Transferred Receivables, or (z) Excluded Taxes relating to a loss solely in respect of Taxes. Without limiting the generality of the foregoing, the Transferor shall indemnify each Affected Party for Indemnified Amounts relating to or resulting from:

(i) the failure of any Transferred Receivable reported by the Transferor as an Eligible Receivable to be an Eligible Receivable at the time of transfer to the Administrative Agent (for the benefit of the Owners);

 

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(ii) any representation or warranty made or deemed made by the Transferor (or any officers of the Transferor) under or in connection with this Agreement or any other Related Document or any other information or report delivered by any such Person pursuant hereto or thereto, which shall have been false or incorrect when made or deemed made;

(iii) the failure by the Transferor to comply with any applicable Requirement of Law with respect to any Credit Agreement or Transferred Receivable;

(iv) any failure of the Transferor to perform its duties, covenants or other obligations in accordance with the provisions of this Agreement or any other Related Document;

(v) any products liability, personal injury or damage suit or other similar claim arising out of or in connection with products or services that are the subject of any Credit Agreement, Transferred Receivable or the related Financed Equipment;

(vi) any dispute, defense, claim or offset (other than the bankruptcy of an Obligor, unless the basis for any avoidance action, or any diminution in the claim related to any Transferred Receivable, during any bankruptcy proceeding relates to any action or omission on the part of the Transferor) of the Obligor to the payment of any Transferred Receivable (including, without limitation, a defense based on such Transferred Receivable or the related Credit Agreement not being a legal, valid and binding obligation of such Obligor enforceable against it in accordance with its terms);

(vii) the commingling of Collections of Transferred Receivables at any time with other funds;

(viii) any investigation, litigation or proceeding related to or arising from this Agreement or any other Related Document, the transactions contemplated hereby and thereby, the transfer of the Transferred Assets to the Administrative Agent (for the benefit of the Owners), or any other investigation, litigation or proceeding relating to the Transferor in which any Affected Party becomes involved as a result of any of the transactions contemplated hereby;

(ix) any inability to litigate any claim against any Obligor in respect of any Transferred Receivable as a result of such Obligor being immune at the time of the transfer of such Transferred Receivable from Finco to the Transferor, and from the Transferor to the Administrative Agent (for the benefit of the Owners), from civil and commercial law and suit;

(x) any failure to vest and maintain vested in the Administrative Agent (for the benefit of the Owners), legal and equitable title to, and ownership of, the Transferred Assets and the Collections on the Transferred Receivables, free and clear of any Lien;

(xi) the failure to have filed, or any delay in filing, financing statements or other similar instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with respect to the Lien of the Administrative Agent (for the benefit of the Owners) in the Transferred Assets;

 

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(xii) the failure of the Transferor to receive reasonably equivalent value for the Transferred Receivables and Related Rights that it transfers to the Administrative Agent (for the benefit of the Owners);

(xiii) any action or omission by the Transferor that reduces or impairs the rights of the Transferor or its assigns with respect to any Transferred Receivable or the ability to collect the principal balance of such Transferred Receivable;

(xiv) any transfer under the Sale Agreement being found to be void by a court of competent jurisdiction;

(xv) the failure by the Transferor to pay when due any taxes owed by it, including, without limitation, sales, excise or personal property taxes;

(xvi) any attempt by any Person to void any transfer hereunder based on the acts or omissions of the Transferor;

(xvii) the failure of the Principal Balance of any Transferred Receivable to equal the amount reported or represented by the Transferor as the principal balance of such Transferred Receivable; or

(xviii) any value added tax plus any interest and other ancillary Tax charges (A) applicable to the payment of the Servicing Fee, the supply of the services rendered by the Servicer or in connection with the sale and collection of the Transferred Receivables and the Related Rights pursuant to this Agreement or (B) arising as a result of a breach by the Transferor, the Servicer, the Guarantor or any of their Affiliates of Section 3.9(j) (German Value-Added Tax) (less any respective value added tax credits or deductions as are obtained by or credited to any of the Helaba Owners, which credits or deductions shall be taken into account following the final and unchangeable determination thereof by the German tax authorities; whereby such Helaba Owner shall take reasonable steps to receive eligible value added tax credits or deductions by filing respective returns).

If any Conduit Purchaser is an Affected Party and such Affected Party enters into agreements for the acquisition of interests in receivables from one or more other Persons under its commercial paper program (“Other Transferors”), such Conduit Purchaser shall allocate ratably such Indemnified Amounts which are attributable to the Transferor and to the Other Transferors to the Transferor and each Other Transferor; provided, however, that if such Indemnified Amounts are attributable to the Transferor and not attributable to any Other Transferor, the Transferor shall be solely liable for such Indemnified Amounts or if such Indemnified Amounts are attributable to Other Transferors and not attributable to the Transferor, such Other Transferors shall be solely liable for such Indemnified Amounts.

 

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(b) The Servicer shall indemnify and hold harmless each Affected Party against Indemnified Amounts, as incurred (payable promptly upon written request), for or on account of or arising from or in connection with, or otherwise with respect to (i) any breach of any representation, warranty, covenant, agreement or other obligation of the Servicer set forth in this Agreement or any other Related Document (or any certificate or report of the Servicer delivered pursuant hereto or thereto) to which the Servicer is a party, (ii) the failure by the Servicer to comply with any applicable Requirement of Law with respect to any Credit Agreement or Transferred Receivable, (iii) the commingling of Collections of Transferred Receivables at any time with other funds, (iv) any action or omission by the Servicer not in compliance with the Credit and Collection Policies that has the effect of reducing or impairing the rights of any Owner with respect to any Transferred Receivable or the value of any Transferred Receivable; or (v) any dispute, defense, claim, offset or defense of the Obligor to the payment of any Transferred Receivable resulting from or related to the collection activities with respect to such Transferred Receivable; provided, however, that (A) the Servicer shall not be so required to indemnify any such Affected Party or otherwise be liable to any such Affected Party hereunder for any Indemnified Amounts incurred for or on account of or arising from or in connection with or otherwise with respect to any breach of any covenant set forth herein a remedy for the breach of which is provided in Section 2.12 or Section 2.13 of this Agreement and (B) the Servicer shall not be required to indemnify any Affected Party for (x) Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds that such Indemnified Amounts resulted from gross negligence or willful misconduct on the part of the Affected Party seeking indemnification; (y) Indemnified Amounts to the extent the same includes losses in respect of Receivables that are uncollectible on account of the insolvency, bankruptcy or lack of creditworthiness of the related Obligor; or (z) Excluded Taxes relating to an Indemnified Amount solely in respect of Taxes. Any indemnification pursuant to this Section 8.1(b) shall be had only from the assets of the Servicer. The provisions of such indemnity shall run directly to and be enforceable by such Affected Parties. The provisions of this Section 8.1(b) shall survive the termination of this Agreement.

(c) Promptly after receipt by an Affected Party under this Section 8.1 of written notice of any damage, loss or expense in respect of which indemnity may be sought hereunder by it, such Affected Party will, if a claim is to be made against the Transferor or the Servicer, as applicable, notify the Transferor or the Servicer, as applicable, thereof in writing; but the omission so to notify the Transferor or the Servicer, as applicable, will not relieve the Transferor or the Servicer, as applicable, from any liability (otherwise than under this Section 8.1) which it may have to any Affected Party except as may be required or provided otherwise than under this Section 8.1, unless and to the extent any such liability is caused by such omission. Thereafter, the Affected Party and the Transferor or the Servicer, as applicable, shall consult, to the extent appropriate, with a view to minimizing the cost to the Transferor or the Servicer, as applicable, of its obligations hereunder. In case any Affected Party receives written notice of any damage, loss or expense in respect of which indemnity may be sought hereunder by it and it notifies the Transferor or the Servicer, as applicable, thereof, the Transferor or the Servicer, as applicable, will be entitled to participate therein, and to the extent that it may elect by written notice delivered to the Affected Party promptly after receiving the aforesaid notice from such Affected Party, to assume the defense thereof, with counsel reasonably satisfactory at all times to such Affected Party; provided, however, that if the parties against which any damage, loss or expense arises include both the Affected Party and the Transferor or the Servicer, as applicable, and counsel to the Affected Party shall have reasonably concluded that there may be legal defenses

 

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available to it or other indemnified parties which are different from or additional to those available to the Transferor or the Servicer, as applicable, and may conflict therewith, the Affected Party or Parties shall have the right to select one separate counsel for such Affected Party or Parties to assume such legal defenses and otherwise to participate in the defense of such damage, loss or expense on behalf of such Affected Party or Parties. Upon receipt of notice from the Transferor or the Servicer, as applicable, to such Affected Party of its election so to assume the defense of such damage, loss or expense and approval by the Affected Party of counsel, the Transferor or the Servicer, as applicable, shall not be liable to such Affected Party under this Section 8.1 for any legal or other expenses subsequently incurred by such Affected Party in connection with the defense thereof unless (i) the Affected Party shall have employed such counsel in connection with assumption of legal defenses in accordance with the proviso to the immediately preceding sentence, (ii) the Transferor or the Servicer, as applicable, shall not have employed and continued to employ counsel reasonably satisfactory to the Affected Party to represent the Affected Party within a reasonable time after notice of commencement of the action or (iii) the Transferor or the Servicer, as applicable, shall have authorized the employment of counsel for the Affected Party at the expense of the Transferor or the Servicer, as applicable.

(d) Notwithstanding any other provisions contained in this Section 8.1, (i) the Transferor or the Servicer, as applicable, shall not be liable for any settlement, compromise or consent to the entry of any order adjudicating or otherwise disposing of any damage, loss, or expense effected without its consent and (ii) after the Transferor or the Servicer, as applicable, has assumed the defense of any damage, loss or expense under Section 8.1(b) with respect to any Affected Party, it will not settle, compromise or consent to entry of any order adjudicating or otherwise disposing thereof (1) if such settlement, compromise or order involved the payment of money damages except if the Transferor or the Servicer, as applicable, agrees with such Affected Party to pay such money damages and, if not simultaneously paid, to furnish such Affected Party with satisfactory evidence of its ability to pay such money damages, and (2) if such settlement, compromise or order involves any relief against such Affected Party, other than the payment of money damages, except with the prior written consent of such Affected Party.

Section 8.2 Tax Indemnification. (a) Any and all payments by the Transferor or the Servicer hereunder to any Owner, any Funding Agent or the Administrative Agent (each an “Indemnified Party”) under this Agreement, to the extent allowed by law, shall be made in accordance with Section 2.8 free and clear of, and without deduction for, any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other similar charges imposed by any United States or foreign governmental authority, including any interest, additions to tax or penalties applicable thereto, including any related penalties or interest (all such items and amounts being collectively referred to as “Taxes”) excluding any such Taxes that are (i) net income taxes (including branch profit taxes, minimum taxes and taxes computed under alternative methods, at least one of which is based on or measured by net income), franchise taxes (imposed in lieu of income taxes), or any other taxes based on or measured by the net income of such Indemnified Party or the gross receipts or income of such Indemnified Party, in each case (x) imposed as a result of the recipient being organized under the laws of, or having its principal office or, in the case of any Owner or Participant, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (y) imposed as a result of a present or former connection

 

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between the recipient and the jurisdiction imposing such Tax (other than connections arising from such recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced this Agreement, any Conduit Support Document or any Related Document, or sold or assigned an interest in any Transferred Assets), (ii) any Taxes that would not have been imposed but for the failure of such Owner, Participant, Funding Agent or Administrative Agent, as applicable, to provide and keep current (to the extent legally able) any certification or other documentation required to qualify for an exemption from, or reduced rate of, any such Taxes or required by this Agreement to be furnished by such Owner, Participant, Funding Agent or Administrative Agent, as applicable, (iii) any Taxes imposed as a result of a change by an Owner or Participant of its lending office (other than changes mandated by this Agreement or required by law), (iv) any withholding Taxes imposed under FATCA, and (v) in the case of an Owner, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Owner with respect to an applicable interest in any Transferred Assets pursuant to a law in effect on the date on which (1) such Owner became a party hereto (other than pursuant to an assignment under Section 8.2(d) or Section 8.2(e) hereof), or (2) such Owner otherwise changes its lending office, except in each case to the extent that, pursuant to Section 8.2(a), amounts with respect to such Taxes were payable either to such Owner’s assignor immediately before such Owner became a party hereto or to such Owner immediately before it changed its lending office (all such excluded taxes being hereinafter called “Excluded Taxes” but, for the avoidance of doubt, Excluded Taxes shall not include any Taxes payable by the Helaba Owners contemplated by Section 8.1(a)(xviii)). If the Transferor or the Servicer shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder to an Indemnified Party on account of Collections on the Transferred Receivables, (A) in the case of Taxes other than Excluded Taxes, the sum payable shall be increased as may be necessary so that after making all required deductions of Taxes (other than Excluded Taxes), including deductions of Taxes applicable to additional sums payable under this Section 8.2(a) so that such Indemnified Party receives an amount equal to the sum it would have received had no such deductions been made, (B) the Transferor or the Servicer shall make the required deductions of Taxes, and (C) the Transferor or the Servicer shall pay the full amount of Taxes so deducted to the relevant taxation authority in accordance with applicable law. If the Transferor or the Servicer fail to pay any Taxes when due to the appropriate taxing authority or fail to remit to the Funding Agent, on behalf of itself or such Owner, or to the Administrative Agent, as applicable, the required receipts or other required documentary evidence, the Transferor or the Servicer, as applicable, shall within thirty (30) Business Days after demand therefor pay to such Funding Agent, on behalf of itself or such Owner, or to the Administrative Agent for its own account, as applicable, any incremental taxes, interest or penalties that may become payable by such Owner, Funding Agent or Administrative Agent, as applicable, as a result of any such failure; provided, however, that if such Owner, Funding Agent or Administrative Agent fails to provide notice to the Transferor or the Servicer, as applicable, of the imposition of any such Taxes within thirty (30) Business Days following the receipt of actual written notice of the imposition of such Taxes, there will be no obligation for the Transferor or the Servicer to make a payment pursuant to this Section 8.2(a) in respect of any interest or penalties reasonably attributable to the period beginning on such 30th day and ending ten (10) Business Days after the Transferor or the Servicer receives notice from such Owner, Funding Agent or the Administrative Agent. The Transferor will not have an obligation to make a payment pursuant to this Section 8.2(a) in respect of incremental taxes, interest or penalties reasonably attributable to the negligence or willful misconduct of any such Owner or Funding Agent or the Administrative Agent.

 

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(b) An Owner claiming increased amounts under this Section 8.2 for Taxes paid or payable by such Owner will furnish to the applicable Funding Agent a certificate prepared in good faith setting forth the basis and amount of each request by such Owner for such Taxes, and such Funding Agent shall deliver a copy thereof to the Transferor, the Administrative Agent and the Servicer. A Funding Agent or the Administrative Agent claiming increased amounts under this Section 8.2 for its own account for Taxes paid or payable by such Funding Agent or the Administrative Agent, as applicable, will furnish to the Transferor and the Servicer a certificate prepared in good faith setting forth the basis and amount of each request by the Funding Agent or the Administrative Agent for such Taxes. Any such certificate of an Owner or Funding Agent or the Administrative Agent shall be conclusive absent manifest error. Failure on the part of any Owner or Funding Agent or the Administrative Agent to demand additional amounts pursuant to this Section 8.2 with respect to any period shall not constitute a waiver of the right of such Owner or Funding Agent or the Administrative Agent, as the case may be, to demand compensation with respect to such period. Each Owner agrees that it will not demand compensation under this Section 8.2 for amounts incurred more than 180 days prior to the date of demand, provided, that if the Regulatory Change giving rise to such increased amounts is retroactive, then the 180-day period referred to above shall extend to include the period of retroactive effect. All such amounts shall be due and payable to such Funding Agent on behalf of such Owner or to such Funding Agent or the Administrative Agent for its own account, as the case may be, on the Payment Date following receipt by the Transferor of such certificate, if such certificate is received by the Transferor at least five (5) Business Days prior to the Determination Date related to such Payment Date and otherwise shall be due and payable on the following Payment Date.

(c) Each Owner and each Participant agrees that prior to the date on which the first interest or fee payment hereunder is due thereto, it will deliver to the Transferor, the Servicer, the applicable Funding Agent and the Administrative Agent (i) (x) if such Owner is not a “United States person” as defined in Section 7701(a)(30) of the Internal Revenue Code, two duly completed (in a manner reasonably satisfactory to the Transferor) copies of the U.S. Internal Revenue Service Form W-8ECI, Form W-8BEN, Form W-8BEN-E, Form W-8IMY or Form W-8EXP, or successor applicable forms required to evidence that the Owner is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes (or in the case of an assignee or Participant at a rate no greater than that applicable to the related Owner if such Owner is entitled to receive amounts pursuant to this Section 8.2), or (y) if such Owner is a “United States person,” a duly completed (in a manner reasonably satisfactory to the Transferor) U.S. Internal Revenue Service Form W-9 or successor applicable or required forms, and (ii) such other forms and information as may be required to confirm the availability of any applicable exemption from United States federal, state or local withholding and backup withholding taxes. Each Owner also agrees to deliver to the Transferor, the Servicer, the applicable Funding Agent and the Administrative Agent two further duly completed (in a manner reasonably satisfactory to the Transferor) copies of such U.S. Internal Revenue Service Form W-8ECI, Form W-8BEN, Form W-8BEN-E, Form W-8IMY or Form W-8EXP or Form

 

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W-9, as applicable, or such successor applicable forms or other manner of certification, as the case may be, on or before the date that any such form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by it hereunder, and such extensions or renewals thereof as may reasonably be requested by the Servicer, the Transferor, a Funding Agent or the Administrative Agent, unless in any such case, solely as a result of a change in treaty, law or regulation occurring prior to the date on which any such delivery would otherwise be required, the Owner is no longer eligible as a result of such change to deliver the then-applicable form set forth above and so advises the Servicer, the Transferor, the applicable Funding Agent and the Administrative Agent.

(d) Each Owner agrees that it shall use commercially reasonable efforts to reduce or eliminate any amount due under this Section 8.2, including but not limited to designating a different lending office if such designation will eliminate or reduce any amount due under this Section 8.2 and will not, in the reasonable opinion of such Owner, be unlawful or otherwise disadvantageous to such Owner or inconsistent with its policies or result in any unreimbursed cost or expense to such Owner or in an increase in the aggregate amount payable under Section 8.3 hereof.

(e) If any Owner requests compensation under this Section 8.2, the Transferor may, at its sole expense and effort, upon notice to such Owner, the related Funding Agent and the Administrative Agent, request that such Owner assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.2 of this Agreement), all its interests, rights (other than its existing rights to payments pursuant to this Section 8.2) and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Owner, if an Owner accepts such assignment), or if such Owner and its related Funding Agent do not consent to such assignment, the Transferor may terminate such Owner’s or the related Ownership Group’s interests, rights and obligations under this Agreement; provided that (i) with respect to any such assignment described above, the Transferor shall have received the prior written consent of the Funding Agent for the related Owner and the Administrative Agent, such consent not to be unreasonably withheld, conditioned or delayed, (ii) such assigning or terminated Owner shall have received payment of an amount equal to the Net Investment, accrued yield thereon, accrued fees and all other amounts payable to it hereunder or relating to this Agreement, and (iii) in the case of any such assignment resulting from a claim for compensation under this Section 8.2, such assignment will result in a reduction in such compensation or payments. The Transferor shall not request that any Owner make any such assignment and delegation if, prior thereto, as a result of a waiver by such Owner or otherwise, the circumstances entitling the Transferor to request such assignment and delegation cease to apply.

(f) If a payment made hereunder to any Indemnified Party would be subject to withholding tax imposed by FATCA if such Indemnified Party were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Indemnified Party (or the Funding Agent acting on its behalf) shall deliver to the Transferor, the Servicer and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by such persons such documentation prescribed by applicable law and such additional documentation reasonably requested by the Transferor or the Administrative Agent as may be necessary for such persons to comply with their obligations under FATCA and to determine that such Indemnified Party has complied with such Indemnified Party’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.

 

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(g) If any Conduit Purchaser is an Indemnified Party and such Indemnified Party enters into agreements for the acquisition of interests in receivables from Other Transferors, such Indemnified Party shall allocate ratably among the Transferor and such Other Transferors any amounts owing under this Section 8.2 which are attributable to the Transferor and to the Other Transferors, which amounts shall be paid by the Transferor (“Section 8.2 Costs”), provided further, that if such Section 8.2 Costs are attributable to the Transferor and not attributable to any Other Transferor, the Transferor shall be solely liable for such Section 8.2 Costs or if such Section 8.2 Costs are attributable to Other Transferors and not attributable to the Transferor, such Other Transferors shall be solely liable for such Section 8.2 Costs.

Section 8.3 Additional Costs. (a) The Transferor shall, subject to Section 9.11(b), pay to any Affected Party from time to time on demand of such Affected Party, such amounts as such Affected Party may reasonably determine to be necessary to compensate it for any increase in costs which any such party reasonably determines are attributable to its acquiring or committing to acquire the Transferred Assets or maintaining all or any portion of the Net Investment under this Agreement, or any reduction in any amount receivable by such Affected Party hereunder or under the relevant Conduit Support Document (such increases in costs, payments and reductions in amounts receivable being herein called “Additional Costs”) resulting from any Regulatory Change or from time to time complying with, or implementing, any Regulatory Change, which (i) changes the method or basis of taxation in the jurisdiction in which the party claiming Additional Costs is organized or in which the party claiming Additional Costs maintains its lending office for the transactions contemplated hereby of (A) any amounts payable to such Affected Party, under this Agreement or any relevant Conduit Support Document or (B) such amounts when considered together with any amounts to be paid by any Affected Party who is a Conduit Purchaser in respect of its Commercial Paper or (ii) imposes or modifies any reserve, special deposit, deposit insurance or assessment, capital or similar requirements relating to any extensions of credit or other assets of, or any deposits with or other liabilities of, any Conduit Purchaser, Committed Purchaser or Conduit Support Provider. Notwithstanding the foregoing, the Transferor shall not be required to make any payment under this Section 8.3 relating to (i) any amount included in the computation of LIBOR, or (ii) increased expenses incurred, amounts not received, or required payments made more than 60 days prior to the date of the certificate of notice of such Additional Costs delivered by the Affected Party to the Transferor. If at any time a demand for payment is to be made pursuant to this Section 8.3(a), the applicable Affected Party shall deliver to the Transferor a certificate in reasonable detail setting forth the amount to be paid to such Affected Party at such time.

(b) Determinations and allocations by the Affected Party for purposes of this Section 8.3 shall be conclusive in the absence of manifest error, provided that such determinations and allocations are made in good faith and on a reasonable basis, reasonable written evidence (including an explanation of the applicable Regulatory Change and a reasonably detailed computation of an accounting for any amounts demanded) of which shall be provided to the Transferor upon request.

 

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(c) Anything in this Section 8.3 to the contrary notwithstanding, if the Affected Party is a Conduit Purchaser and such Affected Party enters into agreements for the acquisition of interests in receivables from Other Transferors, such Affected Party shall allocate ratably among the Transferor and such Other Transferors the liability for any amounts under this Section 8.3 (“Section 8.3 Costs”) which are attributable to the Transferor and Other Transferors which amounts shall be paid by the Transferor or the Other Transferors; provided, that if such Section 8.3 Costs are attributable to the Transferor and not attributable to any Other Transferor, the Transferor shall be solely liable for such Section 8.3 Costs or if such Section 8.3 Costs are attributable to Other Transferors and not attributable to the Transferor, such Other Transferors shall be solely liable for such Section 8.3 Costs.

(d) Each Affected Party agrees to promptly notify the Transferor or the Servicer, as the case may be, if such Person receives notice of any potential tax assessment by any federal, state or local tax authority for which the Transferor or the Servicer as the case may be, may be liable pursuant to Section 8.2 or Section 8.3. Each Owner and each Funding Agent further agree that the Transferor and Finco shall bear no cost (including costs relating to penalties and interest) relating to the failure of such Person to file in a timely manner any tax returns required to be filed by such Person in accordance with applicable statutes and regulations.

(e) Anything in this Section 8.3 to the contrary notwithstanding, promptly following notice by any Affected Party to Finco stating that such Affected Party has incurred any Additional Cost that is a CRR Cost pursuant to the terms of Section 3.7(jj)(iv) by reason of Finco’s breach of its obligations under clause (i), (ii) or (iii) of Section 3.7(jj), and identifying the breached obligation and setting forth the amount of such CRR Cost together with a calculation thereof in reasonable detail, Finco shall pay to the Administrative Agent for the account of such Affected Party the amount of such CRR Cost.

Section 8.4 Other Costs and Expenses. The Transferor and Finco shall, subject to Section 9.11(b), pay on demand all costs and expenses in connection with the preparation, execution and delivery of this Agreement, each Related Document and the other documents to be delivered hereunder, including, without limitation, reasonable fees and out-of-pocket expenses of legal counsel for the Administrative Agent and the Funding Agents and with respect to advising any Funding Agent, the Administrative Agent or any Owner as to its rights and remedies under this Agreement and the other Related Documents, respectively, and all costs and expenses, if any, including reasonable counsel fees and expenses in connection with the enforcement of this Agreement and the other documents delivered hereunder. The Transferor shall pay on demand all costs and expenses in connection with the administration or amendment of this Agreement, the other Related Documents and the other documents to be delivered hereunder, including, without limitation, reasonable fees and out-of-pocket expenses of legal counsel for each Funding Agent, the Administrative Agent and any Owner with respect thereto. The Transferor and Finco shall reimburse each Conduit Purchaser for any amounts such Conduit Purchaser must pay to any other Owner pursuant to its Conduit Support Document on account of any tax described in Section 8.2 and applicable to such financial institution.

 

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ARTICLE IX.

MISCELLANEOUS

Section 9.1 Term of Agreement. This Agreement shall terminate following the Termination Date when the Aggregate Net Investment has been reduced to zero, all accrued Yield and Monthly Non-Use Fees have been paid in full and all other Aggregate Unpaids have been reduced to zero; provided, however, that the indemnification and payment provisions of Article VIII and the provisions of Sections 9.4, 9.5, 9.8, 9.9, 9.10, 9.11, 9.14 and this Section 9.1 shall be continuing and shall survive any termination of this Agreement, subject to applicable statutes of limitation; provided further, however, that any such indemnification or payment claim must be presented to the Transferor or Finco within sixty (60) days after the Affected Party receives notice or otherwise becomes aware of such claim.

Section 9.2 Waivers; Amendments. (a) Subject to Section 9.2(c), the Required Owners and the Administrative Agent may, in writing, from time to time, (x) enter into agreements with the Transferor, Finco and TMUS amending, modifying or supplementing this Agreement, and (y) in their sole discretion, grant waivers of the provisions of this Agreement or consents to a departure from the due performance of the obligations of the Transferor, Finco or TMUS under this Agreement; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by all of the Funding Agents:

(i) change or waive the definitions of “Advance Amount,” “Aggregate Advance Amount,” “Aggregate Net Investment,” “Amortization Date,” “Asset Base Deficiency,” “Change of Control,” “Commercial Paper Rate,” “Consolidated Equity Ratio,” “Consolidated Leverage Ratio,” “Default Ratio,” “Defaulted Receivable,” “Delinquency Ratio,” “Determination Date,” “Eligible Interest Rate Cap,” “Eligible Receivable,” “Excess Concentrations,” “Jump Termination Event,” “Nonconforming Jump Receivables,” “Servicer Default,” or any definition included in Annex A (or any components of, or definitions used in, such definitions) contained in this Agreement;

(ii) reduce the Principal Distribution Amount, Yield, Program Fee or Monthly Non-Use Fee that is payable on account of any Transferred Assets or delay any scheduled date for payment thereof;

(iii) reduce fees, deposits or other amounts payable by the Transferor, Finco, the Servicer or the Guarantor to the Funding Agents or the Owners or into the Collection Account, or delay the dates on which they are payable;

(iv) except as extended in accordance with the terms of this Agreement, extend the Scheduled Expiry Date;

(v) change or waive any of the provisions of Section 2.8(a), Section 2.8(d), Section 2.17, Section 2.18, Section 2.19, Section 3.6(n), Section 3.6(p), Section 3.7(n), Section 3.7(s), Section 3.7(t), Section 3.8(c), Section 3.8(i), Section 3.9(c), Section 3.9(j), Section 3.10, Section 4.2, Section 4.3, Section 6.7(f), Section 6.8, Section 8.1(a)(xviii), this Section 9.2, Section 9.9 or Section 9.11, the definition of “Required Owners”, or the automatic occurrence effect of any of the Amortization Events contemplated by Sections 7.3(a), 7.3(j), 7.3(q) or 7.3(r);

 

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(vi) modify in any respect the Termination Events, Amortization Events or Servicer Defaults or the provisions relating to the automatic occurrence of Termination Events or Amortization Events in Section 7.1, Section 7.2 or Section 7.3;

(vii) release or otherwise waive the Guarantor’s performance of its obligations pursuant to the Performance Guaranty; or

(viii) make any change that could reasonably be expected to impair the creation or perfection of the security interest in favor of the Administrative Agent for the benefit of the Owners.

and provided, further, that no amendment, waiver or consent shall increase the Ownership Group Purchase Limit of any Ownership Group unless such amendment, waiver or consent is in writing and signed by the Funding Agent for such Ownership Group and the related Conduit Purchaser and Committed Purchaser. Without limiting the generality of the foregoing, the parties hereto acknowledge and agree that certain amendments, waivers and consents with respect to this Agreement may require the consent of one or more Cap Counterparties, as and to the extent provided in the related Eligible Interest Rate Caps.

