Item 1.01. Entry into a Material Definitive Agreement .
This Current Report on Form 8-K is being filed to disclose that on June 15, 2016 (the “Effective Date”), United States Cellular Corporation (“U.S. Cellular” or the “Company”) entered into a $300,000,000 Credit Agreement by and among U.S. Cellular as Borrower, Toronto Dominion (Texas), LLC, as Administrative Agent, and the other lenders party thereto and identified therein (“Revolving Credit Agreement”).
The Revolving Credit Agreement provides U.S. Cellular with a $300,000,000 senior revolving credit facility for general corporate purposes, including working capital, non-hostile acquisitions, spectrum purchases and capital expenditures.
The following briefly describes the terms of the Revolving Credit Agreement:
Borrowings under the Revolving Credit Agreement bear interest, at U.S. Cellular’s option, either at a LIBOR rate or at an alternative base rate, plus an applicable margin. U.S. Cellular's interest costs under the Revolving Credit Agreement are based on credit ratings from Standard & Poor’s Rating Services, Moody’s Investor Services or Fitch Ratings. If U.S. Cellular’s credit ratings were lowered, the credit facility would not cease to be available solely as a result of a decline in its credit ratings.
The two financial covenants described below are included in the Revolving Credit Agreement:
Period |
Ratios |
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From the Effective Date through June 30, 2019 |
3.25 to 1.00 |
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From July 1, 2019 and thereafter |
3.00 to 1.00 |
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The Revolving Credit Agreement is unsecured.
The Revolving Credit Agreement provides, among other things, that U.S. Cellular may not, and may not cause or permit any of its subsidiaries to sell, or incur or permit to exist any liens on, any property or assets now owned or hereafter acquired by U.S. Cellular or by any such subsidiary, make investments, effect mergers or other fundamental changes, make dividends, distributions or other restricted payments, or enter into transactions with affiliates, other than as expressly excepted in the Revolving Credit Agreement.
The Revolving Credit Agreement includes representations and warranties, covenants, events of default and other terms and conditions that are substantially similar to U.S. Cellular’s existing revolving credit agreement.
A Change in Control, as such term is defined in the Revolving Credit Agreement, of TDS (as defined below) or U.S. Cellular would constitute a default and would require all borrowings outstanding under the Revolving Credit Agreement to be repaid.
The continued availability of the Revolving Credit Agreement requires U.S. Cellular to comply with certain negative and affirmative covenants, maintain the above financial ratios and provide representations on certain matters at the time of each borrowing.
Amounts under the Revolving Credit Agreement may be borrowed, repaid and reborrowed from time to time from and after the Effective Date until the maturity date. There are no outstanding borrowings under the Revolving Credit Agreement as of the Effective Date, except for letters of credit.
Amounts borrowed under the Revolving Credit Agreement will be due and payable in full on the fifth anniversary of the agreement date.
The foregoing brief description is qualified by reference to the copy of the Revolving Credit Agreement attached hereto as Exhibit 4.1, which is incorporated herein by reference, and which identifies the lenders thereto.
Some of the lenders and/or agents under the Revolving Credit Agreement and/or their affiliates may have various relationships with U.S. Cellular, its parent, Telephone and Data Systems, Inc. (“TDS”), and their subsidiaries involving banking or other financial services, including checking, cash management, brokerage, lending, investment banking, depository, indenture trustee and/or other services, including serving as a lender under the Revolving Credit Agreement or other TDS and/or U.S. Cellular credit agreements.
In connection with the Revolving Credit Agreement, U.S. Cellular and TDS entered into a Subordination Agreement dated the Effective Date together with Toronto Dominion (Texas), LLC, as Administrative Agent. Pursuant to this Subordination Agreement, (a) any consolidated funded indebtedness from U.S. Cellular to TDS will be unsecured and (b) any (i) consolidated funded indebtedness (other than Refinancing Indebtedness as defined in the Subordination Agreement) in excess of $105,000,000, and (ii) Refinancing Indebtedness in excess of $250,000,000, will be subordinated and made junior in right of payment to the prior payment in full of
obligations to the lenders under the Revolving Credit Agreement. As of the date of this Form 8-K, there is no outstanding funded indebtedness of U.S. Cellular that is subordinated pursuant to the Restated Subordination Agreement. The form of the Subordination Agreement is attached as an exhibit to the Revolving Credit Agreement attached hereto as Exhibit 4.1.
U.S. Cellular’s first tier, wholly-owned subsidiaries have jointly and severally unconditionally guaranteed the payment and performance of the obligations of U.S. Cellular under the Revolving Credit Agreement pursuant to a Guaranty dated the Effective Date. The form of the Guaranty is attached as an exhibit to the Revolving Credit Agreement attached hereto as Exhibit 4.1. Other subsidiaries that meet certain criteria will be required to provide a similar Guaranty in the future.
In reviewing the agreements included as exhibits to this report, please note that they are included to provide you with information regarding their terms and are not intended to provide any other factual or disclosure information about the Company or the other parties to the agreements. Certain of the agreements contain representations and warranties by one or more of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the other parties to the applicable agreement and:
Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time. Additional information about the Company may be found elsewhere in the Company’s SEC filings, which are available without charge through the SEC’s website at http://www.sec.gov.
Item 1.02. Termination of a Material Definitive Agreement .
In connection with and as a condition of entering into the Revolving Credit Agreement, on the Effective Date, U.S. Cellular terminated its prior $300,000,000 Credit Agreement by and among U.S. Cellular as Borrower, Toronto Dominion (Texas) LLC as Administrative Agent, and the lenders party thereto, dated as of December 17, 2010. U.S. Cellular did not incur any early termination penalties in connection with the termination. A description of such prior Credit Agreement and a description of any material relationships between U.S. Cellular and its affiliates and any of the other parties to the prior Credit Agreement are included in U.S. Cellular’s Form 8-K dated December 17, 2010 and are incorporated by reference herein.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant .
The disclosure set forth above under Item 1.01 is hereby incorporated by reference into this Item 2.03.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits:
In accordance with the provisions of Item 601 of Regulation S-K, any Exhibits filed herewith are set forth on the Exhibit Index attached hereto.
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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 hereunto duly authorized. |
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UNITED STATES CELLULAR CORPORATION |
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(Registrant) |
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Date: |
June 21, 2016 |
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By: |
/s/ Steven T. Campbell |
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Steven T. Campbell |
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Executive Vice President - Finance, |
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Chief Financial Officer and Treasurer |
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(principal financial officer) |
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The following exhibits are filed herewith as noted below. |
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Exhibit No. |
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Description |
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4.1 |
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Revolving Credit Agreement, among U.S. Cellular, Toronto Dominion (Texas) LLC, as administrative agent, and the other lenders thereto, dated as of June 15, 2016, including Schedules and Exhibits, including the form of the subsidiary Guaranty and Subordination Agreement |
Published CUSIP Number: ________________
$300,000,000
Credit Agreement
Dated as of June 15, 2016
among
United States Cellular Corporation
as the Borrower,
Toronto Dominion (Texas) LLC
as Administrative Agent
and
The Toronto-Dominion Bank, New York
Branch
as L/C Issuer and Swing Line Lender
The Other Lenders Party Hereto
TD Securities (USA) LLC,
Citigroup Global Markets Inc.,
CoBank, ACB,
U.S. Bank National Association,
RBC Capital Markets,
as Co-Lead Arrangers and Join t Book Managers
Wells Fargo Bank, National Association ,
as Syndication Agent
CoBank, ACB,
U.S. Bank National Association,
Royal Bank of Canada,
as Co-Documentation Agents
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Page |
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS |
1 |
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1.01 |
Defined Terms |
1 |
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1.02 |
Other Interpretive Provisions |
32 |
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1.03 |
Accounting Terms |
33 |
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1.04 |
Rounding |
34 |
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1.05 |
Times of Day |
34 |
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1.06 |
Letter of Credit Amounts |
34 |
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1.07 |
Pro Forma Calculations |
34 |
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ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS |
34 |
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2.01 |
Committed Loans |
34 |
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2.02 |
Borrowings, Conversions and Continuations of Committed Loans |
35 |
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2.03 |
Letters of Credit |
37 |
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2.04 |
Swing Line Loans |
46 |
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2.05 |
Prepayments |
49 |
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2.06 |
Termination or Reduction of Commitments |
50 |
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2.07 |
Repayment of Loans |
51 |
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2.08 |
Interest |
51 |
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2.09 |
Fees |
52 |
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2.1 |
Computation of Interest and Fees |
52 |
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2.11 |
Evidence of Debt |
53 |
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2.12 |
Payments Generally; Administrative Agent's Clawback |
54 |
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2.13 |
Sharing of Payments by Lenders |
55 |
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2.14 |
Increase in Commitments |
56 |
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2.15 |
Cash Collateral |
57 |
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2.16 |
Defaulting Lenders |
59 |
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ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY |
61 |
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3.01 |
Taxes |
61 |
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3.02 |
Illegality |
67 |
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3.03 |
Inability to Determine Rates |
67 |
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3.04 |
Increased Costs |
67 |
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3.05 |
Compensation for Losses |
69 |
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3.06 |
Mitigation Obligations; Replacement of Lenders; Like Treatment |
70 |
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3.07 |
Survival |
70 |
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ARTICLE IV. CONDITIONS PRECEDENT TO Credit Extensions |
71 |
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4.01 |
Conditions of Initial Credit Extension |
71 |
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4.02 |
Conditions to all Credit Extensions |
73 |
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ARTICLE V. REPRESENTATIONS AND WARRANTIES |
74 |
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5.01 |
Existence, Qualification and Power |
74 |
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5.02 |
Authorization; No Contravention |
74 |
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5.03 |
Governmental Authorization; Other Consents |
74 |
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Page |
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5.04 |
Binding Effect |
74 |
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5.05 |
Financial Statements; No Material Adverse Effect |
75 |
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5.06 |
Litigation |
75 |
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5.07 |
No Default |
75 |
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5.08 |
Ownership of Property; Liens |
75 |
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5.09 |
Environmental Compliance |
76 |
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5.10 |
Insurance |
76 |
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5.11 |
Taxes |
76 |
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5.12 |
ERISA Compliance |
76 |
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5.13 |
Subsidiaries; Equity Interests; Guarantors |
77 |
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5.14 |
Margin Regulations; Investment Company Act |
77 |
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5.15 |
Disclosure |
78 |
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5.16 |
Compliance with Laws |
78 |
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5.17 |
Taxpayer Identification Number |
78 |
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5.18 |
OFAC |
78 |
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5.19 |
Anti-Corruption Laws; OFAC |
79 |
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ARTICLE VI. AFFIRMATIVE COVENANTS |
79 |
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6.01 |
Financial Statements |
79 |
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6.02 |
Certificates; Other Information |
80 |
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6.03 |
Notices |
82 |
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6.04 |
Payment of Obligations |
82 |
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6.05 |
Preservation of Existence, Etc. |
83 |
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6.06 |
Maintenance of Properties; Office |
83 |
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6.07 |
Maintenance of Insurance |
83 |
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6.08 |
Compliance with Laws |
83 |
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6.09 |
Books and Records |
84 |
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6.10 |
Inspection Rights |
84 |
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6.11 |
Use of Proceeds |
85 |
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6.12 |
Indebtedness Owed to Parent Affiliated Companies |
85 |
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6.13 |
Further Assurances |
85 |
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6.14 |
Additional Guarantors; Guaranty Trigger Event |
85 |
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6.15 |
Anti-Corruptions Laws |
86 |
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ARTICLE VII. NEGATIVE COVENANTS |
86 |
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7.01 |
Liens |
87 |
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7.02 |
Investments |
88 |
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7.03 |
Indebtedness |
90 |
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7.04 |
Fundamental Changes |
92 |
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7.05 |
Dispositions |
93 |
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7.06 |
Restricted Payments |
95 |
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7.07 |
Transactions with Affiliates and Subsidiaries |
97 |
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7.08 |
Burdensome Agreements |
97 |
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7.09 |
Use of Proceeds |
98 |
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7.10 |
Financial Covenants |
99 |
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7.11 |
Governmental Programs |
99 |
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Page |
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7.12 |
Sanctions |
99 |
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7.13 |
Anti-Corruption Laws; Sanctions |
99 |
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7.14 |
Guarantees |
100 |
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ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES |
100 |
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8.01 |
Events of Default |
100 |
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8.02 |
Remedies Upon Event of Default |
102 |
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8.03 |
Application of Funds |
103 |
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ARTICLE IX. ADMINISTRATIVE AGENT |
104 |
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9.01 |
Appointment and Authority |
104 |
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9.02 |
Rights as a Lender |
104 |
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9.03 |
Exculpatory Provisions |
104 |
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9.04 |
Reliance by Administrative Agent |
105 |
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9.05 |
Delegation of Duties |
106 |
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9.06 |
Resignation of Administrative Agent |
106 |
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9.07 |
Non-Reliance on Administrative Agent and Other Lenders |
107 |
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9.08 |
No Other Duties, Etc. |
108 |
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9.09 |
Administrative Agent May File Proofs of Claim |
108 |
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9.10 |
Guaranty Matters |
108 |
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9.11 |
Guarantied Cash Management Agreements and Guarantied Hedge Agreements |
109 |
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ARTICLE X. MISCELLANEOUS |
109 |
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10.01 |
Amendments, Etc. |
109 |
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10.02 |
Notices; Effectiveness; Electronic Communication |
111 |
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10.03 |
No Waiver; Cumulative Remedies; Enforcement |
113 |
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10.04 |
Expenses; Indemnity; Damage Waiver |
114 |
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10.05 |
Payments Set Aside |
116 |
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10.06 |
Successors and Assigns |
116 |
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10.07 |
Treatment of Certain Information; Confidentiality |
121 |
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10.08 |
Right of Setoff |
123 |
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10.09 |
Interest Rate Limitation |
123 |
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10.10 |
Counterparts; Integration; Effectiveness |
123 |
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10.11 |
Survival of Representations and Warranties |
124 |
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10.12 |
Severability |
124 |
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10.13 |
Replacement of Lenders |
124 |
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10.14 |
Governing Law; Jurisdiction; Etc. |
125 |
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10.15 |
Waiver of Jury Trial |
126 |
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10.16 |
No Advisory or Fiduciary Responsibility |
126 |
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10.17 |
Electronic Execution of Assignments and Certain Other Documents |
127 |
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10.18 |
USA PATRIOT Act |
127 |
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10.19 |
Time of the Essence |
127 |
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10.20 |
Designation as Senior Debt |
127 |
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10.21 |
FCC Approval |
128 |
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10.22 |
Entire Agreement |
128 |
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Page |
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10.23 |
Keepwell |
128 |
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10.24 |
Acknowledgement and Consent to Bail-In of EEA Financial Institutions |
128 |
SCHEDULES
1.01 Special Entities; Non-Subsidiary Variable Interest Entities
2.01 Commitments and Applicable Percentages
2.03 Existing Letters of Credit
5.05
Supplement to Interim Financial Statements
5.13
Subsidiaries; Other Equity Investments; Guarantors
7.01
Existing Liens
7.03
Existing Indebtedness
7.07 Existing Transactions with Affiliates
7.08 Existing Material Debt Instruments
10.02 Administrative Agent's Office; Certain Addresses for Notices
EXHIBITS
Form of
A Committed Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E-1 Assignment and Assumption
E-2 Administrative Questionnaire
F Opinion Matters
G Joinder Agreement
H Subordination Agreement
I U.S. Tax Compliance Certificates
J Guarantied Party Designation Notice
K Guaranty
UNITED
STATES CELLULAR CORPORATION
CREDIT AGREEMENT
This CREDIT AGREEMENT (" Agreement ") is entered into as of June 15, 2016, among UNITED STATES CELLULAR CORPORATION, a Delaware corporation (the " Borrower "), each lender from time to time party hereto (collective ly, the " Lenders " and individually, a " Lender "), TORONTO DOMINION (TEXAS) LLC, as Administrative Agent, and THE TORONTO-DOMINION BANK, NEW YORK BRANCH, as L/C Issuer and as Swing Line Lender.
The Borrower has requested that the Lenders provide a revolving credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
" Administrative Agent " means Toronto Dominion in its capacity as administrative age nt under any of the Loan Documents, or any successor administrative agent.
" Administrative Agent ' s Office " means the Administrative Agent ' s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as the Adminis trative Agent may from time to time notify to the Borrower and the Lenders.
" Administrative Questionnaire " means an Administrative Questionnaire in substantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.
" Affiliate " me ans, in relation to the Borrower, any of its Subsidiaries or the Parent Company, any Person that would be considered to be an affiliate of the Borrower, any of its Subsidiaries or, as the case may be, the Parent Company under Rule 144(a) of the Rules and R egulations of the Securities and Exchange Commission, as in effect on the date hereof, if the Borrower, any of its Subsidiaries or, as the case may be, the Parent Company were issuing securities; and, in relation to any Lender or any other Person, any Pers on directly or indirectly Controlling, Controlled by or under direct or indirect common Control with the Lender or such other Person.
" Aggregate Commitments " means the Commitments of all the Lenders.
" Agreement " means this Credit Agreement.
" Anti-Terrorism Laws " means any Laws relating to financing terrorism, "know your customer" or money laundering, including Executive Order No. 13224, the USA Patriot Act, the Laws comprising or implementing the Bank Secrecy Act, and the Laws administered by the United States Treasury Department's Office of Foreign Asset Control.
" Applicable Percentage " means with respect to any Lender at any time, the percentage (carried out to the twelfth decimal place) of the Aggregate Commitments represented by such Lender 's Commitment at such time provided that, in the case of Section 2.12 with respect to payments to be distributed by the Administrative Agent to Lenders, when a Defaulting Lender shall exist, "Applicable Percentage" shall mean the percentage of the Aggregat e Commitment (disregarding any Defaulting Lender's Commitment) represented by such Lender's Commitment at such time. If the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pur suant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. T he initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.
" Applicable Rate " means, from time to ti me, the following percentages per annum, based upon the Debt Rating as set forth below:
In the event that the Debt Ratings of any two ratings agencies are at the same Level, pricing shall be based upon such Level, and in the event that each of the three Debt Ratings are at different Levels, pricing shall be based upon the middle rating (i.e., the highest and lowest ratings shall be disregarded); provided that , notwithstanding the preceding,
(a) If any rating agency shall change the basis on which ratings are established, each reference to Moody's Rating, S&P Rating or Fitch Rating shall refer to the then equivalent rating by the applicable rating agency;
(b) in the event that the Borrower has ratings from only two rating agencies and (i) they are split-rated by no more than one level, the Moody's Rating or the S&P Rating level will apply (and if both the Moody's Rating and the S&P
Rating are the surviving ratings, then the level applicable to the higher of the two shall apply) or (ii) they are split-rated by more than one level, the level one level higher than the lowest rating will apply;
( c) If the Borrower has ratings from only one rating agency, then pricing will be based on the next lower Level from that rating;
(d) If the rating system of S&P, Moody's or Fitch shall change, or if each of such rating agencies shall cease to be in the b usiness of rating corporate debt obligations generally, then the most recently applicable Level shall apply for the next 30 days so long as the Borrower is negotiating in good faith to reach an amendment to the pricing provisions with the Lenders and after the expiration of such 30 day period, pricing shall be based on Level V; and
(e) If the Borrower has no S &P Rating, Moody's Rating or Fitch Rating, for any reason other than such agency's ceasing to be in the business of rating corporate debt obligation s generally, then pricing will be based on Level V.
Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the certificate delivered pursuant to Section 4.01(a)(vii) . Thereafter, each change in the Applicable Rate resul ting from a publicly announced change in the Debt Rating shall be effective, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.
" Approved Fund " means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
" Arrangers " means TD Securities (USA) LLC and Wells Fargo Securities, LLC in their capacity as co ‑ lead arrangers and joint book managers.
" Assignee Group " means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
" Assignment and Assumption " means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.06(b) ), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1 or any other for m approved by the Administrative Agent.
" Attributable Indebtedness " means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accord ance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if su ch lease were accounted for as a capital lease.
" Audited Financial Statements " means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2015, and the related consolidated statements of opera tions, common stockholders' equity and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.
" Auto-Extension Letter of Credit " has the meaning specified in Section 2.03(b)(iii) .
" Availability Period " means the p eriod from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.06 , and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02 .
" Bail-In Action " means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Ins titution.
" Bail-In Legislation " means, 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 for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.
" Base Rate " means for any day a fluctuating rate per annum equal to the highest of (a) the sum of 1/2 of 1% plus the Federal Funds Rate for such day, (b) the Prime Rate for such day and (c) t he sum of (i) 1.00% plus (ii) the Eurodollar Rate (for an Interest Period of one month, determined in accordance with subsection (b) of the definition of Eurodollar Rate).
" Base Rate Committed Loan " means a Committed Loan that is a Base Rate Loan.
" Base Ra te Loan " means a Loan that bears interest based on the Base Rate.
" Borrower " has the meaning specified in the introductory paragraph hereto.
" Borrower Materials " has the meaning specified in Section 6.02 .
" Borrowing " means a Committed Borrowing or a Swing Line Borrowing, as the context may require.
" Business Day " means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent's Of fice is located and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
" Carlson Family Group " means any and all of the foll owing persons: (i) LeRoy T. Carlson or his spouse, Margaret Carlson; (ii) any child, grandchild, great grandchild or other lineal descendant of LeRoy T. Carlson and Margaret Carlson, including any Person with such relationship by adoption, or the spouse of any such Person; (iii) the estate of any of the Persons described in subsections (i) and (ii); (iv) any trust or similar arrangement, provided that Persons
described in subsections (i), (ii), or (iii) are the beneficiaries of more than fifty percent (50%) of the beneficial interests in such trust or arrangement; (v) the voting trust which expires on June 30, 2035, as amended from time to time, or any successor to such voting trust, including the trustees of such voting trust; and (vi) any corporation, partnership, limited liability company or other entity in which Persons identified in subsections (i) through (v) own more than fifty percent (50%) of the voting interests in the election of directors or other management of such entity.
" Cash Collateraliz e " means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuer or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans , or obligations of Lenders to fund participations in respect of either thereof (as the context may require), cash or deposit account balances or, if the Administrative Agent, the L/C Issuer or Swing Line Lender shall agree in their sole discretion and oth erwise acceptable to the Borrower, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent and (b) the L/C Issuer or the Swing Line Lender (as applicable). "Cash Collateral " shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.
" Cash Equivalents " means any of the following types of Investments, to the extent owned by the Borrower or any of its Subsi diaries free and clear of all Liens:
(a) readily marketable obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof; provided that the full faith and credit of the United Stat es of America (including, without limitation, the Federal Deposit Insurance Corporation) is pledged in support thereof;
(b) time deposits with, or insured certificates of deposit or bankers' acceptances of, any commercial bank that is a member of the Fede ral Reserve System and whose deposits are fully insured by the Federal Deposit Insurance Corporation;
(c) commercial paper in an aggregate amount of no more than $20,000,000 per issuer outstanding at any time issued by any Person organized under the laws of any state of the United States of America and rated at least "P-1" (or the then equivalent grade) by Moody's or at least "A-1" (or the then equivalent grade) by S&P or at least "F-1" (or the then equivalent grade) by Fitch, in each case with maturities of not more than 180 days from the date of acquisition thereof;
(d) securities with maturities of one year or less from the date of acquisition issued or fully guaranteed by any state, commonwealth or territory of the United States, by any political sub division or taxing authority of any such state, commonwealth or territory or by any foreign government, the securities of which state, commonwealth, territory, political subdivision, taxing authority or foreign government (as the case may be) are rated at least A by S&P, A2 by Moody's or A by Fitch;
(e) demand deposit accounts maintained in the ordinary course of business;
(f) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as ame nded from time to time, (ii) are rated "AAA" by S&P, "Aaa" by Moody's or "AAA" by Fitch and (iii) have portfolio assets of at least $1,000,000,000; and
(g) Investments, classified in accordance with GAAP as current assets of the Borrower or any of its Sub sidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from any of Moody's, S&P or Fitch, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a), (b), (c) and (d) of this definition.
" Cash Management Agreement " means any agreement to provide cash management services, including treasury, depository, overdra ft, credit or debit card (including non-card electronic payables), purchase cards, electronic funds transfer and other cash management arrangements.
" Cash Management Bank " means any Person that, (a) at the time it enters into a Cash Management Agreement with a Loan Party, is a Lender, an Affiliate of a Lender, the Administrative Agent or an Affiliate of the Administrative Agent, or (b) at the time it (or its Affiliate) becomes a Lender (including on the Closing Date), is a party to a Cash Management Agree ment with a Loan Party, in each case in its capacity as a party to such Cash Management Agreement.
" Change in Law " means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulat ion or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (w hether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereun der or issued in connection therewith and (y) 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 fo reign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a "Change in Law", regardless of the date enacted, adopted or issued.
" Change of Control " means the occurrence of any of the following:
(a) any event or series of related events (including (x) the sale or issuance (or series of sales or issuances) of Equity Interests of the Borrower by the Borrower or by any holder or holders thereof, or (y) any merger, consolidation, recapitalization, reorganization or ot her transaction or arrangement) as a result of which any of the following occur: (i) the Carlson Family Group shall together cease to be "beneficial owners" (as defined in Rule 13d ‑ 3 under the Exchange Act) of voting interests in the Borrower having the vo ting power, by class or through a combined total voting power of all classes of Equity Interests of the Borrower, to elect at least a majority of the members
of the board of directors of the Borrower or (ii) the Parent Company shall not Control more than 50.1% of the voting interests in the Borrower or (iii) the Parent Company's financial statements determined on a consolidated basis in accordance with GAAP are not required to include the results of the Borrower;
(b) any "Change in Control" or any other similar event under and as defined in any of the instruments governing any Indebtedness of the Borrower or of any of its Subsidiaries in an aggregate principal amount exceeding $100,000,000 shall at any time occur; or
(c) an event or series of events by which during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that boar d or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a m ajority of that board or equivalent governing body.
" Closing Date " means the first date on which all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01 .
" CoBank Term Loan Facility " means that certain Credit Ag reement dated as of January 21, 2015 among the Borrower and CoBank, ACB, as the administrative agent and sole lender, as amended, restated and extended from time to time in accordance with the terms thereof to the extent permitted under the Loan Documents.
" Code " means the Internal Revenue Code of 1986, as amended, and the rules and regulations related thereto.
" Commitment " means, as to each Lender, its obligation to (a) make Committed Loans to the Borrower pursuant to Section 2.01 , (b) purchase participati ons in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender ' s name on Schedule 2.01 or in the Assignment and Assumption pu rsuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
" Committed Borrowing " means a borrowing consisting of simultaneous Committed Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01 .
" Committed Loan " has the meaning specified in Section 2.01 .
" Committed Loan Notice " means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a) , which, shall be substantially i n the form of Exhibit A or any other form approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Respon sible Officer of the Borrower.
" Commodity Exchange Act " means the Commodity Exchange Act (7 U.S.C. § 1 et seq .), as amended from time to time, and any successor statute.
