UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 21, 2015
UNITED STATES CELLULAR CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware |
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1-9712 |
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62-1147325 |
(State or other jurisdiction of incorporation) |
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(Commission File Number) |
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(IRS Employer Identification No.) |
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8410 West Bryn Mawr, Chicago, Illinois |
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60631 |
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(Address of principal executive offices) |
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(Zip Code) |
Registrant's telephone number, including area code: (773) 399-8900
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement.
On
January 21, 2015, United States Cellular Corporation (“U.S. Cellular” or the
“Company”) entered into a $225,000,000 Credit Agreement by and among U.S.
Cellular as Borrower, CoBank, ACB as Administrative Agent, and the other
lenders party thereto and identified therein (“Term Loan Credit Agreement”).
The Term Loan Credit Agreement provides U.S. Cellular with a $225 million
senior term loan credit facility for general corporate purposes, including
working capital, spectrum purchases and capital expenditures.
Borrowings under the Term Loan Credit Agreement bear interest, at U.S.
Cellular’s option, either at a LIBOR rate or at an alternative base rate, plus
an applicable margin. U.S. Cellular's interest costs under the Term Loan Credit
Agreement are based on credit ratings from Standard & Poor’s Rating Services,
Moody’s Investor Services or Fitch Ratings. If U.S. Cellular’s credit ratings
were lowered, the credit facility would not cease to be available solely as a
result of a decline in its credit ratings.
The two financial covenants described below are included in the Term Loan
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:
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Period |
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Ratios |
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Through December 31, 2015 |
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3.75 to 1.00 |
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From January 1, 2016 through June 30, 2016 |
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3.50 to 1.00 |
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From July 1, 2016 through December 31, 2016 |
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3.25 to 1.00 |
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From January 1, 2017 and thereafter |
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3.00 to 1.00 |
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The
term loan under the Term Loan Credit Agreement will be unsecured except for a
lien on all equity which U.S. Cellular may have in the loan administrative
agent, CoBank ACB, subject to certain limitations.
The Term Loan Credit Agreement provides, among other things, that U.S. Cellular
may not, and may not cause or permit any of its subsidiaries to sell, or incur
or permit to exist any liens on, any property or assets now owned or hereafter
acquired by U.S. Cellular or by any such subsidiary, make investments, effect
mergers or other fundamental changes, make dividends, distributions or other
restricted payments, or enter into transactions with affiliates, other than as
expressly excepted in the Term Loan Credit Agreement.
The Term Loan Credit Agreement includes representations and warranties,
covenants, events of default and other terms and conditions that are
substantially similar to U.S. Cellular’s existing revolving credit agreement.
A Change in Control, as such term is defined in the Term Loan Credit Agreement,
of TDS or U.S. Cellular would constitute a default and would require all
borrowings outstanding under the Term Loan Credit Agreement to be repaid.
The continued availability of the Term Loan Credit Agreement requires U.S.
Cellular to comply with certain negative and affirmative covenants, maintain
the above financial ratios and provide representations on certain matters at
the time of each borrowing.
The Term Loan Credit Agreement permits U.S. Cellular to make one or more
borrowings aggregating up to $225,000,000 from the agreement date through the
six month anniversary of the agreement date, or July 21, 2015. Currently, no
borrowings have been made under the Term Loan Credit Agreement.
Amounts borrowed under the Term Loan Credit Agreement will be due and payable
in quarterly installments of $2,812,500 beginning on March 31, 2016 through
December 31, 2021, and the remaining unpaid balance will be due and payable in
full on the seventh anniversary of the agreement date, or January 21, 2022.
The foregoing brief description is qualified by reference to the copy of the
Term Loan Credit Agreement attached hereto as Exhibit 4.1, which is
incorporated herein by reference, and which identifies all the lenders thereto.
Some of the lenders and/or agent under
the Term Loan Credit Agreement and/or their affiliates may have various
relationships with U.S. Cellular’s parent, Telephone and Data Systems, Inc.
(“TDS”), 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 the TDS and/or U.S. Cellular revolving
credit agreements.
In connection with the Term Loan Credit Agreement, U.S. Cellular and TDS
entered into a Subordination Agreement dated January 21, 2015 together with
CoBank, ACB, as Administrative Agent. Pursuant to this Subordination Agreement,
(a) any consolidated funded indebtedness from U.S. Cellular to TDS will be
unsecured and (b) any (i) consolidated funded indebtedness (other than
Refinancing Indebtedness as defined in the Subordination Agreement) in excess
of $105,000,000, and (ii) Refinancing Indebtedness in excess of
$250,000,000, will be subordinated and made junior in right payment to the
prior payment in full of obligations to the lenders under the Term Loan Credit
Agreement. As of the date of this Form 8-K, there is no outstanding funded
indebtedness of U.S. Cellular that is subordinated pursuant to the
Subordination Agreement. The form of the Subordination Agreement is attached
as an exhibit to the Term Loan Credit Agreement attached hereto as Exhibit 4.1.
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:
• should not in any instance be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate;
• may have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement;
• may apply standards of materiality in a way that is different from what may be viewed as material to you or other investors; and
• were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments.
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 Registration
Statement and the Company’s other public filings, which are available without
charge through the SEC’s website at http://www.sec.gov.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant.
The disclosure set forth above under Item 1.01 is hereby incorporated by
reference into this Item 2.03
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits:
In accordance with the provisions of Item 601 of Regulation S-K, any Exhibits
filed herewith are set forth on the Exhibit Index attached hereto.