The Administrative Agent shall provide each Conduit Purchaser Rating Agency with notice of each amendment, waiver or consent with respect to this Agreement.

(b) Each Funding Agent shall provide a copy of any amendment, restatement, supplement or other modification of any Conduit Support Document relating to the Transferred Assets and its Ownership Group, which amendment, restatement, supplement or other modification of the related Conduit Support Document materially affects the legal structure of the related Conduit Purchaser as determined by the related Funding Agent in its sole discretion, to the Transferor and the Servicer promptly after the date thereof; provided, that the failure to provide any such copy shall not give rise to any claim, defense or other right other than the right to receive such copy and, provided, further, that no copy of any extension of any such Conduit Support Document need be provided to either such party.

(c) Notwithstanding anything in this Section 9.2 to the contrary, this Agreement may be amended by the Servicer and the Transferor, by a written instrument signed by each of them, without the consent of any of the Owners, the Funding Agents or the Administrative Agent, to (i) cure any ambiguity, (ii) correct or supplement any provision herein or in any amendment hereto that may be inconsistent with any other provision herein or in any amendment hereto, or (iii) add, modify or eliminate such provisions as may be necessary or advisable in order to enable the Transferor to avoid the imposition of state or local income or franchise taxes imposed on the Transferor’s property or its income; provided, however, that the Transferor delivers to the Administrative Agent and the Funding Agents an Officer’s Certificate to the effect that such amendment does not affect the rights, duties or obligations of the Administrative Agent, the Funding Agents or the Owners, and that such action will not have a Material Adverse Effect.

 

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Section 9.3 Notices. All communications and notices provided for hereunder shall be in writing (including telecopy or electronic transmission or similar writing) and shall be given to the other party or parties at its address, telecopy number or e-mail address (if an e-mail address is provided) set forth hereunder or on Schedule I hereto or at such other address, telecopy number or e-mail address as such party may hereafter specify for the purposes of notice to such party. Each such properly given notice or other communication shall be effective when received.

If to the Transferor:

T-Mobile Handset Funding LLC

12920 S.E. 38th Street

Bellevue, WA 98006

Attention: Dirk Wehrse

Facsimile No.:(425) 383-4840

With a copy to:

T-Mobile Financial LLC

12920 SE 38th Street

Bellevue, WA 98006

Attention: General Counsel

Facsimile No.:(425) 383-4840

With a copy to:

Mayer Brown LLP

1221 Avenue of the Americas

New York, NY 10020-1001

Attention: Sagi Tamir

Facsimile No.: (212) 849-5608

If to Finco:

T-Mobile Financial LLC

12920 SE 38th Street

Bellevue, WA 98006

Attention: Dirk Wehrse

Facsimile No.:(425) 383-4840

 

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With a copy to:

T-Mobile Financial LLC

12920 SE 38th Street

Bellevue, WA 98006

Attention: General Counsel

Facsimile No.:(425) 383-4840

With a copy to:

 

Mayer Brown LLP

1221 Avenue of the Americas

New York, NY 10020-1001

Attention: Sagi Tamir

Facsimile No.: (212) 849-5608

If to the Administrative Agent:

Royal Bank of Canada

200 Vesey Street, 12th Floor

New York, NY 10281

Attention: Securitization Finance

Facsimile No.: (212) 428-2304

With a copy to:

RBC Capital Markets

Two Little Falls Center

2751 Centerville Road, Suite 212

Wilmington, DE 19808

Attention: Securitization Finance

Tel. No.: (302) 892-5903

Facsimile No.: (302) 892-5900

With a copy to:

Morgan, Lewis & Bockius LLP

1111 Pennsylvania Avenue, NW

Washington, DC 20004

Attention: Cory E. Barry

Facsimile No.: (202) 739-3001

Section 9.4 Governing Law; Submission to Jurisdiction. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED THEREIN, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK

 

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GENERAL OBLIGATIONS LAW, AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF THE PARTIES HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS.

Section 9.5 WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE RELATED DOCUMENTS AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY.

Section 9.6 Severability; Counterparts, Waiver of Setoff. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement. Any provisions of this Agreement which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The Transferor and Finco hereby agree to waive any right of setoff which it may have or to which it may be entitled against any Owner, any Funding Agent or the Administrative Agent and their respective assets. Each Owner, each Funding Agent and the Administrative Agent hereby agree to waive any right of setoff which they may have or to which they may be entitled against the Transferor or Finco and their respective assets.

Section 9.7 Assignments and Participations. (a) Each Funding Agent, each of the Conduit Purchasers and the Committed Purchasers and their respective assignees may assign without any prior written consent, in whole or in part, its interest in the Transferred Assets and rights and obligations hereunder to any Permitted Transferee. To effectuate an assignment hereunder, both the assignee and the assignor (including, as appropriate, the Conduit Purchaser, its Committed Purchaser(s) and its Funding Agent) will be required to execute and deliver to the Transferor, the Servicer and the Administrative Agent an Assignment and Assumption Agreement. Following any assignment in accordance with the foregoing criteria, the Ownership Group Percentage and Ownership Group Purchase Limit of each Ownership Group hereunder (after giving effect to the assignment) will be adjusted to such extent as may be necessary to reflect such assignment (and Schedule I hereto shall be deemed to be amended accordingly). Notwithstanding the foregoing, the applicable Conduit Support Documents shall govern the ability of (i) a Conduit Purchaser to assign, participate, or otherwise transfer any portion of the

 

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Transferred Assets (and the rights and obligations hereunder owned by it) to its Conduit Support Providers and (ii) a Conduit Support Provider to assign, participate, or otherwise transfer any portion of the Transferred Assets (and the rights and obligations hereunder) owned by such Conduit Support Provider. The Transferor and the Servicer hereby agree and consent to the complete assignment by the applicable Owners of all of, or the grant of a security interest in (or pledge of) all or any portion of, their respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement.

(b) None of the Transferor, Finco or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of all Funding Agents.

(c) Any Owner may, in the ordinary course of its business and in accordance with applicable law, at any time sell to one or more Persons who is a Permitted Transferee (each, a “Participant”) participating interests in all or a portion of its rights and obligations hereunder. Notwithstanding any such sale by an Owner of participating interests to a Participant, (i) such Owner’s rights and obligations under this Agreement shall remain unchanged, (ii) such Owner shall remain solely responsible for the performance hereof and thereof, and (iii) the Transferor, the Servicer, the Administrative Agent, each other Owner and the Funding Agents shall continue to deal solely and directly with such Owner in connection with such Owner’s rights and obligations under this Agreement. Each Owner agrees that any agreement between such Owner and any such Participant in respect of such participating interest shall not restrict or condition such Owner’s right to agree to any amendment, supplement, waiver or modification of this Agreement. The Transferor and the Servicer agree that each Participant shall be entitled to the benefits of Article VIII as though they were Owners; provided, that all such amounts payable by the Transferor or the Servicer to any such Participant shall be limited to the amounts which would have been payable to the Owner selling such participating interest had such interest not been sold.

(d) Any Owner may at any time pledge or grant a security interest in all or any portion of its rights (including, without limitation, rights to payment of principal and interest on its Net Investment) under this Agreement and the Related Documents to secure obligations of such Owner to a Federal Reserve Bank, the U.S. Treasury, the Federal Deposit Insurance Corporation or the central bank of any nation or other political body in which it is domiciled or located, and any Conduit Purchaser may assign all of, or the grant of a security interest in (or pledge of) all or any portion of, such Conduit Purchaser’s respective rights under, interest in, title to and obligations under this Agreement and the Related Documents to the respective collateral agent or trustee under the applicable Conduit Purchaser’s Commercial Paper program, in each case without the execution and delivery of an Assignment and Assumption Agreement, and Sections 9.7(a) and 9.7(c) shall not apply to any such pledge or grant of a security interest described in this clause (e); provided that no such pledge or grant of a security interest shall release any Owner from any of its obligations hereunder or substitute any such pledgee or grantee for such Owner as a party hereto.

 

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Section 9.8 Confidentiality. (a) The parties shall treat as confidential this Agreement, the transactions contemplated hereunder and any and all business and trade secrets and other information received in connection with this Agreement or the performance thereof and information about a party’s business or financial matters, technical information or any other proprietary information relating to a party or its Affiliates and their respective operations, businesses, technical know-how and financial affairs, that is obtained by the other party as a result of the working relationship between the parties, whether obtained prior to or after the date hereof (the “Confidential Information”) during the term of this Agreement and a further period of two (2) years following its termination or expiration. Confidential Information shall include, without limitation, trade secrets, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, maps, blueprints, diagrams, flow charts and any other technical, financial, business or proprietary information of any kind or nature whatsoever. The parties shall not disclose any Confidential Information to anyone, except (a) any assignees, potential assignees, the Administrative Agent, potential Participants, including without limitation any successor Owner, Conduit Purchasers or any provider of liquidity, credit or equity support facilities or any financial advisor to, or for the account of, a Conduit Purchaser (including, if applicable, the respective collateral agent or conduit trustee for its commercial paper program), (b) any “nationally recognized statistical rating organization” (as defined in, or by reference to, Rule 17g-5 under the Exchange Act (“Rule 17g-5”)) (each an “NRSRO”) by posting such confidential information to a password-protected internet website accessible to each NRSRO in connection with, and subject to the terms of, Rule 17g-5 and, without limiting the generality of the foregoing, to each Conduit Purchaser Rating Agency, (c) the placement agents for any Conduit Purchaser’s Commercial Paper, subject to the confidentiality agreements entered into between such Conduit Purchaser and such placement agents, (d) in the case of the parties hereto or the persons referred to in clauses (a) through (c) above, any of their respective directors, managers, executives, employees, affiliates, auditors, lawyers, advisors, authorized agents and/or duly appointed representatives who have a specific and reasonable interest in knowing, viewing and using such Confidential Information and agree to be bound by the confidentiality provisions of this Section 9.8, (e) as required by applicable law, rule, regulation or official direction, (f) as required or requested by a regulatory authority with jurisdiction over such party, or (g) to the extent such Confidential Information (x) becomes publicly available other than as a result of a breach of this Section 9.8, or (y) becomes available to the Administrative Agent or any Owner or any of their respective Affiliates on a nonconfidential basis from a source other than the Transferor, the Servicer, or the Guarantor.

(b) Notwithstanding anything to the contrary stated herein, the parties hereto agree that they will be bound by the additional confidentiality provisions contained in Annex C hereto.

Section 9.9 No Bankruptcy Petition Against the Conduit Purchasers. Each of the parties hereto hereby covenants and agrees, for the benefit of the holders of the privately or publicly placed indebtedness for borrowed money of any Conduit Purchaser, and any Committed Purchaser that is also a Conduit Purchaser, prior to the date which is two years and one day after the payment in full of all privately or publicly placed indebtedness for borrowed money of such Conduit Purchaser or Committed Purchaser, not to acquiesce, petition or otherwise, directly or indirectly, invoke, or cause to invoke, the process of any court or any other governmental authority for the purpose of (i) commencing, or sustaining, a case against such Conduit Purchaser

 

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or Committed Purchaser under any federal or state bankruptcy, insolvency or similar law (including the Federal Bankruptcy Code), (ii) appointing a receiver, examiner, liquidator, assignee, trustee, custodian, sequestrator or other similar official of such Conduit Purchaser, or any substantial part of its property or (iii) ordering the winding up, examinership or liquidation of the affairs of such Conduit Purchaser.

Section 9.10 Limited Recourse. Notwithstanding anything to the contrary contained herein, the obligations of any Conduit Purchaser under this Agreement are solely the corporate obligations of such Conduit Purchaser and shall be payable only to the extent set forth in Section 9.11. No recourse shall be had for the payment of any amount owing in respect of any obligation of, or claim against, any Conduit Purchaser arising out of or based upon this Agreement against any stockholder, employee, officer, director, member, manager or incorporator of such Conduit Purchaser or any Affiliate thereof, against any dealer or placement agent for any Commercial Paper, against any Funding Agent, the Administrative Agent or any Conduit Support Provider or any stockholder, employee, officer, director, member, manager, incorporator or Affiliate of any Funding Agent, the Administrative Agent or any Conduit Support Provider; provided, however, that the foregoing shall not relieve any such Person or entity from any liability they might otherwise have as a result of fraudulent actions or fraudulent omissions taken by them.

Section 9.11 Excess Funds. (a) No Conduit Purchaser shall be required to make payment of the amounts required to be paid pursuant to this Agreement unless such Conduit Purchaser has Excess Funds (as defined below). In the event that any Conduit Purchaser does not have Excess Funds, the excess of the amount due under this Agreement (and subject to this Section 9.11) over the amount paid shall not constitute a “claim” against the Conduit Purchaser as defined in Section 101(5) of the Federal Bankruptcy Code until such time, if any, as the Conduit Purchaser shall have Excess Funds. If at any time any Conduit Purchaser does not have sufficient funds to make any payment due under this Agreement, then such Conduit Purchaser may pay a lesser amount and make additional payments which in the aggregate equal the amount of such deficiency as soon as possible thereafter. The term “Excess Funds” of any Conduit Purchaser shall mean the excess (redetermined daily based on the current available information) of (a) the aggregate projected value of such Conduit Purchaser’s assets and other property (including cash and cash equivalents), minus (b) the sum of (i) the sum of all scheduled payments of principal, interest and any other scheduled amounts payable on publicly or privately placed indebtedness of such Conduit Purchaser for borrowed money, plus (ii) the sum of all other liabilities, indebtedness and other obligations of such Conduit Purchaser for borrowed money or owed to any credit or liquidity provider, together with all unpaid interest then accrued thereon, plus (iii) all taxes payable by such Conduit Purchaser to the Internal Revenue Service, plus (iv) all other indebtedness, liabilities and obligations of such Conduit Purchaser then due and payable; provided, however, that the amount of any liability, indebtedness or obligation of such Conduit Purchaser shall not exceed the projected value of the assets to which recourse for such liability, indebtedness or obligation is limited; provided further, however, in determining Excess Funds, a determination will be made by the related Funding Agent once each Business Day; provided further, however, that so long as there are any Excess Funds, then all amounts reflected in such calculation may be paid on such Business Day if then due and payable; provided further, however, that if there are no Excess Funds, then the payment of any amount which may be paid only if there are Excess Funds shall not be paid until there are Excess Funds. Nothing in this Section 9.11 shall restrict or limit the right of the Transferor to receive or make claim for payments of Deferred Purchase Price to the extent funds are available to pay Deferred Purchase Price pursuant to Section 2.8(d)(i)(I).

 

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(b) The Transferor shall not be required to make payment of the amounts required to be paid pursuant to this Agreement unless the Transferor has funds available to make such payment. In the event that the Transferor does not have funds available to make any such payment, the excess of the amount due under this Agreement (and subject to this Section 9.11) over the amount paid shall not constitute a “claim” against the Transferor as defined in Section 101(5) of the Federal Bankruptcy Code until such time, if any, as the Transferor shall have funds available to make such payment. If at any time the Transferor does not have sufficient funds to make any payment due under this Agreement, then the Transferor may pay a lesser amount and make additional payments which in the aggregate equal the amount of such deficiency as soon as possible thereafter. In determining whether the Transferor has funds available to make payment of the amounts required to be paid pursuant to this Agreement, a determination will be made by the Transferor once each Business Day; provided, that so long as there are any funds available, then all amounts reflected in such calculation may be paid on such Business Day if then due and payable; provided further, however, that if there are no funds available, then the payment of any amount which may be paid only if there are funds available shall not be paid until there are funds available. For the avoidance of doubt, this Section 9.11(b) shall not prevent the occurrence of any Amortization Event or Termination Event which would otherwise occur in the absence of this Section 9.11(b).

Section 9.12 Conflict Waiver. Royal Bank of Canada, each Funding Agent, each Owner and their respective Affiliates may generally engage in any kind of business with the Transferor or Finco or any Obligor, any of their respective Affiliates and any Person who may do business with or own securities of the Transferor, Finco or any Obligor or any of their respective Affiliates, all as if such parties did not have the agency agreements contemplated by this Agreement and without any duty to account therefor hereunder or in connection herewith.

Section 9.13 Funding Notices and Receivables Schedule. Any references to this Agreement herein shall, wherever applicable, be read to include each Funding Notice and Receivables Schedule, as updated from time to time.

Section 9.14 Recourse Limited to Transferred Receivables; Subordination. (a) The obligations of the Transferor under this Agreement are obligations solely of the Transferor and shall not constitute a claim against the Transferor to the extent that the Transferor does not have funds sufficient to make payment of such obligations. The Administrative Agent, each Funding Agent, each Owner and each other Affected Party acknowledge and agree that they have no interest in any assets of the Transferor other than the Transferred Assets, the Related Rights and other property conveyed to them pursuant to Section 2.1. In furtherance of and not in derogation of the foregoing, to the extent the Transferor enters into other securitization transactions, the Administrative Agent, each Funding Agent, each Owner and each other Affected Party acknowledge and agree that they shall have no right, title or interest in or to Other Assets. To the extent that, notwithstanding the agreements and provisions contained in the preceding sentences

 

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of this subsection, the Administrative Agent, any Funding Agent, any Owner or any other Affected Party either (i) asserts an interest or claim to, or benefit from, Other Assets, or (ii) is deemed to have any such interest, claim to, or benefit in or from Other Assets, whether by operation of law, legal process, pursuant to applicable provisions of insolvency laws or otherwise (including by virtue of Section 1111(b) of the Federal Bankruptcy Code or any successor provision having similar effect under the Federal Bankruptcy Code), then the Administrative Agent, each Funding Agent, each Owner and each other Affected Party further acknowledge and agree that any such interest, claim or benefit in or from Other Assets is and shall be expressly subordinated to the indefeasible payment in full of all obligations and liabilities of the Transferor which, under the terms of the relevant documents relating to the securitization of such Other Assets, are entitled to be paid from, entitled to the benefits of, or otherwise secured by such Other Assets (whether or

not any such entitlement or security interest is legally perfected or otherwise entitled to a priority of distribution or application under applicable law, including insolvency laws, and whether asserted against the Transferor), including the payment of post-petition interest on such other obligations and liabilities. This subordination agreement shall be deemed a subordination agreement within the meaning of Section 510(a) of the Federal Bankruptcy Code. The Administrative Agent, each Funding Agent, each Owner and each other Affected Party further acknowledges and agrees that no adequate remedy at law exists for a breach of this Section 9.14 and the terms of this Section 9.14 may be enforced by an action for specific performance.

(b) The provisions of this Section 9.14 shall be for the third party benefit of those entitled to rely thereon and shall survive the termination of this Agreement.

(c) The Transferor covenants and agrees that if it enters into securitization transactions with respect to Other Assets, it shall cause the appropriate documentation with respect thereto to include provisions substantially similar to those contained in this Section 9.14 pursuant to which the Person(s) to which Other Assets are conveyed disclaims (and subordinates) any interest it may have in the assets of the Transferor other than the specific Other Assets related to such securitization.

Section 9.15 Integration. This Agreement and the other Related Documents contain the final and complete integration of all prior expressions by the parties hereto with respect to the subject matter hereof and shall constitute the entire understanding among the parties hereto with respect to the subject matter hereof superseding all prior oral or written understandings.

Section 9.16 Tax Characterization. Each party to this Agreement (a) acknowledges and agrees that it is the intent of the parties to this Agreement that, for U.S. federal income tax purposes and for state and local income tax and transactional tax purposes, the interest in the Transferred Assets will be treated as evidence of indebtedness secured by the Transferred Receivables and Related Rights, (b) agrees, except as otherwise required by applicable law, to so treat the Transferred Assets as indebtedness for U.S. federal income tax purposes and for state and local income tax and transactional tax purposes and (c) agrees that the provisions of this Agreement and all Related Documents shall be construed to further these intentions of the parties as it relates to these tax characterizations.

 

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Section 9.17 Right of First Refusal. Subject to the terms and restrictions set forth herein, except following any Insolvency Event of the Transferor, Finco or the Guarantor, the parties hereto hereby agree and acknowledge that to the extent the Administrative Agent (for the benefit of the Owners) has the ability to sell, transfer or assign all or part of the Transferred Receivables, the Administrative Agent (for the benefit of the Owners) shall offer the Transferor a right of first refusal to purchase such Transferred Receivables in cash at a purchase price equal to or greater than the price at which the Administrative Agent could sell such Transferred Receivables to another Person pursuant to a bona fide offer, but not less than the fair market value of such Transferred Receivables; provided, that the Transferor shall be deemed to have rejected such right of first refusal if the Transferor does not notify the Administrative Agent in writing of its acceptance within two (2) Business Days of notification by the Administrative Agent and promptly arrange for payment therefor.

Section 9.18 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in this Agreement, any other Related Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under this Agreement or any Related Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and

(b) the effects of any Bail-In Action on any such liability, including, if applicable:

(i) a reduction in full or in part or cancellation of any such liability;

(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Related Document; or

(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.

Section 9.19 No Novation. Each of the parties hereto agrees that is their intention that nothing in this Agreement shall be construed to extinguish, release or discharge or constitute, create or effect a novation of (a) any of the prior obligations of the parties hereto or any other party, or (b) any security interest or lien granted to the Administrative Agent.

 

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ARTICLE X.

THE ADMINISTRATIVE AGENT AND THE FUNDING AGENTS

Section 10.1 Authorization and Action. (a) Each Funding Agent and each Owner hereby appoints Royal Bank of Canada, as Administrative Agent hereunder and authorizes the Administrative Agent to take such actions as agent on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto. When requested to do so by any Funding Agent or Funding Agents and/or any Owner or Owners (as the context herein requires or allows), the Administrative Agent shall take such action or refrain from taking such action as such Person or Persons, as the case may be, shall direct under or in connection with or on any matter relating to the Transferor, the Servicer or Finco, this Agreement and all Related Documents. In the event of a conflict between a determination or calculation made by the Administrative Agent and a determination or calculation made by the Owners or the Funding Agents, the determination or calculation of the Owners or the Funding Agents, as the case may be, shall control absent manifest error.

(b) Each Owner hereby accepts the appointment of the related Funding Agent specified on Schedule I hereto as its Funding Agent hereunder, and authorizes such Funding Agent to take such action on its behalf under the provisions of this Agreement and to exercise such powers and perform such duties as are expressly delegated to such Funding Agent by the terms of this Agreement, if any, together with such other powers as are reasonably incidental thereto.

(c) Except for actions which the Administrative Agent or any Funding Agent is expressly required to take pursuant to this Agreement or any Conduit Support Document, neither the Administrative Agent nor any Funding Agent shall be required to take any action which exposes the Administrative Agent or such Funding Agent to personal liability or which is contrary to applicable law unless the Administrative Agent or such Funding Agent shall receive further assurances to its satisfaction from the Owners of the indemnification obligations under Section 10.6 against any and all liability and expense which may be incurred in taking or continuing to take such action. The Administrative Agent agrees to give to each Funding Agent and each Owner prompt notice of each notice and determination given to it by the Transferor, the Servicer or Finco, pursuant to the terms of this Agreement. Each Funding Agent agrees to give the Administrative Agent and such Funding Agent’s respective Conduit Purchasers, Committed Purchasers and Conduit Support Providers prompt notice of each notice and determination given to it by the Transferor, Finco, the Servicer or the Administrative Agent, pursuant to the terms of this Agreement. Notwithstanding the foregoing, neither the Administrative Agent nor any Funding Agent shall be deemed to have knowledge or notice of the occurrence of any Servicer Default, Potential Servicer Default, Amortization Event, Potential Amortization Event, Termination Event or Potential Termination Event unless the Administrative Agent or such Funding Agent has received written notice from an Owner, any other Funding Agent, the Transferor, the Servicer or Finco referring to this Agreement, describing such Servicer Default, Potential Servicer Default, Amortization Event, Potential Amortization Event, Termination Event or Potential Termination Event and stating that such notice is a “notice of a Servicer Default,” “notice of Potential Servicer Default,” “notice of Amortization Event,” “notice of Potential Amortization Event,” “notice of Termination Event,” or “Notice of Potential Termination Event” as the case may be. Subject to Section 10.7, the appointment and authority of the Administrative Agent hereunder shall terminate at the later to occur of (i) the payment to (A) each Owner and each Funding Agent of all amounts owing to such Owner and Funding Agent hereunder and (B) the Administrative Agent of all amounts due hereunder and (ii) the termination of this Agreement.

 

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Section 10.2 UCC Filings. The Owners, the Funding Agents, the Transferor and Finco expressly recognize and agree that the Administrative Agent may be listed as the assignee or secured party of record on, and the Owners and the Funding Agents expressly authorize the Administrative Agent to execute and file on their behalf as their agent, the various UCC filings required to be made hereunder and under this Agreement and the Related Documents in order to perfect and protect the Administrative Agent’s security interest (for the benefit of the Owners) in the Transferred Assets, that such listing and/or execution shall be for administrative convenience only in creating a record or nominee holder to take certain actions hereunder on behalf of the Administrative Agent, the Owners and the Funding Agents and that such listing and/or execution will not affect in any way the status of the Administrative Agent, the Owners and the Funding Agents as the beneficial holders of the security interest in the Transferred Assets. In addition, such listing, execution or filing shall impose no duties on the Administrative Agent other than those expressly and specifically undertaken in accordance with this Article X.

Section 10.3 Administrative Agent’s and Funding Agents’ Reliance, Etc. (a) Neither the Administrative Agent, nor any Funding Agent nor any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted to be taken by it or them as Administrative Agent or Funding Agent under or in connection with this Agreement (including, without limitation, the Administrative Agent’s servicing, administering or collecting Transferred Receivables as Servicer pursuant to Article VI), except for its or their own gross negligence or willful misconduct. Without limiting the foregoing, the Administrative Agent and each Funding Agent: (i) may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts; (ii) makes no warranty or representation to any Owner and shall not be responsible to any Owner for any statements, warranties or representations made by the Transferor or Finco in connection with this Agreement or any Related Document; (iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any of the terms, covenants or conditions of this Agreement or any Related Document on the part of the Transferor or Finco or to inspect the property (including the books and records) of the Transferor or Finco; (iv) shall have no responsibility to any Owner for the due execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any Related Document or any other instrument or document furnished pursuant hereto or thereto; and (v) shall incur no liability under or in respect of this Agreement or any Related Document by acting upon any notice (including notice by telephone), consent, certificate or other instrument or writing (which may be by telex or electronic means) believed by it in good faith to be genuine and signed or sent by the proper party or parties.

(b) Each Funding Agent shall determine with the related Owners in its Ownership Group the manner in which each such Owner shall request or direct such Funding Agent to take action, or refrain from taking action, under this Agreement and the Related Documents on behalf of such Owner. Such Funding Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with such determination, and such request and any action taken or failure to act pursuant thereto shall be binding upon such Funding Agent’s related Owners.

 

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(c) Unless otherwise advised in writing by a Funding Agent or by any Owner on whose behalf such Funding Agent is purportedly acting, each party to this Agreement may assume that (i) such Funding Agent is acting for the benefit of the Conduit Purchaser, the Committed Purchaser and/or the Conduit Support Provider(s) in its related Ownership Group, as well as for the benefit of each assignee or transferee of any of them and (ii) such action taken by such Funding Agent has been duly authorized and approved by all necessary action on the part of the Owners on whose behalf it is purportedly acting. The Owners in each Ownership Group shall have the right to designate a new Funding Agent (which may be itself) to act on their behalf and on behalf of their respective assignees and transferees for purposes of this Agreement by giving to the Administrative Agent and the Transferor written notice thereof signed by such Owner(s) and the newly designated Funding Agent; provided, however, if such new Funding Agent is not an Affiliate of a Funding Agent that is party hereto, any such designation of a new Funding Agent shall require the consent of the Transferor, which consent shall not be unreasonably withheld or delayed. Such notice shall be effective when receipt thereof is acknowledged by the Administrative Agent, which acknowledgement the Administrative Agent shall not unreasonably delay giving, and thereafter the party named as such therein shall be the Funding Agent for such Ownership Group under this Agreement. Each Funding Agent and its related Owner shall agree among themselves as to the circumstances and procedures for removal and resignation of such Funding Agent.