" Compliance Certificate " means a certificate substantially in the form of Exhibit D or any other form approved by the Administrative Agent.
" Connection Income Taxes " means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
" Consolidated EBITDA " mean s, for any period, an amount equal to the sum of, without duplication, (a) Consolidated Net Income for such period, (b) to the extent received in cash during such period and not already included in the Consolidated Net Income for such period, distributions from unconsolidated entities in which the Borrower directly or indirectly owns an Equity Interest plus (c) the following to the extent each was deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by the Borrower and its Subsidiaries for such period (net of any Federal, state, local and foreign income tax credits of the Borrower and its Subsidiaries for such period), (iii) depr eciation, amortization and accretion expense and all other non-cash charges deducted from Consolidated Net Income for such period which do not represent a cash item in such period and minus (d) to the extent included in calculating such Consolidated Net In come, all non-cash items increasing Consolidated Net Income for such period; provided that, notwithstanding the foregoing, in no event shall any gain realized by the Borrower or any Subsidiary as a result of the purchase of Indebtedness of the Borrower or any Subsidiary for less than the face value of such Indebtedness be included in Consolidated EBITDA; and provided further that, notwithstanding the foregoing, that (1) when and to the extent that non-cash charges described in clause (c)(iii) above become c ash paid items, such amounts shall be deducted from Consolidated EBITDA and (2) when and to the extent that non-cash items described in clause (d) above become cash received items, such amounts shall be added to Consolidated EBITDA.
" Consolidated Funded In debtedness " means, as of any date of determination, for the Borrower and its Subsidiaries on a consolidated basis and without duplication, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments (including, without limitation, all purchase money Indebtedness and all direct obligations arising under letters of cr edit (including standby and commercial), bankers' acceptances, bank guaranties, surety bonds and similar instruments), (b) all obligations incurred as the deferred purchase price of property or services (other than (i) trade payables entered into in the or dinary course of business pursuant to ordinary terms and
(ii) ordinary course of business purchase price adjustments and earnouts); (c) all reimbursement and other payment obligations with respect to letters of credit, bankers' acceptances, surety bonds and other similar documents; (d) all obligations evidenced by promissory notes, bonds, debentures or other similar instruments, including all obligations so evidenced that are incurred in connection with the acquisition of property or any business; (e) all indebtedness created under any conditional sale or other title retention agreements or sales of accounts receivable; (f) all non-recourse indebtedness of the kind described in clause (a) through clause (e) secured by Liens on property of the obligor; (g) Attributable Indebtedness in respect of capital leases and Synthetic Lease Obligations; (h) net obligations under any Swap Contract; (i) all Indebtedness of the types referred to in subsections (a) through (h) above of any partnership or joint venture (oth er than a joint venture that is itself a corporation or limited liability company) in which the Borrower or a Subsidiary is a general partner or party to such a joint venture (other than a limited partner in a limited partnership), unless such Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary and (j) all Guarantees in respect of indebtedness of the kind described in clause (a) through clause (h) above; excluding up to $25,000,000 in the aggregate of contingent liabilities of the Borrower and its Subsidiaries which are not required by GAAP to be recorded on the balance sheet of the Borrower and its Subsidiaries. For all purposes of this Agreement, the term "Consolidated Funded Indebtedness" shall not include, with respect to the Borrower and its Subsidiaries, the contractual and other similar obligations of the Borrower and its Subsidiaries with respect to any Monetization Transactions.
" Consolidated Interest Charges " means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the aggregate amount of interest required to be paid or payable in cash by the Borrower or any of its Subsidiaries during such period on all Consolidated Funded Indebtedness of the Borrower or any of its Subsidiaries outstanding du ring all or any part of such period, whether such interest was or is required to be reflected as an item of expense or capitalized, including that portion of rent expense treated as interest in accordance with GAAP in respect of capital lease obligations ( including, without duplication, the interest for rental payments made with respect to Sale and Leaseback Transactions) and expressly including (a) any commitment fee payable pursuant to Section 2.09 and (b) any other scheduled commitment fee, facility fee, utilization fee or other scheduled fee payable by the Borrower or any Subsidiary in connection with Consolidated Funded Indebtedness of the Borrower or any Subsidiary.
" Consolidated Interest Coverage Ratio " means, as of any date of determination, the rati o of (a) Consolidated EBITDA for the period of the four prior fiscal quarters ending on such date to (b) Consolidated Interest Charges for such period, provided that , notwithstanding the foregoing, for the purposes of determination of the Consolidated Inte rest Coverage Ratio, in no event shall any financial results of any Non-Subsidiary Variable Interest Entity be included in such determination, except to the extent Consolidated Interest Charges are computed on Indebtedness of any such Non-Subsidiary Variab le Interest Entity which is required by subsection (i) of the definition of Consolidated Funded Indebtedness to be included therein.
" Consolidated Leverage Ratio " means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended, provided that , notwithstanding the foregoing, for the pur poses of determination of the Consolidated Leverage Ratio, in no event
shall any financial results of any Non-Subsidiary Variable Interest Entity be included in such determination, except to the extent Indebtedness of any such Non-Subsidiary Variable Int erest Entity is required by subsection (i) of the definition of Consolidated Funded Indebtedness to be included therein.
" Consolidated Net Income " means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the net income of the B orrower and its Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period, determined in accordance with GAAP; provided that , notwithstanding anything herein to the contrary, net income attributable to Non-Subsidiary Variable In terest Entities shall be excluded from the calculation of Consolidated Net Income.
" Consolidated Total Assets " means, as at any date, all assets of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP.
" Contractual O bligation " means, as to any Person, any provision of any security issued by such Person or of any material agreement, material instrument or other material undertaking to which such Person is a party or by which it or any material amount of its property is bound.
" Control " means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. " Controlling " and " Con trolled " have meanings correlative thereto.
" Credit Extension " means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
" Debt Rating " means, as of any date of determination, the S&P Rating, Moody's Rating or Fitch Rating (collectively , such ratings referred to as the " Debt Ratings ").
" Debtor Relief Laws " means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receiversh ip, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
" Default " means any event or condition that constitutes an Eve nt of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
" Default Rate " means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate p lus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided , however , that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fee s, a rate equal to the Applicable Rate plus 2% per annum, in each case, to the fullest extent permitted by applicable Laws.
" Defaulting Lender " means, subject to Section 2.16(b) , any Lender that (a) has failed to (i) fund all or any portion of the Committ ed Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within two Business Days of the date such Loans or participations were required to be funded hereunder unless such Lender notifies the A dministrative Agent and the Borrower in writing that such failure is the result of such Lender's determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Lette rs of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line Lender in writing that it does not intend to comply with its funding obligations here under, or has made a public statement to that effect (unless such writing or public statement relates to such Lender's obligation to fund a Loan hereunder and states that such position is based on such Lender's determination that a condition precedent to f unding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agen t or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon r eceipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, cu stodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the FDIC or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof b y a Governmental Authority so long as such ownership interest does not result in or provide such Lender 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 perm it such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of claus es (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b) ) upon delivery of written notice of such determination to the Borrower, the L/C Issuer, th e Swing Line Lender and each Lender.
" Designated Jurisdiction " means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
" Disposition " or " Dispose " means any sale, transfer, or other disposition of a ny property by any Person, including without limitation (a) any Sale and Leaseback Transaction and (b) any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated there with.
" Dollar " and " $ " mean lawful money of the United States.
" Domestic Subsidiary " means any Subsidiary that is organized under the laws of any political subdivision of the United States.
" 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) ha ving responsibility for the resolution of any EEA Financial Institution.
" Eligible Assignee " means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii) and (v) (subject to such consents, if any, as may be required under Sect ion 10.06(b)(iii) ).
" Environmental Laws " means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restric tions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
" Environmental Liability " means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower, any Loan Party or any of their respective Subsidiaries directly or indirect ly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened rel ease 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.
" Equity Interests " means, with respect to any Person , all of the outstanding shares of capital stock of (or other ownership or profit interests in) such Person, all of the outstanding warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other o wnership or profit interests in) such Person, all of the outstanding securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acqui sition from such Person of such shares (or such other interests), and all of the other outstanding ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not the shares underlying such warrants, options, rights or other interests are outstanding on any date of determination.
" ERISA " means the Employee Retirement Income Security Act of 1974, as amended from time to time.
" ERISA Affiliate " means any trade or busines s (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
" ERISA Event " means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in r eorganization; (d) with respect to a Pension Plan or Multiemployer Plan that does not hold assets that, as of the termination date, equal or exceed its "benefit liabilities", as such term is defined in Section 4001(a)(16) of ERISA, the filing of a notice o f intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes gr ounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinq uent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
" 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.
" E urodollar Rate " means:
(a) For any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to (i) the Intercontinental Exchange Group, New York LIBOR Rate or the successor thereto if the Intercontinental Exchange Group, New York is no longer making a LIBOR rate available (" LIBOR "), as published by Reuters (or other commercially available source providing quotations of LIBOR as designated by the Administrative Agent from time to time), at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period or (ii) if such published rate is not available at such time for any reason, then the Eurodollar Rate for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approxi mate amount of the Eurodollar Rate Loan being made, continued or converted by Toronto Dominion and with a term equivalent to such Interest Period would be offered by Administrative Agent's Eurodollar Lending Office to major banks in the London interbank Eu rodollar
market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period; or
(b) For any interest rate calculation with respect to a Base Rate Loan, the rate per annum equal to (i) LI BOR, at approximately 11:00 a.m., London time, two Business Days prior to the date of determination for Dollar deposits being delivered in the London interbank market for a term of one month commencing that day or (ii) if such published rate is not availab le at such time for any reason, the rate determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the date of determination in same day funds in the approximate amount of the Base Rate Loan being made, continued or converted by Toronto Dominion and with a term equal to one month would be offered by Administrative Agent's Eurodollar Lending Office to major banks in the London interbank Eurodollar market at their request at the date and time of determination.
Notwiths tanding the foregoing, if the Eurodollar Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
" Eurodollar Rate Loan " means a Committed Loan that bears interest at a rate based on clause (a) of the definition of Eurodollar Rate.
" Event of Default " has the meaning specified in Section 8.01 .
" Excluded Swap Obligation " means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of 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 Guarantor's failure for any reason to constitute an "eligible contract participant" as defined in the Commodit y Exchange Act (determined after giving effect to Section 10.23 and any other "keepwell, support or other agreement" for the benefit of such Guarantor and any and all guarantees of such Guarantor's Swap Obligations by other Loan Parties) at the time the Gu aranty of such Guarantor 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 excluded in accordance with the first sentence of this definition.
" Excluded Taxes " means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a 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 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 Tax es imposed on 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 on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the
Borrower under Section 10.13 ) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii) , (a)(iii) or (c), amounts with respect to such Taxes were payab le either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient's failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
" Existing Credit Agreement " means that certain Credit Agreement, dated as of December 17, 2010 among the Borrower, Toronto Dominion (Texas) LLC, as agent, and a syndicate of lenders, as amended.
" Existin g Letters of Credit " means the letters of credit listed and described on Schedule 2.03 .
" Existing Parent Company Credit Agreement " means that that certain Credit Agreement, dated as of December 17, 2010, among Telephone and Data Systems, Inc., Bank of Amer ican, N.A., as the administrative agent and a syndicate of lenders, as amended.
" FASB ASC " means the Accounting Standards Codification of the Financial Accounting Standards Board.
" FATCA " means 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 and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code.
" FCC " means The Federal Communications Commiss ion (or any successor agency, commission, bureau, department or other political subdivision) of the United States.
" Federal Funds Rate " means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transaction s with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Toronto Dominion on such day on such transactions as determined by the Administrative Agent.
" Fee Letter " means the letter agreement, dated Ap ril 15, 2016, among the Borrower, the Administrative Agent, and TD Securities (USA) LLC (the " Toronto Dominion Fee Letter "), and any other fee letter agreement among the Borrower and any Arranger or Lender (or Affiliate of any Arranger or Lender), as appli cable, and " Fee Letters " means all of such letters.
" Fitch " means Fitch Ratings, Inc., and any successor thereto.
" Fitch Rating " means, at any time, the rating issued by Fitch and then in effect with respect to the Borrower's senior unsecured long-term debt securities.
" Foreign Lender " means any Lender that is organized under the Laws of a jurisdiction other than the United States, each State thereof and the District of Columbia (including such a Lender when acting in the capacity of the L/C Issuer).
" F RB " means the Board of Governors of the Federal Reserve System of the United States.
" Fronting Exposure " means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer, such Defaulting Lender's Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender's participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such D efaulting Lender's Applicable Percentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender's participation obligation has been reallocated to other Lenders in accordance with the terms hereof.
" Fund " means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
" GAAP " means, except to the extent provided in Section 1.03 , generally accepted accounting principles in the United States as in effect from time to time and set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statement s and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determinatio n.
" Governmental Authority " means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exe rcising 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).
" Government Program " has the me aning specified in Section 7.03(e) .
" Guarantee " means, as to any Person without duplication, (a) any payment obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness payable by another Person (the " primary obligor ") in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness, (ii) to pur chase or lease property, securities or services for the purpose of assuring
the obligee in respect of such Indebtedness of the payment of such Indebtedness, (iii) to maintain working capital, equity capital or any other financial statement condition or l iquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness of the payment th ereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness of any other Person, whether or not such Indebtedness is assumed by such Person (or any right, co ntingent or otherwise, of any holder of such Indebtedness to obtain any such Lien), provided that the term "Guarantee" shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary payment obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term " Guarantee " as a verb has a corresponding meaning.
" Guarantied Cash Management Agreement " means any Cash Management Agreement that is entered into by and between any Loan Par ty and any Cash Management Bank.
" Guarantied Hedge Agreement " means any Swap Contract permitted under Article VI or VII that is entered into by and between any Loan Party and any Hedge Bank.
" Guarantied Parties " means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05 .
" Guarantied Party Designa tion Notice " means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit J .
" Guarantors " means, collectively, (a) the Domestic Subsidiaries of the Borrower listed on Schedule 5.13 and each other direct Domestic Subsidiar y that is a Material Subsidiary of the Borrower that shall be required to execute and deliver a Guaranty or guaranty supplement pursuant to Section 6.14 and (b) with respect to (i) Obligations owing by any Loan Party or any Subsidiary of a Loan Party (othe r than the Borrower) under any Swap Contract or any Cash Management Agreement and (ii) the payment and performance by each Specified Loan Party of its obligations under its Guaranty with respect to all Swap Obligations, the Borrower.
" Guaranty " means, coll ectively, the Guaranty made by the Guarantors in favor of the Guarantied Parties, substantially in the form of Exhibit K , together with each other guaranty and guaranty supplement delivered pursuant to Section 6.14 .
" Guaranty Release Date " means the date that all of the following conditions have been satisfied: (a) no Default exists, (b) at least two of S&P Rating, Moody's Rating or Fitch Rating is greater than or equal to BBB-, Baa3 or BBB-, respectively, (c) there are no Guarantees by the Parent Company, the Borrower or any of their respective Subsidiaries of the CoBank Term Loan
Facility or of the Parent Credit Agreement (or any such Guarantee shall be released substantially concurrently with the Guaranty Release Date) and (d) there is no outstanding P ari Passu Guaranteed Indebtedness (or, if there is outstanding Pari Passu Guaranteed Indebtedness as of such date, all Guarantees of such Pari Passu Guaranteed Indebtedness shall be released substantially concurrently with the Guaranty Release Date).
" Guar anty Release Period " means any period commencing on the date on which a Guaranty Release Date occurs and ending on the date on which a Guaranty Trigger Event occurs.
" Guaranty Trigger Event " has the meaning specified in Section 6.14(b) .
" Hazardous Material s " means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
" Hedge Bank " means any Person that, at the time it enters into a Swap Contract permitted under Article VI or VII , is the Administrati ve Agent, a Lender or an Affiliate of a Lender, in its capacity as a party to such Swap Contract.
" HMT " has the meaning specified in the definition of Sanctions.
" Increase Effective Date " has the meaning specified in Section 2.14(d) .
" Indebtedness " means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such Person evid enced by bonds, debentures, notes, loan agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, surety bond s and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of property or services ( other than (A) trade accounts payable in the ordinary course of business and, in each case, not past due for more than 120 days after the date on which such trade account payable was due (unless such trade account is the subject of a good faith dispute), and (B) any earn-out obligation until such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment, in each case, solely to the extent such payment is required to be made in cash, in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends;
(h) all obligations of such Person (i) to pay deferred compensation to employees, (ii) with respect to purchase price adjustments on acquisitions and (iii) to return cust omer deposits, but only in each case to the extent that any such obligation described in subsection (i), (ii) or (iii) preceding remains unpaid for more than 120 days after the date on which such obligation was to be paid (unless such obligation is the sub ject of a good faith dispute), and
(i) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include, without duplication, the Indebtedness of any partnership or joint venture (othe r than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a party to such a joint venture (other than a limited partner in a limited partnership), unless such Indebtedness is expressly ma de non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any date sh all be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.
" Indemnified Taxes " means Taxes other than Excluded Taxes.
" Indemnitees " has the meaning specified in Section 10.04(b) .
" Information " has the meaning specified in Section 10.07 .
" Interest Payment Date " means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided , however , that if any Interest Period for a Eurodollar Rate Loan e xceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, Ju ne, September and December and the Maturity Date.
" Interest Period " means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the da te one, two, three or six months thereafter, as selected by the Borrower in its Committed Loan Notice or such other period that is twelve months or less requested by the Borrower and consented to by all the Lenders; provided that:
(i) any Interest Peri od that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calenda r month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
" Investment " means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests, debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or int erest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
" IRS " means the United States Internal Revenue Service.
" ISP " means, with respect to any Letter of Credit, the "International Standby Practices 1998" published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
" Issuer Documents " means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer an d the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.
" Joinder Agreement " means a Joinder Agreement to be executed by any new Lender in connection with an increase in commitments in accordance with Section 2.14 , in each case substantially in the form of Exhibit G or any other form approved by the Administrative Agent.
" Laws " means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinance s, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrativ e orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
" L/C Advance " means, with respect to each Lender, such Lender's funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
" L/C Borrowing " means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Com mitted Borrowing.
" L/C Credit Extension " means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
" L/C Issuer " means Toronto Dominion Bank in its capacity as issuer of Letters of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
" L/C Obligations " means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unr eimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . For all purposes of this Agre ement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be "outstanding" in the amount so r emaining available to be drawn.
" Lender " has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lender.
" Lending Office " means, as to any Lender, the office or offices of such Lender described a s such in such Lender's Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
" Letter of Credit " means any standby letter of credit issued hereunder and shall inclu de the Existing Letters of Credit.
" Letter of Credit Application " means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
" Letter of Credit Expiration Date " means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
" Letter of Credit Fee " has the meaning specified in Section 2.03(h) .
" Letter of Credit Sublimit " means an amount equa l to $30,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.
" LIBOR " has the meaning specified in the definition of Eurodollar Rate.
" Lien " means any mortgage, pledge, hypothecation, assignment, deposit ar rangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title r etention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
" Loan " means an extension of credit by a Lender to the Borrower under Article II in the form of a Committed Loan or a Swing Line Loan.
" Loan Documents " means this Agreement, the Guaranty, each Note, each Issuer Document, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Sectio n 2.15 of this Agreement, the Subordination Agreement and the Fee Letters.
" Loan Parties " means, collectively, the Borrower and each Guarantor.
" Material Adverse Effect " means (a) a material adverse change in, or a material adverse effect upon, the financ ial condition or business of the Borrower and its Subsidiaries taken as a whole; or (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document; or (c) a material impairment of the ability of the G uarantors, taken as a whole, or the Borrower, to perform their obligations under any Loan Document to which they are a party; or (d) a material adverse effect upon the legality, validity, binding effect or enforceability against the Guarantors, taken as a whole, or the Borrower, of any Loan Document to which they are a party.
" Material Domestic Subsidiary " means any direct Domestic Subsidiary of the Borrower that is a Material Subsidiary; provided , however , that no Securitization Entity shall be a Material Domestic Subsidiary.
" Material Subsidiary " means any Subsidiary that is directly or indirectly owned by the Borrower and whose total assets constitute at least 1% of Consolidated Total Assets or whose gross revenues determined in accordance with GAAP cons titute at least 1% of the consolidated gross revenues of the Borrower and its Subsidiaries calculated in accordance with GAAP, and "Material Subsidiaries" means collectively each Material Subsidiary.
" Maturity Date " means June 15, 2021, provided , however , that , if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day .
" Minimum Collateral Amount " means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or e liminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 103% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.15(a)(i) , (a)(ii) or (a)(iii) , an amount equal to 103% of the Outstanding Amount of all L/C Obligations, and (c) otherwise, an amount determined by the Administrat ive Agent and the L/C Issuer in their sole discretion.
" Moody's " means Moody's Investors Service, Inc. and any successor thereto.
" Moody's Rating " means, at any time, the rating issued by Moody's and then in effect with respect to the Borrower's senior uns ecured long-term debt securities.
" Monetization Transaction " means, with respect to any Specified Equity Interests owned by the Borrower or any of its Subsidiaries, any transaction, agreement, device or arrangement (A) which results in the Borrower or any Subsidiary receiving payments on account
of entering into contractual or other similar obligations and granting rights in, to or with respect to such Specified Equity Interests, or (B) by which the Borrower or any Subsidiary hedges against price f luctuation with respect to such Specified Equity Interests.
" Multiemployer Plan " means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
" Net Proceeds " means with respect to each Disposition by the Borrower or any of its Subsidiaries under Section 7.05(g) , the excess, if any, of (a) the sum of cash a nd all other assets received in connection with such Disposition (including without limitation, any cash, cash equivalents, notes, and all other assets received, including by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise) over (b) the sum of (i) the principal amount of any Indebtedness that is secured by the applicable asset (so long as such security interest was not granted in anticipation of the Disposition of such asset) and that is required to be repaid in co nnection with such transaction (other than Indebtedness under the Loan Documents), (ii) the reasonable and customary out-of-pocket expenses incurred by the Borrower or such Subsidiary in connection with such transaction (including reasonable brokers' fees or commissions, legal, accounting and other professional and transactional fees) and (iii) income taxes reasonably estimated to be actually payable within two years of the date of the relevant transaction as a result of any gain recognized in connection th erewith; provided that, if the amount of any estimated taxes pursuant to subsection (iii) exceeds the amount of taxes actually required to be paid in cash in respect of such Disposition, the aggregate amount of such excess shall constitute Net Proceeds.
" N on-Defaulting Lender " means, at any time, each Lender that is not a Defaulting Lender at such time.
" Non-Extension Notice Date " has the meaning specified in Section 2.03(b)(iii) .
" Non-Subsidiary Variable Interest Entity " means, at any time, a Variable Interest Entity that is not a Subsidiary. Schedule 1.01 identifies the entities that are Non-Subsidiary Variable Interest Entities as of the date hereof.
" Note " means a promissory note made by the Borrower in favor of a Le nder evidencing Loans made by such Lender, substantially in the form of Exhibit C .
" Obligations " means all advances to, and debts, liabilities, obligations, covenants and duties of any Loan Party arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Guarantied Cash Management Agreement or Guarantied Hedge Agreement, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arisi ng and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such inter est and fees are allowed claims in such proceeding; provided that the Obligations shall exclude any Excluded Swap Obligations.
" OFAC " means the Office of Foreign Assets Control of the United States Department of the Treasury.
" Ordinary Capital Expenditure s " means, with respect to any Special Entity or Subsidiary, capital expenditures incurred in the ordinary course of business consistent with past practices that are either related to maintenance or are ordinary course acquisitions that are identified with an existing and ongoing project of such Special Entity or Subsidiary.
" Organization Documents " means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non ‑ U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of busin ess entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Government al Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
" Other Connection Taxes " means, with respect to any Recipient, Taxes imposed as a result of a pre sent or former connection between such 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 any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
" Other Taxes " means all present or future stamp, court or documentary, intangib le, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Do cument, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06 ).
" Outstanding Amount " means (i) with respect to Committed Loans and Swing Line Loans on any date, t he aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be, occurring on such date; and (ii) with respect to any L/C Obligations on any d ate, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.
" Parent Affiliated Companies " means collectively, (a) the Parent Company, and (b) all Subsidiaries and Affiliates of the Parent Company, other than the Borrower or any of the Borrower's Subsidiaries.
" Parent Company " means Telephone and Data Systems, Inc., a Delaware corporation.
" Parent Credit Agreement " means that that certain Credit Agreement, dated as of June 15, 2016, among Telephone and Data Systems, Inc., Wells Fargo Bank, National Association, as the adminis trative agent and the lenders party thereto from time to time, as amended, restated and extended from time to time (subject to the consent of the Required Lenders) in accordance with the terms thereof.
" Pari Passu Guaranteed Indebtedness " means, collective ly, (a) the Indebtedness of the Borrower and the Subsidiary Guarantees thereof permitted by Section 7.03(h) and (b) the Indebtedness of the Parent Company and the Subsidiary Guarantees thereof permitted by Section 7.03(h) of the Parent Credit Agreement (or any successor comparable provision).
" Participant " has the meaning specified in Section 10.06(d) .
" Participant Register " has the meaning specified in Section 10.06(d) .
" PBGC " means the Pension Benefit Guaranty Corporation.
" Pension Plan " means any "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
" Person " means a ny natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
" Plan " means any "employee benefit plan" (as such term is defined in Section 3(3) of ERISA) establis hed by the Borrower or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
" Platform " has the meaning specified in Section 6.02 .
" Prepayment Notice " means a notice of prepayment of Committed Loans pursuant to Section 2.05(a) , which shall be substantially in the form of Exhibit L or any other form approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Admi nistrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
" Prime Rate " means the rate of interest in effect for such day as publicly announced from time to time by Toronto Dominion as its "prime rate." The "prime rate" is a rate set by Toronto Dominion based upon various factors including Toronto Dominion's costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Toronto Dominion shall take effect at the opening of business on the day specified in the public announcement of such change.
" Pro Forma Basis " means, for purposes of calculating Consoli dated EBITDA for any period during which one or more Specified Transactions occurs, that such Specified Transaction (and all other Specified Transactions that have been consummated during the applicable period) shall be deemed to have occurred as of the fi rst day of the applicable period of measurement and all income statement items (whether positive or negative) attributable to the property or Person disposed of in a Specified Disposition shall be excluded and all income statement items (whether positive o r negative) attributable to the property or Person acquired in a Specified Acquisition shall be included (provided that such income statement items to be included are reflected in financial statements or other financial data reasonably acceptable to the Ad ministrative Agent and based upon reasonable assumptions and calculations which are expected to have a continuing impact).
" Public Lender " has the meaning specified in Section 6.02 .
" 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 under §1a(18)(A)(v)(II) of t he Commodity Exchange Act.