SIGNATURES |
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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, thereto duly authorized. |
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United States Cellular Corporation |
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(Registrant) |
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Date: |
January 23, 2015 |
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By: |
/s/ Steven T. Campbell |
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Steven T. Campbell |
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Executive Vice President - Finance, |
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Chief Financial Officer and Treasurer |
EXHIBIT INDEX |
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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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Term Loan Credit Agreement, dated as of January 21, 2015 |
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Exhibit 4.1 |
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$225,000,000
Credit Agreement
Dated as of January 21, 2015
Among
United States Cellular Corporation
as the Borrower,
CoBank, ACB
As the Administrative Agent, the Lead Arranger, the Sole Bookrunner and Lender
and
The Other Lenders Party Hereto
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TABLE OF CONTENTS |
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Page |
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS |
1 |
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1.01 |
Defined Terms....................................................................................................................................................................................................................................... |
1 |
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1.02 |
Other Interpretive Provisions.............................................................................................................................................................................................................. |
23 |
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1.03 |
Accounting Terms................................................................................................................................................................................................................................ |
24 |
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1.04 |
Rounding................................................................................................................................................................................................................................................ |
25 |
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1.05 |
Times of Day......................................................................................................................................................................................................................................... |
25 |
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ARTICLE II. THE COMMITMENTS |
25 |
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2.01 |
Committed Loans................................................................................................................................................................................................................................ |
25 |
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2.02 |
Borrowings, Conversions and Continuations of Committed Loans........................................................................................................................................... |
25 |
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2.03 |
Prepayments.......................................................................................................................................................................................................................................... |
27 |
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2.04 |
Termination or Reduction of Commitments................................................................................................................................................................................... |
28 |
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2.05 |
Repayment of Loans........................................................................................................................................................................................................................... |
29 |
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2.06 |
Interest.................................................................................................................................................................................................................................................... |
30 |
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2.07 |
Fees......................................................................................................................................................................................................................................................... |
31 |
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2.08 |
Computation of Interest and Fees.................................................................................................................................................................................................... |
31 |
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2.09 |
Evidence of Debt.................................................................................................................................................................................................................................. |
31 |
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2.10 |
Payments Generally; Administrative Agent's Clawback............................................................................................................................................................... |
32 |
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2.11 |
Sharing of Payments by Lenders....................................................................................................................................................................................................... |
34 |
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ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY |
35 |
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3.01 |
Taxes...................................................................................................................................................................................................................................................... |
35 |
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3.02 |
Illegality.................................................................................................................................................................................................................................................. |
40 |
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3.03 |
Inability to Determine Rates.............................................................................................................................................................................................................. |
40 |
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3.04 |
Increased Costs..................................................................................................................................................................................................................................... |
41 |
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3.05 |
Compensation for Losses................................................................................................................................................................................................................... |
42 |
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3.06 |
Mitigation Obligations; Replacement of Lenders; Like Treatment............................................................................................................................................ |
43 |
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3.07 |
Survival.................................................................................................................................................................................................................................................. |
44 |
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ARTICLE IV. CONDITIONS PRECEDENT TO Committed loans |
44 |
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4.01 |
Conditions of Initial Committed Loan............................................................................................................................................................................................. |
44 |
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4.02 |
Conditions to all Committed Loans.................................................................................................................................................................................................. |
46 |
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ARTICLE V. REPRESENTATIONS AND WARRANTIES |
47 |
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5.01 |
Existence, Qualification and Power.................................................................................................................................................................................................. |
47 |
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5.02 |
Authorization; No Contravention..................................................................................................................................................................................................... |
47 |
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5.03 |
Governmental Authorization; Other Consents............................................................................................................................................................................... |
47 |
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5.04 |
Binding Effect....................................................................................................................................................................................................................................... |
47 |
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5.05 |
Financial Statements; No Material Adverse Effect....................................................................................................................................................................... |
48 |
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5.06 |
Litigation................................................................................................................................................................................................................................................ |
48 |
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5.07 |
No Default............................................................................................................................................................................................................................................. |
48 |
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5.08 |
Ownership of Property; Liens............................................................................................................................................................................................................. |
48 |
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5.09 |
Environmental Compliance............................................................................................................................................................................................................... |
49 |
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5.10 |
Insurance............................................................................................................................................................................................................................................... |
49 |
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5.11 |
Taxes...................................................................................................................................................................................................................................................... |
49 |
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TABLE OF CONTENTS |
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5.12 |
ERISA Compliance............................................................................................................................................................................................................................ |
49 |
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5.13 |
Subsidiaries; Equity Interests............................................................................................................................................................................................................ |
50 |
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5.14 |
Margin Regulations; Investment Company Act........................................................................................................................................................................... |
50 |
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5.15 |
Disclosure............................................................................................................................................................................................................................................. |
51 |
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5.16 |
Compliance with Laws...................................................................................................................................................................................................................... |
51 |
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5.17 |
Taxpayer Identification Number..................................................................................................................................................................................................... |
51 |
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5.18 |
Anti-Terrorism, USA Patriot Act and OFAC.................................................................................................................................................................................. |
51 |
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ARTICLE VI. AFFIRMATIVE COVENANTS |
52 |
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6.01 |
Financial Statements.......................................................................................................................................................................................................................... |
52 |
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6.02 |
Certificates; Other Information....................................................................................................................................................................................................... |
53 |
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6.03 |
Notices.................................................................................................................................................................................................................................................. |
55 |
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6.04 |
Payment of Obligations..................................................................................................................................................................................................................... |
55 |
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6.05 |
Preservation of Existence, Etc.......................................................................................................................................................................................................... |
55 |
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6.06 |
Maintenance of Properties; Office.................................................................................................................................................................................................. |
56 |
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6.07 |
Maintenance of Insurance................................................................................................................................................................................................................ |
56 |
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6.08 |
Compliance with Laws...................................................................................................................................................................................................................... |
56 |
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6.09 |
Books and Records............................................................................................................................................................................................................................ |
56 |
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6.10 |
Inspection Rights................................................................................................................................................................................................................................ |
57 |
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6.11 |