Section 10.4 Non-Reliance on the Administrative Agent and the Funding Agents. Without limiting the generality of any other provision of this Agreement:

(a) Each of the Owners and the Funding Agents expressly acknowledges that neither the Administrative Agent nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrative Agent hereinafter taken, including any review of the affairs of the Transferor or Finco, shall be deemed to constitute any representation or warranty by the Administrative Agent to any such Person. Each of the Owners and the Funding Agents represents to the Administrative Agent that it has, independently and without reliance upon the Administrative Agent or any other Owner or Funding Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Transferor and Finco and made its own decision to enter into this Agreement. Each of the Owners and the Funding Agents also represents that it will, independently and without reliance upon the Administrative Agent or any other Owner or Funding Agent, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Related Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Transferor and Finco. Except for notices, reports and other documents expressly required to be furnished to the Funding Agents and the Owners by the Administrative Agent hereunder, the Administrative Agent shall not have any duty or responsibility to provide any Owner or any Funding Agent with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of the Transferor or Finco which may come into the possession of the Administrative Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.

 

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(b) Each of the Conduit Support Providers shall be deemed to acknowledge that neither its Funding Agent (or any other Funding Agent) nor any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by its Funding Agent (or any other Funding Agent) hereinafter taken, including any review of the affairs of the Transferor or Finco shall be deemed to constitute any representation or warranty by any Funding Agent to any such Person. Each of the Conduit Support Providers represents to the Funding Agents that it has, independently and without reliance upon its Funding Agent or any other Conduit Support Providers or Funding Agents and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, operations, property, financial and other condition and creditworthiness of the Transferor and Finco and made its own decision to enter into the Conduit Support Document relating to this Agreement. Each of the Conduit Support Providers also represents that it will, independently and without reliance upon its Funding Agent or any other Conduit Support Providers or Funding Agents, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement, the related Conduit Support Document and the Related Documents, and to make such investigation as it deems necessary to inform itself as to the business, operations, property, financial and other condition and creditworthiness of the Transferor and Finco. Except for notices, reports and other documents expressly required to be furnished to any Conduit Support Providers by its Funding Agent hereunder, no Funding Agent shall have any duty or responsibility to provide any Conduit Support Providers with any credit or other information concerning the business, operations, property, condition (financial or otherwise), prospects or creditworthiness of the Transferor or Finco which may come into the possession of such Funding Agent or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.

Section 10.5 Administrative Agent, Funding Agents and Affiliates. Any Funding Agent may act as a Committed Purchaser, the Administrative Agent, a Funding Agent and a Conduit Support Provider for its related Conduit Purchaser, and the issuing and paying agent for its related Conduit Purchaser’s Commercial Paper and may provide other services or facilities from time to time. Without limiting the generality of Section 9.12, each of the parties hereto hereby acknowledges and consents to any and all such roles of any Funding Agent, waives any objections it may have to any actual or potential conflicts of interest caused by such Funding Agent’s acting as or maintaining any of such roles, and agrees that in connection with any such role, such Funding Agent may take, or refrain from taking, any action which it in its discretion deems appropriate.

Section 10.6 Indemnification. Each Owner (proportionately in accordance with its Owner’s Percentage and the relevant Ownership Group Percentage) other than any Conduit Purchaser, severally agrees to indemnify the Administrative Agent (to the extent not indemnified by the Transferor or Finco), from and against any and all liabilities, obligations, losses, damages,

 

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penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Administrative Agent in any way relating to or arising out of this Agreement, the Sale Agreement or any other Related Document or any action taken or omitted to be taken by the Administrative Agent as the case may be, under this Agreement, the Sale Agreement or any other Related Document; provided, that (i) an Owner shall not be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting or arising from the gross negligence or willful misconduct of the Administrative Agent, and (ii) an Owner shall not be liable for any amount in respect of any compromise or settlement of any of the foregoing unless such compromise or settlement is approved by such Owner or, if appropriate, its related Funding Agent. Without limitation of the generality of the foregoing, each Owner (proportionately in accordance with its Owner’s Percentage and the relevant Ownership Group Percentage), other than any Conduit Purchaser, agrees to reimburse the Administrative Agent (to the extent not reimbursed by the Transferor or Finco), promptly upon demand, for any reasonable out-of-pocket expenses (including reasonable counsel fees) incurred by the Administrative Agent in connection with the administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, the Sale Agreement or any other Related Document; provided, that an Owner shall not be responsible for the costs and expenses of the Administrative Agent in defending itself against any claim alleging the gross negligence or willful misconduct of the Administrative Agent to the extent such gross negligence or willful misconduct is determined by a court of competent jurisdiction in a final and non-appealable decision.

Section 10.7 Successor Administrative Agent. (a) The Administrative Agent may resign at any time by giving at least ninety (90) days’ written notice thereof to the Funding Agents, the Transferor and Finco. Upon any such resignation, the Required Owners shall have the right to appoint a successor Administrative Agent approved by the Transferor (which approval will not be unreasonably withheld or delayed). If no successor Administrative Agent shall have been so appointed by the Required Owners (and approved by the Transferor) and shall have accepted such appointment within ninety (90) days after the retiring Administrative Agent’s giving of notice of resignation, then the retiring Administrative Agent may, on behalf of the Owners and the Funding Agents, appoint a successor Administrative Agent which, if such successor Administrative Agent is not an Affiliate of any of the Funding Agents, is approved by the Transferor (which approval will not be unreasonably withheld or delayed), and which successor Administrative Agent shall be (x) either (i) a commercial bank having a combined capital and surplus of at least $250,000,000, (ii) an Affiliate of such a bank, or (iii) an Affiliate of Royal Bank of Canada, and (y) experienced in the types of transactions contemplated by this Agreement.

(b) The Owners, acting unanimously through their respective Funding Agents (excluding the Administrative Agent and the related Funding Agent and Owner), may replace the Administrative Agent by giving written notice to the Administrative Agent. Any such replacement Administrative Agent shall be appointed and subject to the prior written approval of all Owners (excluding the Administrative Agent and the related Funding Agent and Owner), which approval shall not be unreasonably withheld or delayed. The replacement Administrative Agent shall notify the Transferor and the Servicer of such replacement.

 

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(c) The Transferor may replace the Administrative Agent by giving written notice to the Administrative Agent, the Funding Agents and Finco at least one hundred twenty (120) days prior to the then current Scheduled Expiry Date. Any such replacement Administrative Agent shall be subject to the prior written approval of the Required Owners, which approval shall not be unreasonably withheld or delayed. If the Required Owners have not approved a replacement Administrative Agent on or before the then current Scheduled Expiry Date, the Administrative Agent shall continue to serve in such capacity until it resigns in accordance with Section 10.7(a) or is replaced in accordance with this Section 10.7(c).

(d) Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or replaced Administrative Agent, and the retiring or replaced Administrative Agent shall be discharged from its duties and obligations under this Agreement. After any retiring or replaced Administrative Agent’s resignation or replacement hereunder as Administrative Agent, the provisions of this Article X shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.

Section 10.8 Helaba Funding Agent’s Undertakings Related To German VAT. Neither the Helaba Funding Agent nor any of its Affiliates shall exercise any option (if any) available under German law to have value added tax apply with respect to any supply, for German value added tax purposes, rendered in connection with the sale of the Receivables contemplated by the Related Documents, unless the recipient of such Taxes suffers no disadvantage. In addition to the foregoing, the Transferor, the Servicer and the Guarantor believe that the servicing obligations of the Servicer in connection with this Agreement rendered to a Committed Purchaser located in

Germany are subject to German value added tax and that such value added tax should be fully recoverable as input value added tax by such Committed Purchaser.

[Signature pages follow]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Third Amended and Restated Receivables Purchase and Administration Agreement to be executed and delivered by their duly authorized officers as of the date hereof.

 

T-MOBILE HANDSET FUNDING LLC,
as Transferor
By:   /s/ Dirk Wehrse
  Name:   Dirk Wehrse
  Title:   Senior Vice President, Treasury & Treasurer
T-MOBILE FINANCIAL LLC, in its individual capacity and as Servicer
By:   /s/ Dirk Wehrse
  Name:   Dirk Wehrse
  Title:   Assistant Treasurer
T-MOBILE US, INC., in its individual capacity with respect to Section 2.15(b) and as Guarantor
By:   /s/ Dirk Wehrse
  Name:   Dirk Wehrse
  Title:   Senior Vice President, Treasury & Treasurer
T-MOBILE USA, INC., in its individual capacity with respect to Section 2.15(b) and as Guarantor
By:   /s/ Dirk Wehrse
  Name:   Dirk Wehrse
  Title:   Senior Vice President, Treasury & Treasurer

 

[Signature Page to Third A&R Receivables Purchase and Administration Agreement]


ROYAL BANK OF CANADA,
as Administrative Agent
By:   /s/ Thomas C. Dean
  Name: Thomas C. Dean
  Title:   Authorized Signatory
OLD LINE FUNDING, LLC,
as a Conduit Purchaser
By:   Royal Bank of Canada, as Attorney-in-Fact
By:   /s/ Thomas C. Dean
  Name: Thomas C. Dean
  Title:   Authorized Signatory
ROYAL BANK OF CANADA, as a Committed Purchaser
By:   /s/ Thomas C. Dean
  Name: Thomas C. Dean
  Title:   Authorized Signatory
By:   /s/ Lisa Wang
  Name: Lisa Wang
  Title:   Authorized Signatory
ROYAL BANK OF CANADA, as a Funding Agent
By:   /s/ Thomas C. Dean
  Name: Thomas C. Dean
  Title:   Authorized Signatory

 

[Signature Page to Third A&R Receivables Purchase and Administration Agreement]


LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE,
as a Committed Purchaser
By:   /s/ Bjoern Mollner
Name: Bjoern Mollner
Title:   Senior Vice President / SVP
By:   /s/ Bjorn Reinecke
Name: Bjorn Reinecke
Title:   Senior Analyst
LANDESBANK HESSEN-THÜRINGEN GIROZENTRALE, as Funding Agent
By:   /s/ Bjoern Mollner
Name: Bjoern Mollner
Title:   Senior Vice President / SVP
By:   /s/ Bjorn Reinecke
Name: Bjorn Reinecke
Title:   Senior Analyst

 

[Signature Page to Third A&R Receivables Purchase and Administration Agreement]


GOTHAM FUNDING CORPORATION,
as a Conduit Purchaser
By:   /s/ Kevin J. Corrigan
  Name: Kevin J. Corrigan
  Title:   Vice President

MUFG BANK, LTD.,

as a Committed Purchaser

By:   /s/ Akira Kawashima
  Name: Akira Kawashima
  Title:   Managing Director

MUFG BANK, LTD.,

as a Funding Agent

By:   /s/ Akira Kawashima
  Name: Akira Kawashima
  Title:   Managing Director

 

 

[Signature Page to Third A&R Receivables Purchase and Administration Agreement]


STARBIRD FUNDING CORPORATION,
as a Conduit Purchaser
By:   /s/ David V. DeAngelis
Name: David V. DeAngelis
Title:   Vice President
BNP PARIBAS,as a Committed Purchaser
By:   /s/ Chris Fukuoka
Name: Chris Fukuoka
Title:   Vice President
By:   /s/ Andrew Stratos
Name: Andrew Stratos
Title:   Director
BNP PARIBAS,as Funding Agent
By:   /s/ Chris Fukuoka
Name: Chris Fukuoka
Title:   Vice President
By:   /s/ Andrew Stratos
Name: Andrew Stratos
Title:   Director

 

[Signature Page to Third A&R Receivables Purchase and Administration Agreement]


EXHIBIT A

FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT

This Assignment and Assumption Agreement (this “Assignment”) dated as of [                ], 20        is made by [                ] [(together with its Funding Agent (as defined below)], the “Assignor”) to [                ] (the “Assignee”) pursuant to Section 9.7 of the Third Amended and Restated Receivables Purchase and Administration Agreement, dated as of October 23, 2018 (as amended, supplemented or otherwise modified from time to time, the “Receivables Purchase Agreement”), among T-Mobile Handset Funding LLC, as Transferor, T-Mobile Financial LLC, as Servicer and in its individual capacity, T-Mobile US, Inc., as Guarantor, the Conduit Purchasers, the Committed Purchasers and the Funding Agents party thereto from time to time, Royal Bank of Canada, as Administrative Agent. Capitalized terms used (but not defined) in this Assignment shall have the meanings provided in the Receivables Purchase Agreement.

SECTION 1. Assignment and Assumption. In consideration of the payment of $                 by the Assignee to the Assignor, the receipt and sufficiency of which payment are hereby acknowledged, effective on                 , 20        (the “Effective Date”), the Assignor hereby assigns to the Assignee [(or to                 (the “Assignee’s Funding Agent”) for the benefit of the Assignee)] without recourse and (except as provided below) without representation or warranty, and the Assignee hereby purchases and assumes, an undivided         % interest in the Assignor’s Net Investment, together with the Assignor’s related undivided interest in the Transferred Assets (and the rights and obligations under the Receivables Purchase Agreement). The Assignor represents and warrants to the Assignee that (i) it is the Owner of the portion of the Net Investment assigned hereby and (ii) it has not created any Lien upon or with respect to the portion of the Net Investment assigned hereby. The Assignee represents to the Assignor, the Transferor, the Servicer and TMUS that its related Conduit Purchaser, if any, is a Multi-Seller Conduit.

SECTION 2. Effect of Assignment. (a) From and after the Effective Date, (i) the Assignee (and the other members of its Ownership Group) shall be a party to and be bound by all of the terms of the Receivables Purchase Agreement and shall, to the extent of the interests assigned pursuant to this Assignment, have the rights and obligations of an Owner thereunder and (ii) to the extent of the interests assigned pursuant to this Assignment, the Assignor shall relinquish its rights and be released from its obligations under the Receivables Purchase Agreement. Without limiting the generality of this Section 2(a), the Assignee acknowledges receipt of a copy of Section 9.8 of the Receivables Purchase Agreement and agrees to be bound thereby.

(b) After giving effect to the assignment effected by this Assignment, (i) the Assignor’s Ownership Group Purchase Limit shall be $            , its Owner’s Percentage of its Ownership Group Purchase Limit shall be         % , its Net Investment will be $            and its Ownership Group Percentage [(based on information provided by the Administrative Agent)] shall be             %, (ii) the Assignee’s Ownership Group shall consist of the Assignee, as Conduit Purchaser, the Assignee’s Funding Agent, as its Funding Agent, [                ], as its Committed Purchaser and each related Owner, and (iii) the Assignee’s initial Ownership Group Purchase Limit shall be $                , its initial Owner’s Percentage shall be %                 and its initial Ownership Group Percentage [(based on information provided by the Assignor)] shall be         %.

 

Exhibit A-1


SECTION 3. The Administrative Agent. The Assignee [and the Assignee’s Funding Agent] hereby accepts (for itself and the other members of its Ownership Group) the appointment of and authorizes the Administrative Agent to take such action on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms of the Receivables Purchase Agreement, together with such powers as are reasonably incidental thereto.

SECTION 4. Miscellaneous.

(a) This Assignment shall be effective upon receipt by the Assignor of the payment specified in Section 1 and the delivery of a fully executed counterparts of this Assignment to each of the Administrative Agent, the Servicer and the Transferor.

(b) THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

(c) The addresses for notices and for payments to the Assignee, its Funding Agent and its Committed Purchaser shall, for all purposes of the Receivables Purchase Agreement, be as set forth on Schedule I hereto (as such information may be changed from time to time in accordance with Section 9.3 of the Receivables Purchase Agreement).

(d) This Assignment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument.

(e) The Assignee and the Assignor hereby authorize and direct the Administrative Agent to modify Schedule I to the Receivables Purchase Agreement as necessary to reflect the assignment effected hereby.

 

Exhibit A-2


IN WITNESS WHEREOF, the parties hereto, by their duly authorized signatories, have executed and delivered this Assignment as of the date first above written.

 

[ASSIGNOR]
By:       
Authorized Signatory
Title:
[ASSIGNOR’S FUNDING AGENT], as a
Funding Agent
By:       
Authorized Signatory
Title:
[ASSIGNOR’S COMMITTED PURCHASER, ], as a Committed Purchaser
By:                   
Authorized Signatory
Title:
[ASSIGNEE]
By:       
Authorized Signatory
Title:
[ASSIGNEE’S FUNDING AGENT], as a
FUNDING AGENT
By:       
Authorized Signatory
Title:

 

Exhibit A-3


[ASSIGNEE’S COMMITTED PURCHASER],as a Committed Purchaser
By:       
Authorized Signatory
Title:

 

[IF APPLICABLE]
CONSENTED TO:
T-MOBILE HANDSET FUNDING LLC,as Transferor
By:       
Authorized Signatory
Title:

 

Exhibit A-4


Schedule I

to

Assignment and Assumption Agreement


EXHIBIT B

FORM OF DAILY RECEIVABLES FILE

[Attached]

 

Exhibit B-1


EXHIBIT C

FORM OF ELIGIBLE INTEREST RATE CAP

 

Fax # ●

T-MOBILE HANDSET FUNDING LLC

12920 SE 38th Street

Bellevue, WA 98006

   DD MM YYYY
Attention:     
Re:  

CAP Transaction MATURITY DATE DD MMM YYYY FOR USD ●

 

(Our Ref. No. ● / ●)

Dear Sir or Madam:

The purpose of this letter agreement (this Confirmation”) is to confirm the terms and conditions of the transaction entered into between us on the Trade Date specified below (the “Transaction”). This letter agreement constitutes a “Confirmation” as referred to in the Master Agreement specified below.

The definitions and provisions contained in the 2006 ISDA Definitions as published by the International Swaps and Derivatives Association, Inc. are incorporated in this Confirmation. In the event of any inconsistency between those definitions and this Confirmation, this Confirmation shall govern.

1. This Confirmation evidences (a) a complete binding agreement between you and us entered into in the telephone trade on the Trade Date and (b) the terms of the Transaction. This Confirmation shall supplement, form a part of, be subject to and incorporate by reference an agreement (as amended by this Confirmation, the “Master Agreement”) in the form of the 2002 ISDA Master Agreement published by the International Swaps and Derivatives Association, Inc. as if we had executed an agreement in such form (but without any Schedule, except for the election of the laws of the State of New York as the governing law and USD as the Termination Currency and save for the other elections and modifications set out in this Confirmation) on the Trade Date (as defined below). In the event of any inconsistency between the provisions of the Master Agreement and this Confirmation, this Confirmation will prevail for the purpose of the Transaction.


2. Transaction Terms

 

Notional Amount:    USD ● (See Schedule A attached)
Trade Date:    DD MMM YYYY
Effective Date:    DD MMM YYYY
Termination Date:    [30 November 2018]
Fixed Amounts:
Fixed Rate Payer:    T-MOBILE HANDSET FUNDING LLC (“Counterparty”)
Fixed Rate Payer Payment Date    DD MMM YYYY
Fixed Rate Payer Payment Amount:    USD ●
Floating Amounts:
Floating Rate Payer:    ROYAL BANK OF CANADA (“Bank”)
CAP Rate:    ● percent
Floating Rate Payer Payment Dates:    MONTHLY commencing on DD MMM YYYY, and on the Business Day preceding the fifteenth day of each calendar month thereafter.
Floating Rate for initial Calculation Period:    ● percent
Floating Rate Option:    USD-LIBOR-BBA
Designated Maturity:    1MONTH
Floating Rate Day Count Fraction:    Actual/360
Reset Dates:    The first day of each Calculation Period

 

Exhibit C-2


Business Day Convention for Floating Rate Payment Dates:    Preceding
Business Day:    London, New York

 

Exhibit C-3


3. Account Details

 

Payments to    Bank   

CHASUS33

JPMORGAN CHASE BANK N.A. NEW YORK Account #: 001-1-153004

ROYCCAT3IMM

Payments to    Counterparty   

US Bank

Account # 153595425080

ABA Code 125000105

4. Offices.

 

(a) The Office of Counterparty for the Transaction is BELLEVUE, WA
(b) The Office of Bank for the Transaction is TORONTO

 

Exhibit C-4


5. Additional Provisions.

Calculation Agent. Bank, unless an Event of Default in respect of Bank has occurred and is then continuing, in which case the Calculation Agent shall be a recognized dealer of national standing designated in good faith by Counterparty to be the Calculation Agent until such Event of Default is no longer continuing; provided that when the Calculation Agent is required to act or exercise judgment, it will do so in good faith and in a commercially reasonable manner.

Additional Termination Provisions. In the event that Rated Entity at any time ceases to maintain the Required Ratings, Bank shall, immediately upon becoming aware of such rating withdrawal or downgrade, make commercially reasonable efforts to take one of the following actions: (a) at Bank’s sole cost and expense, transfer all its interests in, and obligations under, the Transaction to another dealer registered or provisionally registered with the U.S. Commodity Futures Trading Commission as a swap dealer that has the Required Ratings and which agrees to assume in writing the obligations of Bank hereunder with respect to the Transaction; provided, that such replacement will not result in either (i) the imposition of withholding tax or deduction on payments to be made by and to Counterparty hereunder and (ii) no Event of Default or Termination Event will occur due to such transfer; (b) execute a Credit Support Annex reasonably acceptable to Counterparty which requires Bank to post collateral consisting of either (i) cash or (ii) negotiable debt obligations (excluding interest-only securities) issued by the U.S. Treasury Department having a remaining maturity of not more than one year in an amount equal to the greater of (x) the mark-to-market value of the Transaction or (y) the amount of next payment that is due under the Transaction; or (c) obtain a guaranty of Bank’s obligations under this Confirmation issued by a guarantor with the Required Ratings. For the purposes of this additional termination provision, (a) “Required Ratings” shall mean with respect to an entity (i) the entity has commercial paper or short-term deposit ratings which are equal to “A-1” or higher by S&P and “P-1” by Moody’s; (ii) if the entity does not have a commercial paper or short-term deposit rating, the entity has unsecured debt obligations which are rated at least “A-” by S&P and “A3” by Moody’s; and (iii) in the case of either (i) or (ii), the entity is not on negative watch for downgrade; (b) “Rated Entity” means Bank or Bank’s parent; (c) “Moody’s” means Moody’s Investors Service, Inc., or its successor; and (d) “S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., and its successors.

If Bank fails or is unable to comply with its obligations set forth in the above paragraph, an Additional Termination Event shall occur with respect to the Transaction on the day that is 30 days following the failure to maintain the Required Ratings and in respect of which Bank shall be the sole Affected Party. Bank shall pay all reasonable out-of-pocket expenses, including legal fees, incurred by Counterparty in entering into a new interest rate cap agreement in form and substance similar to the Master Agreement, as supplemented by this Confirmation.

For purposes of the Master Agreement, Section 7 is hereby amended by adding the following provision immediately following the word “void” in the last sentence thereof: “; provided however, that Bank consents to the pledge and assignment by Counterparty of all of Counterparty’s rights and interests under this Agreement (including any Credit Support Annex) pursuant to the Receivables Purchase and Administration Agreement.

“Receivables Purchase and Administration Agreement” means that certain Receivables Purchase and Administration Agreement, dated as of November 18, 2015, among Counterparty, as Transferor, T-Mobile Financial LLC, in its individual capacity and as Servicer, T-Mobile US, Inc., as Guarantor, certain Conduit Purchasers, certain Committed Purchasers, certain Funding Agents, and Royal Bank of Canada, as the Administrative Agent, as the same may be amended, supplemented, restated or otherwise modified in accordance with its terms and in effect from time to time.

Schedule to the Master Agreement. For purposes of the Master Agreement, the following shall apply:

The parties shall not be deemed to have any Affiliates for the purpose of the Master Agreement.

“Specified Transaction” is not applicable to either party, and accordingly, Section 5(a)(v) of the Master Agreement shall not apply to either party.

The “Cross Default” provisions of Section 5(a)(vi) of the Master Agreement will apply to Bank and will not apply to Counterparty.

 

Exhibit C-5


“Threshold Amount” means, with respect to Bank, three percent (3.0%) of its shareholders’ equity (as shown in its most recently published audited financial statements).

If the Fixed Rate Payer Payment Amount has been paid by Counterparty to Bank, the “Events of Default” provisions of Sections 5(a)(i), 5(a)(ii), 5(a)(iii), 5(a)(iv), 5(a)(vii) and 5(a)(viii) of the Master Agreement will not apply to Counterparty.

Netting of Payments. Multiple Transaction Payment Netting shall not apply to the Transaction.

No Petition. Notwithstanding any other provision of this Confirmation, Bank may not, prior to the date which is one year and one day, or if longer the applicable preference period then in effect, after the payment in full of all outstanding rated securities issued by Counterparty, institute against, or join any other Person in instituting against, Counterparty any bankruptcy, reorganization, arrangement, insolvency, moratorium or liquidation proceedings, or other proceedings under federal or state bankruptcy or similar laws or laws of the state in which Counterparty is organized or appoint a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of Counterparty or any substantial part of its property, or order the winding up or liquidation of the affairs of the Counterparty. Nothing herein shall preclude, or be deemed to stop Bank (i) from taking any action prior to the expiration of the aforementioned one year and one day period, or if longer the applicable preference period then in effect, in (A) any case or proceeding voluntarily filed or commenced by Counterparty or (B) any involuntary insolvency proceeding filed or commenced by a Person other than Bank, or (ii) from commencing against Counterparty or any of its properties any legal action which is not a bankruptcy, reorganization, arrangement, insolvency, moratorium, liquidation or similar proceeding or the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of Counterparty or any substantial part of its property, or the ordering of the winding up or liquidation of the affairs of the Counterparty.

Set-Off. Section 6(f) of the Master Agreement shall not apply to the Transaction.

Failure to Pay or Deliver. Section 5(a)(i) of the Master Agreement is amended and restated to read as follows: “Failure by the party to make, when due, any payment under this Agreement or delivery under Section 2(a)(i) or 9(h)(i)(2) or (4) required to be made by it.”

Expenses. Section 11 of the Master Agreement is amended to preclude payment by Counterparty of any out-of-pocket expenses, including legal fees and Stamp Tax under the Master Agreement.

Confidentiality. The contents of this Confirmation and all other documents relating to this Confirmation, and any information made available by one party or its Credit Support Provider (if any) with respect to this Confirmation is confidential and shall not be disclosed to any third party, except for such information (i) as may become generally available to the public, other than as a result of the breach of the party seeking to disclose that information, (ii) as may be required in response to any summons, subpoena, or otherwise in connection with any litigation or to comply with any applicable law, order, regulation, ruling, or accounting disclosure rule or standard, (iii) as may be obtained from a non-confidential source that disclosed such information in a manner that did not violate its obligations to the non-disclosing party or its Credit Support Provider (if any) in making such disclosure, or (iv) as may be required to be furnished to a regulator with jurisdiction over the party. Notwithstanding anything to the contrary set forth herein or in any other agreement to which the parties hereto are parties or by which they are bound, the obligations of confidentiality contained herein and therein, as they relate to the transactions contemplated hereby, shall not apply to the tax structure or tax treatment of the transactions, and each party hereto (and any employee, representative, or agent of any party hereto) may disclose to the United States Internal Revenue Service or any other governmental entity, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated hereby and all materials of any kind (including opinions or other tax analyses) that are provided to such party relating to such tax treatment and tax structure.

LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE REQUIRED TO PAY OR BE LIABLE FOR PUNITIVE, EXEMPLARY, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES (WHETHER OR NOT ARISING FROM ITS NEGLIGENCE OR STRICT LIABILITY) TO ANY OTHER PARTY; PROVIDED, HOWEVER, THAT NOTHING IN THIS PROVISION SHALL AFFECT THE

 

Exhibit C-6


ENFORCEABILITY OF SECTION 6(e) OF THE MASTER AGREEMENT OR THE OBLIGATION TO PAY ANY AMOUNT REQUIRED PURSUANT TO SECTION 6(e) OF THE MASTER AGREEMENT. IF AND TO THE EXTENT ANY PAYMENT REQUIRED TO BE MADE PURSUANT TO THIS CONFIRMATION IS DEEMED TO CONSTITUTE LIQUIDATED DAMAGES, THE PARTIES ACKNOWLEDGE AND AGREE THAT SUCH DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND THAT SUCH PAYMENT IS INTENDED TO BE A REASONABLE APPROXIMATION OF THE AMOUNT OF SUCH DAMAGES AND NOT A PENALTY.

Credit Support Document: means, with respect to Bank, not applicable (except with respect to any documents executed in order to fulfill Bank’s obligations pursuant to Part 5 – Additional Termination Provisions above).

Credit Support Provider: means, with respect to Bank, not applicable (except with respect to any guarantor issuing a guaranty of Bank’s obligations pursuant to Part 5 – Additional Termination Provisions above).

Severability. If any term, provision, covenant, or condition of this Confirmation, or the application thereof to any party or circumstance, shall be held to be invalid or unenforceable (in whole or in part) for any reason, the remaining terms, provisions, covenants, and conditions hereof shall continue in full force and effect and shall remain applicable to all other parties and circumstances as if this Confirmation had been executed with the invalid or unenforceable portion eliminated, so long as this Confirmation as so modified continues to express, without material change, the original intentions of the parties as to the subject matter of this Confirmation and the deletion of such portion of this Confirmation will not substantially impair the respective benefits or expectations of the parties.