" Receivables Securitization " means any secured lending or other financing facility entered into by a Securitization Entity solely for the purpose of purchasing or financing Securitization Assets of the Borrower and/or its Subsidi aries, provided that (i) no portion of the Indebtedness or any other obligations (contingent or otherwise) of such Securitization Entity (A) is Guaranteed by, recourse to or otherwise obligates the Borrower or any of its Subsidiaries (except pursuant to St andard Securitization Undertakings or the Recourse Guaranty) or (B) subjects any property or asset of the Borrower or any other Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof (except Standard Securitization Under takings or the Recourse Guaranty), (ii) such Securitization Entity engages in no business and incurs no Indebtedness or other liabilities or obligations other than those related to or incidental to such facility, (iii) other than the initial Investment in such facility (which may, for avoidance of doubt, include Standard Securitization Undertakings) neither the Borrower nor any of its other Subsidiaries is required to make additional Investments in connection with such facility, (iv) none of the Borrower or any other Subsidiary has any material contract, agreement, arrangement or understanding with such Securitization Entity (except pursuant to Standard Securitization Undertakings or the Recourse Guaranty), (v) neither the Borrower nor any of its Subsidiarie s (except such Securitization Entity) has any obligation to maintain such Securitization Entity's financial condition or cause such Securitization Entity to achieve certain levels of operating results, and (vi) no Event of Default exists as of the effectiv e date of such secured lending or other financing facility. On or prior to the entry into a Receivables Securitization, the Borrower shall deliver to the Administrative Agent a certificate executed by a Responsible Officer of the Borrower (a) evidencing t he designation of a Subsidiary as a Securitization Entity by the Board of Directors of the Borrower and (b) certifying that such Receivables Securitization complies with the foregoing conditions.
" Recipient " means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.
" Recourse Guaranty " means any general recourse guarantee by the Borrower or any Subsidiary of Indebtedness pursuant to a Receivable s Securitization, which guarantee is either unsecured or secured solely by a pledge of the Equity Interests of the Securitization Entity that is a party to such Receivables Securitization.
" Refinance " means, with respect to any Consolidated Funded Indebted ness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue other Consolidated Funded Indebtedness in exchange, conversion or replacement for, such Consolidated Funded Indebtedness. " Refinances ", " Refinanced " and " Refi nancing " shall have correlative meanings.
" Refinancing Indebtedness " means Consolidated Funded Indebtedness of the Borrower or of any of its Subsidiaries to any of the Parent Affiliated Companies that Refinances any Consolidated Funded Indebtedness of the Borrower or any of its Subsidiaries existing on the Closing Date or created, incurred or arising in compliance with this Agreement, including any Consolidated Funded Indebtedness that Refinances Refinancing Indebtedness; provided that: (a) the Refinancing Indebtedness has a stated maturity no earlier than the stated maturity of the Consolidated Funded Indebtedness being Refinanced; (b) the Refinancing Indebtedness has an average life to maturity at the time the Refinancing Indebtedness is incurred that is e qual to or greater than the average life to maturity of the Consolidated Funded Indebtedness being Refinanced; (c) the Refinancing Indebtedness has an aggregate principal amount that is equal to or less than the aggregate principal amount then outstanding (plus fees and expenses) under the Consolidated Funded Indebtedness being Refinanced; and (d) the Refinancing Indebtedness is issued on terms no more restrictive in any material respect than those contained in the Consolidated Funded Indebtedness being Ref inanced.
" Register " has the meaning specified in Section 10.06(c) .
" Related Parties " means, with respect to any Person, such Person's Affiliates and the partners, directors, officers, employees, agents, trustees, advisors and representatives of such Person and of such Person's Affiliates.
" Reportable Event " means any of the events set forth in Section 4043(c ) of ERISA, other than events for which the 30 day notice period has been waived.
" Request for Credit Extension " means (a) with respect to a Borrowing, conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
" Required Lenders " means, as of any da te of determination, Lenders having more than 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 , Lenders hold ing in the aggregate more than 50% of the Total Outstandings (with the aggregate amount of each Lender's risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed "held" by such Lender for purposes of this definition) ; provided that the Commitment of, and the portion of the Total Outstandings held or
deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
" Responsible Officer " means the Chairman, President a nd Chief Executive Officer, Executive Vice President – Finance, Chief Financial Officer and Treasurer, Chief Accounting Officer, Vice President and Controller or Assistant Secretary of the Borrower or the chairman, president, chief executive officer, chief financial officer, chief accounting officer, treasurer, controller, secretary or any vice president of the applicable Loan Party, or the Senior Vice President – Finance and Treasurer, Vice President and Assistant Treasurer or Vice President and Assistant Controller of the Parent Company and, solely for purposes of notices given pursuant to Article II , any other officer or employee of the Borrower so designated by any two of the foregoing officers in a notice to the Administrative Agent or any other office r or employee of the Borrower designated in or pursuant to an agreement between the Borrower and the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.
" Restricted Payment " means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interest, or on account of any return of capital to the Borrower's stockholders, partners or members (or the equivalent Person thereof).
" Revolving Credit Exposur e " means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Committed Loans and such Lender's participation in L/C Obligations and Swing Line Loans at such time.
" S&P " means Standard and Poor's Rating Services, a Standard & Poor's Financial Services LLC business, and any successor thereto.
" S&P Rating " means, at any time, the rating issued by S&P, and then in effect with respect to the Borrower's senior unsecured long-term debt securities.
" Sale and Leaseback Transaction " means any arrangement with any Person providing for the leasing (as lessee) by the Borrower or any of its Subsidiaries of any property (the primary purpose of the transaction of which such lease is a part is not to provide funds to or financin g for the Borrower or any Subsidiary), which property has been or is to be sold or transferred by the Borrower or any Subsidiary to a Subsidiary or any other Person in contemplation of or in connection with such arrangement.
" Sanction(s) " means any economi c or financial sanctions or trade embargoes imposed, administered or enforced by the United States Government (including without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty's Treasury ("HMT") or other relevant sa nctions authority.
" SEC " means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
" Securitization Assets " means accounts receivable of the Borrower or any of its Subsidiaries arising from eq uipment installment plans and other similar consumer equipment financing arrangements, and any assets related thereto including, without limitation, all collateral securing such accounts receivable, all contracts and all guarantees or other obligations in respect of such accounts receivable, the proceeds of such accounts receivable and other assets which are customarily transferred, or in respect of which security interests are customarily granted, in connection with securitizations involving such accounts receivable.
" Securitization Entity " means, as to the Borrower, or any of its Subsidiaries, any bankruptcy-remote, special purpose corporation, partnership, trust, limited liability company or other business entity that is formed by and will remain wholly-o wned by the Borrower or any of its Subsidiaries for the sole and exclusive purpose of purchasing or financing Securitization Assets pursuant to a Receivables Securitization and which is designated by the Board of Directors of the Borrower as a Securitizati on Entity in accordance with the terms of this Agreement.
" Special Entity " means a Person (other than a Subsidiary) (a) listed on Schedule 1.01 and in existence on the Closing Date or (b) created after the Closing Date and with respect to which (i) the B orrower or any Subsidiary has made an equity Investment and directly or indirectly owns a minority interest, or any Special Entity has made an Investment and directly or indirectly owns an interest and (ii) the Borrower has delivered prior written notice t o the Administrative Agent of the creation of such Special Entity and its designation as a Special Entity.
" Specified Acquisition " means (a) any acquisition for consideration equal to or greater than $50,000,000 or (b) any other acquisition designed as a " Specified Acquisition" by the Borrower in the applicable Compliance Certificate.
" Specified Disposition " means (a) any Disposition having gross sales proceeds equal to or greater than $50,000,000 or (b) any other Disposition designed as a "Specified Disposition" by the Borrower in the applicable Compliance Certificate.
" Specified Equity Interests " means Equity Interests owned by the Borrower or any of its Subsidiaries in any Person or Persons that (i) are not directly, or indirectly through one or mor e intermediaries, Controlled by the Borrower or by any of its Subsidiaries and (ii) are either disclosed on Schedule 5.13 , or acquired by the Borrower after the Closing Date in connection with an acquisition expressly permitted under Section 7.02 or a dive stiture expressly permitted under Section 7.05 .
" Specified Loan Party " means any Loan Party that is not an "eligible contract participant" under the Commodity Exchange Act (determined prior to giving effect to Section 10.23 ).
" Specified Transactions " mean s (a) any Specified Disposition and (b) any Specified Acquisition.
" Standard Securitization Undertakings " means representations, warranties, covenants, indemnities and other obligations, including with respect to servicing obligations (provided that, in n o event shall any such obligations constitute Indebtedness) made or provided by the Borrower or any Subsidiary in connection with a Receivables Securitization (a) of a type and on terms customary for comparable transactions and of a character appropriate f or the assets being securitized and (b) which have been negotiated at arm's length with an unaffiliated third party; provided that any such undertaking by and between the Borrower or any Subsidiary and a Securitization Entity shall be excluded from the req uirement in this clause (b) if (i) clause (a) is satisfied and (ii) such undertaking is in connection with a Receivables Securitization involving an unaffiliated third party.
" Subordination Agreement " means a Subordination Agreement, substantially in the f orm of Exhibit H or any other form approved by the Administrative Agent.
" Subsidiary " of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governi ng body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise Controlled, directly, or indirectly through one or more intermediari es, or both, by such Person. Unless otherwise specified, all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower. For the avoidance of doubt, no Non-Subsidiary Variable Interest Entity shal l be considered a "Subsidiary" hereunder for any purpose other than solely as contemplated by Section 1.03(c) .
" Swap Contract " means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity s waps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreig n exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the fore going (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the t erms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, toge ther with any related schedules, a " Master Agreement "), including any such obligations or liabilities under any Master Agreement.
" Swap Obligations " means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or trans action that constitutes a "swap" within the meaning of Section 1a(47) of the Commodity Exchange Act.
" Swap Termination Value " means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agree ment relating to such Swap
Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in subsection (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may i nclude a Lender or any Affiliate of a Lender).
" Swing Line Borrowing " means a borrowing of a Swing Line Loan pursuant to Section 2.04 .
" Swing Line Lender " means Toronto Dominion Bank in its capacity as provider of Swing Line Loans, or any successor swing l ine lender hereunder.
" Swing Line Loan " has the meaning specified in Section 2.04(a) .
" Swing Line Loan Notice " means a notice of a Swing Line Borrowing pursuant to Section 2.04(b) , which shall be substantially in the form of Exhibit B or any other form app roved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
" Swing Line Su blimit " means an amount equal to the lesser of (a) $25,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Commitments.
" Synthetic Lease Obligation " means the monetary obligation of a Person in connection with a transaction that is (a) treated and accounted for as a lease in the financial statements of such Person but (b) treated and accounted for as indebtedness in the tax statements of such Person, but in any case which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
" Taxes " means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
" Threshold Amount " means, on any date of determination and calculated as of the last day of the fiscal quart er for which financial statements were most recently delivered by the Borrower pursuant to Section 6.01(a) or 6.01(b) , as applicable, an amount equal to 7.5% of Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended.
" Toronto Dominion " means Toronto Dominion (Texas) LLC and its successors.
" Toronto Dominion Bank " means The Toronto-Dominion Bank, New York Branch and its successors.
" Total Outstandings " means the aggregate Outstanding Amount of all Loans and all L/C Obli gations.
" Type " means, with respect to a Committed Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.
" Unfunded Pension Liability " means the excess of a Pension Plan ' s benefit liabilities under Section 4001(a)(16) of ERISA, over the curren t value of that Pension Plan ' s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
" United States " and " U.S. " mean the United States of America.
" Unreimbu rsed Amount " has the meaning specified in Section 2.03(c)(i) .
" Variable Interest Entity " means any variable interest entity that the Borrower is required to consolidate at any time pursuant to FASB ASC 810 - Consolidation. Schedule 1.01 identifies the ent ities that are Non-Subsidiary Variable Interest Entities as of the date hereof. Schedule 5.13 identifies the entities that are Variable Interest Entities that are Subsidiaries as of the date hereof.
" wholly-owned " means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (i) director's qualifying shares and (ii) shares issued to foreign nationals to the extent required by applicable law) are owned by such Person and/or by one o r more wholly-owned Subsidiaries of such Person.
" Write-Down and Conversion Powers " means, 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 f or the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words " asset " and " property " shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
basis or any similar reference shall, in each case, be deemed to include each Non-Subsidiary Variable Interest Entity even though such Non-Subsidiary Variable Interest Entity is not a S ubsidiary as defined herein. For the avoidance of doubt, Subsidiaries that are Variable Interest Entities are included in the consolidated financial statements of the Borrower and its Subsidiaries and are included in the determination of any amount for th e Borrower and its Subsidiaries on a consolidated basis or any similar reference.
provided , however , that after giving effect to any Committed Borrowing, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender's Applicable Percentage of the Ou tstanding Amount of all L/C Obligations, plus such Lender's Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender's Commitment. Within the limits of each Lender's Commitment, and subject to the other terms an d conditions hereof, the Borrower may borrow under this Section 2.01 , prepay under Section 2.05 , and reborrow under this Section 2.01 . Committed Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.
converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
Administrative Agent in Article IX with respect to any acts taken or omissions suffered by the L/C Issuer in connection with Letters of Cre dit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term "Administrative Agent" as used in Article IX included the L/C Issuer with respect to such acts or omissions, and (B) as additi onally provided herein with respect to the L/C Issuer.
hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower or enter into the applicable amendment, as the case may be, in each case in accordance with the L/C Issuer's usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Len der shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender's Applicable Percentage times the amount of such Lette r of Credit.
" Honor Date "), the Borrower shall reimburse the L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrower fails to so reimburse the L/C Issuer by such time, the Administrative Agent shall prompt ly notify each Lender of the Honor Date, the amount of the unreimbursed drawing (the " Unreimbursed Amount "), and the amount of such Lender's Applicable Percentage thereof. In such event, the Borrower shall be deemed to have requested a Committed Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutili zed portion of the Aggregate Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by the L/C Issuer or the Administrative Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.
shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoup ment, defense or other right which such Lender may have against the L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default; or (C) any other occurrence, event or condition, whether or not simi lar to any of the foregoing; provided , however , that each Lender's obligation to make Committed Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse the L/C Issuer for the amount of any payment made by the L/C Issuer under any Letter of Credit, together with interest as provided herein.
any settlement entered into by the L/C Issuer in its discretion), each Lender shall pay to the Administrative Agent for the account of the L/C Issuer its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this subsection shall survive the payment in full of the Obligations and the termination of this Agreement.
The Borrower shall promptly examine a copy of each Letter of Credit and each amendm ent thereto that is delivered to it (at the time of delivery) and, in the event of any
claim of noncompliance with the Borrower ' s instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid. Notwithstanding anything to the contrary, the foregoing shall not excuse any L/C Issuer from liability to the Borrower to the ext ent of any direct damages (as opposed to consequential damages, claims in respect of which are waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such L/C Issuer's gross negligence or willful misco nduct when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.
Financial Telecommunication (" SWIFT ") message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
own account the customary issuance, presentation, amendment and o ther processing fees, and other standard costs and charges, of the L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.
Lender will confirm with the Administrative Agent (by telephone or in writing) t hat the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by t elephone or in writing) from the Administrative Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (I) directing the Swing Line Lender not to make such Swing Line Loan as a result of the limit ations set forth in the first proviso to the first sentence of Section 2.04(a) , or (II) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender wil l, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Borrower by either crediting the account of the Borrower on the books of the Swing Line Lender in immediatel y available funds or pursuant to other written direction of the Borrower.
from the date of such demand to the date such amount is returned, at a rate per annum equal to the Federal Funds Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the L enders under this subsection shall survive the payment in full of the Obligations and the termination of this Agreement.
be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 . Subject to Section 2.16 , each such prepayment sh all be applied to the Committed Loans of the Lenders in accordance with their respective Applicable Percentages.
Lender while such Lender is a Defaulting Lender at the time when an Event of Default exists.
accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a) , bear interest for one day. Each dete rmination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
A notice of the Administrative A gent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
greater than its pro rata share thereof as provided herein, then the Lender rec eiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Committed Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or ma ke such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Committed Loans and other amou nts owing them, provided that:
The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Laws, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrow er rights of setoff 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.
Borrower shall promptly (in the case of clause (iii) above) or within one Business Day (in all other cases), fo llowing any request by the Administrative Agent or the L/C Issuer, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv) above, after giving e ffect to Section 2.16 (a)(iv) and any Cash Collateral provided by the Defaulting Lender). Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Law s, to reimburse the L/C Issuer.
Collateral and the L/C Issuer may agree that Cash Collateral shall not be released but instead held to support future anticipated Fro nting Exposure or other obligations.
at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder with out giving effect to Section 2.16(a)(iv) . Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.16(a)(i i) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
Commitment. Subject to Section 10.24 , no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaultin g Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender's increased exposure following such reallocation.
which a Lender or the L/C Issuer for any reason fails to pay indefeasibly to the Administrative Agent as required by subsection (ii) of this subsection. A certificate as to the amount of any such payment or liability delivered to the Borrower by a Lender or the L/C Issuer (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lend er or the L/C Issuer, shall be prima facie evidence thereof, and shall include a certification that such claim is being made in compliance with Section 3.06(c) .
pursuant to the "business profits" or "other income" article of such tax treaty;
(C) any Foreign Lender shall, to the extent it is legally entitled 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 Len der 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 (or originals, if required by applicable law) of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirem ents 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 at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation
prescribed by applicable 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 Ag ent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold f rom such payment. Solely for purposes of this clause (D), "FATCA" shall include any amendments made to FATCA after the date of this Agreement.
letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (o r of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, within fift een days after demand by such Lender or the L/C Issuer setting forth in reasonable detail such increased costs (but shall not require any Lender to disclose any confidential or proprietary information, and with a copy of such demand to the Administrative A gent given in accordance with Section 3.06 ), the Borrower will pay to such Lender or the L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incur red or reduction suffered.
Borrower shall be prima facie evidence thereof, and such certificate shall include a certification that such claim is being made in compliance with Section 3.06(c) . The Borrower shall pay such Lender or the L/C Issuer, as the case may be, the amount shown as due on any such certificate within fifteen days after receipt thereof.
including any loss (other than loss of anticipated profits) or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any reasonable and customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating amou nts payable by the Borrower to the Lenders under this Section 3.05 , each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other borrowing in the London interbank eurodo llar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.
that there has been no event or circumstance since the date of the Audited Financial Statements that has had or could reasonably be expected to have, eithe r individually or in the aggregate, a Material Adverse Effect, (C) that neither the Borrower nor any Subsidiary is in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (D) that the Borrower has disclosed to the Administrative Agent and the Lenders all matters known to any Responsible Officer that, individually or in the aggregate, could reasonably be expected to result in a Material A dverse Effect;
settling of accounts between the Borrower and the Administrative Agent in accordance with the terms of this Agreement).
Without limiting the generality of the provisions of the last paragraph of Section 9.03 , for purposes of determining compliance with the conditions specified in this Section 4.01 , each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender pri or to the proposed Closing Date specifying its objection thereto.
Each Request for Credit Extension (o ther than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in S ections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
The Borrower represents and warrants to the Administrative Agent and the Lenders that:
course of business or otherwise in accordance with the terms of this Agreement since the date of the Audited Financial S tatements and for such defects in title or failure to have such title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of the Borrower and each of the Subsidiaries is subject to no Lien s, other than Liens permitted by Section 7.01 .
w here the failure to so qualify could not reasonably be expected to have a Material Adverse Effect. The Borrower and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan except for those that could not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect .
Credit will be used for any purpose in contravention or violation of Regulation U issued by the FRB. Following the application of the proceeds of each Borrowing or drawing under eac h Letter of Credit, not more than 25% of the value of the assets (either of the Borrower only or of the Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to any restriction contained in any agreement or instrument between the Borrower and any Lender or any Affiliate of any Lender relating to Indebtedness and within the scope of Section 8.01(e) will be margin stock.
Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any enabling l egislation or executive order relating thereto or successor statute thereto. The Borrower and its Subsidiaries are in compliance in all material respects with the Patriot Act.
So long as any Lender shall have any Commitment hereunder , any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01 , 6.02 , and 6.03 ) cause each Subsidiary to:
ended, in each case setting forth in comparative form, as applicable, prepared in accordance with GAAP consistently applied throughout the period covered thereby and in reasonable detail, such consolidated statements to be certified by the chief executive officer, chief financial officer, chief accounting officer, treasurer or controller of the Borrower as fairly presenting in all material respects the fina ncial condition, results of operations, common stockholders' equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes (other than as may be required i n connection with any Receivables Securitization).
of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation by the enforcement division of such agency regarding financial or other operational results of the Borrower or any Subsidiary; and
Information required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) (to the extent any such information is included in materials otherwise filed with the SEC) may be del ivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or provides a link thereto on the Borrower's website on the Internet at the website address listed on Schedule 10. 02 ; or (ii) on which such documents are posted on the Borrower's behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Adminis trative Agent); provided that: (i) upon written request by the Administrative Agent or any Lender, the Borrower shall deliver paper copies of such documents to the Administrative Agent or such Lender that requests the Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by the Administrative Agent or such Lender and (ii) the Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions ( i.e. , soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper or pdf copies of the Compliance Certificat es required by Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that ( a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, " Borrower Materials ") by posting the Borrower Materials on IntraLinks or another similar confidential and secure electronic system (the " Platform ") and (b) certain of the Lenders (each, a " Public Lender ") may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons' securities. All Borrower Materials that have been filed with the SEC and availabl e on the SEC's EDGAR system shall be deemed "PUBLIC." The Borrower hereby agrees that (w) all Borrower Materials (if any) that are to be made available to Public Lenders shall be clearly and conspicuously marked "PUBLIC" which, at a minimum, shall mean th at the word "PUBLIC" shall appear prominently on the first page thereof; (x) by marking Borrower Materials "PUBLIC," the Borrower shall be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuer and the Lenders to treat such Borro wer Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States
Federal and state securities laws ( provided , however , that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07 ); (y) all Borrower Materials marked "PUBLIC" are permitted to be made available through a portion of the Platform designated "Public Si de Information;" and (z) the Administrative Agent and the Arrangers 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 that is not designated "Public Side Informati on." Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials "PUBLIC."
Each notice pursuant to this Section 6.03 (other than Section 6.03(e) ) shall be accompanied by a written statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto, if any. Each notice pursuant to Section 6.03(a) shall describe with particularity any and a ll provisions of this Agreement and any other Loan Document that have been breached, if any.
failure to pay or discharge the same could not reasonably be expected to result in a Material Adverse Effect.
business or property (including without limitation the United States Foreign Corrupt Practices Act o f 1977, the UK Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions and applicable Sanctions), except in such instances in which (a) such requirement of applicable law or order, writ, injunction or decree is being conteste d in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.
Borrower to so discuss and advise) at the expense of the Borrower and at such reasonable times and intervals as any such Lender may reasonably request.
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:
b e limited to only that property (or any portion of such property) which secured the obligation so extended, renewed or replaced (plus any improvements on such property or portion of such property);
not permitted unless such Investments are made during a Guaranty Release Period) so long as in each case such Investments are (i) made in the ordinary course of business to fund operating expenses of such Subsidiary (in cluding, without limitation, purchases of inventory in the ordinary course of business and capital expenditures incurred in the ordinary course of business consistent with past practices but only to the extent they are Ordinary Capital Expenditures) and (i i) consistent with past practices of the Borrower and its Subsidiaries;
extensions thereof; provided that (i) the amount of such Indebtedness is not increased at the time of such refina ncing, refunding, renewal or extension except by an amount equal to accrued interest (but only such accrued interest scheduled to accrue and remain unpaid by its terms in accordance with the related debt instrument as in effect on the Closing Date) and a r easonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing, refunding, renewal or extension and by an amount equal to any existing commitments unutilized thereunder and (ii) the terms r elating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Borrower on a consolidated basis, such Person or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, ref unded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;
consolidations or mergers to which the Borrower or its successor or successors shall be a party or parties, provided , however , that, the Borrower hereby consents an d agrees that, upon any such consolidation or merger, the due and punctual payment of the principal of and interest on all of the Loans and the due and punctual performance and observance of all of the covenants, conditions and other obligations of this Ag reement and the Notes to be performed and observed by the Borrower, shall be expressly assumed in an agreement satisfactory in form and substance to the Administrative Agent and the Lenders, executed and delivered to the Administrative Agent by the Person formed by such consolidation or merger, provided , further , that the Person formed by such consolidation or merger shall be a Person organized and existing under the laws of the United States, any state thereof or the District of Columbia, and provided , fur ther , that immediately before and after giving effect to any such transaction (and treating any Consolidated Funded Indebtedness or Sale and Leaseback Transaction which becomes an obligation of the resulting or surviving Person as a result of such transact ion as having been incurred or entered into by such Person at the time of such transaction), no Default shall exist. Unless the conditions prescribed above in this Section 7.04(d) are satisfied, no such consolidation or merger shall be permitted;
subsection (c)(ii) to a Securitization Entity and any of its Subsidiaries are not permitted unless such Dispositions are made during a Guaranty Release Period), provided further that (x) if the transferor of such property is a Guarantor, the transferee thereof must be a Guarantor or another wholly-owned Subsidiary that becomes a Guarantor concurrently with such transaction and (y) if there exists any Event of Default at the time of any such Disposition or as a result of giving effect to any such Disposition, such Disposition under subsection (ii) hereof must be sales of property on fair and reasonable terms, in the ordinary course of business and consistent with past practices;
used by the Borrower immediately upon receipt thereof to (A) prepay the Outstanding Amounts of all Committed Loans, Swing Line Loans and Unreimbursed Amounts (including all L/C Borrowings) and (B) to the extent there remain any Net Proceeds after all Outstanding Amounts referenced in subsection (A) above have been reduced to zero, to Cash Collateralize the aggregate amount available to be drawn under all outstanding Letters of Cr edit until all outstanding Letters of Credit have been fully Cash Collateralized, (ii) such Disposition is for fair value (which shall be the price at which the Board of Directors of the relevant Person shall have agreed to sell such assets in an arm's len gth transaction to an independent third party buyer which is not an Affiliate) and (iii) the Aggregate Commitments are concurrently, automatically and permanently reduced by the full amount of the Net Proceeds (and the Borrower delivers a written acknowled gement to the Administrative Agent of a concurrent automatic permanent reduction of the Aggregate Commitments in the amount of the Net Proceeds (regardless of whether there exist at any such time any Outstanding Amounts or any outstanding Letters of Credit )), the Borrower and its Subsidiaries may make any Disposition (except (x) Dispositions of all or substantially all of the assets of the Borrower are not permitted, and (y) Dispositions pursuant to this subsection (g) to a Securitization Entity and any of its Subsidiaries are not permitted unless such Dispositions are made during a Guaranty Release Period); and
provided , however , that in each case of subsections (a) through (g) above and notwithstanding anything in this Section 7.05 or otherwise herein or in any Loan Documents, each such Disposition shall be, in Borrower's commercially reason able judgment, for fair market value.
portion of the exercise price of or tax withholding obligation with respe ct to such options or warrants;
Notwithstanding t he foregoing, neither the Borrower nor any of its Subsidiaries shall have any duty to comply with the requirements set forth in clause (a)(ii) above during a Guaranty Release Period.
stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.
