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Item 1.01. Entry into a Material Definitive Agreement .
TDS Revolving Credit Agreement :
This Current Report on Form 8-K is being filed to disclose that, on June 15, 2016 (the “Effective Date”), Telephone and Data Systems, Inc. (“TDS” or the “Company”) entered into a $400,000,000 Credit Agreement by and among TDS as Borrower, Wells Fargo Bank, National Association, as Administrative Agent, and the other lenders party thereto and identified therein (“Revolving Credit Agreement”).
The Revolving Credit Agreement provides TDS with a $400,000,000 senior revolving credit facility for general corporate purposes, including working capital, non-hostile acquisitions, spectrum purchases and capital expenditures.
The following briefly describes the terms of the Revolving Credit Agreement:
Borrowings under the Revolving Credit Agreement bear interest, at TDS’s option, either at a LIBOR rate or at an alternative base rate, plus an applicable margin. TDS's interest costs under the Revolving Credit Agreement are based on credit ratings from Standard & Poor’s Rating Services, Moody’s Investor Services or Fitch Ratings. If TDS’s credit ratings were lowered, the credit facility would not cease to be available solely as a result of a decline in its credit ratings.
The two financial covenants described below are included in the Revolving Credit Agreement:
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 Consolidated 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 Revolving Credit Agreement will be unsecured.
The Revolving Credit Agreement provides, among other things, that TDS 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 TDS or by any such subsidiary, make investments, effect mergers or other fundamental changes, make dividends, distributions or other restricted payments, or enter into transactions with affiliates, other than as expressly excepted in the Revolving Credit Agreement.
The Revolving Credit Agreement includes representations and warranties, covenants, events of default and other terms and conditions that are substantially similar to TDS’s existing revolving credit agreement.
A Change in Control, as such term is defined in the Revolving Credit Agreement, of TDS would constitute a default and would require all borrowings outstanding under the Revolving Credit Agreement to be repaid.
The continued availability of the Revolving Credit Agreement requires TDS to comply with certain negative and affirmative covenants, maintain the above financial ratios and provide representations on certain matters at the time of each borrowing.
Amounts under the Revolving Credit Agreement may be borrowed, repaid and reborrowed from time to time from and after the Effective Date until the maturity date. There are no outstanding borrowings under the Revolving Credit Agreement as of the Effective Date, except for letters of credit.
Amounts borrowed under the Revolving Credit Agreement will be due and payable in full on the fifth anniversary of the Effective Date.
The foregoing brief description is qualified by reference to the copy of the Revolving Credit Agreement attached hereto as Exhibit 4.1, which is incorporated herein by reference, and which identifies the lenders thereto.
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Some of the lenders and/or agents under the Revolving Credit Agreement and/or their affiliates may have various relationships with TDS, its publicly-traded subsidiary, United States Cellular Corporation (“U.S. Cellular”), and their subsidiaries, involving banking or other financial services, including checking, cash management, brokerage, lending, investment banking, depository, indenture trustee and/or other services, including serving as a lender under Revolving Credit Agreement or other TDS and/or U.S. Cellular credit agreements.
TDS’s first tier, wholly-owned subsidiaries (other than Suttle Straus, Inc.) have jointly and severally unconditionally guaranteed the payment and performance of the obligations of TDS under the Revolving Credit Agreement pursuant to a Guaranty dated the Effective Date. The form of the Guaranty is attached as an exhibit to the Revolving Credit Agreement attached hereto as Exhibit 4.1. Other subsidiaries that meet certain criteria will be required to provide a similar Guaranty in the future.
U.S. Cellular Revolving Credit Agreement :
Also, on June 15, 2016, U.S. Cellular, entered into a $300,000,000 Credit Agreement (“U.S. Cellular Revolving Credit Agreement”), as disclosed in U.S. Cellular’s Form 8-K dated June 15, 2016, which Form 8-K is incorporated by reference herein. The terms and conditions of the U.S. Cellular Revolving Credit Agreement are described in such Form 8-K and are substantially similar to those of TDS’ Revolving Credit Agreement. A copy of the U.S. Cellular Revolving Credit Agreement, including the forms of the related Guaranty and Subordination Agreement attached thereto , is incorporated by reference herein as Exhibit 4.2.
U.S. Cellular Amended and Restated Term Loan Credit Agreement :
Also, on June 15, 2016, U.S. Cellular, entered into an Amended and Restated Term Loan Credit Agreement (“U.S. Cellular Restated Term Loan Agreement”), as disclosed in U.S. Cellular’s Form 8-K dated June 15, 2016, which Form 8-K is incorporated by reference herein. The terms and conditions of the U.S. Cellular Restated Term Loan Agreement are described in such Form 8-K and are substantially similar to those of the U.S. Cellular Revolving Credit Agreement. A copy of the U.S. Cellular Restated Term Loan Agreement, including the forms of the related Guaranty and Subordination Agreement attached thereto , is incorporated by reference herein as Exhibit 4.3.
In reviewing the agreements included as exhibits to this report, please note that they are included to provide you with information regarding their terms and are not intended to provide any other factual or disclosure information about the Company or the other parties to the agreements. Certain of the agreements contain representations and warranties by one or more of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the other parties to the applicable agreement and:
Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time. Additional information about the Company may be found elsewhere in the Company’s SEC filings, which are available without charge through the SEC’s website at http://www.sec.gov.
Item 1.02. Termination of a Material Definitive Agreement .
In connection with and as a condition of entering into the Revolving Credit Agreement, on the Effective Date, TDS terminated its prior $400,000,000 Credit Agreement by and among TDS as Borrower, Bank of America, N.A., as Administrative Agent, and the lenders party thereto, dated as of December 17, 2010, except with respect to outstanding letters of credit. TDS did not incur any early termination penalties in connection with the termination. A description of such prior Credit Agreement and a description of any material relationships between TDS and its affiliates and any of the other parties to the prior Credit Agreement are included in TDS’s Form 8-K dated December 17, 2010 and are incorporated by reference herein.
Also, on June 15, 2016, U.S. Cellular terminated its Credit Agreement dated December 17, 2010, as disclosed in U.S. Cellular’s Form 8-K dated June 15, 2016, which is incorporated by reference herein.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant .
The disclosure set forth above under Item 1.01 is hereby incorporated by
reference into this Item 2.03.
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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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TELEPHONE AND DATA SYSTEMS, INC. |
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(Registrant) |
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Date: |
June 21, 2016 |
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By: |
/s/ Douglas D. Shuma |
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Douglas D. Shuma |
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Senior Vice President - Finance and Chief Accounting Officer |
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(principal financial officer and principal accounting 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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Revolving Credit Agreement, among TDS, Wells Fargo National Association, as administrative agent, and the other lenders thereto, dated as of June 15, 2016, including Schedules and Exhibits, including the form of the subsidiary Guaranty |
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4.2 |
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Revolving Credit Agreement, among U.S. Cellular, Toronto Dominion (Texas) LLC, as administrative agent, and the other lenders thereto, dated as of June 15, 2016, including Schedules and Exhibits, including the form of the subsidiary Guaranty and Subordination Agreement, is hereby incorporated by reference from U.S. Cellular's Form 8-K dated June 15, 2016 |
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4.3 |
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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 Subordination Agreement, is hereby incorporated by reference from U.S. Cellular's Form 8-K dated June 15, 2016 |
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Published CUSIP Number: ________________
$400,000,000
Credit Agreement
Dated as of June 15, 2016
among
Telephone and Data Systems, Inc
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as the Borrower,
Wells Fargo Bank, National Association
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as Administrative Agent, Swing Line Lender and L/C Issuer,
and
The Other Lenders Party Hereto
Wells Fargo Securities, LLC ,
TD Securities (USA), LLC,
Citigroup Global Markets Inc.,
CoBank, ACB,
U.S. Bank National Association,
RBC Capital Markets,
as Co-Lead Arrangers and Joint Book Managers
Toronto Dominion (Texas) LLC,
as Syndication Agent
Citibank, N.A.,
CoBank, ACB
U.S. Bank National Association,
Royal Bank of Canada,
as Co-Documentation Agents
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Page |
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ARTICLE I. |
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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 |
31 |
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1.03 |
Accounting Terms |
32 |
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1.04 |
Rounding |
33 |
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1.05 |
Times of Day |
33 |
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1.06 |
Letter of Credit Amounts |
33 |
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1.07 |
Pro Forma Calculations |
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ARTICLE II. |
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THE COMMITMENTS AND CREDIT EXTENTIONS |
33 |
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2.01 |
Committed Loans |
33 |
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2.02 |
Borrowings, Conversions and Continuations of Committed Loans |
34 |
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2.03 |
Letters of Credit |
36 |
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2.04 |
Swing Line Loans |
45 |
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2.05 |
Prepayments |
48 |
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2.06 |
Termination or Reduction of Commitments |
49 |
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2.07 |
Repayment of Loans |
50 |
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2.08 |
Interest |
50 |
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2.09 |
Fees |
51 |
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2.10 |
Computation of Interest and Fees |
51 |
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2.11 |
Evidence of Debt |
52 |
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2.12 |
Payments Generally; Administrative Agent's Clawback |
53 |
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2.13 |
Sharing of Payments by Lenders |
54 |
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2.14 |
Increase in Commitments |
55 |
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2.15 |
Cash Collateral |
56 |
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2.16 |
Defaulting Lenders |
58 |
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ARTICLE III. |
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TAXES, YIELD PROTECTION AND ILLEGALITY |
60 |
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3.01 |
Taxes |
60 |
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3.02 |
Illegality |
66 |
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3.03 |
Inability to Determine Rates |
66 |
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3.04 |
Increased Costs |
66 |
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3.05 |
Compensation for Losses |
68 |
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3.06 |
Mitigation Obligations; Replacement of Lenders; Like Treatment |
69 |
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3.07 |
Survival |
69 |
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ARTICLE IV. |
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CONDITIONS PRECEDENT TO Credit Extensions |
70 |
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4.01 |
Conditions of Initial Credit Extension |
70 |
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4.02 |
Conditions to all Credit Extensions |
72 |
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ARTICLE V. |
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REPRESENTATIONS AND WARRANTIES |
73 |
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5.01 |
Existence, Qualification and Power |
73 |
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5.02 |
Authorization; No Contravention |
74 |
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5.03 |
Governmental Authorization; Other Consents |
74 |
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5.04 |
Binding Effect |
74 |
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Page |
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5.05 |
Financial Statements; No Material Adverse Effect |
74 |
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5.06 |
Litigation |
75 |
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5.07 |
No Default |
75 |
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5.08 |
Ownership of Property; Liens |
75 |
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5.09 |
Environmental Compliance |
75 |
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5.10 |
Insurance |
76 |
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5.11 |
Taxes |
76 |
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5.12 |
ERISA Compliance |
76 |
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5.13 |
Subsidiaries; Equity Interests; Guarantors |
77 |
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5.14 |
Margin Regulations; Investment Company Act |
77 |
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5.15 |
Disclosure |
78 |
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5.16 |
Compliance with Laws |
78 |
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5.17 |
Taxpayer Identification Number |
78 |
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5.18 |
OFAC |
78 |
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5.19 |
Anti-Corruption Laws; OFAC |
79 |
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ARTICLE VI. |
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AFFIRMATIVE COVENANTS |
79 |
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6.01 |
Financial Statements |
79 |
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6.02 |
Certificates; Other Information |
80 |
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6.03 |
Notices |
82 |
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6.04 |
Payment of Obligations |
82 |
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6.05 |
Preservation of Existence, Etc. |
83 |
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6.06 |
Maintenance of Properties; Office |
83 |
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6.07 |
Maintenance of Insurance |
83 |
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6.08 |
Compliance with Laws |
84 |
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6.09 |
Books and Records |
84 |
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6.10 |
Inspection Rights |
84 |
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6.11 |
Use of Proceeds |
85 |
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6.12 |
Further Assurances |
85 |
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6.13 |
Additional Guarantors; Guaranty Trigger Event |
85 |
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6.14 |
Anti-Corruptions Laws |
86 |
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ARTICLE VII. |
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NEGATIVE COVENANTS |
87 |
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7.01 |
Liens |
87 |
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7.02 |
Investments |
89 |
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7.03 |
Indebtedness |
91 |
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7.04 |
Fundamental Changes |
92 |
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7.05 |
Dispositions |
94 |
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7.06 |
Restricted Payments |
96 |
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7.07 |
Transactions with Affiliates and Subsidiaries |
97 |
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7.08 |
Burdensome Agreements |
97 |
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7.09 |
Use of Proceeds |
99 |
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7.10 |
Financial Covenants |
99 |
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7.11 |
United States Celluar Corportation |
100 |
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7.12 |
Governmental Programs |
100 |
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7.13 |
Sanctions |
100 |
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Page |
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7.14 |
Anti-Corruption Laws |
100 |
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7.15 |
Guarantees |
100 |
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ARTICLE VIII. |
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EVENTS OF DEFAULT AND REMEDIES |
101 |
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8.01 |
Events of Default |
101 |
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8.02 |
Remedies Upon Event of Default |
102 |
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8.03 |
Application of Funds |
104 |
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ARTICLE IX. |
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ADMINISTRATIVE AGENT |
105 |
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9.01 |
Appointment and Authority |
105 |
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9.02 |
Rights as a Lender |
105 |
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9.03 |
Exculpatory Provisions |
105 |
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9.04 |
Reliance by Administrative Agent |
106 |
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9.05 |
Delegation of Duties |
107 |
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9.06 |
Resignation of Administrative Agent |
107 |
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9.07 |
Non-Reliance on Administrative Agent and Other Lenders |
108 |
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9.08 |
No Other Duties, Etc. |
106 |
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9.09 |
Administrative Agent May File Proofs of Claim |
109 |
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9.10 |
Guaranty Matters |
110 |
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9.11 |
Guarantied Cash Management Agreements and Guarantied Hedge Agreements |
110 |
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ARTICLE X. |
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MISCELLANEOUS |
110 |
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10.01 |
Amendments, Etc. |
110 |
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10.02 |
Notices; Effectiveness; Electronic Communication |
112 |
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10.03 |
No Waiver; Cumulative Remedies; Enforcement |
114 |
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10.04 |
Expenses; Indemnity; Damage Waiver |
115 |
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10.05 |
Payments Set Aside |
117 |
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10.06 |
Successors and Assigns |
118 |
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10.07 |
Treatment of Certain Information; Confidentiality |
123 |
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10.08 |
Right of Setoff |
124 |
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10.09 |
Interest Rate Limitation |
125 |
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10.10 |
Counterparts; Integration; Effectiveness |
125 |
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10.11 |
Survival of Representations and Warranties |
125 |
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10.12 |
Severability |
125 |
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10.13 |
Replacement of Lenders |
126 |
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10.14 |
Governing Law; Jurisdiction; Etc. |
127 |
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10.15 |
Waiver of Jury Trial |
128 |
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10.16 |
No Advisory or Fiduciary Responsibility |
128 |
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10.17 |
Electronic Execution of Assignments and Certain Other Documents |
126 |
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10.18 |
USA PATRIOT Act |
129 |
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10.19 |
Time of the Essence |
129 |
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10.20 |
Designation as Senior Debt |
129 |
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10.21 |
FCC Approval |
129 |
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10.22 |
Entire Agreement |
130 |
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10.23 |
Keepwell |
130 |
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Page |
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10.24 |
Acknowledgement and Consent to Bail-In of EEA Financial Institutions |
130 |
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10.25 |
Termination of Commitments under Existing Credit Agreement |
131 |
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SCHEDULES |
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1.01 |
Special Entities; Non-Subsidiary Variable Interest Entities |
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2.01 |
Commitments and Applicable Percentages |
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5.05 |
Supplement to Interim Financial Statements |
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5.13 |
Subsidiaries; Other Equity Investments; Guarantors |
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7.01 |
Existing Liens |
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7.03 |
Existing Indebtedness |
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7.07 |
Existing Transactions with Affiliates |
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7.08 |
Existing Material Debt Instruments |
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10.02 |
Administrative Agent's Office; Certain Addresses for Notices |
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Form of |
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A |
Committed Loan Notice |
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B |
Swing Line Loan Notice |
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C |
Note |
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D |
Compliance Certificate |
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E-1 |
Assignment and Assumption |
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E-2 |
Administrative Questionnaire |
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F |
Opinion Matters |
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G |
Joinder Agreement |
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H |
U.S. Tax Compliance Certificates |
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I |
Guarantied Party Designation Notice |
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J |
Guaranty |
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K |
Prepayment Notice |
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TELEPHONE AND DATA SYSTEMS, INC.