The parties shall endeavor to engage in good faith negotiations to replace any invalid or unenforceable term, provision, covenant or condition with a valid or enforceable term, provision, covenant or condition, the economic effect of which comes as close as possible to that of the invalid or unenforceable term, provision, covenant or condition.

Bankruptcy Code. Without limiting the applicability if any, of any other provision of the U.S. Bankruptcy Code as amended (the “Bankruptcy Code”) (including without limitation Sections 362, 546, 556, and 560 thereof and the applicable definitions in Section 101 thereof), the parties acknowledge and agree that the Transaction constitutes a “forward contract” or “swap agreement” as defined in Section 101 of the Bankruptcy Code or “commodity contract” as defined in Section 761 of the Bankruptcy Code, that the rights of the parties under Section 6 of the Master Agreement will constitute contractual rights to liquidate the Transaction, that any margin or collateral provided under any margin, collateral, security, pledge, or similar agreement related hereto will constitute a “margin payment” as defined in Section 101 of the Bankruptcy Code, and that the parties are entities entitled to the rights under, and protections afforded by, Sections 362, 546, 556, and 560 of the Bankruptcy Code.

Waiver of Jury Trial. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING INSTITUTED IN CONNECTION WITH THIS CONFIRMATION OR THE TRANSACTION TO THE FULLEST EXTENT PERMITTED BY LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE OTHER PARTY TO ENTER INTO THIS CONFIRMATION AND THE TRANSACTION.

6. Tax Provisions.

Payee Tax Representations.

For purposes of Section 3(f) of the Master Agreement, Bank makes the following representations:

A)(i) It is a bank organized under the laws of Canada, (ii) it is a foreign corporation for U.S. federal income tax purposes and (iii) it is a “foreign person” (as that term is used in Section 1.6041-4(a)(4) of the United States Treasury Regulations).

 

Exhibit C-7


B) Each payment received or to be received by it in connection with this Confirmation or the Transaction will be effectively connected with its conduct of a trade or business in the United States.

For purposes of Section 3(f) of the Master Agreement, Counterparty makes the following representations:

(i) It is a limited liability company existing under the laws of the State of Delaware, (ii) it is treated as a disregarded entity for U.S. federal income tax purposes, (iii) its regarded owner for U.S. federal income tax purposes is T-Mobile USA, Inc., a corporation organized under the State of Delaware (“TMUSA”), (iv) TMUSA is classified as a corporation for U.S. federal income tax purposes and (v) TMUSA is a “U.S. person” (as that term is defined in Section 7701(a)(30) of the United States Internal Revenue Code of 1986, as amended).”

Tax Forms. Bank shall deliver to Counterparty an executed United States Internal Revenue Service Form W-8ECI (or any successor thereto) or such other forms as may be required to comply with applicable law, rules and regulations applicable to this Agreement, in a manner reasonably acceptable to Counterparty (i) upon execution of this Confirmation, (ii) promptly upon reasonable demand by Counterparty and (vi) promptly upon learning that any such form previously provided by Bank has become inaccurate or incorrect.

Counterparty shall deliver to Bank an executed United States Internal Revenue Service W-9 (or any successor thereto) or such other forms as may be required to comply with applicable law, rules and regulations applicable to this Agreement, as applicable, of TMUSA, in a manner reasonably acceptable to Bank (i) upon execution of this Confirmation, (ii) promptly upon reasonable demand by Bank and (iii) promptly upon learning that any such form previously provided by Counterparty has become inaccurate or incorrect.

Indemnifiable Tax. Notwithstanding the definition of “Indemnifiable Tax” in Section 14 of this Agreement, in relation to payments by Bank, any Tax will be an Indemnifiable Tax and, in relation to payments by Counterparty, no Tax will be an Indemnifiable Tax.

Stamp Tax. Counterparty shall not be required to pay any indemnification amounts referred to in Section 4(e) of the Master Agreement.

This Confirmation may be executed and delivered in counterparts (including by facsimile transmission) or be created by an exchange of telexes or by an exchange of electronic messages on an electronic messaging system, which in each case upon your confirmation in the manner prescribed hereunder, will be deemed for all purposes to be a legally binding transaction.

Please confirm that the foregoing correctly sets forth the terms of our agreement by signing in the space provided below and returning same to us by facsimile transmission, or send to us within two (2) Local Business Days a letter by facsimile transmission or telex or electronic messaging system similar to this letter which sets forth the material terms of the foregoing Transaction to which this Confirmation relates and which indicates your agreement to those terms.

Bank confirms, and Counterparty acknowledges, that this Confirmation has been executed by Bank by means of a computer-based system and that such execution shall have the same legal effect as if a signature had been manually written on such Confirmation and that such Confirmation shall be deemed to have been signed by Bank for the purposes of any statute or rule of law that requires such Confirmation to be signed. The parties acknowledge that in any legal proceedings between them respecting or in any way relating to this Confirmation, each party expressly waives any right to raise any defense or waiver of liability based upon the execution of this Confirmation by Bank by means of an electronically-produced signature.

 

Exhibit C-8


Telephone No.:    416-842-●     Facsimile No.:    416-842-●
Yours sincerely,       Confirmed as of the date first written:
For and on behalf of       For and on behalf of
ROYAL BANK OF CANADA                T-MOBILE HANDSET FUNDING LLC
By:   

Not Applicable.

      By:   

 

Authorized signature       Authorized signature

 

Exhibit C-9


ROYAL BANK OF CANADA pays USD to T-MOBILE HANDSET FUNDING LLC

(Our Ref. No. XXXXXXX / XXXXXXX)

 

Calc Date   Period Begin   Period End   Days  

Interest

Date

 

Principal

Date

 

Payment

Amount

 

Interest

Rate

 

Spread

Rate

  Schedule A

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY    

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

 

Exhibit C-10


DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

DD MMM YYYY

  DD MMM YYYY   DD MMM YYYY   XX   DD MMM YYYY     X.XX     0.00000   X,XXX,XXX.XX

 

Exhibit C-11


EXHIBIT D

HEDGING REQUIREMENTS

Until the Aggregate Unpaids have been reduced to zero and all amounts under this Agreement, the Transaction Fee Letter and the Administrative Agent Fee Letter have been repaid in full, the Transferor shall maintain one or more Eligible Interest Rate Caps with an Eligible Cap Counterparty, in each case in accordance with the following requirements:

(i) such Eligible Interest Rate Caps shall, in aggregate, be in a notional amount, equal to (A) for any Payment Date prior to the Scheduled Expiry Date, at least the Purchase Limit, and (B) (1) for any Payment Date after the Scheduled Expiry Date prior to the Thirty-Six Month Contract Receivable Transfer Date, the notional amount as of the last Payment Date prior to the Scheduled Expiry Date reduced by one twenty-fourth of such notional amount per month and (2) for any Payment Date after the Scheduled Expiry Date on or after the Thirty-Six Month Contract Receivable Transfer Date, the notional amount as of the last Payment Date prior to the Scheduled Expiry Date reduced by one thirty-sixth of such notional amount per month (or such other amount as agreed, from time to time, between the Transferor and the Administrative Agent to reflect the percentage of Receivables with an outstanding term in excess of 24 months);

(ii) such Eligible Interest Rate Caps shall provide that the Cap Counterparty’s payment obligations be calculated by reference to the notional amount hedged thereunder and a per annum rate determined by reference to one-month LIBOR (as defined in the long-form confirmation provided in Exhibit C), determined for and taking effect as of the first day of each Accrual Period;

(iii) such Eligible Interest Rate Caps shall provide for payments to be paid on the Business Day immediately prior to each Payment Date by the Cap Counterparty by transfer directly into the Collection Account for the benefit of the Owners;

(iv) such Eligible Interest Rate Caps shall provide for the Servicer to make the full up-front payment of any premium due upon entry by the Transferor into each Eligible Interest Rate Cap;

(v) such Eligible Interest Rate Caps have been pledged to secure the due and punctual payment of all amounts owing to the Funding Agents and their respective related Owners in connection with the Net Investment of each such Owner; and

(vi) the Transferor, the Servicer and the Administrative Agent shall have agreed on the strike rate for such Eligible Interest Rate Cap.


(b) In the event that, due to withdrawal or downgrade, a Cap Counterparty no longer meets the requirements of an Eligible Cap Counterparty, the Transferor shall, (A) as soon as reasonably possible, (i) arrange for the Cap Counterparty to post collateral as required in the long-form confirmation in Exhibit C which will be deposited into a hedge collateral account (to be established at the time of such collateral posting) for the benefit of the Owners, (ii) obtain a guaranty of, or a contingent agreement of another Eligible Cap Counterparty to honor, the Cap Counterparty’s obligations under the related Eligible Interest Rate Cap, or (iii) arrange for the adversely affected Cap Counterparty’s obligations and rights under the related Eligible Interest Rate Cap to be assumed by and assigned to a replacement Eligible Cap Counterparty, and (B) within thirty (30) days of such occurrence, if the Cap Counterparty fails to comply with the requirements of (A) above, terminate the existing Eligible Interest Rate Cap and/or arrange for a new Eligible Interest Rate Cap with an Eligible Cap Counterparty;

(c) Upon execution of any Eligible Interest Rate Cap with an Eligible Cap Counterparty, the Transferor shall deliver the executed long-form confirmation related to such Eligible Interest Rate Cap to the Administrative Agent within three (3) Business Days.

 

Exhibit D-2


EXHIBIT E

FORM OF MONTHLY REPORT

[Attached]

 

E-1


EXHIBIT F

FORM OF RECEIVABLES SCHEDULE

[Attached]

 

F-1


EXHIBIT G

FORM OF FUNDING NOTICE

[Date]

 

Royal Bank of Canada,

as Administrative Agent and Funding Agent

200 Vesey Street, 12th Floor

New York, NY 10281

Attention: Securitization Finance

Email: conduit.management@rbccm.com

Facsimile: (212) 428-2304

  

Landesbank Hessen-Thüringen Girozentrale,

as Funding Agent

Neue Mainzer Straße 52-58

60311 Frankfurt am Main

Germany

Attention: Björn Mollner / Björn Reinecke

Email: bjoern.mollner@helaba.de, bjoern.reinecke@helaba.de

Facsimile: +49 (0)69 9132 4190

BNP Paribas,

as Funding Agent

787 Seventh Avenue

New York, New York 10019

Email: dl.starbirdadmin@us.bnpparibas.com,

starbird@gssnyc.com

  

MUFG Bank, Ltd.,

as Funding Agent

1221 Avenue of the Americas

New York, New York 10020

 

RE:

T-Mobile Handset Funding LLC – Third Amended and Restated Receivables Purchase and Administration Agreement

Ladies and Gentlemen:

Pursuant to Section 2.2 of the Third Amended and Restated Receivables Purchase and Administration Agreement, dated as of October 23, 2018 (as amended, supplemented or otherwise modified from time to time, the “Receivables Purchase Agreement”) by and among T-Mobile Handset Funding LLC, T-Mobile Financial LLC, T-Mobile US, Inc., as a Guarantor, T-Mobile USA, Inc., as a Guarantor, the Conduit Purchasers, the Committed Purchasers and the Funding Agents party thereto from time to time, and Royal Bank of Canada, as Administrative Agent, the Transferor hereby irrevocably requests the Owners fund an Incremental Funding as specified below. Terms used herein are used as defined in or for purposes of the Receivables Purchase Agreement.

 

  1.

The requested amount of such Incremental Funding is $                                                 .

 

  2.

The date such Incremental Funding is to occur is                                                  (the “Funding Date”).

 

  3.

All conditions precedent to such Incremental Funding set forth in Section 4.2 of the Receivables Purchase Agreement have been satisfied.


  4.

The proceeds of such Incremental Funding shall be remitted on the Funding Date in immediately available funds to [specify payment instructions].

 

  5.

The Funding Date will also be an Addition Date (Y/N):                                                      

 

Very truly yours,
T-MOBILE HANDSET FUNDING, as Transferor
By:  

 

  Name:
  Title:

 

Acknowledged and Agreed:
T-MOBILE FINANCIAL LLC,as Servicer
By:  

 

  Name:
  Title:

 

Exhibit G-2


EXHIBIT H

FORM OF INVESTMENT REDUCTION NOTICE

                                         ,                     

Royal Bank of Canada,

as Administrative Agent

200 Vesey Street, 12th Floor

New York, NY 10281

Attention: Securitization Finance

Email: conduit.management@rbccm.com

Facsimile: (212) 428-2304

Ladies and Gentlemen:

Reference is hereby made to the Third Amended and Restated Receivables Purchase and Administration Agreement, dated as of October 23, 2018 (as amended, supplemented or otherwise modified from time to time, the “Receivables Purchase Agreement”), among T-Mobile Handset Funding LLC, as Transferor, T-Mobile Financial LLC, as Servicer and in its individual capacity, T-Mobile US, Inc., as a Guarantor, T-Mobile USA, Inc., as a Guarantor, the Conduit Purchasers, the Committed Purchasers and the Funding Agents party thereto from time to time, Royal Bank of Canada, as Administrative Agent. Capitalized terms used (but not defined) in this Assignment shall have the meanings provided in the Receivables Purchase Agreement.

This letter constitutes an Investment Reduction Notice pursuant to Section 2.8(e) of the Receivables Purchase Agreement. The Transferor desires to reduce the Aggregate Net Investment on                         ,             in an aggregate amount of $            (the “reduction amount”) by temporarily stopping the reinvestment of Collections on and after such date until the amount not reinvested equals the reduction amount.

IN WITNESS WHEREOF, the undersigned has caused this Investment Reduction Notice to be executed by its duly authorized officer as of the date first above written.

 

T-MOBILE HANDSET FUNDING LLC
By:                                                                                                  
Name:                                                                                            
Title:                                                                                              


EXHIBIT I

FORM OF COMPLIANCE CERTIFICATE

Certificate of [Treasurer] [Chief Accounting Officer]

I, the undersigned [Treasurer] [Chief Accounting Officer] of T-Mobile Financial LLC (“Finco”) do hereby CERTIFY, pursuant to Section 3.7(hh) of the Third Amended and Restated Receivables Purchase and Administration Agreement, dated as of October 23, 2018 (as amended, supplemented or otherwise modified from time to time, the “Receivables Purchase Agreement”) by and among T-Mobile Handset Funding LLC, Finco, T-Mobile US, Inc., as a Guarantor, T-Mobile USA, Inc., as a Guarantor, the Conduit Purchasers, the Committed Purchasers and the Funding Agents party thereto from time to time, Royal Bank of Canada, as Administrative Agent, that on and as of the date hereof,

1. Finco is the Servicer under the Receivables Purchase Agreement.

2. A review of the activities of Finco during the twelve months ended December 31, 20        (the “Review Period”) and of its performance under the Receivables Purchase Agreement was conducted under my supervision.

3. To my knowledge, based on such review, Finco has fully performed or caused to be performed all of its obligations under the Receivables Purchase Agreement in all material respects throughout the Review Period.

4. [During the Review Period, no Servicer Default has occurred or is continuing.] [OR] [To my knowledge, the following Servicer Default(s) have occurred during the Review Period: [            ] [If applicable, include the nature and status thereof and the steps being taken or necessary to be taken to remedy such event.]]

5. There exists no Amortization Event, Potential Amortization Event, Termination Event, Potential Termination Event, Servicer Default or Potential Servicer Default.

Capitalized terms not otherwise defined herein have the meanings assigned to them in the Receivables Purchase Agreement.

IN WITNESS WHEREOF, the undersigned has executed this Certificate this              day of                             ,                         .

 

T-MOBILE FINANCIAL LLC
By:  

 

Its:   [Treasurer] [Chief Accounting Officer]


EXHIBIT J

FORM OF COVID WEEKLY REPORT

[•][•], 2020

 

     5/1/2020      5/8/2020      5/15/2020      5/22/2020      5/29/2020      6/5/2020      6/12/2020  

Pool Balance

                    

Aggregate Advance Amount

                    

COVID Deferring Receivables

                    


SCHEDULE I

(As of February 14, 2020)

CONDUIT PURCHASERS, COMMITTED PURCHASERS, FUNDING AGENTS

AND RELATED INFORMATION


SCHEDULE I

(continued)

 

No.

  

Ownership Group

  

Address/Telecopy for Notices

  

Account for Funds Transfer

   Ownership
Group
Purchase Limit
   Ownership
Group
Percentage
1.   

•   Name of Funding Agent: Royal Bank of Canada

 

•   Name of Committed Purchaser(s): Royal Bank of Canada

 

•   Name of Conduit Purchaser: Old Line Funding, LLC

 

•   Name of Conduit Support Provider: Royal Bank of Canada

  

If to the Conduit Purchaser:

 

Old Line Funding , LLC

c/o Global Securitization Services

68 South Service Road, Suite 120

Melville, NY 11747

Attention: Kevin Burns

Tel. No.: (631) 587-4700

Facsimile No.: (212) 302-8767

Email: conduitadmin@gssnyc.com

 

with a copy to:

 

RBC Capital Markets

Two Little Falls Center

2751 Centerville Road,

Suite 212

Wilmington, DE 19808

Attention: Securitization Finance

Tel. No.: (302) 892-5903

Facsimile No.: (302) 892-5900

Email: conduit.management@rbccm.com

 

If to the Committed Purchaser, Funding Agent or Conduit Support Provider:

 

Royal Bank of Canada

Royal Bank Plaza, North Tower

200 Bay Street

2nd Floor

Toronto Ontario M5J2W7

Attn: Securitization Finance

Tel: (416) 842-3842

Email: conduit.management@rbccm.com

 

with a copy to:

 

Royal Bank of Canada

Two Little Falls Center

2751 Centerville Road

Suite 212

Wilmington, DE 19808

Tel. No.: (302) 892-5903

Email: conduit.management@rbccm.com

  

Old Line Funding, LLC

Bank: Deutsche Bank Trust Company Americas

ABA #: 021-001-033

Acct #: 04-872-850

Ref: T-Mobile Handset Funding LLC

   $500,000,000    38.4616%

 

Schedule I-2


SCHEDULE I

(continued)

 

No.

  

Ownership Group

  

Address/Telecopy for Notices

  

Account for Funds Transfer

   Ownership
Group
Purchase Limit
   Ownership
Group
Percentage
2.   

•   Name of Funding Agent: Landesbank Hessen-Thüringen Girozentrale

 

•   Name of Committed Purchaser(s): Landesbank Hessen-Thüringen Girozentrale

 

•   Name of Conduit Purchaser: N/A

 

•   Name of Conduit Support Provider: N/A

  

Landesbank Hessen-Thüringen Girozentrale

Neue Mainzer Straße 52-58

60311 Frankfurt am Main

Germany

Attn: Björn Mollner / Björn Reinecke

Tel: +49 (0)69 9132 – ext: 5208 / 3489

Fax: +49 (0)69 9132 4190

Email: bjoern.mollner@helaba.de, bjoern.reinecke@helaba.de

  

Landesbank Hessen-Thüringen Girozentrale

Bank: Citibank N.A., New York

ABA #: CITIUS33

Acct #: 109 201 18

Ref: 214000 T-Mobile US EIP

   $200,000,000    15.3846%

 

Schedule I-3


SCHEDULE I

(continued)

 

No.

  

Ownership Group

  

Address/Telecopy for Notices

  

Account for Funds Transfer

   Ownership
Group
Purchase Limit
   Ownership
Group
Percentage
3.   

•   Name of Funding Agent: MUFG Bank, Ltd.

 

•   Name of Committed Purchaser(s): MUFG Bank, Ltd.

 

•   Name of Conduit Purchaser: Gotham Funding Corporation

 

•   Name of Conduit Support Provider: MUFG Bank, Ltd.

  

If to the Conduit Purchaser:

 

Gotham Funding Corporation

c/o Global Securitization Services, LLC

68 South Service Road, Suite 120

Melville, NY 11747

Tel: (212) 295-2757

Fax: (212) 302-8767

Attn: Kevin Corrigan

Email: kcorrigan@gssnyc.com

 

with a copy to:

 

MUFG Bank, Ltd.

1221 Avenue of the Americas

New York, NY 10020

Attn: Securitization Group

Tel: (212) 782-6957

Fax: (212) 782-6448

Email: securitization_reporting@us.mufg.jp

 

If to the Committed Purchaser, Funding Agent or Conduit Support Provider:

 

MUFG Bank, Ltd.

Harborside Financial Center Plaza III

Jersey City, New Jersey 07311

Telecopier No.: 201-369-2149

Email: securitization_reporting@us.mufg.jp

 

with a copy to:

 

MUFG Bank, Ltd.

1221 Avenue of the Americas

New York, NY 10020

Attn: Securitization Group

Tel: (212) 782-6957

Fax: (212) 782-6448

Email: securitization_reporting@us.mufg.jp

  

Bank: MUFG Bank, Ltd.

ABA #: 026-009-632

Acct #: 310-035-147

Acct Name: Gotham Funding Corporation

Ref: T-Mobile Handset Funding (EIP)

   $300,000,000    23.0769%

 

Schedule I-4


SCHEDULE I

(continued)

 

No.

  

Ownership Group

  

Address/Telecopy for Notices

  

Account for Funds Transfer

   Ownership
Group
Purchase Limit
   Ownership
Group
Percentage
4.   

•   Name of Funding Agent: BNP Paribas

 

•   Name of Committed Purchaser(s): BNP Paribas

 

•   Name of Conduit Purchaser: Starbird Funding Corporation

 

•   Name of Conduit Support Provider: BNP Paribas

  

BNP Paribas

787 Seventh Avenue,

New York, New York 10019

Attention: Rose Navarro

Tel: 212-841-8122

With copies to:

Rose.navarro@us.bnpparibas.com, dl.starbirdadmin@us.bnpparibas.com, starbird@gssnyc.com

  

BNP Paribas New York

ABA#: 026007689

Acct: 0200520125USD43406

Acct Name: Starbird Cash Collection

FFC: 150018550001001

Acct Ref: T-Mobile Handset Funding

   $300,000,000    23.0769%

 

Schedule I-5


SCHEDULE II

INITIAL RECEIVABLES SCHEDULE

[Delivered to the Administrative Agent on the Original Closing Date with respect to the Initial

Receivables, as modified from time to time pursuant to updated Receivables Schedules]


SCHEDULE III

ORGANIZATIONAL INFORMATION

 

T-Mobile Financial LLC:   

Chief Executive Office;

Principal Place of Business:

  

12920 S.E. 38th Street

Bellevue, WA 98006

Locations of Records:   

12920 S.E. 38th Street

Bellevue, WA 98006

Delaware Organizational

Identification Number:

   5565502

Federal Employer

Identification Number:

   47-1324347
Prior Name(s) in the Last 5 Years:    None
T-Mobile Handset Funding LLC:   

Chief Executive Office;

Principal Place of Business:

  

12920 S.E. 38th Street

Bellevue, WA 98006

Locations of Records:   

12920 S.E. 38th Street

Bellevue, WA 98006

Delaware Organizational

Identification Number:

   5752256

Federal Employer

Identification Number:

   36-5810380
Prior Name(s) in the Last 5 Years:    None


SCHEDULE IV

DOCUMENTS DELIVERED ON THE

ORIGINAL CLOSING DATE

(AND PRIOR AMENDMENT CLOSING DATES)

AND

DOCUMENTS TO BE DELIVERED ON THE

2018 AMENDMENT CLOSING DATE

T-MOBILE EIP RECEIVABLES SECURITIZATION

ORIGINAL EXECUTION DATE: NOVEMBER 18, 2015

ORIGINAL CLOSING DATE: NOVEMBER 19, 2015

2016 AMENDMENT CLOSING DATE: JUNE 6, 2016

2017 AMENDMENT CLOSING DATE: AUGUST 21, 2017

2018 AMENDMENT CLOSING DATE: OCTOBER 23, 2018

Parties

 

“Administrative Agent”

   RBC

“Finco”

   T-Mobile Financial LLC

“Gotham”

   Gotham Funding Corporation

“Guarantor”

   TMUS

“GT”

   Greenberg Traurig, LLP, counsel to T-Mobile Funding, Finco and Guarantor

“Helaba”

   Landesbank Hessen-Thüringen Girozentrale

“HL”

   Hogan Lovells LLP, prior counsel to T-Mobile Funding, Finco and Guarantor

“Lloyds”

   Lloyds Bank plc

“RBC”

   Royal Bank of Canada

“Servicer”

   Finco, in its capacity as Servicer

“Starbird”

   Starbird

“T-Mobile Funding”

   T-Mobile Handset Funding LLC

“TMUS”

   T-Mobile US, Inc.

“TMUSA”

   T-Mobile USA, Inc.

“Transferor”

   T-Mobile Funding, in its capacity as Transferor


Document

 

A.

Documents Delivered in Connection with the Original Closing Date (documents are dated as of the Original Closing Date unless otherwise noted below):

 

1.

Receivables Sale Agreement, dated as of November 18, 2015, between Finco, as Seller and T-Mobile Funding, as Purchaser

 

2.

Receivables Purchase and Administration Agreement, dated as of November 18, 2015, among the Transferor, Finco, individually and as the Servicer, TMUS, as Guarantor, the Conduit Purchasers party thereto, the Committed Purchasers party thereto and the Funding Agents party thereto, and the Administrative Agent

 

3.

Performance Guaranty, dated as of November 18, 2015, by TMUS, as Guarantor, in favor of the Administrative Agent and the Owners

 

4.

Swap Confirmation, between Royal Bank of Canada and the Transferor

 

5.

Risk Sharing Letter, dated as of November 18, 2015, between Helaba and the Transferor

 

6.

Blocked Account Control Agreement, dated as of November 18, 2015, among the Transferor, the Servicer, the Administrative Agent and U.S. Bank National Association

 

7.

Limited Liability Company Agreement of T-Mobile Funding, dated as of November 18, 2015

 

8.

Transaction Fee Letter, dated as of November 18, 2015, among the Transferor and the Funding Agents party thereto

 

9.

Administrative Agent Fee Letter, dated as of November 18, 2015, among the Transferor, Finco and the Administrative Agent

 

10.

Assistant Secretary’s Certificate of Finco

 

  (i)

Certificate of Formation

 

  (ii)

Limited Liability Company Agreement

 

  (iii)

Manager Resolutions

 

  (iv)

Good Standing (Delaware SOS)

 

  (v)

Incumbency Certificate

 

11.

Assistant Secretary’s Certificate of the Transferor

 

  (i)

Certificate of Formation

 

  (ii)

Limited Liability Company Agreement

 

  (iii)

Member Resolutions

 

  (iv)

Good Standing (Delaware SOS)

 

  (v)

Incumbency Certificate

 

12.

Assistant Secretary’s Certificate of TMUS, as Guarantor

 

  (i)

Certificate of Incorporation

 

  (ii)

By-Laws

 

  (iii)

Board Resolutions

 

  (iv)

Good Standing (Delaware SOS)

 

  (v)

Incumbency Certificate

 

13.

Officer’s Certificate of the Transferor (pursuant to Section 4.1(e) of the RPAA)

 

Annex A-2


Document

 

14.

Officer’s Certificate of the Servicer (pursuant to Section 4.1(e) of the RPAA)

 

15.

UCC-1 Financing Statement naming Finco, as Debtor, T-Mobile Funding, as Purchaser/Assignor Secured Party, and Administrative Agent, as Total Assignee/Secured Party, to be filed with the Secretary of State of Delaware in connection with the Receivables Sale Agreement

 

16.

UCC-1 Financing Statement naming T-Mobile Funding, as Debtor, and Administrative Agent, as Secured Party, to be filed with the Secretary of State of Delaware in connection with the Receivables Purchase and Administration Agreement

 

17.

UCC Search Report (Delaware) of UCC Financing Statements and Tax Liens Filed against Finco

 

18.

UCC Search Report (Delaware) of UCC Financing Statements and Tax Liens Filed against T-Mobile Funding

 

19.

Opinion of HL, counsel to the Transferor, the Servicer, and TMUS, as Guarantor, regarding certain corporate matters, including legality, validity and enforceability of the transaction documents, no conflict of law, and non-contravention of charter documents and certain material agreements.

 

20.

Opinion of HL regarding certain UCC matters.

 

21.

Opinion of HL regarding true sale matters.

 

22.

Opinion of HL regarding substantive consolidation matters.

 

23.

Opinion of HL regarding Volcker Rule and Investment Company Act matters.

 

24.

Original Closing Date Monthly Report (pursuant to Section 4.1(c) of RPAA)

25.

Initial Receivables Schedule (Schedule II to the RPAA)

 

26.

Evidence of establishment of Collection Account (pursuant to Section 4.1(m) of the RPAA)

 

27.

Flow of Funds

 

28.

Appointment of Independent Director for T-Mobile Funding

 

29.

Assurant Amendments

 

  a.