Period |
Ratios |
|
|
|
From the Closing Date through June 30, 2019 |
3.25 to 1.00 |
|
|
From July 1, 2019 and thereafter |
3.00 to 1.00 |
|
of 1977, the UK Brib ery Act 2010, and other similar anti-corruption legislation in other jurisdictions.
(B) fails to observe or perform any other agreement or condition relating to any such Indebtedness (other than Indebtedness hereunder and Indebtedness under Swap Contracts) or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of any G uarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (aut omatically or otherwise), or an involuntary offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there o ccurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract ) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower or such Subsidiary as a result the reof is greater than the Threshold Amount (unless such Swap Contract is in connection with a Monetization Transaction for which the Swap Termination Value may be satisfied by the delivery of the underlying Specified Equity Interests related to such Monetiz ation Transaction); or
individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 60 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or
provided , however , that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of
each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions sh all automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as af oresaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
First , to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (excluding principal and interest but including fees, charges and disbursements of counsel to the Administrative Agent to the extent the Borrower is obligated to reimburse such amounts in accordance with the Loan Documents and amounts payable under Article III ) payable to the Administrative Agent in its capacity as such;
Second , to payment of that portion of the Obligations constituting fees, indemniti es and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer to the extent the Borrower is oblig ated to reimburse such amounts in accordance with the Loan Documents, and amounts payable under Article III ), ratably among them in proportion to the respective amounts described in this subsection Second payable to them;
Third , to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the L/C Issuer in proportion to the respective amounts desc ribed in this subsection Third payable to them;
Fourth , to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings and Obligations then owing under Guarantied Hedge Agreements and Guarantied Cash Management Agreements, ratably among the Lenders, the L/C Issuer, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this subsection Fourth held by them;
Fifth , to the Administrative Agent for the account of the L/C Iss uer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and 2.15 ; and
Last , the balance, if any, aft er all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Sections 2.03(c) and 2.15 , amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to subsecti on Fifth 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 and, if no Obligations remain outstanding, to the Borrower, as applicable.
Notwithstanding the foregoing, Obligations arising under Guarantied Cash Management Agreements and Guarantied Hedge A greements shall be excluded from the application described above if the Administrative Agent has not received a Guarantied Party Designation Notice, together with such supporting documentation as the Administrative Agent may request, from the applicable Ca sh Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX hereof for itself and its Affiliates as if a "Lender" party hereto.
duties shall be administrative in nature. Without limiting the generality of the foregoing, the Adm inistrative Agent:
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent o r at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02 ) or (ii) in the absence of its own gross negligence, bad faith, fraud or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administ rative Agent by the Borrower, a Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditio ns set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condit ion set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telep hone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Let ter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, the Administrative Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless the Administrative Agent shall have recei ved notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
made by or to each Lender and the L/C Issuer directly, until such t ime as the Required Lenders appoint (with, if applicable, the consent of the Borrower) a successor Administrative Agent as provided for above in this Section. Upon the acceptance of a successor's appointment as Administrative Agent hereunder, such success or shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the retiring Administrative Agent (other than as provided in Section 3.01(g) and other than any rights to ind emnity payments or other amounts owed to the retiring Administrative Agent as of the effective date of such resignation) shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged there from as provided above in this Section). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring Admini strative Agent's resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Administrative Agent, its sub ‑ agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Administrative Agent was acting as Administrative Agent.
Any resignation by Toronto Dominion as Administrative Agent pursuant to this Section shall also constitute Tor onto Dominion Bank's resignation as L/C Issuer and as Swing Line Lender. If Toronto Dominion Bank resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit out standing as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk participations pursuant to Section 2.03(c) . If Toronto Dominio n Bank resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c) . Upon the acceptance of a successor's appointment as a L/C Issuer or Swing Line Lender hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as applicable, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligation s hereunder or under the other Loan Documents, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retir ing L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 10.04 .
Nothing contained herein shall be deemed to authorize the Administrative Agent t o authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrativ e Agent to vote in respect of the claim of any Lender or the L/C Issuer in any such proceeding.
Guarantor shall be automatically released from the Guaranty. Upon release of any Person pursuant to this Section 9.10 , the Administrative Agent shall (to the extent applicable) deliver to the Borrower, upon the Borrower's request and at the Borrower's reasonable expense, such documents as may be reasonably necessary to evidence the release of such Person from its obligat ions under the Loan Documents. Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent's authority to release any Guarantor from its obligations under the Guaranty pursuant to this Sectio n 9.10 .
Document, without the written consent of each Lender directly affected thereby; provided , however , that only the consent of the Required Lenders shall be necessary to amend the definit ion of "Default Rate" or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate;
and, provided further , th at (i) no amendment, waiver or consent shall, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Cred it issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) n o amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iv) eith er of the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any ame ndment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender (it being understood that any Commitment or Loans held or deemed held by any Defaulting Lender shall be exclu ded for a vote of the Lenders hereunder requiring any consent of the Lenders, except increasing such Defaulting Lender's Commitment or extending date fixed hereunder for payment).
Notwithstanding the foregoing or any other provision in this Agreement or a ny other Loan Document to the contrary, if the Administrative Agent and the Borrower identify any ambiguity, omission, mistake, typographical error, inconsistency or other defect in any provision of this Agreement or any other Loan Document, then the Admin istrative Agent and the Borrower are permitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error, inconsistency or other defect; provided that , no such agreement shall amend, modify or otherwise a ffect the rights or duties of the Administrative Agent, the Swing Line Lender or the L/C Issuer hereunder without the prior written consent of the Administrative Agent, the Swing Line Lender or the L/C Issuer, as the case may be.
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such su bsection (b).
Unless the Administrative Agent otherwise prescribes, (i) notices and other c ommunications sent to an e-mail address shall be deemed received upon the sender's receipt of an acknowledgement from the intended recipient (such as by the "return receipt
requested" function, as available, return e-mail or other written acknowledgement ), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing subsection (i) of notification that such notice or commu nication is available and identifying the website address therefor; provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the ope ning of business on the next business day for the recipient.
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, incl uding United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the "Public Side Information" portion of the Platform and that may contain material non-public information with respect to th e Borrower or its securities for purposes of United States Federal or state securities laws.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents aga inst the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at Law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuer; provided , however , that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administ rative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereun der and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.13 ), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided ,
further , that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in subse ctions (b), (c) and (d) of the preceding proviso and subject to Section 2.13 , any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiari es, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party, and reg ardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE; provided that such indemnity shall not, as to any Indem nitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, bad faith, fraud or willful misconduct of such Indemnitee, (y) result from any dispute solely among Indemnitees, other than claims against an Indemnitee in its capacity or fulfilling its role as the Administrative Agent, an Arranger or similar role under the Loan Documents a nd other than any claims arising directly or indirectly as a result of any act or omission by the Borrower or any Subsidiary or (z) result from a claim brought by the Borrower or any other Loan Party against an Indemnitee for breach in bad faith of such In demnitee's obligations hereunder or under any other Loan Document, if the Borrower or such Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.
recipients of any information or other materials distributed to such unintended recipients by such In demnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting fro m the gross negligence, bad faith, fraud or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.
party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Adm inistrative Agent, the L/C Issuer and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
funding, with the consent of the Borrower a nd the Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, the L/C Issuer or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full pro rata share of all Loans and participations in Letters of Credit and Swing Line Loans in accordance with its Applicable Percentage. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without co mpliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement an d, 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 Assumpti on, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01 , 3.04 , 3.05 , and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided , that except to the extent otherwise expressly agreed by the affected parties , no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender's having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects suc h Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01 , 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation) ; provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 10.13 as if it were an ass ignee under paragraph (b) of this Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04 , with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitl ed to receive, unless the sale of the participation to such Participant is made with the Borrower's prior written consent . A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Bo rrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as though it were a Lender. Each Lender that sells a participation agrees, at the Borrower's requ est and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.0 8 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 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 stated interest) of each Participant's interest in the Loans or other obligations under the Loan Documents (the " Participant Register "); provided that no L ender shall have any obligation to disclose all or any portion of the Participant Register (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 obliga tions under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit 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 such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreemen t notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) t o the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to t his Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective a ssignee of or Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.14(c) or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or othe r transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder, (g) on a confidential basis to (i) any rating agency in connection with rating the Borrower or its Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Borrower or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to the Administrative Agent, any Lender, the L/C Issuer or any of their respective Affi liates on a nonconfidential basis from a source other than the Borrower. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and customary information about this Agreement to market data collectors, similar s ervice providers to the lending industry and service providers to the Administrative Agent and the Lenders in connection with the administration of this Agreement, the other Loan Documents, and the Commitments.
For purposes of this Section, " Information " m eans all information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary, provided that, in the case of information received from the Borrower or any Subsidiary after the date hereof, such information is not identified as "PUBLIC" pursuant to Secti on 6.02 or is otherwise clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Pe rson has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Inf ormation may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-publi c information in accordance with applicable Law, including United States Federal and state securities Laws.
hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g. " pdf" or "tif") shall be effective as delivery of a manually executed counterpart of this Agreement.
A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower or any of its Affiliates, or any other Person and (B) none of the Administrative Agent, any of the Arrangers or any of the Lenders has any obligation to the Borrower or any of its Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower and its Affiliates, and none of the Administrative Agent, any Arranger or any Lender has any oblig ation to disclose any of such interests to the Borrower or its Affiliates. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Administrative Agent and the Arrangers with respect to any b reach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
UNITED STATES CELLULAR CORPORATION |
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By: |
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/s/ Steve T. Campbell |
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Steven T. Campbell |
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Executive Vice President - Finance, Chief Financial Officer and |
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Treasurer |
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By: |
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/s/ Peter L. Sereda |
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Peter L. Sereda |
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Authorized Representative, and Senior Vice President - Finance and |
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Treasurer of Telephone and Data Systems, Inc. Parent Company of |
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Borrower |
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TORONTO DOMINION (TEXAS) LLC, |
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as Administrative Agent |
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By: |
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/s/ Wallace Wong |
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Wallace Wong |
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Authorized Signatory |
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THE TORONTO-DOMINION BANK, NEW |
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YORK BRANCH, |
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as a Lender, L/C Issuer and Swing Line Lender |
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By: |
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/s/ Alice Mare |
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Alice Mare |
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Authorized Signatory |
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WELLS FARGO BANK, NATIONAL |
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ASSOCIATION, |
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as a Lender |
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/s/ S. Michael St. Geme |
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S. Michael St. Geme |
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Managing Director |
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U.S. BANK NATIONAL ASSOCIATION, |
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By: |
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/s/ Eugene Butera |
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Eugene Butera |
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Assistant Vice President |
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ROYAL BANK OF CANADA, |
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By: |
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/s/ Alexander Oliver |
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Alexander Oliver |
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THE BANK OF NEW YORK MELLON, |
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By: |
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/s/ William M. Feathers |
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William M. Feathers |
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Vice President |
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THE BANK OF TOKOYO-MITSUBISHI UFJ, LTD., |
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By: |
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/s/ Ola Anderssen |
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Ola Anderssen |
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Director |
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THE NORTHERN TRUST COMPANY, |
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By: |
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/s/ Murtuza Ziauddin |
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Murtuza Ziauddin |
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Title: |
Vice President |
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THE PRIVATEBANK AND TRUST COMPANY, |
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/s/ Matthew Berman |
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Matthew Burman |
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Associate Managing Director |
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SPECIAL ENTITIES; NON-SUBSIDIARY VARIABLE INTEREST ENTITIES
Entities that are not and never have been Variable Interest Entities :
Allentown SMSA Limited Partnership
Farmers Cellular Telephone Company, Inc.
Farmers Mutual Cellular Telephone Company, Inc.
Fresno MSA Limited Partnership
Jefferson Cellular Telephone Compan
y, Inc.
Los Angeles SMSA Limited Partnership
Madison SMSA Tower Holdings LLC
Oklahoma City SMSA Limited Partnership
Oklahoma City SMSA Tower Holdings LLC
Pennsylvania RSA 1 Limited Partnership
Pennsylvania RSA No. 6
(I) Limited Partnership
Pennsylvania RSA No. 6(II) Limited Partnership
Redding MSA Limited Partnership
Relay Ventures Parallel Fund III LP
Texas RSA 6 Limited Partnership
Texas RSA 6 Tower Holdings, LP
Venus Cellular Te
lephone Company, Inc.
Entities that previously were and continue to be Variable Interest Entities where Borrower ONLY has contractual rights but NO equity interest (1):
King Street Wireless, Inc., the general partner of King Street Wireless, L.P.
Frequency Advantage, L.P., the general partner of Advantage Spectrum, L.P.
Entities that previously were and continue to be Variable Interest Entities where Borrower has contractual rights AND an equity interest (2):
King Street Wireless, L.P.
Advantage Spectrum, L.P.
Entities that previously were NOT Variable Interest Entities BUT are now Variable Interest Entities due to changes in GAAP (3):
Iowa RSA No. 9 Limited Partnership
Iowa RSA No. 12 Limited Partnership
___________________
COMMITMENTS
AND APPLICABLE PERCENTAGES
Lender |
Commitment |
Applicable Percentage |
The Toronto-Dominion Bank, New York Branch |
$34,530,612.30 |
11.510204100286% |
Wells Fargo Bank, National Association |
$34,530,612.30 |
11.510204100286% |
CoBank, ACB |
$34,530,612.30 |
11.510204100286% |
U.S. Bank National Association |
$34,530,612.30 |
11.510204100286% |
Royal Bank of Canada |
$34,530,612.30 |
11.510204100286% |
Citibank, N.A. |
$33,061,224.21 |
11.020408070000% |
The Bank of New York Mellon |
$25,714,285.71 |
8.571428571429% |
SunTrust Bank |
$21,428,571.43 |
7.142857142857% |
The Bank Of Tokyo-Mitsubishi UFJ, LTD. |
$21,428,571.43 |
7.142857142857% |
The Northern Trust Company |
$15,000,000.00 |
5.000000000000% |
The PrivateBank and Trust Company |
$10,714,285.71 |
3.571428571429% |
Total |
$300,000,000.00 |
100.000000000000% |
EXISTING LETTERS OF CREDIT
Standby Letter of Credit No. 2100 issued October 5, 2007, expiring November 9, 2016 for the benefit of CITY OF KEENE in the face amount of $25,300.
Standby Letter of Credit No. DOW8Y5FI4 issued February 26, 2010, expiring February 25, 2017 for the benefit of CITY OF SACO in the face amount of $31,736.50.
Standby Letter of Credit No. A4QAN5EO5 issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $344,630.00.
Standby Letter of Credit No. A4QAN5F19 issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $784,193.58.
Standby Letter of Credit No. A4QAN5FAY issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $224,336.67.
Standby Letter of Credit No. A4QAN5FKN issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERS AL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $209,551.66.
Standby Letter of Credit No. A4QAN5FUG issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $478 ,574.66.
Standby Letter of Credit No. A4QAN5G49 issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $380,514.58.
Standby Letter of Credit No. A4QAN5GE2 issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $313,410.41.
Standby Letter of Credit No. A4QAN5GQE issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTR ATIVE COMPANY (“USAC”) in the face amount of $342,695.63.
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Standby Letter of Credit No. A4QAN5H07 issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $956,545.77.
Standby L etter of Credit No. A4QAN5JAN issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $492,013.82.
Standby Letter of Credit No. A4QAN5JGU issued May 30, 2013, expiring May 29, 2 017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $689,061.75.
Standby Letter of Credit No. A4QAN5JH7 issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USA C”) in the face amount of $1,542,385.96.
Standby Letter of Credit No. A4QAN5JKG issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $817,174.18.
Standby Letter of Credit No. A4QAN5JR2 issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $608,973.30.
Standby Letter of Credit No. A4QAN5JU9 issued May 30, 2013, expiring May 29, 2017 for the bene fit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $524,945.12.
Standby Letter of Credit No. A4QAN5K43 issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $750,362.34.
Standby Letter of Credit No. A4QAN5KDW issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $567,761.80.
Standby Letter of Credit No. A4QAN5KNP issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $240,983.44.
Standby Letter of Credit No. A4QAN5KXL issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SER VICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $423,259.56.
Standby Letter of Credit No. A4QAN5L7B issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $567,718.0 1.
Standby Letter of Credit No. A4QAN5LH4 issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $320,135.30.
Standby Letter of Credit No. D3TAN5BB5 issued May 30, 2013, expir ing May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $710,015.18.
Standby Letter of Credit No. D3TAN5BKV issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $228,150.90.
Standby Letter of Credit No. D3TAN5BUF issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $42,284.26.
Standby Letter of Credit No. A4QAN517C issued May 30, 2013, expiring May 29, 2017 for the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $2,389,865.40.
Standby Letter of Credit No. HMZAN412R issued May 30, 2013, expiring May 29, 2017 fo r the benefit of UNIVERSAL SERVICE ADMINISTRATIVE COMPANY (“USAC”) in the face amount of $2,431,465.92.
SUPPLEMENT TO INTERIM FINANCIAL STATEMENTS
SUBSIDIARIES;
OTHER EQUITY INVESTMENTS;
GUARANTORS
Part (a). Subsidiaries .
The following companies identified on Exhibit 21 to the Borrower's 10-K for the fiscal year ended December 31, 2015 should no longer be included as Subsidiaries:
None
The following companies should be added to the list of Subsidiaries identified on Exhibit 21 to the Borrower's 10-K for the fiscal year ended December 31, 2015:
None
The Borrower indirectly owns less than 100% of the following subsidiaries listed on Exhibit 21 to the Borrower's 10-K for the fiscal year ended December 31, 2015:
Bangor Cellular Telephone, L.P. (1) – 97.5723% interest
Cedar Rapids Cellular Telephone, L.P.(1) – 96.7636% interest
Community Cellular Telephone Company – 61.36% interest
Dubuque Cellular Telephone, L.P.
(1) – 97.5515% interest
Indiana RSA No. 4 Limited Partnership(1) – 85.714% interest
Indiana RSA No. 5 Limited Partnership(1) – 66.67% interest
Jacksonville Cellular Partnership – 97.567257% interest
Jacksonville Cellular Telephone Company - 97.567257% inte
rest
Kansas #15 Limited Partnership(1) – 75% interest
Kenosha Cellular Telephone, L.P.(1) – 99.3223%
Madison Cellular Telephone Company – 92.5% interest
New York RSA 2 Cellular Partnership – 57.1428% interest
Racine Cellular Telephone Company – 96.0833% in
terest
St. Lawrence Seaway RSA Cellular Partnership – 60% interest
Texahoma Cellular Limited Partnership(1) – 78.45135% interest
Western Sub-RSA Limited Partnership(1) – 98.2353% interest
Wilmington Cellular Partnership – 98.82064% interest
Wilmington Cell
ular Telephone Company - 98.82064% interest
Yakima MSA Limited Partnership(1) – 87.8085% interest
____________________
Part (b). Other Equity Investments .
Advantage Spectrum, L.P.(2) – 90% interest
Allentown SMSA Limited Partnership – 8.12% interest
Aquinas Wireless, L.P.(2) – 90% interest
Farmers Cellular Telephone Company, Inc. – 49% interest
Farmers Mutual Cellular Telephone Company, Inc. – 49% interest
Fresno MSA Limited Partnership – 1.9% interest
Iowa RSA No. 9 Limited Partnership(3) – 15.001% interest
Iowa RSA No. 12 Limited Partnership(3) – 24.5% interest
Jefferson Cellular Telep
hone Company, Inc. – 49% interest
King Street Wireless, L.P.(2) – 90% interest
Los Angeles SMSA Limited Partnership – 5.5% interest
Madison SMSA Tower Holdings LLC – 4.938% interest
Oklahoma City SMSA Limited Partnership – 14.6% interest
Oklahoma City SMSA
Tower Holdings LLC – 14.6% interest
Pennsylvania RSA 1 Limited Partnership – 9.80% interest
Pennsylvania RSA No. 6(I) Limited Partnership – 8.17% interest
Pennsylvania RSA No. 6(II) Limited Partnership – 8.17% interest
Redding MSA Limited Partnership – 2.
9% interest
Relay Ventures Parallel Fund III LP – 4.5% interest
Texas RSA 6 Limited Partnership – 13.5% interest
Texas RSA 6 Tower Holdings, LP – 13.5% interest
Venus Cellular Telephone Company, Inc. – 49% interest
CoBank Capital Participation Certificate - $ 85,300.00 as of April 30, 2016 (relating to USCOC of Pennsylvania RSA No. 10-B2, Inc.)
Rural Telephone Fin
ance Cooperative (RTFC) Capital Participation Certificate - $ 29,754.59 as of April 30, 2016 (relating to USCOC of Pennsylvania RSA No. 10-B2, Inc.)
____________________
CellVest, Inc.
USCC Distribution Co., LLC
USCC Financial L.L.C.
USCC Services, LLC
USCC Purchase, LLC
USCC Real Estate Corporation
Barat Wireless, Inc.
Carroll PCS, Inc.
Hardy Cellular Telephone Company
Humphreys County Cellular, Inc.
Iowa RSA #3, Inc.
Iowa RSA #12, Inc.
McDaniel Cellular Telephone Company
USCC Wireless Investment, Inc.
USCOC of Oregon RSA #5, Inc.
USCOC of Washington-4, Inc.
Vermont RSA No. 2-B2, Inc.
United States Cellular Investment Company, LLC
Eastern North Carolina Cellular Joint
Venture
EXISTING INDEBTEDNESS
As of April 30, 2016 |
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Borrower Subsidiaries— |
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Obligation on capital leases of Subsidiaries |
$ |
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Total debt recorded in books of Subsidiaries |
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EXISTING MATERIAL DEBT INSTRUMENTS
Borrower:
Subordinated Indenture dated September 16, 2013 between Borrower and the Bank of New York Mellon Trust Company (“Trustee”) (no debt currently issued under this instrument)
Senior Indenture dated June 1, 2002, between Borrower and Tru stee, including the following supplemental indentures pursuant to which debt is currently outstanding:
Third Supplemental Indenture and Form of Note re initial offering of 6.7% Senior Notes due 2033 in the principal amount of $444,000,000
Fifth Supplementa l Indenture and Form of Note re additional offering of 6.7% Senior Notes due 2033 in the principal amount of $100,000,000
Sixth Supplemental Indenture and Form of Note re 6.95% Senior Notes due 2060 in the principal amount of $275,000,000
Seventh Supplemen tal Indenture and Form of Note re 7.25% Senior Notes due 2063 in the principal amount of $300,000,000
Eighth Supplemental Indenture and Form of Note re 7.25% Senior Notes due 2064 in the principal amount of $225,000,000
Term Loan Credit Agreement dated as of January 21, 2015, between Borrower and CoBank, ACB, in the original principal amount of $225,000,000, as amended and restated as of the date hereof
Subsidiaries:
The “Obligation on capital leases of Subsidiaries” of $2,200,000 as set forth on Schedule 7 .03, which is incorporated by reference herein.
ADMINISTRATIVE AGENT'S OFFICE;
CERTAIN ADDRESSES FOR NOTICES
BORROWER:
UNITED STATES CELLULAR CORPORATION
c/o Telephone and Data Systems, Inc. ("TDS")
30 N. LaSalle,
Suite 4000
Chicago, IL 60602
Attention: John M. Toomey, Vice President and Assistant Treasurer of TDS
Telephone: 312-592-5328 Facsimile: 608-830-5530
Electron
ic Mail:
John.Toomey@tdsinc.com
Website Address: www.uscellular.com U.S. Taxpayer Identification Number: 62-1147325
With a copy to (which shall not constitute notice)
UNITED STATES CELLULAR CORPORATION
8410
West Bryn Mawr Avenue
Chicago, Illinois 60631
Attention: Steven T. Campbell, Executive Vice President – Finance, Chief Financial Officer and Treasurer
Telephone: 773-399-4850
Facsimile: 773-399-8959
Electronic Mail: steve.campbell@uscellular.com
Website Address: www.uscellular.com
SIDLEY AUSTIN LLP
One S. Dearborn Street
Chicago, Illinois 60603
Attention: Stephen P. Fitzell, General Counsel of Borrower
T
elephone: (312) 853-7379
Facsimile: (312) 853-7036
Electronic Mail:
sfitzell@sidley.com
and
SIDLEY AUSTIN LLP
One S. Dearborn Street
Chicago, Illinois 60603
Attention: William S. DeCarlo, General Counsel of
TDS
Telephone: (312) 853-6094
Facsimile: (312) 853-7036
Electronic Mail:
wdecarlo@sidley.com
ADMINISTRATIVE AGENT:
Administrative Agent
'
s Office
(for payments and Requests for Credit Extensions):
TORONTO DOM
INION (TEXAS) LLC
31 West 52nd Street
New York, New York 10019-6101
Attention:
Agency Administration
Telephone:
416-982-3568
Facsimile:
416-982-5535
Electronic Mail:
TDSAgencyAdmin@tdsecurities.com
Administrative Agent's Account:
New York, New York, U.S.A. 10001
ABA No: 026-009-593
SWIFT: BOFAUS3N
Credit: Toronto-Dominion (Texas) LLC, 31 West 52nd Street, 22nd Floor, New York, New York, U.S.A. 10019
Account No: 6550-6-53000
Reference: United States Cellular Corporation
Other Notices as Administrative Agent
(
financials, bank group communications, etc.
):
TORONTO DOMINION (TEXAS) LLC
Agency Management
31 West 52nd Street
New York, New York 1
0019-6101
Attention:
Agency Administration
Telephone: 416-982-3568
Facsimile: 416-982-5535
Electronic Mail: TDSAgencyAdmin@tdsecurities.com
L/C ISSUER:
THE TORONTO DOMINION BANK, NEW YORK
BRANCH
Trade Operations
31 West 52nd Street
New York, New York 10019-6101
Attention: Agency Administration
Telephone: 416-307-0990
Facsimile:
416-982-5535
Electronic Mail:
TDSAgencyAdmin@tdsecurities.com
SWING LINE LENDER:
THE TORONTO DOMINION BANK, NEW YORK BRANCH
Trade Operations
31 West 52nd Street
New York, New York 10019-6101
Attention:
Agency Administration
Telephone: 416-307-0990
Facsimile:
416-982-5535
Electronic Mail:
TDSAgencyAdmin@tdsecurities.com
Account No.:
6550-6-53000
Ref:
United States Cellular Corporation
ABA#:
026009593
FORM OF COMMITTED LOAN NOTICE
Date: ___________, 20___
To: Toronto Dominion (Texas) LLC, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 15, 2016 (as amended, restated, extended, supplemented or otherwise modif ied in writing from time to time, the " Credit Agreement ;" the terms defined therein being used herein as therein defined), among United States Cellular Corporation, a Delaware corporation (the " Borrower "), the Lenders from time to time party thereto, Toron to Dominion (Texas) LLC, as Administrative Agent, and The Toronto-Dominion Bank, New York Branch, as L/C Issuer and as Swing Line Lender.