Use of Proceeds................................................................................................................................................................................................................................... |
58 |
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6.12 |
Indebtedness Owed to Parent Affiliated Companies................................................................................................................................................................... |
58 |
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6.13 |
Further Assurances............................................................................................................................................................................................................................. |
58 |
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6.14 |
CoBank Equity................................................................................................................................................................................................................................... |
58 |
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ARTICLE VII. NEGATIVE COVENANTS |
58 |
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7.01 |
Liens...................................................................................................................................................................................................................................................... |
58 |
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7.02 |
Investments......................................................................................................................................................................................................................................... |
60 |
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7.03 |
Indebtedness........................................................................................................................................................................................................................................ |
62 |
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7.04 |
Fundamental Changes....................................................................................................................................................................................................................... |
63 |
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7.05 |
Dispositions.......................................................................................................................................................................................................................................... |
64 |
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7.06 |
Restricted Payments........................................................................................................................................................................................................................... |
65 |
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7.07 |
Transactions with Affiliates and Subsidiaries................................................................................................................................................................................ |
66 |
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7.08 |
Burdensome Agreements.................................................................................................................................................................................................................. |
67 |
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7.09 |
Use of Proceeds................................................................................................................................................................................................................................... |
67 |
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7.10 |
Financial Covenants.......................................................................................................................................................................................................................... |
67 |
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7.11 |
Governmental Programs.................................................................................................................................................................................................................... |
67 |
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7.12 |
Anti-Terrorism, OFAC and USA Patriot Act.................................................................................................................................................................................. |
68 |
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ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES |
68 |
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8.01 |
Events of Default................................................................................................................................................................................................................................ |
68 |
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8.02 |
Remedies Upon Event of Default.................................................................................................................................................................................................... |
70 |
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8.03 |
Application of Funds.......................................................................................................................................................................................................................... |
71 |
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ARTICLE IX. ADMINISTRATIVE AGENT |
71 |
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9.01 |
Appointment and Authority............................................................................................................................................................................................................. |
71 |
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9.02 |
Rights as a Lender.............................................................................................................................................................................................................................. |
72 |
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- ii - |
TABLE OF CONTENTS |
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9.03 |
Exculpatory Provisions.......................................................................................................................................................................................................... |
72 |
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9.04 |
Reliance by Administrative Agent....................................................................................................................................................................................... |
73 |
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9.05 |
Delegation of Duties............................................................................................................................................................................................................... |
73 |
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9.06 |
Resignation of Administrative Agent.................................................................................................................................................................................. |
73 |
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9.07 |
Non-Reliance on Administrative Agent and Other Lenders............................................................................................................................................ |
74 |
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9.08 |
No Other Duties, Etc............................................................................................................................................................................................................... |
74 |
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9.09 |
Administrative Agent May File Proofs of Claim............................................................................................................................................................... |
74 |
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ARTICLE X. MISCELLANEOUS |
75 |
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10.01 |
Amendments, Etc.................................................................................................................................................................................................................... |
75 |
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10.02 |
Notices; Effectiveness; Electronic Communication......................................................................................................................................................... |
76 |
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10.03 |
No Waiver; Cumulative Remedies; Enforcement............................................................................................................................................................ |
79 |
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10.04 |
Expenses; Indemnity; Damage Waiver.............................................................................................................................................................................. |
79 |
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10.05 |
Payments Set Aside................................................................................................................................................................................................................ |
81 |
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10.06 |
Successors and Assigns.......................................................................................................................................................................................................... |
81 |
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10.07 |
Treatment of Certain Information; Confidentiality......................................................................................................................................................... |
86 |
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10.08 |
Right of Setoff......................................................................................................................................................................................................................... |
87 |
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10.09 |
Interest Rate Limitation......................................................................................................................................................................................................... |
87 |
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10.10 |
Counterparts; Integration; Effectiveness........................................................................................................................................................................... |
87 |
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10.11 |
Survival of Representations and Warranties..................................................................................................................................................................... |
88 |
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10.12 |
Severability............................................................................................................................................................................................................................... |
88 |
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10.13 |
Replacement of Lenders........................................................................................................................................................................................................ |
88 |
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10.14 |
Governing Law; Jurisdiction; Etc......................................................................................................................................................................................... |
89 |
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10.15 |
Waiver of Jury Trial................................................................................................................................................................................................................ |
90 |
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10.16 |
No Advisory or Fiduciary Responsibility............................................................................................................................................................................ |
90 |
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10.17 |
Electronic Execution of Assignments and Certain Other Documents........................................................................................................................... |
91 |
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10.18 |
USA PATRIOT Act................................................................................................................................................................................................................. |
91 |
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10.19 |
Time of the Essence................................................................................................................................................................................................................ |
91 |
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10.20 |
Designation as Senior Debt.................................................................................................................................................................................................... |
91 |
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10.21 |
FCC Approval.......................................................................................................................................................................................................................... |
91 |
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10.22 |
Entire Agreement..................................................................................................................................................................................................................... |
92 |
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TABLE OF CONTENTS |
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SCHEDULES |
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1.01 |
Special 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 |
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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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10.02 |
Administrative Agent's Office; Certain Addresses for Notices |
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10.06 |
Voting Participants |
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EXHIBITS |
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Form of |
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A |
Committed Loan Notice |
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B |
Note |
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C |
Compliance Certificate |
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D-1 |
Assignment and Assumption |
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D-2 |
Administrative Questionnaire |
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E |
Opinion Matters |
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F |
Subordination Agreement |
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G |
U.S. Tax Compliance Certificates |
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- iv - |
$225,000,000
UNITED STATES CELLULAR
CORPORATION
CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of January 21, 2015, among UNITED STATES CELLULAR CORPORATION, a Delaware corporation (the "Borrower"), each lender from time to time party hereto (collectively, the "Lenders" and individually, a "Lender"), and COBANK, ACB, as Administrative Agent.
The Borrower has requested that the Lenders provide a term loan credit facility, and the Lenders are willing to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:
"Administrative Agent" means CoBank 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 as set forth on Schedule 10.02, or such other address as the Administrative Agent may from time to time notify to the Borrower and the Lenders.
"Administrative Questionnaire" means an Administrative Questionnaire in substantially the form of Exhibit D-2 or any other form approved by the Administrative Agent.
"Affiliate" means, in relation to the Borrower, any of its Subsidiaries or the Parent Company, any Person that would be considered to be an affiliate of the Borrower, any of its Subsidiaries or, as the case may be, the Parent Company under Rule 144(a) of the Rules and Regulations of the Securities and Exchange Commission, as in effect on the date hereof, if the Borrower, any of its Subsidiaries or, as the case may be, the Parent Company 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
CREDIT AGREEMENT – Page 1
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 2.10 with respect to payments to be distributed by the Administrative Agent to Lenders, when a Defaulting Lender shall exist, "Applicable Percentage" shall mean the percentage of the 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 has been terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any 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 hereto, as applicable.