Amendment to Wireless Equipment Program Client Administration Agreement

 

  b.

Amendment to Wireless Equipment Program Billing and Collection Agreement

 

30.

Partial Release of Collateral No. 3, by Finco, TMUS, and TMUSA, and agreed and acknowledged by Deutsche Bank AG New York Branch as Administrative Agent and Collateral Agent

 

31.

UCC-3 Amendment to Financing Statement naming Finco, as Debtor and Deutsche Bank AG New York Branch, as Administrative Agent and Collateral Agent, as Secured Party

 

B.

Documents to be Delivered in Connection with the 2016 Amendment Closing Date (documents are dated as of the 2016 Amendment Closing Date unless otherwise noted below):

 

1.

Amended and Restated Receivables Sale Agreement, between Finco, as Seller and T-Mobile Funding, as Purchaser

 

2.

Amended and Restated Receivables Purchase and Administration Agreement, among the Transferor, Finco, individually and as the Servicer, TMUS, as Guarantor, the Conduit Purchasers party thereto, the Committed Purchasers party thereto and the Funding Agents party thereto, and the Administrative Agent

 

3.

Transaction Fee Letter (amending and restating the Transaction Fee Letter dated as of the Original Closing Date), among the Transferor and the Funding Agents party thereto

 

Annex A-3


Document

 

4.

Administrative Agent Fee Letter (amending and restating the Administrative Agent Fee Letter dated as of the Original Closing Date), among the Administrative Agent, the Transferor and Finco

 

5.

Confirmation of Guaranty by TMUS, as Guarantor, in favor of the Administrative Agent and the Owners

 

6.

Officer’s Certificate of the Transferor (pursuant to Section 4.1(e) of the RPAA)

 

7.

Officer’s Certificate of the Servicer (pursuant to Section 4.1(e) of the RPAA)

 

8.

Resolutions of TMUS

 

9.

Resolutions of Finco

 

10.

Resolutions of the Transferor

 

11.

2016 Amendment Closing Date Monthly Report (pursuant to Section 4.1(c) of RPAA)

 

12.

Opinion of HL, counsel to the Transferor, the Servicer, and TMUS, as Guarantor, regarding certain corporate matters, including legality, validity and enforceability of the transaction documents, no conflict of law, and non-contravention of charter documents and certain material agreements.

 

13.

Opinion of HL, addressed to Administrative Agent and Funding Agents, regarding certain UCC matters.

 

14.

Opinion of HL, addressed to Administrative Agent and Funding Agents, regarding true sale matters.

 

15.

Reliance Letter of HL, addressed to Gotham and Lloyds, regarding substantive consolidation matters.

 

16.

Reliance Letter of HL, addressed to Gotham and Lloyds, regarding Volcker Rule and Investment Company Act matters.

 

17.

Good Standing Certificates (Delaware SOS)

 

  1.

Finco

 

  2.

T-Mobile Funding

 

  3.

TMUS

 

18.

UCC Search Report (Delaware) of UCC Financing Statements and Tax Liens Filed against Finco

 

19.

UCC Search Report (Delaware) of UCC Financing Statements and Tax Liens Filed against T-Mobile Funding

 

20.

T-Mobile Side Letter, between Finco and T-Mobile Funding.

 

C.

Documents to be Delivered in Connection with the 2017 Amendment Closing Date (documents are dated as of the 2017 Amendment Closing Date unless otherwise noted below):

 

1.

Second Amended and Restated Receivables Sale Agreement, between Finco, as Seller and T-Mobile Funding, as Purchaser

 

2.

Second Amended and Restated Receivables Purchase and Administration Agreement, among the Transferor, Finco, individually and as the Servicer, TMUS, as Guarantor, the Conduit Purchasers party thereto, the Committed Purchasers party thereto and the Funding Agents party thereto, and the Administrative Agent

 

3.

Second Amended and Restated Transaction Fee Letter, among the Transferor and the Funding Agents party thereto

 

4.

Second Amended and Restated Administrative Agent Fee Letter, among the Administrative Agent, the Transferor and Finco

 

Annex A-4


5.

Confirmation of Guaranty by TMUS, as Guarantor, in favor of the Administrative Agent and the Owners

 

6.

Officer’s Certificate of the Transferor (pursuant to Section 4.1(e) of the RPAA)

 

7.

Officer’s Certificate of the Servicer (pursuant to Section 4.1(e) of the RPAA)

 

8.

Resolutions of TMUS

 

9.

Resolutions of Finco

 

10.

Resolutions of the Transferor

 

11.

2017 Amendment Closing Date Monthly Report (pursuant to Section 4.1(c) of RPAA)

 

12.

Opinion of HL, counsel to the Transferor, the Servicer, and TMUS, as Guarantor, regarding certain corporate matters, including legality, validity and enforceability of the transaction documents, no conflict of law, and non-contravention of charter documents and certain material agreements.

 

13.

Opinion of HL, addressed to Administrative Agent and Funding Agents, regarding certain UCC matters.

 

14.

Opinion of HL, addressed to Administrative Agent and Funding Agents, regarding true sale matters.

 

15.

Opinion of HL, addressed to Administrative Agent and Funding Agents, regarding substantive consolidation matters.

 

16.

Opinion of HL, addressed to Administrative Agent and Funding Agents, regarding Volcker Rule and Investment Company Act matters.

 

17.

Good Standing Certificates (Delaware SOS)

 

  1.

Finco

 

  2.

T-Mobile Funding

 

  3.

TMUS

 

18.

UCC Search Report (Delaware) of UCC Financing Statements and Tax Liens Filed against Finco

 

19.

UCC Search Report (Delaware) of UCC Financing Statements and Tax Liens Filed against T-Mobile Funding

 

20.

T-Mobile Side Letter, between Finco and T-Mobile Funding.

 

D.

Documents to be Delivered in Connection with the 2018 Amendment Closing Date (documents are dated as of the 2018 Amendment Closing Date unless otherwise noted below):

 

1.

Third Amended and Restated Receivables Sale Agreement, between Finco, as Seller and T-Mobile Funding, as Purchaser

 

2.

Third Amended and Restated Receivables Purchase and Administration Agreement, among the Transferor, Finco, individually and as the Servicer, TMUS, as a Guarantor, TMUSA, as a Guarantor, the Conduit Purchasers party thereto, the Committed Purchasers party thereto and the Funding Agents party thereto, and the Administrative Agent

 

3.

Third Amended and Restated Transaction Fee Letter, among the Transferor and the Funding Agents party thereto

 

4.

Confirmation of Guaranty by the Guarantors in favor of the Administrative Agent and the Owners

 

5.

Officer’s Certificate of the Transferor (pursuant to Section 4.1(e) of the RPAA)

 

Annex A-5


6.

Officer’s Certificate of the Servicer (pursuant to Section 4.1(e) of the RPAA)

 

7.

Resolutions of TMUS

 

8.

Resolutions of TMUSA

 

9.

Resolutions of Finco

 

10.

Resolutions of the Transferor

 

11.

2018 Amendment Closing Date Monthly Report (pursuant to Section 4.1(c) of RPAA)

 

12.

Opinion of GT, counsel to the Transferor, the Servicer, and the Guarantors, regarding certain corporate matters, including legality, validity and enforceability of the transaction documents, no conflict of law, and non-contravention of charter documents and certain material agreements.

 

13.

Opinion of GT, addressed to Administrative Agent and Funding Agents, regarding certain UCC matters.

 

14.

Opinion of GT, addressed to Administrative Agent and Funding Agents, regarding true sale matters.

 

15.

Opinion of GT, addressed to Administrative Agent and Funding Agents, regarding substantive consolidation matters.

 

16.

Opinion of GT, addressed to Administrative Agent and Funding Agents, regarding Volcker Rule and Investment Company Act matters.

 

17.

Good Standing Certificates (Delaware SOS)

 

  1.

Finco

 

  2.

T-Mobile Funding

 

  3.

TMUS

 

  4.

TMUSA

 

18.

UCC Search Report (Delaware) of UCC Financing Statements and Tax Liens Filed against Finco

 

19.

UCC Search Report (Delaware) of UCC Financing Statements and Tax Liens Filed against T-Mobile Funding

 

Annex A-6


SCHEDULE V

DESIGNATED EMAIL ADDRESSES


Annex A

Aggregate Advance Amount Calculations

 

Annex A-8


Annex B

Agreed-Upon Procedures

Scope of Services:

 

   

Review whether a selected sample of Receivables consists of Eligible Receivables at the time of conveyance to the Administrative Agent (for the benefit of the Owners).

 

   

Review whether such selected sample of Receivables sold by the Transferor is stated as being assigned to the Administrative Agent (for the benefit of the Owners) in the Transferor’s books and records.

 

   

Review whether the Credit and Collections Policies are being complied with in accordance with the terms of the Agreement.

 

   

Determine if accounts are being properly aged in accordance with the terms and methodology (note any receivables that may be aged in a non-conforming manner).

 

   

Obtain a breakdown, by type, of dilutions and write-offs issued in a Collection Period and whether they are being applied in accordance with the Credit and Collection Policy.

 

   

Review application of Collections under the Agreement to determine if such Collections are being applied and remaining balances are being reflected in accordance with the Agreement.

 

   

Select a sample of Monthly Reports and re-perform calculations contained therein in accordance with this Agreement.

 

   

Review whether Excess Concentration limits are being applied in accordance to the Agreement.

 

   

Review calculation of financial covenants to determine if such covenants are being calculated in accordance with the Agreement.

 

   

Review calculation of Dilution Ratio, Default Ratio and Delinquency Ratio to determine if such ratios are being calculated in accordance with the Agreement.

 

   

Prior to the completion of the system modification described in Section 3.7(ii), validate that the Servicer’s policies are being enforced as described therein.

 

   

Review whether Jump Contracts and Change of Responsibility Receivables are being replenished (cash or replacement) in accordance with Section 2.15(a) and Section 2.15(d) of the Agreement, as applicable.

 

   

Review whether the Asset Base Deficiency test calculation is being properly completed in connection with reinvestments in Additional Receivables pursuant to Section 2.8(a)(i)(B).


   

In connection with any Outage Day and the related Outage Amount, review whether the Servicer’s estimates of Collections and the corresponding reconciliations of such estimates (when each such Outage Day is no longer continuing) are being properly calculated and reconciled.

 

   

Review whether EPS Receivables are being properly identified and calculated for purposes of the applicable limit in Section 2.22 and whether such limit has been exceeded.

Procedures:

 

   

Sample selection: The adherence to the criteria set forth in the definition of “Eligible Receivable” shall be verified by means of a generally accepted procedure, with an appropriate sample size of Transferred Assets using random number generator as a generally accepted non-statistical sampling method to select the sample of Receivables. Sample selection will also be used to verify the above procedures and calculations.

 

2


Annex C

T-MOBILE INFORMATION

DATA CONFIDENTIALITY PROVISIONS

I. CONFIDENTIALITY AND SECURITY. Notwithstanding anything to the contrary stated herein, the parties acknowledge and agree as follows:

Section 1. Confidentiality. The parties acknowledge and agree that the Administrative Agent, the Conduit Purchasers, the Committed Purchasers and the Funding Agents (collectively, the “Information Parties” and each an “Information Party”) may, in addition to the Monthly Report and other periodic reporting required under this Agreement, at the request of such Information Party (which shall be a written request if requested by Starbird or BNP Paribas), be given access to (i) T-Mobile Information and (ii) subject to the terms of this Agreement, other information with respect to the Receivables that such Information Party in good faith believes is reasonably necessary to evaluate and/or enforce its rights and remedies under this Agreement and the other Related Documents with respect to such Transferred Receivables (such other information, the “T-Mobile Covered Information”). The Servicer shall mark such medium as containing T-Mobile Covered Information. So long as any Information Party has T-Mobile Covered Information, such Information Party shall: (a) use at least the same degree of care to prevent unauthorized use and disclosure of such T-Mobile Covered Information as that party uses with respect to its own Confidential Information (but in no event less than a reasonable degree of care); and (b) use such T-Mobile Covered Information only in the performance of its rights and obligations under this Agreement. At such time when there are no obligations outstanding, at the request of Finco, each Information Party shall return, or at such Information Party’s option, destroy (and certify in writing such return or destruction) any and all T-Mobile Covered Information received by it pursuant to this Agreement, provided that, notwithstanding the foregoing, each Information Party may retain such copies of T-Mobile Covered Information as it is required to retain to comply with its internal compliance policies or in accordance with applicable law. Each Information Party shall hold any such retained T-Mobile Covered Information in accordance with the terms of this Agreement. T-Mobile Covered Information is Confidential Information of the T-Mobile Group under this Agreement; provided however that T-Mobile Covered Information shall remain confidential and proprietary even if disclosed by a third party or in breach of the terms of this Agreement. For purposes of this Annex, “T-Mobile Group” shall mean T-Mobile US, Inc., Finco, the Transferor, and each of the other Affiliates of T-Mobile US, Inc.

Section 2. Handling of T-Mobile Covered Information. Each Information Party: (a) may collect, store, access, use, process, maintain and disclose T-Mobile Covered Information only to fulfill its obligations and exercise its rights and remedies under the Agreement and for no other purpose; and (b) shall, without limiting any other obligations applicable to T-Mobile Covered Information hereunder, treat all T-Mobile Covered Information as Confidential Information of T-Mobile Group. For purposes of this Annex, the acts or omissions of each Information Party and any Person to whom it has disclosed T-Mobile Covered Information are such Information Party’s acts or omissions.


Section 3. Security Safeguards. Each Information Party is fully responsible for any authorized or unauthorized collection, storage, disclosure and use of, and access to, T-Mobile Covered Information received by it pursuant to this Agreement and shall protect the confidentiality thereof in accordance with its established policies and procedures reasonable and customary in the industry in which it conducts its business.

Section 4. Information Party Access. The T-Mobile Covered Information provided to the Information Parties may be made available through a secured Intralinks website. Each Information Party receiving T-Mobile Covered Information will be provided with authentication and login credentials by Finco or its affiliates to access the Intralinks website and securely obtain the T-Mobile Covered Information. In addition, Finco or its affiliates will provide each Information Party with an email notice monthly when new T-Mobile Covered Information has been posted to the Intralinks website and is available to be accessed by such Information Party.

Section 5. Information Security Requirements. An Information Party receiving T-Mobile Covered Information shall have an information security program in accordance with its established policies and procedures reasonable and customary in the industry in which it conducts its business.

Section 6. Contractors and Subcontractors. Each Information Party shall ensure that only approved contractors and subcontractors (including any subsidiary, parent, affiliate or partner) who have a need to know Subscriber Information (as defined in Section 10(a) below) may access it, and who are subject to appropriate confidentiality obligations. Each Information Party shall enforce obligations of such individuals with regard to Subscriber Information as such Information Party with the same effort it uses to enforce obligations of such individuals for its own information.

Section 7. Security Breaches.

(a) Each Information Party shall, promptly after confirmation thereof, notify Finco of any actual, probable or reasonably suspected breach of any safeguards or of any other actual, probable or reasonably suspected unauthorized access to, or acquisition, use, loss, destruction, compromise or disclosure of, any Subscriber Information maintained on such Information Party’s systems (each, a “Security Breach”). In any notification to Finco required under this Section 5, the Information Party shall designate a single individual employed by such Information Party who shall be reasonably available to Finco during regular business hours as a contact regarding such Information Party’s obligations under this Section.

(b) Each Information Party shall: (i) unless prohibited by applicable law, court order or similar legal process, provide reasonable assistance to Finco in investigating, remedying and taking any other reasonable action Finco deems necessary regarding any Security Breach and any dispute, inquiry or claim that concerns the Security Breach; and (ii) provide Finco with assurance reasonably satisfactory to it that such Security Breach or potential Security Breach will not recur.

 

2


Unless prohibited by an applicable law, court order or similar legal process, each Information Party shall (other than to a bank examiner or self-regulatory organization in each case upon their request therefor in the course of routine supervisory activities not directed specifically at Finco or the transactions contemplated hereunder) also notify Finco of any third-party legal process relating to any Security Breach, including, without limitation, any legal process initiated by any governmental entity (foreign or domestic).

Section 8. Supplier Security Assessment (“SSA”) Finco reserves the right to require each Information Party who requests any consumer Subscriber Information to complete T-Mobile Group’s SSA questionnaire once per year. Finco may request reasonable additional security controls or mitigations plans be implemented and maintained by such Information Party with respect to the T-Mobile Information based on results of an SSA.

Section 9. Access Limitations. Each Information Party shall ensure that no persons who have access to Subscriber Information provided or made accessible to such Information Party under this Agreement are listed on: (a) the Specially Designated Nationals and Blocked Persons list maintained by the U.S. Treasury, Office of Foreign Assets Control; (b) the Denied Persons or Denied Entities lists maintained by the U.S. Department of Commerce, Bureau of Industry and Security; (c) the Debarred Persons List maintained by the U.S. Department of State, Office of Defense Trade Controls; (d) any successors to the foregoing; or (e) any similar official public lists maintained by any agency of the U.S. government with which financial institutions operating in the United States are required to comply. Each Information Party will ensure that all Subscriber Information resides in the United States or Canada, unless approved in writing in advance by the Transferor.

Section 10. Additional Obligations. Under Section 6.6(h) of the Agreement, an Information Party may, at the request of such Information Party (which shall be a written request if requested by Starbird or BNP Paribas), be entitled to receive Subscriber Information, and any such Information Party agrees as follows:

 

  (a)

It shall not store T-Mobile subscriber information and subscriber billing records (collectively, “Subscriber Information”) outside of the United States or Canada without Finco’s prior written consent, which may be withheld for no reason, or any reason, in Finco’s sole and absolute discretion.

 

  (b)

It shall not disclose Subscriber Information to any foreign government or entity without first, (a) satisfying all applicable U.S. federal, state and local legal requirements, including, if required, receiving appropriate authorization by a domestic U.S. court, or receiving prior written authorization from the U.S. Department of Justice, (b) to the extent not prohibited by law, rule, regulation or court order applicable to such Information Party (i) notifying Finco of the request for such information within five (5) calendar days of its receipt and (ii) reasonably cooperating with Finco to object to and commence appropriate proceedings to protect the information;

 

3


Section 11. Term. The provisions of this Annex C will remain in effect in accordance with Section 9.8 of the Agreement.

Section 12. Responsibility for Subscriber Information. Prior to the transfer of any Subscriber Information to the Information Parties pursuant to and in accordance with the Agreement, Sections 6 through 10 shall not apply. If ownership of any Subscriber Information is so transferred to any Information Party, legal responsibility to maintain the privacy and security of such information shall rest entirely with such Information Party and Sections 5 through 10 above shall not apply with respect to such information.

 

4


Annex D

FORM OF INVOICE

T-Mobile Financial LLC

12920 SE 38th Street

Bellevue, WA 98006

addressed to

[•]

Reference: Servicing Fee pursuant to Section 6.9 of the Amended and Restated Receivables Purchase and Administration Agreement (“RPAA”) concluded on [•]

[Date of invoice]

Invoice number (specific per invoice) [•]

For our servicing services pursuant to the RPAA

in the period of [months, year] we charge

[determination of Servicing Fee pursuant to Section 6.9 of the RPAA]

Total Amount USD [•]

The payment shall be effected in accordance with Section 6.9(b) and Section 2.8 of the RPAA.

The services are subject to Value Added Tax payable by the recipient of services by way of reverse charge (Steuerschuldnerschaft des Leistungsempfängers) in Germany; thus, no VAT is shown on this invoice.

EX-10.25

EXHIBIT 10.25

NOTICE OF GRANT OF RESTRICTED STOCK UNIT AWARD

(TIME-VESTING, SECTION 16 OFFICER)

SPRINT CORPORATION

AMENDED AND RESTATED 2015 OMNIBUS INCENTIVE PLAN

FOR GOOD AND VALUABLE CONSIDERATION, T-Mobile US, Inc. (the “Company”) hereby grants this Restricted Stock Unit Award (the “Award”) of the number of Restricted Stock Units set forth in this Notice of Grant of Restricted Stock Unit Award (the “Notice”) to the Grantee designated in this Notice, pursuant to the provisions of the Sprint Corporation Amended and Restated 2015 Omnibus Incentive Plan, as amended (the “Plan”) and subject to certain restrictions as outlined below in this Notice and the additional provisions set forth in the attached Terms and Conditions of Restricted Stock Units Award (the “Terms”). Together, this Notice, the attached Terms and all Exhibits hereto constitute the “Agreement.” The terms and conditions of the Plan are incorporated by reference in their entirety into this Agreement. When used in this Agreement, the terms which are defined in the Plan shall have the meanings given to them in the Plan, as modified herein (if applicable).

Grantee: [__________]

Grant Date: [__________]

# of Restricted Stock Units: [________]

Vesting Schedule: Subject to the terms of the Plan and this Agreement, the Restricted Stock Units shall become earned and vested, and shares of Common Stock shall be issued in settlement of vested Restricted Stock Units, in accordance with the following schedule, in the event the Grantee does not have a Separation from Service prior to the applicable vesting date(s):

 

   

Vesting Date

   % Vesting     
  First anniversary of the Grant Date    33-1/3%   
  Second anniversary of the Grant Date    33-1/3%   
  Third anniversary of the Grant Date    33-1/3%   

Only a whole number of Restricted Stock Units will become vested as of any given vesting date. If the number of Restricted Stock Units determined as of a vesting date is a fractional number, the number vesting will be rounded down to the nearest whole number with any fractional portion carried forward. No Restricted Stock Units shall become earned and vested following Grantee’s Separation from Service, except as expressly provided in the Notice below, as applicable, or as otherwise provided pursuant to the terms of the Plan.

Impact of Separation from Service on Vesting: See Exhibit A


Acceleration of Vesting on or following a Change in Control: See Exhibit A

The Grantee must accept this Agreement electronically pursuant to the online acceptance procedure established by the Company within 90 days after the Agreement is presented to the Grantee for review. If the Grantee fails to accept the Award within such 90-day period, the Company may, in its sole discretion, rescind the Award in its entirety. By electronically accepting the Agreement, the Grantee agrees that this Award is granted under and governed by the terms and conditions of the Plan and this Agreement.


EXHIBIT A

Separation from Service and Change in Control

(a) Impact of Separation from Service; Change in Control. If the Grantee has a Separation from Service before any of the vesting date(s) specified under “Vesting Schedule” in the Notice, then any unearned Restricted Stock Units shall become earned and vested or be canceled depending on the reason for Separation from Service as follows.

(i) Death or Disability. If the Grantee has a Separation from Service due to the Grantee’s death or Disability, any unearned Restricted Stock Units shall become immediately earned and vested as of the date of such Separation from Service.

(ii) Workforce Reduction or Divestiture. If the Grantee has a Separation from Service as a result of a Workforce Reduction or Divestiture, then the unearned Restricted Stock Units otherwise scheduled to become earned and vested at the next scheduled vesting date specified under “Vesting Schedule” in the Notice shall become immediately earned and vested as of the date of such Separation from Service and any remaining unearned Restricted Stock Units shall be immediately canceled as of that date; provided, however, that the Grantee will not be eligible to receive any vesting of the Restricted Stock Units under this paragraph (a)(ii) unless the Grantee executes all documents required under the applicable Company severance program or otherwise, including without limitation any required release of claims, within the applicable time frames set forth in such documents or as prescribed by the Company. In the event the Grantee fails to execute all required documents in a timely fashion, if any portion of the Award has been earned or paid to the Grantee after the Separation from Service but before the Grantee’s failure to execute all required documents, the Grantee covenants and agrees that the Grantee will have no right, title or interest in such amount earned or paid and that the Grantee will cause such amount to be returned immediately to the Company upon notice.

(iii) Change in Control. Notwithstanding anything in this Agreement to the contrary but subject to the provisions of Section 13 of the Plan, if (A) a Change in Control occurs and (B) on or after the Change in Control and on or before the first anniversary of the Change in Control either (1) the Grantee has a Separation from Service by action of the Company or the Grantee’s employing Subsidiary for any reason other than Cause (excluding due to the Grantee’s death or Disability) or (2) the Grantee has a Separation from Service for Good Reason, then any unearned Restricted Stock Units shall become immediately earned and vested as of the date of such Separation from Service.

(iv) Any other Separation from Service. If the Grantee has a Separation from Service for any reason other than as specified in subparagraphs (i), (ii) or (iii) above, any Restricted Stock Units that were not already earned and vested pursuant to the schedule specified under “Vesting Schedule” in the Notice as of the date of the Separation from Service shall be immediately canceled as of the date of Separation from Service.

(b) Definitions. For purposes of this Agreement (and notwithstanding anything to the contrary in the Plan), the following terms shall have the following meanings:


Cause” shall be defined as that term is defined in the Grantee’s offer letter or other applicable employment agreement; or, if there is no such definition, “Cause” means any one or more of the following: (i) the Grantee’s gross neglect or willful material breach of the Grantee’s principal employment responsibilities or duties; (ii) a final judicial adjudication that the Grantee is guilty of any felony (other than a law, rule or regulation relating to a traffic violation or other similar offense that has no material adverse effect on the Company or any of its Subsidiaries); (iii) the Grantee’s breach of any non-competition or confidentiality covenant between the Grantee and the Company or any Subsidiary; (iv) fraudulent conduct as determined by a court of competent jurisdiction in the course of the Grantee’s employment with the Company or any of its Subsidiaries; or (v) the material breach by the Grantee of any other obligation which continues uncured for a period of 30 days after notice thereof by the Company or any of its Subsidiaries.

Change in Control” shall have the meaning set forth in the T-Mobile US, Inc. 2013 Omnibus Incentive Plan, as amended.

Disability” means total and permanent disability as defined in Section 22(e)(3) of the Code. Notwithstanding the foregoing, if the Award constitutes nonqualified deferred compensation within the meaning of Section 409A of the Code and provides for an accelerated payment in connection with the Grantee’s Disability, Disability shall have the same meaning as defined under Section 409A of the Code.

Divestiture” means a Separation from Service as the result of a divestiture or sale of a business unit as determined by the Grantee’s employer based on the personnel records of the Company and its Subsidiaries.

Good Reason” shall be defined as that term is defined in the Grantee’s offer letter or other applicable employment agreement; or, if there is no such definition, “Good Reason” means the occurrence of any of the following events without the Grantee’s consent, provided that the Grantee has complied with the Good Reason Process: (i) a material diminution in the Grantee’s responsibility, authority or duty; (ii) a material diminution in the Grantee’s base salary except for across-the-board salary reductions based on the Company and its Subsidiaries’ financial performance similarly affecting all or substantially all management employees of the Company and its Subsidiaries; or (iii) the relocation of the office at which the Grantee was principally employed immediately prior to a Change in Control to a location more than fifty (50) miles from the location of such office, or the Grantee being required to be based anywhere other than such office, except to the extent the Grantee was not previously assigned to a principal location and except for required travel on business to an extent substantially consistent with the Grantee’s business travel obligations at the time of the Change in Control.

Good Reason Process” means that (i) the Grantee reasonably determines in good faith that a Good Reason condition has occurred; (ii) the Grantee notifies the Company and its Subsidiaries in writing of the occurrence of the Good Reason condition within 60 days of such occurrence; (iii) the Grantee cooperates in good faith with the Company and its Subsidiaries’ efforts, for a period of not less than 30 days following such notice (the “Cure Period”), to remedy the condition; (iv) notwithstanding such efforts, the Good Reason condition continues to exist following the Cure Period; and (v) the Grantee has a Separation from Service within 60 days after the end of the Cure Period. If the Company or its Subsidiaries cures the Good Reason condition during the Cure Period, and the Grantee has a Separation from Service due to such condition (notwithstanding its cure), then the Grantee will not be deemed to have had a Separation from Service for Good Reason.


Subsidiary” means any “subsidiary corporation” of the Company within the meaning of Section 424(f) of the Code.

Workforce Reduction” means the Grantee’s Separation from Service as a result of a reduction in force, realignment or similar measure as determined by the Grantee’s employer and (i) the Grantee is officially notified in writing of such Separation from Service due to a workforce reduction and eligibility for the Company’s severance program under which the Grantee is covered, or (ii) if not covered by a Company severance program, the Grantee is notified in writing by an authorized officer of the Company or any Subsidiary that the Separation from Service is as a result of such action.


TERMS AND CONDITIONS OF RESTRICTED STOCK UNIT AWARD

The Restricted Stock Unit Award (the “Award”) granted by T-Mobile US, Inc. (the “Company”) to the Grantee specified in the Notice of Grant of Restricted Stock Unit Award (the “Notice”) to which these Terms and Conditions of Restricted Stock Unit Award (the “Terms”) are attached, is subject to the terms and conditions of the Plan, the Notice, and these Terms. The terms and conditions of the Plan are incorporated by reference in their entirety into these Terms. Together, the Notice, all Exhibits to the Notice and these Terms constitute the “Agreement.” A Prospectus describing the Plan has been delivered to the Grantee. The Plan itself is available upon request. When used in this Agreement, the terms which are defined in the Plan shall have the meanings given to them in the Plan, as modified herein (if applicable). For purposes of this Agreement, (i) any reference to the Company shall include a reference to any Affiliate and (ii) “Affiliate” means any company or other trade or business that “controls,” is “controlled by” or is “under common control” with the Company within the meaning of Rule 405 of Regulation C under the Securities Act of 1933 (as now in effect or as hereafter amended, the “Securities Act”) including, without limitation, any Subsidiary.

