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Item 1.01. Entry into a Material Definitive Agreement .
As previously disclosed, on January 21, 2015, United States Cellular Corporation (“U.S. Cellular” or the “Company”) entered into a $225,000,000 Credit Agreement by and among U.S. Cellular as Borrower, CoBank, ACB as Administrative Agent, and the other lenders party thereto and identified therein (“Term Loan Credit Agreement”).
The Term Loan Credit Agreement provided U.S. Cellular with a $225,000,000 senior term loan credit facility for genera l corporate purposes, including working capital, non-hostile acquisitions, spectrum purchases and capital expenditures.
This Current Report on Form 8-K is being filed to disclose an amendment and restatement of the Term Loan Credit Agreement (“Restated Te rm Loan Credit Agreement”) dated as of June 15, 2016 (the “Effective Date”). The following briefly describes the terms of the Restated Term Loan Credit Agreement:
Borrowings under the Restated Term Loan Credit Agreement bear interest, at U.S. Cellular’s o ption, either at a LIBOR rate or at an alternative base rate, plus an applicable margin. U.S. Cellular's interest costs under the Restated Term Loan Credit Agreement are based on credit ratings from Standard & Poor’s Rating Services, Moody’s Investor Servi ces 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 Restated Term L oan Credit Agreement:
1. Consolidated Interest Coverage Ratio (the ratio of Consolidated EBITDA to Consolidated Interest Charges), may not be less than 3.00 to 1 as of the end of any fiscal quarter.
2. Consolidated Leverage Ratio (the ratio of Co nsolidated Funded Indebtedness to Consolidated EBITDA) may not be greater than the ratios indicated for each period specified below:
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 term loan under the Restated Term Loan Credit Agreement is unsecured except for a lien on all equity which U.S. Cellular may have in the loan administrative agent, CoBank ACB, subject to certain limitations.
The Restated Term Loan Credit Agreement pro vides, 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 Restated Term Loan Credit Agreement.
The Restate d Term Loan 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 de fined in the Restated Term Loan Credit Agreement, of TDS (as defined below) or U.S. Cellular would constitute a default and would require all borrowings outstanding under the Restated Term Loan Credit Agreement to be repaid.
The continued availability of t he Restated Term Loan 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.
The Term Loan Credit Agreement permitted U.S. Cellular to make one or more borrowings aggregating up to $225,000,000 from the agreement date through the six month anniversary of the agreement date, or July 21, 2015. On July 20, 2015, U.S. Cellular borrowed the entire amount of the term loan credit facility of $225 million under the Term Loan Credit Agreement for general corporate purposes. Approximately $222 million continues to remain outstanding under the Restated Term Loan Credit Agreement as of the Effective Date.
Amounts borrowed under the Term Loan Credit Agreement were due and payable in quarterly installments of $2,812,500 beginning on March 31, 2016, and such payments will continue under the Restated Term Loan Credit Agreement through Decem ber 31, 2021, and the remaining unpaid balance will be due and payable in full on the seventh anniversary of the original agreement date, or January 21, 2022.
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The foregoing brief description is qualified by reference to the copy of the Restated Term Loan C redit 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 agent under the Restated Term Loan Credit Agreement and/or their affiliates may have various rel ationships 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 tr ustee and/or other services, including serving as a lender under the Restated Term Loan Credit Agreement or under TDS and/or U.S. Cellular revolving credit agreements.
In connection with the Term Loan Credit Agreement, U.S. Cellular and TDS entered into a Subordination Agreement dated January 21, 2015 together with CoBank, ACB, 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 pri or payment in full of obligations to the lenders under the Restated Term Loan 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 Subordination Agreement. The form of the Subordination Agreement is attached as an exhibit to the Restated Term Loan Credit Agreement attached hereto as Exhibit 4.1.
U.S. Cellular’s first tier, wholly-owned subsidiaries have jointly and severally unconditionally guaranteed the paymen t and performance of the obligations of U.S. Cellular under the Restated Term Loan Credit Agreement pursuant to a Guaranty dated the Effective Date. The form of the Guaranty is attached as an exhibit to the Restated Term Loan Credit Agreement attached her eto 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 infor mation 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 partie s 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 informatio n 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 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 or furnished 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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Amended and Restated Term Loan Credit Agreement, among U.S. Cellular and CoBank, ACB, as administrative agent, and the other lenders thereto, dated as of June 15, 2016, including Schedules and Exhibits, including the forms of the subsidiary Guaranty and Su bordination Agreement |
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Amended and Restated
Credit Agreement
Dated as of June 15, 2016
Among
United States Cellular Corporation
as the Borrower,
CoBank, ACB
as the Administrative Agent, the Lead Arranger, the Sole Bookrunner and a Lender
and
The
Other Lenders Party Hereto
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Page |
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ARTICLE I. |
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DEFINITIONS AND ACCOUNTING TERMS |
1 |
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1.01 |
Defined Terms |
1 |
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1.02 |
Other Interpretive Provisions |
29 |
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1.03 |
Accounting Terms |
30 |
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1.04 |
Rounding |
30 |
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1.05 |
Times of Day |
31 |
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1.06 |
Pro Forma Calculations |
31 |
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ARTICLE II. |
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THE COMMITMENTS |
31 |
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2.01 |
Committed Loans |
31 |
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2.02 |
Borrowings, Conversions and Continuations of Committed Loans |
31 |
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2.03 |
Prepayments |
33 |
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2.04 |
Termination or Reduction of Commitments |
34 |
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2.05 |
Repayment of Loans |
34 |
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2.06 |
Interest |
36 |
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2.07 |
Fees |
37 |
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2.08 |
Computation of Interest and Fees |
37 |
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2.09 |
Evidence of Debt |
37 |
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2.10 |
Payments Generally; Administrative Agent's Clawback |
38 |
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2.11 |
Sharing of Payments by Lenders |
40 |
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2.12 |
Defaulting Lenders |
40 |
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ARTICLE III. |
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TAXES, YIELD PROTECTION AND ILLEGALITY |
42 |
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3.01 |
Taxes |
42 |
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3.02 |
Illegality |
47 |
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3.03 |
Inability to Determine Rates |
47 |
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3.04 |
Increased Costs |
48 |
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3.05 |
Compensation for Losses |
49 |
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3.06 |
Mitigation Obligations; Replacement of Lenders; Like Treatment |
50 |
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3.07 |
Survival |
51 |
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ARTICLE IV. |
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CONDITIONS PRECEDENT TO Committed loans |
51 |
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4.01 |
Conditions of Initial Committed Loan |
51 |
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4.02 |
Conditions to all Committed Loans |
53 |
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4.03 |
Conditions to Effective Date |
53 |
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ARTICLE V. |
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REPRESENTATIONS AND WARRANTIES |
56 |
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5.01 |
Existence, Qualification and Power |
56 |
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5.02 |
Authorization; No Contravention |
56 |
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5.03 |
Governmental Authorization; Other Consents |
56 |
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Page |
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5.04 |
Binding Effect |
56 |
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5.05 |
Financial Statements; No Material Adverse Effect |
57 |
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5.06 |
Litigation |
57 |
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5.07 |
No Default |
57 |
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5.08 |
Ownership of Property; Liens |
57 |
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5.09 |
Environmental Compliance |
58 |
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5.10 |
Insurance |
58 |
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5.11 |
Taxes |
58 |
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5.12 |
ERISA Compliance |
58 |
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5.13 |
Subsidiaries; Equity Interests; Guarantors |
59 |
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5.14 |
Margin Regulations; Investment Company Act |
59 |
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5.15 |
Disclosure |
60 |
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5.16 |
Compliance with Laws |
60 |
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5.17 |
Taxpayer Identification Number |
60 |
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5.18 |
Anti-Corruption Laws; OFAC |
60 |
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ARTICLE VI. |
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AFFIRMATIVE COVENANTS |
61 |
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6.01 |
Financial Statements |
61 |
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6.02 |
Certificates; Other Information |
62 |
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6.03 |
Notices |
64 |
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6.04 |
Payment of Obligations |
64 |
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6.05 |
Preservation of Existence, Etc. |
65 |
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6.06 |
Maintenance of Properties; Office |
65 |
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6.07 |
Maintenance of Insurance |
65 |
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6.08 |
Compliance with Laws |
66 |
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6.09 |
Books and Records |
66 |
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6.10 |
Inspection Rights |
66 |
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6.11 |
Use of Proceeds |
67 |
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6.12 |
Indebtedness Owed to Parent Affiliated Companies |
67 |
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6.13 |
Further Assurances |
67 |
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6.14 |
CoBank Equity |
67 |
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6.15 |
Additional Guarantors; Guaranty Trigger Event |
68 |
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6.16 |
Anti-Corruptions Laws |
69 |
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ARTICLE VII. |
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NEGATIVE COVENANTS |
69 |
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7.01 |
Liens |
69 |
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7.02 |
Investments |
71 |
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7.03 |
Indebtedness |
73 |
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7.04 |
Fundamental Changes |
74 |
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7.05 |
Dispositions |
76 |
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7.06 |
Restricted Payments |
77 |
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7.07 |
Transactions with Affiliates and Subsidiaries |
78 |
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7.08 |
Burdensome Agreements |
79 |
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7.09 |
Use of Proceeds |
80 |
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Page |
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7.10 |
Financial Covenants |
81 |
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7.11 |
Governmental Programs |
81 |
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7.12 |
Anti-Corruption Laws; Sanctions |
81 |
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7.13 |
Guarantees |
82 |
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ARTICLE VIII. |
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EVENTS OF DEFAULT AND REMEDIES |
82 |
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8.01 |
Events of Default |
82 |
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8.02 |
Remedies Upon Event of Default |
84 |
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8.03 |
Application of Funds |
85 |
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ARTICLE IX. |
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ADMINISTRATIVE AGENT |
85 |
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9.01 |
Appointment and Authority |
85 |
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9.02 |
Rights as a Lender |
86 |
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9.03 |
Exculpatory Provisions |
86 |
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9.04 |
Reliance by Administrative Agent |
87 |
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9.05 |
Delegation of Duties |
87 |
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9.06 |
Resignation of Administrative Agent |
88 |
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9.07 |
Non-Reliance on Administrative Agent and Other Lenders |
88 |
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9.08 |
No Other Duties, Etc. |
89 |
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9.09 |
Administrative Agent May File Proofs of Claim |
89 |
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9.10 |
Guaranty Matters |
89 |
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9.11 |
Guarantied Hedge Agreements |
90 |
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ARTICLE X. |
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MISCELLANEOUS |
90 |
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10.01 |
Amendments, Etc. |
90 |
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10.02 |
Notices; Effectiveness; Electronic Communication |
91 |
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10.03 |
No Waiver; Cumulative Remedies; Enforcement |
94 |
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10.04 |
Expenses; Indemnity; Damage Waiver |
94 |
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10.05 |
Payments Set Aside |
96 |
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10.06 |
Successors and Assigns |
97 |
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10.07 |
Treatment of Certain Information; Confidentiality |
102 |
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10.08 |
Right of Setoff |
103 |
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10.09 |
Interest Rate Limitation |
103 |
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10.10 |
Counterparts; Integration; Effectiveness |
104 |
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10.11 |
Survival of Representations and Warranties |
104 |
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10.12 |
Severability |
104 |
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10.13 |
Replacement of Lenders |
104 |
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10.14 |
Governing Law; Jurisdiction; Etc. |
105 |
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10.15 |
Waiver of Jury Trial |
106 |
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10.16 |
No Advisory or Fiduciary Responsibility |
106 |
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10.17 |
Electronic Execution of Assignments and Certain Other Documents |
107 |
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10.18 |
PATRIOT Act |
107 |
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Page |
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10.19 |
Time of the Essence |
108 |
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10.20 |
Designation as Senior Debt |
108 |
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10.21 |
FCC Approval |
108 |
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10.22 |
Entire Agreement |
108 |
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10.23 |
Keepwell |
108 |
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10.24 |
Acknowledgement and Consent to Bail-In of EEA Financial Institutions |
108 |
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10.25 |
Effectiveness of Amendment and Restatement; No Novation |
109 |
1.01 Special Entities
2.01 Commitments and Applicable Percentages
5.05
Supplement to In
terim Financial Statements
5.13
Subsidiaries;
Other Equity Investments
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
10.0 6 Voting Participants
EXHIBITS
Form of
A Committed Loan Notice
B Note
C Compliance Certificate
D-1 Assignment and Assumption
D-2 Administrative Questionnaire
E Opinion Matters
F Subordination Agreement
G U.S. Tax Compliance Certificates
H Guarantied Party Designation Notice
I Guaranty
J Effective Date Opinion Matters
K Prepayment Notice
UNITED STATES CELLULAR CORPORATION
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED 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 (collectively, the “ Lenders ” and individually, a “ Lender ”), and COBANK, ACB, as Administrative Agent.
The Borrower, the Administrative agent and certa in of the Lenders entered into a Credit Agreement (as otherwise amended, supplemented, extended, restated or otherwise modified prior to the effectiveness of this Agreement, the “ Existing Credit Agreement ”) dated as of January 21, 2015, pursuant to which t he Lenders agreed to provide a term loan credit facility to the Borrower.
The Borrower, the Administrative Agent and the Lenders under the Existing Credit Agreement agree, on the terms and subject to the conditions hereinafter set forth, to amend and rest ate the Existing Credit Agreement in its entirety.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
“ Administrative Agent ” means CoBank in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
“ Administrative Agent ’ s Office ” means the Administr ative Agent ’ s address as set forth on Schedule 10.02 , or such other address as the Administrative 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 D-2 or any other form approved by the Administrative Agent.