"Applicable Rate" means, from time to time, the following percentages per annum, based upon the Debt Rating as set forth below:
Level |
Debt Rating |
Commitment Fee |
Applicable Margin for Eurodollar Rate
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Applicable Margin for Base Rate
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I |
≥ A- /A3 /A - |
0.125% |
1.625% |
0.625% |
II |
BBB+ /Baa1/ BBB+ |
0.150% |
1.750% |
0.750% |
III |
BBB /Baa2 /BBB |
0.175% |
2.000% |
1.000% |
IV |
BBB- /Baa3/ BBB- |
0.225% |
2.250% |
1.250% |
V |
≤ BB+ /Ba1 /BB+ |
0.300% |
2.500% |
1.500% |
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,
CREDIT AGREEMENT – Page 2
Initially, the Applicable Rate shall be determined based upon the Debt Rating specified in the certificate delivered pursuant to Section 4.01(a)(vii). Thereafter, each change in the Applicable Rate resulting from a publicly announced change in the Debt Rating shall be effective, during the period commencing on the date of the public announcement thereof and ending on the date immediately preceding the effective date of the next such change.
"Approved Fund" means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.
"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 D-1 or any other form approved by the Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.
"Audited Financial Statements" means the audited consolidated balance sheet of the Borrower and its Subsidiaries for the fiscal year ended December 31, 2013, 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.
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"Availability Period" means the period from and including the Closing Date to the earliest of (a) the Delayed Draw Termination Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.04, and (c) the date of termination of the commitment of each Lender to make Loans pursuant to Section 8.02.
"Base Rate" means for any day a fluctuating rate per annum equal to the highest of (a) the sum of 1/2 of 1% plus the Federal Funds Rate for such day, (b) the Prime Rate for such day and (c) the sum of (i) 1.00% plus (ii) the Eurodollar Rate (for an Interest Period of one month, determined in accordance with subsection (b) of the definition of Eurodollar Rate). Any change in the Base Rate due to a change in the calculation thereof shall be effective at the opening of business on the first Business Day of each week or, if determined more frequently, at the opening of business on the first Business Day immediately following the date of such determination and without necessity of notice being provided to the Borrower or any other Person.
"Base Rate 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.
"Business Day" means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent's Office is located and, if such day relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.
"Carlson Family Group" means any and all of the following persons: (a) LeRoy T. Carlson or his spouse, Margaret Carlson; (b) any child, grandchild, great grandchild or other lineal descendant of LeRoy T. Carlson and Margaret Carlson, including any Person with such relationship by adoption, or the spouse of any such Person; (c) the estate of any of the Persons described in subsections (a) and (b); (d) any trust or similar arrangement, provided that Persons described in subsections (a), (b), or (c) are the beneficiaries of more than fifty percent (50%) of the beneficial interests in such trust or arrangement; (e) the voting trust which expires on June 30, 2035, as amended from time to time, or any successor to such voting trust, including the trustees of such voting trust; and (f) any corporation, partnership, limited liability company or other entity in which Persons identified in subsections (a) through (e) own more than fifty percent (50%) of the voting interests in the election of directors or other management of such entity.
"Cash Equivalents" means any of the following types of Investments, to the extent owned by the Borrower or any of its Subsidiaries free and clear of all Liens:
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"Change in Law" means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, 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 Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory
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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:
"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” means CoBank, ACB, a federally chartered instrumentality of the United States.
"CoBank Equities" has the meaning specified in Section 6.14.
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"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 make Committed Loans to the Borrower pursuant to Section 2.01, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender's name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.
"Committed Borrowing" means a borrowing consisting of simultaneous Committed Loans of the same Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Lenders pursuant to Section 2.01.
"Committed Loan" has the meaning specified in Section 2.01.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other, or (c) a continuation of Eurodollar Rate Loans, pursuant to Section 2.02(a), which, shall be substantially in the form of Exhibit A or any other form approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), appropriately completed and signed by a Responsible Officer of the Borrower.
"Compliance Certificate" means a certificate substantially in the form of Exhibit C 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, distributions from unconsolidated entities in which the Borrower directly or indirectly owns an Equity Interest plus (c) the following to the extent each was deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by the Borrower and its Subsidiaries for such period (net of any Federal, state, local and foreign income tax credits of the Borrower and its Subsidiaries for such period), (iii) 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 Borrower or any Subsidiary for less than the face value of such Indebtedness be included in Consolidated EBITDA; and provided further that, notwithstanding the foregoing, that (1) when and to the extent that non-cash charges described in clause (c)(iii) above become cash paid items, such
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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, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments (including, without limitation, all purchase money Indebtedness and all direct obligations arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, surety bonds and similar instruments), (b) all obligations incurred as the deferred purchase price of property or services (other than (i) trade payables entered into in the ordinary course of business pursuant to ordinary terms and (ii) ordinary course of business purchase price adjustments and earnouts); (c) all reimbursement and other payment obligations with respect to letters of credit, bankers' acceptances, surety bonds and other similar documents; (d) all obligations evidenced by promissory notes, bonds, debentures or other similar instruments, including all obligations so evidenced that are incurred in connection with the acquisition of property or any business; (e) all indebtedness created under any conditional sale or other title retention agreements or sales of accounts receivable; (f) all non-recourse indebtedness of the kind described in clause (a) through clause (e) secured by Liens on property of the obligor; (g) Attributable Indebtedness in respect of capital leases and Synthetic Lease Obligations, (h) net obligations under any Swap Contract, (i) all Indebtedness of the types referred to in subsections (a) through (h) above of any partnership or joint venture (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 limited partnership), unless such Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary and (j) all Guarantees in respect of indebtedness of the kind described in clause (a) through clause (h) above; excluding up to $25,000,000 in the aggregate of contingent liabilities of the Borrower and its Subsidiaries which are not required by GAAP to be recorded on the balance sheet of the Borrower and its Subsidiaries. For all purposes of this Agreement, the term "Consolidated Funded Indebtedness" shall not include, with respect to the Borrower and its Subsidiaries, the contractual and other similar obligations of the Borrower and its Subsidiaries with respect to any Monetization Transactions.