CREDIT AGREEMENT
This CREDIT AGREEMENT (" Agreement ") is entered into as of June 15, 2016, among TELEPHONE AND DATA SYSTEMS, INC., a Delaware corporation (the " Borrower "), each lender from time to time party hereto (collectively, the " Lenders " and individually, a " Lender "), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Age nt, Swing Line Lender and L/C Issuer.
The Borrower has requested that the Lenders provide a revolving credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreement s herein contained, the parties hereto covenant and agree as follows:
" Administrative Agent " means Wells Fargo in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.
" Administrative Agent ' s Office " means the Administrative Agent ' s address and, as appropriate, account as set forth on Schedule 10.02 , or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
" Administrative Questionnaire " means an Administrative Questionnaire in subs tantially the form of Exhibit E-2 or any other form approved by the Administrative Agent.
" Affiliate " means, in relation to the Borrower, any of its Subsidiaries, any Person that would be considered to be an affiliate of the Borrower or any of its Subsidiaries 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 or any of its Subsidiaries 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 Credit Agreement.
" Anti-Terrorism Laws " means any Laws relating to financing terrorism, "know your customer" or money laundering, including Executive Order No. 13224, the USA Patriot Act, the
Laws comprising or implementing the Bank Secrecy Act, and the Laws administered by the United States Treasury Department’s Office of Foreign Asset Control.
" Applicable Percentage " means with respect to any Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Commitments represented by such Lender's Commitment at such time provided that, in the case of Section 2.12 with respect to payments to be distributed by the Administrative Agent to Lenders, when a Defaulting Lender shall exist, "Ap plicable 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 Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have 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 recen tly in effect, giving effect to any subsequent 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 h ereto, as applicable.
" Applicable Rate " means, from time to time, the following percentages per annum, based upon the Debt Rating as set forth below:
Debt Rating (S&P Rating, Moody's Rating and Fitch Rating, in that order) |
Commitment Fee |
Applicable Margin for Eurodollar Rate |
Applicable Margin for Base Rate |
Letter of Credit Fee |
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I |
≥ BBB /Baa2 /BBB |
0.175% |
1.25% |
0.25% |
1.25% |
II |
BBB- /Baa3/ BBB- |
0.225% |
1.50% |
0.50% |
1.50% |
III |
BB+ /Ba1 /BB+ |
0.300% |
1.75% |
0.75% |
1.75% |
IV |
BB /Ba2 /BB |
0.375% |
2.00% |
1.00% |
2.00% |
V |
≤ BB- /Ba3 /BB- |
0.450% |
2.25% |
1.25% |
2.25% |
In the event that the Debt Ratings of any two ratings agencies are at the same Level, pricing shall be based upon such Level, and in the event that each of the three Debt Ratings are at different Levels, pricing shall be based upon the middle rating (i.e., the highest and lowest ratings shall be disregarded); provided that , notwithstanding the preceding,
(a) If any rating agency shall change the basis on which ratings are established, each reference to Moody's Rating, S&P Rating or Fitch Rating shall refer to the then equivalent rating by the applicable rating agency;
(b) in the event that the Borrower has ratings from only two rating agencies and (i) they are split-rated by n o more than one level, the Moody's Rating or the S&P Rating level will apply (and if both the Moody's Rating and the S&P Rating are the surviving ratings, then the level applicable to the higher of the two shall apply) or
(ii) they are split-rated by more than one level, the level one level higher than the lowest rating will apply;
(c) If the Borrower has ratings from only one rating agency, then pricing will be based on the next lower Level from that rating;
(d) If the rating system of S&P, Moody 's or Fitch shall change, or if each of such rating agencies shall cease to be in the business of rating corporate debt obligations generally, then the most recently applicable Level shall apply for the next 30 days so long as the Borrower is negotiating i n good faith to reach an amendment to the pricing provisions with the Lenders and after the expiration of such 30 day period, pricing shall be based on Level V; and
(e) If the Borrower has no S &P Rating, Moody's Rating or Fitch Rating, for any reason other than such agency's ceasing to be in the business of rating corporate debt obligations generally, then pricing will be based on Level V.
Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the certificate delive red pursuant to Section 4.01(a)(vii) . Thereafter, each change in the Applicable Rate resulting from a publicly announced change in the Debt Rating shall be effective, during the period commencing on the date of the public announcement thereof and ending o n the date immediately preceding the effective date of the next such change.
" Approved Fund " means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
" Arrangers " means Wells Fargo Securities, LLC and TD Securities (USA), LLC, in their capacity as co ‑ lead arrangers and joint book managers.
" Assignee Group " means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.
" Assignment and Assumption " means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.06(b) ), and accepted by the Administrative Agent, in substantially the form of Exhibit E-1 or any other 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 o n 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 fiscal 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.
" Auto-Exten sion Letter of Credit " has the meaning specified in Section 2.03(b)(iii) .
" Availability Period " means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.06 , and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuer to make L/C Credit Extensions pursuant to Section 8.02 .
" Bail-In Action " means the exercise of any Write-Down and Conve rsion 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 Parliam ent 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 o f one month, determined in accordance with subsection (b) of the definition of Eurodollar Rate).
" Base Rate Committed Loan " means a Committed Loan that is a Base Rate Loan.
" Base 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 specified in Section 6.02 .
" Borrowing " means a Committed Borrowing or a Swing Line Borrowing, as the context may require.
" Business Day " means any day ot her 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 " means any and all of the following persons: (i) LeRoy T. Carlson or his spouse, Marg aret Carlson; (ii) any child, grandchild, great grandchild or other lineal descendant of LeRoy T. Carlson and Margaret Carlson, including any Person with such relationship by adoption, or the spouse of any such Person; (iii) the estate of any of the Person s described in subsections (i) and (ii); (iv) any trust or similar arrangement, provided that Persons described in subsections (i), (ii), or (iii) are the beneficiaries of more than fifty percent (50%) of the beneficial interests in such trust or arrangeme nt; (v) the voting trust which expires on June
30, 2035, as amended from time to time, or any successor to such voting trust, including the trustees of such voting trust; and (vi) any corporation, partnership, limited liability company or other entity in which Persons identified in subsections (i) through (v) own more than fifty percent (50%) of the voting interests in the election of directors or other management of such entity.
" Cash Collateralize " means to pledge and deposit with or deliver to the Admin istrative Agent, for the benefit of one or more of the L/C Issuer or Swing Line Lender (as applicable) and the Lenders, as collateral for L/C Obligations, Obligations in respect of Swing Line Loans, or obligations of Lenders to fund participations in respe ct of either thereof (as the context may require), cash or deposit account balances or, if the Administrative Agent, the L/C Issuer or Swing Line Lender shall agree in their sole discretion and otherwise acceptable to the Borrower, other credit support, in each case pursuant to documentation in form and substance reasonably satisfactory to (a) the Administrative Agent and (b) the L/C Issuer or the Swing Line Lender (as applicable). "Cash Collateral" shall have a meaning correlative to the foregoing and sha ll include the proceeds of such cash collateral and other credit support.
" Cash Equivalents " means any of the following types of Investments, to the extent owned by the Borrower or any of its Subsidiaries free and clear of all Liens:
(a) readily marke table obligations issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof; provided that the full faith and credit of the United States of America (including, without limitation, the Feder al Deposit Insurance Corporation) is pledged in support thereof;
(b) time deposits with, or insured certificates of deposit or bankers' acceptances of, any commercial bank that is a member of the Federal Reserve System and whose deposits are fully ins ured by the Federal Deposit Insurance Corporation;
(c) commercial paper in an aggregate amount of no more than $20,000,000 per issuer outstanding at any time issued by any Person organized under the laws of any state of the United States of America a nd rated at least "P-1" (or the then equivalent grade) by Moody's or at least "A-1" (or the then equivalent grade) by S&P or at least "F-1" (or the then equivalent grade) by Fitch, in each case with maturities of not more than 180 days from the date of acq uisition thereof;
(e) demand deposit accounts maintained in the ordinary course of business;
(f) money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, as amended from time t o time, (ii) are rated "AAA"
by S&P, "Aaa" by Moody's or "AAA" by Fitch and (iii) have portfolio assets of at least $1,000,000,000; and
(g) Investments, classified in accordance with GAAP as current assets of the Borrower or any of its Subsidiaries, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from any of Moody's, S&P or Fitch, and the portfolios of which are limited sol ely to Investments of the character, quality and maturity described in clauses (a), (b), (c) and (d) of this definition.
" Cash Management Agreement " means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card (including non-card electronic payables), purchase cards, electronic funds transfer and other cash management arrangements.
" Cash Management Bank " means any Person that, (a) at the time it enters into a Cash Management Agreement with a Loan Party, is a Lender, an Affiliate of a Lender, the Administrative Agent or an Affiliate of the Administrative Agent, or (b) at the time it (or its Affiliate) bec omes a Lender (including on the Closing Date), is a party to a Cash Management Agreement with a Loan Party, in each case in its capacity as a party to such Cash Management Agreement.
" Change in Law " means the occurrence, after the date of this Agreement, o f 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, implementation or application thereof by any Governmental Aut hority 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 a nd 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 for International Settlements, the Basel Committee on Ba nking 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:
(a) any event or series of related events (including (i) the sale or issuance (or series of sales or issuances) of Equity Interests of the Borrower by the Borrower or by any holder or holders thereof, or (ii) any merger, consolidation, recapitalization, reorganization or other transaction or arrangement) as a result of which the Carlson Family Group shall together cease to be "beneficial owners" (as defined in Rule 13d ‑ 3 under the Exchange Act) of voting interests in the Borrower having the voting power, by class or through a combined total voting power of all classes of Equity Interests of the Borrower, to elect at least a majority of the members of the board of direct ors of the Borrower;
(b) any "Change in Control" or any other similar event under and as defined in any of the instruments governing any Indebtedness of the Borrower or of any of its Subsidiaries in an aggregate principal amount exceeding $100,000,00 0 shall at any time occur; or
(c) an event or series of events by which during any period of 12 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Borrower cease to be composed of individ uals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at t he time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) abo ve constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
" Closing Date " means the first date on which all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01 .
" CoBank Term Loan Facility " means that certain Credit Agreement dated as of January 21, 2015 among U.S. Cellular and CoBank, ACB, as the administrative agent and sole lender, as amended, restated and extended from time to time in accordance with the terms thereof to the extent permitted under the Loan Documents.
" Code " means the Internal Revenue Code of 1986, as amended, and the rules and regulations related thereto.
" Commitment " means, as to each Lender, its obligation to (a) make Committed Loans to the Borrower pursuant to Section 2.01 , (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite su ch 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 bor rowing 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 substanti ally 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.
" Commodity Exchange Act " means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
" Compliance Certificate " means a certificate substantially in the form of Exhibi t D or any other form approved by the Administrative Agent.
" Connection Income Taxes " means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
" Consolidated EBITDA " 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, distrib utions from unconsolidated entities in which the Borrower directly or indirectly owns an Equity Interest plus (c) the following to the extent each was deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by the Borrower and its Subsidiaries for such period (net of any Federal, state, local and foreign income tax credits of the Borrower and its Subsidiaries for such period), (iii ) depreciation, amortization and accretion expense and all other non-cash charges deducted from Consolidated Net Income for such period which do not represent a cash item in such period and minus (d) to the extent included in calculating such Consolidated Net 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 Borrow er or any Subsidiary for less than the face value of such Indebtedness be included in Consolidated EBITDA; and provided further that, notwithstanding the foregoing, that (1) when and to the extent that non-cash charges described in clause (c)(iii) above be come 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 of determination, for the Borrower and its Subsidiaries on a consolidated basis and without duplication, the sum of (a) the outstanding principal amount of all obligations, wheth er current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments (including, without limitation, all purchase money Indebtedness and all di rect 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 th an (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 c redit, 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 acquis ition of property or any business; (e) all indebtedness created under any conditional sale or other title retention agreements or sales of accounts receivable; (f) all non-recourse indebtedness of the kind described in clause (a) through clause (e) secured by Liens
on property of the obligor; (g) Attributable Indebtedness in respect of capital leases and Synthetic Lease Obligations; (h) net obligations under any Swap Contract; (i) all Indebtedness of the types referred to in subsections (a) through (h) abo ve of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Borrower or a Subsidiary is a general partner or party to such a joint venture (other than a limited partner in a lim ited partnership), unless such Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary and (j) all Guarantees in respect of indebtedness of the kind described in clause (a) through clause (h) above; excluding up to $25,000,000 in the aggregate of contingent liabilities of the Borrower and its Subsidiaries which are not required by GAAP to be recorded on the balance sheet of the Borrower and its Subsidiaries. For all purposes of this Agreement, the term "Consolidated Funded Indebtedne ss" shall not include, with respect to the Borrower and its Subsidiaries, the contractual and other similar obligations of the Borrower and its Subsidiaries with respect to any Monetization Transactions.