“ Affiliate ” means, 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 Su bsidiaries or, as the case may be, the Parent Company under Rule 144(a) of the Rules and Regulations 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 Com pany were issuing securities; and, in relation to any Lender or any other Person, any Person 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 Amended and Restated Credit Agreement.
“ Anti-Terrorism Laws ” means any Laws relating to financing terrorism, “know your customer” or money laundering, including Executive Order No. 13224, the Patri ot 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 (ca rried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender’s Commitment at such time provided that, in the case of Section 2.10 with respect to payments to be distributed by the Administrative Agent to Lenders, when a Def aulting Lender shall exist, “Applicable Percentage” shall mean the percentage of the Aggregate Commitment (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s Commitment at such time. If the commitment of each Lender to make Loan s has been terminated pursuant 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 s ubsequent assignments. The 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 Rat e ” means, from time to time, 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,
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 resulting from a publicly annou nced 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 a dministered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
“ Assignee Group ” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.06(b) ), and accepted by t he Administrative Agent, in substantially the form of Exhibit D-1 or any other form 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 accordance 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 such 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 fis cal year ended December 31, 2015, and the related consolidated statements of operations, common stockholders’ equity and cash flows for such fiscal year of the Borrower and its Subsidiaries, including the notes thereto.
“ Availability Period ” means the peri od from and including the Closing Date to the earliest of (a) the Delayed Draw Termination Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.04 , and (c) the date of termination of the commitment of each Lender to make Loa ns 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 Institution.
“ 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) the 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). Any change in the Base Rate due to a change in the calculation thereof shall be effective at the opening of business on the first Business Day of each week or, if determined more frequently, at the opening of business on the first Business Day immediately following the date of such determination and without necessity of notice being provided to the Borrower or any other Person.
“ Base Rate Co mmitted Loan ” means a Committed Loan that is a Base Rate Loan.
“ Base Rate 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 specifi ed in Section 6.02 .
“ Borrowing ” means a Committed Borrowing.
“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
“ Carlson Family Group ” mea ns any and all of the following persons: (a) LeRoy T. Carlson or his spouse, Margaret Carlson; (b) any child, grandchild, great grandchild or other lineal descendant of LeRoy T. Carlson and Margaret Carlson, including any Person with such relationship by a doption, or the spouse of any such Person; (c) the estate of any of the Persons described in subsections (a) and (b); (d) any trust or similar arrangement, provided that Persons described in subsections (a), (b), or (c) are the beneficiaries of more than f ifty percent (50%) of the beneficial interests in such trust or arrangement; (e) 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 (f) any corporation, partnership, limited liability company or other entity in which Persons identified in subsections (a) through (e) own more than fifty percent (50%) of the voting interests in the election of directors or other management of such entity.
“ Cash Equivalents ” means any of the following types of Investments, to the extent owned by the Borrower or any of its Subsidiaries free and clear of all Liens:
under the Investment Company Act of 1940, which are administered by financial institutions th at 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.
“ Change in Law ” mea ns the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, impleme ntation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether 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 thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank fo r International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, 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:
such election or nomination at least a majority of that board or equivalent governing body.
“ Closing Date ” means January 21, 2015.
“ CoBank ” means CoBank, ACB, a federally char tered instrumentality of the United States.
“ CoBank Equities ” has the meaning specified in Section 6.14 .
“ Code ” means the Internal Revenue Code of 1986, as amended, and the rules and regulations related thereto.
“ Commitment ” means, as to each Lender, its o bligation to make Committed Loans to the Borrower pursuant to Section 2.01 , in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender ’ s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
“ 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 in 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 Responsible Officer of the Borrower.
“ Commo dity 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 C or any other form approved by the Admin istrative 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 ” means, 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 whic h 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, l ocal 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) depreciation, amortization and accretio n 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 Income, 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 fa ce 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 cash 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 Indebtedness ” means, as of any date o f 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) a nd 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 commerc ial), 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) 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 condi tional 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 (other than a joint venture that is itsel f 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 th e 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 co ntractual 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 Indebte dness of the Borrower or any of its Subsidiaries outstanding during 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 2.07 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 C overage Ratio ” means, as of any date of determination, the ratio 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 forego ing, for the purposes of determination of the Consolidated Interest 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 Variable 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 deter mination, 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 purposes of determination of the Co nsolidated 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 Interest Entity is required by subsec tion (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 Borrower and its Subsidiaries (excl uding 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 Interest 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 Obligation ” 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 posses sion, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. “ Controlling ” and “ Controlled ” have meanings correlati ve thereto.
“ 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, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“ Default Rate ” m eans an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 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.
“ Defaulting Lender ” means, subject to Section 2.12(b) , any Lender that (a) has failed to (i) fund all or any portion of the Committed Loans required to b e funded by it hereunder within two Business Days of the date such Loans were required to be funded by it hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determinat ion 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 or any other L ender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified the Borrower, or the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, 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 funding (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 Agent or the Borr ower, 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 receipt of suc h 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, custodian, cons ervator, 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 by a Governmen tal 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 permit such Len der (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 clauses (a) thro ugh (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.12(b) ) upon delivery of written notice of such determination to the Borrower and each Lender.
“ Designated J urisdiction ” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
“ Delayed Draw Termination Date ” means July 21, 2015, provided , however , that if such date is not a Business day, the Delayed Dra w Termination Date shall be the next preceding Business Day.
“ Disposition ” or “ Dispose ” means any sale, transfer, or other disposition of any property by any Person, including without limitation (a) any Sale and Leaseback Transaction and (b) any sale, assi gnment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“ Dollar ” and “ $ ” mean lawful money of the United States.
“ Domestic Subsidiary ” means any Subsidiary that is org anized 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 Authorit y, (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 i n clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“ EEA Member Country ” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“ EEA Resolution Authority ” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
“ Effective Date ” means the first date on whic h all the conditions precedent in Section 4.03 are satisfied or waived in accordance with Section 10.01 .
“ 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 an y, as may be required under Section 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 restrictions 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 pu blic 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 Subs idiaries directly or indirectly 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 release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“ Equity Interests ” mean s, 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 ownership 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 opti ons for the purchase or acquisition 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 nonvo ting, 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 business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Co de).
“ 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 defin ed 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 reorganization; (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 ERI SA, the filing of a notice of 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 co ndition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
“ 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.
“ Eurodollar Rate ” means:
Notwithstanding the foregoing, if the Eurodollar Rate shall be less than zero, such rate shall be deemed to be ze ro 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 ” has the meaning specified in the introductory paragraphs hereto.
“ Farm Credit Lender ” means a federally-chartered Farm Credit System lending institution organized under the Farm Credit Act of 1971.
“ 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 succe ssor 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 r egulatory 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 Commission (or any successor agency, commi ssion, bureau, department or other political subdivision) of the United States.
“ Federal Funds Rate ” means, for any day, the rate of interest per annum (rounded upward, if necessary, to the nearest whole multiple of 1/100th of 1%) equal to the weighted ave rage of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on such date, or if no such rate is so published on suc h day, on the most recent day preceding such day on which such rate is so published.
“ Fee Letter ” means the letter agreement, dated December 12, 2014, between the Borrower and CoBank, ACB.
“ Fitch ” means Fitch Ratings, Inc., and any successor thereto.
“ Fitc h 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 Unite d States, each State thereof and the District of Columbia.
“ FRB ” means the Board of Governors of the Federal Reserve System of the United States.
“ Fund ” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, ho lding 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 eff ect 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 statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination.
“ Governmental Authority ” means the government of the United States or any o ther nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, 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 meaning specified in Section 7.03(e) .
“ Guarantee ” means, as to any Person withou t 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 purchase or lease property, securities or services for the purpose of assuring th e 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 liquidity 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 thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness of any other Person, whether or not such Indebtedness is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lie n), 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 connectio n 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 relate d 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 ter m “ Guarantee ” as a verb has a corresponding meaning.
“ 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, th e Administrative Agent, the Lenders, the Hedge Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section 9.05 .
“ Guarantied Party Designation Notice ” means a notice from any Lender or an Affiliate of a Len der substantially in the form of Exhibit H .
“ Guarantors ” means, collectively, (a) the Domestic Subsidiaries of the Borrower listed on Schedule 5.13 and each other direct Domestic Subsidiary that is a Material Subsidiary of the Borrower that shall be requir ed to execute and deliver a Guaranty or guaranty supplement pursuant to Section 6.15 and (b) with respect to (i) Obligations owing by any Loan Party or any Subsidiary of a Loan Party (other than the Borrower) under any Swap Contract and (ii) the payment an d performance by each Specified Loan Party of its obligations under its Guaranty with respect to all Swap Obligations, the Borrower.
“ Guaranty ” means, collectively, the Guaranty made by the Guarantors in favor of the Guarantied Parties, substantially in th e form of Exhibit I , together with each other guaranty and guaranty supplement delivered pursuant to Section 6.15 .
“ 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 Revolving 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 Pari Passu Guaranteed Indebtedness (or, if there is outstanding Pari Passu Guaranteed Indebtedness as of su ch date, all Guarantees of such Pari Passu Guaranteed Indebtedness shall be released substantially concurrently with the Guaranty Release Date).
" Guaranty Release Period " means any period commencing on the date on which a Guaranty Release Date occurs and e nding on the date on which a Guaranty Trigger Event occurs.
“ Guaranty Trigger Event ” has the meaning specified in Section 6.15(b) .
“ Hazardous Materials ” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Envi ronmental Law.
“ Hedge Bank ” means any Person that, at the time it enters into a Swap Contract permitted under Article VI or VII , is the Administrative 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.
“ 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:
For all purposes hereof, the Indebtedness of any Person shall include, without duplication, the Indebtedness of any partnership or joint venture (other 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 made 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 shall 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) .
“ Info rmation ” 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 exceeds 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, the last Business Day of each Marc h, June, 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 t he date 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:
(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 Da y of the calendar 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 equi ty participation or interest 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 acquisit ion (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 in creases or decreases in the value of such Investment.
“ IRS ” means the United States Internal Revenue Service.
“ Laws ” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration there of by any Governmental Authority charged with the enforcement, interpretation or administration thereof,
and all applicable administrative 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.
“ Lender ” has the meaning specified in the introductory paragraph hereto.
“ Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Admin istrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
“ LIBOR ” means, with respect to any Interest Period, a rate of interest reported by Bloomberg Information Services ( or on any successor or substitute service providing rate quotations comparable to those currently provided by such service, as determined by the Administrative Agent from time to time, for the purpose of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest Period; provided tha t, in the event the Administrative Agent is not able to determine LIBOR using such methodology, the Administrative Agent shall notify the Borrower and the Administrative Agent and the Borrower will agree upon a substitute basis for obtaining such quotation s.
“ Lien ” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the fo regoing).
“ Loan ” means an extension of credit by a Lender to the Borrower under Article II in the form of a Committed Loan.
“ Loan Documents ” means this Agreement, the Guaranty, each Note, the Subordination Agreement and the Fee Letter.
“ 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 financial condition or business of the Borrower and its Subsidiaries taken as a whole; or (b) a materi al 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 Guarantors, taken as a whole, or the Borrower, to perform their obligations under any Loan Docume nt 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 Subs idiary ” 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 constitute at least 1% of the consolidated gross revenues of the Borrower and its Subsidiaries calc ulated in accordance with GAAP, and “Material Subsidiaries” means collectively each Material Subsidiary.
“ Maturity Date ” means January 21, 2022, provided , however , that , if such date is not a Business Day, the Maturity Date shall be the next preceding Busi ness Day .
“ 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 unsecured long-term debt securities.
“ Monetizati on 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 e ntering 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 fluctuation with respect to such Specified Equity Inter ests.
“ 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 and all other assets received in connection with such D isposition (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 amoun t 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 connection with such transaction (other than Indebtednes s 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 profession al 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 therewith; 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.
“ Non-Defaulting Lender ” means, at any time, each Lender that is not a Defaulting Lender at such time.
" 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 o f the date hereof.
“ Note ” means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit B .
“ 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 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 arising 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 interest 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 Treasur y.
“ Ordinary Capital Expenditures ” 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 acquis itions 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 compara ble 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 ventu re, trust or other form of business 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 organizatio n with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“ Other Connection Taxes ” means, with respect to any Recipient, Ta xes imposed as a result of a present 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, rece ived 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, intangible, 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 otherw ise with respect to, any Loan Document, except any such Taxes that are
Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 3.06 ).
“ Outstanding Amount ” means with respect to Committed Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans occurring on such date.
“ Parent Affiliated Companies ” means collectively, (a) the Parent Company, and (b) al l 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 Ag reement, dated as of June 15, 2016, among Telephone and Data Systems, Inc., Wells Fargo Bank, National Association, as the administrative 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, collectively, (a) the Indebtedness of the Borrower and the Subsidiary Guarantees thereof permitted by Section 7.03(h) and (b) the Indebt edness 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) .
“ Patriot Act ” has the meaning specified in Section 5.18(a) .
“ 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 any natural person, corporation, limited liability company, trust, j oint venture, association, company, partnership, Governmental Authority or other entity.
“ Plan ” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Borrower or, with respect to any such plan that is subje ct 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 2.03(a) , which shall be substantially in the form of Exhibit K 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 Respons ible Officer of the Borrower.
“ Prime Rate ” means a variable rate of interest per annum equal to the “U.S. prime rate” as reported on such day in the Money Rates Section of the Eastern Edition of The Wall Street Journal , or if the Eastern Edition of The Wall Street Journal is not published on such day, such rate as last published in the Eastern Edition of The Wall Street Journal . In the event the Eastern Edition of The Wall Street Journal ceases to publish such rate or an equivalent on a regular basis, t he term “ Prime Rate ” shall be determined on any day by reference to such other regularly published average prime rate for such date applicable to such commercial banks as is acceptable to the Administrative Agent in its sole discretion. Any change in Prim e Rate shall be automatic, without the necessity of notice provided to the Borrower or any other Person.