"Consolidated Interest Charges" means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the aggregate amount of interest required to be paid or payable in cash by the Borrower or any of its Subsidiaries during such period on all Consolidated Funded Indebtedness of the Borrower or any of its Subsidiaries outstanding during all or any part of such period, whether such interest was or is required to be reflected as an item of expense or capitalized, including that portion of rent expense treated as interest in accordance with GAAP in respect of capital lease obligations (including, without duplication, the interest for rental payments made with respect to Sale and Leaseback Transactions) and expressly including (a) any commitment fee payable pursuant to Section 2.07 and (b) any other scheduled commitment fee, facility fee, utilization fee or other scheduled fee payable by the Borrower or any Subsidiary in connection with Consolidated Funded Indebtedness of the Borrower or any Subsidiary.
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"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 purposes of determination of the Consolidated Interest Coverage Ratio, in no event shall any financial results of any Variable Interest Entity be included in such determination, except to the extent Consolidated Interest Charges are computed on Indebtedness of any such 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 Variable Interest Entity be included in such determination, except to the extent Indebtedness of any such Variable Interest Entity is required by subsection (i) of the definition of Consolidated Funded Indebtedness to be included therein.
"Consolidated Net Income" means, for any period, for the Borrower and its Subsidiaries on a consolidated basis, the net income of the Borrower and its Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period, determined in accordance with GAAP; provided that, notwithstanding anything herein to the contrary, net income attributable to Variable Interest Entities shall be excluded from the calculation of Consolidated Net Income.
"Consolidated Total Assets" means, as at any date, all assets of the Borrower and its Subsidiaries determined on a consolidated basis in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any security issued by such Person or of any material agreement, material instrument or other material undertaking to which such Person is a party or by which it or any material amount of its property is bound.
"Control" means the 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 correlative thereto.
"Debt Rating" means, as of any date of determination, the S&P Rating, Moody's Rating or Fitch Rating (collectively, such ratings referred to as the "Debt Ratings").
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
"Default" means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
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"Default Rate" means an interest rate equal to (a) the Base Rate plus (b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per annum; provided, however, that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum.
"Defaulting Lender" means any Lender, as determined by the Administrative Agent, that has (a) has failed to fund any portion of the Committed Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder, (b) notified the Borrower or the Administrative Agent in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or under other agreements in which it commits to extend credit, (c) failed, within three Business Days after request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans, (d) otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute, or (e) (i) become or is insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment.
“Delayed Draw Termination Date” means July 21, 2015, provided, however, that if such date is not a Business day, the Delayed Draw Termination Date shall be the next preceding Business Day.
"Disposition" or "Dispose" means any sale, transfer, or other disposition of any property by any Person, including without limitation (a) any Sale and Leaseback Transaction and (b) any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
"Dollar" and "$" mean lawful money of the United States.
"Eligible Assignee" means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii), (v) and (vi) (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, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
"Environmental Liability" means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any of its Subsidiaries directly or indirectly resulting from or based upon
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(a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
"Equity Interests" means, with respect to any Person, all of the outstanding shares of capital stock of (or other ownership or profit interests in) such Person, all of the outstanding warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the outstanding securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other outstanding ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not the shares underlying such warrants, options, rights or other interests are outstanding on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated) under common control with the Borrower within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or 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 liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Borrower or any ERISA Affiliate.
"Eurodollar Rate" means:
(b) For any interest rate calculation with respect to a Base Rate Loan, the rate per annum (rounded upward, if necessary, to the next whole multiple of 1/100 of 1%) equal to LIBOR for an Interest Period of one month.
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"Eurodollar Rate Loan" means a Committed Loan that bears interest at a rate based on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Excluded Taxes" means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 10.13) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01(a)(ii), (a)(iii) or (c), amounts with respect to such Taxes were payable either to such Lender's assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient's failure to comply with Section 3.01(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA.
“Executive Order” has the meaning specified in Section 7.12.
“Farm Credit Lender” means a federally-chartered Farm Credit System lending institution organized under the Farm Credit Act of 1971.
"FASB ASC" means the Accounting Standards Codification of the Financial Accounting Standards Board.
"FATCA" means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) 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 of interest per annum (rounded upward, if necessary, to the nearest whole multiple of 1/100th of 1%) equal to the weighted average of the rates on overnight federal funds transactions with members of the Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on such date, or if no such rate is so published on such day, on the most recent day preceding such day on which such rate is so published.
"Fee Letter" means the letter agreement, dated December 12, 2014, between the Borrower and CoBank, ACB.
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"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 without third-party credit enhancement.
"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.
"FRB" means the Board of Governors of the Federal Reserve System of the United States.
"Fund" means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.
"GAAP" means, except to the extent provided in Section 1.03, generally accepted accounting principles in the United States as in effect from time to time and set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination.
"Governmental Authority" means the government of the United States or any 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).
"Government Program" has the meaning specified in Section 7.03(h).
"Guarantee" means, as to any Person without duplication, (a) any payment obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness payable by another Person (the "primary obligor") in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness of the payment of such Indebtedness, (iii) to maintain working capital, equity capital or any other financial statement condition or 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 the term "Guarantee" shall not include endorsements for collection or
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deposit, in either case in the ordinary course of business, or customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition or disposition of assets permitted under this Agreement (other than such obligations with respect to Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary payment obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term "Guarantee" as a verb has a corresponding meaning.
"Hazardous Materials" means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
"Impacted Lender" means a Defaulting Lender or a Lender as to which (a) the Administrative Agent has a good faith belief that the Lender has defaulted in fulfilling its obligations under one or more other syndicated credit facilities or (b) an entity that Controls the Lender has been deemed insolvent or become subject to a bankruptcy or other similar proceeding.
"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:
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For all purposes hereof, the Indebtedness of any Person shall include, without duplication, the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a party to such a joint venture (other than a limited partner in a limited partnership), unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitees" has the meaning specified in Section 10.04(b).
"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 three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date.
"Interest Period" means, as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on 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 would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;
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(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 month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the Maturity Date.
"Investment" means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of Equity Interests, debt or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of Indebtedness of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other 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.
"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 orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.
"Lender" has the meaning specified in the introductory paragraph hereto.
"Lending Office" means, as to any Lender, the office or offices of such Lender described as such in such Lender's Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.