" Consolidated Interest Charges " means, for any per iod, for the Borrower and its Subsidiaries on a consolidated basis, the aggregate amount of interest required to be paid or payable in cash by the Borrower or any of its Subsidiaries during such period on all Consolidated Funded Indebtedness of the Borrowe r 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 GAA P in respect of capital lease obligations (including, without duplication, the interest for rental payments made with respect to Sale and Leaseback Transactions) and expressly including (a) any commitment fee payable pursuant to Section 2.09 and (b) any ot her scheduled commitment fee, facility fee, utilization fee or other scheduled fee payable by the Borrower or any Subsidiary in connection with Consolidated Funded Indebtedness of the Borrower or any Subsidiary.
" Consolidated Interest Coverage Ratio " means , as of any date of determination, the 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 foregoing, for the purpose s 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 Ind ebtedness 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 determination, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended, provided that , notwithstanding the foregoing, for the purposes of determination of the Consolidated Leverage Ratio, in no event shall any financial results of any Non-Subsidiary Variable Interest Entity be included in such determination, except to the extent Indebtedness of any such Non-Subsidiary Variable Interest Entity is required by subsection (i) of the defi nition 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 (excluding
extraordinar y 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 calculati on 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 possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. " Controlling " and " Controlled " have meanings corr elative thereto.
" Credit Extension " means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.
" Debt Rating " means, as of any date of determination, the S&P Rating, Moody's Rating or Fitch Rating (collectively, such ratings referred to as the " Debt Ratings ").
" Debtor Relief Laws " means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganizat ion, 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 " means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rat e, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided , however , that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum, in each case, to the fullest extent permitted by applicable Laws.
" Defaulting Lender " means, subject to Section 2.1 6(b) , any Lender that (a) has failed to (i) fund all or any portion of the Committed Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within two Business Days of the date such Loans or par ticipations were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender's determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the L/C Issuer, the
Swing Line Lender or any other Lender any other amount req uired to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent, the L/C Issuer or the Swing Line L ender 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 s uch 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 Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject o f a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the FDIC or any other state or federal regulatory authority acting in such a capacity, or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of a ny Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United Stat es or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Admi nistrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.16(b) ) upon delivery of written notice of such determination to the Borrower, the L/C Issuer, the Swing Line Lender and each Lender.
" Designated Jurisdiction " means any country or territory to the extent that such country or territory itself is the subject of any Sanc tion.
" 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, assignment, transfer or other disposal, with or without rec ourse, 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 organized under the laws of any political subdivision of t he United States.
" EEA Financial Institution " means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established
in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subjec t to consolidated supervision with its parent.
" EEA Member Country " means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
" EEA Resolution Authority " means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.
" Eligible Assignee " means any Person that meets the requirements to be an assignee under Section 10 .06(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 10.06(b)(iii) ).
" Environmental Laws " means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, pe rmits, 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 w astes, air emissions and discharges to waste or public systems.
" Environmental Liability " means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrow er, any Loan Party or any of their respective Subsidiaries 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 Materi als, (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 respec t to any of the foregoing.
" Equity Interests " means, with respect to any Person, all of the outstanding shares of capital stock of (or other ownership or profit interests in) such Person, all of the outstanding warrants, options or other rights for the pur chase 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 int erests 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 interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not the shares underlying such warrants, options, rights or other interests are outstanding on any date of determination.
" ERISA " means the Employee Retirement Income Security Act of 19 74, 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 purpos es of provisions relating to Section 412 of the Code).
" ERISA Event " means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan ye ar in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affili ate 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 ERISA, 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 Pen sion Plan or Multiemployer Plan; (e) an event or condition 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 lia bility 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 Mar ket Association (or any successor person), as in effect from time to time.
" Eurodollar Rate " means:
(a) For any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to (i) the Intercontinental Exchange Group, New York LIBOR Rate or the successor thereto if the Intercontinental Exchange Group, New York is no longer making a LIBOR rate available (" LIBOR "), as published by Reuters (or other commercially available source providing quotations of LIBOR as designated by the Ad ministrative Agent from time to time), at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period or (ii) if such published rate is not available at such time for any reason, then the Eurodollar Rate for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars f or delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Wells Fargo and with a term equivalent to such Interest Period would be offered by first clas s banks in the London interbank Eurodollar market to the Administrative Agent at its request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period; or
(b) For any interest rate calculation with r espect to a Base Rate Loan, the rate per annum equal to (i) LIBOR, at approximately 11:00 a.m., London time, two Business Days prior to the date of determination for Dollar deposits being delivered in the London interbank market for a term of one month com mencing that day or (ii) if such published rate is not available at such time for any reason, the rate determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the date
of determination in same day funds in the a pproximate amount of the Base Rate Loan being made, continued or converted by Wells Fargo and with a term equal to one month would be offered by Wells Fargo's London Branch to major banks in the London interbank Eurodollar market at their request at the da te and time of determination.
Notwithstanding the foregoing, if the Eurodollar Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.
" Eurodollar Rate Loan " means a Committed Loan that bears interest at a rate based on clause (a) of the definition of Eurodollar Rate.
" Event of Default " has the meaning specified in Section 8.01 .
" Excluded Subsidiary " means Suttle-Straus, Inc.
" 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 Commissi on (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 Commodity Exchange Act (determined after giving effect to Section 10.2 3 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 Guaranty of such Guarantor becomes effective with respect to suc h 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 be comes 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 o n 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 Lendi ng Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Le nder 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 Sectio n 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 payable either to such Lender's assignor immediately before such Lend er became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient's failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
" Existing Credit Agreement " means that certain Credit Agreement, dated as of December 17, 2010 among the Borrower, Bank of America, N.A., as agent, and a syndicate of lenders, as amended.
" Existing U.S. Cellular Credit Agreement " means that that certain Credit Agre ement, dated as of December 17, 2010, among U.S. Cellular, Toronto Dominion (Texas) LLC as the administrative agent and a syndicate of lenders, as amended.
" FASB ASC " means the Accounting Standards Codification of the Financial Accounting Standards Board.
" FATCA " means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official inte rpretations thereof, any agreements entered into pursuant to Section 1471 (b) (1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementatio n of such Sections of the Code.
" FCC " means The Federal Communications Commission (or any successor agency, commission, bureau, department or other political subdivision) of the United States.
" Federal Funds Rate " means, for any day, the rate per annum equ al to the weighted average 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 the Business Day next succeedi ng such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Wells Fargo on such day on such transactions as determined by th e Administrative Agent.
" Fee Letter " means the letter agreement, dated April 15, 2016, among the Borrower, the Administrative Agent, and Wells Fargo Securities, LLC (the " Wells Fargo Fee Letter "), and any other fee letter agreement among the Borrower and a ny Arranger or Lender (or Affiliate of any Arranger or Lender), as applicable, and " Fee Letters " means all of such letters.
" Fitch " means Fitch Ratings, Inc., and any successor thereto.
" Fitch Rating " means, at any time, the rating issued by Fitch and then in effect with respect to the Borrower's senior unsecured long-term debt securities.
" Foreign Lender " means any Lender that is organized under the Laws of a jurisdiction other than the United States, each State thereof and the District of Columbia (including such a Lender when acting in the capacity of the L/C Issuer).
" FRB " means the Board of Governor s of the Federal Reserve System of the United States.
" Fronting Exposure " means, at any time there is a Defaulting Lender, (a) with respect to the L/C Issuer, such Defaulting Lender's Applicable Percentage of the outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lender's participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swing Line Lender, such Defaulting Lender's Applicable P ercentage of Swing Line Loans other than Swing Line Loans as to which such Defaulting Lender's participation obligation has been reallocated to other Lenders in accordance with the terms hereof.
" Fund " means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
" GAAP " means, except to the extent provided in Section 1.03 , generally accepted accou nting principles in the United States as in effect from time to time and set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Fin ancial 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 " mea ns the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity 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).
" Guarantee " means, as to any Person without duplication, (a) any payment obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness payable by another Person (the " primary obligor ") in any manner, whether directly or indirectly, and including any o bligation 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 the obligee in respec t 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 Lien), provided that t he term "Guarantee" shall not include endorsements for collection or deposit, in either case in the ordinary course of business, or customary and reasonable indemnity
obligations in effect on the Closing Date or entered into in connection with any acquis ition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary payment obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term " Guarantee " as a verb has a corresponding meaning.
" Guarantied Cash Management Agreement " means any Cash Management Agreement that is entered into by and between any Loan Party and any Cash Management Bank.
" Guarantied Hedge Agreement " means any Swap Contract permitted u nder Article VI or VII that is entered into by and between any Loan Party and any Hedge Bank.
" Guarantied Parties " means, collectively, the Administrative Agent, the Lenders, the L/C Issuer, the Hedge Banks, the Cash Management Banks, each co-agent or sub- agent appointed by the Administrative Agent from time to time pursuant to Section 9.05 .
" Guarantied Party Designation Notice " means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit I .
" 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 required to execute and deliver a Guaranty or guaranty supple ment pursuant to Section 6.13 ; provided that none of U.S. Cellular or the Excluded Subsidiary nor any of their Subsidiaries shall be a Guarantor and (b) with respect to (i) Obligations owing by any Loan Party or any Subsidiary of a Loan Party (other than t he Borrower) under any Swap Contract or any Cash Management Agreement and (ii) the payment and performance by each Specified Loan Party of its obligations under its Guaranty with respect to all Swap Obligations, the Borrower.
" Guaranty " means, collectively , the Guaranty made by the Guarantors in favor of the Guarantied Parties, substantially in the form of Exhibit J , together with each other guaranty and guaranty supplement delivered pursuant to Section 6.13 .
" 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 Borrower or any Subsidi ary of the CoBank Term Loan Facility or of the U.S. Cellular 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 the re is outstanding Pari Passu Guaranteed Indebtedness as of such date, all Guarantees of such Pari Passu Guaranteed Indebtedness shall be released substantially concurrently with the Guaranty Release Date).
" Guaranty Release Period " means any period commenc ing on the date on which a Guaranty Release Date occurs and ending on the date on which a Guaranty Trigger Event occurs.
" Guaranty Trigger Event " has the meaning specified in Section 6.13(b) .
" Hazardous Materials " means all explosive or radioactive substa nces 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 subs tances or wastes of any nature regulated pursuant to any Environmental Law.
" Hedge Bank " means any Person that, at the time it enters into a Swap Contract permitted under Article VI or VII , is the 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.
" Increase Effective Date " has the meaning specified in Section 2.14(d) .
" Indebtedness " means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agr eements or other similar instruments;
(b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price of property or services ( other than (A) trade accounts payable in the ordinary course of business and, in each case, not past du e for more than 120 days after the date on which such trade account payable was due (unless such trade account is the subject of a good faith dispute), and (B) any earn-out obligation until such obligation becomes a liability on the balance sheet of such P erson in accordance with GAAP);
(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), w hether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f) capital leases and Synthetic Lease Obligations;
(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any pa yment, in each case, solely to the extent such payment is required to be made in cash, in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involunt ary liquidation preference plus accrued and unpaid dividends;
(h) all obligations of such Person (i) to pay deferred compensation to employees, (ii) with respect to purchase price adjustments on acquisitions and (iii) to return customer deposits, bu t only in each case to the extent that any such obligation described in subsection (i), (ii) or (iii) preceding remains unpaid for more than 120 days after the date on which such obligation was to be paid (unless such obligation is the subject of a good fa ith dispute), and
(i) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include, without duplication, the Indebtedness of any partnership or joint venture (other than a jo int 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-reco urse 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 deem ed to be the amount of Attributable Indebtedness in respect thereof as of such date.
" Indemnified Taxes " means Taxes other than Excluded Taxes.
" Indemnitees " has the meaning specified in Section 10.04(b) .
" Information " has the meaning specified in Section 10.07 .
" Interest Payment Date " means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided , however , that if any Interest Period for a Eurodollar Rate Loan exceeds thre e months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, Septemb er and December and the Maturity Date.
" Interest Period " means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the 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:
(i) any Interest Period that wo uld otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar mont h 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 o ther acquisition of Equity Interests, debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or inte rest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
" IRS " means the United States Internal Revenue Service.
" ISP " means, with respect to any Letter of Credit, the "International Standby Practices 1998" published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).
" Issuer Documents " means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the L/C Issuer and t he Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating to such Letter of Credit.
" Joinder Agreement " means a Joinder Agreement to be executed by any new Lender in connection with an increase in commitments in accordance with Section 2.1 4 , in each case substantially in the form of Exhibit G or any other form approved by the Administrative Agent.
" Laws " means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative o rders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
" L/C Advance " means, with respect to each Lender, such Lender's funding of its participation in any L/C Borrowing in accordance with its Applicable Percentage.
" L/C Borrowing " means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Committ ed Borrowing.
" L/C Credit Extension " means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.
" L/C Issuer " means Wells Fargo in its capacity as issuer of Letters of Cr edit hereunder, or any successor issuer of Letters of Credit hereunder.
" L/C Obligations " means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amo unts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.06 . For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be "outstanding" in the amount so remaining avai lable to be drawn.
" Lender " has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lender.
" Lending Office " means, as to any Lender, the office or offices of such Lender described as such in suc h Lender's Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
" Letter of Credit " means any standby letter of credit issued hereunder.
" Letter of Credit Application " means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the L/C Issuer.
" Letter of Credit Expiration Date " means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).
" Letter of Credit Fee " has the meaning specified in Section 2.03(h) .
" Letter of Credit Sublimit " means an amount equal to $20,000,000. The Letter of Credit Sublimit is par t of, and not in addition to, the Aggregate Commitments.
" LIBOR " has the meaning specified in the definition of Eurodollar Rate.
" Lien " means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), char ge, 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 foregoing).
" Loan " means an extension of credit by a Lender to the Borrower under Article II in the form of a Committed Loan or a Swing Line Loan.
" Loan Documents " means this Agreement, the Guaranty, each Note, each Issuer Document, any agreement creating or perfecting rights in Cash Collateral pursuant to the provisions of Section 2.15 of this A greement, and the Fee Letters.
" Loan Parties " means, collectively, the Borrower and each Guarantor.
" Material Adverse Effect " means (a) a material adverse change in, or a material adverse effect upon, the financial condition or business of the Borrower a nd its Subsidiaries taken as a whole; or (b) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any Loan Document; or (c) a material impairment of the ability of the Guarantors, taken as a whole, or the Borrowe r, to perform their obligations under any Loan Document to which they are a party; or (d) a material adverse effect upon the legality, validity, binding effect or enforceability against the Guarantors, taken as a whole, or the Borrower, of any Loan Documen t to which they are a party.
" Material Domestic Subsidiary " means any direct Domestic Subsidiary of the Borrower that is a Material Subsidiary; provided that none of U.S. Cellular or the Excluded Subsidiary nor any of their Subsidiaries shall constitute 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 calculated in accordance with GAAP, and "Material Subsidiaries" means collectively each Material Subsidiary.