“ Pro Forma Basis ” means, for purposes of calculating Consolidated EBITDA for any period during which one or more Specified Transactions occurs, that su ch Specified Transaction (and all other Specified Transactions that have been consummated during the applicable period) shall be deemed to have occurred as of the first day of the applicable period of measurement and all income statement items (whether pos itive or negative) attributable to the property or Person disposed of in a Specified Disposition shall be excluded and all income statement items (whether positive or negative) attributable to the property or Person acquired in a Specified Acquisition shal l be included (provided that such income statement items to be included are reflected in financial statements or other financial data reasonably acceptable to the Administrative Agent and based upon reasonable assumptions and calculations which are expecte d 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 pa rticipant” 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 the Commodity Exchange Act.
“ Receivables Securitization ” means any secured lending or other fi nancing facility entered into by a Securitization Entity solely for the purpose of purchasing or financing Securitization Assets of the Borrower and/or its Subsidiaries, 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 Standard 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 Undertakings 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 Undertaking s) 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 wi th such Securitization Entity (except pursuant to Standard Securitization Undertakings or the Recourse Guaranty), (v) neither the Borrower nor any of its Subsidiaries (except such Securitization Entity) has any obligation to maintain such Securitization En tity’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 effective 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 the 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 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 Receivables 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 Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue other Conso lidated Funded Indebtedness in exchange, conversion or replacement for, such Consolidated Funded Indebtedness. “ Refinances ,” “ Refinanced ” and “ Refinancing ” 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 complian ce 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 Indebtedne ss being Refinanced; (b) the Refinancing Indebtedness has an average life to maturity at the time the Refinancing Indebtedness is incurred that is equal to or greater than the average life to maturity of the Consolidated Funded Indebtedness being Refinance d; (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 Refinancin g Indebtedness is issued on terms no more restrictive in any material respect than those contained in the Consolidated Funded Indebtedness being Refinanced.
“ 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 ) o f ERISA, other than events for which the 30 day notice period has been waived.
“ Required Lenders ” means, as of any date of determination, Lenders (including Voting Participants) having more than 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans has been terminated pursuant to Section 8.02 , Lenders (including Voting P articipants) holding in the aggregate more than 50% of the Total Outstandings; 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 and 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 Treasur er, 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 fore going officers in a notice to the Administrative Agent or any other officer 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 Respo nsible 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 be half 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 oth er 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, partner s or members (or the equivalent Person thereof).
“ Revolving Loan Facility ” means that certain Credit Agreement dated as of June 15, 2016 among the Borrower, Toronto Dominion (Texas) LLC, as the administrative agent and certain other lenders and financial i nstitutions party thereto from time to time, as amended, restated and extended from time to time in accordance with the terms thereof to the extent permitted under the Loan Documents.
“ S&P ” means Standard and Poor’s Rating Services, a Standard & Poor’s Fin ancial 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 financing 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 economic or fina ncial 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 sanctions a uthority.
“ 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 equipment in stallment 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-owned by th e 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 Securitization 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 Borrower or a ny 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 to the Admini strative 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 Ac quisition” 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 th e 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 (a) are not directly, or indirectly through one or more intermediaries, Controlled by the Borrower or by any of its Subsidiaries and (b) 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 divestiture 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 ” means (a) any Specifie d 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 no event shall any s uch 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 for 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 requirement in this cl ause (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 form of Exhibit F 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 governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise Controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. 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 shall 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, cr edit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or fo rward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange
Master Agr eement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement.
“ Swap Obligations ” means with respect to any Guarantor a ny obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
“ Swap Termination Value ” means, in respect of any one or more Swap Contracts, after t aking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such ter mination 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 p rovided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
“ 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 indebtedne ss 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 Authorit y, 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 quarter 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 Cons olidated EBITDA for the period of four consecutive fiscal quarters most recently ended.
“ Total Outstandings ” means the aggregate Outstanding Amount of all Loans.
“ Type ” means, with respect to a Committed Loan, its character as a Base Rate Loan or a Eurodol lar Rate Loan.
“ Unfunded Pension Liability ” means the excess of a Pension Plan ’ s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan ’ s assets, 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.
“ Variable Interest Entity ” means any variable interest entity that the Borrower is required to consolidate at a ny time pursuant to FASB ASC 810 - Consolidation. Schedule 1.01 identifies the entities 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 Subsidi aries as of the date hereof.
“ Voting Participant ” has the meaning specified in Section 10.06(d) .
“ Voting Participant Notice ” has the meaning specified in Section 10.06(d) .
“ 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 or more wholly-owned Subsidia ries 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 for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
provided , however , that if the Borrower wishes to request Eurodollar Rate Loans having an Interest Period other than one, two, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 11:00 a.m. four Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Admini strative Agent shall give prompt notice to the Lenders of such request and determine whether the requested Interest Period is acceptable to all of them. Not later than 11:00 a.m., three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all the Lenders. Each Borrowing of, conversion to or continuation of Eurodollar R ate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess t hereof. Each Committed Loan Notice shall specify (i) whether the Borrower is requesting a Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, (ii) the requested date of the Borrowing , conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Committed Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversio n or continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the app licable 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 Per iod of one month.
Loans as directed by the Borrower; provided that , if the Borrower fails to direct the application of any such prepayments, such prepayments shall be applied to the unpaid installments of principal of the Committed Loans in the inverse order of scheduled maturities.
Quarterly Payment Dates |
Quarterly Repayments |
|
|
|
March 31, 2016 |
$2,812,500 |
|
|
June 30, 2016 |
$2,812,500 |
|
|
September 30, 2016 |
$2,812,500 |
|
|
December 31, 2016 |
$2,812,500 |
|
|
March 31, 2017 |
$2,812,500 |
|
|
June 30, 2017 |
$2,812,500 |
|
|
September 30, 2017 |
$2,812,500 |
|
|
December 31, 2017 |
$2,812,500 |
|
|
March 31, 2018 |
$2,812,500 |
|
|
June 30, 2018 |
$2,812,500 |
|
|
September 30, 2018 |
$2,812,500 |
|
|
December 31, 2018 |
$2,812,500 |
|
|
March 31, 2019 |
$2,812,500 |
|
|
June 30, 2019 |
$2,812,500 |
|
|
September 30, 2019 |
$2,812,500 |
|
|
December 31, 2019 |
$2,812,500 |
|
|
March 31, 2020 |
$2,812,500 |
|
|
June 30, 2020 |
$2,812,500 |
|
|
September 30, 2020 |
$2,812,500 |
|
|
December 31, 2020 |
$2,812,500 |
|
|
March 31, 2021 |
$2,812,500 |
|
|
June 30, 2021 |
$2,812,500 |
|
|
September 30, 2021 |
$2,812,500 |
|
|
December 31, 2021 |
$2,812,500 |
|
Notwithstanding anything herein to the contrary, the entire outstanding principal balance of the Committed Loans shall be due and payable in full in cash on the Maturity Date.
t hrough the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note payable to such Lender, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amo unt and maturity of its Loans and payments with respect thereto.
A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.
and not joint. The failure of any Lender to make any Committed Loan or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its co rresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan or to make its payment under Section 10.04(c) .
The Borrower consents to the foregoing and a grees, 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 Borrower 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.
Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender
will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Committed Loans to be held on a pro rata basis by the L
enders in accordance with their Applicable Percentages, whereupon such Lender will cease to be a Defaulting Lender;
provided
that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while
that Lender was a Defaulting Lender; and
provided
,
further
, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party her
eunder arising from that Lender’s having been a Defaulting Lender.
any payment, then (A)
such Loan P
arty or the Administrative Agent, as required by such Laws, shall withhold or make such deductions as are determined by it to be required based upon the information and documentation it has received pursuant to subsection
(e) below, (B)
such Loan Party or
the Administrative Agent, to the extent required by such Laws, shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with such Laws, and (C)
to the extent that the withholding or deduction is made on acc
ount of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this S
ection) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.
U.S. Tax Compliance Certificate substantially in the form of Exhibit I-2 or Exhibit I-3 , IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Ex hibit I-4 on behalf of each such direct and indirect partner;
(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 rec ipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies (or originals, if required by app licable 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 perm it 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 we re to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times presc ribed 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 reas onably requested by the Borrower or the Administrative Agent 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 from such payment. Solely for purposes of this clause (D), “ FATCA ” shall include any amendments made to FATCA after the date of this Agreement.
refund of, or tax credit with respect to, any Taxes or Other Taxes as to which it has been indemnified by any Loan Party or with respect to which any Loan Party has paid additional amounts pursuant to this Section 3.01 , it shall pay to the Loan Party an am ount equal to such refund or credit (but only to the extent of indemnity payments made, or additional amounts paid, by a Loan Party under this Section 3.01 with respect to the Taxes or Other Taxes giving rise to such refund or credit), net of all reasonabl e out-of-pocket expenses (including Taxes and Other Taxes) incurred by such Recipient, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Loan Party, upon the request of the Recipient, agrees to repay the amount paid over to the Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Recipient in the event the Recipient is required to repay such refund or credit to such Governmental Authority. Notwithstanding anything to the contrary in this subsection, in no event will the applicable Recipient be required to pay any amount to the Loan Party pursuant to this subsection the payment of which would place the Recipient in a less favorable net after-Tax position than such Recipient would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amoun ts with respect to such Tax had never been paid. This subsection shall not be construed to require any Recipient to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Loan Party or any other P erson.
interbank euro dollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the B orrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount spec ified therein.
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maint aining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, within fifteen days afte r demand by such Lender 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 Agent given in accordance with S ection 3.06 ), the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender ’s policies and the policies of such Lender’s holding company with respect to capital adequacy and liquidity), then from time to time upon demand of such Lender setting forth in reasonable detail the charge and calculation of such reduced rate of return (b ut shall not require any Lender to disclose any confidential or proprietary information, and with a copy of such demand to the Administrative Agent given in accordance with Section 3.06 ), the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered within fifteen days after receipt of such demand.
confidential or proprietary information), the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:
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 foreg oing.
For purposes of calculating amounts payable by the Borrower to the Lenders under this Section 3.05 , each Lender shall be deemed to have funded each Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a matching deposit or other bo rrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, whether or not such Eurodollar Rate Loan was in fact so funded.
designate a different lending office in accordance with Section 3.06(a) , the Borrower may replace such Lender in accordance with Section 10.13 .
of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final 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 executed the Existing Credit Agreement on the Closing Date 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 such Len der unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Each Committed Loan Notice (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Ty pe 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 Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Committed Loa n Notice.
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 4.03 , 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 unl ess the Administrative Agent shall have received notice from such Lender prior to the proposed Effective Date specifying its objection thereto.
The Borrower represents and warrants to the Administrative Agent and the Lende rs that:
course of busin ess or otherwise in accordance with the terms of this Agreement since the date of the Audited Financial Statements 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 Liens, other than Liens permitted by Section 7.01 .
where 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 ex tension 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.
contravention or violation of Regulation U issued by the FRB. Following the application of the proceeds of each Borrowing, 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.
PATRIOT Act (Title III of Pub. L. 107-56 (signed into l aw October 26, 2001) (the " Patriot Act "), the Trading with the 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 legislation or ex ecutive 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, 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:
operations for such fiscal quarter and for the portion of the Borrower’s fiscal year then ended, and the related consolidated statements of common stockholders’ equity, and cash flows for the portion of the Borr ower’s fiscal year then 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 financial condition, results of operations, common stockholders’ equity and cash f lows 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 in connection with any Receivables Securitization).
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 delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Borrower posts such documents, or pr ovides 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 Ad ministrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative 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 th e 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 Certificates required by Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obliga tion 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 r equesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or CoBank, as the Lead Arranger, will make available to the Lenders 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 r espect to such Persons’ securities. All Borrower Materials that have been filed with the SEC and available 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 availab le to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to h ave authorized the Administrative Agent and the
Lenders to treat such Borrower 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 des ignated “Public Side Information;” and (z) the Administrative Agent and CoBank, as the Lead Arranger, 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 Information.” 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 notic e pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached, if any.
are being maintained by the Borrower or such Material Subsidiary, exc ept to the extent any failure to pay or discharge the same could not reasonably be expected to result in a Material Adverse Effect.
and independent public accounta nts (such accountants being hereby authorized by the 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.
hereby agrees that its statutory Lien in and with respect to the CoBank Equities shall not secure an aggregate principal amount of Obligations held by CoBank (or other amounts of Indebtedness) in the aggregate in excess of $10,400,000.
and shall cause each such Material Domestic Subsidiary to (A) become a Guarantor by executing and delivering to the Administrative Agent a counterpart of the Guaranty or suc h other document as the Administrative Agent shall deem reasonably appropriate for such purpose, and (B) unless waived by the Administrative Agent, deliver to the Administrative Agent documents of the types referred to in clauses (ii) and (iii) of Section 4.03(a) and favorable opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (A) ), all in form, content and scope reasonably satisfacto ry to the Administrative Agent
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower sh all not, nor shall it permit any Subsidiary to, directly or indirectly:
Event of Default exists at the time such Lien is cre ated, Liens created by the Borrower or any of its Subsidiaries pursuant to a pledge of the Equity Interests of any Securitization Entity in connection with a Receivables Securitization; and
of which the Borrower shall, upon the request of the Administrative Agent, use commercially reasonable efforts to cause the Administrative Agent, for the benefit of itself and the ot her Lenders, to have a perfected first Lien within thirty (30) days (or such longer time period as the Administrative Agent may agree) following the date of any such Investment under this subclause (II) (and subject to an agreement among the Administrative Agent on behalf of the Lenders on the one hand, and the administrative agent on behalf of the lenders under the Parent Credit Agreement, on the other hand, regarding such Liens), but in no event shall the aggregate amount of all Investments made under thi s subclause (II) exceed $50,000,000;
covenants in Section 7.10 after giving effect to any such proposed Investment, the Borrower and its Subsidiaries may make any Investment (except Investments pursuant to this subsection (f) in a Securitization Entity and any of its Subsidiaries are not permitted unless such Investments are made during a Guaranty Release Period); and
outstanding Indebtedness of the Subsidiaries of the Parent Company (other than the Borrower) permitted by Section 7.03(d) of the Parent Credit Agreement (or any successor comparable provision), exceed in the aggregate at any time, $300,000,000;
Subsidiaries may make any Disposition (except Dispositions pursuant to this subsection (e) to a Securitization Entity and any of its Subsidiaries are not permitted unles s such Dispositions are made during a Guaranty Release Period);
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 reasonable judgment, for fair market value.
business, other than on fair and reasonable terms substantially as favorable to the Borrower or such Subsidiary as would be obtainable by the Borrowe r or such Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate, all as determined by the Borrower in its commercially reasonably judgment; or
such restriction or condition apply solely to (i) the Securitization Assets the subject of such Receivables Securitization and (ii) any applicable Securitization Entity, including any Equity Interests of such Securitization Entity);
Notwithstanding the for egoing, 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.