“LIBOR” means, with respect to any Interest Period, a rate of interest reported by Bloomberg Information Services (or on any successor or substitute service providing rate quotations comparable to those currently provided by such service, as determined by the Administrative Agent from time to time, for the purpose of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest Period; provided that, in the event the Administrative Agent is not able to determine LIBOR using such methodology, the Administrative Agent shall notify the Borrower and the Administrative Agent and the Borrower will agree upon a substitute basis for obtaining such quotations.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever
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(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.
"Loan Documents" means this Agreement, each Note, the Subordination Agreement and the Fee Letter.
"Material Adverse Effect" means (a) a material adverse change in, or a material adverse effect upon, the financial condition or business of the Borrower and its Subsidiaries taken as a whole; or (b) a 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 Borrower to perform its obligations under any Loan Document to which it is a party; or (d) a material adverse effect upon the legality, validity, binding effect or enforceability against the Borrower of any Loan Document to which it is a party.
"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 January 21, 2022, provided, however, that, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.
"Moody's" means Moody's Investors Service, Inc. and any successor thereto.
"Moody's Rating" means, at any time, the rating issued by Moody's and then in effect with respect to the Borrower's senior unsecured long-term debt securities without third-party credit enhancement.
"Monetization Transaction" means, with respect to any Specified Equity Interests owned by the Borrower or any of its Subsidiaries, any transaction, agreement, device or arrangement (A) which results in the Borrower or any Subsidiary receiving payments on account of entering into contractual or other similar obligations and granting rights in, to or with respect to such Specified Equity Interests, or (B) by which the Borrower or any Subsidiary hedges against price 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 contributions, or during the preceding five plan years, has made or been obligated to make contributions.
"Net Proceeds" means with respect to each Disposition by the Borrower or any of its Subsidiaries under Section 7.05(g), the excess, if any, of (a) the sum of cash and all other assets received in connection with such Disposition (including without limitation, any cash, cash
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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' fees or commissions, legal, accounting and other professional and transactional fees) and (iii) income taxes reasonably estimated to be actually payable within two years of the date of the relevant transaction as a result of any gain recognized in connection 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.
"Note" means a promissory note made by the Borrower in favor of a Lender evidencing Loans made by such Lender, substantially in the form of Exhibit B.
"Obligations" means all advances to, and debts, liabilities, obligations, covenants and duties of the Borrower arising under any Loan Document or otherwise with respect to any Loan, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Borrower of any proceeding under any Debtor Relief Laws naming the Borrower as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
"OFAC" has the meaning specified in Section 5.18(c).
"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 bylaws (or equivalent or comparable constitutive documents with respect to any non‑U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or 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, with 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, performed its obligations under, received payments under, received or
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perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
"Other Taxes" means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or 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 with respect to Committed Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of Committed Loans occurring on such date.
"Parent Affiliated Companies" means collectively, (a) the Parent Company, and (b) all Subsidiaries and Affiliates of the Parent Company, other than the Borrower or any of the Borrower's Subsidiaries.
"Parent Company" means Telephone and Data Systems, Inc., a Delaware corporation.
"Parent Credit Agreement" means that that certain Credit Agreement, dated as of December 17, 2010, among Telephone and Data Systems, Inc., Bank of America, N.A., as the administrative agent and the lenders party thereto from time to time, as amended, restated and extended from time to time in accordance with the terms thereof.
"Participant" has the meaning specified in Section 10.06(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.
"Person" means 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 plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.
"Platform" has the meaning specified in Section 6.02.
"Prime Rate" means a variable rate of interest per annum equal to the “U.S. prime rate” as reported on such day in the Money Rates Section of the Eastern Edition of The Wall Street Journal, or if the Eastern Edition of The Wall Street Journal is not published on such day, such
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rate as last published in the Eastern Edition of The Wall Street Journal. In the event the Eastern Edition of The Wall Street Journal ceases to publish such rate or an equivalent on a regular basis, the term “Prime Rate” shall be determined on any day by reference to such other regularly published average prime rate for such date applicable to such commercial banks as is acceptable to the Administrative Agent in its sole discretion. Any change in Prime Rate shall be automatic, without the necessity of notice provided to the Borrower or any other Person.
"Public Lender" has the meaning specified in Section 6.02.
"Recipient" means the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder.
"Refinance" means, with respect to any Consolidated Funded Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue other Consolidated Funded Indebtedness in exchange, conversion or replacement for, such Consolidated Funded Indebtedness. "Refinances," "Refinanced" and "Refinancing" shall have correlative meanings.
"Refinancing Indebtedness" means Consolidated Funded Indebtedness of the Borrower or of any of its Subsidiaries to any of the Parent Affiliated Companies that Refinances any Consolidated Funded Indebtedness of the Borrower or any of its Subsidiaries existing on the Closing Date or created, incurred or arising in compliance with this Agreement, including any Consolidated Funded Indebtedness that Refinances Refinancing Indebtedness; provided that: (a) the Refinancing Indebtedness has a stated maturity no earlier than the stated maturity of the Consolidated Funded Indebtedness being Refinanced; (b) the Refinancing Indebtedness has an average life to maturity at the time the Refinancing Indebtedness is incurred that is equal to or greater than the average life to maturity of the Consolidated Funded Indebtedness being Refinanced; (c) the Refinancing Indebtedness has an aggregate principal amount that is equal to or less than the aggregate principal amount then outstanding (plus fees and expenses) under the Consolidated Funded Indebtedness being Refinanced; and (d) the Refinancing Indebtedness is issued on terms no more restrictive in any material respect than those contained in the Consolidated Funded Indebtedness being Refinanced.
"Register" has the meaning specified in Section 10.06(c).
"Related Parties" means, with respect to any Person, such Person's Affiliates and the partners, directors, officers, employees, agents, trustees, advisors and representatives of such Person and of such Person's Affiliates.
"Reportable Event" means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.
"Required Lenders" means, as of any date of determination, Lenders (including Voting Participants) having more than 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans has been terminated pursuant to Section 8.02, Lenders (including Voting Participants) holding in the aggregate more than 50% of the Total Outstandings; provided that the Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
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"Responsible Officer" means the Chairman, President and Chief Executive Officer, Executive Vice President - Finance, Chief Financial Officer and Treasurer, Chief Accounting Officer, Vice President and Controller or Assistant Secretary of the Borrower, or the Senior Vice President – Finance and Treasurer, Vice President and Assistant Treasurer or Vice President and Assistant Controller of the Parent Company and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the Borrower so designated by any two of the foregoing officers in a notice to the Administrative Agent or any other 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 the Borrower shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of the Borrower and such Responsible Officer shall be conclusively presumed to have acted on behalf of the Borrower.