 

1.

Grant of Units.

(a) As of the Grant Date set forth in the Notice, the Company grants to the Grantee the number Restricted Stock Units (“Units”) set forth in the Notice. Each Unit represents the right to receive one share of Common Stock at a future date after the Unit has become earned and vested, subject to the terms and conditions of this Agreement.

(b) The Units covered by this Award shall become earned and vested in accordance with the schedule set forth in the Notice. Each earned and vested Unit shall be settled on the date(s) specified in the Notice by issuance of one share of Common Stock on or as soon as administratively practicable (but no more than 60 days) after the applicable vesting and/or settlement date specified in the Notice, subject to the requirements of (i) Section 4 (Withholding), Section 6 (Regulatory Restrictions on the Shares Issued Upon Settlement), and Section 7(m) (Recovery of Compensation) of this Agreement and (ii) any potential Six-Month Payment Delay in settlement for awards to certain Grantees to the extent determined by the Company to be necessary to comply with Section 409A of the Code as provided under Section 7 of the Plan.

(c) Units constitute an unfunded and unsecured obligation of the Company. The Grantee shall not have any rights of a stockholder of the Company with respect to the shares of Common Stock underlying the Units unless and until the Units become earned and vested and are settled by the issuance of shares of Common Stock. Upon issuance of shares of Common Stock in connection with the settlement of vested Units, the Grantee shall be the record owner of the shares of Common Stock unless and until such shares are sold or otherwise disposed of, and as record owner shall be entitled to all rights of a stockholder of the Company (including voting rights).

(d) The Grantee may designate a beneficiary to receive payment in connection with the Units in the event of the Grantee’s death in accordance with the Company’s beneficiary designation procedures, as in effect from time to time. If the Grantee does not designate a beneficiary, or if the Grantee’s designated beneficiary does not survive the Grantee, then the Grantee’s beneficiary will be the Grantee’s estate.


(e) The Units shall not entitle the Grantee to receive any dividend equivalents with respect to any cash dividend that is otherwise paid with respect to shares of the Common Stock.

 

2.

Restrictions. Subject to any exceptions set forth in this Agreement, until such time as the Units become earned and vested and are settled in shares of Common Stock in accordance with Section 1, the Units or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the Units or the rights relating thereto shall be wholly ineffective and, if any such attempt is made, the Units will be forfeited by the Grantee and all of the Grantee’s rights to such Units shall immediately terminate without any payment of consideration by the Company.

 

3.

Cancellation of Rights. If any portion of the Units fail to become earned and vested (for example, because the Grantee fails to satisfy the vesting conditions specified in the Notice prior to a Separation from Service), then such Units shall be immediately forfeited as of the date of such failure and all of the Grantee’s rights to such Units shall immediately terminate without any payment of consideration by the Company.

 

4.

Withholding.

(a) Regardless of any action the Company takes with respect to any or all income tax, payroll tax or other tax-related withholding (“Tax-Related Items”), the Grantee acknowledges that the ultimate liability for all Tax-Related Items owed by the Grantee is and remains the Grantee’s responsibility and that the Company (i) makes no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Award, including the grant or vesting of the Units or the subsequent sale of shares of Common Stock acquired upon vesting; and (ii) does not commit to structure the terms of the grant or any aspect of the Award to reduce or eliminate the Grantee’s liability for Tax-Related Items.

(b) Prior to vesting of the Units, the Grantee shall pay or make adequate arrangements satisfactory to the Company to satisfy all withholding obligations of the Company. In this regard, the Grantee authorizes the Company to withhold all applicable Tax-Related Items legally payable by the Grantee from the Grantee’s wages or other cash compensation paid to the Grantee by the Company or from proceeds of the sale of the shares of Common Stock. Alternatively, or in addition, to the extent permissible under applicable law, the Company may (i) sell or arrange for the sale of shares of Common Stock already owned by the Grantee to meet the withholding obligation for Tax-Related Items, and/or (ii) withhold in shares of Common Stock, provided that the Company only withholds the amount of shares of Common Stock necessary to satisfy the minimum withholding amount. Finally, the Grantee shall pay to the Company any amount of Tax-Related Items that the Company may be required to withhold as a result of the Grantee’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue and deliver shares of Common Stock in payment of any earned and vested Units if the Grantee fails to comply with the Grantee’s obligations in connection with the Tax-Related Items as described in this Section 4.


5.

Grantee Representations. The Grantee hereby represents to the Company that the Grantee has read and fully understands the provisions of this Agreement, the Prospectus and the Plan, and the Grantee’s decision to participate in the Plan is completely voluntary. Further, the Grantee acknowledges that the Grantee is relying solely on his or her own advisors with respect to the tax consequences of this Award.

 

6.

Regulatory Restrictions on the Shares Issued Upon Settlement. Notwithstanding the other provisions of this Agreement, the Compensation Committee shall have the sole discretion to impose such conditions, restrictions and limitations on the issuance of shares of Common Stock with respect to this Award unless and until the Compensation Committee determines that such issuance complies with (i) any applicable registration requirements under the Securities Act or the Compensation Committee has determined that an exemption therefrom is available, (ii) any applicable listing requirement of any stock exchange on which the Common Stock is listed, (iii) any applicable Company policy or administrative rules, and (iv) any other applicable provision of state, federal or foreign law, including foreign securities laws where applicable.

 

7.

Miscellaneous.

(a) Notices. Any notice which either party hereto may be required or permitted to give to the other shall be in writing and may be delivered personally, by intraoffice mail, by fax, by electronic mail or other electronic means, or via a postal service, postage prepaid, to such electronic mail or postal address and directed to such person as the Company may notify the Grantee from time to time; and to the Grantee at the Grantee’s electronic mail or postal address as shown on the records of the Company from time to time, or at such other electronic mail or postal address as the Grantee, by notice to the Company, may designate in writing from time to time.

(b) Waiver. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach.

(c) Entire Agreement. This Agreement and the Plan constitute the entire agreement between the parties with respect to the subject matter hereof. Any prior agreements, commitments or negotiations concerning the Award are superseded.

(d) Binding Effect; Successors. This Agreement shall inure to the benefit of and be binding upon the parties hereto and to the extent not prohibited herein, their respective heirs, successors, assigns and representatives. Nothing in this Agreement, express or implied, is intended to confer on any person other than the parties hereto and as provided above, their respective heirs, successors, assigns and representatives any rights, remedies, obligations or liabilities.

(e) Governing Law. This Agreement shall be governed by and construed in accordance with applicable Federal law and the laws of the State of Delaware,. except with respect to the provisions of sub-paragraphs 7(n) and 7(o) which shall be governed by and construed in accordance with the laws of the State of Washington for employees employed in the State of Washington.


(f) Arbitration. The Company and the Grantee shall make a good faith attempt to resolve any and all claims and disputes regarding the Award or the Agreement in accordance with any dispute resolution adopted by the Company before resorting to any other dispute resolution procedure. If the claim or dispute is not resolved in that manner and involves any rights or obligations under the Agreement, then the claim or dispute will be determined by arbitration in accordance with the then-current American Arbitration Association (“AAA”) national rules for the resolution of employment disputes by arbitration, except as modified herein. The arbitration will be conducted by a sole neutral arbitrator who has had both training and experience as an arbitrator of employee compensation matters. If the Company and the Grantee cannot agree on an arbitrator, then the arbitrator will be selected by the AAA applying the criteria in this provision. Reasonable discovery will be permitted and the arbitrator may decide any issue as to discovery. The arbitrator may decide any issue as to whether or as to the extent to which, any dispute is subject to the dispute resolution provisions of this Section 7(f). The arbitrator may award only relief at law contemplated under the Agreement and the Plan and the arbitrator may not award incidental, consequential or punitive damages, attorney’s fees or any form or equitable relief, to either party. The arbitrator must base the arbitration award on the provisions of this Section 7(f) and applicable law and must render the award in writing, including an explanation of the reasons for the award. Judgment upon the award may be entered by any court having jurisdiction of the matter, and the decision of the arbitrator will be final and binding. The statute of limitations applicable to the commencement of a lawsuit will apply to the commencement of an arbitration. The arbitrator’s fees will be paid in equal portions by the Company and the Grantee, unless the Company agrees to pay all such fees.

(g) Venue. Any arbitration, legal or equitable action or any proceeding arising directly, indirectly, or otherwise in connection with, out of, related to or from the Agreement, or any provision hereof, shall exclusively be filed and adjudicated in King County, Washington and no other venue.

(h) Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.

(i) Conflicts; Amendment. The provisions of the Plan are incorporated in this Agreement in their entirety. In the event of any conflict between the provisions of this Agreement and the Plan, the provisions of the Plan shall control. This Agreement may be amended at any time by the Compensation Committee, provided that no amendment may, without the consent of the Grantee, materially impair the Grantee’s rights with respect to the Award. The Compensation Committee shall have full authority and discretion, subject only to the terms of the Plan, to decide all matters relating to the administration or interpretation of the Plan, the Award, and the Agreement, and all such action by the Compensation Committee shall be final, conclusive, and binding upon the Company and the Grantee.

(j) No Right to Continued Employment. Nothing in this Agreement shall confer upon the Grantee any right to continue in the employ or service of the Company or affect the right of the Company to terminate the Grantee’s employment or service at any time.

(k) Further Assurances. The Grantee agrees, upon demand of the Company or the Compensation Committee, to do all acts and execute, deliver and perform all additional documents, instruments and agreements which may be reasonably required by the Company or the Compensation Committee, as the case may be, to implement the provisions and purposes of this Agreement and the Plan.


(l) Personal Data. By accepting the Award under this Agreement, the Grantee hereby consents to the Company’s use, dissemination and disclosure of any information pertaining to the Grantee that the Company determines to be necessary or desirable for the implementation, administration and management of the Plan.

(m) Recovery of Compensation. In accordance with Section 23(m) of the Plan, the Award is subject to the requirements of (i) Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (regarding recovery of erroneously awarded compensation) and any implementing rules and regulations thereunder, (ii) any policies adopted by the Company to implement such requirements, and (iii) any other compensation recovery policies as may be adopted from time to time by the Company, all to the extent determined by the Compensation Committee in its discretion to be applicable to the Grantee. Further, the Award is subject to Section 14 of the Plan.

(n) Restrictive Covenants. The Grantee has previously entered into a Restrictive Covenant and Confidentiality Agreement (or similarly titled document) (“Restrictive Covenant Agreement”). The vesting and receipt of benefits under this Award is specifically conditioned on the Grantee’s compliance with the Restrictive Covenant Agreement except for the Covenant Not to Compete (as defined therein) in the Restrictive Covenant Agreement. To the extent allowed by and consistent with applicable law and any applicable limitations period, if it is determined at any time that the Grantee has materially breached the Restrictive Covenant Agreement (not including the Covenant Not to Compete), the Company will be entitled to (i) cause any unvested portion of the Award to be immediately canceled without any payment of consideration by the Company and (ii) recover from the Grantee in its sole discretion some or all of the shares of Common Stock (or proceeds received by the Grantee from such shares of Common Stock) paid to the Grantee pursuant to this Agreement. The Grantee recognizes that if the Grantee materially breaches the Restrictive Covenant Agreement (not including the Covenant Not to Compete), the losses to the Company and/or its Subsidiaries may amount to the full value of any shares of Common Stock paid to the Grantee pursuant to this Agreement.

(o) Covenant Not to Compete. The Grantee agrees that, during the term of the Grantee’s employment and for a period of one year immediately following the termination of such employment, the Grantee shall not either directly or indirectly, with or without compensation: (a) engage in, provide, offer to provide, or assist anyone in providing, services to or for a business, entity or individual that is substantially the same as or similar to the Company’s Business (as defined in the Restrictive Covenant Agreement) or that competes with the Company’s Business, directly or indirectly, in the geographic areas where the Company provides services; or (b) compete with the Company, its Affiliates or its dealers within the geographic areas where such entities provide or are permitted to provide services. The Grantee understands that the noncompetition obligations in this paragraph shall not apply unless at the time this Agreement is executed, or at a later date, the Grantee’s annualized earnings meet or exceed the minimum amount required by the Revised Code of Washington 49.62. The Grantee agrees that the noncompetition obligation contained in this Agreement, if not enforceable at the time this Agreement is entered into, may nevertheless become enforceable in the future due to changes in the Grantee’s compensation.


(p) Severability. If any portion of this Agreement is held to be invalid or unenforceable, or excessively broad, the remaining covenants and restrictions or portions thereof shall remain in full force and effect to the fullest degree possible to achieve the purposes of this Agreement and to afford the Company the maximum protections allowed by law, and if the invalidity or unenforceability is due to the unreasonableness of time or geographical restrictions, such covenants and restrictions shall be effective for such period of time and for such area as may be determined to be reasonable by a court of competent jurisdiction.

EX-10.26

EXHIBIT 10.26

NOTICE OF GRANT OF RESTRICTED STOCK UNIT AWARD

(PERFORMANCE-VESTING, SECTION 16 OFFICER)

SPRINT CORPORATION

AMENDED AND RESTATED 2015 OMNIBUS INCENTIVE PLAN

FOR GOOD AND VALUABLE CONSIDERATION, T-Mobile US, Inc. (the “Company”) hereby grants this Restricted Stock Unit Award (the “Award”) of the number of Restricted Stock Units set forth in this Notice of Grant of Restricted Stock Unit Award (the “Notice”) to the Grantee designated in this Notice, pursuant to the provisions of the Sprint Corporation Amended and Restated 2015 Omnibus Incentive Plan, as amended (the “Plan”) and subject to certain restrictions as outlined below in this Notice and the additional provisions set forth in the attached Terms and Conditions of Restricted Stock Units Award (the “Terms”). Together, this Notice, the attached Terms and all Exhibits hereto constitute the “Agreement.” The terms and conditions of the Plan are incorporated by reference in their entirety into this Agreement. When used in this Agreement, the terms which are defined in the Plan shall have the meanings given to them in the Plan, as modified herein (if applicable).

Grantee: [__________]

Grant Date: [__________]

# of Restricted Stock Units (at target performance): [________]

Vesting Schedule: Subject to the terms of the Plan and this Agreement, the Restricted Stock Units shall become earned and vested, and shares of Common Stock shall be issued in settlement of vested Restricted Stock Units, in accordance with the following schedule, in the event the Grantee does not have a Separation from Service prior to the applicable vesting date(s):

(a) Performance-Vesting Conditions. The number of Restricted Stock Units that become earned and vested (if any) will be determined in accordance with the performance measures, targets and methodology set forth in Exhibit A.

(b) Time-Vesting Conditions. In addition to the performance-vesting conditions stated above, and except as expressly provided in the Notice below, as applicable, or as otherwise provided pursuant to the terms of the Plan, the Grantee must remain continuously employed with the Company through the following date(s) to become earned and vested in any Restricted Stock Units (after adjustment for performance):

 

Vesting Date

  

% Vesting

May 15, 2023

  

100%

No Restricted Stock Units shall become earned and vested following Grantee’s Separation from Service, except as expressly provided in the Notice below, as applicable, or as otherwise provided pursuant to the terms of the Plan.


Impact of Separation from Service on Vesting: See Exhibit B

Acceleration of Vesting on or following a Change in Control: See Exhibit B

The Grantee must accept this Agreement electronically pursuant to the online acceptance procedure established by the Company within 90 days after the Agreement is presented to the Grantee for review. If the Grantee fails to accept the Award within such 90-day period, the Company may, in its sole discretion, rescind the Award in its entirety. By electronically accepting the Agreement, the Grantee agrees that this Award is granted under and governed by the terms and conditions of the Plan and this Agreement.


EXHIBIT A

Performance-Based Vesting Conditions


EXHIBIT B

Separation from Service and Change in Control

(a) Impact of Separation from Service; Change in Control. If the Grantee has a Separation from Service before the vesting date specified under “Time-Vesting Conditions” in the Notice, then the Restricted Stock Units shall become earned and vested or be canceled depending on the reason for Separation from Service as follows.

(i) Death or Disability. If the Grantee has a Separation from Service due to the Grantee’s death or Disability, the Restricted Stock Units shall become immediately earned and vested at target as of the date of such Separation from Service.

(ii) Workforce Reduction or Divestiture. If the Grantee has a Separation from Service as a result of a Workforce Reduction or Divestiture, then (A) the number of Performance Adjusted Units shall be determined as soon as administratively practicable following May 15, 2023, (B) such Performance Adjusted Units shall be multiplied by the Pro Rata Fraction, (C) the resulting number of Restricted Stock Units shall become earned and vested and payable to the Grantee in 2023 after the end of the Performance Period, and (D) any remaining unearned Restricted Stock Units shall be immediately canceled effective as of May 15, 2023; provided, however, that the Grantee will not be eligible to receive any vesting of the Restricted Stock Units under this paragraph (a)(ii) unless the Grantee executes all documents required under the applicable Company severance program or otherwise, including without limitation, any required release of claims, within the applicable time frames set forth in such documents or as prescribed by the Company. In the event the Grantee fails to execute all required documents in a timely fashion, if any portion of the Award has been earned or paid to the Grantee after the Separation from Service but before the Grantee’s failure to execute all required documents, the Grantee covenants and agrees that the Grantee will have no right, title or interest in such amount earned or paid and that the Grantee will cause such amount to be returned immediately to the Company upon notice.

(iii) Change in Control. Notwithstanding anything in this Agreement to the contrary, but subject to the provisions of Section 13 of the Plan, if (A) a Change in Control occurs and (B) on or after the Change in Control and on or before the first anniversary of the Change in Control either (1) the Grantee has a Separation from Service by action of the Company or the Grantee’s employing Subsidiary for any reason other than Cause (excluding due to the Grantee’s death or Disability) or (2) the Grantee has a Separation from Service for Good Reason, then the Restricted Stock Units shall become immediately earned and vested as of the date of such Separation from Service at the greater of (y) target or (z) the actual level of performance under Exhibit A determined as if the Performance Period had ended as of the last trading day immediately preceding the Change in Control.

(iv) Any other Separation from Service. If the Grantee has a Separation from Service for any reason other than as specified in subparagraphs (a)(i), (ii) or (iii) above before the vesting date specified under “Time-Vesting Conditions” in the Notice, the Restricted Stock Units shall be immediately canceled as of the date of such Separation from Service.


(b) Impact of Continuation of Service After Change in Control. Notwithstanding any provision in this Agreement to the contrary, if (i) a Change in Control occurs prior to the end of any applicable Performance Period, (ii) this Award is assumed, converted or replaced by the resulting entity in the Change in Control and (iii) Grantee remains continuously employed with the Company through the end of the Performance Period, then the Restricted Stock Units earned with respect to each Performance Period that ends after the Change in Control shall not be less than the Restricted Stock Units with respect to such Performance Period determined assuming target performance.

(c) Definitions. For purposes of this Agreement (and notwithstanding anything to the contrary in the Plan), the following terms shall have the following meanings:

Cause” shall be defined as that term is defined in the Grantee’s offer letter or other applicable employment agreement; or, if there is no such definition, “Cause” means any one or more of the following: (i) the Grantee’s gross neglect or willful material breach of the Grantee’s principal employment responsibilities or duties; (ii) a final judicial adjudication that the Grantee is guilty of any felony (other than a law, rule or regulation relating to a traffic violation or other similar offense that has no material adverse effect on the Company or any of its Subsidiaries); (iii) the Grantee’s breach of any non-competition or confidentiality covenant between the Grantee and the Company or any Subsidiary; (iv) fraudulent conduct as determined by a court of competent jurisdiction in the course of the Grantee’s employment with the Company or any of its Subsidiaries; or (v) the material breach by the Grantee of any other obligation which continues uncured for a period of 30 days after notice thereof by the Company or any of its Subsidiaries.

Change in Control” shall have the meaning set forth in the T-Mobile US, Inc. 2013 Omnibus Incentive Plan, as amended.

Disability” means total and permanent disability as defined in Section 22(e)(3) of the Code. Notwithstanding the foregoing, if the Award constitutes nonqualified deferred compensation within the meaning of Section 409A of the Code and provides for an accelerated payment in connection with the Grantee’s Disability, Disability shall have the same meaning as defined under Section 409A of the Code.

Divestiture” means a Separation from Service as the result of a divestiture or sale of a business unit as determined by the Grantee’s employer based on the personnel records of the Company and its Subsidiaries.

Good Reason” shall be defined as that term is defined in the Grantee’s offer letter or other applicable employment agreement; or, if there is no such definition, “Good Reason” means the occurrence of any of the following events without the Grantee’s consent, provided that the Grantee has complied with the Good Reason Process: (i) a material diminution in the Grantee’s responsibility, authority or duty; (ii) a material diminution in the Grantee’s base salary except for across-the-board salary reductions based on the Company and its Subsidiaries’ financial performance similarly affecting all or substantially all management employees of the Company and its Subsidiaries; or (iii) the relocation of the office at which the Grantee was principally employed immediately prior to a Change in Control to a location more than fifty (50) miles from the location of such office, or the Grantee being required to be based anywhere other than such office, except to the extent the Grantee was not previously assigned to a principal location and except for required travel on business to an extent substantially consistent with the Grantee’s business travel obligations at the time of the Change in Control.


Good Reason Process” means that (i) the Grantee reasonably determines in good faith that a Good Reason condition has occurred; (ii) the Grantee notifies the Company and its Subsidiaries in writing of the occurrence of the Good Reason condition within 60 days of such occurrence; (iii) the Grantee cooperates in good faith with the Company and its Subsidiaries’ efforts, for a period of not less than 30 days following such notice (the “Cure Period”), to remedy the condition; (iv) notwithstanding such efforts, the Good Reason condition continues to exist following the Cure Period; and (v) the Grantee has a Separation from Service within 60 days after the end of the Cure Period. If the Company or its Subsidiaries cures the Good Reason condition during the Cure Period, and the Grantee has a Separation from Service due to such condition (notwithstanding its cure), then the Grantee will not be deemed to have had a Separation from Service for Good Reason.

Pro Rata Fraction” means a fraction, the numerator of which is the number of days from the Grant Date to the date of Separation from Service and the denominator of which is the number of days from the Grant Date through May 15, 2023.

Subsidiary” means any “subsidiary corporation” of the Company within the meaning of Section 424(f) of the Code.

Workforce Reduction” means the Grantee’s Separation from Service as a result of a reduction in force, realignment or similar measure as determined by the Grantee’s employer and (i) the Grantee is officially notified in writing of such Separation from Service due to a workforce reduction and eligibility for the Company’s severance program under which the Grantee is covered, or (ii) if not covered by a Company severance program, the Grantee is notified in writing by an authorized officer of the Company or any Subsidiary that the Separation from Service is as a result of such action.


TERMS AND CONDITIONS OF RESTRICTED STOCK UNIT AWARD

The Restricted Stock Unit Award (the “Award”) granted by T-Mobile US, Inc. (the “Company”) to the Grantee specified in the Notice of Grant of Restricted Stock Unit Award (the “Notice”) to which these Terms and Conditions of Restricted Stock Unit Award (the “Terms”) are attached, is subject to the terms and conditions of the Plan, the Notice, and these Terms. The terms and conditions of the Plan are incorporated by reference in their entirety into these Terms. Together, the Notice, all Exhibits to the Notice and these Terms constitute the “Agreement.” A Prospectus describing the Plan has been delivered to the Grantee. The Plan itself is available upon request. When used in this Agreement, the terms which are defined in the Plan shall have the meanings given to them in the Plan, as modified herein (if applicable). For purposes of this Agreement, (i) any reference to the Company shall include a reference to any Affiliate and (ii) “Affiliate” means any company or other trade or business that “controls,” is “controlled by” or is “under common control” with the Company within the meaning of Rule 405 of Regulation C under the Securities Act of 1933 (as now in effect or as hereafter amended, the “Securities Act”) including, without limitation, any Subsidiary.

 

1.

Grant of Units.

(a) As of the Grant Date set forth in the Notice, the Company grants to the Grantee the number Restricted Stock Units (“Units”) set forth in the Notice. Each Unit represents the right to receive one share of Common Stock at a future date after the Unit has become earned and vested, subject to the terms and conditions of this Agreement.

(b) The Units covered by this Award shall become earned and vested in accordance with the schedule set forth in the Notice. Each earned and vested Unit shall be settled on the date(s) specified in the Notice by issuance of one share of Common Stock on or as soon as administratively practicable (but no more than 60 days) after the applicable vesting and/or settlement date specified in the Notice, subject to the requirements of (i) Section 4 (Withholding), Section 6 (Regulatory Restrictions on the Shares Issued Upon Settlement), and Section 7(m) (Recovery of Compensation) of this Agreement and (ii) any potential Six-Month Payment Delay in settlement for awards to certain Grantees to the extent determined by the Company to be necessary to comply with Section 409A of the Code as provided under Section 7 of the Plan.

(c) Units constitute an unfunded and unsecured obligation of the Company. The Grantee shall not have any rights of a stockholder of the Company with respect to the shares of Common Stock underlying the Units unless and until the Units become earned and vested and are settled by the issuance of shares of Common Stock. Upon issuance of shares of Common Stock in connection with the settlement of vested Units, the Grantee shall be the record owner of the shares of Common Stock unless and until such shares are sold or otherwise disposed of, and as record owner shall be entitled to all rights of a stockholder of the Company (including voting rights).

(d) The Grantee may designate a beneficiary to receive payment in connection with the Units in the event of the Grantee’s death in accordance with the Company’s beneficiary designation procedures, as in effect from time to time. If the Grantee does not designate a beneficiary, or if the Grantee’s designated beneficiary does not survive the Grantee, then the Grantee’s beneficiary will be the Grantee’s estate.


(e) The Units shall not entitle the Grantee to receive any dividend equivalents with respect to any cash dividend that is otherwise paid with respect to shares of the Common Stock.

 

2.

Restrictions. Subject to any exceptions set forth in this Agreement, until such time as the Units become earned and vested and are settled in shares of Common Stock in accordance with Section 1, the Units or the rights relating thereto may not be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the Grantee. Any attempt to assign, alienate, pledge, attach, sell or otherwise transfer or encumber the Units or the rights relating thereto shall be wholly ineffective and, if any such attempt is made, the Units will be forfeited by the Grantee and all of the Grantee’s rights to such Units shall immediately terminate without any payment of consideration by the Company.

 

3.

Cancellation of Rights. If any portion of the Units fail to become earned and vested (for example, because the Grantee fails to satisfy the vesting conditions specified in the Notice prior to a Separation from Service), then such Units shall be immediately forfeited as of the date of such failure and all of the Grantee’s rights to such Units shall immediately terminate without any payment of consideration by the Company.

 

4.

Withholding.

(a) Regardless of any action the Company takes with respect to any or all income tax, payroll tax or other tax-related withholding (“Tax-Related Items”), the Grantee acknowledges that the ultimate liability for all Tax-Related Items owed by the Grantee is and remains the Grantee’s responsibility and that the Company (i) makes no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Award, including the grant or vesting of the Units or the subsequent sale of shares of Common Stock acquired upon vesting; and (ii) does not commit to structure the terms of the grant or any aspect of the Award to reduce or eliminate the Grantee’s liability for Tax-Related Items.

(b) Prior to vesting of the Units, the Grantee shall pay or make adequate arrangements satisfactory to the Company to satisfy all withholding obligations of the Company. In this regard, the Grantee authorizes the Company to withhold all applicable Tax-Related Items legally payable by the Grantee from the Grantee’s wages or other cash compensation paid to the Grantee by the Company or from proceeds of the sale of the shares of Common Stock. Alternatively, or in addition, to the extent permissible under applicable law, the Company may (i) sell or arrange for the sale of shares of Common Stock already owned by the Grantee to meet the withholding obligation for Tax-Related Items, and/or (ii) withhold in shares of Common Stock, provided that the Company only withholds the amount of shares of Common Stock necessary to satisfy the minimum withholding amount. Finally, the Grantee shall pay to the Company any amount of Tax-Related Items that the Company may be required to withhold as a result of the Grantee’s participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue and deliver shares of Common Stock in payment of any earned and vested Units if the Grantee fails to comply with the Grantee’s obligations in connection with the Tax-Related Items as described in this Section 4.


5.

Grantee Representations. The Grantee hereby represents to the Company that the Grantee has read and fully understands the provisions of this Agreement, the Prospectus and the Plan, and the Grantee’s decision to participate in the Plan is completely voluntary. Further, the Grantee acknowledges that the Grantee is relying solely on his or her own advisors with respect to the tax consequences of this Award.

 

6.