Period |
Ratios |
|
|
|
From the Closing Date through December 31, 2015 |
3.75 to 1.00 |
|
|
From January 1, 2016 through the Effective Date |
3.50 to 1.00 |
|
|
From the Effective Date through June 30, 2019 |
3.25 to 1.00 |
|
|
From July 1, 2019 and thereafter |
3.00 to 1.00 |
|
combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness (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 Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to becom e due or to be repurchased, prepaid, defeased or redeemed (automatically 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 occurs 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 Subsid iary 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 thereof 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 Monetization Transaction); or
non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enfor cement 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 shall automatically terminate and the unpaid principal amount of all outstanding Loans an d all interest and other amounts as aforesaid shall automatically become due and payable, in each case without further act of the Administrative Agent or any Lender.
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 di sbursements 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;
S econd , to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including fees, charges and disbursements of counsel to the respective Lenders to the extent t he Borrower is obligated 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 paym ent of that portion of the Obligations constituting accrued and unpaid interest on the Loans and other Obligations, ratably among the Lenders in proportion to the respective amounts described in this subsection Third payable to them;
Fourth , to payment of that portion of the Obligations constituting unpaid principal of the Loans and Obligations then owing under Guarantied Hedge Agreements, ratably among the Lenders and the Hedge Banks in proportion to the respective amounts described in this subsection Four th held by them; and
Last , the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Notwithstanding the foregoing, Obligations arising under Guarantied Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received a Guarantied Party Designation Notice thereof, together with such suppo rting documentation as the Administrative Agent may request, from the applicable Hedge Bank, as the case may be. Each Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deeme d 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.
together with such actions and powers as are reasonably incidental thereto. Except to the extent set forth in Section 9.06 and Section 9.10 , the provisions of this Article are solely for the benefit of the Administrative Agent and the Lenders, and neither the Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such oth er 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 Administrative Agent by the Borrower or a Lender.
The Adminis trative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confir m receipt of items expressly required to be delivered to the Administrative Agent.
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and to make such payments to the Administrative Agent and, in the event that the Administ rative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counse l, and any other amounts due the Administrative Agent under Sections 2.07 and 10.04 .
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganiza tion, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
9.10 , the Administrative Agent shall (to the extent applicable) deli ver 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 obligations under the Loan Documents. Upon request by the Administrati ve Agent at any time, the Required Lenders will confirm in writing the Administrative Agent's authority to release any Guarantor from its obligations under the Guaranty pursuant to this Section 9.10 .
consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation o f the Borrower to pay interest at the Default Rate;
and, provided further , that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (ii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender m ay 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 excluded for a vote of the Lenders hereunder requiring any consent of the Lenders, ex cept increasing such Defaulting Lender’s Commitment or extending date fixed hereunder for payment).
Notwithstanding the foregoing or any other provision in this Agreement or any other Loan Document to the contrary, if the Administrative Agent and the Borr ower identify any ambiguity, omission, mistake, typographical error, inconsistency or other defect in any provision of this Agreement or any other Loan Document, then the Administrative Agent and the Borrower are permitted to amend, modify or supplement s uch provision to cure such ambiguity, omission, mistake, typographical error, inconsistency or other defect; provided that , no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent or any Lender hereunder without the prior written consent of the Administrative Agent or the applicable Lender, as the case may be.
other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:
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 n ext 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 subsection (b).
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “retur n 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 add ress as described in the foregoing subsection (i) of notification that such notice or communication 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 opening of business on the next business day for the recipient.
telephonic or electronic Committ ed Loan Notices) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof , as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower, in the absence of gross negligence or willful misconduct as determined in a final and non-appealable judgment by a court of competent jurisdiction. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.
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 against 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; 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 Administr ative Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.13 ), or (c) 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 subsections (b), (c) and (d) of the preceding proviso and subject to Section 2.11 , any Le nder may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modificatio ns or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), and (ii) all reasonable and invoiced out ‑ of ‑ pocket expenses incurred by the Administrative Agent, any Lender (including the reasonable and invoiced 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), in connection with the enforcement or protec tion of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made hereunder, including all such out ‑ of ‑ pocket expenses incurred during any workout, restr ucturing or negotiations in respect of such Loans.
t he 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.
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall, to the fullest extent possible under the provisions of applicable Laws, be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such dem and to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under subsection (b) of the preceding sentence shall survive the payment in full of the Obligations and th e termination of this Agreement.
Assignment and Assumption with res pect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000 unless each of the Administrative Agent and, so long as no Event of Default has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided , however , that concurrent assignments to members of an Assignee Group and concurrent assignments from members o f an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.
becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B) , or (C) to a natural person (o r a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural person).
Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section 10.06 , from and after the effective date specified in each Assignment and Assu mption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, t o the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreem ent, 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 r equest, 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 10.06 .
a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be prima facie evidence, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
Any agreement or instrumen t 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 agreem ent 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 such Participant. The Borrower agrees that e ach 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 10.06 (it being understood that the documenta tion 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 assignee under paragraph (b) of this Se ction 10.06 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 entitled 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 Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as though it were a Lender. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable
efforts to cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefit s of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.11 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 Bor rower, 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 ”); p rovided that no Lender 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 or its other obligation s under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entr ies 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 Agreement 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.
Notwithstanding the preceding paragraph, any Participant that is a Farm Credit Lender that (i) has purchased a participation in a minimum amount of $5,000,000, (ii) has been designated as a voting Participant (a “ Voting Participant ”) in a written notice (a “ Voting Participant Notice ”) sent by the relevant Lender (or the e xisting Voting Participant, as applicable) to the Borrower and the Administrative Agent and (iii) receives, prior to becoming a Voting Participant, the consent of the Borrower and the Administrative Agent (such Borrower and Administrative Agent consent to be required only to the extent and under the circumstances it would be required if such Voting Participant were to become a Lender pursuant to an assignment in accordance with Section 10.06(b) ) and such consent is not required for an assignment to an exist ing Voting Participant), shall be entitled to vote as if such Voting Participant were a Lender on all matters subject to a vote by Lenders, and the voting rights of the selling Lender (or selling existing Voting Participant, as applicable) shall be corresp ondingly reduced, on a dollar-for-dollar basis. To be effective, each Voting Participant Notice shall include, with respect to each Voting Participant, the information that would be included by a prospective Lender in an Assignment and Assumption and the Dollar amount of the participation purchased. Notwithstanding the foregoing, each Farm Credit Lender designated as a Voting Participant in Schedule 10.06 shall be a Voting Participant without delivery of a Voting Participation Notice and without the prior written consent of the Borrower or the Administrative Agent. The selling Lender (or selling existing Voting Participant, as applicable) and the purchasing Voting Participant shall notify the Administrative Agent within three Business Days of any terminat ion, reduction or increase of the amount of, such participation. The Administrative Agent shall be entitled to conclusively rely on information contained in Voting Participant Notices and all other notices delivered pursuant hereto. The voting rights of each Voting Participant are solely for the benefit of such Voting Participant and shall not inure to any assignee or participant of such Voting Participant that is not a Farm Credit Lender.
For purposes of this Section, “ Information ” means all information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their r espective businesses, other than any such information that is available to the Administrative Agent or any Lender 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 Section 6.02 or is otherwise clearly identified at the time of delivery as confidential. Any P erson 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 Person has exercised the same degree of care
to maintain the confidentiality of such Infor mation as such Person would accord to its own confidential information.
Each of the Administrative Agent and the Lenders acknowledges that (a) the Information 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-public information in accordance with applicable Law, including United States Federal and state securities Laws .
assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:
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.
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
Borrower and its Affiliates, on the one hand, and the Administrative Agent, CoBank, as the Lead Arranger and the Lenders, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions c ontemplated hereby and by the other Loan Documents; (ii) (A) each of CoBank, as the Lead Arranger, the Administrative Agent and the Lenders is and has been acting solely as a principal and, except as expressly agreed in writing by the 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 CoBank, as the Lead Arranger, the Administrative Agent nor any of the Lenders has any obligation to t he 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) CoBank, as the Lead Arranger, the Administrative Agent 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 CoBank, as the Lead Arranger, the Administrative Agent nor any Lender has any obli gation 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 CoBank, as the Lead Arranger, and the Administrative Agent with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.
the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
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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/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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COBANK, ACB, as Administrative Agent and |
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as a Lender |
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By: |
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/s/ Andy Smith |
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Andy Smith |
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Title: |
Vice President |
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1st FARM CREDIT SERVICES, FLCA, as a Voting Participant |
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By: |
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/s/ Dale A. Richardson |
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Dale A. Richardson |
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Vice President, Capital Markets Group |
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AGCHOICE FARM CREDIT, ACA, on |
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behalf of itself and its wholly-owned |
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subsidiaries, AgChoice Farm Credit, FLCA, |
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and AgChoice Farm Credit, PCA, as a Voting Participant |
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By: |
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/s/ Joshua L. Larock |
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Joshua L. Larock |
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Vice President |
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AGFIRST FARM CREDIT BANK, as a |
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Voting Participant |
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/s/ Michael C. Hawkins |
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Michael C. Hawkins |
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Assistant Vice President |
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AGSTAR FINANCIAL SERVICES, FLCA, as a Voting Participant |
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By: |
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/s/ Timothy F. McNamara |
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Timothy F. McNamara |
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AVP Capital Markets |
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AMERICAN AGCREDIT, FLCA, as a Voting Participant |
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/s/ Bradley K. Leafgren |
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Bradley K. Leafgren |
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Vice President |
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BADGERLAND FINANCIAL, FLCA, as a Voting Participant |
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By: |
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/s/ Anthony G. Endres |
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Anthony G. Endres |
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AVP - Capital Markets |
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FARM CREDIT BANK OF TEXAS, as a |
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Voting Participant |
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/s/ Nicholas King |
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Nicholas King |
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Vice President |
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FARM CREDIT MID-AMERICA, FLCA, as a Voting Participant |
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/s/ Ralph M. Bowman |
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Ralph M. Bowman |
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Vice President |
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FARM CREDIT WEST, FLCA, as a Voting Participant |
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/s/ Ben Madonna |
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Ben Madonna |
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Vice President |
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FARM CREDIT SERVICES OF AMERICA, FLCA, as a Voting Participant |
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By: |
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/s/ Ben Fogle |
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Name: |
Ben Fogle |
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Title: |
Vice President |
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GREENSTONE FARM CREDIT, FLCA, as a Voting Participant |
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By: |
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/s/ Shane Prichard |
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Shane Prichard |
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Lending Officer |
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MIDATLANTIC FARM CREDIT, FLCA, as a Voting Participant |
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By: |
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/s/ James E. May |
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Name: |
James E. May |
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Title: |
Vice President |
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UNITED FCS, FLCA d/b/a FCS COMMERCIAL FINANCE GROUP, as a |
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Voting Participant |
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By: |
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/s/ Chanphisit Ly |
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Chanphisit Ly |
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Title: |
Sr. Credit Analyst |
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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 Company, 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 Telephone 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
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(1 ) Such entities are Non-Subsidiary Variable Interest Entities (Borrower does not have any equity interest in such entity, but such entity was a variable interest entity under GAAP prior to the changes made to GAAP on January 1, 2016 and continues to be a variable interest entity under GAAP on and after January 1, 2016)
(2) Such entities are Non-Subsidiary Variable Interest Entities (Borrower has an equity interest in such entity (as set forth on Schedule 5.13); such entit y was a variable interest entity under GAAP prior to the changes made to GAAP on January 1, 2016 and continues to be a variable interest entity under GAAP on and after January 1, 2016)
(3) As of January 1, 2016, such entities are Non-Subsidiary V ariable Interest Entities due to the changes made to GAAP on January 1, 2016 (but were not Variable Interest Entities prior to the changes made to GAAP on January 1, 2016)
COMMITMENTS
AND APPLICABLE
PERCENTAGES
Lender |
Commitment |
Applicable Percentage |
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CoBank, ACB |
$225,000,000 |
100.00% |
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UNITED STATES CELLULAR CORPORATION
SUPPLEMENT TO INTERIM FINANCIAL STATEMENTS
(1) Certain Subsidiaries of Borrower have guaranteed the obligations of Borrower under the $300,000,000 Revolving Credit Agreement with Toronto Dominion (Texas), LLC, as Administrative Agent.