"Restricted Payment" means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interest of the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Equity Interest, or on account of any return of capital to the Borrower's stockholders, partners or members (or the equivalent Person thereof).
"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.
"S&P" means Standard and Poor's Rating Services, a Standard & Poor's Financial Services LLC business, and any successor thereto.
"S&P Rating" means, at any time, the rating issued by S&P, and then in effect with respect to the Borrower's senior unsecured long-term debt securities without third-party credit enhancement.
"SEC" means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.
"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 indirectly owns a minority interest, or any Special Entity has made an Investment and directly or indirectly owns an interest and (ii) the Borrower has delivered prior written notice to the Administrative Agent of the creation of such Special Entity and its designation as a Special Entity.
"Specified Equity Interests" means Equity Interests owned by the Borrower or any of its Subsidiaries in any Person or Persons that (a) are not directly, or indirectly through one or more intermediaries, Controlled by the Borrower or by any of its Subsidiaries and (b) are either
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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.
"Subordination Agreement" means a Subordination Agreement, substantially in the form of Exhibit F or any other form approved by the Administrative Agent.
"Subsidiary" of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise Controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or Subsidiaries of the Borrower. For the avoidance of doubt, no Variable Interest Entity shall be considered a "Subsidiary" hereunder for any purpose other than solely as contemplated by Section 1.03(c).
"Swap Contract" means (a) any and all rate swap transactions, basis swaps, 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-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master 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 Agreement.
"Swap Termination Value" 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 upon 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).
"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
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Person, but in any case which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
"Taxes" means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
"Threshold Amount" means, on any date of determination and calculated as of the last day of the fiscal 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.
"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 assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
"United States" and "U.S." mean the United States of America.
“USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.
"Variable Interest Entity" means any of (i) Advantage Spectrum L.P., and Frequency Advantage L.P., its general partner, (ii) King Street Wireless, L.P., and King Street Wireless, Inc., its general partner, (iii) Aquinas Wireless, L.P. and (iv) any other entity that the Borrower is required to consolidate pursuant to FASB ASC 810; provided that once any such entity shall no longer constitutes a “variable interest entity” pursuant to FASB ASC 810, such entity shall no longer constitute a “Variable Interest Entity” hereunder.
“Voting Participant” has the meaning specified in Section 10.06(d).
“Voting Participant Notice” has the meaning specified in Section 10.06(d).
"wholly-owned" means, with respect to a Subsidiary of a Person, a Subsidiary of such Person all of the outstanding Equity Interests of which (other than (i) director's qualifying shares and (ii) shares issued to foreign nationals to the extent required by applicable law) are owned by such Person and/or by one or more wholly-owned Subsidiaries of such Person.
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Quarterly Payment Dates |
Quarterly Repayments |
March 31, 2016 |
$2,812,500 |
June 30, 2016 |
$2,812,500 |
September 30, 2016 |
$2,812,500 |
December 31, 2016 |
$2,812,500 |
March 31, 2017 |
$2,812,500 |
June 30, 2017 |
$2,812,500 |
September 30, 2017 |
$2,812,500 |
December 31, 2017 |
$2,812,500 |
March 31, 2018 |
$2,812,500 |
June 30, 2018 |
$2,812,500 |
September 30, 2018 |
$2,812,500 |
December 31, 2018 |
$2,812,500 |
March 31, 2019 |
$2,812,500 |
June 30, 2019 |
$2,812,500 |
September 30, 2019 |
$2,812,500 |
December 31, 2019 |
$2,812,500 |
March 31, 2020 |
$2,812,500 |
June 30, 2020 |
$2,812,500 |
September 30, 2020 |
$2,812,500 |
December 31, 2020 |
$2,812,500 |
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Quarterly Payment Dates |
Quarterly Repayments |
March 31, 2021 |
$2,812,500 |
June 30, 2021 |
$2,812,500 |
September 30, 2021 |
$2,812,500 |
December 31, 2021 |
$2,812,500 |
Notwithstanding anything herein to the contrary, the entire outstanding principal balance of the Committed Loans shall be due and payable in full in cash on the Maturity Date.
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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.
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The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Laws, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
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(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 Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting 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 documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender's obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), "FATCA" shall include any amendments made to FATCA after the date of this Agreement.
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and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Eurodollar Rate Loan (or of maintaining its obligation to make any such Loan), or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or any other amount) then, within fifteen days after demand by such Lender setting forth in reasonable detail such increased costs (but shall not require any Lender to disclose any confidential or proprietary information, and with a copy of such demand to the Administrative Agent given in accordance with Section 3.06), the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
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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, whether or not such Eurodollar Rate Loan was in fact so funded.
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Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.
Each Committed Loan Notice (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other 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 Committed Loan Notice.
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The Borrower represents and warrants to the Administrative Agent and the Lenders that:
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So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each Subsidiary to:
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Information required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) (to the extent any such information is included in materials otherwise filed with the SEC) may be
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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 website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Borrower's behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the 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 pdf copies of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Administrative Agent and/or CoBank, as the Lead Arranger, will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, "Borrower Materials") by posting the Borrower Materials on IntraLinks or another similar confidential and secure electronic system (the "Platform") and (b) certain of the Lenders (each, a "Public Lender") may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons' securities. All Borrower Materials that have been filed with the SEC and available on the SEC's EDGAR system shall be deemed "PUBLIC." The Borrower hereby agrees that (w) all Borrower Materials (if any) that are to be made 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 and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrower or its securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all Borrower Materials marked "PUBLIC" are permitted to be made available through a portion of the Platform designated "Public Side Information;" and (z) the Administrative Agent and CoBank, as the Lead Arranger, shall be entitled to treat any Borrower Materials that are not marked "PUBLIC" as being suitable only for posting on a portion of the Platform that is not designated "Public Side Information." Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials "PUBLIC."