" Maturity Date " means June 15, 2021, provided , however , that , if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day .
" Minimum Collateral Amount " means, at any time, (a) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 103% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (b) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.15(a)(i) , (a)(ii) or (a)(iii) , an amount equal to 103% of the Outstanding Amount of all L/C Obligations, and (c) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.
" Moody's " means Moody's Investors Service, Inc. and any successor thereto.
" Moody's Rating " means, at any time, the rating issued by Moody's and then in effect with respect to the Borrower's senior unsecured long-term debt securities.
" Monetization Transaction " means, with respect to any Specified Equity Interests owned by the Borrower or any of its Subsidiaries, any transaction, agreement, device or arrangement (A) which results in the Borro wer or any Subsidiary receiving payments on account of entering into contractual or other similar obligations and granting rights in, to or with respect to such Specified Equity Interests, or (B) by which the Borrower or any Subsidiary hedges against price fluctuation with respect to such Specified Equity Interests.
" Multiemployer Plan " means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes or is obligated to make contribution s, 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 cas h and all other assets received in connection with such Disposition (including without limitation, any cash, cash equivalents, notes, and all other assets received, including by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise) over (b) the sum of (i) the principal amount of any Indebtedness that is secured by the applicable asset (so long as such security interest was not granted in anticipation of the Disposition of such asset) and that is required to be repaid in connection with such transaction (other than Indebtedness under the Loan Documents), (ii) the reasonable and customary out-of-pocket expenses incurred by the Borrower or such Subsidiary in connection with such transaction (including reasonable brokers' fe es or commissions, legal, accounting and other professional and transactional fees) and (iii) income taxes reasonably estimated to be actually payable within two years of the date of the relevant transaction as a result of any gain recognized in connection 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-Extension Notice Date " has the meaning specified in Section 2.03(b)(iii) .
" Non-Subsidiary Variable Interest Entity " means, at any time, a Variable I nterest Entity that is not a Subsidiary. Schedule 1.01 identifies the entities that are Non-Subsidiary Variable Interest Entities as of the date hereof.
" Note " means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit C .
" Obligations " means all advances to, and debts, liabilities, obligations, covenants and duties of any Loan Par ty arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Guarantied Cash Management Agreement or Guarantied Hedge Agreement, in each case whether direct or indirect (including those acquired by assumption), absolute or co ntingent, 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 St ates Department of the Treasury.
" 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 acquisitions that are identified with an existing and ongoing project of such Special Entity or Subsidiary.
" Organization Documents " means, (a) with respect to any corporation, the certificate or articles of incorporation and the b ylaws (or equivalent or comparable constitutive documents with respect to any non ‑ U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of 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 wi th its formation or organization 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, wi th respect to any Recipient, Taxes 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, perfor med its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
" Other Taxes " me ans 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 sec urity interest under, or otherwise 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 (i) with respect to Committed Loans and Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans and Swing Line Loans, as the case may be, occurring on s uch date; and (ii) with respect to any L/C Obligations on any date, the amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.
" Pari Passu Guaranteed Indebtedness " means the Indebtedness of the Borrower and the Subsidiary Guarantees thereof permitted by Section 7.03(h) .
" Participa nt " has the meaning specified in Section 10.06(d) .
" Participant Register " has the meaning specified in Section 10.06(d) .
" PBGC " means the Pension Benefit Guaranty Corporation.
" Pension Plan " means any "employee pension benefit plan" (as such term is define d 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 con tribute, 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, joint venture, association, company, partnership, Governmental Authority or other entity.
" Plan " means any "employee benefit plan" (as such term is defined in Section 3(3) of ERISA) established by the Borrower or, with respect to any such p lan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
" Platform " has the meaning specified in Section 6.02 .
" Prepayment Notice " means a notice of prepayment of Committed Loans pursuant to Section 2.05(a) , which shall be substantially in the form of Exhibit 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 Responsible Officer of the Borrower.
" Prime Rate " means the rate of interest in effect for such day as publicly announced from time to time by Wells Fargo as its "prime rate." The "prime rate" is a rate set by Wells Fargo based u pon various factors including Wells Fargo's costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such r ate announced by Wells Fargo shall take effect at the opening of business on the day specified in the public announcement of such change.
" Pro Forma Basis " means, for purposes of calculating Consolidated EBITDA for any period during which one or more Speci fied Transactions occurs, that such Specified Transaction (and all other Specified Transactions that have been consummated during the applicable period) shall be deemed to have occurred as of the first day of the applicable period of measurement and all in come statement items (whether positive or negative) attributable to the property or Person disposed of in a Specified Disposition shall be excluded and all income statement items (whether positive or negative) attributable to the property or Person acquire d in a Specified Acquisition shall be included (provided that such income statement items to be included are reflected in financial statements or other financial data reasonably acceptable to the Administrative Agent and based upon reasonable assumptions a nd calculations which are expected to have a continuing impact).
" Public Lender " has the meaning specified in Section 6.02 .
" Qualified ECP Guarantor " shall mean, at any time, each Loan Party with total assets exceeding $10,000,000 or that qualifies at su ch time as an "eligible contract participant" under the Commodity Exchange Act and can cause another person to qualify as an "eligible contract participant" at such time under §1a(18)(A)(v)(II) of the Commodity Exchange Act.
" Receivables Securitization " me ans any secured lending or other financing facility entered into by a Securitization Entity solely for the purpose of purchasing or financing Securitization Assets of U.S. Cellular 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 Guar anty) 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 Securitiza tion 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, inclu de Standard Securitization Undertakings) neither the Borrower nor any of its other Subsidiaries is required to make additional Investments in connection with such facility, (iv) none of the Borrower or any other Subsidiary has any material contract, agreem ent, arrangement or understanding with such Securitization Entity (except pursuant to Standard Securitization Undertakings or the Recourse Guaranty), (v) neither the Borrower nor any of its Subsidiaries (except such Securitization Entity) has any obligatio n to maintain such Securitization Entity's financial condition or cause such Securitization Entity to achieve certain levels of operating results, and (vi) no Event of Default exists as of the effective date of such secured lending or other financing facil ity. 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 Enti ty by the Board of Directors of U.S. Cellular and (b) certifying that such Receivables Securitization complies with the foregoing conditions.
" Recipient " means the Administrative Agent, any Lender, the L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Loan Party hereunder.
" Recourse Guaranty " means any general recourse guarantee by U.S. Cellular or any of its Subsidiaries of Indebtedness pursuant to a Receivables Securitization, which guarantee is either u nsecured or secured solely by a pledge of the Equity Interests of the Securitization Entity that is a party to such Receivables Securitization, and only to the extent such guaranty is permitted by the U.S. Cellular Credit Agreement.
" Register " has the mean ing specified in Section 10.06(c) .
" Related Parties " means, with respect to any Person, such Person's Affiliates and the partners, directors, officers, employees, agents, trustees, advisors and representatives of such Person and of such Person's Affiliates .
" Reportable Event " means any of the events set forth in Section 4043(c ) of ERISA, other than events for which the 30 day notice period has been waived.
" Request for Credit Extension " means (a) with respect to a Borrowing, conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.
" Required Lenders " means, as of any date of determination, Lenders having more than 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligation of the L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 , Lenders holding in the aggregate more tha n 50% of the Total Outstandings (with the aggregate amount of each Lender's risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed "held" by such Lender for purposes of this definition); provided that the Commitmen t 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 President and Chief Executive Officer, Senior Vice P resident – Finance and Chief Accounting Officer, Senior Vice President – Finance and Treasurer, Vice President and Assistant Treasurer, Chief Accounting Officer, Vice President and Controller or Assistant Secretary of the Borrower or the chairman, presiden t, chief executive officer, chief financial officer, chief accounting officer, treasurer, controller, secretary or any vice president of the applicable Loan Party and, solely for purposes of notices given pursuant to Article II , any other officer or employ ee of the Borrower so designated by any two of the foregoing 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 Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Off icer shall be conclusively presumed to have acted on behalf of such Loan Party.
" Restricted Payment " means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Borrower or any Subsidi ary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interest, or on account of any re turn of capital to the Borrower's stockholders, partners or members (or the equivalent Person thereof).
" Revolving Credit Exposure " means, as to any Lender at any time, the aggregate principal amount at such time of its outstanding Committed Loans and such Lender's participation in L/C Obligations and Swing Line Loans at such time.
" S&P " means Standard and Poor's Rating Services, a Standard & Poor's Financial Services LLC business, and any successor thereto.
" S&P Rating " means, at any time, the rating issue d 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 financial sanctions or trade embargoes imposed, administered or enforced by the United States Government (including without li mitation, OFAC), the United Nations Security Council, the European Union, Her Majesty's Treasury (" HMT ") or other relevant sanctions authority.
" SEC " means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its princ ipal functions.
" Securitization Assets " means accounts receivable of U.S. Cellular or any of its Subsidiaries arising from equipment installment plans and other similar consumer equipment financing arrangements, and any assets related thereto including, wi thout 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, o r in respect of which security interests are customarily granted, in connection with securitizations involving such accounts receivable.
" Securitization Entity " means, as to U.S. Cellular, 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 U.S. Cellular or any of its Subsidiaries for the sole and exclusive purpose of purchasing or financing Securitization Asse ts pursuant to a Receivables Securitization and which is designated by the Board of Directors of U.S. Cellular 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 any Subsidiary has made an equity Investment and directly or ind irectly 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 Administrative Agent of the creation of such Special Entity and its d esignation as a Special Entity.
" Specified Acquisition " means (a) any acquisition for consideration equal to or greater than $50,000,000 or (b) any other acquisition designed as a "Specified Acquisition" by the Borrower in the applicable Compliance Certifi cate.
" Specified Disposition " means (a) any Disposition having gross sales proceeds equal to or greater than $50,000,000 or (b) any other Disposition designed as a "Specified Disposition" by the Borrower in the applicable Compliance Certificate.
" Specified Equity Interests " means Equity Interests owned by the Borrower or any of its Subsidiaries in any Person or Persons that (i) are not directly, or indirectly through one or more intermediaries, Controlled by the Borrower or by any of its Subsidiaries and (i i) 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 Specified Disposition and (b) any Specified Acquisition.
" St andard Securitization Undertakings " means representations, warranties, covenants, indemnities and other obligations, including with respect to servicing obligations (provided that, in no event shall any such obligations constitute Indebtedness) made or pro vided by U.S. Cellular or any of its Subsidiaries 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 negot iated at arm's length with an unaffiliated third party; provided that any such undertaking by and between U.S. Cellular or any of its Subsidiaries and a Securitization Entity shall be excluded from the requirement in this clause (b) if (i) clause (a) is sa tisfied and (ii) such undertaking is in connection with a Receivables Securitization involving an unaffiliated third party.
" Subsidiary " of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of whic h 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 th e 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" sh all 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 Cont ract " means (a) any and all rate swap transactions, basis swaps, credit 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 forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-cur rency 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 s ubject 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 Agreement, 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 Ag reement.
" Swap Obligations " means with respect to any Guarantor any obligation to pay or perform under any agreement, contract or transaction that constitutes a "swap" within the meaning of Section 1a(47) of the Commodity Exchange Act.
" Swap Termination V alue " means, in respect of any one or more Swap Contracts, after taking 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 termination value(s), and (b) for any date prior to the date referenced in subsection (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based u pon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).
" Swing Line Borrowing " means a borrowing of a Swing Line Loan pursuant to S ection 2.04 .
" Swing Line Lender " means Wells Fargo in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.
" Swing Line Loan " has the meaning specified in Section 2.04(a) .
" Swing Line Loan Notice " means a notice of a S wing Line Borrowing pursuant to Section 2.04(b) , which shall be substantially in the form of Exhibit B or any other form approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approv ed by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
" Swing Line Sublimit " means an amount equal to the lesser of (a) $25,000,000 and (b) the Aggregate Commitments. The Swing Line Sublimit is part o f, and not in addition to, the Aggregate Commitments.
" Synthetic Lease Obligation " means the monetary obligation of a Person in connection with a transaction that is (a) treated and accounted for as a lease in the financial statements of such Person but (b ) treated and accounted for as indebtedness in the tax statements of such Person, but in any case which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
" Taxes " means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties appl icable 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 Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended.
" Total Outstandings " means the aggregate Outstanding Amount of all Loans and all L/C Obligations.
" Type " means, with respect to a Committed Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.
" Unfunded Pension Liability " means the excess of a Pension Plan ' s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan ' s asset s, 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.
" Unreimbursed Amount " has the meaning specifi ed in Section 2.03(c)(i) .
" U.S. Cellular " means United States Cellular Corporation.
" U.S. Cellular Credit Agreement " means that that certain Credit Agreement, dated as of June 15, 2016, among U.S. Cellular, Toronto Dominion (Texas) LLC as the administrativ e 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.
" Variable Interest Entity " means any variable interest entit y that the Borrower is required to consolidate at any 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 tha t are Variable Interest Entities that are Subsidiaries as of the date hereof.
" Wells Fargo " means Wells Fargo Bank, National Association, and its successors.
" 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 Subsidiaries of such P erson.
" 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.
shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise 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 P erson's successors and assigns, (iii) the words " hereto, " " herein ," " hereof " and " hereunder ," and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to an y law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or su pplemented from time to time, and (vi) the words " asset " and " property " shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract righ ts.
giving effect to such change in GAAP. Not withstanding any other provision to the contrary herein, upon notice from the Borrower to the Administrative Agent, all terms of an accounting or financial nature herein shall be construed, and all computations of amounts and ratios referred to herein shal l be made, without giving effect to any changes to, or modification of GAAP with respect to FASB ASC 840-20 which will require the capitalization of leases characterized as "operating leases" as of the Closing Date (or would be so characterized if such lea se had been in effect on the Closing Date).
notice to the Lenders of such request and determine whether the requ ested 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 telephon e) whether or not the requested Interest Period has been consented to by all the Lenders. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess th ereof. Except as provided in Sections 2.03(c) and 2.04(c) , 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 thereof. 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 dura tion 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 conversion 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 applicable Eurodollar Rate Loans. If the Borrower r equests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.
and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as the L/C Issuer or the Administrative Agent may reasonably require.
Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitu te an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03 .
possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any tr ansferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or
The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it (at the time of delivery) and, in the event of any claim of noncompliance with the Borrower ' s instructions or other irregularity, the Borrower will immediately notify the L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against the L/C Issuer and its correspondents unless such notice is given as aforesaid. Notwithstanding anything to the contrary, the foregoing shall not excuse any L/C Issuer from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claim s in respect of which are waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are caused by such L/C Issuer's gross negligence or willful misconduct when determining whether drafts and other documents presented u nder a Letter of Credit comply with the terms thereof.
fraud or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document o r instrument related to any Letter of Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , however , that this assumption is no t intended to, and shall not, preclude the Borrower ' s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuer, the Administrative Agent, any of their respective Rel ated Parties nor any correspondent, participant or assignee of the L/C Issuer shall be liable or responsible for any of the matters described in subsections (i) through (v) of Section 2.03(e) ; provided , however , that anything in such subsections to the con trary notwithstanding, the Borrower may have a claim against the L/C Issuer, and the L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves were caused by the L/C Issuer's willful misconduct, bad faith, fraud or gross negligence or the L/C Issuer's willful or grossly negligent failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer may accept documents that appear on their face to be in order, without responsi bility for further investigation, regardless of any notice or information to the contrary, and the L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. The L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via th e Society for Worldwide Interbank Financial Telecommunication ("SWIFT") message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.
Loan in an amount equal to the pr oduct of such Lender's Applicable Percentage times the amount of such Swing Line Loan.
subject to Section 2.04(c)(ii) , each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.
prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Period(s) of such Loans. Notwithstanding anything to the contrary conta ined in this Agreement, the Borrower may rescind or postpone any Prepayment Notice under this Section 2.05(a) if such prepayment would have resulted from a refinancing of this Agreement, which refinancing shall not be consummated or otherwise shall be dela yed (subject to payment by the Borrower of amounts owed under Section 3.05 occurring as a result of such notice).
any such notice shall be received by the Administrative Agent not later than 11:00 a.m. five Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Borrower shall not t erminate or reduce the Aggregate Commitments if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving effect to any reduction of the Aggregate Comm itments, the Letter of Credit Sublimit or the Swing Line Sublimit exceeds the amount of the Aggregate Commitments, such Sublimit shall be automatically reduced by the amount of such excess. The amount of any such Commitment reduction shall not otherwise b e applied to the Letter of Credit Sublimit or the Swing Line Sublimit unless otherwise specified by the Borrower. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of termination of the Commitments if such termination would ha ve resulted from a refinancing of this Agreement, which refinancing shall not be consummated or otherwise shall be delayed (subject to payment by the Borrower of amounts owed under Section 3.05 occurring as a result of such notice).
shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.
rec ords. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.
Agent such Lender's share of such Committed Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans, t hat such Lender has made such share available in accordance with and at the time required by Section 2.02 ) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made it s share of the applicable Committed Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the F ederal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Adm inistrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Committed Borrowing to the Administrative Agent, then the amount so paid shall constit ute such Lender's Committed Loan included in such Committed Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
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.
the foregoing provisions of this Article II , and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrat ive Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
the Borrower or any Subsidiary thereof (as to which the provisions of this Section shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may effecti vely 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 dire ct creditor of the Borrower in the amount of such participation.
(ii) in the case of the Borrower, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and t he other Loan Documents are true and correct in all material respects (or, to the extent any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect", shall be true and correct in all respects) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or, to the extent any such representation or warranty is qualified as to "materiality" or "Material Adverse Effect", shall be true and correct in all respects) as of such earlier date, and except that for purposes of this Section 2.14 , the representations and warranties contained in subsections (a) and (b) of Section 5.05 shal l be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 , and (B) no Default exists. The Borrower shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay a ny additional amounts required pursuant to Section 3.05 ) to the extent necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section.
herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administ rative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in interest bearing blocked accounts at Wells Fargo determined in the reasonable discretion of Wells Fargo, which may be invested in readily available cash equivalents at the discretion of the Administrative Agent. The Borrower shall pay within 10 Business Days after demand therefor from time to time all customary and reasonable account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.
Defaulting Lender pursuant to Section 10.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first , to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the L/C Issuer or Swing Line Lender hereunder; third , to Cash Collateralize the L/C Issuer's Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.15 ; fourth , as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth , if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender's potential future funding obligations with respect to L oans under this Agreement and (y) Cash Collateralize the L/C Issuer's future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.15 ; sixth , to the payme nt of any amounts owing to the Lenders, the L/C Issuer or Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the L/C Issuer or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement; seventh , so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender's breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) su ch payment is a payment of the principal amount of any Loans or L/C Borrowings in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when t he conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and L/C Obligations owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, o r L/C Obligations owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in L/C Obligations and Swing Line Loans are held by the Lenders pro rata in accordance with the Commitments hereunder without giving effec t to Section 2.16(a)(iv) . Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.16(a)(ii) shall be deem ed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
fee that otherwise would have been required to have been paid to that Defaulting Lender).
therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent appl icable, 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 and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held on a pro rata basis by the Lenders in accordance with their Applicable Percentages (without giving effect to Section 2.16(a)(iv) ), 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 hereunder arising from that Lender's having been a Defaulting Lender.
any payment, then (A) such Loan Party 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 timel y 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 account of Indemnified Taxes, the sum payable by the applicable Loan Party sh all 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 Section) the applicable Recipient receives an amount equal to the sum it wo uld have received had no such withholding or deduction been made.
maintenan ce of a Participant Register and ( z ) the Administrative Agent and the Loan Parties, as applicable, against any Excluded Taxes attributable to such Lender or the L/C Issuer, in each case, that are payable or paid by the Administrative Agent or a Loan Party in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be prima facie evidence thereof. Each Lender and the L/C Issuer hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to su ch Lender or the L/C Issuer, as the case may be, under this Agreement or any other Loan Document against any amount due to the Administrative Agent under this subsection (ii). The agreements in this subsection (ii) shall survive the resignation and/or rep lacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender or the L/C Issuer, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all other Obligations.
subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
( C ) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrativ e Agent), executed copies (or originals, if required by applicable law) of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary d ocumentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting 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 prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentat ion prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrativ e 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), "FA TCA" shall include any amendments made to FATCA after the date of this Agreement.
and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Eurodollar Rate Loan (or of maintaining its obl igation to make any such Loan), or to increase the cost to such Lender or the L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of
maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or the L/C Issuer hereunder (whether of principal, interest or any other amount) then, within fifteen days after demand by such Lender or the L/C Issuer setting forth in reasonable detail such inc reased 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 Section 3.06 ), the Borrower will pay to such Lender or the L/C Issue r, as the case may be, such additional amount or amounts as will compensate such Lender or the L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.
giving rise to such increased costs or reductions and of such Lender's or the L/C Issuer's intention to claim compensation therefor (except that, if the Ch ange in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).
including any loss (other than loss of anticipated profits) or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. The Borrower shall also pay any reasonable and customary administrative fees charged by such Lender in connection with the foregoing.
For purposes of calculating 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 borrowing in the London interbank eurodollar market for a comparable amount and for a comparable period, wh ether or not such Eurodollar Rate Loan was in fact so funded.
otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to the Administrative Agent and each of the Lenders:
Responsible Officer that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect ;
Without limiting the generality of the prov isions of the last paragraph of Section 9.03 , for purposes of determining compliance with the conditions specified in this Section 4.01 , each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfie d with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Each Request for Credit Extension (other than a Committed Loan Notice requestin g only a conversion of Committed Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.
The Borrower represents and warrants to the Administrative Agent and the Lenders that:
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfie d, or any Letter of Credit shall remain outstanding, the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01 , 6.02 , and 6.03 ) cause each Subsidiary to:
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 flows of the Borrower and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes .
any applicable non-U.S. jurisdiction) concerning any investigation by the enforcement divisi on of such agency regarding financial or other operational results of the Borrower or any Subsidiary; and
Information required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) (to the extent any such information is included in materials oth erwise 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 provides a link thereto on the Borrower's website on the Internet at the w ebsite address listed on Schedule 10.02 ; or (ii) on which such documents are posted on the Borrower's behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party websit e 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 the Administrative Agent (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions ( i.e. , soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Borrower shall be required to provide paper or pd f 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 obligation to request the delivery or to maintain copies of the documents refe rred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
Th e Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuer materials and/or information provided by or on behalf of the Borrower hereunder (collectively, " Borrower Materials ") by posting the Borrower Materials on IntraLinks or another similar confidential and secure electronic system (the " Platform ") and (b) certain of the Lenders (each, a " Public Lender ") may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons' securities. All Borrower Materials tha t 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 available 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 have authorized the Administrative Agent, the Arrangers, the L/C Issuer 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 ex tent such Borrower Materials
constitute Information, they shall be treated as set forth in Section 10.07 ); (y) all Borrower Materials marked "PUBLIC" are permitted to be made available through a portion of the Platform designated "Public Side Information ;" and (z) the Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are not marked "PUBLIC" as being suitable only for posting on a portion of the Platform that is not designated "Public Side Information." Notwiths tanding 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 Re sponsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto, if any. Each notice pursuant to Section 6.03(a) shall describe with par ticularity any and all provisions of this Agreement and any other Loan Document that have been breached, if any.
formation or acquisition of a Material Domestic Subsidiary, including pursuant to a merger or Investment permitted by the provisions of this Agreement and (B) the Disposition of a Material Subsidiary, including pursuant to a sale, merger, dissolution, liquidation, consolidation or other Disposition, and
So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:
terms of) the U.S. Cellular Credit Agreement and (ii) other unsecured Indebtedness that is permitted to be incurred by U.S. Cellular or any of its Subsidiaries under the terms of the U.S. Cellular Credit Agreement, provided , such Indebtedness is not Guara nteed by any Subsidiary of U.S. Cellular unless such Guaranty is permitted pursuant to clause (b) or (h) Section 7.03 of the U.S. Cellular Credit Agreement (or any successor comparable provisions);
Person shall be the Guarantor or shall become a Guarantor concurrently with such transaction and (y) when any wholly-owned Subsidiary is merging with another Su bsidiary, the continuing or surviving Person shall be the wholly-owned Subsidiary or shall become a wholly-owned Subsidiary concurrently with such transaction;
shall have agreed to sell such assets in an arm's length transaction to an independent third party buy er which is not an Affiliate) and (iv) such Disposition (or series of Dispositions) shall not be of all or substantially all of the assets of the Borrower, the Borrower and its Subsidiaries may make any Disposition (except Dispositions pursuant to this sub section (e) to (x) the Excluded Subsidiary and any of its Subsidiaries, and (y) a Securitization Entity and any of its Subsidiaries are not permitted unless 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, (i) each such Disposition shall be, in Borrower's commercially reasonable judgment, for fair market value and (ii ) the Borrower shall not, nor shall any Subsidiary, Dispose of, transfer or sell any Equity Interests in U.S. Cellular if such sale, Disposition or transfer could result in the Borrower either (A) controlling less than 50.1% of the voting interests of U.S. Cellular, or (B) not being required by GAAP to include U.S. Cellular in its consolidated financials.
Subsidiary of the Borrower to secure all or a portion of the Obligations; provided , however , that the foregoing clauses (i) and (ii) shall not prohibit any Contractual Obligations that:
Notwithstanding the foregoing, neither the Borrower nor any of its Subsidiaries shall have any duty to comply with the requir ements set forth in clause (a)(ii) above during a Guaranty Release Period.
Ratios |
|
From the Closing Date through June 30, 2019 |
3.25 to 1.00 |
From July 1, 2019 and thereafter |
3.00 to 1.00 |
demanded or to become 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 state d 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 su ch Swap Contract as to which the Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Borrower or any Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Borrower or such Subsidiary as a result thereof is greater than the Threshold Amount (unless such Swap Contract is in connection with a Monetization Transaction for which the Swap Te rmination Value may be satisfied by the delivery of the underlying Specified Equity Interests related to such Monetization Transaction); or
liability of the Borrower under Title IV of ERISA to the Pensi on Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect t o its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; 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 obliga tion of each Lender to make Loans and any obligation of the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically bec ome due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.
First , to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (excluding principal and interest but including fees, charges and disbursements of counsel to the Administrative Agent to the extent the Borrower is obligated to reimburse such amounts in accordance with the Loan Documents and amounts payable under Article III ) payable to the Administrative Agent in its capacity as such;
Second , to payment of that port ion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuer (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuer to the extent the Borrower is 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 payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the L/C Issuer in proportion to the r espective 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 L/C Borrowings and Obligations then owing under Guarantied Hedge Agreements and Guara ntied Cash Management Agreements, ratably among the Lenders, the L/C Issuer, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this subsection Fourth held by them;
Fifth , to the Administrative Agent for the account of the L/C Issuer, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit to the extent not otherwise Cash Collateralized by the Borrower pursuant to Sections 2.03 and 2.15 ; and
Last , the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to Sections 2.03(c) and 2.15 , amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Cred it pursuant to subsection Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining
amount shall be applied to the other Obligations, if any, in the order set forth above and, if no Obligations remain outstanding, to the Borrower, as applicable.
Notwithstanding the foregoing, Obligations arising under Guarantied Cash Management Agreemen ts and Guarantied Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received a Guarantied Party Designation Notice, together with such supporting documentation as the Administrative Agent may reques t, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article IX hereof for itself and its Affiliates as if a "Lender" party hereto.
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 other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02 ) or (ii) in the absence of its own gross negligence, bad faith, fraud or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given in writing to the Administrative Agent by the Borrower, a Lender or the L/C Issuer.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreemen t 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 a ny condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
Any resignation by Wells Fargo as Administrative Agent pursuant to this Section shall also constitute its resignation as L/C Issuer and Swing Line Lender. If Wells Fargo resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective d ate of its resignation as L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk participations pursuant to Section 2.03(c) . If Wells Fargo resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c) . Upon the acceptance of a successor's appointment as a L/C Issuer or Swing Line Lender hereunder, (a) such successor shall succeed to and become vested with all of the rights , powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as applicable, (b) the retiring L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Docu ments, and (c) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of the retiring L/C Issuer with respect to such Letters of Credit.
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and the L/C Issuer to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuer, to pay to the Administrative Agent any amount due for the reasonable compensation , expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.09 and 10.04 .
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or the L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or the L/C Issuer to authorize the Administrati ve Agent to vote in respect of the claim of any Lender or the L/C Issuer in any such proceeding.
and, provided further , that (i) no amendment, waiver or consent sh all, unless in writing and signed by the L/C Issuer in addition to the Lenders required above, affect the rights or duties of the L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this Agreement; (iii) no amendment, waiver or consent shall, unl ess in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (iv) either of the Fee Letters may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, exce pt that the Commitment of such Lender
may not be increased or extended without the consent of such Lender (it being understood that any Commitment or Loans held or deemed held by any Defaulting Lender shall be excluded for a vote of the Lenders hereunder requiring any consent of the Lenders, except increasing such Defaulting Lender's Commitment or extending date fixed hereunder for payment).
Notwithstanding the foregoing or any other provision in this Agreement or any other Loan Document to the contrary, if the Administrative Agent and the Borrower identify any ambiguity, omission, mistake, typographical error, inconsistency or other defect in any provision of this Agreement or any other Loan Document, then the Administrative Agent and the Borrower are pe rmitted to amend, modify or supplement such provision to cure such ambiguity, omission, mistake, typographical error, inconsistency or other defect; provided that , no such agreement shall amend, modify or otherwise affect the rights or duties of the Admini strative Agent, the Swing Line Lender or the L/C Issuer hereunder without the prior written consent of the Administrative Agent, the Swing Line Lender or the L/C Issuer, as the case may be.
Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices and other communications delivered through electronic
communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail ad dress shall be deemed received upon the sender's receipt of an acknowledgement from the intended recipient (such as by the "return receipt requested" function, as available, return e-mail or other written acknowledgement), provided that if such notice or o ther 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 poste d to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing subsection (i) of notification that such notice or communication is available and identifyin g 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 busines s day for the recipient.
are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence, bad faith, fraud or willful misconduct of such Agent Party; provided , however , that in no event shall any Agent Party have any liability to the Borrower, any Lender, the L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as o pposed to direct or actual damages).
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 s hall be vested exclusively in, and all actions and proceedings at Law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders and the L/C Issuer; provided , however , that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) the L/C Issuer or the Swing Line Lender from exercising the rights and remedies that inure to its benefit (solely in its capacity as L/C Issuer or Swing Line Lender, as the case may be) hereunder and under the other Loan Documents , (c) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.13 ), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding r elative 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 2.13 , any Lender may, with the consent of the Required Lenders, enfo rce any rights and remedies available to it and as authorized by the Required Lenders.
this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out ‑ of ‑ pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.
affecting the Borrower's reimbursement obligations hereunder , each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), the L/C Issuer, the Swing L ine Lender or such Related Party, as the case may be, such Lender's Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or i ndemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent), the L/C Issuer or the Swing Line Lender in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent), L/C Issuer or the Swing Line Lender in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Sect ion 2.12(d) .
in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is deliv ered 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 cont inuing, 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 of 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.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender sha ll retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Partic ipant, 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 each Participant shall be entitled to the benefits of Sections 3.01 , 3.04 and 3.05 to the s ame extent as if it were a Lender and had acquired its interest
by assignment pursuant to subsection (b) of this Section (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participati on) ; 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 Section and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04 , with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, unless the sale of the participation to such Participant is made with the Borrower's prior written consent . A Part icipant 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 respec t to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.13 as though it were a Lender. Eac h Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Part icipant's interest in the Loans or other obligations under the Loan Documents (the " Participant Register "); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Particip ant or any information relating to a Participant's interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitmen t, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Pe rson 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 Administrati ve Agent) shall have no responsibility for maintaining a Participant Register.
hereunder; provided , however , that no failure by the Borrower to appoint any such successor shall affect the resignation of Wells Farg o as L/C Issuer or Swing Line Lender, as the case may be. If Wells Fargo resigns as L/C Issuer, it shall retain all the rights, powers, privileges and duties of the L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c) ). If Wells Fa rgo resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Le nders to make Base Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c) . Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Wells Fargo to effectively assume the obligations of Wells Fargo with respect to such Letters of Credit.
For purposes of this Section, " Information " means al l information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a no nconfidential 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 Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person ha s exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agent, the Lenders and the L/C Issuer acknowledges that (a) the Informatio n 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 infor mation in accordance with applicable Law, including United States Federal and state securities Laws.
NOTICES IN SECTION 10.02 . NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS I N ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. |
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TELEPHONE AND DATA SYSTEMS, INC. |
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By: |
/s/ Peter L. Sereda |
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Peter L. Sereda |
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Senior Vice President – Finance and Treasurer |
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By: |
/s/ John M. Toomey |
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John M. Toomey |
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Vice President and Assistant Treasurer |
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WELLS FARGO BANK, NATIONAL ASSOCIATION |
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as Administrative Agent |
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By: |
/s/ S. Michael St. Geme |
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Name: |
S. Michael St. Geme |
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Title: |
Managing Director |
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WELLS FARGO BANK, NATIONAL ASSOCIATION |
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as a Lender, L/C Issuer and Swing Line Lender |
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By: |
/s/ S. Michael St. Geme |
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Name: |
S. Michael St. Geme |
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Title: |
Managing Director |
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TORONTO-DOMINION BANK, NEW YORK BRANCH,
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as a Lender |
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By: |
/s/ Savo Bozic |
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Name: |
Savo Bozic |
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Title: |
Authorized Signatory |
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U.S. BANK NATIONAL ASSOCIATION,
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as a Lender |
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By: |
/s/ Eugene Butera |
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Name: |
Eugene Butera |
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Title: |
Assistant Vice President |
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ROYAL BANK OF CANADA,
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as a Lender |
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By: |
/s/ Alexander Oliver |
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Name: |
Alexander Oliver |
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Title: |
Authorized Signatory |
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CITIBANK, N.A.,
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as a Lender |
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By: |
/s/ Michael Vondriska |
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Name: |
Michael Vondriska |
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Title: |
Vice President |
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THE BANK OF NEW YORK MELLON,
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as a Lender |
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By: |
/s/ William M. Feathers |
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Name: |
William M. Feathers |
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Title: |
Vice President |
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THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,
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as a Lender |
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By: |
/s/ Ola Anderssen |
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Name: |
Ola Anderssen |
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Title: |
Director |
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THE NORTHERN TRUST COMPANY, |
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as a Lender |
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By: |
/s/ Murtuza Ziauddin |
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Name: |
Murtuza Ziauddin |
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Title: |
Vice President |
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THE PRIVATEBANK AND TRUST COMPANY, |
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as a Lender |
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By: |
/s/ Matthew Berman |
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Name: |
Matthew Berman |
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Title: |
Associate Managing Director |
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
Graphic Arts Alliance LLC
GTE Mobilnet of Indiana Limited Pa
rtnership
Jefferson Cellular Telephone Company, Inc.
Los Angeles SMSA Limited Partnership
Madison SMSA Tower Holdings LLC
MGW Communications, Inc.
Milwaukee SMSA Limited Partnership
Milwaukee SMSA Tower Holdings LLC
New Paris Telephone
, Inc.
New York Access Billing LLC
Northwest Minnesota Special Access LLC
Oklahoma City SMSA Limited Partnership
Oklahoma City SMSA Tower Holdings LLC
Pennsylvania RSA 1 Limited Partnership
Pennsylvania RSA No. 6(I) Limited Partne
rship
Pennsylvania RSA No. 6(II) Limited Partnership
Redding MSA Limited Partnership
Relay Ventures Parallel Fund III LP
Solix, Inc.
Texas RSA 6 Limited Partnership
Texas RSA 6 Tower Holdings, LP
Venus Cellular Telephone Compa
ny, Inc.
Volcano Communications Company
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
____________________
(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 entity was a va riable 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 Variable Interest En tities 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
Commitment |
Applicable Percentage |
|
Wells Fargo Bank, National Association |
46,040,816.40 |
11.510204100% |
The Toronto-Dominion Bank, New York Branch |
46,040,816.40 |
11.510204100% |
CoBank, ACB |
46,040,816.40 |
11.510204100% |
U.S. Bank National Association |
46,040,816.40 |
11.510204100% |
Royal Bank of Canada |
46,040,816.40 |
11.510204100% |
Citibank, N.A. |
44,081,632.28 |
11.020408070% |
The Bank of New York Mellon |
34,285,714.29 |
8.571428571% |
SunTrust Bank |
28,571,428.57 |
7.142857143% |
The Bank Of Tokyo-Mitsubishi UFJ, LTD. |
28,571,428.57 |
7.142857143% |
The Northern Trust Company |
20,000,000.00 |
5.000000000% |
The PrivateBank and Trust Company |
14,285,714.29 |
3.571428571% |
Total |
400,000,000.00 |
100.000000000% |
SUPPLEMENT TO INTERIM FINANCIAL STATEMENTS
(1) Certain Subsidiaries of Borrower have guaranteed the obligations of Borrower under the subject $400,000,000 Revolving Credit Agreement.
(2) Certain Subsidiaries of U.S. Cellular have guaranteed the obligations of U.S. Cellular under the U.S. Cellular $300,000,000 Revolving Credit Agreement with Toronto Dominion (Texas) LLC, as administrative agent, and the other financial institutions that are parties thereto.
(3) Certain Subsidiaries of U.S. Cellular have guaranteed the obligations of U.S. Cellular under the U.S. Cellular Term Loan with CoBank.
(4) Certain Subsidiaries of Borrower have surety bonds, the value of which at April 30, 2016 is $27,236,000.
(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 $1,324.0 million under operating leases that are not on the balance sheet. There has not been a material change in such obligations since Dec ember 31, 2015. This includes future lease costs related to office space, retail sites, cell sites and equipment.
(6) 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 $1,306.1 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 for 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 marke ting 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 fi scal year ended December 31, 2015 should no longer be included as Subsidiaries:
TDS Communications Solutions, Inc.
VISI Incorporated
TEAM Des Moines Partners, LLC
TEAM Madison Partners, L.L.C.
Vital Support Systems, LLC
MSN Communications, Inc.
The following companies’ names have changed:
TDS Telecom Service Corporation converted to a limited liability company and changed its name to TDS Telecom Service, LLC
TEAM Technologies, LLC changed its name to OneNeck Data Center Holdings, LLC
The following companies should be added to the list of Subsidiaries identified on Exhibit 21 to the Borrower's 10-K for the fiscal year ended December 31, 2015:
None
The Borrower indirectly owns less than 100% of the following subsidiaries listed on Exhibit 21 to the Borrower's 10-K for the fiscal year ended December 31, 2015:
Bangor Cellular Telephone, L.P.
(1)
– 97.5723% interest
Cedar Rapids Cellular Telephone, L.P.(1) – 96.7636% interest
Community Cellular Telephone Company – 61.36% interest
Dubuque Cellular Telep
hone, L.P.(1) – 97.5515% interest
Jacksonville Cellular Partnership – 97.567257% interest
Jacksonville Cellular Telephone Company - 97.567257% interest
Kenosha Cellular Telephone, L.P.(1) – 99.3223%
Madison Cellular Telephone Company – 92.5% interest
New Y
ork 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 Partn
ership(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 Sub sidiary 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% interest
Farmers Cellular Telephone Company, Inc. – 49% interest
Farmers Mutual Cellular Telephone Company, Inc. – 49% interest
Fresno MSA Limited Partnership – 1.9% interest
Graphic Art
s Alliance LLC – 5.788219% interest
GTE Mobilnet of Indiana Limited Partnership – 2.428946% interest
Iowa RSA No. 9 Limited Partnership
(3)
– 15.001% interest
Iowa RSA No. 12 Limited Partnership
(3)
– 24.5% interest
Jefferson Cellular Telephone Company, In
c. – 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
MGW Communications, Inc. – 17.078% interest
Milwaukee SMSA Limited Partnership – 1.01% in
terest
Milwaukee SMSA Tower Holdings LLC – 2.462% interest
New Paris Telephone, Inc. – 19.747% interest
New York Access Billing LLC – 4.82% interest
Northwest Minnesota Special Access LLC – 5.2632% interest
Numerex Corp. – less than 1.0% interest
Oklahoma
City SMSA Limited Partnership – 14.6% interest
Oklahoma City SMSA Tower Holdings LLC – 14.6% interest
Pennsylvania RSA 1 Limited Partnership – 9.80% interest
Pennsylvania RSA No. 6(I) Limited Partnership – 8.17% interest
Pennsylvania RSA No. 6(II) Limited
Partnership – 8.17% interest
Redding MSA Limited Partnership – 2.9% interest
Relay Ventures Parallel Fund III LP – 4.5% interest
Solix, Inc. – 2.04% interest
Texas RSA 6 Limited Partnership – 13.5% interest
Texas RSA 6 Tower Holdings, LP – 13.5% interest
Venus Cellular Telephone Company, Inc. – 49% interest
Volcano Communications Company – 45.01% interest
CoBank Capital Participation Certificate - $ 194,024.04 as of April 30, 2016 (relating to Term Loan Credit Agreement between CoBank and U.S. Cellular)
Co
Bank 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 U
SCOC of Pennsylvania RSA No. 10-B2, Inc.)
Part (c). Guarantors .
TDS Telecommunications Corporation
M.C.T. Communications, Inc.
OneNeck Data Center Holdings, LLC
OneNeck IT Solutions LLC
Affiliate Fund
Airadigm Communications, Inc.
Commvest, Inc.
National Telephone & Telegraph Company
TDSI Corporation
____________________
(2) Such entity is a Non-Subsidiary Variable Interest Entity (Borrower has an equity interest in such entity (as set forth above); such entity was a variable interest entity und er 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 ma de to GAAP on January 1, 2016 (but was not a Variable Interest Entity prior to the changes made to GAAP on January 1, 2016)
EXISTING INDEBTEDNESS
As of April 30, 2016 |
|
|
(Dollars in thousands) |
Subsidiaries of Borrower other than U.S. Cellular: |
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|
|
U.S. Cellular Subsidiaries— |
|
Obligation on capital leases of U.S. Cellular Subsidiaries |
2,200 |
|
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TDS Telecom— |
|
Rural Utilities Service (“RUS”) notes |
691 |
Obligations on capital leases |
708 |
|
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Other TDS Subsidiaries— |
|
Suttle Straus notes |
2,721 |
Obligations on capital leases |
21 |
|
|
Total Subsidiaries other than U.S. Cellular |
4,141 |
Total debt recorded in books of Subsidiaries |
6,341 |
(1) Certain Borrower Subsidiaries have surety bonds, the value of which at April 30, 2016 is $27,236,000.
(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 identified 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 purchase 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 Agreement pursuant to which United States Cellular Corporation has agreed to take “all necessary action to ensure that all of USCC Wireless’s covenants” in the applicable partnership agreement “are performed,” including each Purchase Obligation. Thus, United States Cellular C orporation has guaranteed USCC Wireless’s 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.