(2) Certain Subsidiaries of Borrower have guaranteed the obligations of Borrower under the subject Term Loan with C oBank.
(3) Certain Subsidiaries of Borrower have surety bonds, the value of which at April 30, 2016 is $12,323,000.
(4) As set forth in the Borrower’s Annual Report on Form 10-K for the year ended December 31, 2015 under “Contractual and Othe r Obligations”, the Borrower and its subsidiaries had obligations of $1,203.5 million under operating leases that are not on the balance sheet. There has not been a material change in such obligations since December 31, 2015. This includes future lease c osts related to office space, retail sites, cell sites and equipment.
(5) As set forth in the Borrower’s Annual Report on Form 10-K for the year ended December 31, 2015 under “Contractual and Other Obligations”, the Borrower and its subsidiaries had obligations of $1,087.1 million for purchase obligations that are not on the balance sheet. There has not been a material change in such obligations since December 31, 2015. This includes obligations payable under non-cancellable contracts, commitments f or network facilities and transport services, agreements for software licensing, long-term marketing programs, and agreements with Apple to purchase certain minimum quantities of Apple iPhone products and fund marketing programs related to the Apple iPhone and iPad products.
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 subsidi aries 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
Jacksonvi
lle Cellular Telephone Company - 97.567257% interest
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% interest
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 Cellular Telephone Company - 98.82064% interest
Yakima MSA Limited Partnership(1) – 87.8085% interest
____________________
(1) As of January 1, 2016, this Subsidiary is a Variable Interest Entity (but was not a variable interest entity prior to the changes made to GAAP on January 1, 2016)
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% int
erest
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 Par
tnership(3) – 24.5% interest
Jefferson Cellular Telephone 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 Li
mited 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. – 4
9% 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 Finance Cooperative (RTFC) Capital Participation Certificate - $ 29,754.59 as of April 30, 2016 (relating to USCOC of Pennsylvania RSA No. 10-B2, Inc.)
____________________
(2) Such entity is a N on-Subsidiary Variable Interest Entity (Borrower has an equity interest in such entity (as set forth above); such entity was a variable interest entity under GAAP prior to the changes made to GAAP on January 1, 2016 and continues to be a variable interest entity under GAAP on and after January 1, 2016)
(3) As of January 1, 2016, this entity is a Non-Subsidiary Variable Interest Entity due to the changes made to GAAP on January 1, 2016 (but was not a Variable Interest Entity prior to the changes m ade to GAAP on January 1, 2016)
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 In
vestment Company, LLC
Eastern North Carolina Cellular Joint Venture
EXISTING INDEBTEDNESS
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As of April 30, 2016 |
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(Dollars in thousands) |
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Borrower Subsidiaries— |
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Obligation on capital leases of Subsidiaries |
$2,200 |
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Total debt recorded in books of Subsidiaries |
$2,200 |
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(1) Certain Borrower Subsidiaries have surety bonds, the value of which at April 30, 2016 is $12,323,000.
(2 ) With respect to each of the Special Entities King Street Wireless, L.P., Aquinas Wireless, L.P. and Advantage Spectrum, L.P. that are limited partnerships iden tified on Schedule 1.01, USCC Wireless Investment, Inc., as a limited partner, is obligated to purchase the partnership interest of the respective general partner upon the exercise by such general partner of its right to require the limited partner to purc hase such interest (the “Purchase Obligation”). With respect to King Street Wireless, L.P. and Aquinas Wireless, L.P., United States Cellular Corporation and the sole shareholder of each general partner, Allison DiNardo, have entered into an Investment Ag reement pursuant to which United States Cellular Corporation has agreed to take “all necessary action to ensure that all of USCC Wireless’ covenants” in the applicable partnership agreement “are performed,” including each Purchase Obligation. Thus, United States Cellular Corporation has guaranteed USCC Wireless’ payment obligation under the Purchase Obligation. There is no similar investment agreement with respect to Advantage Spectrum, L.P. The value of the Purchase Obligation as of April 30, 2016 was $1,770,000.
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 Trustee, including the following supplemental indentures pursuant to which debt is currently outstanding:
Third Supplemental Indenture an d Form of Note re initial offering of 6.7% Senior Notes due 2033 in the principal amount of $444,000,000
Fifth Supplemental Indenture and Form of Note re additional offering of 6.7% Senior Notes due 2033 in the principal amount of $100,000,000
Sixth Supple mental Indenture and Form of Note re 6.95% Senior Notes due 2060 in the principal amount of $275,000,000
Seventh Supplemental Indenture and Form of Note re 7.25% Senior Notes due 2063 in the principal amount of $300,000,000
Eighth Supplemental Indenture an d Form of Note re 7.25% Senior Notes due 2064 in the principal amount of $225,000,000
$300,000,000 Revolving Credit Agreement dated as of the date hereof (“Credit Agreement”) among the Borrower and the lenders named therein, and Toronto Dominion (Texas) LL C, as Administrative Agent
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 N
OTICES
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
Electronic 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 U.S. Cellular
Telephone: (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:
COBANK, ACB
5500 South Quebec Street
Greenwood Village, Colorado 80111
Attention: Communications Banking Group
Telephone (303) 740-4000
Telecopy (303) 224-2718
With a copy to (which shall not constitute notice)
COBANK, ACB
5500 South Quebec Street
Greenwood Village, Colorado 80111
Attention: Syndication Loan Accounting
VOTING PARTICIPANTS
FORM OF COMMITTED LOAN NOTICE
Date: ___________, 20__
To: CoBank, ACB, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement, dated as of June 15, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement; ” the terms defined therein being used herei n as therein defined), among United States Cellular Corporation, a Delaware corporation (the “ Borrower ”), CoBank, ACB, as Administrative Agent and a Lender and the Lenders from time to time party thereto.
The undersigned hereby requests (select one):
[ ] A Borrowing of Committed Loans [ ] A conversion or continuation of Loans
The Committed Borrowing, if any, requested herein complies with the provisos to the first sentence of Section 2.01 of the Agreement.
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FORM OF NOTE
_____________, 20__
FOR VALUE RECEIVED, the undersigned (the “ Borrower ”) hereby promises to pay to _____________________ or its registered assigns (the “ Lender ”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to the Borrower under that certain Amended and Restated Credit Agreement, dated as of June 15, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among the Borrower, CoBank, ACB, as the Administrative Agent and a Lender and the Lenders from tim e to time party thereto.
The Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All p ayments of principal and interest shall 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 Agreement.
This Note is one of the Notes referred to in th e Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amou nts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in th e 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 .
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FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _____________, 20___
To: CoBank, ACB, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreeme nt, dated as of June 15, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among United States Cellular Corporation, a De laware corporation (the “ Borrower ”), CoBank, ACB, as Administrative Agent and a Lender and the Lenders from time to time party thereto.
The undersigned Responsible Officer of the Borrower hereby certifies as of the date hereof that he/she is the __________ _____________________________ ___________ of the Borrower, and that, as such, he/she is authorized to execute and deliver 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]
[Use following paragraph 1 for fiscal quarter-end financial state ments]
[as of the date of this certificate, to the best knowledge of the undersigned, during such fiscal period each of the Loan Parties perf ormed 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 follo wing covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]
[5. Pursuant to Section 1.06 of the 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 Disposition ”).]
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of _____________
___________
,
________
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SCHEDULE 1
to the Compliance Certificate
($ in 000
’
s)
For the Quarter/Year ended ___________________ (the “ Statement Date ”)
Maximum Permitted:
Period |
Ratios |
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From the Closing Date through December 31, 2015 |
3.75 to 1.00 |
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From January 1, 2016 through the Effective Date |
3.50 to 1.00 |
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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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SCHEDULE 2
to the Compliance Certificate
($ in 000
’
s)
For the Quarter/Year ended ___________________ (“ Statement Date ”)
Consolidated EBITDA
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EBITDA |
Quarter |
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Twelve Months |
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Ended |
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Consolidated |
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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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SCHEDULE 3
to the Compliance Certificate
For the Quarter/Year ended ___________________(“ Statement Date ”)
(a) Material Domestic Subsidiaries formed or acquired during the fiscal quarter ending on the Statement Date :
(b) Domestic Subsidiaries that have been designated as Material Subsidiaries pursuant to Section 6.14(a)(i) of the Credit Agreement during the fiscal quarter ending on the Statement Date :
(c) Ma terial 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 by 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 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 thi s Assignment and Assumption as if set forth herein in full.
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 assume s from [the Assignor][the respective Assignors] , subject 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][t he respective Assignors’] rights and obligations in [its 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 perc entage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, ca uses 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, whether 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, but not limited to, contract claims, tort claims, malpractice claims, statutory c laims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to subsection (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to subsections (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 expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
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[for each Assignee, indicate [Affiliate][Approved Fund] of [ identify Lender ]]
Assignor [s] 5 |
Assignee [s] 6 |
Facility Assigned |
Aggregate Amount of Commitment for all Lenders 7 |
Amount of Commitment Assigned |
Percentage Assigned of Commitment 8 |
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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.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
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[Consented to and] 10 Accepted: |
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COBANK, ACB, |
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as Administrative Agent |
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[Consented to:] 11 |
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_______________________________
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
[___________________]
12
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties .
1.1. Assignor . [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] Assigned 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 st atements, 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 thereun der, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any othe r Person of any of their respective obligations under any Loan Document.
1.2. Assignee . [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 Assig nment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements 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 thereunder, (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 experienced 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 applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment a nd Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit ana lysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, 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 Agre ement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit 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 req uired 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 for 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 Age nt shall make all payments of interest, 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 b enefit of, the parties hereto and their respective 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 pa ge of this Assignment and Assumption by facsimile 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 St ate of New York.
_______________________________
OPINION MATTERS
The matters contained in the following Sections of the Credit Agreement should be covered by the legal opinion:
____________________________________________________________________________________________
SUBORDINATION AGREEMENT
dated as of [________]
-among-
TELEPHONE AND DATA SYSTEMS, INC. AND THE OTHER
SUBORDINATED CREDITORS
as Subordinated Creditors
UNITED STATES CELLULAR CORPORATION
as a Debtor
- and -
COBANK, ACB
as Administrative Agent for the Senior Creditors
_____________________
_______________________________________________________________________
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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. |
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8 |
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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 |
9 |
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SECTION 2.3. |
Permitted Sub Debt Payments; etc. |
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SECTION 2.4. |
Payment Blockage Periods |
10 |
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SECTION 2.5. |
Bankruptcy or Insolvency Proceedings |
10 |
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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 |
14 |
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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. |
15 |
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ARTICLE V ADDITIONAL REPRESENTATIONS AND OTHER COVENANTS |
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SECTION 5.1. |
Information Regarding Subordinated Debt |
17 |
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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. |
17 |
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SECTION 5.5. |
Consent to Credit Agreement |
18 |
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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 |
18 |
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SECTION 6.2. |
Amendments, Waivers; etc. |
19 |
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SECTION 6.3. |
Further Assurances |
19 |
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SECTION 6.4. |
Specific Performance; Remedies Cumulative |
19 |
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SECTION 6.5. |
Severability |
19 |
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SECTION 6.6. |
Continuing Agreement |
19 |
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SECTION 6.7. |
Successors and Assigns |
19 |
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SECTION 6.8. |
Notices |
20 |
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SECTION 6.9. |
Loan Document; etc. |
20 |
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SECTION 6.10. |
CHOICE OF LAW |
20 |
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SECTION 6.11. |
WAIVER OF JURY TRIAL |
20 |
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SECTION 6.12. |
Survival |
20 |
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SECTION 6.13. |
Termination |
20 |
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SECTION 6.14. |
Indemnification |
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SECTION 6.15. |
Expenses of Enforcement |
21 |
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SECTION 6.16. |
Obligations Several; No Third Parties Benefited |
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SECTION 6.17. |
Counterparts |
21 |
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SECTION 6.18. |
Headings |
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LIST OF SCHEDULES |
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Schedule A |
List of Debtors |
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Schedule B |
Permitted Sub Debt Payments |
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Schedule C |
List of Subordinated Creditors |
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Schedule D |
List of Subordinated Debt |
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Schedule E |
List of Subordinated Debt Documents |
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Schedule F |
List of Notice Addresses |
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LIST OF EXHIBITS |
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Exhibit A |
Form of Subordinated Creditor Supplement |
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Exhibit B |
Form of Subordinated Debt Supplement |
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This SUBORDINATION AGREEMENT is entered into as of [__________] 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 its successors in title and assigns, called the “ Borrower ”), as a “Debtor” hereunder, and (D) COBANK, ACB , not in its individual capacity, but in its capacity as Administrative Agent (as defin ed below) for the Senior Creditors (as defined below).
PRELIMINARY STATEMENTS.
(1) Upon the terms and subject to the conditions contained in the Credit Agreement, dated as of January 21, 2015, among the Borrower, the Senior Lenders (as defined below) par ty thereto and CoBank, as Administrative Agent for the Senior Creditors ( as otherwise amended, supplemented, extended, restated or otherwise modified prior to the effectiveness of this Agreement, the “ Original Senior Credit Agreement ”), the Senior Lenders agreed to make Extensions of Credit to the Borrower.
(3) The Borrower, the Senior Lenders party thereto and CoBank as Administrative Agent for the Senior Creditors have agreed to amend and restate the Original Senior Credit Agreement as of June 15, 2016 (as amended and in effect from time to time, the “ Senior Credit Agreement ”).