Regulatory Restrictions on the Shares Issued Upon Settlement. Notwithstanding the other provisions of this Agreement, the Compensation Committee shall have the sole discretion to impose such conditions, restrictions and limitations on the issuance of shares of Common Stock with respect to this Award unless and until the Compensation Committee determines that such issuance complies with (i) any applicable registration requirements under the Securities Act or the Compensation Committee has determined that an exemption therefrom is available, (ii) any applicable listing requirement of any stock exchange on which the Common Stock is listed, (iii) any applicable Company policy or administrative rules, and (iv) any other applicable provision of state, federal or foreign law, including foreign securities laws where applicable.

 

7.

Miscellaneous.

(a) Notices. Any notice which either party hereto may be required or permitted to give to the other shall be in writing and may be delivered personally, by intraoffice mail, by fax, by electronic mail or other electronic means, or via a postal service, postage prepaid, to such electronic mail or postal address and directed to such person as the Company may notify the Grantee from time to time; and to the Grantee at the Grantee’s electronic mail or postal address as shown on the records of the Company from time to time, or at such other electronic mail or postal address as the Grantee, by notice to the Company, may designate in writing from time to time.

(b) Waiver. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach.

(c) Entire Agreement. This Agreement and the Plan constitute the entire agreement between the parties with respect to the subject matter hereof. Any prior agreements, commitments or negotiations concerning the Award are superseded.

(d) Binding Effect; Successors. This Agreement shall inure to the benefit of and be binding upon the parties hereto and to the extent not prohibited herein, their respective heirs, successors, assigns and representatives. Nothing in this Agreement, express or implied, is intended to confer on any person other than the parties hereto and as provided above, their respective heirs, successors, assigns and representatives any rights, remedies, obligations or liabilities.

(e) Governing Law. This Agreement shall be governed by and construed in accordance with applicable Federal law and the laws of the State of Delaware, except with respect to the provisions of sub-paragraphs 7(n) and 7(o) which shall be governed by and construed in accordance with the laws of the State of Washington for employees employed in the State of Washington.


(f) Arbitration. The Company and the Grantee shall make a good faith attempt to resolve any and all claims and disputes regarding the Award or the Agreement in accordance with any dispute resolution adopted by the Company before resorting to any other dispute resolution procedure. If the claim or dispute is not resolved in that manner and involves any rights or obligations under the Agreement, then the claim or dispute will be determined by arbitration in accordance with the then-current American Arbitration Association (“AAA”) national rules for the resolution of employment disputes by arbitration, except as modified herein. The arbitration will be conducted by a sole neutral arbitrator who has had both training and experience as an arbitrator of employee compensation matters. If the Company and the Grantee cannot agree on an arbitrator, then the arbitrator will be selected by the AAA applying the criteria in this provision. Reasonable discovery will be permitted and the arbitrator may decide any issue as to discovery. The arbitrator may decide any issue as to whether or as to the extent to which, any dispute is subject to the dispute resolution provisions of this Section 7(f). The arbitrator may award only relief at law contemplated under the Agreement and the Plan and the arbitrator may not award incidental, consequential or punitive damages, attorney’s fees or any form or equitable relief, to either party. The arbitrator must base the arbitration award on the provisions of this Section 7(f) and applicable law and must render the award in writing, including an explanation of the reasons for the award. Judgment upon the award may be entered by any court having jurisdiction of the matter, and the decision of the arbitrator will be final and binding. The statute of limitations applicable to the commencement of a lawsuit will apply to the commencement of an arbitration. The arbitrator’s fees will be paid in equal portions by the Company and the Grantee, unless the Company agrees to pay all such fees.

(g) Venue. Any arbitration, legal or equitable action or any proceeding arising directly, indirectly, or otherwise in connection with, out of, related to or from the Agreement, or any provision hereof, shall exclusively be filed and adjudicated in King County, Washington and no other venue.

(h) Headings. The headings contained herein are for the sole purpose of convenience of reference, and shall not in any way limit or affect the meaning or interpretation of any of the terms or provisions of this Agreement.

(i) Conflicts; Amendment. The provisions of the Plan are incorporated in this Agreement in their entirety. In the event of any conflict between the provisions of this Agreement and the Plan, the provisions of the Plan shall control. This Agreement may be amended at any time by the Compensation Committee, provided that no amendment may, without the consent of the Grantee, materially impair the Grantee’s rights with respect to the Award. The Compensation Committee shall have full authority and discretion, subject only to the terms of the Plan, to decide all matters relating to the administration or interpretation of the Plan, the Award, and the Agreement, and all such action by the Compensation Committee shall be final, conclusive, and binding upon the Company and the Grantee.

(j) No Right to Continued Employment. Nothing in this Agreement shall confer upon the Grantee any right to continue in the employ or service of the Company or affect the right of the Company to terminate the Grantee’s employment or service at any time.

(k) Further Assurances. The Grantee agrees, upon demand of the Company or the Compensation Committee, to do all acts and execute, deliver and perform all additional documents, instruments and agreements which may be reasonably required by the Company or the Compensation Committee, as the case may be, to implement the provisions and purposes of this Agreement and the Plan.


(l) Personal Data. By accepting the Award under this Agreement, the Grantee hereby consents to the Company’s use, dissemination and disclosure of any information pertaining to the Grantee that the Company determines to be necessary or desirable for the implementation, administration and management of the Plan.

(m) Recovery of Compensation. In accordance with Section 23(m) of the Plan, the Award is subject to the requirements of (i) Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (regarding recovery of erroneously awarded compensation) and any implementing rules and regulations thereunder, (ii) any policies adopted by the Company to implement such requirements, and (iii) any other compensation recovery policies as may be adopted from time to time by the Company, all to the extent determined by the Compensation Committee in its discretion to be applicable to the Grantee. Further, the Award is subject to Section 14 of the Plan.

(n) Restrictive Covenants. The Grantee has previously entered into a Restrictive Covenant and Confidentiality Agreement (or similarly titled document) (“Restrictive Covenant Agreement”). The vesting and receipt of benefits under this Award is specifically conditioned on the Grantee’s compliance with the Restrictive Covenant Agreement except for the Covenant Not to Compete (as defined therein) in the Restrictive Covenant Agreement. To the extent allowed by and consistent with applicable law and any applicable limitations period, if it is determined at any time that the Grantee has materially breached the Restrictive Covenant Agreement (not including the Covenant Not to Compete), the Company will be entitled to (i) cause any unvested portion of the Award to be immediately canceled without any payment of consideration by the Company and (ii) recover from the Grantee in its sole discretion some or all of the shares of Common Stock (or proceeds received by the Grantee from such shares of Common Stock) paid to the Grantee pursuant to this Agreement. The Grantee recognizes that if the Grantee materially breaches the Restrictive Covenant Agreement (not including the Covenant Not to Compete), the losses to the Company and/or its Subsidiaries may amount to the full value of any shares of Common Stock paid to the Grantee pursuant to this Agreement.

(o) Covenant Not to Compete. The Grantee agrees that, during the term of the Grantee’s employment and for a period of one year immediately following the termination of such employment, the Grantee shall not either directly or indirectly, with or without compensation: (a) engage in, provide, offer to provide, or assist anyone in providing, services to or for a business, entity or individual that is substantially the same as or similar to the Company’s Business (as defined in the Restrictive Covenant Agreement) or that competes with the Company’s Business, directly or indirectly, in the geographic areas where the Company provides services; or (b) compete with the Company, its Affiliates or its dealers within the geographic areas where such entities provide or are permitted to provide services. The Grantee understands that the noncompetition obligations in this paragraph shall not apply unless at the time this Agreement is executed, or at a later date, the Grantee’s annualized earnings meet or exceed the minimum amount required by the Revised Code of Washington 49.62. The Grantee agrees that the noncompetition obligation contained in this Agreement, if not enforceable at the time this Agreement is entered into, may nevertheless become enforceable in the future due to changes in the Grantee’s compensation.


(p) Severability. If any portion of this Agreement is held to be invalid or unenforceable, or excessively broad, the remaining covenants and restrictions or portions thereof shall remain in full force and effect to the fullest degree possible to achieve the purposes of this Agreement and to afford the Company the maximum protections allowed by law, and if the invalidity or unenforceability is due to the unreasonableness of time or geographical restrictions, such covenants and restrictions shall be effective for such period of time and for such area as may be determined to be reasonable by a court of competent jurisdiction.

EX-10.29

EXHIBIT 10.29

CONSULTING AGREEMENT

THIS CONSULTING AGREEMENT (this “Agreement”), is entered into effective as of July 1, 2020 (the “Effective Date”), by and between T-Mobile US, Inc. (the “Company”) and J. Braxton Carter (“Consultant”).

WHEREAS, the Company wishes to secure the services of Consultant as a consultant of the Company upon the terms and subject to the conditions set forth herein, and Consultant wishes to render such services to the Company upon the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual agreements set forth herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:

1. Term. Unless this Agreement and the consulting relationship established hereby are earlier terminated as provided for herein, the term of this Agreement shall commence on the Effective Date and end on September 30, 2020 (the “Initial Consulting Period”); provided, however, that the Company shall have the right (but not the obligation) to extend the term of this Agreement by an additional three (3) months through December 31, 2020 (the “Additional Consulting Period”) by providing Consultant with written notice of such extension no later than September 1, 2020. The Initial Consulting Period and the Additional Consulting Period (if any) are collectively referred to herein as the “Consulting Period.”

2. Services. During the Consulting Period, Consultant shall provide such consulting services as may be reasonably requested by the Company (the “Services”). Consultant acknowledges and agrees that the Services shall be performed with the degree of skill, care and diligence expected of a professional experienced in providing the same or similar services, personally and using his reasonable best efforts at all times to promote the business and interests of the Company. Consultant shall provide the Services to the Company at times and locations mutually agreed to by Consultant and the Company (up to a maximum of ten (10) days per month; it being understood that any partial day of work shall count as a full day for purposes of the foregoing maximum). Consultant shall comply with all applicable policies and procedures of the Company (including, without limitation, any technology use, confidentiality, background check and work authorization policies and procedures).

3. Compensation.

a. Fees. During the Consulting Period, as full and complete payment for Consultant’s provision of the Services, (i) the Company shall pay Consultant a consulting fee (the “Consulting Fee”) equal to $210,000 per month (pro-rated for any partial month of service), and (ii) Consultant shall continue to remain eligible for the Company’s mobile service discount program as in effect from time to time. The Consulting Fee shall be paid monthly in arrears, no later than the fifteenth (15th) day of the calendar month following the month in which such Consulting Fee was earned.

b. Invoices. Consultant shall submit invoices and/or reports of Consultant’s progress on assigned duties and projects to the Company as and when requested by the Company, which invoices shall describe in detail the Services provided and the time expended by Consultant on such Services each month.

 

1


4. Termination. This Agreement and the consulting relationship established hereby shall terminate automatically upon the expiration of the Consulting Period. This Agreement and the consulting relationship established hereby may be terminated by the Company with or without Cause at any time and by Consultant for any reason or no reason, provided that Consultant must provide at least thirty (30) days’ prior written notice to the Company prior to any such termination for convenience. For purposes of this Agreement, “Cause” means the occurrence any one or more of the following: (i) Consultant’s gross neglect or willful material breach of Consultant’s Services hereunder, (ii) a final judicial adjudication that Consultant is guilty of any felony (other than a law, rule or regulation relating to a traffic violation or other similar offense that has no material adverse effect on the Company or any of its affiliates), (iii) Consultant’s breach of the Confidentiality Agreement or the Covenants (each as defined below), (iv) fraudulent conduct as determined by a court of competent jurisdiction in the course of Consultant’s Services hereunder or (v) the material breach by Consultant of any other obligation to the Company which continues uncured for a period of thirty (30) days after notice thereof by the Company and which is demonstrably injurious to the Company or affiliate thereof.

5. No Payments Upon Termination. Upon the termination of this Agreement and the consulting relationship established hereby for any reason, all compensation payable to Consultant under this Agreement (including payments of the Consulting Fee) shall cease as of the applicable date of such termination, and (a) the Company shall pay to Consultant, following such termination, a lump sum equal to any Consulting Fee earned or accrued and unpaid through the date of termination and (b) Consultant shall continue to remain eligible for the Company’s mobile service discount program as in effect from time to time. In addition, in the event of the termination of the consulting relationship established hereby by the Company without Cause, the Company shall pay to Consultant the aggregate amount of the Consulting Fee that would have been payable over the remainder of the Initial Consulting Period (or, if the date of termination occurs during the Additional Consulting Period, over the remainder of the Additional Consulting Period) had the consulting relationship not terminated, payable in a single lump sum as soon as administratively practicable following the date of termination. Except as expressly provided in this Section 5, Consultant shall not be entitled to any further payments in connection with or following the termination of this Agreement and the consulting relationship established hereby.

6. Acknowledgement. Consultant acknowledges and agrees that he is subject to and bound by certain restrictive covenants set forth in the Restrictive Covenant Agreement (as defined in that certain Amended and Restated Employment Agreement between the Company and Consultant, dated December 20, 2017) and that certain Letter Regarding Severance Benefits between the Company and Consultant, dated April 28, 2018 (collectively, the “Covenants”) and that the Covenants shall remain in full force and effect in accordance with their respective terms. Consultant further acknowledges and agrees that the entrance into this Agreement by the Company and the payment to Consultant of the Consulting Fee is subject to and conditioned upon Consultant’s continued compliance with the Covenants.

7. Confidentiality Agreement. Consultant acknowledges and agrees that, concurrently with the execution of this Agreement, Consultant is entering into an agreement with the Company containing certain confidential information and invention assignment provisions (the “Confidentiality Agreement”), and that Consultant shall comply with Consultant’s obligations thereunder.

 

2


8. Independent Contractor. The Company and Consultant expressly agree that Consultant is solely an independent contractor and neither Consultant nor any principal, employee or contractor of Consultant shall be construed to be an employee of the Company in any matter under any circumstances or for any purposes whatsoever. Nothing in this Agreement shall establish an agency, partnership, joint venture or employee relationship between the Company and Consultant, and Consultant shall not represent himself as an employee or officer of the Company. The Company and Consultant agree and acknowledge that neither party hereto renders legal, tax or accounting advice to the other party. Without limiting the generality of the foregoing, (i) the Company shall not pay, on the account of Consultant or any principal, employee or contractor of Consultant, any unemployment tax or other taxes required under the law to be paid with respect to employees and shall not withhold any monies from the fees payable pursuant to this Agreement for income or employment tax purposes, and (ii) the Company shall not provide Consultant or any principal, employee or contractor of Consultant with, and no such individual shall be eligible to receive from the Company under any Company plan, any benefits, including without limitation, any pension, health, welfare, retirement, workers’ compensation or other insurance benefits. Consultant shall be solely responsible for all taxes arising in connection with any fees or other compensation paid to Consultant under this Agreement, including without limitation any and all federal, state, local and foreign income and employment taxes.

9. Representations.

a. No Violation of Other Agreements. Consultant hereby represents and warrants to the Company that (i) Consultant is entering into this Agreement voluntarily and that the entrance into this Agreement and performance of Consultant’s obligations hereunder will not violate or conflict with the terms of any agreement between Consultant and any other person, firm, organization or other entity person (including, without limitation, any non-competition or non-solicitation restriction in any such agreement), and (ii) Consultant is not under any contractual or other restriction or obligation that is inconsistent with the execution of this Agreement, the performance of the Services hereunder, or the other rights of the Company hereunder.

b. Proprietary Information. Consultant hereby represents that (i) Consultant’s performance of Consultant’s duties under this Agreement will not require Consultant to, and Consultant shall not, rely on in the performance of the Services or disclose to the Company or any other person or entity or induce the Company in any way to use or rely on any trade secret or other confidential or proprietary information or material belonging to any other party; (ii) neither the services that Consultant provides nor the information or materials that Consultant develops for or discloses to the Company, shall be based in any way upon confidential and/or proprietary information derived from any source other than the Company; and (iii) Consultant will not disclose to the Company, or induce the Company to use or disclose, any confidential and/or proprietary information or material belonging to others.

c. Compliance with Laws. Consultant hereby represents that Consultant has complied with all federal, state and local laws regarding business permits, licenses and similar authorizations that may be required to carry out the Services to be performed under this Agreement.

10. Indemnification. If the Company or its officers, directors, employees or agents incur any liability or expense as a result of any claim that any of the above representations and warranties are not true or have been breached or that arise from Consultant’s performance of the Services, Consultant shall indemnify the Company, its officers, directors, employees and agents and hold each of them harmless against all such liability or expense, including reasonable attorney’s fees.

 

3


11. Limitation of Liability. To the maximum extent permitted by applicable law, in no event shall the Company be liable to Consultant for any lost profits, lost business or consequential, incidental, special or indirect damages of any kind, whether arising in contract, tort or otherwise, and regardless of whether the Company has been notified of the possibility of such damages. To the maximum extent permitted by law, the Company’s maximum aggregate liability for any damages claim relating to this Agreement shall not exceed the amounts paid under this Agreement by the Company to Consultant preceding such claim. Each party hereto acknowledges that the foregoing limitations of liability are an essential term of this Agreement between the parties and that in their absence the economic terms of this Agreement would be substantially different.

12. Dispute Resolution. Except for any claims arising out of, or relating to, the Covenants, any controversy, claim or dispute arising out of or relating to this Agreement or Consultant’s consulting relationship with the Company or termination thereof, either during the Consulting Period or afterward, shall be resolved exclusively by arbitration in King County, Washington, conducted in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association (the “AAA”), with one arbitrator designated in accordance with those rules. The parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity; provided, however, that nothing in this paragraph shall be construed as precluding either party from bringing an action for injunctive relief or other equitable relief. In any such dispute, the prevailing party shall be entitled to its or his attorneys’ fees and costs, in addition to any other relief that may be awarded.

13. Notices. For the purposes of this Agreement, notices, demands and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered either personally, by reputable overnight courier or by United States certified or registered mail, return receipt requested, postage prepaid, addressed to the addresses set forth on the signature page hereto or to such other address as any party may have furnished to the other in writing in accordance with this Agreement.

14. Miscellaneous.

a. No Assignment. This Agreement and the rights and duties hereunder are personal and may not be assigned, delegated, transferred or pledged by either party without the other party’s prior written consent. Consultant acknowledges and agrees that the Services hereunder shall be performed solely by Consultant, and that Consultant may not assign, transfer, delegate or sub-contract their duties hereunder to any other person without the prior written consent of the Company.

b. Binding Effect; No Authority to Bind the Company. This Agreement shall inure to the benefit of and be binding upon the parties hereto and each of their respective successors and assigns. Consultant shall not have the authority to, and Consultant shall not (i) enter into any contract or agreement on behalf of the Company or otherwise bind or commit the Company or (ii) incur any expense or liability on behalf of the Company.

c. Applicable Law. This Agreement and any dispute arising under or relating to any provision of this Agreement shall be governed by, and construed in accordance with and subject to, the laws of the State of Washington without giving effect to any conflict of laws principles.

d. Amendment; Waiver. This Agreement may be amended, and the terms and conditions hereof may be waived, only in a writing signed by the parties hereto. No failure to exercise or delay in exercising any right, remedy, power or privilege hereunder shall operate as a waiver thereof or preclude any other or further exercise of any other right, remedy power or privilege hereunder or by law.

 

4


e. Construction; Counterparts. This Agreement shall be deemed drafted equally by all parties and its terms shall be construed fairly as to the parties hereto and not in favor or against either party. The headings in this Agreement are for convenience of reference only and shall not in any way affect the meaning or interpretation of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

f. Entire Agreement. This Agreement, together with the Covenants and the Confidentiality Agreement, constitutes the entire understanding among the parties hereto concerning the subject matter hereof and supersedes any prior understandings and agreements, whether written or oral, with respect thereto. All previous and contemporaneous discussions, promises, representations and understandings between Consultant and the Company related to the terms and conditions of this Agreement, if any, have been merged into this document.

15. Acknowledgement. Consultant hereby acknowledges (i) that Consultant has consulted with or has had the opportunity to consult with independent counsel of Consultant’s own choice concerning this Agreement, and has been advised to do so by the Company, and (ii) that Consultant has read and understands this Agreement, is fully aware of its legal effect, and has entered into it freely based on Consultant’s own judgment.

[Signature page follows]

 

5


IN WITNESS WHEREOF, the parties hereto have executed this Consulting Agreement effective as of the date first written above.

 

T-MOBILE US, INC.

/s/ Derek Potter

By:   Derek Potter
Its:   SVP, Total Rewards & Employee Operations
Address:   12920 SE 38th Street
  Bellevue, WA 98006-1350
CONSULTANT  
 

_/s/ J. Braxton Carter

By:   J. Braxton Carter
Address:  

 

 

 

 

6

EX-10.30

EXHIBIT 10.30

DIRECTOR COMPENSATION PROGRAM

T-Mobile US, Inc.

Effective as of May 1, 20131

The terms of the Director Compensation Program (the “Program”) for Non-Employee Directors of T-Mobile US, Inc. (the “Company”) are set forth herein.

For purposes of the Program, a “Non-Employee Director” is any director of the Company who is not (i) an employee of the Company or any of its subsidiaries or (ii) an officer or employee of Deutsche Telekom AG or any of its subsidiaries.

 

1.

Eligibility

Each Non-Employee Director of the Company elected or appointed to the Company’s Board of Directors (the “Board”) shall be eligible to receive the compensation set forth in the Program.

 

2.

Non-Employee Director Compensation

Subject to the terms and conditions set forth herein and in the Plan, Non-Employee Directors shall receive the following compensation:

 

  a.

Cash Compensation

Non-Employee Directors shall receive the following cash compensation, as applicable, to be paid in cash in equal quarterly installments after the end of the quarter in which earned:

 

Annual Retainer for Board Service

   $ 135,000  

Additional Retainer for Lead Independent Director

   $ 55,000  

Audit Committee Chair

   $ 60,000  

Compensation Committee Chair

   $ 25,000  

Nominating and Corporate Governance Committee Chair

   $ 20,000  

Additional Retainer for Audit Committee Members (including AC Chair)

   $ 15,000  

National Security Director Retainer

   $ 75,000  

Any person who becomes a Non-Employee Director and/or committee chair at any time of the year other than the date of the Annual Meeting of Stockholders shall receive a pro rata portion of cash compensation set forth above, as applicable, based on the number of days remaining in the one-year period following the date of the previous Annual Meeting of Stockholders.

 

1

Amended June 4, 2014 and further amended on June 1, 2015, June 16, 2016, June 13, 2017, June 13, 2019, and June 4, 2020.


Non-Employee Directors will receive additional compensation of (i) $3,000 per Board meeting and (ii) $2,000 per Committee meeting.

 

  b.

Reimbursement of Expenses

The Company shall pay on behalf of, or reimburse, Non-Employee Directors for all reasonable costs and expenses incurred in attending meetings of the Board, Board committees, and the Company’s stockholders and in fulfilling their other responsibilities as directors of the Company. In addition, the Company shall pay on behalf of, or reimburse, Non-Employee Directors for all reasonable costs and expenses, including an appropriate tax gross up, for spousal or partner travel to one Board meeting per year (or as requested by the Company).

 

  c.

Restricted Stock Unit Grants

Immediately after each Annual Meeting of Stockholders beginning with the 2013 Annual Meeting of Stockholders, each Non-Employee Director shall automatically be granted restricted stock units of the Company (“RSUs”) with a value of $240,000 (based on the closing price of the Company’s common stock on the NASDAQ Global Select Market of The NASDAQ Stock Market LLC on the grant date), with any fractional share rounded to the nearest whole share; provided, that any person who becomes a Non-Employee Director at any time of the year other than the date of the Annual Meeting of Stockholders shall automatically be granted RSUs equal to the pro rata portion of $240,000 based on the number of days remaining in the one-year period following the date of the most recent previous Annual Meeting of Stockholders, such grant to be effective on the date he or she becomes a Non-Employee Director and based on the closing price of the Company’s common stock on the NASDAQ Global Select Market of The NASDAQ Stock Market LLC on the grant date, with any fractional share rounded to the nearest whole share.

The RSUs shall be fully vested as of the one-year anniversary of the date on which the RSUs were granted, contingent upon the Non-Employee Director’s continuous service on the Board during such period; provided, however, that for a person who becomes a Non-Employee Director at any time other than the date of the Annual Meeting of Stockholders, the vesting date shall be the one-year anniversary of the grant date for awards made in connection with the most recent previous Annual Meeting of Stockholders. In the event of a Non-Employee Director’s resignation or removal prior to the vesting of the RSUs, such RSUs shall automatically be forfeited to the Company; provided, however, that if a Non-Employee Director serves through the date of an Annual Meeting of Stockholders but does not stand for re-election at that meeting, any RSU award made for the prior year that has not yet vested as of such meeting shall continue to vest per schedule. In the event of a Non-Employee Director’s death, the RSUs shall immediately vest.

Upon a Change in Control of the Company (as defined in the Company’s Omnibus Incentive Plan), the RSUs shall immediately vest upon the date of such Change in Control.

RSUs shall be granted pursuant to the Company’s Omnibus Incentive Plan (the “Plan”) and shall be subject to the terms and conditions of the Plan and the applicable restricted stock unit agreement in effect on the grant date. Capitalized terms used but not defined herein shall have the meanings given to them in the Plan. The above terms supplement, and do not alter or change, the provisions of the Plan. In the event of any inconsistency between the terms contained herein and in the Plan, the Plan shall govern.

 

3.

Amendment

The Board may amend the provisions of the Program in such respects as it deems advisable. Any such amendment shall not, without the consent of the Non-Employee Director, impair or diminish any rights of the Non-Employee Director under the Program.

EX-22.1

Exhibit 22.1

Subsidiary Guarantors and Issuers of Guaranteed Securities and

Affiliates Whose Securities Collateralize Securities of the Registrant

Guaranteed Securities

The following securities (collectively, the “T-Mobile USA Senior Notes”) issued by T-Mobile USA, Inc., a Delaware corporation and wholly-owned subsidiary of T-Mobile US, Inc. (the “Company”), were outstanding as of June 30, 2020, including those that may no longer be subject to reporting as provided by Regulation S-X Rule 13-01:

 

Description of Notes

4.000% senior notes due 2022

4.000% senior notes due 2022-1 held by affiliate

6.000% senior notes due 2023

6.000% senior notes due 2024

6.500% senior notes due 2024

5.125% senior notes due 2025

5.125% senior notes due 2025-1 held by affiliate

6.375% senior notes due 2025

4.500% senior notes due 2026

4.500% senior notes due 2026-1 held by affiliate

6.500% senior notes due 2026

5.375% senior notes due 2027

5.375% senior notes due 2027-1 held by affiliate

4.750% senior notes due 2028

4.750% senior notes due 2028-1 held by affiliate

The following securities (collectively, the “T-Mobile USA Senior Secured Notes”) issued by T-Mobile USA, Inc., a Delaware corporation and wholly-owned subsidiary of the Company, were outstanding as of June 30, 2020, including those that are not subject to reporting as provided by Regulation S-X Rule 13-01:

 

Description of Notes

3.500% senior secured notes due 2025

1.500% senior secured notes due 2026

3.750% senior secured notes due 2027

2.050% senior secured notes due 2028

3.875% senior secured notes due 2030

2.550% senior secured notes due 2031

4.375% senior secured notes due 2040

4.500% senior secured notes due 2050


The following securities (collectively, the “Sprint Senior Notes”) issued by Sprint Corporation, a Delaware corporation and wholly-owned subsidiary of the Company, were outstanding as of June 30, 2020, including those that may no longer be subject to reporting as provided by Regulation S-X Rule 13-01:

 

Description of Notes

7.250% senior notes due 2021

7.875% senior notes due 2023

7.125% senior notes due 2024

7.625% senior notes due 2025

7.625% senior notes due 2026

The following securities (collectively, the “Sprint Communications Senior Notes”) issued by Sprint Communications, Inc., a Kansas corporation and wholly-owned subsidiary of the Company, were outstanding as of June 30, 2020, including those that may no longer be subject to reporting as provided by Regulation S-X Rule 13-01:

 

Description of Notes

7.000% senior notes due 2020

11.500% senior notes due 2021

6.000% senior notes due 2022

The following securities (collectively, the “Sprint Capital Corporation Senior Notes”) issued by Sprint Capital Corporation, a Delaware corporation and wholly-owned subsidiary of the Company, were outstanding as of June 30, 2020, including those that may no longer be subject to reporting as provided by Regulation S-X Rule 13-01:

 

Description of Notes

6.875% senior notes due 2028

8.750% senior notes due 2032

The following securities (collectively, the “Sprint Spectrum Notes”) issued by Sprint Spectrum Co LLC (a Delaware limited liability company), Sprint Spectrum Co II LLC (a Delaware limited liability company), Sprint

Spectrum Co III LLC (a Delaware limited liability company), each a wholly-owned subsidiary of the Company, were outstanding as of June 30, 2020, including those that may no longer be subject to reporting as provided by Regulation S-X Rule 13-01:

 

Description of Notes

3.360% Series 2016-1 A-1 Notes due 2021

4.738% Series 2018-1 A-1 Notes due 2025

5.152% Series 2018-1 A-2 Notes due 2028


Obligors

As of June 30, 2020, the obligors under the T-Mobile USA Senior Notes and the T-Mobile USA Senior Secured Notes consisted of the Company, as a guarantor, and its subsidiaries listed in the following table.