(3) The following letters of credit outstanding under the Revolving Credit Agreement, dated as of December 17, 2010, as amended, among Borrower , the financial institutions parties thereto and Bank of America, N.A., as administrative agent:
|
Beneficiary |
|
Amount |
|
Expiration Date |
|
|
|
|
|
|
|
|
68105838 |
|
Arapahoe County |
|
240,366.00 |
|
18-Aug-16 |
68125097 |
|
Empire State |
|
100,000.00 |
|
12-Apr-17 |
68125098 |
|
Empire State |
|
100,000.00 |
|
12-Apr-17 |
68125099 |
|
Empire State |
|
100,000.00 |
|
12-Apr-17 |
68096811 |
|
Vectren Energy |
|
18,000.00 |
|
7-Jun-17 |
68098258 |
|
Xcel Energy |
|
21,438.17 |
|
7-Aug-17 |
68098259 |
|
Xcel Energy |
|
90,811.60 |
|
7-Aug-17 |
1230135 |
|
Travelers Indemnity |
|
188,560.00 |
|
1-Sep-17 |
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 November 1, 2001, between Borrower and Trustee, including the following supplemental indentures pursuant to which debt is currently outstanding:
Third Supplemental Indenture and Form of Note re 6.625% Senior Notes in the principal am ount of $116,250,000
Fourth Supplemental Indenture and Form of Note re 6.875% Senior Notes in the principal amount of $225,000,000
Fifth Supplemental Indenture and Form of Note re 7% Senior Notes in the principal amount of $300,000,000
Sixth Supplemental I ndenture and Form of Note re 5.875% Senior Notes in the principal amount of $195,000,000
Subsidiaries:
U.S. Cellular:
Subordinated Indenture dated September 16, 2013 between U.S. Cellular and Trustee (no debt currently issued under this instrument)
Senior Indenture dated June 1, 2002, between U.S. Cellular and Trustee, including the following supplemental indentures pursuant to which debt is currently outstanding:
Third Supplemental Indenture and Form of Note re initial offering of 6.7% Senior Notes due 203 3 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 Supplemental Indenture and Form of Note re 6.95% Senior Notes due 206 0 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 and Form of Note re 7.25% Senior Notes due 2064 in the principal amount of $225,000,000
Term Loan Credit Agreement dated as of January 21, 2015, between Borrower and the lenders named therein, and CoBank, ACB, as Administrative Agent, in the original principal amount of $225,000,000, as amended and restated as of the da te hereof
Other Subsidiaries:
The “Obligation on capital leases” of $2,200,000 relating to U.S. Cellular, $708,000 relating to TDS Telecom, and $21,000 relating to Other TDS Subsidiaries, as set forth on Schedule 7.03, which are incorporated by reference herein.
ADMINISTRATIVE AGENT'S OFFICE;
CERTAIN ADDRESSES FOR NOTICES
BORROWER:
TELEPHONE AND DATA SYSTEMS, INC.
30 N. LaSalle, Suite 4000
Chicago, IL 60602
Attention: John M. Toomey, Vice President and Assistant Treas
urer
Telephone: 312-592-5328 Facsimile: 608-830-5530
Electronic Mail:
John.Toomey@tdsinc.com
Website Address:
www.teldta.com
U.S. Taxpayer Identification Number: 36-2669023
With a copy to (which shall not constitute notice)
SIDLEY AUSTIN LLP
One S. Dearborn Street
Chicago, Illinois 60603
Attention: William S. DeCarlo,
Esq., General Counsel of TDS
Telephone: (312) 853-6094
Facsimile: (312) 853-7036
Electronic Mail:
wdecarlo@sidley.com
ADMINISTRATIVE AGENT:
Administrative Agent
'
s Office
(for payments and Requests for Credit
Extensions):
WELLS FARGO BANK, NATIONAL ASSOCIATION
MAC D1109-019
1525 West W.T. Harris Blvd.
Charlotte, NC 28262
Attention of: Syndication Agency Services
Telephone No.: (704) 590-2703
Facsimile No.: (704) 715-0092
Wire Instructions:
Bank Name: Wells Fargo Bank, National Association
Bank ABA#:121000248
Account Number:
Account Name:
Other Notices as Administrative Agent
: (financials)
WELLS FARGO BANK, NATIONAL ASSOCIATION
333 S. Grand Ave.
Suite 1000
Los Angeles, CA 90071
Attention: S. Michael St. G
eme, Managing Director
Telephone: 213-253-7304
Email: stgememi@wellsfargo.com
L/C ISSUER:
WELLS FARGO BANK, NATIONAL ASSOCIATION
333 S. Grand Ave.
Suite 1000
Los Angeles, CA 90071
Attention: S. Michael St. Geme, Managing Director
Telephone: 213-253-730
4
Email: stgememi@wellsfargo.com
SWING LINE LENDER:
WELLS FARGO BANK, NATIONAL ASSOCIATION
MAC D1109-019
1525 West W.T. Harris Blvd.
Charlotte, NC 28262
Attention of: Syndication Agency Services
Telephone No.: (704) 590-2703
Facsimile No.: (704) 71
5-0092
Email:
Agencyservices.requests@wellsfargo.com
FORM OF COMMITTED LOAN NOTICE
Date: ___________, 20___
To: Wells Fargo Bank, National Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 15, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the " Credit Agreement ;" the terms def ined therein being used herein as therein defined), among Telephone and Data Systems, Inc., a Delaware corporation (the " Borrower "), the Lenders from time to time party thereto, and Wells Fargo Bank, National Association, as Administrative Agent, Swing Lin e Lender, and L/C Issuer.
The Borrower hereby requests (select one):
[ ] A Committed Borrowing [ ] A conversion or continuation of Committed Loans
1. On _________________________________ (a Business Day).
2. In the amount of $__________________.
3. Co mprised of _________________________. [Type of Committed Loans requested to be borrowed or to which existing Committed Loans are to be converted]
4. For Eurodollar Rate Loans: with an Interest Period of _______ months.
The Committed Borrowing, if any, r equested herein complies with the provisos to the first sentence of Section 2.01 of the Credit Agreement.
TELEPHONE AND DATA SYSTEMS, INC. |
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FORM OF SWING LING LOAN NOTICE
Date: __________, 20___
To: Wells Fargo Bank, National Association, as Administrative Agent and as Swing Line Lender
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 15, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the " Credit Agreement ;" the terms defined therein being used herein as therein defined), among Telephone and Data Systems, Inc., a Delaware corporation (the " Borrower "), t he Lenders from time to time party thereto, and Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender, and L/C Issuer.
The undersigned hereby requests a Swing Line Loan:
1. On _________________________ (a Business Day).
2. In the amount of $__________________.
The Swing Line Borrowing requested herein complies with the requirements of the provisos to the first sentence of Section 2.04(a) of the Agreement.
TELEPHONE AND DATA SYSTEMS, INC. |
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FORM OF NOTE
_____________, 20___
FOR VALUE RECEIVED, the undersigned (the " Borrower ") hereby promises to pay to _____________________ or registered assigns (the " Lender "), in accordance with the provisions of the Credit Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of June 15, 2016 (as amended, restated, extended, suppleme nted or otherwise modified in writing from time to time, the " Credit Agreement ;" the terms defined therein being used herein as therein defined), among the Borrower, the Lenders from time to time party thereto, and Wells Fargo Bank, National Association, a s Administrative Agent, Swing Line Lender, and L/C Issuer.
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 Credit Agreement. Except as otherwise provided in Section 2.04(f) of the Credit Agreement with respect to Swing Line Loans, all payments of principal and interest 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 Credit Agreement.
This Note is one of the Notes referred to in the Credit Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Note is also entitled to the benefits of the Guaranty. Upon the occurrence and continuation of one or more of the Events of Default specified in the Credit Agreement, all amounts then remaining unpaid on t his Note shall become, or may be declared to be, immediately due and payable all as provided in the Credit Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of bu siness. 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: Wells Fargo Bank, National Association, a s Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 15, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the " Credit Agreement ;" the terms d efined therein being used herein as therein defined), among Telephone and Data Systems, Inc., a Delaware corporation (the " Borrower "), the Lenders from time to time party thereto, and Wells Fargo Bank, National Association, as Administrative Agent, Swing L ine Lender, and L/C Issuer.
The undersigned Responsible Officer of the Borrower hereby certifies as of the date hereof that he/she is the of the Borrower, that, as such, he/she is authorized to execute and 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]
1. The Borrower has delivered the year-end audited financial statements required by Section 6.01(a) of the Credit Agreement for the fiscal year of the Borrower ended as of the above date, together with the report and opinion of an independent certified public accountant required by such Section.
[Use following paragraph 1 for fiscal quarter-end financial st atements]
1. The Borrower has delivered the unaudited financial statements required by Section 6.01(b) of the Credit Agreement for the fiscal quarter of the Borrower ended as of the above date. Such financial statements fairly present in all material res pects the financial condition, results of operations, common stockholders' equity and cash flows of the Borrower and its Subsidiaries in accordance with GAAP for the period covered thereby, subject only to normal year-end audit adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the Credit Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Borr ower and its Subsidiaries during the accounting period covered by such financial statements.
3. A review of the activities of the Loan Parties during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Loan Parties performed and observed all of their respective Obligations under the Loan Documents, and
[select one:]
[as of the date of this Certificate, to the best knowledge of the undersigned, during such fiscal peri od each of the Loan Parties performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.]
--or--
[as of the date of this Certificate, to the best knowledge of the undersigned, dur ing such fiscal period the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]
4. The financial covenant analyses and information set forth on Schedules 1 , 2 and 3 attached hereto are true and accurate in all material respects on and as of the date of this Certificate.
[5. Pursuant to Section 1.07 of the Credit Agreement, Consolidated EBITDA is being adjusted on a Pro Forma Basis with respect to (a) [describe acquisition] (a " Specified Acquisition ") and/or (b) [describe Disposition] (a " Specified Disposition ").]
IN
WITNESS WHEREOF, the undersigned
has executed this Certificate as
of.
TELEPHONE AND DATA SYSTEMS, INC. |
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For the Quarter/Year ended ______________(the " Statement Date ")
SCHEDULE 1
to the Compliance
Certificate
($ in 000
'
s)
For the Quarter/Year ended ___________________(" Statement Date ")
SCHEDULE 2
to the Compliance Certificate
($ in 000
'
s)
Consolidated EBITDA
Quarter Ended _______ |
Quarter Ended _______ |
Quarter Ended _______ |
Quarter Ended _______ |
Twelve Months Ended _________ |
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+ Consolidated Interest Charges |
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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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- 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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For the Quarter/Year ended ___________________(" Statement Date ")
SCHEDULE 3
to the Compliance Certificate
(b) Domestic Subsidiaries that have become Material Subsidiaries during the fiscal quarter ending on the Statement Date :
(c) Material Domestic Subsidiaries Disposed of during the fiscal quarter ending on the Statement Date
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this " Assignment and Assumption ") is dated as of the Effective Date set forth below and is entered into 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][each] Assignee. The Standard Te rms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irr evocably sells and assigns to [the Assignee][the respective Assignees] , and [the][each] Assignee hereby irrevocably purchases and assumes 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][the respective Assignors'] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] u nder the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assi gnors] under the respective facilities identified below (including, without limitation, the Letters of Credit, the Guaranty and the Swing Line Loans included in such facilities), and (ii) to the extent permitted to be assigned under applicable law, all cla ims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Cre dit 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 claim s, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clause (i) and (ii) above being referred to herein collectively as [the][an] " Assigned Interest "). Each such sale and assignment is without recourse to [the][any] Assignor and, except as
___________________________
1 For bracketed language here an d elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.
2 For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language
3 Select as appropriate.
4 Include bracket ed language if there are either multiple Assignors or multiple Assignees.
expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
1.
Assignor
[s]
:
______________________________
______________________________
2.
Assignee
[s]
:
______________________________
______________________________
[for each Assignee, indicate [Affiliate][Approved Fund] of [ identify Lender ]]
3. Borrower : Telephone and Data Systems, Inc.
4. Administrat ive Agent : Wells Fargo Bank, National Association, as the administrative agent under the Credit Agreement
5. Credit Agreement : Credit Agreement, dated as of June 15, 2016, among Telephone and Data Systems, Inc., the Lenders from time to time party the reto, and Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender, and L/C Issuer
6. Assigned Interest [s] :
Assignee[s][2] |
Aggregate Amount of Commitment for all Lenders[3] |
Amount of Commitment Assigned |
Percentage Assigned of Commitment[4] |
CUSIP Number |
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$______ |
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$______ |
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$______ |
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[7. Trade Date : __________________] 9
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
_____________________________
5 List each Assignor, as appropriate..
6 List each Assignee, as appropriate.
7 Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
8 Set forth, t o at least 9 decimals, as a percentage of the Commitment of all Lenders thereunder.
9 To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date.
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WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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[Consented to:] [11] |
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10 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
11 To be added only if the consent of the Borrower and/or other parties (e.g. Swing Line Lender, L/C Issuer) is required by the terms of the Credit Agreement.
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
[___________________]
1
2
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties .
1.1. Assignor [s] . [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] 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 contem plated hereby and (iv) it is not a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, leg ality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee [s] . [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the 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 t he 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 Cred it 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 mak e its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without 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 analysis 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 r equired to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the][any] Assignor or any ot her 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 required to be performed by it as a Lender.
2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (inc luding 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 Effecti ve Date. Notwithstanding the foregoing, the Administrative Agent 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 benefit 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 instrumen t. Delivery of an executed counterpart of a signature page 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 governe d by, and construed in accordance with, the law of the State of New York.
____________________
1 2 Describe Credit Agreement at option of Administrative Agent.
Telephone and Data Systems, Inc.
$400,000,000 SENIOR REVOLVING CREDIT FACILITY
ADMINISTRATIVE DETAILS FORM
Legal Name of Lender to appear in Documentation:
Signature Block Information:
Signin g Credit Agreement: Yes No
Coming in via Assignment: Yes No
Type of Lender:
(Bank, Asset Manager, Broker/Dealer, CLO/CDO, Finance Company, Hedge Fund, Insurance, Mutual Fund, Pension Fund, Other Regulated Investment Fund, Special Purpose Vehicle or Other, please specify)
Taxpayer ID Number: _____________________
MEI Number: _____________________
Foreign Entity: Yes No ________
If yes, please complete and return appropriate FOREIGN IRS Form (usually Form W-8BEN or W-ECI) as well as provide SWIFT Code for Patriot Act certification purposes and fill out the 2 below fields:
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FOR INTERNAL PURPOSES ONLY (FOREIGN INSTITUTIONS)
Patriot Act Certification Effective Date: _______________________
Patriot Act Certification Expiration Date: _______________________
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Lender’s Foreign Wire Instructions (please include wiring instructions for EACH currency as applicable) |
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___________________, hereby authorizes Wells Fargo Bank to rely on the payment instructions contained in this Administrative Details Form.
By: _____________________________
Its:______________________________
TAX REPORTING INFORMATION (PLEASE REVIEW THE INFORMATION BELOW AND SUBMIT THE APPROPRIATE IRS TAX FORM ALONG WITH THIS COMPLETED ADMINISTRATIVE DETAILS QUESTIONNAIRE).
Tax Documents
U.S. DOMESTIC INSTITUTIONS:
If your institution is incorporated or organized within the United States, you must complete and return Form W-9 (Request for Taxpayer Identification Number and Certification) . Please be advised that we request that you submit an original Form W-9 .
FOREIGN INSTITUTIONS:
I. Corporations:
If your institution is incorporated outside of the United States for U.S. federal income tax purposes, and is the beneficial owner of the interest and other income it receives, you must complete one of the following three tax forms, as applicable to your institution:
a.) Form W8BEN (Certificate of Foreign Status of Beneficial Owner),
b.) Form W-8ECI (Income Effectively Connected to a U.S. Trade or Business),
c.) Form W-8EXP (Certificate of Foreign Government or Governmental Agency).