(4) This Agreement contains terms and provisions of subordination that are required by the Senior Creditors in connection with financing arrangements governed by the Senior Cre dit Agreement.
(5) 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 follows:
ARTICLE i
D
EFINITIONS
“ Administrative Agent ” means CoBank, ACB, 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, no ne of the Subsidiaries of the Borrower shall be deemed 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 Pr oceeding ” 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 cre ditors, as such, or to its Property, (b) any liquidation, 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 assig nment for the benefit of creditors of such Person, or 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 de termination, 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 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 o f 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 cre ated 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 Inde btedness 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 v enture 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 mad e 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 i ts 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:
the acceleration of the maturity of all or any part of any Consolidated Funded Indebtedness of such Person;
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 all or any part of any Consolidated Funded Indebtedness of such Person, whether by action at law, suit in equit y, arbitration proceedings or any other similar proceedings;
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 o f such Person through exercise of any rights of set-off, counterclaim or cross-claim; or
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 co mmence 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 outs tanding warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, 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 acquisition from such Person of such shares (or such other interests), and all of the other outstanding ownership or profit inter ests 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.
“ 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.
“ Original Senior Credit Agreement ” has the meaning specified in the Preliminary Statements hereto.
“ Parent Affiliated Companies ” means, collectively, (a) the Parent Company, and (b) all Subsidiaries and Affiliates of the Parent Company, other than the Borrower and the Borr ower’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 Blockage Notice, the pe riod 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 ” mean 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 account of any princ ipal 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 for value of any Su bordinated 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 security for, any Ins trument 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 exercise 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 of 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 distributio ns 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 distributions of an y 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 ” means, collective ly, (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, all of the Senior Lenders, the Administrative Agent, the Hedge Banks and each co-agent or sub-agent appoint by the Administrative Agent from time to time pursuant to Section 9.05 of the Senior Cred it 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, collectively, all Consolidated Funded Indebtednes s 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 made 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 Borrower 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 I ndebtedness 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 fees, 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 respect 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 Indebtedness 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 whether 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 and all of the other Senior Loan Documents 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 Hedge Agreement shall be deferred, extended, renewed, replaced, refunded or refinanced, in whole or in pa rt, 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 In struments 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 Subsid iaries; 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 all of the Se nior 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 Agree ment 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 S enior 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 other Parent Aff iliated 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 Administrative 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 h ereto, 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) payable on or with respe ct 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 Indebtedness;
(d) a ll 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 Subsidiari es 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 described in any of cla use (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 Administrative Ag ent;
(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, guaranteed or secu red;
(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 connection wit h 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 case (with res pect 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.
ARTICLE II
CONSOLIDATED FUNDED INDEBTEDNESS SUBORDINATION ARRANGEMENTS
SECTION 2.1 Agreement to Subordinate; Addition of Su bordinated 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, incu rred, assumed, created or arising) owing to it is hereby 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, incurred, 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 b ecome a Subordinated Creditor under this Agreement by executing 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 Co mpany, (i) such Parent Affiliated Company shall automatically (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 d escribed in such Subordinated Creditor Supplement shall automatically (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 d escribed therein shall automatically (without any other action 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 De bt under this Agreement shall automatically become Subordinated 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 compl eted Subordinated Debt Supplement identifying and describing 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 Su pplement with respect to any Consolidated Funded Indebtedness, 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 Subordi nated Debt and Subordinated Debt Documents for all purposes of this Agreement.
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 Int erest Payments ”). No prepayments of interest which have not yet accrued under the applicable Subordinated Debt Documents shall be permitted 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 identified 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 Subs idiaries, Subordinated Creditors shall 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 t he Borrower.
(d) Except as otherwise 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 insta nce, 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 Payment 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 Payme nt 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 waived or shall otherwise have ceased to exist; or (i i) 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 continuing, 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 mor e 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) t he 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 Notic e 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 Subordinated Creditors from the Administrative Agent. So long as any Senior Com pliance 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 Periods may be commenced by the Administrative Agent pursuant to this parag raph (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 para graph (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) .
(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 D ebtor;
(b) the Senior Creditors shall be entitled to receive from such Debtor (until payment 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 t hat end, all such payments and distributions from such Debtor that otherwise would be payable 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 assignment) 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 a ll such securities, Equity Interests and other Property as collateral for the Senior Debt, to sell, assign, transfer or dispose of such securities, Equity Interests and other Property as the Administrative Agent shall deem appropriate, and to apply all pro ceeds from the sale, assignment, transfer or disposition of such securities, Equity Interests 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 agains t such Debtor in respect of the Subordinated Debt prior to the date thirty (30) days before the expiration 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 b ehalf 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 paym ents or distributions on account of such Subordinated Debt.
SECTION 2.6. Certain Other Bankruptcy Matters; 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 o rder 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 Creditors hereby a bsolutely 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 Administrative 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 at 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 Property 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 disposition 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 appl y 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;
(vi) 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 purpo se 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 with re spect 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 connection wi th 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 otherw ise 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 ratify 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 coupl ed 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 o f the Debtors, and (B) the sale, transfer or other
disposition by the Debtors or 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 ot herwise approved by the Administrative Agent;
(ii) if any payments or distributions 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 Bo rrower or any of its Subsidiaries, shall be avoided as a fraudulent transfer or fraudulent 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 upon, 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 m anner deemed appropriate by the Administrative Agent, without regard to the rights 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 inte rfere with any Enforcement Action by the Administrative Agent with respect to any of the Debtors, any of their Property or any part thereof.
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 provisions 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, and t he 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 Subordinated 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 Credit ors, 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 pay able in accordance with its terms.
ARTICLE III
LIMITATIONS ON CERTAIN ENFORCEMENT ACTIONS AND
OTHER NEGATIVE COVENANTS
SECTION 3.3. Limitatio ns on Liens Securing 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, dem and, 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) such 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 Administrative Agent.
(b) Liens on Property securing all or any part of the Senior Debt shall at al l 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 th e 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 Bankruptcy 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 of creation, attachment or perfection of any such Liens, (B) the time or order of filing or r ecording 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) Until all of the Senior Debt shall have been paid in full, the Subordinated Creditors shall n ot 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 priorities, as secured party or otherwise, in relation to any Property subject to any such Lien s.
ARTICLE IV
WAIVERS AND CONSENTS
(a) the dissolution, termination of existence, bankruptcy, liquidation, insol vency, 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 Senior 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 co llateral 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 securing 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 p rovided 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 Document s;
(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 conta ined in any 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 or 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 tra nsfer or fraudulent 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 p rovision 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 Subord inated Debt 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 cou nterclaim 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 otherwise 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 Subordinat ed Creditors 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 respec t 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
(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 Administrative 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 paragraph (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 an d 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.
“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 [___________], AS FROM TIME TO TIME IN EFFECT, AMONG TELEPHONE AND DATA SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS FROM TIME TO TIME PARTY THERETO, UNITED STATES CELLULAR CORPORATION, AND COBANK, ACB, 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 incl uded in the Subordinated Debt to indicate clearly the subordinated character thereof, to the extent appropriate under GAAP.
ARTICLE VI
MISCELLANEOUS
enforce any of the agreements or obligations of any other Subordinated Creditor hereunder on any occasion or occasions.
SECTION 6.8. Notices . All notic es and other communications 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 f acsimile 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 designated 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 se nt 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 6.12 , terminate upon, and be of no further force or effect whatsoever after, the payment in full of all of the Senior Debt.
SECTION 6.16. Obligations Several; No Third Parties Benefited .
(a) The agreements and obligations of each of the Subordinated 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 Agreeme nt is made and entered into for the sole 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 thir d-party beneficiary rights, and this Agreement 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 h ereto) shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF , the parties hereto have caused this SUBORDINATION AGREEMENT to be executed by their duly authorized officers as of the day and in the year first above written.
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The Subordinated Creditor: |
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TELEPHONE AND DATA SYSTEMS, INC. |
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By: |
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Peter L. Sereda |
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Senior Vice President - Finance and Treasurer |
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By: |
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John M. Toomey |
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Vice President and Assistant Treasurer |
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The Borrower: |
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UNITED STATES CELLULAR CORPORATION |
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By: |
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Stephen 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 Telephone |
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and Data Systems, Inc., Parent Company of Borrower |
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The Administrative Agent: |
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COBANK, ACB , as Administrative Agent |
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By: |
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Andy Smith |
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Vice President |
SCHEDULE A
TO THE SUBORDINATION AGREEMENT, DATED AS OF [___________]
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AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES CELLULAR CORPORATION, AS A DEBTOR, AND
COBANK, ACB, AS ADMINISTRATIVE AGENT
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LIST OF DEBTORS
United States Cellular Corporation
None .
SCHEDULE B
TO THE SUBORDINATION AGREEMENT, DATED AS OF [___________], AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS, UNITED
STATES CELLULAR CORPORATION, AS A DEBTOR, AND COBANK, ACB, AS ADMINISTRATIVE AGENT
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PERMITTED SUB DEBT PAYMENTS
None .
SCHEDULE C
TO THE SUBORDINATION AGREEMENT, DATED AS OF [___________], AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES CELLULAR CORPORATION, AS A DEBTOR, AND
COBANK, ACB, AS ADMINISTRATIVE AGENT
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LIST OF SUBORDINATED CREDITORS
Telephone and Data Systems, Inc.
SCHEDULE D
TO THE SUBORDINATION AGREEMENT, DATED AS OF [___________], AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES
CELLULAR CORPORATION, AS A DEBTOR, AND
COBANK, ACB, AS ADMINISTRATIVE AGENT
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SUBORDINATED DEBT
Name of Debtor |
Outstanding Principal
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Maturity Date
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SCHEDULE E
TO THE SUBORDINATION AGREEMENT, DATED AS OF [___________], AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES CELLULAR CORPORATION, AS A DEBTOR, AND
COBANK, ACB, AS ADMINISTRATIVE AGENT
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SUBORDINATED DEBT DOCUMENTS
Name and Description of Instrument
SCHEDULE F
TO THE SUBORDINATION AGREEMENT, DATED AS OF [___________], AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES CELLULAR CORPORATION, AS A DEBTOR, AND
COBANK, ACB, AS ADMINISTRATIVE AGENT
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ADDRESSES FOR NOTICES
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 [___________], by and among Telephone and Data Systems, Inc., as a Subordinated Creditor, the other Subordinated Creditors party thereto, United States Cellular Corporation, as a Debtor, and CoBank, ACB, as Administrative Agent for the Senior Creditors.
B. Pursuant to Section 2.1(b) of the Subord ination 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 Agre ement;
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 undersigned hereby also at taches 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 Supplement to Schedule D shal l 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 and become “Subordinated D ebt 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 Schedule E , will be attach ed 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 OBLIGATIONS LAW §5-1401).
[THE REMAIN DER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF , the undersigned has caused this SUPPLEMENT to be duly executed and delivered as of the date first above written.
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as Subordinated Creditor |
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COBANK, ACB, |
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as Administrative Agent |
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SUBORDINATED CREDITOR SUPPLEMENT
Dated as of _________________ , _________
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SUPPLEMENT TO SCHEDULE D
TO THE SUBORDINATION AGREEMENT, DATED AS OF JUNE[__], 2016, AMONG
TELEPHONE AND DATA SYSTEMS, INC., THE OTHER
SUBORDINATED CREDITORS, UNITED STATES CELLULAR
CORPORATION, AS A DEBTOR, AND COBANK, ACB, AS ADMIN
ISTRATIVE AGENT
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SUBORDINATED DEBT
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Outstanding Principal
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Maturity Date
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SUBORDINATED CREDITOR SUPPLEMENT
dated as of _________________,
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SUPPLEMENT TO SCHEDULE E
TO THE SUBORDINATIONAGREEMENT, DATED AS OF [___________], AMONG
TELEPHONE AND DATA SYSTEMS, INC., THE OTHER
SUBORDINATED CREDITORS, UNITED STATES CELLULAR
CORPORATION, AS A DEBTOR, AND COBANK, ACB, AS ADMINI
STRATIVE AGENT
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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 [___________], by and among Telephone and Data Systems, Inc., as a Subordinated Creditor, the other Subordinated Creditors party thereto, United States Cellular Corporation, as a Debtor, and CoBank, ACB, as Administrative Agent for the Senior Creditors.
B. Pursuant to Section 2.1(c) of the Subordination Agreement, the undersigned Subordinated Creditor intends that the “Subord inated Debt” and the “Subordinated Debt Documents” identified and described on the Schedules attached hereto shall be and become part of the “Subordinated 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 “Subordinated Debt Documents” for all purposes of the Subordination Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Subo rdinated 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 A greement and agrees that (a) the “Subordinated Debt” 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) t he “Subordinated Debt Documents” to which the undersigned 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 Subo rdination Agreement . The undersigned Subordinated 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 Warranties . 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 date 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 Bor rower 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 counte rpart 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 C ONFLICTS OR CHOICE OF LAW OTHER THAN GENERAL OBLIGATIONS LAW §5-1401).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF , the undersigned Subordinated Creditor has caused this Supplement to be duly executed and delivered as of the date first above written.