The Borrower hereby requests (select one):
[ ] A Committed Borrowing [ ] A conversion or continuation of Committed Loa ns
1. On _________________________________ (a Business Day).
2. In the amount of $__________________.
3. Comprised of _________________________. [Type of Committed Loans requested to be borrowed or to which existing Committed Loans are to be converted]
4. For Eurodollar Rate Loans: with an Interest Period of _______ months.
The Committed Borrowing, if any, requested herein complies with the provisos to the first sentence of Section 2.01 of the Credit Agreement.
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FORM OF SWING LING LOAN NOTICE
Date: __________, 20___
To: Toronto Dominion (Texas) LLC, as Administrative Agent and The Toronto-Dominion Bank, New York Branch as Swing Line Lender
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 15, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the " Credit Agreement ;" the terms defined therein being used herein as therein defined), among United States Cellular Corporation, a Delaware corporation (the " Borrower "), the Lenders from ti me to time party thereto, Toronto Dominion ( Texas ) LLC, as Administrative Agent, and The Toronto-Dominion Bank, New York Branch, as L/C Issuer and as Swing Line Lender.
The undersigned hereby requests a Swing Line Loan:
1. On _________________________ (a Business Day).
2. In the amount of $__________________.
The Swing Line Borrowing requested herein complies with the requirements of the provisos to the first sentence of Section 2.04(a) of the Agreement.
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FORM OF NOTE
_____________, 20___
FOR VALUE RECEIVED, the undersigned (the " Borrower ") hereby promises to pay to _____________________ or registered assigns (the " Lender "), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of June 15, 2016 (as am ended, restated, extended, supplemented or otherwise modified in writing from time to time, the " Credit Agreement ;" the terms defined therein being used herein as therein defined), among the Borrower, the Lenders from time to time party thereto, Toronto Do minion (Texas) LLC, as Administrative Agent, and The Toronto-Dominion Bank, New York Branch, as L/C Issuer and as Swing Line Lender.
The Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such pri ncipal amount is paid in full, at such interest rates and at such times as provided in the Credit Agreement. Except as otherwise provided in Section 2.04(f) of the Credit Agreement with respect to Swing Line Loans, all payments of principal and interest s hall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent ' s Office. If any amount is not paid in full when due hereunder, such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Note is also entitled to the benefits of the Guaranty. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK .
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _____________, 20___
To: Toronto Dominion (Texas) LLC, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 15, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the " Credit Agreement ;" the terms def ined therein being used herein as therein defined), among United States Cellular Corporation, a Delaware corporation (the " Borrower "), the Lenders from time to time party thereto, Toronto Dominion (Texas) LLC, as Administrative Agent, and The Toronto-Domin ion Bank, New York Branch, as L/C Issuer and as Swing Line Lender.
The undersigned Responsible Officer of the Borrower hereby certifies as of the date hereof that he/she is the of the Borrower, that, as such, he/she is authorized to execute and deli ver this Compliance Certificate (this " Certificate ") to the Administrative Agent on the behalf of the Borrower, and that:
[Use following paragraph 1 for fiscal year-end financial statements]
1. The Borrower has delivered the year-end audited financial sta tements required by Section 6.01(a) of the Credit Agreement for the fiscal year of the Borrower ended as of the above date, together with the report and opinion of an independent certified public accountant required by such Section.
[Use following paragrap h 1 for fiscal quarter-end financial statements]
1. The Borrower has delivered the unaudited financial statements required by Section 6.01(b) of the Credit Agreement for the fiscal quarter of the Borrower ended as of the above date. Such financial statements fairly present in all material respects the financial condition, results of operations, common stockholders' equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP for the period covered thereby, subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement a nd has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Borrower and its Subsidiaries during the accounting period covered by such financial statements.
3. A revi ew of the activities of the Loan Parties during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Loan Parties performed and observed all of their respective Obligatio ns under the Loan Documents, and
[as of the date of this Certificate, to the best knowledge of the undersigned, during such fiscal period each of the Loan Parties performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.]
--or--
[as of the date of this Certificate, to the best knowledge of the undersigned, during such fiscal period the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]
4. The financial covenant analyses and information set forth on Schedules 1 , 2 and 3 attached hereto are true and accurate in all material respects on and as of the date of this Cert ificate.
[5. Pursuant to Section 1.07 of the Credit Agreement, Consolidated EBITDA is being adjusted on a Pro Forma Basis with respect to (a) [describe acquisition] (a " Specified Acquisition ") and/or (b) [describe Disposition] (a " Specified Dispos ition ").]
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of
,
.
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For the Quarter/Year ended ______________(the " Statement Date ")
SCHEDULE 1
to the Compliance Certificate
($ in 000
'
s)
Section 7.10(a) – Consolidated Interest Coverage Ratio. |
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A. |
Consolidated EBITDA for four consecutive fiscal quarters ending on above date ("Subject Period"): |
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Consolidated Net Income for Subject Period: |
$____________ |
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Distributions received from unconsolidated subsidiaries (to the extent received in cash and not already included in Consolidated Net Income): |
$____________ |
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To the extent deducted from Consolidated Net Income, Consolidated Interest Charges for Subject Period: |
$____________ |
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To the extent deducted from Consolidated Net Income, provision for income taxes for Subject Period (net of any income tax credits for Subject Period): |
$__________ __ |
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To the extent deducted from Consolidated Net Income, depreciation, amortization and accretion expenses for Subject Period: |
$____________ |
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All other reductions of Consolidated Net Income for Subject Period which do not represent a cash item during the Subject Period: |
$____________ |
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All previous non-cash items deducted from Consolidated EBITDA pursuant to Line 8 below in a prior subject period which have become cash received items in the Subject Period: |
$____________ |
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All non-cash additions to Consolidated Net Income for Subject Period: |
$____________ |
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All previous non-cash items added to Consolidated EBITDA pursuant to Line 6 above in a prior subject period which have become cash paid items in the Subject Period: |
$____________ |
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Adjustments made on a Pro Forma Basis (if any) during the Subject Period: |
$____________ |
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Consolidated EBITDA (Lines I.A.1 + I.A.2 + I.A.3 + I.A.4 + I.A.5 + I.A.6 + I.A.7 – I.A.8 – I.A.9 ± I.A.10): |
$____________ |
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Consolidated Interest Charges for Subject Period: |
$____________ |
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Consolidated Interest Coverage Ratio (Line I.A.11 ¸ |
______ to 1.00 |
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Consolidated Funded Indebtedness at Statement Date: |
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Consolidated EBITDA for Subject Period (Line I.A.11 above): |
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Consolidated Leverage Ratio (Line II.A ¸ Line II.B): |
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Maximum permitted: |
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From the Closing Date through June 30, 2019 |
3.25 to 1.00 |
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From July 1, 2019 and thereafter |
3.00 to 1.00 |
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For the Quarter/Year ended ___________________(" Statement Date ")
SCHEDULE 2
to the Compliance Certificate
($ in 000
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Consolidated EBITDA
EBITDA |
Quarter Ended __________ |
Quarter Ended __________ |
Quarter Ended __________ |
Quarter Ended __________ |
Twelve Months Ended __________ |
Consolidated Net Income |
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+ Distributions received from unconsolidated entities |
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+ Consolidated Interest Charges |
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+ income taxes (net of any income tax credits) |
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+ depreciation expense |
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+ amortization expense |
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+ accretion expense |
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+ all other non-cash deductions |
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+ all previous non-cash items deducted from Consolidated EBITDA in a prior subject period which have become cash received items in the subject period |
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- non-cash income |
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- all previous non-cash items added to Consolidated EBITDA in a prior subject period which have become cash paid items in the Subject Period |
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± adjustments made on a Pro Forma Basis (if any) during the Subject Period |
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= Consolidated EBITDA |
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For the Quarter/Year ended ___________________(" Statement Date ")
SCHEDULE 3
to the Compliance Certificate
(a ) Material Domestic Subsidiaries formed or acquired during the fiscal quarter ending on the Statement Date :
(b) Domestic Subsidiaries that have become Material Subsidiaries during the fiscal quarter ending on the Statement Date :
(c) Material Domestic Subsidiaries Disposed of during the fiscal quarter ending on the Statement Date :
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this " Assignment and Assumption ") is dated as of the Effective Date set forth below and is entered into b y and between [the][each] 1 Assignor identified in item 1 below ( [the][each, an] " Assignor ") and [the][each] 2 Assignee identified in item 2 below ( [the][each, an] " Assignee "). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] 3 hereunder are several and not joint.] 4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the " Credit Agreement "), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in f ull.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees] , and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors] , subjec t to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor's][the respective Assignors'] rights and obligations in [it s capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstan ding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below (including, without limitation, the Letters of Credit, the Guaranty and the Swing Line Loans included in such facilities), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whet her known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, bu t not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clause (i) and (ii) above being referred to herein collectively as [the][an] " Assigned Interest "). Each such sale and assignment is without recourse to [the][any] Assignor and, except as
1 For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.
2 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed langu age
3 Select as appropriate.
4 Include bracketed language if there are either multiple Assignors or multiple Assignees.
expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
1.
Assignor
[s]
:
_
_____
________________________
______________________________
2.
Assignee
[s]
:
_
_____________________________
______________________________
[for each Assignee, indicate [Affiliate][Approved Fund] of [ identify Lender ]]
3. Borrower : United States Cellular Corporation
4. Administrative Agent : Toronto Dominion (Texas) LLC, as the administrative agent under the Credit Agreement
5. Credit Agreement : Credit Agreement, dated as of June 15, 2016, among United States Cellular Corporation, the Lenders from time to time party thereto, Toronto Dominion (Texas) LLC, as Administrative Agent, and The Toronto-Dominion Bank, New York Branch, as L/C Issuer and Swing Line Lender
6. Assigned Interest [s] :
Assignee[s] 6 |
Aggregate Amount of Commitment for all Lenders 7 |
Amount of Commitment Assigned |
Percentage Assigned of Commitment 8 |
CUSIP Number |
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_______________% |
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$________________ |
$________________ |
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$________________ |
$________________ |
_______________% |
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$________________ |
$________________ |
_______________% |
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[7. Trade Date : __________________] 9
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
5 List each Assignor, as appropriate.
6 List each Assignee, as appropriate.
7 Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
8 Set forth, to at least 9 decimals, as a percentage of the Commitment of all Lenders thereunder.
9
To be completed if the Assignor(s) and the Assignee(s) intend that the minimum a
ssignment amount is to be determined as of the Trade Date.
The terms set forth in this Assignment and Assumption are hereby agreed to: |
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ASSIGNOR[S] |
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[NAME OF ASSIGNOR] |
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By: |
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[NAME OF ASSIGNOR] |
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ASSIGNEE[S] |
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[NAME OF ASSIGNEE] |
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[Consented to and] 10 Accepted: |
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TORONTO DOMINION (TEXAS) LLC, |
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as Administrative Agent |
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[Consented to:] 11 |
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[NAME OF RELEVANT PARTY] |
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10 |
To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement. |
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11 |
To be added only if the consent of the Borrower and/or other parties (e.g. Swing Line Lender, L/C Issuer) is required by the terms of the Credit Agreement. |
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ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
[___________________]
1
2
STANDARD TERMS AND
CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties .
1.1. Assignor [s] . [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assig ned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is not a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Docum ent or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee [s] . [The][Each] Assignee (a) represents and warrants that ( i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the re quirements to be an assignee under Section 10.06(b)(iii) and (v) of the Credit Agreement (subject to such consents, if any, as may be required under Section 10.06(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender there under, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is expe rienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as app licable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without relian ce upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Inter est, and (vii) if it is a Foreign Lender, attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it
1 2 Describe Credit Agreement at option of Administrative Agent.
shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor fo r amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of inter est, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.
3. General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their r espective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by f acsimile shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
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Lender’s Domestic Wire Instructions |
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Lender’s Foreign Wire Instructions |
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Agent’s Wire Instructions |
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Bank Name: |
Bank of America, NT & SA |
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ABA/Routing No.: |
026009593 |
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Account Name: |
Toronto Dominion (Texas) LLC |
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Account No.: |
6550-6-53000 |
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Attention: |
Agency Services |
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Reference: |
United States Cellular Corporation |
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NON-U.S. LENDER INSTITUTIONS :
I. Corporations :
If your institution is incorporated outside of the United States for U.S. federal income tax purposes, and is the beneficial owner of the interest and other income it receives, you must complete one of the following three tax forms, as applicable to your institution: a) Form W-8BEN ( Certificate of Foreign Status of Beneficial Owner ), b) Form W-8ECI ( Income Eff ectively Connected to a U.S. Trade or Business ), or c.) Form W-8EXP ( Certificate of Foreign Government or Governmental Agency ).
A U.S. taxpayer identification number is required for any institution submitting Form W-8ECI. It is also required on Form W-8 BEN for certain institutions claiming the benefits of a tax treaty with the U.S. Please refer to the instructions when completing the form applicable to your institution. In addition, please be advised that U.S. tax regulations do not permit the acceptan ce of faxed forms. An original tax form must be submitted.
II. Flow-Through Entities :
If your institution is organized outside the U.S., and is classified for U.S. federal income tax purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY ( Certificate o f Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding ) must be completed by the intermediary together with a withholding statement. Flow-through entities other than Qualified Intermediaries are req uired to include tax forms for each of the underlying beneficial owners.
Please refer to the instructions when completing this form. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form (s) must be submitted.
U.S. LENDER INSTITUTIONS :
If your institution is incorporated or organized within the United States, you must complete and return Form W-9 (Request for Taxpayer Identification Number and Certification). Please be advised that we request that you submit an original Form W-9.
Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax form for your institution must be completed and returned prior to the first payment of income. Failure to pro vide the proper tax form when requested may subject your institution to U.S. tax withholding.
OPINION MATTERS
The matters contained in the following Sections of the Credit Agreement should be covered by the legal opinion:
FORM OF JOINDER AGREEMENT
JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of [_____________, 20___] (this " Joinder Agreement " or this " Agreement "), by and among [NEW LENDERS] (each, a " New Lender " and, collectively, the " New Lenders "), UNITED STATES CELLULAR CORPORATION, a Delaware corporation (the " Borrower "), and TORONTO DOMINION (TEXAS) LLC, as Administrative Agent (in such capacity, the " Administrative Agent ").
REC ITALS:
WHEREAS, reference is hereby made to the Credit Agreement, dated as of June 15, 2016 (as amended, supplemented or otherwise modified from time to time, the " Credit Agreement "), among the Borrower, the lenders from time to time party thereto, Toron to Dominion (Texas) LLC, as Administrative Agent, and The Toronto-Dominion Bank, New York Branch, as L/C Issuer and Swing Line Lender (capitalized terms used but not defined herein having the meaning provided in the Credit Agreement); and
WHEREAS, subject to the terms and conditions of the Credit Agreement, the Borrower may request an increase in the Aggregate Commitments by, among other things, entering into one or more Joinder Agreements with New Lenders;
NOW, THEREFORE, in consideration of the premises a nd agreements, provisions and covenants herein contained, the parties hereto agree as follows:
1. Each New Lender party hereto hereby agrees to commit to provide its new Commitment, as set forth on Schedule A annexed hereto, on the terms and subject to th e conditions set forth below.
2. Each New Lender (i) confirms that it has received a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information a s it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, any other New Lender or any other Lender, and based on such d ocuments and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to take such action as agent on i ts behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will pe rform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.
3. Each New Lender hereby agrees to make its respective Commitment on the following terms and conditions :
(a) New Lenders . Each New Lender acknowledges and agrees that upon its execution of this Agreement and the making of new Committed Loans, such New Lender shall become a "Lender" under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder.
(b) Credit Agreement Governs . T he new Committed Loans shall be subject to the provisions of the Credit Agreement and the other Loan Documents.
(c) Borrower's Certifications . By its execution of this Agreement, the Borrower hereby certifies that:
(i) The representations and warranties in or pursuant to the Loan Documents are true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date; and
(ii) No Default or Event of Default has occurred and is continuing as of the date hereof after giving effect to the increase in Aggregate Commitments.
(d) Notice . For purposes of the Credit Agreement, the initial notice address of each New Lender shall be as set forth below its signature below.
(e) Foreign Lenders . For eac h New Lender that is a Foreign Lender, delivered herewith to the Administrative Agent are such forms, certificates or other evidence with respect to U.S. federal withholding Tax as such New Lender may be required to deliver to the Administrative Agent purs uant to Section 3.01(e) of the Credit Agreement.
(f) Recordation of the New Loans . Upon execution and delivery hereof, the Administrative Agent will record the new Committed Loans made by each New Lender in the Register.
4. Amendment, Modification and Waiver . This Agreement may not be amended, modified or waived except as provided by Section 10.01 of the Credit Agreement.
5. Entire Agreement . This Agreement, the Credit Agreement and the other Loan Documents constitute the entire agreement among the p arties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.
6. GOVERNING LAW . THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK .
7. Severability . Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.
8. Cou nterparts . This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.
SUBORDINATION
AGREEMENT
dated as of June
15, 2016
-among-
TELEPHONE AND DATA SYSTEMS, INC. AND THE OTHER
SUBORDINATED CREDITORS
as Subordinated Creditors
UNITED STATES CELLULAR CORPORATION
as a Debtor
- and -
TORONTO DOMINION (TEXAS) LLC
as Administrati
ve Agent for the Senior Creditors
ARTICLE I DEFINITIONS |
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SECTION 1.1 |
Definitions in Senior Credit Agreement |
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SECTION 1.2 |
Certain Terms |
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SECTION 1.3 |
General Provisions Relating to Definitions |
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ARTICLE II CONSOLIDATED FUNDED INDEBTEDNESS SUBORDINATION ARRANGEMENTS |
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SECTION 2.1 |
Agreement to Subordinate; Addition of Subordinated Creditors and Subordinated Debt |
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SECTION 2.2 |
Limitations on Subordinated Debt Payments |
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SECTION 2.3 |
Permitted Sub Debt Payments; etc |
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SECTION 2.4 |
Payment Blockage Periods |
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SECTION 2.5 |
Bankruptcy or Insolvency Proceedings |
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SECTION 2.6 |
Certain Other Bankruptcy Matters; etc |
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SECTION 2.7 |
Delivery of Prohibited Payments or Distributions on Account of Subordinated Debt |
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SECTION 2.8 |
Subrogation |
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ARTICLE III LIMITATIONS ON CERTAIN ENFORCEMENT ACTIONS AND OTHER NEGATIVE COVENANTS |
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SECTION 3.1 |
Prohibitions on Commencement of Certain Enforcement Actions |
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SECTION 3.2 |
Limitations on Remedies Under Subordinated Debt Documents |
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SECTION 3.3 |
Limitations on Liens Securing Subordinated Debt |
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ARTICLE IV WAIVERS AND CONSENTS |
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SECTION 4.1 |
Waivers of Notice; etc |
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ARTICLE V ADDITIONAL REPRESENTATIONS AND OTHER COVENANTS |
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SECTION 5.1 |
Information Regarding Subordinated Debt |
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SECTION 5.2 |
Additional Representations and Covenants of Subordinated Creditors |
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SECTION 5.3 |
No Other Subordination |
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SECTION 5.4 |
Legend; etc |
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SECTION 5.5 |
Consent to Credit Agreement |
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SECTION 5.6 |
No Impairment |
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ARTICLE VI MISCELLANEOUS |
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SECTION 6.1 |
Effectiveness of Agreement |
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SECTION 6.2 |
Amendments, Waivers; etc |
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SECTION 6.3 |
Further Assurances |
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SECTION 6.4 |
Specific Performance; Remedies Cumulative |
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SECTION 6.5 |
Severability |
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SECTION 6.6 |
Continuing Agreement |
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SECTION 6.7 |
Successors and Assigns |
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SECTION 6.8 |
Notices |
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SECTION 6.9 |
Loan Document; etc |
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SECTION 6.10 |
CHOICE OF LAW |
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SECTION 6.11 |
WAIVER OF JURY TRIAL |
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SECTION 6.12 |
Survival |
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SECTION 6.13 |
Termination |
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SECTION 6.14 |
Indemnification |
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SECTION 6.15 |
Expenses of Enforcement |
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SECTION 6.16 |
Obligations Several; No Third Parties Benefited |
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SECTION 6.17 |
Counterparts |
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SECTION 6.18 |
Headings |
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Schedule A List of Debtors
Schedule B Permitted Sub Debt Payments
Schedule C List of Subordinated Creditors
Schedule D List of Subordinated Debt
Schedule E List of Subordinated Debt Documents
Schedule F List of Notice Addresses
LIST OF EXHIBITS
Exhibit A Form of Subordinated Creditor Supplement
Exhibit B Form of Subordinated Debt Supplement
This SUBORDINATION AGREEMENT is entered into as of June 15, 2016 by and among: (A) TELEPHONE AND DATA SYSTEMS , INC. , a Delaware corporation, as a "Subordinated Creditor" hereunder; (B) each of the other SUBORDINATED CREDITORS (as defined below); (C) UNITED STATES CELLULAR CORPORATION , a Delaware corporation (hereinafter, together with it s successors in title and assigns, called the " Borrower "), as a "Debtor" hereunder, and (D) TORONTO DOMINION (TEXAS) LLC , not in its individual capacity, but in its capacity as Administrative Agent (as defined below) for the Senior Creditors (as defined be low).
PRELIMINARY STATEMENTS.
(1) Upon the terms and subject to the conditions contained in the Credit Agreement, dated as of June 15, 2016, among the Borrower, the Senior Lenders (as defined below) party thereto on and as of the date hereof, Toronto Domi nion (Texas) LLC, as Administrative Agent for the Senior Creditors (as defined below) and The Toronto-Dominion Bank, New York Branch, as L/C Issuer (as amended and in effect from time to time, the " Senior Credit Agreement "), the Senior Lenders agreed to make Extensions of Credit to the Borrower.
(2) This Agreement contains terms and provisions of subordination that are required by the Senior Creditors in connection with financing arrangements governed by the Senior Credit Agreement, and it is a condition precedent to the making of additional Extensions of Credit under the Senior Credit Agreement that the Subordinated Creditors and the Borrower shall have entered into this Agreement and shall have agreed to become bound by the terms of subordination and ot her provisions contained herein.
(3) The Subordinated Creditors and the Borrower have agreed with the Administrative Agent, acting for and on behalf of all of the Senior Creditors, to execute and deliver this Agreement and to become bound by the terms of subordination and other provisions set forth herein.
NOW, THEREFORE , in consideration of these premises, the Subordinated Creditors and the Borrower hereby agree with the Administrative Agent, acting for and on behalf of all of the Senior Creditors, as fol lows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 Definitions in Senior Credit Agreement . Unless otherwise defined herein, terms defined in the Senior Credit Agreement (as in effect on the date hereof) are used herein as therein defined.
SECTION 1.2 Certain Terms . The following terms, when used in this Agreement, including the introdu ctory paragraph and the Preliminary Statements hereto, shall, except where the context otherwise requires, have the following meanings:
" Administrative Agent " means Toronto Dominion (Texas) LLC, not in its individual capacity, but in its capacity as administrative agent for the Senior Creditors under the Senior Credit Agreement and the other Senior Loan Documents, and any successor to such administrative agent.
" Affiliate " means any Person that would be considered to be an affiliate of another Person under Rule 144(a) of the Rules and Regulations of the Securities and Exchange Commission, as in effect on the date hereof, if such other Person were issuing securities. For purposes of this Agreement, none of the Subsidiaries of the Borrower shall be deem ed to be an Affiliate of the Borrower or of any other Subsidiaries of the Borrower.
" Agreement " means this Subordination Agreement, as amended and in effect from time to time.
" Bankruptcy or Insolvency Proceeding " means, in relation or with respect to any Debtor or any other Person, (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding, relative to such Person or to its creditors, as such, or to its Property, (b) any liquida tion, dissolution, reorganization or winding up of such Person, whether voluntary or involuntary, partial or complete, and whether or not involving receivership, insolvency or bankruptcy, or (c) any assignment for the benefit of creditors of such Person, o r any other marshalling of Property or liabilities of such Person.
" Borrower " has the meaning specified in the introductory paragraph hereto.
" Consolidated Funded Indebtedness " means, as of any date of determination, for the Borrower and its Subsidiaries o n a consolidated basis and without duplication, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations under the Senior Credit Agreement) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments (including, without limitation, all purchase money Indebtedness and all direct obligations arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, surety bonds and similar instruments), (b) all obligations incurred as the deferred purchase price of property or services (other than (i) trade payables entered into in the ordinary course of business pursuant to ordinary terms and (ii) ordin ary course of business purchase price adjustments and earnouts); (c) all reimbursement and other payment obligations with respect to letters of credit, bankers' acceptances, surety bonds and other similar documents; (d) all obligations evidenced by promiss ory notes, bonds, debentures or other similar instruments, including all obligations so evidenced that are incurred in connection with the acquisition of property or any business; (e) all indebtedness created under any conditional sale or other title reten tion agreements or sales of accounts receivable; (f) all non-recourse indebtedness of the kind described in clause (a) through clause (e) secured by Liens on property of the obligor; (g) Attributable Indebtedness in respect of capital leases and Synthetic Lease Obligations; (h) net obligations under any Swap Contract; (i) all Indebtedness of the types referred to in subsections (a) through (h) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liabi lity company) in which the Borrower or a Subsidiary is a general partner or party to such a joint venture (other than a limited partner in a limited partnership), unless such Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary an d (j) all Guarantees in respect
of indebtedness of the kind described in clause (a) through clause (h) above; excluding up to $25,000,000 in the aggregate of contingent liabilities of the Borrower and its Subsidiaries which are not required by GAAP to be recorded on the balance sheet of the Borrower and its Subsidiaries. For all purposes of this Agreement , the term "Consolidated Funded Indebtedness" shall not include, with respect to the Borrower and its Subsidiaries, the contractual and other similar obligations of the Borrower and its Subsidiaries with respect to any Monetization Transactions.
" Debtors " means, collectively, the Borrower, each (if any) of the Subsidiaries of the Borrower identified on Schedule A attached hereto, and each (if any) of the other Subsidiaries of the Borrower which is an obligor of any kind with respect to any Subordinated Debt .
" Enforcement Action " means, in relation to or with respect to any Debtor or any other Person, any of the following:
(a) the acceleration of the maturity of all or any part of any Consolidated Funded Indebtedness of such Person;
(b) the commencement or pursuit of any action at law or other legal proceeding against such Person to collect all or any part of any Consolidated Funded Indebtedness of such Person, or the enforcement of any other rights or remedies against such Person under or with respect to al l or any part of any Consolidated Funded Indebtedness of such Person, whether by action at law, suit in equity, arbitration proceedings or any other similar proceedings;
(c) the realization, foreclosure or other enforcement of any Liens of any kind on all or any part of any Property of such Person, or the obtaining of payment of any Consolidated Funded Indebtedness of such Person through exercise of any rights of set-off, counterclaim or cross-claim; or
(d) the commencement or initiation of any Bankruptcy or Insolvency Proceeding against such Person, or the joining with any other creditor or creditors of such Person to commence or initiate any Bankruptcy or Insolvency Proceeding against such Person.