A U.S. taxpayer identification number is require d for any institution submitting Form W-8ECI. It is also required on Form W-8BEN for certain institutions claiming the benefits of a tax treaty with the U.S. Please be advised that U.S. tax regulations do not permit the acceptance of faxed forms. An origin al tax form must be submitted .
II. Flow-Through Entities :
If your institution is organized outside the U.S., and is classified for U.S. federal income tax purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non U.S. flow-through entity, an original Form W-8IMY (Certificate o f Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding) must be completed by the intermediary together with a withholding statement. Flow-through entities other than Qualified Intermediaries are requ ired to include tax forms for each of the underlying beneficial owners. Please be advised that U.S. tax regulations do not permit the acceptance of faxed forms. Original tax form(s) must be submitted .
Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax form for your institution must be completed and returned prior to the first payment of income. Failure to provide the proper tax form when requested may subject your institution to U.S. tax withholding.
OPINION MATTERS
The matters contained in the following Sections of the Credit Agreement should be covered by the legal opinion:
FORM OF JOINDER AGREEMENT
JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of [_____________, 20___] (this " Joinder Agreement " or this " Agreement "), by and among [NEW LE NDERS] (each, a " New Lender " and, collectively, the " New Lenders "), TELEPHONE AND DATA SYSTEMS, INC., a Delaware corporation (the " Borrower "), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (in such capacity, the " Administrative Agent " ).
RECITALS:
WHEREAS, reference is hereby made to the Credit Agreement, dated as of June 15 , 2016 (as amended, supplemented or otherwise modified from time to time, the " Credit Agreement "), among the Borrower, the lenders from time to time party thereto, and Wells Fargo Bank, National Association , as Administrative Agent, Swing Line Lender, and L/C Issuer (capitalized terms used but not defined herein having the meaning provided in the Cr edit Agreement); and
WHEREAS, subject to the terms and conditions of the Credit Agreement, the Borrower may request an increase in the Aggregate Commitments by, among other things, entering into one or more Joinder Agreements with New Lenders;
NOW, THEREFO RE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:
1. Each New Lender party hereto hereby agrees to commit to provide its new Commitment, as set forth on Schedule A annexed hereto, on the terms and subject to the conditions set forth below.
2. Each New Lender (i) confirms that it has received a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, any other New Lender or any other Lender, and based on such 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 Credit Agreement; (iii) appoints and authorizes the Administrative A gent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental th ereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.
3. Each New Lender hereby agrees to make its respective Commitment on the following terms and conditions:
(a) New Lenders . Each New Lender acknowledges and agrees that upon its execution of this Agreement and the making of new Committed Loans, such New Lender shall become a "Lender" under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder.
(b) Credit Agreement Governs . T he new Committed Loans shall be subject to the provisions of the Credit Agreement and the other Loan Documents.
(c) Borrower's Certifications . By its execution of this Agreement, the Borrower hereby certifies that:
(i) The representations and warranties in or pursuant to the Loan Documents are true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date; and
(ii) No Default or Event of Default has occurred and is continuing as of the date hereof after giving effect to the increase in Aggreg ate Commitments.
(d) Notice . For purposes of the Credit Agreement, the initial notice address of each New Lender shall be as set forth below its signature below.
(e) Foreign Lenders . For each New Lender that is a Foreign Lender, delivered herewith to t he Administrative Agent are such forms, certificates or other evidence with respect to U.S. federal withholding Tax as such New Lender may be required to deliver to the Administrative Agent pursuant to Section 3.01(e) of the Credit Agreement.
(f) Recordat ion of the New Loans . Upon execution and delivery hereof, the Administrative Agent will record the new Committed Loans made by each New Lender in the Register.
4. Amendment, Modification and Waiver . This Agreement may not be amended, modified or waived except as provided by Section 10.01 of the Credit Agreement.
5. Entire Agreement . This Agreement, the Credit Agreement and the other Loan Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof an d supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.
6. GOVERNING LAW . THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK .
7. Severability . Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as would be enforceable.
8. Cou nterparts . This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.
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WELLS FARGO BANK, NATIONAL ASSOCIATION, |
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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 Credit Agreement dated as of June 15, 2016 (as amended, supplemented or otherwise modified from time to time, the " Credit Agreement "), among Telephone and Data Systems, Inc., a Delaware corporation (the " Borrower "), each lender from time to time party thereto, and Wells Fargo Bank, National Association, as the Administrative Agent, Swing Line Lender, and L/C Issuer.
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby cer tifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, ( iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned ha s 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 that (1) if the information provided on th is 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 properly completed and currently effectiv e certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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Form of
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of June 15, 2016 (as amended, supplemented or otherwise modified from time to time, the " Credit Agreement "), among Telephone and Data Systems, Inc., a Delaware corporation (the " Borrower "), each lender from time to time party thereto, and Wells Fargo Bank, National Association, as the Administrative Agent, Swing Line Lender, and L/C Issuer .
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 Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable . By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of June 15, 2016 (as amended, supplemented or otherwise modified from time to time, the " Credit Agreement "), among Telephone and Data Systems, Inc., a Delaware corporation (the " Borrower "), each len der from time to time party thereto, and Wells Fargo Bank, National Association, as the Administrative Agent, Swing Line Lender, and L/C Issuer .
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/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its di rect 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 des cribed 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 I RS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN from each of such partner's/member's beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the inf ormation provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar y ear in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
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FORM OF
U.S. TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax
Purposes)
Reference is hereby made to the Credit Agreement dated as of June 15, 2016 (as amended, supplemented or otherwise modified from time to time, the " Credit Agreement "), among Telephone and Data Systems, Inc., a Delaware corporation (the " Borrower "), each lender from time to time party thereto, and Wells Fargo Bank, National Association, as the Administrative Agent, Swing Line Lender, and L/C Issuer .
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby cer tifies that (i) it is the sole record 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) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (a s 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 credi t pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of 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 Administrat ive Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8B EN 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 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 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 Agree ment.
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FORM OF GUARANTIED PARTY DESIGNATION NOTICE
TO: Wells Fargo Bank, National Association, as Administrative Agent
RE: Credit Agreement, dated as of June 15, 2016 (as amended, modified, extended, restated, replaced, or supplemented from time to time, the " Credit Agreement ;" capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Credit Agr eement), by and among Telephone and Data Systems, Inc., a Delaware corporation (the " Borrower "), the Lenders from time to time party thereto, and Wells Fargo Bank, National Association, as Administrative Agent, Swing Line Lender, and L/C Issuer
DATE: [ Date]
[Name of Cash Management Bank/Hedge Bank] (the " Guarantied Party ") hereby notifies you, pursuant to the terms of the Credit Agreement, that the Guarantied Party meets the requirements of a [Cash Management Bank][Hedge Bank] under the terms of the Credit Agreement and is a [Cash Management Bank][Hedge Bank] under the Credit Agreement and the other Loan Documents.
Delivery of an executed counterpart of a signature page of this notice by facsimile or other electronic imaging means (e.g. "pdf" or "tif") shall be effective as delivery of a manually executed counterpart of this notice.
A duly authorized officer of the undersigned has executed this notice as of the day and year set forth above.
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as a [Cash Management Bank] [Hedge Bank] |
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GUARANTY
THIS GUARANTY (as amended, restated, supplemented or otherwise modified from time to time, this " Guaranty "), dated as of June 15, 2016, is made by Telephone and Data Systems, Inc., 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 pur suant to Section 22 (collectively, 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 Admini strative Agent, for the benefit of Guarantied Parties.
BACKGROUND .
The Borrower, the lenders from time to time party thereto (collectively, the " Lenders "), and Wells Fargo Bank, National Association, as administrative agent for the Lenders (in such capaci ty, the " Administrative Agent "), have entered into that certain 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 consolidated 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 b enefit from the Loans, Letters of Credit and other financial accommodations under the Credit Agreement and the financial accommodations under the Guarantied Cash Management Agreements and Guarantied Hedge Agreements.
It is a condition precedent to the obl igation of Lenders to make Loans under the Credit Agreement and to extend other financial accommodations under the Loan Documents and of Cash Management Banks and Hedge Banks to provide financial accommodations pursuant to Guarantied Cash Management Agreem ents and Guarantied Hedge Agreements that the Guarantors shall have executed and delivered this Guaranty.
AGREEMENT .
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are h ereby acknowledged, and in order to induce Guarantied Parties to make (a) Loans and issue Letters of Credit under the Credit Agreement and extend other credit and financial accommodations under the Loan Documents and (b) make financial accommodations under Guarantied Cash Management Agreements and Guarantied Hedge Agreements, each Guarantor hereby agrees with Administrative Agent, for its benefit and the benefit of the other Guarantied Parties, and each other Guarantied Party as follows:
SECTION 1. Definit ions; Other Terms .
" 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 or any Guarantied Cash Management Agreement, and (B) the payment and performance obligations of each Specified Loan Party under this Guaranty, and (ii) with respect to each other Guarantor, the Obli gations, whether now or hereafter existing and whether for principal, interest, fees, expenses or otherwise, (b) any and all reasonable and invoiced out-of-pocket expenses (including the reasonable and invoiced fees, charges and disbursements of any one c ounsel for the Administrative Agent, one additional counsel on behalf of the Lenders, and one local counsel in each relevant jurisdiction) incurred by the Guarantied Parties in enforcing any rights under this Guaranty, and (c) all present and future amount s 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 inter est if any Loan Party becomes subject to any proceeding under Debtor Relief Laws.
SECTION 8. No Waiver; Remedies .
SECTION 10. Continuing Guaranty; Transfer of Guarantied Obligations . This Guaranty (a) is (i) a continuing guaranty and shall remain in full force and effect until the earlier of (A) the Guaranty Release Date and (B) the date upon which all of the Guarantied Obligations are fully, indefeasibly, absolutely and unconditionall y paid and performed, the Aggregate Commitments are terminated, and all Letters of Credit have expired, been terminated or secured on terms that are reasonably satisfactory to the L/C Issuer (such earlier date, the " Release Date ") and (ii) binding upon eac h Guarantor, its successors and permitted assigns and such Guarantor as debtor-in-possession, and (b) inures to the benefit of is enforceable by the Administrative Agent and the other Guarantied Parties and their respective successors, permitted transferee s, 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 thereupon become vested with all the rights in respect thereof granted to such Guarantied Party herein or otherwise with respect to such Guarantied Obligations so transferred or assigned; subject, however, to compliance with the provisions of the Credit Agreement. Except as the result of the consummation of a transaction permitted under Section 7.04 of the Credit Agreement, no Guarantor may assign any of its obligations under this Guaranty.
SECTION 13. Governing Law; Jurisdiction; Etc .
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 THEREBY (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, EXPRESSLY 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 GUA RANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS 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 b e used in any interpretation of this Guaranty.
SECTION 16. Counterparts . This Guaranty may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, all of which when taken togeth er shall constitute a single contract. Delivery of
an executed counterpart 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 .
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 t o 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 pe rformable obligation of such Guarantor to such Guarantied Party (without regard to whether an 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 Guarantied 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 interest contracted for, charged, or received by the Administrative Agent or a Guarantied Party exceeds the Maximum Rate, such Person may, to the extent permitted b y applicable Law, (a) characterize any payment that is not principal as an expense,
fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts t he total amount of interest throughout the contemplated term of the Guarantied Obligations hereunder.
SECTION 20. Severability . If any provision of this Guaranty is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceabil ity 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 o f 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 any and all present and future Taxes, except as required by applicable Law. If a Guarantor must make a payment under this Guaranty, such Guarantor represents, w arrants 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 withholding 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 preserve 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 im posed. Each Guarantor shall promptly provide the Administrative Agent or any other Guarantied Party 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 wi thheld 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 th e consent of any other Guarantor hereunder. The rights and obligations of each Guarantor hereunder 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 undertakes to provide such funds or other support to each Specified Loan Party with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under this Guaranty and the other Loan Documents in respect of suc h 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 applicable Fraudulent Trans fer Laws and not for any greater amount). The obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Release Date. Each Qualified ECP Guarantor intends this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a "keepwell, support, or other agreement" for the benefit of, each Specified Loan Party for all purposes of the Commodity Exchange Act.
SECTION 24. Entire Agreement . THIS GUARANTY AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIE S.
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GUARANTY SUPPLEMENT NO. ___
THIS GUARANTY SUPPLEMENT NO. ___ (this " Guaranty Supplement ") is made as of ___________________, to the Guaranty dated as of June 15, 2016 (as amended, restated, supplemented or otherwise modified from time to time, t he " 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 Ad ministrative Agent for the benefit of Guarantied Parties (as defined in the Guaranty).
BACKGROUND .
Capitalized terms not otherwise defined herein have the meaning specified in the Guaranty. The Guaranty provides that additional parties may become Guaranto rs under the Guaranty by execution and delivery of this form of Guaranty Supplement. 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 Gua rantor under the Guaranty in order to induce Guarantied Parties to continue to make credit extensions and accommodations under the Loan Documents, Guarantied Cash Management Agreements, and Guarantied Hedge Agreements.
AGREEMENT .
NOW, THEREFORE, the undersigned agrees with the Administrative Agent and each other Guaranteed Party as 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 applicable to it as a Guarantor thereunder and (b) represents and warrants that the representations and warranties made by it as a Guara ntor 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 s hall 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 ref erence 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 agreement. Delivery of an executed counterpart of a signature page of this Guaranty Supplement by facsimile or other electronic i maging means (e.g. "pdf" or "tif") shall be effective as delivery of a manually executed counterpart of this Guaranty Supplement.
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WELLS FARGO BANK, NATIONAL ASSOCIATION |
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FORM OF PREPAYMENT NOTICE
Date: ___________, 20___
To: Wells Fargo Bank, National Association, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of June 15, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the " Credit Agreement ;" the terms def ined therein being used herein as therein defined), among Telephone and Data Systems, Inc., a Delaware corporation (the " Borrower "), the Lenders from time to time party thereto, and Wells Fargo Bank, National Association, as Administrative Agent, Swing Lin e Lender, and L/C Issuer.
This prepayment notice (this " Notice ") is delivered to the Administrative Agent pursuant to Section 2.05(a) of the Credit Agreement. The Borrower will prepay Committed Loans as follows:
1. On _________________________________ (a Business Day).
2. In the amount of $__________________.
3. Comprised of _________________________. [Type of Committed Loans to be prepaid.]
4. For Eurodollar Rate Loans: with Interest Period(s) of _______ months.
This prepayments specified herein comply with the provisions set forth in Section 2.05(a) of the Credit Agreement, and this Notice shall not be revoked by the Borrower, except as permitted by the Credit Agreement
TELEPHONE AND DATA SYSTEMS, INC. |
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