 

Name of Subsidiary    Jurisdiction of
Organization
   Obligor Type

Alda Wireless Holdings, LLC

  

Delaware

  

Guarantor

American Telecasting Development, LLC

  

Delaware

  

Guarantor

American Telecasting of Anchorage, LLC

  

Delaware

  

Guarantor

American Telecasting of Columbus, LLC

  

Delaware

  

Guarantor

American Telecasting of Denver, LLC

  

Delaware

  

Guarantor

American Telecasting of Fort Myers, LLC

  

Delaware

  

Guarantor

American Telecasting of Ft. Collins, LLC

  

Delaware

  

Guarantor

American Telecasting of Green Bay, LLC

  

Delaware

  

Guarantor

American Telecasting of Lansing, LLC

  

Delaware

  

Guarantor

American Telecasting of Lincoln, LLC

  

Delaware

  

Guarantor

American Telecasting of Little Rock, LLC

  

Delaware

  

Guarantor

American Telecasting of Louisville, LLC

  

Delaware

  

Guarantor

American Telecasting of Medford, LLC

  

Delaware

  

Guarantor

American Telecasting of Michiana, LLC

  

Delaware

  

Guarantor

American Telecasting of Monterey, LLC

  

Delaware

  

Guarantor

American Telecasting of Redding, LLC

  

Delaware

  

Guarantor

American Telecasting of Santa Barbara, LLC

  

Delaware

  

Guarantor

American Telecasting of Seattle, LLC

  

Delaware

  

Guarantor

American Telecasting of Sheridan, LLC

  

Delaware

  

Guarantor

American Telecasting of Yuba City, LLC

  

Delaware

  

Guarantor

APC Realty and Equipment Company, LLC

  

Delaware

  

Guarantor

Assurance Wireless of South Carolina, LLC

  

Delaware

  

Guarantor

Assurance Wireless USA, L.P.

  

Delaware

  

Guarantor

ATI Sub, LLC

  

Delaware

  

Guarantor

Boost Worldwide, LLC

  

Delaware

  

Guarantor

Broadcast Cable, LLC

  

Delaware

  

Guarantor

Clear Wireless LLC

  

Nevada

  

Guarantor

Clearwire Communications LLC

  

Delaware

  

Guarantor

Clearwire Hawaii Partners Spectrum, LLC

  

Nevada

  

Guarantor

Clearwire IP Holdings LLC

  

New York

  

Guarantor

Clearwire Legacy LLC

  

Delaware

  

Guarantor

Clearwire Spectrum Holdings II LLC

  

Nevada

  

Guarantor

Clearwire Spectrum Holdings III LLC

  

Nevada

  

Guarantor

Clearwire Spectrum Holdings LLC

  

Nevada

  

Guarantor

Clearwire XOHM LLC

  

Delaware

  

Guarantor

Fixed Wireless Holdings, LLC

  

Delaware

  

Guarantor

Fresno MMDS Associates, LLC

  

Delaware

  

Guarantor

IBSV LLC

  

Delaware

  

Guarantor


Independent Wireless One Leased Realty Corporation

  

Delaware

  

Guarantor

Kennewick Licensing, LLC

  

Delaware

  

Guarantor

Layer3 TV, Inc.

  

Delaware

  

Guarantor

L3TV Chicagoland Cable System, LLC

  

Delaware

  

Guarantor

L3TV Colorado Cable System, LLC

  

Delaware

  

Guarantor

L3TV Dallas Cable System, LLC

  

Delaware

  

Guarantor

L3TV DC Cable System, LLC

  

Delaware

  

Guarantor

L3TV Detroit Cable System, LLC

  

Delaware

  

Guarantor

L3TV Los Angeles Cable System, LLC

  

Delaware

  

Guarantor

L3TV Minneapolis Cable System, LLC

  

Delaware

  

Guarantor

L3TV New York Cable System, LLC

  

Delaware

  

Guarantor

L3TV Philadelphia Cable System, LLC

  

Delaware

  

Guarantor

L3TV San Francisco Cable System, LLC

  

Delaware

  

Guarantor

L3TV Seattle Cable System, LLC

  

Delaware

  

Guarantor

MetroPCS California, LLC

  

Delaware

  

Guarantor

MetroPCS Florida, LLC

  

Delaware

  

Guarantor

MetroPCS Georgia, LLC

  

Delaware

  

Guarantor

MetroPCS Massachusetts, LLC

  

Delaware

  

Guarantor

MetroPCS Michigan, LLC

  

Delaware

  

Guarantor

MetroPCS Networks California, LLC

  

Delaware

  

Guarantor

MetroPCS Networks Florida, LLC

  

Delaware

  

Guarantor

MetroPCS Nevada, LLC

  

Delaware

  

Guarantor

MetroPCS New York, LLC

  

Delaware

  

Guarantor

MetroPCS Pennsylvania, LLC

  

Delaware

  

Guarantor

MetroPCS Texas, LLC

  

Delaware

  

Guarantor

MinorCo, LLC

  

Delaware

  

Guarantor

Nextel Communications of the Mid-Atlantic, Inc.

  

Delaware

  

Guarantor

Nextel of New York, Inc.

  

Delaware

  

Guarantor

Nextel Retail Stores, LLC

  

Delaware

  

Guarantor

Nextel South Corp.

  

Georgia

  

Guarantor

Nextel Systems, LLC

  

Delaware

  

Guarantor

Nextel West Corp.

  

Delaware

  

Guarantor

NSAC, LLC

  

Delaware

  

Guarantor

PCTV Gold II, LLC

  

Delaware

  

Guarantor

PCTV Sub, LLC

  

Delaware

  

Guarantor

People’s Choice TV of Houston, LLC

  

Delaware

  

Guarantor

People’s Choice TV of St. Louis, LLC

  

Delaware

  

Guarantor

PRWireless PR, LLC

  

Delaware

  

Guarantor

PushSpring, Inc.

  

Delaware

  

Guarantor

SFE 1, LLC

  

Delaware

  

Guarantor

SFE 2, LLC

  

Delaware

  

Guarantor

SIHI New Zealand Holdco, Inc.

  

Kansas

  

Guarantor

SN Holdings (BR I) LLC

  

Delaware

  

Guarantor

SpeedChoice of Detroit, LLC

  

Delaware

  

Guarantor

SpeedChoice of Phoenix, LLC

  

Delaware

  

Guarantor


Sprint (Bay Area), LLC

  

Delaware

  

Guarantor

Sprint Capital Corporation

  

Delaware

  

Guarantor*

Sprint Communications, Inc.

  

Kansas

  

Guarantor*

Sprint Communications Company L.P.

  

Delaware

  

Guarantor

Sprint Communications Company of New Hampshire, Inc.

  

New Hampshire

  

Guarantor

Sprint Communications Company of Virginia, Inc.

  

Virginia

  

Guarantor

Sprint Connect LLC

  

Delaware

  

Guarantor

Sprint Corporation

  

Delaware

  

Guarantor*

Sprint Corporation

  

Kansas

  

Guarantor

Sprint Corporation

  

Missouri

  

Guarantor

Sprint eBusiness, Inc.

  

Kansas

  

Guarantor

Sprint Enterprise Mobility, LLC

  

Delaware

  

Guarantor

Sprint Enterprise Network Services, Inc.

  

Kansas

  

Guarantor

Sprint eWireless, Inc.

  

Kansas

  

Guarantor

Sprint International Communications Corporation

  

Delaware

  

Guarantor

Sprint International Holding, Inc.

  

Kansas

  

Guarantor

Sprint International Incorporated

  

Delaware

  

Guarantor

Sprint International Network Company LLC

  

Delaware

  

Guarantor

Sprint PCS Assets, L.L.C.

  

Delaware

  

Guarantor

Sprint Solutions, Inc.

  

Delaware

  

Guarantor

Sprint Spectrum Holding Company, LLC

  

Delaware

  

Guarantor

Sprint Spectrum L.P.

  

Delaware

  

Guarantor

Sprint Spectrum Realty Company, LLC

  

Delaware

  

Guarantor

Sprint/United Management Company

  

Kansas

  

Guarantor

SprintCom, Inc.

  

Kansas

  

Guarantor

SWV Six, Inc.

  

Colorado

  

Guarantor

T-Mobile Central LLC

  

Delaware

  

Guarantor

T-Mobile Financial LLC

  

Delaware

  

Guarantor

T-Mobile Leasing LLC

  

Delaware

  

Guarantor

T-Mobile License LLC

  

Delaware

  

Guarantor

T-Mobile Northeast LLC

  

Delaware

  

Guarantor

T-Mobile PCS Holdings LLC

  

Delaware

  

Guarantor

T-Mobile Puerto Rico Holdings LLC

  

Delaware

  

Guarantor

T-Mobile Puerto Rico LLC

  

Delaware

  

Guarantor

T-Mobile Resources Corporation

  

Delaware

  

Guarantor

T-Mobile South LLC

  

Delaware

  

Guarantor

T-Mobile Subsidiary IV LLC

  

Delaware

  

Guarantor

T-Mobile USA, Inc.

  

Delaware

  

Issuer

T-Mobile West LLC

  

Delaware

  

Guarantor

TDI Acquisition Sub, LLC

  

Delaware

  

Guarantor

Theory Mobile, Inc.

  

Delaware

  

Guarantor

Transworld Telecom II, LLC

  

Delaware

  

Guarantor

US Telecom, Inc.

  

Kansas

  

Guarantor

USST of Texas, Inc.

  

Texas

  

Guarantor

Utelcom LLC

  

Kansas

  

Guarantor


Virgin Mobile USA – Evolution, LLC

  

Delaware

  

Guarantor

VMU GP, LLC

  

Delaware

  

Guarantor

WBS of America, LLC

  

Delaware

  

Guarantor

WBS of Sacramento, LLC

  

Delaware

  

Guarantor

WBSY Licensing, LLC

  

Delaware

  

Guarantor

WCOF, LLC

  

Delaware

  

Guarantor

Wireless Broadband Services of America, L.L.C.

  

Delaware

  

Guarantor

Wireline Leasing Co., Inc.

  

Delaware

  

Guarantor

 

*

These guarantors provide an unsecured guarantee of the T-Mobile USA Senior Secured Notes.

As of June 30, 2020, the obligors under the Sprint Senior Notes consisted of the Company, as a guarantor; Sprint Corporation (a Delaware corporation), as issuer and T-Mobile USA, Inc. (a Delaware corporation) and Sprint Communications, Inc. (a Kansas corporation) as guarantors.

As of June 30, 2020, the obligors under the Sprint Communications Senior Notes consisted of the Company, as a guarantor; Sprint Communications, Inc. (a Kansas corporation), as issuer and T-Mobile USA, Inc. (a Delaware corporation) and Sprint Corporation (a Delaware corporation) as guarantors.

As of June 30, 2020, the obligors under the Sprint Capital Corporation Senior Notes consisted of the Company, as a guarantor; Sprint Capital Corporation (a Delaware corporation), as issuer and T-Mobile USA, Inc. (a Delaware corporation), Sprint Corporation (a Delaware corporation) and Sprint Communications, Inc. (a Kansas corporation) as guarantors.

As of June 30, 2020, the obligors under the Sprint Spectrum Notes consisted of Sprint Spectrum Co LLC (a Delaware limited liability company), Sprint Spectrum Co II LLC (a Delaware limited liability company), Sprint Spectrum Co III LLC (a Delaware limited liability company), as co-issuers and Sprint Spectrum License Holder LLC (a Delaware limited liability company), Sprint Spectrum License Holder II LLC (a Delaware limited liability company), Sprint Spectrum License Holder III LLC (a Delaware limited liability company), Sprint Spectrum PledgeCo LLC (a Delaware limited liability company), Sprint Spectrum PledgeCo II LLC (a Delaware limited liability company) and Sprint Spectrum PledgeCo III LLC (a Delaware limited liability company) as guarantors.

Pledged Security Collateral

As of June 30, 2020, the obligations under the T-Mobile USA Senior Secured Notes were secured by pledges of the capital stock of the following affiliates of the Company. Following the consummation of the exchange offers with respect to the T-Mobile USA Senior Secured Notes pursuant to the Registration Rights Agreements dated as of April 9, 2020 and June 24, 2020, such equity interests shall automatically be deemed (in accordance with the terms of the applicable security document) not to be part of the collateral securing the T-Mobile USA Senior Secured Notes and related note guarantees (or the notes and guarantees issued in exchange therefor in the exchange offers), to the extent Rule 3-16 or 13-02 of Regulation S-X would otherwise require the Company to file with the SEC separate financial statements or summarized financial information of any such affiliate due to the fact that such affiliate’s equity securities secure any registered debt securities.

 

Name of
Issuer
   Issuer
Jurisdiction of
Organization
   Number of
Shares Owned
   Percent of
Interest Owned
   Percent of
Interest Pledged  

Alda Wireless Holdings, LLC

   Delaware    N/A    100%    100%

American Telecasting Development, LLC

   Delaware    N/A    100%    100%

American Telecasting of Anchorage, LLC

   Delaware    N/A    100%    100%

American Telecasting of Columbus, LLC

   Delaware    N/A    100%    100%

American Telecasting of Denver, LLC

   Delaware    N/A    100%    100%

American Telecasting of Fort Myers, LLC

   Delaware    N/A    100%    100%

American Telecasting of Ft. Collins, LLC

   Delaware    N/A    100%    100%

American Telecasting of Green Bay, LLC

   Delaware    N/A    100%    100%

American Telecasting of Lansing, LLC

   Delaware    N/A    100%    100%


American Telecasting of Lincoln, LLC

   Delaware    N/A    100%    100%

American Telecasting of Little Rock, LLC

   Delaware    N/A    100%    100%

American Telecasting of Louisville, LLC

   Delaware    N/A    100%    100%

American Telecasting of Medford, LLC

   Delaware    N/A    100%    100%

American Telecasting of Michiana, LLC

   Delaware    N/A    100%    100%

American Telecasting of Monterey, LLC

   Delaware    N/A    100%    100%

American Telecasting of Redding, LLC

   Delaware    N/A    100%    100%

American Telecasting of Santa Barbara, LLC

   Delaware    N/A    100%    100%

American Telecasting of Seattle, LLC

   Delaware    N/A    100%    100%

American Telecasting of Sheridan, LLC

   Delaware    N/A    100%    100%

American Telecasting of Yuba City, LLC

   Delaware    N/A    100%    100%

APC Realty and Equipment Company, LLC

   Delaware    N/A    100%    100%

Assurance Wireless of South Carolina, LLC

   Delaware    N/A    100%    100%

Assurance Wireless USA, L.P.

   Delaware    N/A    100%    100%

ATI Sub, LLC

   Delaware    N/A    100%    100%

Boost Worldwide, LLC

   Delaware    N/A    100%    100%

Broadcast Cable, LLC

   Delaware    N/A    100%    100%

Clear Wireless LLC

   Nevada    N/A    100%    100%

Clearwire Communications LLC

   Delaware    4,565,480,804    100%    100%

Clearwire Hawaii Partners Spectrum, LLC

   Nevada    14,027,249 units    100%    100%

Clearwire IP Holdings LLC

   New York    N/A    100%    100%

Clearwire Legacy LLC

   Delaware    N/A    100%    100%

Clearwire Spectrum Holdings II LLC

   Nevada    N/A    100%    100%

Clearwire Spectrum Holdings III LLC

   Nevada    N/A    100%    100%

Clearwire Spectrum Holdings LLC

   Nevada    N/A    100%    100%

Clearwire XOHM LLC

   Delaware    N/A    100%    100%

Fixed Wireless Holdings, LLC

   Delaware    N/A    100%    100%

Fresno MMDS Associates, LLC

   Delaware    N/A    100%    100%

IBSV LLC

   Delaware    N/A    100%    100%

Independent Wireless One Leased Realty Corporation

   Delaware    100    100%    100%

Kennewick Licensing, LLC

   Delaware    N/A    100%    100%

L3TV Chicagoland Cable System, LLC

   Delaware    N/A    100%    100%

L3TV Colorado Cable System, LLC

   Delaware    N/A    100%    100%

L3TV Dallas Cable System, LLC

   Delaware    N/A    100%    100%

L3TV DC Cable System, LLC

   Delaware    N/A    100%    100%

L3TV Detroit Cable System, LLC

   Delaware    N/A    100%    100%

L3TV Los Angles Cable System, LLC

   Delaware    N/A    100%    100%

L3TV Minneapolis Cable System, LLC

   Delaware    N/A    100%    100%

L3TV New York Cable System, LLC

   Delaware    N/A    100%    100%

L3TV Philadelphia Cable System, LLC

   Delaware    N/A -    100%    100%

L3TV San Francisco Cable System, LLC

   Delaware    N/A    100%    100%

L3TV Seattle Cable System, LLC

   Delaware    N/A    100%    100%

Layer3 TV, Inc.

   Delaware    1    100%    100%

Metro PCS California, LLC

   Delaware    N/A    100%    100%

MetroPCS Florida, LLC

   Delaware    N/A    100%    100%

MetroPCS Georgia, LLC

   Delaware    N/A    100%    100%

MetroPCS Massachusetts, LLC

   Delaware    N/A    100%    100%

MetroPCS Michigan, LLC

   Delaware    N/A    100%    100%

MetroPCS Networks California, LLC

   Delaware    N/A    100%    100%

MetroPCS Networks Florida, LLC

   Delaware    N/A    100%    100%

MetroPCS Nevada, LLC

   Delaware    N/A    100%    100%

MetroPCS New York, LLC

   Delaware    N/A    100%    100%

MetroPCS Pennsylvania, LLC

   Delaware    N/A    100%    100%

MetroPCS Texas, LLC

   Delaware    N/A    100%    100%

MinorCo, LLC

   Delaware    N/A    100%    100%

Nextel Retail Stores, LLC

   Delaware    N/A    100%    100%

Nextel Systems, LLC

   Delaware    N/A    100%    100%

NSAC, LLC

   Delaware    N/A    100%    100%

PCTV Gold II, LLC

   Delaware    N/A    100%    100%

PCTV Sub, LLC

   Delaware    N/A    100%    100%

People’s Choice TV of Houston, LLC

   Delaware    N/A    100%    100%

People’s Choice TV of St. Louis, LLC

   Delaware    N/A    100%    100%

PRWireless PR, LLC

   Delaware    N/A    100%    100%

PushSpring, Inc.

   Delaware    100    100%    100%

SFE 1, LLC

   Delaware    N/A    100%    100%

SFE 2, LLC

   Delaware    N/A    100%    100%

SIHI Mexico S. de R.L. de C.V.

   Mexico    N/A    100%    65%

SIHI New Zealand HoldCo, Inc.

   Kansas    100    100%    100%

SIHI Scandinavia AB

   Sweden    N/A    100%    65%

SN Holdings (BR I) LLC

   Delaware    N/A    100%    100%


SpeedChoice of Detroit, LLC

   Delaware    N/A    100%    100%

SpeedChoice of Phoenix, LLC

   Delaware    N/A    100%    100%

Sprint (Bay Area), LLC

   Delaware    N/A    100%    100%

Sprint (Thailand) Limited

   Thailand    N/A    99.99%    65%

Sprint Brasil Servicos de Telecomunicacoes Ltda.

   Brazil    N/A    100%    65%

Sprint Communications Company L.P.

   Delaware    N/A    100%    100%

Sprint Communications Company of New Hampshire, Inc.

   New Hampshire    1,000    100%    100%

Sprint Communications Company of Virginia, Inc.

   Virginia    100,000    100%    100%

Sprint Connect LLC

   Delaware    N/A    100%    100%

Sprint Corporation

   Delaware    3,445,374,483    100%    100%

Sprint Enterprise Mobility, LLC

   Delaware    N/A    100%    100%

Sprint Hong Kong Limited

   Hong Kong    None    100%    65%

Sprint International Argentina SRL

   Argentina    None    100%    65%

Sprint International Australia Pty. Limited

   Australia    None    100%    65%

Sprint International Austria GmbH

   Austria    None    100%    65%

Sprint International Caribe LLC

   Puerto Rico    N/A    100%    65%

Sprint International Chile Limitada

   Chile    N/A    100%    65%

Sprint International Colombia Ltda.

   Colombia    N/A    100%    65%

Sprint International Communications Canada ULC

   Canada    N/A    100%    65%

Sprint International Communications Corporation

   Delaware    268,641    100%    100%

Sprint International Communications Singapore Pte. Ltd.

   Singapore    N/A    100%    65%

Sprint International Czech Republic S.R.O.

   Czech Republic    N/A    100%    65%

Sprint International do Brasil Ltda.

   Brazil    N/A    100%    65%

Sprint International Hungary Korlátolt Felelősségű Társaság

   Hungary    N/A    100%    65%

Sprint International Japan Corp.

   Japan    N/A    100%    65%

Sprint International Korea

   Korea    N/A    100%    65%

Sprint International Network Company LLC

   Delaware    N/A    100%    100%

Sprint International New Zealand

   New Zealand    N/A    100%    65%

Sprint International Norway AS

   Norway    N/A    100%    65%

Sprint International Spain, S.L.

   Spain    N/A    100%    65%

Sprint International Taiwan Limited

   Taiwan    N/A    100%    65%

Sprint PCS Assets, L.L.C.

   Delaware    N/A    100%    100%

Sprint RUS LLC

   Russia    N/A    100%    65%

Sprint Spectrum Depositor II LLC

   Delaware    N/A    100%    100%

Sprint Spectrum Depositor III LLC

   Delaware    N/A    100%    100%

Sprint Spectrum Depositor LLC

   Delaware    N/A    100%    100%

Sprint Spectrum Holding Company, LLC

   Delaware    N/A    100%    100%

Sprint Spectrum L.P.

   Delaware    N/A    100%    100%

Sprint Spectrum Realty Company, LLC

   Delaware    N/A    100%    100%

Sprint Telecom India Private Limited

   India    N/A    100%    65%

SprintLink Belgium BV

   Belgium    N/A    100%    65%

SprintLink Denmark ApS

   Denmark    N/A    100%    65%

SprintLink France SAS

   France    N/A    100%    65%

SprintLink Germany GmbH

   Germany    N/A    100%    65%

Sprintlink India Private Limited

   India    N/A    100%    65%

SprintLink International (Switzerland) GmbH

   Switzerland    N/A    100%    65%

Sprintlink International Malaysia SDN. BHD.

   Malaysia    N/A    100%    65%

SprintLink International Philippines, Inc.

   Philippines    N/A    100%    65%

SprintLink Ireland Limited

   Ireland    N/A    100%    65%

SprintLink Italy S.r.l.

   Italy    N/A    100%    65%

SprintLink Netherlands B.V.

   Netherlands    N/A    100%    65%

Sprintlink Poland sp.z o.o

   Poland    N/A    100%    65%

SprintLink UK Limited

   United Kingdom    N/A    100%    65%

TDI Acquisition Sub, LLC

   Delaware    N/A    100%    100%

Theory Mobile, Inc.

   Delaware    1,000    100%    100%

T-Mobile Central LLC

   Delaware    N/A    100%    100%

T-Mobile Financial LLC

   Delaware    N/A    100%    100%

T-Mobile Leasing LLC

   Delaware    N/A    100%    100%

T-Mobile License LLC

   Delaware    N/A    100%    100%

T-Mobile Northeast LLC

   Delaware    N/A    100%    100%

T-Mobile PCS Holdings LLC

   Delaware    N/A    100%    100%

T-Mobile Puerto Rico Holdings LLC

   Delaware    N/A    100%    100%

T-Mobile Puerto Rico LLC

   Delaware    N/A    100%    100%

T-Mobile Resources Corporation

   Delaware    1,000    100%    100%

T-Mobile South LLC

   Delaware    N/A    100%    100%

T-Mobile Subsidiary IV LLC

   Delaware    N/A    100%    100%

T-Mobile USA, Inc.

   Delaware    292,669,972    100%    100%

T-Mobile West LLC

   Delaware    N/A    100%    100%

Transworld Telecom II, LLC

   Delaware    N/A    100%    100%

USST of Texas, Inc.

   Texas    1,000    100%    100%


Utelcom LLC

   Kansas    N/A    100%    100%

Virgin Mobile USA – Evolution, LLC

   Delaware    N/A    100%    100%

VMU GP, LLC

   Delaware    N/A    100%    100%

WBS of America, LLC

   Delaware    N/A    100%    100%

WBS of Sacramento, LLC

   Delaware    N/A    100%    100%

WBSY Licensing, LLC

   Delaware    N/A    100%    100%

WCOF, LLC

   Delaware    N/A    100%    100%

Wireless Broadband Services of America, L.L.C.

   Delaware    N/A    100%    100%

Wireline Leasing Co., Inc.

   Delaware    N/A    100%    100%
EX-31.1

EXHIBIT 31.1

Certifications of Chief Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, G. Michael Sievert, certify that:

 

1.

I have reviewed this Amendment No. 1 to the Quarterly Report on Form 10-Q of T-Mobile US, Inc.; and

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report.

August 10, 2020

 

/s/ G. Michael Sievert

G. Michael Sievert
Chief Executive Officer
EX-31.2

EXHIBIT 31.2

Certifications of Chief Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, Peter Osvaldik, certify that:

 

1.

I have reviewed this Amendment No. 1 to the Quarterly Report on Form 10-Q of T-Mobile US, Inc.; and

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report.

August 10, 2020

 

/s/ Peter Osvaldik

Peter Osvaldik
Executive Vice President and Chief Financial Officer
v3.20.2
Cover Page - shares
6 Months Ended
Jun. 30, 2020
Aug. 03, 2020
Cover [Abstract]    
Document Type 10-Q/A  
Document Quarterly Report true  
Document Period End Date Jun. 30, 2020  
Document Transition Report false  
Entity File Number 1-33409  
Entity Registrant Name T-MOBILE US, INC.  
Entity Central Index Key 0001283699  
Current Fiscal Year End Date --12-31  
Document Fiscal Year Focus 2020  
Document Fiscal Period Focus Q2  
Amendment Flag true  
Entity Incorporation, State or Country Code DE  
Entity Tax Identification Number 20-0836269  
Entity Address, Address Line One 12920 SE 38th Street  
Entity Address, City or Town Bellevue  
Entity Address, State or Province WA  
Entity Address, Postal Zip Code 98006-1350  
City Area Code (425)  
Local Phone Number 378-4000  
Title of 12(b) Security Common Stock, par value $0.00001 per share  
Trading Symbol TMUS  
Security Exchange Name NASDAQ  
Entity Current Reporting Status Yes  
Entity Interactive Data Current Yes  
Entity Filer Category Large Accelerated Filer  
Entity Small Business false  
Entity Emerging Growth Company false  
Entity Shell Company false  
Entity Common Stock, Shares Outstanding   1,237,808,926
Amendment Description T-Mobile US, Inc. (the “Company”) is filing this Amendment No. 1 on Form 10-Q (this “Amendment No. 1”) to amend the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2020 (the “Form 10-Q”), as originally filed with the Securities and Exchange Commission (the “Commission”) on August 6, 2020 (the “Original Filing Date”). This Amendment No. 1 is being filed solely to (a) include Exhibits 10.1 through 10.33 in the Exhibit Index, which were inadvertently omitted from the Exhibit Index to the Form 10-Q, (b) re-file Exhibits 4.7, 4.13, 4.19, 4.27, 4.36 and 22.1 (collectively, the “Re-Filed Exhibits”) in order to correct minor formatting and other errors in the exhibits as originally filed due to file corruption discovered after filing the Form 10-Q and (c) file Exhibits 10.3 through 10.8, 10.13 through 10.15, 10.25 through 10.26, and 10.29 through 10.30, which were inadvertently omitted from the Form 10-Q (collectively, the “Filed Exhibits”). Additionally, in connection with the filing of this Amendment No. 1, the Company is including new certifications of the Company’s chief executive officer and chief financial officer pursuant to Rule 13a-14(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The Company is not including new certifications pursuant to Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. 1350) as no financial statements are being filed with this Amendment No. 1.Except for the corrected Exhibit Index, the Re-Filed Exhibits and the Filed Exhibits, this Amendment No. 1 does not amend the Form 10-Q in any way and does not modify or otherwise update any disclosures contained in the Form 10-Q, which continues to speak as of the Original Filing Date (including, but not limited to, any forward-looking statements made in the Form 10-Q, which have not been revised to reflect events that occurred or facts that became known after the date of the Form 10-Q, and such forward-looking statements should be read in their historical context). Accordingly, this Amendment No. 1 should be read in conjunction with the Form 10-Q and the Company’s other filings made with the Commission.