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as Subordinated Creditor |
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COBANK, ACB, |
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as Administrative Agent |
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SUBORDINATED DEBT SUPPLEMENT
dated as of _________________ , _________
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SUPPLEMENT TO SCHEDULE D
TO THE SUBORDINATION AGREEMENT, DATED AS OF [___________], AMONG
TELEPHONE AND DATA SYSTEMS, INC., THE OTHER
SUBORDINATED
CREDITORS, UNITED STATES CELLULAR
CORPORATION, AS A DEBTOR, AND COBANK, ACB
, AS ADMINISTRATIVE AGENT
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SUBORDINATED DEBT SUPPLEMENT
dated as of _________________, __________
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SUPPLEMENT TO SCHEDULE E
TO THE SUBORDINATION AGREEMENT, DATED AS OF [___________], AMONG
TELEPHONE AND DATA SYSTEMS, INC., THE OTHER
SUBORDINATED CREDITORS, UNITED STATES CELLULAR
CORPORATION, AS A DEBTOR, AND COBANK, ACB, AS ADMINISTRATIVE AGENT
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SUBORDINATED DEBT DOCUMENTS
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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 Amended and Restated 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, CoBank, ACB, as Administrative Agent and a Lender and the Lenders from time to time party thereto.
Pursuant to the provisions of Section 3.01(e) of the Cred it 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 meanin g 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 Section 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 agrees th at (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 with a p roperly 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.
[NAME OF LENDER] |
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By: _______________________ |
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Name: ________________________ |
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Title: ________________________ |
Date: ________ __, 20[ ]
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 Amended and Restated 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, CoBank, ACB, as Administrative Agent and a Lender and the Lenders from time to time party thereto.
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 foreign corporation related to the Borr ower 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 executing this certificate, the under signed 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 e ffective 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.
[NAME OF PARTICIPANT] |
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By: _______________________ |
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Name: ________________________ |
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Title: ________________________ |
Date: ________ __, 20[ ]
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 Amended and Restated Credit Agreement, dated as of June 15, 2016 (as amended, supplemented o r otherwise modified from time to time, the “ Credit Agreement ”), among United States Cellular Corporation, a Delaware corporation, CoBank, ACB, as Administrative Agent and a Lender and the Lenders from time to time party thereto.
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 certificate, (ii) its direct or indirect partners/mem bers 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 ordinar y 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 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 IRS Form W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E, as applicabl e, 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 prom ptly 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 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.
[NAME OF PARTICIPANT] |
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By: _______________________ |
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Name: ________________________ |
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Title: ________________________ |
Date: ________ __, 20[ ]
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 Amended and Restated 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 corp oration, CoBank, ACB, as Administrative Agent and a Lender and the Lenders from time to time party thereto.
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 IRS Form W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Fo rm W-8BEN-E, as applicable, 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, t he 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 with a properly completed and currently effective certificate in either t he 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.
[NAME OF LENDER] |
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By: _______________________ |
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Name: ________________________ |
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Title: ________________________ |
Date: ________ __, 20[ ]
FORM OF GUARANTIED PARTY DESIGNATION NOTICE
TO: CoBank, ACB, as Administrative Agent
RE: Amended and Restated Credit Agreement, dated as of June 15, 2016 (as amended, modified, extended, restated, replaced, or supplemented from time to time, the “ Credit Agree ment ;” capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit Agreement), by and among United States Cellular Corporation, a Delaware corporation (the “ Borrower ”), CoBank, ACB, as Administrative Agent and a Lender and the Lenders from time to time party thereto
DATE: [Date]
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[Name of 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 Hedge Bank under the terms of the Credit Agreement and is a 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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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 (c ollectively, the " Additional Guarantors ," and each, an " Additional Guarantor ," and together with the Borrower and each of the other signatories party hereto, collectively, the " Guarantors ," and each, a " Guarantor "), in favor of Administrative Agent, for th e benefit of Guarantied Parties.
BACKGROUND .
The Borrower, the lenders from time to time party thereto (collectively, the " Lenders "), and CoBank, ACB, as administrative agent for the Lenders (in such capacity, the " Administrative Agent "), have entered int o that certain Amended and Restated Credit Agreement, dated as of June 15, 2016 (as amended, restated, supplemented or otherwise modified from time to time, the " Credit Agreement ").
The Borrower and each of the other Guarantors are members of the same con solidated group of companies and are engaged in operations which require financing on a basis in which credit can be made available from time to time to the Borrower, and the Guarantors will derive direct and indirect economic benefit from the Loans and ot her financial accommodations under the Credit Agreement and the financial accommodations under the Guarantied Hedge Agreements.
It is a condition precedent to the effectiveness of the Credit Agreement and to other financial accommodations under the Loan D ocuments and of the Hedge Banks to provide financial accommodations pursuant to 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 (a) enter into the Credit Agreement and extend other credit and financial accommodations under the Loan Documents and (b ) make financial accommodations under 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:
SECTION 1. Definitions; Other Terms .
(a ) Capitalized terms used herein and not otherwise defined herein shall have the meanings given such terms in the Credit Agreement, and, to the extent of any conflict, terms as defined in the Credit Agreement shall control (provided, that a more expansive or explanatory definition shall not be deemed a conflict). As used herein the following terms shall have the following meanings:
" Fraudulent Transfer Laws " means applicable Laws relating to fraudulent conveyance or fraudulent transfer, i ncluding 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 Subsid iary of a Loan Party under any Guarantied Hedge 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 a nd whether for principal, interest, fees, expenses or otherwise, (b) any and all reasonable and invoiced out-of-pocket expenses (including the reasonable and invoiced fees, charges and disbursements of any one counsel for the Administrative Agent, one add itional 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 Guaranty, 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, including, without limitation, all post-petition interest if any Loan Party becomes subject to any proceeding under Debtor Relief Laws.
(b) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and ne uter forms. The words " include ," " includes " and " including " shall be deemed to be followed by the phrase " without limitation ." The word " will " shall be construed to have the same meaning and effect as the word " shall ." Unless the context requires otherw ise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or other wise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person's successors and
assigns, (iii) t he words " hereto ," " herein ," " hereof " and " hereunder ," and words of similar import shall be construed to refer to this Guaranty in its entirety and not to any particular provision hereof, (iv) all references herein to Sections and Exhibits shall be constru ed to refer to Sections of and Exhibits to this Guaranty, (v) any reference to any Law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such Law and any reference to any Law or regulation shall, unles s 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 intangi ble assets and properties, including cash, securities, accounts and contract rights.
SECTION 2. Guaranty . Each of the Guarantors hereby jointly and 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, withou t any other demand or notice whatsoever, including without limitation, any notice having been given to any Guarantor of either the acceptance of this Guaranty 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 Administrative Agent (for and on behalf of Guarantied Parties), in order to enforce payment by Guarantors, first o r 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 or any Guarantied Hedge Agr eement to the contrary, in any action or proceeding involving any state corporate or other business entity Law, or any state or federal bankruptcy, insolvency, reorganization or other Law affecting the rights of creditors generally (including any Debtor Re lief 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 T ransfer Laws (specifically excluding, however, any liabilities of the Guarantor in respect of intercompany Indebtedness 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 provisions of Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights held by such Guarantor pur suant to (i) applicable Law, (ii) Section 17 hereof or (iii) any agreement providing for rights of subrogation, reimbursement or contribution in favor of such Guarantor, or for an equitable allocation among such Guarantor, any other Loan Party, or Subsidia ries or Affiliates of the Borrower, and any other Person of obligations arising under guaranties by such Persons, 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 such Guarantor, any Guarantied Party, the Administrative Agent or any other Person, be automatically limited and reduced to the highest amount that i s valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
SECTION 3. Guaranty Absolute . Each Guarantor guarantees that the Guarantied Obligations will be paid and performed strictly in accordance with the terms of the Credit Agreement, the other Loan Documents and the Guarantied Hedge Agreements without set-off or counterclaim, and regardless of any applicable Law now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Guarantied Parties with respect thereto. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any provision of any Loan Document, any Guarantied Hedge Agreement, any other agreement or instrument relating to any of the foregoing or avoidance or subordination of any of the Guarantied Obligations;
(b) any change in the time, manner or place of payment or performance of, or in any other term of, or any increase in the amount of, all or any of the Guarantied Obligations, or any other amendment or waiver of any term of, or any consent to departure from any requirement of, any of the Loan Documents or the Guarantied Hedge Agreements;
(c) an y release of any other Loan Party or amendment or waiver of any term of any other guaranty of, or any consent to departure from any requirement of any other guaranty of, all or any of the Guarantied Obligations;
(d) the absence of any attempt to collect a ny of the Guarantied Obligations from any other Loan Party or any other action to enforce the same or the election of any remedy by any of the Guarantied Parties;
(e) any waiver, consent, extension, forbearance or granting of any indulgence by any of the Guarantied Parties with respect to any provision of any Loan Document or any Guarantied Hedge Agreement (except to the extent any written waiver, consent, forbearance or indulgence executed in accordance with such Loan Document or such Guarantied Hedge Agr eement, as applicable, expressly modifies or terminates the obligations of such Guarantor);
(f) the election by any of the Guarantied Parties in any proceeding under any Debtor Relief Law;
(g) any borrowing or grant of a Lien by the Borrower or the grant of a Lien by any other Loan Party, as debtor-in-possession, under any Debtor Relief Law; or
(h) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of any Guarantor or any other Loan Party other than payment or performance of the Guarantied Obligations
SECTION 4. Waiver .
(a) Each Guarantor hereby (i) waives (A) promptness, diligence, and, except as otherwise provided herein, notice of acceptance and any and all other notices, including, without limitation, n otice of intent to accelerate and notice of acceleration, with respect to any of the Guarantied Obligations or this Guaranty, (B) any requirement that any of the Guarantied Parties exhaust any right or take any action against the Borrower or any other Pers on, (C) the filing of any claim with a court in the event of receivership or bankruptcy of any Loan Party or any other Person, (D) except as otherwise provided herein, protest or notice with respect to nonpayment of all or any of the Guarantied Obligations , (E) except as otherwise provided herein, all demands whatsoever (and any requirement that demand be made on the Borrower or any other Person as a condition precedent to such Guarantor's obligations hereunder), (F) all rights by which any Guarantor might be entitled to require suit on an accrued right of action in respect of any of the Guarantied Obligations or require suit against any other Guarantor or any other Person, (G) any defense based upon an election of remedies by any Guarantied Party, or (H) no tice of any events or circumstances set forth in clauses (a) through (h) of Section 3 ; and (ii) covenants and agrees that, except as otherwise agreed by the parties, this Guaranty will not be discharged except upon the Release Date (as hereinafter defined) .
(b) If, in the exercise of any of its rights and remedies in accordance with the provisions of applicable Law, any Guarantied Party shall forfeit any of its rights or remedies, including, without limitation, its right to enter a deficiency judgment agai nst any Loan Party or any other Person, whether because of any applicable Law pertaining to "election of remedies" or the like, each Guarantor hereby consents to such action by such Guarantied Party and waives any claim based upon such action. Any electio n of remedies which, by reason of such election, results in the denial or impairment of the right of such Guarantied Party to seek a deficiency judgment against any Loan Party or any other Person shall not impair the obligation of such Guarantor to pay the full amount of the Guarantied Obligations or any other obligation of such Guarantor contained herein.
(c) If any of the Guarantied Parties shall bid at any foreclosure or trustee's sale or at any private sale permitted by Law or under any of the Loan Doc uments or any Guarantied Hedge Agreement, to the extent not prohibited by applicable Law, such Guarantied Party may bid all or less than the amount of the Guarantied Obligations and the amount of such bid, if successful, need not be paid by such Guarantied Party but shall be credited against the Guarantied Obligations.
(d) Each Guarantor agrees that, notwithstanding any provision of this Guaranty and without limiting the generality any provision of this Guaranty, if the Guarantied Parties are prevented by applicable Law from exercising their respective rights to accelerate the maturity of the Guarantied Obligations, to collect interest on the Guarantied Obligations, or to enforce or exercise any other right or remedy with respect to the Guarantied Obligati ons, such Guarantor shall promptly pay to the Administrative Agent for the account of Guarantied Parties, upon demand therefor, for application to the Guarantied Obligations, the amount that would otherwise have been due and payable had such rights and rem edies been permitted to be exercised by the Guarantied Parties.
(e) Each Guarantor hereby assumes responsibility for keeping itself informed of the financial condition of the Borrower and each other Loan Party, and of all other circumstances bearing upon the risk of nonpayment of the Guarantied Obligations or any part thereof, that diligent inquiry would reveal. Each Guarantor hereby agrees that Guarantied Parties shall have no duty to advise any Guarantor or any other Loan Party of information known to a ny of Guarantied Parties regarding such condition or any such circumstance. In the event that any of Guarantied Parties in its sole discretion undertakes at any time or from time to time to provide any such information to any Guarantor or other Loan Party , such Guarantied Party shall be under no obligation (i) to undertake any investigation not a part of its regular business routine, (ii) to disclose any information which, pursuant to accepted or reasonable banking or commercial finance practices or agreem ent, such Guarantied Party wishes to maintain as confidential, or (iii) to make any other or future disclosures of such information or any other information to such Guarantor or any other Loan Party.
(f) Each Guarantor consents and agrees that Guarantied Parties shall be under no obligation to marshal any assets in favor of any Guarantor or any other Loan Party or otherwise in connection with obtaining payment of any or all of the Guarantied Obligations from any Person or source.
SECTION 5. Representation s and Warranties .
(a) E ach Guarantor hereby represents and warrants to the Guarantied Parties that the representations and warranties set forth in Article V of the Credit Agreement as they relate to such Guarantor or to the Loan Documents to which such Gu arantor is a party are true and correct in all material respects in the manner specified in the Credit Agreement, and the Guarantied Parties shall be entitled to rely on each of them as if they were fully set forth herein.
(b) All representations and warr anties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been o r will be relied upon by the Guarantied Parties, regardless of any investigation made by any Guarantied Party and notwithstanding that the Guarantied Parties may have had notice or knowledge of any Default at the time of any Credit Extension, and shall con tinue in full force and effect as long as any Loan or any other Guarantied Obligations shall remain unpaid or unsatisfied.