" Equity Interests " means, with respect to any Person, all of the outstanding shares of capital stock of (or other ownership or profit interests in) such Person, all of the outstanding warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other owners hip or profit interests in) such Person, all of the outstanding securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisitio n from such Person of such shares (or such other interests), and all of the other outstanding ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not the share s underlying such warrants, options, rights or other interests are outstanding on any date of determination.
" Event of Default " has the meaning specified for that term in the Senior Credit Agreement.
" Extension of Credit " means the making of any advance or loan or the extension of any other credit or financial accommodation of any kind or character.
" Instrument " means any contract, agreement, indenture, mortgage or other document or writing (whether a formal agreement, letter or otherwise) under which any obligation is evidenced, assumed or undertaken, or any right to any Lien is granted or perfected.
" Parent Affiliated Companies " means, collectively, (a) the Parent Company, and (b) all Subsidiaries and Affiliates of the Parent Company, other than the Borr ower and the Borrower's Subsidiaries.
" Parent Company " means Telephone and Data Systems, Inc., a Delaware corporation.
" Payment Blockage Notice " has the meaning specified in Section 2.4(a) .
" Payment Blockage Period " means, in relation to any Payment Blocka ge Notice, the period beginning on the date on which such Payment Blockage Notice shall be received by the Parent Company (as provided in Section 2.4(a) ) and ending on the date determined pursuant to Section 2.4(b) .
" payment in full " and " paid in full " mea n payment in full in cash.
" payment or distribution on account of Subordinated Debt " means any payment or distribution of any kind or character, whether in cash or other Property, or any combination thereof, and whether voluntary or involuntary, (a) on acc ount of any principal of (or premium, if any), interest on, or other amounts owing in respect of all or any part of any Subordinated Debt, or (b) on account of any purchase, repurchase, redemption, retirement, prepayment, defeasance or other acquisition fo r value of any Subordinated Debt. For purposes of this Agreement, " payments or distributions on account of Subordinated Debt " shall in any event include: (i) all payments payable on account of Subordinated Debt by virtue of the provisions of, or any secu rity for, any Instrument governing any other Consolidated Funded Indebtedness of the Borrower or any of its Subsidiaries which is subordinate in right of payment to any Subordinated Debt; (ii) all payments on account of Subordinated Debt made through exerc ise of any rights of set-off, counterclaim or cross-claim; and (iii) all payments on account of Subordinated Debt made through realization, foreclosure or other enforcement of any Liens of any kind.
" Permitted Equity Interests " means any Equity Interests o f the Borrower on account of or with respect to which none of the Borrower or its Subsidiaries has any obligation of any kind to (a) declare or pay any dividends or make other distributions at any time on or prior to the Maturity Date, except dividends or other distributions to be paid in Permitted Equity Interests of the Borrower, (b) make any redemption, repurchase, retirement or acquisition, whether through the Borrower or any of its Subsidiaries or otherwise, at any time on or prior to the Maturity Date , except (in any such case) with Permitted Equity Interests of the Borrower, (c) make any return of capital to the holder thereof at any time on or prior to the Maturity Date, except with Permitted Equity Interests of the Borrower, or (d) make any other di stributions of any kind at any time on or prior to the Maturity Date, except distributions to be made in Permitted Equity Interests of the Borrower.
" Permitted Interest Payments " has the meaning specified in Section 2.3(a) .
" Permitted Sub Debt Payments " m eans, collectively, (a) Permitted Interest Payments, and (b) the other specific payments or distributions identified and described in Schedule B attached hereto (as amended or supplemented from time to time).
" Property " means any interest in any kind of property or asset, whether real, personal or mixed, and whether tangible or intangible.
" Senior Compliance Event of Default " means any Event of Default other than a Senior Payment Event of Default.
" Senior Credit Agreement " has the meaning specified in the Preliminary Statements hereto.
" Senior Creditors " means, collectively, the Administrative Agent, all of the Senior Lenders, the Hedge Banks, the Cash Management Banks, and each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05 of the Senior Credit Agreement. For purposes of this Agreement, the term " Senior Creditors " shall in any event include any and all lawful holders from time to time of all or any part of the Senior Debt.
" Senior Debt " means, collec tively, all Consolidated Funded Indebtedness of the Borrower or of any of its Subsidiaries, contingent or otherwise, now or hereafter existing, under or with respect to:
(a) the unpaid principal of any and all Senior Extensions of Credit made or to be mad e or otherwise extended to the Borrower or to any of its Subsidiaries under the Senior Debt Documents;
(b) interest (including interest accruing at the contract rate after the commencement of any Bankruptcy or Insolvency Proceedings in relation to the Bor rower or any of its Subsidiaries, whether or not such interest accrues after the commencement of such proceedings for purposes of any applicable insolvency laws or is an allowed claim in such proceedings) on Senior Extensions of Credit described in clause (a) or on any other Consolidated Funded Indebtedness described in this clause (b) or in clause (c) of this definition, and fees, costs, expenses, indemnities, reimbursements and other amounts owing under any Senior Debt Documents (whether or not any such f ees, costs, expenses or other amounts are incurred or otherwise accrue after the commencement of any Bankruptcy or Insolvency Proceedings in relation to the Borrower or any of its Subsidiaries, and whether or not all or any portion of any claims with respe ct thereto are allowed claims in any such proceedings); and
(c) claims by any of the Senior Creditors against the Borrower or any of its Subsidiaries under any guaranties by the Borrower or by any of its Subsidiaries of any Consolidated Funded Indebtednes s described in clause (a) or (b) of this definition (whether or not any of such claims are made against the Borrower or any of its Subsidiaries after the commencement of any Bankruptcy or Insolvency Proceedings with respect to any of such Persons, and whet her or not all or any portion of such claims are allowed claims in any such proceedings).
" Senior Debt Documents " means, collectively, (a) the Senior Credit Agreement, all of the other Senior Loan Documents, the Guarantied Cash Management Agreements and the Guarantied Hedge Agreements, (b) all other Instruments pursuant to which any Consolidated Funded Indebtedness owing to the Senior Creditors under the Senior Credit Agreement or any other Senior Loan Documents or any Guarantied Cash Management Agreement or Guarantied Hedge Agreement shall be deferred, extended, renewed, replaced, refunded or refinanced, in whole or in part, and without limitation as to parties, maturities, amounts, interest rates or other provisions, and (c) all other Instruments executed in connection with or evidencing, governing, guarantying or securing any Consolidated Funded Indebtedness under any Instruments referred to in clause (a) or (b) of this definition; in each case (with respect to any Instruments referred to in clause (a) , (b) or (c) ), as modified, amended or supplemented from time to time.
" Senior Extensions of Credit " means, collectively:
(a) any and all Extensions of Credit made or to be made or otherwise extended by Senior Creditors under or in respect of Senior Debt Documents at any time and from time to time on, prior to or after the date hereof to the Borrower or to any of its Subsidiaries; and
(b) any and all Extensions of Credit replacing, refunding or refinancing, in whole or in part, whether directly or indirectly, and without limitation as to parties, maturities, amounts, interest rates or other provisions, any or a ll of the Senior Debt described in clause (a) , clause (b) or clause (c) of that defined term.
" Senior Lenders " has the meaning specified in the Senior Credit Agreement for the term "Lenders".
" Senior Loan Documents " has the meaning specified in the Senior Credit Agreement for the term "Loan Documents".
" Senior Payment Event of Default " means any Event of Default resulting from any default by the Borrower in the payment or prepayment of any principal, interest or any other sum that has become due and payable under the Senior Credit Agreement or any of the other Senior Debt Documents.
" Subordinated Creditors " means, collectively, and in each case solely in their respective capacities as holders of Subordinated Debt, (a) the Parent Company, (b) each of the othe r Parent Affiliated Companies identified in Schedule C attached hereto (as amended or supplemented from time to time), and (c) each of the other Parent Affiliated Companies that, at any time after the date hereof, shall execute and deliver to the Administr ative Agent a Subordinated Creditor Supplement and thereby become a party hereto and bound hereby as a "Subordinated Creditor" hereunder.
" Subordinated Creditor Supplement " means any supplement to this Agreement, in or substantially in the form of Exhibit A attached hereto, by which any Parent Affiliated Company shall become a party to and bound by this Agreement as a "Subordinated Creditor" hereunder and under which additional Subordinated Debt and Subordinated Debt Documents shall be made subject to this Agreement.
" Subordinated Debt " means, collectively:
(a) all Consolidated Funded Indebtedness of the Borrower or of any of its Subsidiaries identified in Schedule D attached hereto (as amended or supplemented from time to time);
(b) all other Consolidated Funded Indebtedness of the Borrower or of any of its Subsidiaries from time to time identified and described in any Subordinated Creditor Supplement or any Subordinated Debt Supplement which at any time after the date hereof shall be executed by any Subordinated Creditor and delivered to the Administrative Agent;
(c) interest (including all (if any) interest accruing after the commencement of any Bankruptcy or Insolvency Proceedings in relation to the Borrower or any of its Subsidiaries) payab le on or with respect to any Consolidated Funded Indebtedness described in clause (a) , (b) , (c) , (d) or (e) of this definition, and all fees, costs, expenses, indemnities, reimbursements and other amounts owing in respect of any such Consolidated Funded In debtedness;
(d) all obligations of the Borrower or any of its Subsidiaries, contingent or otherwise, to purchase, repurchase, redeem, retire, prepay, defease or otherwise acquire any or all of the Consolidated Funded Indebtedness of the Borrower or of any of its Subsidiaries described in clause (a) , (b) , (c) or (e) of this definition; and
(e) all Consolidated Funded Indebtedness under or with respect to guaranties by the Borrower or by any of its Subsidiaries of any Consolidated Funded Indebtedness descri bed in any of clause (a) , (b) , (c) or (d) of this definition.
" Subordinated Debt Documents " means, collectively:
(a) all Instruments from time to time identified and described in Schedule E attached hereto (as amended and supplemented from time to time);
(b) all other Instruments from time to time identified and described in any Subordinated Creditor Supplement or any Subordinated Debt Supplement which at any time after the date hereof shall be executed by any Subordinated Creditor and delivered to the Ad ministrative Agent;
(c) each (if any) Instrument pursuant to which any Subordinated Debt of the Borrower or of any of its Subsidiaries to each or any of the Subordinated Creditors, whether now or hereafter existing, is or will be evidenced, governed, guar anteed or secured;
(d) each Instrument pursuant to which any Subordinated Debt to any of the Subordinated Creditors shall be deferred, extended, renewed, replaced, refunded or refinanced, in whole or in part; and
(e) each other Instrument executed in con nection with or otherwise evidencing, governing, guarantying or securing any Subordinated Debt of any kind, including, without limitation, any Subordinated Debt under any Instrument referred to in clause (a) , (b) , (c) or (d) of
this definition; in each c ase (with respect to any Instrument referred to in clause (a) , (d) or (e) of this definition), as modified, amended or supplemented from time to time.
" Subordinated Debt Supplement " means any supplement to this Agreement, in or substantially in the form of Exhibit B attached hereto, by which any Subordinated Debt and Subordinated Debt Documents shall be made subject to this Agreement and thereby become "Subordinated Debt" and "Subordinated Debt Documents" hereunder.
SECTION 1.3 General Provisions Relating to Definitions . Terms for which meanings are defined in this Agreement shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The term " including " means including, without limiting the generality of any description preceding such term. Each reference herein to any Person shall include a reference to such Person's successors in title and assigns or (as the case may be) his successors, assigns, heirs, executors, administrators and other legal represent atives. References to any Instrument defined in this Agreement refer, unless otherwise provided herein, to such Instrument as originally executed, or, if subsequently varied, replaced or supplemented from time to time, as so varied, replaced or supplement ed and in effect at the relevant time of reference thereto.
ARTICLE II
CONSOLIDATED FUNDED INDEBTEDNESS SUBORDINATION ARRANGEMENTS
SECTION 2.1 Agreement to Subordinate; Addition of Subordinated Creditors and Subordinated Debt .
(a) Each of the Subordinated Creditors severally agrees with and for the benefit of each of the Senior Creditors that all Subordinated Debt (whether now existing or from time to time after the date hereof incurred, assumed, created or arising) owing to it is h ereby expressly subordinated and made junior in right of payment, to the extent and in the manner hereinafter provided in this Article II , to the prior payment in full of all Senior Debt (whether now existing or from time to time after the date hereof incu rred, assumed, created or arising).
(b) Any Parent Affiliated Company which has not previously become a party to and bound by this Agreement as a "Subordinated Creditor" hereunder may at any time become a Subordinated Creditor under this Agreement by exe cuting and delivering to the Administrative Agent a properly completed Subordinated Creditor Supplement. Upon execution and delivery of a Subordinated Creditor Supplement by any Parent Affiliated Company, (i) such Parent Affiliated Company shall automatic ally (without any other action on the part of any party hereto) become a Subordinated Creditor hereunder for all purposes of this Agreement, (ii) the Consolidated Funded Indebtedness identified and described in such Subordinated Creditor Supplement shall a utomatically (without any other action on the part of any party hereto) become Subordinated Debt for all purposes of this Agreement, and (iii) all related Subordinated Debt Documents identified and described therein shall automatically (without any other a ction on the part of any party hereto) become Subordinated Debt Documents for all purposes of this Agreement.
(c) Any Consolidated Funded Indebtedness not previously designated as Subordinated Debt under this Agreement shall automatically become Subordin ated Debt under this Agreement upon the due execution by the Subordinated Creditor to whom such Consolidated Funded Indebtedness is owed and delivery to the Administrative Agent of a properly completed Subordinated Debt Supplement identifying and describin g such Consolidated Funded Indebtedness and all Subordinated Debt Documents pursuant to which such Subordinated Debt is evidenced or governed. Upon execution and delivery of a Subordinated Debt Supplement with respect to any Consolidated Funded Indebtedne ss, such Consolidated Funded Indebtedness and all related Subordinated Debt Documents described therein shall automatically (without any other action on the part of any party hereto) become Subordinated Debt and Subordinated Debt Documents for all purposes of this Agreement.
SECTION 2.2 Limitations on Subordinated Debt Payments . Except as and to the extent otherwise expressly permitted or provided by Sec tions 2.3 and 2.5 hereof, neither the Borrower nor any of its Subsidiaries shall at any time make any payments or distributions of any kind on account of Subordinated Debt, whether in cash, securities or other Property or by way of conversion, exchange or set-off or otherw ise, and the Subordinated Creditors shall not at any time demand, receive or accept from the Borrower or from any of its Subsidiaries any payments or distributions on account of Subordinated Debt.
SECTION 2.3 Permitted Sub Debt Payments; etc .
(a) So long as no Payment Blockage Period shall be continuing at the time of payment, the Borrower and its Subsidiaries shall be permitted to pay to Subordinated Creditors, and Subordinated Creditors shall be entitled to receive and apply, interest that has accrued on Subordinated Debt at the applicable contract rates of interest set forth in the applicable Subordinated Debt Documents (as in effect on the date such documents shall become Subordinated Debt Documents) (all such permitted payments of interest being herein called " Permitted Interest Payments "). No prepayments of interest which have not yet accrued under the applicable Subordinated Debt Documents shall be permitte d by this Agreement, and no such prepayments of such interest shall constitute " Permitted Interest Payments " for purposes of this Agreement.
(b) So long as no Payment Blockage Period shall be continuing, the Borrower and its Subsidiaries shall be permitted to pay to Subordinated Creditors, and Subordinated Creditors shall be entitled to receive and apply, the other Permitted Sub Debt Payments ident ified and described in Schedule B attached hereto (as amended and supplemented from time to time).
(c) So long as no Bankruptcy or Insolvency Proceeding shall be continuing with respect to the Borrower or any of its Subsidiaries, Subordinated Creditors sh all be entitled, at any time and from time to time, to convert all or any part of any Subordinated Debt into, or (as the case may be) to exchange all or any part of any Subordinated Debt for, Permitted Equity Interests of the Borrower.
(d) Except as other wise expressly permitted by paragraph (a) , paragraph (b) or paragraph (c) of this Section 2.3 or by Section 2.5 hereof, or as otherwise expressly consented to in writing by the Administrative Agent in any particular instance, the limitations on the making
of payments or distributions on account of Subordinated Debt set forth in Section 2.2 shall be absolute, unconditional and irrevocable at all times and in all circumstances.
SECTION 2.4 Payment Blockage Periods .
(a) The Administrative Agent may, while any Event of Default is continuing, give to each Subordinated Creditor a written notice (" Payment Blockage Notice ") of such Event of Default and the imposition of a Payme nt Blockage Period pursuant to this Section 2.4 .
(b) With respect to each Payment Blockage Notice identifying any one or more Senior Payment Events of Default, a Payment Blockage Period shall commence on the date on which the Subordinated Creditors shall receive from the Administrative Agent such Payment Blockage Notice and shall terminate on the earlier to occur of: (i) the date on which each of the Senior Payment Events of Default identified in such Payment Blockage Notice shall have been cured or waive d or shall otherwise have ceased to exist; or (ii) the date on which such Payment Blockage Period shall be terminated by written notice to the Subordinated Creditors from the Administrative Agent. So long as any Senior Payment Event of Default shall be co ntinuing, any number of Payment Blockage Notices identifying Senior Payment Events of Default may be given and any number of Payment Blockage Periods may be commenced by the Administrative Agent pursuant to this paragraph (b) .
(c) With respect to each Payment Blockage Notice identifying any one or more Senior Compliance Events of Default, a Payment Blockage Period shall commence on the date on which the Subordinated Creditors shall receive from the Administrative Agent such Payment Blockage Notice and shall terminate on the earliest to occur of: (i) the date that is 179 days after the commencement of such Payment Blockage Period (or such earlier date as may be required by the next sentence); (ii) the date on which each of the Senior Compliance Events of Default identified in such Payment Blockage Notice shall have been cured or waived or shall otherwise have ceased to exist; or (iii) the date on which such Payment Blockage Period shall be terminated by written notice to the Subordina ted Creditors from the Administrative Agent. So long as any Senior Compliance Event of Default shall be continuing, any number of Payment Blockage Notices identifying Senior Compliance Events of Default may be given and any number of Payment Blockage Peri ods may be commenced by the Administrative Agent pursuant to this paragraph (c) , but the aggregate duration of all Payment Blockage Periods commenced by the Administrative Agent pursuant to this paragraph (c) during any period of 365 consecutive days shall not exceed 179 days. Notwithstanding any other provision of this paragraph (c) , no Senior Compliance Event of Default which existed or was continuing on the date of the commencement of any Payment Blockage Period pursuant to this paragraph (c) shall be, or be made, the basis for the commencement of a second Payment Blockage Period pursuant to this paragraph (c) .
SECTION 2.5 Bankruptcy or Insolvency Proceedings . Each of the Subordinated Creditors and the Debtors hereby agrees with the Senior Creditors that, in the event of any Bankruptcy or Insolvency Proceeding with respect to any of the Debtors:
(a) the Senior Creditors shall first be entitled to receive payment in full of all Senior Debt before the Subordinated Creditors shall be entitled to receive any payment or distribution on account of Subordinated Debt of such Debtor;
(b) the Senior Creditors shall be entitled to receive from such Debtor (until pa yment in full of all Senior Debt) all payments and distributions on account of Subordinated Debt which would otherwise be payable or deliverable to the Subordinated Creditors, including, without limitation, all cash, securities, Equity Interests and other Property distributed, divided or applied by way of dividend or payment, and any securities or Equity Interests issued on account of the Subordinated Debt, and, to that end, all such payments and distributions from such Debtor that otherwise would be payabl e or deliverable upon or with respect to any Subordinated Debt shall instead be paid or delivered forthwith directly to the Administrative Agent, for the benefit of the Senior Creditors, in the same form as so received (with any necessary endorsement or as signment) for application to the payment of Senior Debt until all Senior Debt shall have been paid in full, and the Administrative Agent shall be entitled to hold all such securities, Equity Interests and other Property as collateral for the Senior Debt, t o sell, assign, transfer or dispose of such securities, Equity Interests and other Property as the Administrative Agent shall deem appropriate, and to apply all proceeds from the sale, assignment, transfer or disposition of such securities, Equity Interest s and other Property to the Senior Debt;
(c) if any Subordinated Creditor shall fail to file a proper proof of claim in the form required by applicable law against such Debtor in respect of the Subordinated Debt prior to the date 30 days before the expira tion of the time to file such claim, then the Administrative Agent is authorized, but shall have no obligation, to file such claim in the name of and on behalf of such Subordinated Creditor; and
(d) the Subordinated Creditors shall duly and promptly take such action as the Administrative Agent may reasonably request to collect Subordinated Debt from such Debtor, and to collect and receive any and all payments or distributions on account of such Subordinated Debt.
SECTION 2.6 Certain Other Bankruptcy Matte rs; etc .
(a) In order to carry out and to give full effect to the express intentions of each of the parties hereto as set out in Section 2.5 , and in order better to ensure the performance by the Subordinated Creditors of the covenants of the Subordinated Creditors with the Administrative Agent, for the benefit of the Senior Creditors, contained in Section 2.5 , each of the Subordinated Creditor s hereby absolutely and irrevocably constitutes and appoints the Administrative Agent its true and lawful agent and attorney-in-fact, with full power of substitution, in the name and on behalf of such Subordinated Creditor or in the name of the Administrat ive Agent or any of the Senior Creditors or in the name of the Administrative Agent's substitute agents or attorneys, to do, in any Bankruptcy or Insolvency Proceeding with respect to any Debtor, if all of the Senior Debt shall not have been paid in full a t the time, all or any of the following:
(i) to enforce all or any of the claims comprising all or any part of any Subordinated Debt of such Debtor by filing claims, proofs of claim, suit or otherwise;
(ii) to enforce all or any of the Liens on any Prope rty of such Debtor;
(iii) to give or withhold the consent of such Subordinated Creditor to the use by such Debtor of any Property of such Debtor;
(iv) to give or withhold the consent of such Subordinated Creditor to the sale, transfer or other disposit ion by such Debtor of any Property of such Debtor;
(v) to collect or receive all or any of the Property of any Debtor distributed, divided or applied by way of dividend or payment on account of all or any part of any Subordinated Debt of such Debtor and to apply the same, or the proceeds of any realization upon the same that the Administrative Agent in its sole and absolute discretion shall elect to effect, to all or any part of the Senior Debt until all of the Senior Debt shall have been paid in full;
(v i) to execute, deliver or otherwise perfect any Instrument and to execute and do all of such other assurances, acts and things which the Administrative Agent or any of the Administrative Agent's substitute agents or attorneys may deem proper in or for the purpose of exercising all or any of the powers and authorities granted to the Administrative Agent by each of the Subordinated Creditors pursuant to this paragraph (a) ;
(vii) to cast all ballots and vote all claims in respect of the Subordinated Debt of such Debtor and to negotiate, accept or reject on behalf of the Subordinated Creditors any plan of partial or complete liquidation, reorganization, arrangement, composition or extension proposed in connection with any Bankruptcy or Insolvency Proceeding wi th respect to such Debtor, all in such manner and on such terms and conditions as the Administrative Agent shall in its sole and absolute discretion determine to be in the best interests of the Senior Creditors; and
(viii) generally, to take, in connectio n with any such Bankruptcy or Insolvency Proceeding with respect to such Debtor and solely in relation to all or any part of any Subordinated Debt of such Debtor, any action which the Subordinated Creditors would, but for the terms of this Agreement, be ot herwise entitled to take in or for the purpose of exercising all or any of the powers, authorities or rights specified in the foregoing provisions of this paragraph (a) .
(b) Each of the Subordinated Creditors hereby ratifies and confirms and agrees to rat ify and confirm whatever the Administrative Agent (or any of the Administrative Agent's substitute agents) or attorneys shall do or purport to do in good faith in the exercise, at any time and from time to time prior to (but not after) the payment in full of all Senior Debt, of the power of attorney granted to the Administrative Agent by such Subordinated Creditor pursuant to Section 2.5(a) , which power of attorney, being coupled with an interest, is irrevocable.
(c) Each of the Subordinated Creditors severally covenants and agrees with the Administrative Agent that, in any Bankruptcy or Insolvency Proceeding with respect to any of the Debtors, if all of the Senior Debt shall not have been paid in full at the time:
(i) such Subordinated Creditor shall, for all purposes of such Bankruptcy or Insolvency Proceeding, be deemed to have given its consent to and approval for (A) the use by any of the Debtors of any Property of any of the Debtors, and (B) the sale, transfer or other disposition by the Debtors o r any of them of any Property of any of the Debtors, in each such case, if and to the extent that any such use, sale, transfer or other disposition shall be consented to or otherwise approved by the Administrative Agent;
(ii) if any payments or distribut ions made to the Administrative Agent on account of any Senior Debt, whether before or after the commencement of any Bankruptcy or Insolvency Proceeding with respect to the Borrower or any of its Subsidiaries, shall be avoided as a fraudulent transfer or f raudulent conveyance under any applicable law, then, for purposes of determining whether and when all of the Senior Debt shall have been paid in full, the Administrative Agent shall be deemed never to have received the payments or distributions so avoided; and
(iii) during such Bankruptcy or Insolvency Proceeding, until all Senior Debt shall be paid in full, the Administrative Agent shall (as between the Administrative Agent and the Subordinated Creditors) have the exclusive right to collect, foreclose up on, sell, transfer, liquidate or otherwise dispose of, or exercise any other Enforcement Action with respect to, all or any part of the Property of any of the Debtors in the manner deemed appropriate by the Administrative Agent, without regard to the right s of any of the Subordinated Creditors, and, to the extent permitted by applicable law, each of the Subordinated Creditors hereby agrees not to hinder, delay or otherwise interfere with any Enforcement Action by the Administrative Agent with respect to any of the Debtors, any of their Property or any part thereof.
SECTION 2.7 Delivery of Prohibited Payments or Distributions on Account of Subordinated Debt . If any payment or distribution on account of Subordinated Debt shall at any time be collected or received by any of the Subordinated Creditors, by way of set-off or otherwise, and such collection or receipt shall n ot be expressly permitted by this Article II at the time of such collection or receipt, then such payment or distribution shall be paid over or delivered forthwith to the Administrative Agent for application to Senior Debt. Payments or distributions on ac count of Subordinated Debt paid or delivered to the Administrative Agent in compliance with this Article II that are in the form of cash shall be used to pay Senior Debt. Any such payments or distributions that are not in the form of cash shall be held by the Administrative Agent as security for the payment of Senior Debt. The Administrative Agent shall be en titled to sell, assign, transfer or dispose of such Property as the Administrative Agent deems appropriate. Cash proceeds of any such non ‑ cash payments or distributions on account of Subordinated Debt shall, when such cash proceeds are received by the Adm inistrative Agent, be used to pay Senior Debt.