SECTION 6. Amendments, Etc . Neither any amendment or waiver of any provision of this Guaranty nor consent to any departure by any G uarantor herefrom shall in any event be effective unless the same shall be in writing, 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 Guar antors, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. Notwithstanding the foregoing, each Guarantor shall be released from any and all obligations hereunder in accordance wit h the provisions of Section 9.10 of the Credit Agreement.
SECTION 7. Addresses for 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 notice shall be addressed to such Guarantor, in care of the Borrower at the Borrower's then current address, facsimile number, electronic mail address or telephone number for notice under the Credit Agreement.
SECTION 8. No Waiver; Remedies .
(a) No failure on the part of any Guarantied Party to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided are cumulative and not exclusive of any remedies provided by applicable Law or by any of the other Loan Documents or Guarantied Hedg e Agreements.
(b) No waiver by the Guarantied Parties of any default shall operate as a waiver of any other default or the same default on a future occasion, and no action by any of the Guarantied Parties permitted hereunder shall in way affect or impair any of the rights of the Guarantied Parties or the obligations of any Guarantor under this Guaranty, under any of the other Loan Documents or under any Guarantied Hedge Agreement, except as specifically set forth in any such waiver. Any determination by a court of competent jurisdiction of the amount of any principal and/or interest or other amount constituting any of the Guarantied Obligations shall be conclusive and binding on each Guarantor irrespective of whether such Guarantor was a party to the suit or action in which such determination was made.
SECTION 9. Right of Setoff . If an Event of Default shall have occurred and be continuing, each Guarantied Party is hereby authorized at any time and from time to time, to the fullest extent permitted by app licable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Guarantied Party to or for the c redit or the account of each Guarantor against any and all of the Guarantied Obligations of such Guarantor, irrespective of whether or not such Guarantied Party shall have made any demand under this Guaranty or any other Loan Document or Guarantied Hedge A greement and although such Guarantied Obligations of such Guarantor may be contingent or unmatured or are owed to a branch or office of such Guarantied Party different from the branch or office holding such deposit or obligated on such indebtedness; provid ed that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.12 of the Credit Agreement and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Guarantied Parties, and (y) the Defaulting Lender shall provide promptly to the Administrative Ag ent a statement describing in reasonable detail the Guarantied Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Guarantied Party under this Section 9 are in addition to other rights and remedies (including other rights of setoff) that such Guarantied Party may have. Each Guarantied Party shall notify the applicable Guarantor and the Administrative Agent promptly after any such setoff and application; provided that the failure to give such notice shall not affect the validity of such setoff and application.
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 and the Aggregate Commitments are terminated (such earlier date, the " Release Date ") and (ii) bin ding 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, permitt ed transferees, and permitted assigns. Without limiting the generality of the foregoing clause (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 ther eupon 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 Agreem ent. Except as the result of the consummation of a transaction permitted under Section 7.04 of the Credit Agreement, no Guarantor may assign any of its obligations under this Guaranty.
SECTION 11. Application of Payments . All amounts and property receiv ed 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 th e Credit Agreement.
SECTION 12. Reinstatement; Stay of Acceleration; Termination . This Guaranty 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, shou ld any Loan Party become insolvent or make an assignment for the benefit of creditors or should 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, con tinue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Guarantied Obligations, or any part thereof, is, pursuant to applicable Law or otherwise, rescinded or reduced in amount, or must otherwise be restore d or returned by any obligees of the Guarantied Obligations or such part thereof, whether as 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 p art 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 acce leration of the time for payment of any of the Guarantied Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Guarantie d Obligations shall nonetheless be payable by each Guarantor forthwith on demand by the Administrative Agent. Subject to the reinstatement provisions of this Section 12 , this Guaranty shall remain in full force and effect until the Release Date.
SECTION 1 3. Governing Law; Jurisdiction; Etc .
(a) T HIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING T O THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS GUARANTY OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY OTHER GUARANTIED PARTY MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT AGAINST ANY GUARANTOR OR THEIR RESPECTIVE PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) EACH GUARANTOR IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HE REBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MAN NER PROVIDED FOR NOTICES IN SECTION 7 . NOTHING IN THIS GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
SECTION 14. Waiver of Jury Trial . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THERE BY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO, AND EACH GUARANTIED PARTY BY ITS ACCEPTANCE OF THE BENEFITS OF THIS GUARANTY, (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESS LY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL W AIVERS AND CERTIFICATIONS IN THIS SECTION.
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 Guar anty.
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 counterp art of a signature page of this Guaranty by facsimile or other electronic imaging means (e.g. "pdf" or "tif") shall be effective as delivery of a manually executed counterpart of this Guaranty.
SECTION 17. Subrogation and Subordination .
(a) Until the Rel ease Date, no Guarantor shall assert, enforce, or otherwise exercise (i) any right of subrogation to any of the rights or Liens of the Administrative Agent or any other Guarantied Party or any Person acting for the benefit of the Administrative Agent or an y other Guarantied Party against any other Loan Party or any collateral or any other security for the Guarantied Obligations, or (ii) any right of recourse, reimbursement, contribution, indemnification, or similar right against any other Loan Party on all or any part of the Guarantied Obligations. This Section 17 shall survive the termination of this Guaranty, and any satisfaction and discharge of Guarantors by virtue of any payment, court order, or Law.
(b) With respect to each Guarantor, all indebtednes s and other liabilities of each other Loan Party to such Guarantor (" Loan Party Debt ") are expressly subordinate and junior to the Guarantied Obligations and any instruments evidencing the Guarantied Obligations to the extent provided below.
(i) Until th e Release Date, each Guarantor agrees that it will not request, demand, accept, or receive (by set-off or other manner) any payment amount, credit or reduction of all or any part of the amounts owing under the Loan Party Debt or any security therefor, exce pt as specifically allowed pursuant to clause (ii) ;
(ii) Notwithstanding the provisions of clause (i) , the Borrower and each other Loan Party may pay to such Guarantor and such Guarantor may request, demand, accept and receive and retain from the Borrower payments, credits or reductions of all or any part of the amounts owing under the Loan Party Debt or any security therefor on the Loan Party Debt, provided that the Borrower's and each other Loan Party's right to pay and such Guarantor's right to receive any such amount shall automatically and be immediately suspended and cease (A) if an Event of Default pursuant to Sections 8.01(a)(i), 8.01(a)(ii) (with respect to interest on any Loan only), 8.01(c) (with respect to Section 7.10 of the Credit Agreement), 8.01(f) or 8.01(g) of the Credit Agreement exists or (B) if, after taking into account the effect of such payment, an Event of Default pursuant to Sections 8.01(a)(i), 8.01(a)(ii) (with respect to interest on any Loan only), 8.01(c) (with respect to Sectio n 7.10 of the Credit Agreement), 8.01(f) or 8.01(g) of the Credit Agreement would exist. Such Guarantor's right to receive amounts under this clause (ii) (including any amounts which theretofore may have been suspended) shall automatically be reinstated a t such time as the Event of Default which was the basis of such suspension has been cured or waived (such cure or waiver to be evidenced by the Administrative Agent's written agreement), provided that no subsequent Event of Default pursuant to Sections 8.0 1(a)(i), 8.01(a)(ii) (with respect to interest on any Loan only), 8.01(c) (with respect to Section 7.10 of the Credit Agreement), 8.01(f) or 8.01(g) of the Credit Agreement has occurred, or such earlier date, if any, as the Administrative Agent gives notic e to Guarantors of reinstatement by the Required Lenders, in the Required Lenders' sole discretion;
(iii) If any Guarantor receives any payment on the Loan Party Debt in violation of this Guaranty, such Guarantor will hold such payment in trust for the G uarantied Parties and will promptly deliver such payment, together with any necessary endorsement, to the Administrative Agent; and
(iv) In the event of the commencement or joinder of any suit, action or proceeding of any type (judicial or otherwise) or p roceeding under any Debtor Relief Law against the Borrower or any other Loan Party (an " Insolvency Proceeding "), the Guarantied Obligations shall first be paid, discharged and performed in full before any payment or performance is made upon the Loan Party Debt notwithstanding any other provisions which may be made in such Insolvency Proceeding. In the event of any Insolvency Proceeding, each Guarantor will at any time prior to the Release Date (A) file, at the request of any Guarantied Party, any claim, pr oof of claim or similar instrument necessary to enforce the Borrower's or such other Loan Party's obligation to pay the Loan Party Debt, and (B) hold in trust for and pay to the Administrative Agent, for the benefit of the Guarantied Parties, any and all m onies, obligations, property, stock dividends or other assets received in any such proceeding on account of the Loan Party Debt in order that the Guarantied Parties may apply such monies or the cash proceeds of such other assets to the Guarantied Obligatio ns.
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 Guarantor under this Guaranty shall be, as between such Guarantor and such Guarantied Party, a fully-matured, due, and payable and performable obligation of such Guarantor to such Guarantied Party (without regard to whether a n Event of Default exists or whether any part of the Obligations is then due and owing by the Borrower to such Guarantied Party), payable and performable in full by such Guarantor to the Administrative Agent, for the benefit of such Guarantied Party, upon demand, which shall be the estimated amount owing in respect of the contingent claim created hereunder.
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 G uarantied Party shall receive interest 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 inte rest contracted for, charged, or received 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 prem ium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Guarantied Obligations hereu nder.
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 good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 21. No Setoff or Deductions; Taxes . Each Guarantor represents and warrants that it is incorporated or formed, and resides in, the United 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 a ny 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 Indemnified 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 wit hholding for Indemnified Taxes or Other 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 p reserve the after-tax yield the Administrative 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 P arty with the original or a certified copy of a receipt issued by the relevant authority evidencing the payment of any such amount required to be deducted or withheld or other evidence of such payment reasonably satisfactory to the Administrative Agent or such other Guarantied Party.
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 and 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 here under shall remain in full force 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 with respect to any Swap Obligation, hereby jointly and severally, absolutely, unconditionally and irrevocably unde rtakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified 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 rendering such Qualified ECP Guarantor's obligations and undertakings under this Section 23 voidable under applicabl e 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. Entir e Agreement . THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENT S AMONG THE PARTIES.
[Remainder of Page Intentionally Left Blank.]
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be duly executed and delivered by its duly authorized officer on the date first above written.
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UNITED STATES CELLULAR CORPORATION |
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By: |
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Stephen 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 Telephone |
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and Data Systems, Inc., Parent Company of |
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United States Cellular Corporation |
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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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USCC DISTRIBUTION CO., LLC |
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USCC FINANCIAL L.L.C. |
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USCC SERVICES, LLC |
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USCC PURCHASE, LLC |
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USCC REAL ESTATE CORPORATION |
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BARAT WIRELESS, INC. |
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CARROLL PCS, INC. |
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HARDY CELLULAR TELEPHONE COMPANY |
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HUMPHREYS COUNTY CELLULAR, INC. |
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IOWA RSA #3, INC. |
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IOWA RSA #12, INC. |
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MCDANIEL CELLULAR TELEPHONE COMPANY |
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USCC WIRELESS INVESTMENT, INC. |
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USCOC OF OREGON RSA #5, INC. |
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USCOC OF WASHINGTON-4, INC. |
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VERMONT RSA NO. 2-B2, INC. |
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UNITED STATES CELLULAR INVESTMENT COMPANY, LLC |
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By: |
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Stephen T. Campbell |
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Vice President and Treasurer |
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EASTERN NORTH CAROLINA CELLULAR JOINT VENTURE |
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UNITED STATES CELLULAR CORPORATION, |
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Managing General Partner |
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Stephen T. Campbell |
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Executive Vice President – Finance, Chief |
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Financial Officer and Treasurer |
GUARANTY SUPPLEMENT NO. ___
THIS GUARANTY SUPPLEMENT NO. ___ (this " Guaranty Supplement ") is made as of ___________________, to the Guaranty dated as of [_________], 20[__] (as amended, restated, supplemented or otherwise modified from time to time, the " Guaranty "), among the initial signatories thereto and each other Person which 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 Guaran ty).
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 Supplemen t. 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 mak e credit extensions and accommodations under the Loan Documents and Guarantied Hedge Agreements.
AGREEMENT .
NOW, THEREFORE, the undersigned agrees with the Administrative Agent and each other Guaranteed Party as follows:
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 terms and provisions of the Guaranty applicab le 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 hereof, and this Guaranty Supplement shall be deemed to be a part of the Guaranty.
SECTION 5. This Guaranty Supplement may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreeme nt. Delivery of an executed counterpart of a signature page of this Guaranty Supplement by facsimile or other electronic imaging means (e.g. "pdf" or "tif") shall be effective as delivery of a manually executed counterpart of this Guaranty Supplement.
[Re mainder of Page Intentionally Left Blank .]
EXECUTED as of the date first above written .
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[____________________]
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ACCEPTED BY:
CoBank, ACB,
as Administrative Agent
By: ________________________________
Name: ________________________________
Title: ________________________________
EFFECTIVE DATE OPINION MATTERS
The matters contained in the following Sections of the Credit Agreement should be covered by the legal opinion:
FORM OF PREPAYMENT NOTICE
Date: ___________, 20___
To: CoBank, ACB , as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated 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 Corporation, a Delaware corporation (the “ Borrower ”), CoBank, ACB, as Administrative Agent and a Lender and the Lenders f rom time to time party thereto .
This prepayment notice (this “ Notice ”) is delivered to the Administrative Agent pursuant to Section 2.03(a) of the Credit Agreement. The Borrower will prepay Committed Loans as follows:
This prepayments specified herein comply with the provisions set forth in Section 2.03(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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