SECTION 2.8 Subrogation . Upon payment in full of all Senior Debt, the Subordinated Creditors shall be immediately subrogated to the ri ghts of the Senior Creditors (to the extent of payments and distributions previously made to or for the account of the Senior Creditors pursuant to the provisions of this Article II ), to receive payments and distributions of Property of the Borrower or of any of its Subsidiaries applicable to Senior Debt until all amounts owing on Subordinated Debt shall be paid in full. No payments or distributions applicable to Senior Debt which the Subordinated Creditors shall receive by reason of their being subrogated to the rights of the Senior Creditors pursuant to the provisions of this Section 2.8 shall, as between the Borrower or any of its Subsidiaries, any of their creditors other than the Senior Creditors, and the Subordinated Creditors, be deemed to be a payme nt by such Person to or for the account of any Subordinated Debt; and, for the purposes of such subrogation, no payments or distributions to the Senior Creditors of any Property to which the Subordinated Creditors would be entitled except for the provision s of this Agreement, and no payment over pursuant to provisions of this Agreement, to the Senior Creditors by the Subordinated Creditors, shall, as
between the Borrower or any of its Subsidiaries, any of their creditors other than the Senior Creditors, a nd the Subordinated Creditors, be deemed to be a payment by such Person to or for the account of any Senior Debt, it being understood that the provisions of this Agreement are intended solely for the purpose of defining the relative rights of the Subordina ted Creditors, on the one hand, and the Senior Creditors, on the other hand, and nothing contained in this Section 2.8 or elsewhere in this Agreement is intended to or shall impair, as between the Borrower or any of its Subsidiaries and the Subordinated Cr editors, the obligations of the Borrower and its Subsidiaries, which are absolute and unconditional, to pay to the Subordinated Creditors, subject always to the rights of the Senior Creditors, the Subordinated Debt as and when the same shall become due and payable in accordance with its terms.
ARTICLE III
LIMITATIONS ON CERTAIN ENFORCEMENT ACTIONS AND
OTHER NEGATIVE COVENANTS
SECTION 3.1 Prohibitions on Commencement of Certain Enforcement Actions . Until all of the Senior Debt shall have been paid in full, the Subordinated Creditors shall not at any time commence or institute, or join with any other Person or Persons in commencing or instituting, any Enforcement Action of any kind against the Borrower or any of its Subsidiaries or against any of the Property of the Borrower or any of its Subsidiaries with respect to any Subordinated Debt.
SECTION 3.2 Limitations on Remedies Under Subordinated Debt Documents . Notwithstanding any contrary provision of any Subordinated Debt Document, the occurrence or continuation of any Default or Event of Default of any kind whatsoever under or with respect to any of the Senior Debt Documents shall not constitute a "default" or an "event of default" under any of the Subordinated Debt Documents.
SECTION 3.3 Limitations on Liens Secu ring Subordinated Debt .
(a) The Borrower shall not at any time grant, or cause or permit any of its Subsidiaries at any time to grant, to any of the Subordinated Creditors, and the Subordinated Creditors shall not at any time acquire, demand, receive or accept from the Borrower or from any of its Subsidiaries, any Liens on any Property of any kind as security for any Subordinated Debt, unless (i) s uch Liens shall at all times be junior in priority to Liens securing Senior Debt, and (ii) at no time shall such Liens attach to any Property except Property subject to Liens which secure the Senior Debt on terms and conditions satisfactory to the Administ rative Agent.
(b) Liens on Property securing all or any part of the Senior Debt shall at all times have priority in every respect over, and shall in all respects and at all times be senior and superior to, all Liens (if any) on such Property securing all or any part of the Subordinated Debt. The priorities specified in this paragraph (b) for the Liens described herein shall be applicable (i) whether or not any such Liens shall have been duly and properly created or perfected, whether or not any such Liens shall be legal, valid, binding or enforceable, and whether or not any such Liens shall or may be subject to avoidance, or shall be avoided, as a fraudulent transfer or fraudulent conveyance, in any case whether before or after the commencement of any Bank ruptcy or Insolvency Proceedings with respect to any Debtor, (ii) whether or not any such
Liens shall be acquired or created consensually or by attachment, levy, execution, distraint or otherwise, and (iii) irrespective of (A) the time, order or method o f creation, attachment or perfection of any such Liens, (B) the time or order of filing or recording of financing statements or other Instruments pertaining to any such Liens, or (C) the possession of any of such Property subject to any such Liens.
(c) Un til all of the Senior Debt shall have been paid in full, the Subordinated Creditors shall not at any time commence or institute, or join any other Person or Persons in commencing or instituting, any Enforcement Action of any kind with respect to any Liens securing all or any part of the Subordinated Debt.
(d) Any Liens acquired in violation of paragraph (a) of this Section 3.3 shall be null and void ab initio , and none of the Subordinated Creditors shall have any rights, remedies, claims, benefits or prior ities, as secured party or otherwise, in relation to any Property subject to any such Liens.
ARTICLE IV
WAIVERS AND CONSENTS
SECTION 4.1 Waivers of Notice; etc . To the extent permitted by applicable law, the obligations of each of the Subordinated Creditors and Debtors under this Agreement, and the subordination arrangements and covenants contained herein, shall not be to any extent or in any way or manner whats oever impaired or otherwise affected by any of the following, whether or not any of the Subordinated Creditors or Debtors shall have had any notice or knowledge of any thereof:
(a) the dissolution, termination of existence, bankruptcy, liquidation, insolv ency, appointment of a receiver for all or any part of the Property of, assignment for the benefit of creditors by, or the commencement of any Bankruptcy or Insolvency Proceeding by or against, the Borrower or any of its Subsidiaries;
(b) the absorption, merger or consolidation of, or the effectuation of any other change whatsoever in the name, membership, constitution or place of formation of, the Borrower or any of its Subsidiaries;
(c) any extension or postponement of the time for the payment of any Se nior Debt, the acceptance of any partial payment thereon, any and all other indulgences whatsoever by the Senior Creditors in respect of any Senior Debt, the taking, addition, substitution or release, in whole or in part, at any time or times, of any colla teral or Liens securing any Senior Debt, or the addition, substitution or release, in whole or in part, of any Person or Persons primarily or secondarily liable in respect of any Senior Debt;
(d) any action or delay in acting or failure to act on the part of any Senior Creditor under any Senior Debt Document or in respect of any Senior Debt or Liens securing any Senior Debt or otherwise, including (i) any action by any Senior Creditor to enforce any of its rights, remedies or claims in respect of Liens sec uring any Senior Debt, (ii) any failure by any Senior Creditor strictly or diligently to assert any rights or to pursue any remedies or claims against any of the Debtors or any other Person or Persons under any of the Senior Debt Documents or as
provided by statute or at law or in equity, (iii) any failure by any Senior Creditor to perfect or to preserve the perfection or priority of any of its Liens securing any Senior Debt, or (iv) any failure or refusal by any Senior Creditor to foreclose or to realize upon any Liens securing any Senior Debt or to take any action to enforce any of its rights, remedies or claims under any Senior Debt Document;
(e) any modification or amendment of, or any supplement or addition to, any of the Senior Debt Documents;
(f) any waiver, consent or other action or acquiescence by any of the Senior Creditors in respect of any default by the Borrower or by any of its Subsidiaries in its performance or observance of or compliance with any term, covenant or condition contained in a ny Senior Debt Document;
(g) any Senior Debt or any Senior Debt Document or any provision thereof or any Liens securing any Senior Debt shall at any time or for any reason whatsoever cease to be in full force or effect or shall be declared null and void o r illegal, invalid, unenforceable or inadmissible in evidence, or any Senior Debt or any payments or distributions on account of Senior Debt or any Liens securing Senior Debt shall be subject to avoidance, or shall be avoided, as a fraudulent transfer or f raudulent conveyance, in any case whether prior to or after the commencement of any Bankruptcy or Insolvency Proceedings by or against the Borrower or any of its Subsidiaries;
(h) any Subordinated Debt or any Subordinated Debt Document or any provision thereof or any Liens securing any Subordinated Debt shall at any time or for any reason whatsoever cease to be in full force or effect or shall be declared null and void or illegal, invalid, unenforceable or inadmissible in evidence, or any Subordinated De bt or any payments or distributions on account of Subordinated Debt or any Liens securing any Subordinated Debt shall be subject to avoidance, or shall be avoided, as a fraudulent transfer or fraudulent conveyance, in any case whether prior to or after the commencement of Bankruptcy or Insolvency Proceedings by or against the Borrower or any of its Subsidiaries;
(i) the existence or creation at any time or times on or after the date of this Agreement of any claim, defense, right of set-off or counterclaim of any nature whatsoever of any Subordinated Creditor against the Borrower or any of its Subsidiaries or against any of the Senior Creditors; or
(j) the existence of any other condition or circumstance or the occurrence of any other event that might other wise constitute a legal or equitable discharge of or a suretyship defense to the performance by any Subordinated Creditor of any of its obligations or other liabilities hereunder.
To the extent permitted by applicable law, each of the Subordinated Creditor s hereby absolutely, unconditionally and irrevocably assents to and waives notice of any and all matters hereinbefore specified in clauses (a) through (j) . This Agreement shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment of any Senior Debt previously made by any Debtor to any of the Senior Creditors is rescinded or must otherwise be returned by any of the Senior Creditors in connection with any Bankruptcy or Insolvency Proceedings with respect
to any of the Debtors or otherwise, all as though such payment of Senior Debt had not been made.
ARTICLE V
ADDITIONAL REPRESENTATIONS AND OTHER COVENANTS
SECTION 5.1 Information Regarding Subordinated Debt . Each of the Borrower and the Subordinated Creditors shall furnish to the Administrative Agent from time to time all such information regarding Subordinated Debt as the Administrative Agent may from time to time reasonably request.
SECTION 5.2 Additional Representations and Covenants of Subordinated Creditors . Each of the Subordinated C reditors represents and warrants to, and covenants with the Administrative Agent that:
(a) No part of the Subordinated Debt is evidenced by any Instrument or other writing a true and complete copy which has not previously been furnished to the Administrat ive Agent. The Subordinated Creditors are the lawful owners of the Subordinated Debt, and no part thereof has been assigned to or subordinated or subjected to any Liens in favor of any Person or Persons, except in compliance with the provisions of paragra ph (b) of this Section 5.2 .
(b) Until all of the Senior Debt shall have been paid in full, none of the Subordinated Creditors shall sell, assign, pledge, encumber or otherwise transfer any Subordinated Debt or any rights or interests in any Subordinated Debt or any Subordinated Debt Documents, unless, prior to and in connection with any such transfer, the purchaser, assignee or other transferee thereof shall have agreed in writing to become a party to and bound by this Agreement as a Subordinated Creditor hereunder.
(c) No part of the Subordinated Debt is secured by any Liens on Property of any kind of the Borrower or any of its Subsidiaries.
SECTION 5.3 No Other Subordination . Each Subordinated Creditor represents that the Subordinated Debt is not subordinated to any obligations other than the Senior Debt and covenants that it will not subordinate the Subordinated Debt to any other obligations except with the prior writt en consent of the Administrative Agent.
SECTION 5.4 Legend; etc . Each of the Debtors and the Subordinated Creditors covenants to cause each Instrument or certificate representing or evidencing any of the Subordinated Debt to have affixed upon it a legend substantially as follows:
"THIS SUBORDINATED NOTE IS SUBORDINATED AND MADE JUNIOR IN RIGHT OF PAYMENT, AND MADE SUBJECT TO RESTRICTIONS AND LIMITATIONS ON ENFORCEMENT (INCLUDING ACCELERATION) AND RESTRICTIONS AND LIMITATIONS ON SALE, ASSIGNMENT, ENCUMBRANCE AND OTHER TRANSFERS, ALL UPON THE TERMS, IN THE MANNER, AND TO THE EXTENT SET FORTH IN THE SUBORDINATION
AGREEMENT, DATED AS OF JUNE 15, 2016, AS FROM TIME TO TIME IN EFFECT, AMONG TELEPHONE AND DATA SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS FROM TIME TO TIME PARTY THERET O, UNITED STATES CELLULAR CORPORATION, AND TORONTO DOMINION (TEXAS) LLC, AS ADMINISTRATIVE AGENT."
The Parent Company and the Debtors shall cause any financial statement describing or listing or otherwise reflecting the existence of any Consolidated Funded Indebtedness included in the Subordinated Debt to indicate clearly the subordinated character thereof, to the extent appropriate under GAAP.
SECTION 5.5 Consent to Credit Agreement . Each Subordinated Creditor acknowledges receipt from the Parent Company of a correct and complete copy of the Senior Credit Agreement as in effect as of the date such Subordinated Creditor became a party to this Agreement, and consents to all of the provisions of the Senior Credit Agreement as in effect as of such date.
SECTION 5.6 No Impairment . No right of the Senior Creditors under this Agreement shall at any time be prejudiced or impaired by any conduct on the part of any Debtor or any Subordinated Creditor, including any noncompliance by any Debtor or any Subordinated Creditor with the terms of this Agreement, or by any conduct, in good faith, by any Senior C reditor, regardless of any knowledge thereof which any Senior Creditor may have or otherwise be charged with.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Effectiveness of Agreement . This Agreement shall be effective as to, and shall be enforceable by the Administrative Agent against, each Subordinated Creditor from and after the execution and delivery by such Subordinated Creditor of a counterpart of this Agreement or a Subo rdinated Creditor Supplement. The agreements and obligations of each Subordinated Creditor under this Agreement are separate and independent from and in addition to the agreements and obligations of each of the other Subordinated Creditors and shall be en forceable by the Administrative Agent against each Subordinated Creditor notwithstanding (a) the failure of any other Parent Affiliated Company to execute and deliver a counterpart of this Agreement or a Subordinated Creditor Supplement, (b) the invalidity , unenforceability or inadmissibility in evidence of this Agreement against any one or more of the other Subordinated Creditors, (c) the release by the Administrative Agent of all or any of the other Subordinated Creditors from all or any part of their obl igations under this Agreement, or (d) any waiver, termination or cancellation by the Administrative Agent of, or any consent by the Administrative Agent to any departure from, any of the agreements or obligations of any other Subordinated Creditor hereunde r on any occasion or occasions, or any failure by the Administrative Agent to enforce any of the agreements or obligations of any other Subordinated Creditor hereunder on any occasion or occasions.
SECTION 6.2 Amendments, Waivers; etc . The provisions of this Agreement may from time to time be amended if such amendment is in writing and consented to by each of the parties hereto. No failure or delay on the part of any Person in exercising any power or right under this Agreement shall o perate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. The remedies herein provided are cumulative and not exclusive of an y other remedies provided at law or in equity. No waiver or approval by a Person under this Agreement shall, except as may be otherwise stated in such waiver or approval, be applicable to any subsequent transactions.
SECTION 6.3 Further Assurances . The Subordinated Creditors shall execute and deliver all such further Instruments, and take all such further action, as may be reasonably necessary or appropriate, or as the Admini strative Agent may reasonably request, in order to carry out the intent and purpose of this Agreement. The Administrative Agent shall execute and deliver all such further Instruments, and take all such further action, as may be reasonably necessary or app ropriate, or as the Subordinated Creditors may reasonably request, in order to carry out the intent and purposes of this Agreement.
SECTION 6.4 Specific Performance; Remedies Cumulative . Each of the Subordinated Creditors and Debtors (a) acknowledges that a remedy at law for any breach or attempted breach of this Agreement may be inadequate, (b) agrees that the Administrative Agent and the other Senior C reditors shall be entitled to specific performance, and (c) agrees to waive any requirement for obtaining or posting any bond in connection with seeking or obtaining any such injunctive or equitable relief. The rights and remedies of each of the Administr ative Agent and the other Senior Creditors provided herein are cumulative, and not exclusive of any of the rights and remedies which may be granted or provided by applicable law or by any of the other Senior Debt Documents.
SECTION 6.5 Severability . Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceabil ity without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of any such provision in any other jurisdiction.
SECTION 6.6 Continuing Agreement . This Agreement shall in all respects be a continuing agreement, and this Agreement and the agreements and obligations of each of the Subordinated Creditors hereunder shall remain in full force and effect until all Senior Debt shall b e paid in full.
SECTION 6.7 Successors and Assigns . This Agreement shall be binding upon, and shall inure to the benefit of, each of the Administrative Agent and the other Senior Creditors, the Subordinated Creditors and the Borrower and their respective successors in title and permitted assigns.
SECTION 6.8 Notices . All notices and other communicat ions provided to a party hereunder shall (except as otherwise specifically provided herein) be in writing and shall be delivered in hand, mailed by United States registered or certified first class mail, postage
prepaid, or sent by facsimile or email and confirmed by delivery via courier or postal service and shall be addressed or delivered to it at its address designated for notices set forth on Schedule F attached hereto (as amended or supplemented from time to time) or at such other address as may be d esignated by such party in a notice to the other parties. Any such notice shall be deemed to have been duly received and to have become effective (a) if sent by facsimile or email, or delivered by hand to a responsible officer of the party to which it is directed, at the time of the receipt thereof by such officer and (b) if sent by registered or certified first-class mail, postage prepaid, three days after the date mailed.
SECTION 6.9 Loan Document; etc . This Agreement constitutes a " Loan Document " for all purposes of the Senior Credit Agreement and the other Senior Loan Documents. This Agreement constitutes the entire agreement among the Senior Creditors and the Subordinated Creditors with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements, representations, warranties or understandings, whether oral, written or implied, as to the subject matter of this Agreement.
SECTION 6. 10 CHOICE OF LAW . THIS AGREEMENT IS A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER THAN GENERAL OBLIGATIONS LAW §5-1401).
SECTION 6.11 WAIVER OF JURY TRIAL . EACH OF THE PARTIES HER ETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS . EACH SUBORDINATED CREDITOR (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY SENIOR CREDITOR HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH SENIOR CREDITOR WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
SECTION 6.12 Survival . The agre ements and obligations of each party hereto under Sections 6.10 , 6.11 , 6.14 and 6.15 hereof shall survive the termination of this Agreement and the payment in full of all Senior Debt. The representations and warranties made by the Debtors or (as the case may be) by the Subordinated Creditors in this Agreement shall survive the execution and delivery of this Agreement.
SECTION 6.13 Termination . This Agreement and all of the covenants and other obligations of each of the parties hereto shall, except as otherwise exp ressly provided by Section 6.12 , terminate upon, and be of no further force or effect whatsoever after, the payment in full of all of the Senior Debt.
SECTION 6.14 Indemnification . Each party hereto (each, an " indemnifying party ") agrees to indemnify and hold harmless each of the other parties hereto from and against any and all losses, damages, claims and liabilities which such other parties shall sustain or incur and which sh all arise directly out of or which shall be directly caused by any breach by the indemnifying party of any of its covenants or agreements hereunder.
SECTION 6.15 Expenses of Enforcement . Each Subordinated Creditor hereby agrees to pay to the Administrative Agent, on demand by the Administrative Agent, all reasonable out-of-pocket costs and expenses (including, but not limited to, court costs and expenses and reasonable f ees and disbursements of attorneys) at any time or from time to time incurred or sustained by the Administrative Agent or any of the other Senior Creditors in connection with its enforcement of any of its claims or remedies against such Subordinated Credit or under this Agreement.
SECTION 6.16 Obligations Several; No Third Parties Benefited .
(a) The agreements and obligations of each of the Subordi nated Creditors under this Agreement are several and not joint. No Subordinated Creditor shall be responsible for the failure of any other Subordinated Creditor to perform its obligations hereunder.
(b) This Agreement is made and entered into for the sol e protection and legal benefit of each of the Administrative Agent and the other Senior Creditors and their respective successors in title and assigns. It is not the intention of the parties hereto to confer any third-party beneficiary rights, and this Ag reement shall not be construed so as to confer any such rights upon any other Person or Persons not party hereto. Neither the Borrower nor any of its Subsidiaries nor any other Person or Persons (other than a party hereto) shall be a direct or indirect le gal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement.
SECTION 6.17 Counterparts . This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same Instrument. A set of counterparts execute d by all of the parties hereto shall be lodged with the Borrower and the Administrative Agent. Delivery by facsimile or email by any of the parties hereto of an executed counterpart hereof, of any amendment or waiver hereto or any Subordinated Creditor Su pplement or Subordinated Debt Supplement, shall be as effective as an original executed document and shall be considered a representation that such original executed document, as the case may be, will be delivered.
SECTION 6.18 Headings . The descriptive headings in this Agreement are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.
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The Borrower: |
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UNITED STATES CELLULAR CORPORATION |
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By: |
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Steven T. Campbell |
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Executive Vice President – Finance, Chief |
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Financial Officer and Treasurer |
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By: |
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Peter L. Sereda |
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Authorized Representative, and Senior Vice |
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President – Finance and Treasurer of |
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Telephone and Data Systems, Inc., Parent |
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Company of Borrower |
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The Administrative Agent: |
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TORONTO DOMINION (TEXAS) LLC, |
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as Administrative Agent |
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SCHEDULE A
TO THE SUBORDINATION AGREEMENT, DATED AS
OF JUNE
15, 2016
,
AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES CELLULAR CORPORATION, AS A DEBTOR, AND
TORONTO DOMINION (TEXAS) LLC, A
S ADMINISTRATIVE AGENT
LIST OF DEBTORS
A. BORROWER
United States Cellular Corporation.
B. SUBSIDIARIES OF UNITED STATES CELLULAR CORPORATION
None.
SCHEDULE B
TO THE SUBORDINATION AGREEMENT, DATED AS
OF JUNE
15, 2016, AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS, UNITED
STATES CELLULAR CORPORATION, AS A DEBTOR, AND TORONTO
DOMINION (TEXAS) LLC, AS ADMINISTRATIVE AGENT
PERMITTED SUB DEBT PAYMENTS
None.
SCHEDULE C
TO THE SUBORDINATION AGREEMENT, DATED AS
OF JUNE
15, 2016, AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES CELLULAR CORPORATION, AS
A DEBTOR, AND
TORONTO DOMINION (TEXAS) LLC, AS ADMINISTRATIVE AGENT
LIST OF SUBORDINATED CREDITORS
Telephone and Data Systems, Inc.
SCHEDULE D
TO THE SUBORDINATION AGREEMENT, DATED AS
OF JUNE
15, 2016,
AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES CELLULAR CORPORATION, AS A DEBTOR, AND
TORONTO DOMINION (TEXAS) LLC, AS ADMINISTRATIVE AGENT
SUBORDINATED DEBT
Name of Debtor |
Outstanding Principal Amount of Consolidated Funded Indebtedness |
Maturity Date (if any) |
None |
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SCHEDULE E
TO THE SUBORDINATION AGREEMENT, DATED AS
OF JUNE
15, 2016, AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES CELLULAR CORPORATION, AS A DEBTOR, AND
TORONTO DOMINION (TEXAS) LLC, AS ADMINISTRATIVE AGENT
SUBORDINATED DEBT DOCUMENTS
Name of Debtor |
Name and Description of Instrument |
None |
|
SCHEDULE F
TO THE SUBORDINATION AGREEMENT, DATED AS
OF DECEMBER 17, 2010, AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES CELLULAR CORPORATION, AS A DEBTOR, AND
TORONTO DOMINION (TEXAS) LLC, AS ADMINISTRATIVE AGENT
ADDRESSES FOR NOTICES
1.1. Address of Subordinated Creditors .
Telephone and Data Systems, Inc.
30 North LaSalle Street, Suite 4000
Chicago, Illinois 60602
Attention:
John M. Toomey
Vice President and Assistant Treasurer
Fax No.:
608-830-5530
Telephone No.:
312-592-5328
Email: John.Toomey@tdsinc.com
With a Copy To
(which shall not itself constitute notice):
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Attention:
William S. DeCarlo
General Couns
el of Telephone and Data Systems, Inc.
Fax:
312-853-7036
Telephone No.:
312-853-6094
Email: wdecarlo@sidley.com
United States Cellular Corporation
8410 West Bryn Mawr Avenue
Suite 700
Chicago, Illinois 60631
Attention:
Steven T. Campbell
Executive Vice President-Finance, Chief Financial Officer
and Treasurer
Fax:
773-399-4850
Telephone No.:
773-399-8959
Email: Steve.Campbell@uscellular.com
With a Copy To (which shall not itself constitute notice):
Sidley
Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Attention:
Stephen P. Fitzell
General Counsel of the Borrower
Fax:
312-853-7036
Telephone No.:
312-853-7379
Email:
sfitzell@sidley.com
-and-
Telephone and Data Systems, Inc.
30
North LaSalle Street, Suite 4000
Chicago, Illinois 60602
Attention:
John M. Toomey
Vice President and Assistant Treasurer
Fax No.:
608-830-5530
Telephone No.:
312-592-5328
Email:
John.Toomey@tdsinc.com
-and-
Sidley Austin LLP
One South
Dearborn Street
Chicago, Illinois 60603
Attention:
William S. DeCarlo
General Counsel of Telephone and Data Systems, Inc.
Fax:
312-853-7036
Telephone No.:
312-853-6094
Email: wdecarlo@sidley.com
1.3. Address of Administrative Agent .
Toron to Dominion (Texas) LLC
Agency Management
31 West 52nd Street
New York, New York 10019-6101
Attention:
Elhamy Khalil/Wasee Munim
Fax:
416-590-4336
Telephone No.:
416-590-4341
Email: elhamy.khalil@t dsecurities.com or wasee.munim@tdsecurities.com
With a Copy To
(which shall not itself constitute notice):
____________
____________
____________
Attention:
____________
Fax:
____________
Telephone No.:
____________
FORM OF
SUBORDINATED CREDITOR SUPPLEMENT
THIS SUBORDINATED CREDITOR SUPPLEMENT (this " Supplement "), dated as of ____________________, is made by the undersigned. Unless otherwise defined herein, capitalized terms used herein and defined in the Subordination Agreement referred to below are used herein as so defined.
RECITALS :
A. Reference is made to the Subordination Agreement (as amended or supplemented from time to time, the " Subordination Agreement "), dated as of June 15, 2016, by and among T elephone and Data Systems, Inc., as a Subordinated Creditor, the other Subordinated Creditors party thereto, United States Cellular Corporation, as a Debtor, and Toronto Dominion (Texas) LLC, as the Administrative Agent for the Senior Creditors.
B. Pursua nt to Section 2.1(b) of the Subordination Agreement, the undersigned intends to become a " Subordinated Creditor " for all purposes of the Subordination Agreement and executes and delivers this Supplement in order to become a "Subordinated Creditor" for all purposes of the Subordination Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Subordinated Creditor . By executing and delivering this Supplement, the undersigned hereby becomes a party to the Subordination Agreement as a " Subordinated Creditor " thereunder for all purposes of the Subordination Agreement, and hereby covenants and agrees to be bound by and comply with all terms and conditions thereunder.
2. Subordinated Debt and Subordinated Debt Documents . By executing and delivering this Supplement, the un dersigned hereby also attaches a Supplement to Schedule D to the Subordination Agreement and Supplement to Schedule E to the Subordination Agreement and agrees that (a) the " Subordinated Debt " owing to the undersigned identified and described in such Suppl ement to Schedule D shall be and become "Subordinated Debt" for all purposes of the Subordination Agreement, and (b) the " Subordinated Debt Documents " to which the undersigned is a party identified and described in such Supplement to Schedule E shall be an d become "Subordinated Debt Documents" for all purposes of the Subordination Agreement.
3. Attachment to Subordination Agreement . The undersigned hereby agrees that this Supplement, together with the attached Supplement to Schedule D and Supplement to Sc hedule E , will be attached to the Subordination Agreement and deemed to amend such existing Schedules.
4. Representations and Warranties . The undersigned hereby makes each of the representations and warranties contained in Sections 5.2 and 5.3 of the Subordination Agreement on the date hereof, after giving effect to this Supplement.
5. Counterparts . This Supplement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same Instrument. A set of counterparts executed by all of the parties hereto shall be lodged with the Borrower and the Administrative Agent. Delivery by facsimile or email by any of the parties hereto of an executed counterpart hereof shall be effective as an original executed document and shall be considered a representation that an original executed counterpart hereof will be delivered.
6. GOVERNING LAW . THIS SUPPLEMENT IS A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER THAN GENERAL OB LIGATIONS LAW §5-1401).
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SUBORDINATED CREDITOR SUPPLEMENT
Dated as of _________________ , _________
SUPPLEMENT TO SCHEDULE D
TO THE SUBORDINATION
AGREEMENT, DATED AS OF JUNE
15, 2016, AMONG
TELEPHONE AND DATA SYSTEMS, INC., THE OTHER
SUBORDINATED CREDITORS, UNITED
STATES CELLULAR
CORPORATION, AS A DEBTOR, AND TORONTO DOMINION
(TEXAS) LLC, AS ADMINISTRATIVE AGENT
SUBORDINATED DEBT
Name of Debtor |
Outstanding Principal Amount of Consolidated Funded Indebtedness |
Maturity Date (if any) |
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SUBORDINATED CREDITOR SUPPLEMENT
dated as of _________________, __________
SUPPLEMENT TO SCHEDULE E
TO THE SUBORDINATION
AGREEMENT, DATED AS OF JUNE
15, 2016, AMONG
TELEPHONE AND DATA SYSTEMS, INC., THE OTHER
SUBORDINATED CREDITORS, UNITED
STATES CELLULAR
CORPORATION, AS A DEBTOR, AND TORONTO DOMINION
(TEXAS) LLC, AS ADMINISTRATIVE AGENT
SUBORDINATED DEBT DOCUMENTS
Name of Debtor |
Name and Description of Instrument |
FORM OF
SUBORDINATED DEBT SUPPLEMENT
THIS SUBORDINATED DEBT SUPPLEMENT (this " Supplement "), dated as of _________________, is made by the undersigned Subordinated Creditor. Unless otherwise defined herein, capitalized terms used herein and defined in the Subordination Agreement referred to below are used herein as so defined.
RECITALS :
A. Reference is made to the Subordination Agreement (as amended or supplemented from time to time, the " Subordination Agreement "), dated as of June 15, 2016, by and among T elephone and Data Systems, Inc., as a Subordinated Creditor, the other Subordinated Creditors party thereto, United States Cellular Corporation, as a Debtor, and Toronto Dominion (Texas) LLC, as Administrative Agent for the Senior Creditors.
B. Pursuant t o Section 2.1(c) of the Subordination Agreement, the undersigned Subordinated Creditor intends that the "Subordinated Debt" and the "Subordinated Debt Documents" identified and described on the Schedules attached hereto shall be and become part of the "Sub ordinated Debt" and "Subordinated Debt Documents" for all purposes of the Subordination Agreement and delivers this Supplement so that such "Subordinated Debt" and "Subordinated Debt Documents" shall be and become part of the "Subordinated Debt" and "Subor dinated Debt Documents" for all purposes of the Subordination Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Subordinated Debt and Subordinated Debt Documents . By executing and delivering this Supplement, the undersigned Subordinated Creditor hereby attaches a Supplement to Schedule D to the Subordination Agreement and Supplement to Schedule E to the Subordination Agreement and agrees that (a) the "Subordinated D ebt" owing to the undersigned Subordinated Creditor identified and described on such Supplement to Schedule D shall be and become "Subordinated Debt" for all purposes of the Subordination Agreement and, (b) the "Subordinated Debt Documents" to which the un dersigned Subordinated Creditor is a party identified in such Supplement to Schedule E shall be and become "Subordinated Debt Documents" for all purposes of the Subordination Agreement.
2. Attachment to Subordination Agreement . The undersigned Subordinat ed Creditor hereby agrees that this Supplement, together with the attached Supplement to Schedule D and Supplement to Schedule E , will be attached to the Subordination Agreement and deemed to amend such existing Schedules.
3. Representations and Warrantie s . The undersigned Subordinated Creditor hereby certifies that each of the representations and warranties contained in Sections 5.2 and 5.3 of the Subordination Agreement were true as of the date as of which they were made and are true at and as of the da te hereof.
4. Counterparts . This Supplement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same Instrument. A set of counterparts executed by all of the parties hereto shall be lodged with the Borrower and the Administrative Agent. Delivery by facsimile or email by any of the parties hereto of an executed counterpart her eof shall be effective as an original executed document and shall be considered a representation that an original executed counterpart hereof will be delivered.
5. GOVERNING. LAW . THIS SUPPLEMENT IS A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER THAN GENERAL OBLIGATIONS LAW §5-1401).
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SUBORDINATED DEBT SUPPLEMENT
dated as of _________________ , _________
SUPPLEMENT TO SCHEDULE D
TO THE SUBORDINATION
AGREEMENT, DATED AS OF JUNE 15, 2016, AMONG
TELEPHONE AND DATA SYSTEMS, INC., THE OTHER
SUBORDINATED CREDITORS, UNITED STATES CELLULAR
CORPORATION, AS A DEBTOR, AND TORONTO DOMINION
(TEXAS) LLC,
AS ADMINISTRATIVE AGENT
SUBORDINATED DEBT
Name of Debtor |
Outstanding Principal Amount of Consolidated Funded Indebtedness |
Maturity Date (if any) |
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SUBORDINATED DEBT SUPPLEMENT
dated as of _________________, __________
SUPPLEMENT TO SCHEDULE E
TO THE SUBORDINATION
AGREEMENT, DATED AS OF JUNE 15, 2016, AMONG
TELEPHONE AND DATA SYSTEMS, INC., THE OTHER
SUBORDINATED CREDITORS, UNITED STATES CELLULAR
CORPORATION, AS A DEBTOR, AND TORONTO DOMINION
(TEXAS) LLC, AS ADMINIS
TRATIVE AGENT
SUBORDINATED DEBT DOCUMENTS
Name of Debtor |
Name and Description of Instrument |
FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal
Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of June 15, 2016 (as amended, supplemented or otherwise modified from time to time, the " Credit Agreement "), among United States Cellular Corporation, a Delaware corporation (th e " Borrower "), each lender from time to time party thereto, Toronto Dominion (Texas) LLC, as the Administrative Agent, and The Toronto-Dominion Bank, New York Branch, as L/C Issuer and Swing Line Lender.
Pursuant to the provisions of Section 3.01(e) of t he Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Secti on 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable . By executing this certificate, the undersigned ag rees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent w ith a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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Form of
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of June 15, 2016 (as amended, supplemented or otherwise modified from time to time, the " Credit Agreement "), among United States Cellular Corporation, a Delaware corporation (the " Borrower "), each lender from time to time party thereto, Toronto Dominion (Texas) LLC, as the Administrative Agent, and The Toronto-Dominion Bank, New York Branch, as L/C Issuer and Swing Line Lender .
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled fore ign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable . By ex ecuting this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in th e Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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FORM OF
U.S.
TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of June 15, 2016 (as amended, supplemented or otherwise modified from time to time, the " Credit Agreement "), among United States Cellular Corporation, a Delaware corporation (the " Borrower "), each lender from time to time party thereto, Toronto Dominion (Texas) LLC, as the Administrative Agent, and The Toronto-Dominion Bank, New York Bran ch, as L/C Issuer and Swing Line Lender .
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificat e, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Sec tion 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner's/ member's beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years prece ding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of June 15, 2016 (as amended, supplemented or otherwise modified from time to time, the " Credit Agreement "), among United States Cellular Corporation, a Delaware corporation (the " Borrower "), each lender from time to time party thereto, Toronto Dominion (Texas) LLC, as the Administrative Agent, and The Toronto-Dominion Bank, New York Branch, as L/C Issuer and Swing Line Lender .
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of th e Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), ( iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in th e ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY a ccompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner's/member's beneficia l owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrativ e Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, o r in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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FORM OF GUARANTIED PARTY DESIGNATION NOTICE
TO: Toronto Dominion (Texas) LLC, as Administrative Agent
RE: Credit Agreement, dated as of June 15, 2016 (as amended, modified, extended, restated, replaced, or supplemented from time to time, the " Credit Agreement ;" capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit Agreement), by and among United States Cellular Corpo ration, a Delaware corporation (the " Borrower "), the Lenders from time to time party thereto, Toronto Dominion (Texas) LLC, as Administrative Agent, and The Toronto-Dominion Bank, New York Branch, as L/C Issuer and Swing Line Lender
DATE: [Date]
[Name of Cash Management Bank/Hedge Bank] (the " Guarantied Party ") hereby notifies you, pursuant to the terms of the Credit Agreement, that the Guarantied Party meets the requirements of a [Cash Management Bank][Hedge Bank] under the terms of the Credit Ag reement and is a [Cash Management Bank][Hedge Bank] under the Credit Agreement and the other Loan Documents.
Delivery of an executed counterpart of a signature page of this notice by facsimile or other electronic imaging means (e.g. "pdf" or "tif") shall be effective as delivery of a manually executed counterpart of this notice.
A duly authorized officer of the undersigned has executed this notice as of the day and year set forth above.
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GUARANTY
THIS GUARANTY (as amended, restated, supplemented or otherwise modified from time to time, this " Guaranty "), dated as of June 15, 2016, is made by United States Cellular Corporation, a Delaware corporation (the " Borrower "), each of the other parties listed on the signature pages hereto and each other Person which may from time to time become a party to this Guaranty pursuant to Section 22 (collectively, the " Additional Guarantors ," and each, an " Additional Guarantor ," and together with the Borrower and each of the other sig natories party hereto, collectively, the " Guarantors ," and each, a " Guarantor "), in favor of Administrative Agent, for the benefit of Guarantied Parties.
BACKGROUND .
The Borrower, the lenders from time to time party thereto (collectively, the " Lenders "), and Toronto Dominion (Texas) LLC, as administrative agent for the Lenders (in such capacity, the " Administrative Agent "), have entered into that certain Credit Agreement, dated as of June 15, 2016 (as amended, restated, supplemented or otherwise modified f rom time to time, the " Credit Agreement ").
The Borrower and each of the other Guarantors are members of the same consolidated group of companies and are engaged in operations which require financing on a basis in which credit can be made available from ti me to time to the Borrower, and the Guarantors will derive direct and indirect economic benefit from the Loans, Letters of Credit and other financial accommodations under the Credit Agreement and the financial accommodations under the Guarantied Cash Manag ement Agreements and Guarantied Hedge Agreements.
It is a condition precedent to the obligation of Lenders to make Loans under the Credit Agreement and to extend other financial accommodations under the Loan Documents and of Cash Management Banks and Hedge Banks to provide financial accommodations pursuan t to Guarantied Cash Management Agreements and Guarantied Hedge Agreements that the Guarantors shall have executed and delivered this Guaranty.
AGREEMENT .
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in order to induce Guarantied Parties to make (a) Loans and issue Letters of Credit under the Credit Agreement and extend other credit and financial accommodations under the Loan Documents and ( b) make financial accommodations under Guarantied Cash Management Agreements and Guarantied Hedge Agreements, each Guarantor hereby agrees with Administrative Agent, for its benefit and the benefit of the other Guarantied Parties, and each other Guarantied Party as follows:
" Fraudulent Transfer Laws " means applicable Laws relating to f raudulent conveyance or fraudulent transfer, including Section 548 of Bankruptcy Code or any applicable provisions of comparable state Law.
" Guarantied Obligations " means, collectively, (a)(i) with respect to the Borrower, (A) Obligations owing by any Loan Party (other than the Borrower) or any Subsidiary of a Loan Party under any Guarantied Hedge Agreement or any Guarantied Cash Management Agreement, and (B) the payment and performance obligations of each Specified Loan Party under this Guaranty, and (ii) with respect to each other Guarantor, the Obligations, whether now or hereafter existing and whether for principal, interest, fees, expenses or otherwise, (b) any and all reasonable and invoiced out-of-pocket expenses (including the reasonable and invoice d fees, charges and disbursements of any one counsel for the Administrative Agent, one additional counsel on behalf of the Lenders, and one local counsel in each relevant jurisdiction) incurred by the Guarantied Parties in enforcing any rights under this G uaranty, and (c) all present and future amounts that would become due with respect to the foregoing but for the operation of any provision of Debtor Relief Laws, and all present and future accrued and unpaid interest with respect to the foregoing, includin g, without limitation, all post-petition interest if any Loan Party becomes subject to any proceeding under Debtor Relief Laws.
SECTION 2. Guaranty . Each of the Guarantors hereby jointly an d severally absolutely and unconditionally guarantees prompt payment when due, whether at stated maturity, by acceleration, or otherwise, of, and the performance of, the Guarantied Obligations; provided, that the Guarantied Obligations shall not, as to any Guarantor, include any Excluded Swap Obligations of such Guarantor. Upon failure of the Borrower to pay any of the Guarantied Obligations when due (whether at stated maturity, by acceleration or otherwise), Guarantors hereby further jointly and severally agree to promptly pay the same to the Administrative Agent for the benefit of Guarantied Parties, without any other demand or notice whatsoever, including without limitation, any notice having been given to any Guarantor of either the acceptance of this G uaranty or the creation or incurrence of any of the Guarantied Obligations . This Guaranty is an absolute guaranty of payment and performance of the Guarantied Obligations and not a guaranty of collection, meaning that it is not necessary for the Administr ative Agent (for and on behalf of Guarantied Parties), in order to enforce payment by Guarantors, first or contemporaneously to accelerate payment of any of the Guarantied Obligations or to institute suit or exhaust any rights against any Loan Party or any other Person. Notwithstanding anything herein or in any other Loan Document, any Guarantied Cash Management Agreement, or any Guarantied Hedge Agreement to the contrary, in any action or proceeding involving any state corporate or other business entity L aw, or any state or federal bankruptcy, insolvency, reorganization or other Law affecting the rights of creditors generally (including any Debtor Relief Law), if, as a result of Fraudulent Transfer Laws, the obligations of any Guarantor under this Section 2 would otherwise, after giving effect to (a) all other liabilities of such Guarantor, contingent or otherwise, that are relevant under Fraudulent Transfer Laws (specifically excluding, however, any liabilities of the Guarantor in respect of intercompany I ndebtedness to the Borrower or any Subsidiary to the extent that such Indebtedness would be discharged in an amount equal to the amount paid by the Guarantor hereunder) and (b) the value as assets of such Guarantor (as determined under the applicable provi sions of Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights held by such Guarantor pursuant to (i) applicable Law, (ii) Section 17 hereof or (iii) any agreement providing for rights of subrogati on, reimbursement or contribution in favor of such Guarantor, or for an equitable allocation among such Guarantor, any other Loan Party, or Subsidiaries or Affiliates of the Borrower, and any other Person of obligations arising under guaranties by such Per sons, be held or determined to be void, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under this Section 2 , then the amount of such liability shall, without any further action by s uch Guarantor, any Guarantied Party, the Administrative Agent or any other Person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action o r proceeding.
SECTION 4. Waiver .
SECTION 5. Representations and Warranties .
SECTION 6. Amendments, Etc . Neither any amendment or waiver of any provision of this Guaranty nor consent to any departure by any Guarantor herefrom shall in any event be effective unless the same shall be in wri ting, approved by Required Lenders (or by all Lenders where the approval of each Lender is required under the Credit Agreement) and signed by the Administrative Agent and Guarantors, and then such waiver or consent shall be effective only in the specific i nstance and for the specific purpose for which given. Notwithstanding the foregoing, each Guarantor shall be released from any and all obligations hereunder in accordance with the provisions of Section 9.10 of the Credit Agreement.
SECTION 7. Addresses f or Notices . All notices and other communications provided for herein shall be effectuated in the manner provided for in Section 10.02 of the Credit Agreement; provided , that if a notice or communication hereunder is sent to a Guarantor, said
SECTION 8. No Waiver; Remedies .
SECTION 10. Continuing Guaranty; Transfer of Guarantied Obligations . This Guaranty (a) is (i) a continuing guaranty and shall remain in full force and effect until the earlier of (A) the Guaranty Release Date and (B) the date upon which all of the Guarantied Obligations are fully, indefeasibly, absolutely and unconditionally paid and performed, the Aggregate Commitments are terminated, and all Letter s of Credit have expired, been terminated or secured on terms that are reasonably satisfactory to the L/C Issuer (such earlier date, the " Release Date ") and (ii) binding upon each Guarantor, its successors and permitted assigns and such Guarantor as debtor -in-possession, and (b) inures to the benefit of is enforceable by the Administrative Agent and the other Guarantied Parties and their respective successors, permitted transferees, and permitted assigns. Without limiting the generality of the foregoing cl ause (b) , each of the Guarantied Parties may assign or otherwise transfer any Guarantied Obligations owed to it to any other Person, and such other Person shall thereupon become vested with all the rights in respect thereof granted to such Guarantied Party herein or otherwise with respect to such Guarantied Obligations so transferred or assigned; subject, however, to compliance with the provisions of the Credit Agreement. Except as the result of the consummation of a transaction permitted under Section 7.0 4 of the Credit Agreement, no Guarantor may assign any of its obligations under this Guaranty.
SECTION 11. Application of Payments . All amounts and property received by the Administrative Agent and the other Guarantied Parties pursuant to this Guaranty ( including amounts and property received or applied pursuant to Section 9 or application of other rights of setoff) shall be applied as provided in Section 8.03 of the Credit Agreement.
SECTION 12. Reinstatement; Stay of Acceleration; Termination . This Gu aranty shall remain in full force and effect and continue to be effective should any petition be filed by or against any Loan Party under any Debtor Relief Law, should any Loan Party become insolvent or make an assignment for the benefit of creditors or sh ould a receiver or trustee be appointed for all or any significant part of any Loan Party's assets, and shall, to the fullest extent permitted by applicable Law, continue to be effective or be reinstated, as the case may be, if at any time payment and perf ormance of the Guarantied Obligations, or any part thereof, is, pursuant to applicable Law or otherwise, rescinded or reduced in amount, or must otherwise be restored or returned by any obligees of the Guarantied Obligations or such part thereof, whether a s a "voidable preference," "fraudulent transfer," or otherwise, all as though such payment or performance had not been made. In the event that any payment, or any part thereof, is rescinded, reduced, restored or returned, the Guarantied Obligations shall, to the fullest extent not prohibited by Law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned. If acceleration of the time for payment of any of the Guarantied Obligations is stayed upon the in solvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Guarantied Obligations shall nonetheless be payable by each Guarantor forthwith on demand by the Adm inistrative Agent. Subject to the reinstatement provisions of this Section 12 , this Guaranty shall remain in full force and effect until the Release Date.
SECTION 15. Section Titles . The Section titles contained in this Guaranty are and shall be without substantive meaning or content of any kind whatsoever and are not to be used in any interpretation of this Guaranty.
SECTION 16. Counterparts . This Guaranty may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Guaranty by facsimile or other electronic i maging means (e.g. "pdf" or "tif") shall be effective as delivery of a manually executed counterpart of this Guaranty.
SECTION 17. Subrogation and Subordination .
SECTION 18. Guarantor Insolvency . Should any Guarantor voluntarily seek, consent to, or acquiesce in the benefits of any Debtor Relief Law or become a party to or be made the subject of any Insolvency Proceeding (other than as a creditor or claimant), then the obligations of such Guaran tor under this Guaranty shall be, as between such Guarantor and such Guarantied
SECTION 19. Interest Rate Limitation . Notwithstanding anything to the contrary contained herein or in any other Loan Document, each Guarantor and each Guarantied Party by its acceptance hereof agree that no Guarantor shall be required or obligated to pay interest in excess of the maximum rate of non-usurious interest permitted by applicable Law (the " Maximum Rate "). If the Administrative Agent or any Guarantied Party shall receive inter est in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal amount of the Loans and then the principal amount of any other Guarantied Obligations. In determining whether the interest contracted for, charged, or re ceived by the Administrative Agent or a Guarantied Party 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) exclu de 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 Guarantied Obligations hereunder.
SECTION 20. Severability . If any provision of this Guaranty is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Guaranty shall not be affected or impaired thereby and (b) the parties shall endeavor in go od faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 21. No Setoff or Deductions; Taxes . Each Guarantor represents and warrants that it is incorporated or formed, and resides in, the Unit ed States of America. All payments by each Guarantor hereunder shall be paid in full, without setoff or counterclaim (other than mandatory) or any deduction or withholding whatsoever, including, without limitation, for any and all present and future Taxes , except as required by applicable Law. If a Guarantor must make a payment under this Guaranty, such Guarantor represents, warrants and covenants that it will make the payment from one of its U.S. resident offices to the Administrative Agent or each other Guarantied Party. If any Guarantor makes a payment under this Guaranty on which any Indemnified Taxes or Other Taxes are at any time imposed including, but not limited to, payments made pursuant to this Section 21 , each Guarantor shall pay all such Indem nified Taxes or Other Taxes to the relevant authority in accordance with applicable Law such that the Administrative Agent or any other Guarantied Party receives the sum it would have received had no such deduction or withholding for Indemnified Taxes or O ther Taxes been made and shall also pay to the Administrative Agent or any other Guarantied Party, on demand, all additional amounts which the Administrative Agent or any other Guarantied Party specifies as necessary to preserve the after-tax yield the Adm inistrative Agent or such other Guarantied Party would have received if such Indemnified Taxes or Other Taxes had not been imposed. Each Guarantor shall promptly provide the Administrative Agent or any other Guarantied Party with the original or a
SECTION 22. Additional Guarantors . Upon the execution and delivery by any other Person of a Guaranty Supplement in substantially the form of Exhibit A (each, a " Guaranty Supplement "), such Person shall become a "Guarantor" hereunder with the same force a nd effect as if originally named as a Guarantor herein. The execution and delivery of any Guaranty Supplement shall not require the consent of any other Guarantor hereunder. The rights and obligations of each Guarantor hereunder shall remain in full forc e and effect notwithstanding the addition of any new Guarantor as a party to this Guaranty.
SECTION 23. Keepwell . Each Loan Party that is a Qualified ECP Guarantor at the time this Guaranty, in each case, by any Specified Loan Party, becomes effective wi th respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specif ied Loan Party from time to time to honor all of its obligations under this Guaranty and the other Loan Documents in respect of such Swap Obligation (but, in each case, only up to the maximum amount of such liability that can be hereby incurred without ren dering such Qualified ECP Guarantor's obligations and undertakings under this Section 23 voidable under applicable Fraudulent Transfer Laws and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Release Date. Each Qualified ECP Guarantor intends this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a "keepwell, support, or other agreement" for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.
SECTION 24. Entire Agreement . THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENC E OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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CELLVEST, INC. |
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By: |
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Peter L. Sereda |
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Treasurer |
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EASTERN NORTH CAROLINA CELLULAR JOINT VENTURE |
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UNITED STATES CELLULAR |
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CORPORATION, |
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Managing General Partner |
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By: |
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Steven T. Campbell |
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Vice President and Treasurer |
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GUARANTY SUPPLEMENT NO. ___
THIS GUARANTY SUPPLEMENT NO. ___ (this " Guaranty Supplement ") is made as of ___________________, to the Guaranty dated as of June 15, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the " Guaranty "), among the initial signatories thereto and each other Person whi ch from time to time thereafter became a party thereto pursuant to Section 22 thereof (each, individually, a " Guarantor " and, collectively, the " Guarantors "), in favor of the Administrative Agent for the benefit of Guarantied Parties (as defined in the Gua ranty).
BACKGROUND .
Capitalized terms not otherwise defined herein have the meaning specified in the Guaranty. The Guaranty provides that additional parties may become Guarantors under the Guaranty by execution and delivery of this form of Guaranty Supple ment. Pursuant to the provisions of Section 22 of the Guaranty, the undersigned is becoming an Additional Guarantor under the Guaranty. The undersigned desires to become a Guarantor under the Guaranty in order to induce Guarantied Parties to continue to make credit extensions and accommodations under the Loan Documents, Guarantied Cash Management Agreements, and Guarantied Hedge Agreements.
AGREEMENT .
NOW, THEREFORE, the undersigned agrees with the Administrative Agent and each other Guaranteed Party as f ollows:
SECTION 1. In accordance with the Guaranty, the undersigned hereby becomes a Guarantor under the Guaranty with the same force and effect as if it were an original signatory thereto as a Guarantor and the undersigned hereby (a) agrees to all the te rms and provisions of the Guaranty applicable to it as a Guarantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Guarantor thereunder are true and correct on and as of the date hereof . Each reference to a "Guarantor" or an "Additional Guarantor" in the Guaranty shall be deemed to include the undersigned.
SECTION 2. Except as expressly supplemented hereby, the Guaranty shall remain in full force and effect in accordance with its terms .
SECTION 3. THIS GUARANTY SUPPLEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK .
SECTION 4. This Guaranty Supplement hereby incorporates by reference the provisions of the Guaranty, which provisions are deemed to be a part here of, and this Guaranty Supplement shall be deemed to be a part of the Guaranty .
EXECUTED as of the date first above written. |
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ACCEPTED BY: |
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TORONTO DOMINION (TEXAS) LLC, |
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as Administrative Agent |
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FORM OF PREPAYMENT NOTICE
Date: ___________, 20___
To: Toronto Dominion (Texas) LLC, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 15, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the " Credit Agreement ;" the terms defined therein being used herein as therein defined), among Unite d States Cellular Corporation, a Delaware corporation (the " Borrower "), the Lenders from time to time party thereto, Toronto Dominion (Texas) LLC, as Administrative Agent, and The Toronto-Dominion Bank, New York Branch, as L/C Issuer and as Swing Line Lend er.
This prepayment notice (this " Notice ") is delivered to the Administrative Agent pursuant to Section 2.05(a) of the Credit Agreement. The Borrower will prepay Committed Loans as follows:
1. On _________________________________ (a Business Day).
2. In the amount of $__________________.
3. Comprised of _________________________. [Type of Committed Loans to be prepaid.]
4. For Eurodollar Rate Loans: with Interest Period(s) of _______ months.
This prepayments specified herein comply with the provisio ns set forth in Section 2.05(a) of the Credit Agreement, and this Notice shall not be revoked by the Borrower, except as permitted by the Credit Agreement.
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UNITED STATES CELLULAR CORPORATION |
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