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Each notice pursuant to this Section 6.03 (other than Section 6.03(e)) shall be accompanied by a written statement of a Responsible Officer of the Borrower setting forth details of the occurrence referred to therein and stating what action the Borrower has taken and proposes to take with respect thereto, if any. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached, if any.
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So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, the Borrower shall not, nor shall it permit any Subsidiary to, directly or indirectly:
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provided, however, that in each case of subsections (a) through (g) above and notwithstanding anything in this Section 7.05 or otherwise herein or in any Loan Documents, each such Disposition shall be, in Borrower's commercially reasonable judgment, for fair market value.
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Period |
Ratios |
From the Closing Date through December 31, 2015 |
3.75 to 1.00 |
From January 1, 2016 through June 30, 2016 |
3.50 to 1.00 |
From July 1, 2016 through December 31, 2016 |
3.25 to 1.00 |
From January 1, 2017 and thereafter |
3.00 to 1.00 |
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provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans shall automatically terminate and the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, in each case without further act of the Administrative Agent or any Lender.
First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (excluding principal and interest but including fees, charges and disbursements of counsel to the Administrative Agent to the extent the Borrower is obligated to reimburse such amounts in accordance with the Loan Documents and amounts payable under Article III) payable to the Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal and interest) payable to the Lenders (including fees, charges and disbursements of counsel to the respective Lenders to the extent 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 interest on the Loans and other Obligations, ratably among the Lenders in proportion to the respective amounts described in this subsection Third payable to them;
Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans, ratably among the Lenders in proportion to the respective amounts described in this subsection Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Borrower or as otherwise required by Law.
CREDIT AGREEMENT – Page 71
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
CREDIT AGREEMENT – Page 72
notice describing such Default is given in writing to the Administrative Agent by the Borrower or a Lender.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
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CREDIT AGREEMENT – Page 74
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.07 and 10.04.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
CREDIT AGREEMENT – Page 75
and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; and (ii) the Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender 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).
CREDIT AGREEMENT – Page 76
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 address shall be deemed received upon the sender's receipt of an acknowledgement from the intended recipient (such as by the "return receipt requested" function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing subsection (i) of notification that such notice or communication is available and identifying the website address therefor; provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.
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CREDIT AGREEMENT – Page 78
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 Borrower or any of them shall be vested exclusively in, and all actions and proceedings at Law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section 8.02 for the benefit of all the Lenders; provided, however, that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any Lender from exercising setoff rights in accordance with Section 10.08 (subject to the terms of Section 2.13), or (c) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to the Borrower under any Debtor Relief Law; and provided, further, that if at any time there is no Person acting as Administrative Agent hereunder and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section 8.02 and (ii) in addition to the matters set forth in subsections (b), (c) and (d) of the preceding proviso and subject to Section 2.11, any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.
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Subject to acceptance and recording thereof by the Administrative Agent pursuant to subsection (c) of this Section 10.06, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05 and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a
CREDIT AGREEMENT – Page 83
sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section 10.06.
Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects 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 same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section 10.06 (it being understood that the documentation required under Section 3.01(e) shall be delivered to the Lender who sells the participation); provided that such Participant (A) agrees to be subject to the provisions of Sections 3.06 and 10.13 as if it were an assignee under paragraph (b) of this Section 10.06 and (B) shall not be entitled to receive any greater payment under Sections 3.01 or 3.04, with respect to any participation, than the Lender from whom it acquired the applicable participation would have been entitled to receive, unless the sale of the participation to such Participant is made with the Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01, unless the Borrower is notified of the
CREDIT AGREEMENT – Page 84
participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 3.01(e) as thought it were a Lender. Each Lender that sells a participation agrees, at the Borrower's request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 3.06 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.11 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant's interest in the Loans or other obligations under the Loan Documents (the "Participant Register"); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant's interest in any commitments, loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
Notwithstanding the preceding paragraph, any Participant that is a Farm Credit Lender that (i) has purchased a participation in a minimum amount of $5,000,000, (ii) has been designated as a voting Participant (a “Voting Participant”) in a written notice (a “Voting Participant Notice”) sent by the relevant Lender (or the existing Voting Participant, as applicable) to the Borrower and the Administrative Agent and (iii) receives, prior to becoming a Voting Participant, the consent of the Borrower and the Administrative Agent (such Borrower and Administrative Agent consent to be required only to the extent and under the circumstances it would be required if such Voting Participant were to become a Lender pursuant to an assignment in accordance with Section 10.06(b)) and such consent is not required for an assignment to an existing Voting Participant), shall be entitled to vote as if such Voting Participant were a Lender on all matters subject to a vote by Lenders, and the voting rights of the selling Lender (or selling existing Voting Participant, as applicable) shall be correspondingly reduced, on a dollar-for-dollar basis. To be effective, each Voting Participant Notice shall include, with respect to each Voting Participant, the information that would be included by a prospective Lender in an Assignment and Assumption and the Dollar amount of the participation purchased. Notwithstanding the foregoing, each Farm Credit Lender designated as a Voting Participant in Schedule 10.06 shall be a Voting Participant without delivery of a Voting Participation Notice and without the prior written consent of the Borrower or the Administrative Agent. The selling Lender (or selling existing Voting Participant, as applicable) and the purchasing Voting Participant shall notify the Administrative Agent within three Business Days of any termination, reduction or increase of the amount of, such participation. The Administrative Agent shall be entitled to conclusively rely on information contained in Voting Participant Notices and all other
CREDIT AGREEMENT – Page 85
notices delivered pursuant hereto. The voting rights of each Voting Participant are solely for the benefit of such Voting Participant and shall not inure to any assignee or participant of such Voting Participant that is not a Farm Credit Lender.
For purposes of this Section, "Information" means all information received from the Borrower or any Subsidiary relating to the Borrower or any Subsidiary or any of their respective businesses, other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Borrower or any Subsidiary, provided that, in the case of information received from the Borrower or any Subsidiary after the date hereof, such information is not identified as "PUBLIC" pursuant to Section 6.02 or is otherwise clearly identified at the time of delivery as confidential. Any 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 has exercised the same degree of care
CREDIT AGREEMENT – Page 86
to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
Each of the Administrative Agent and the Lenders acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.
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A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.
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CREDIT AGREEMENT – Page 92
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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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UNITED STATES CELLULAR |
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CORPORATION |
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By: |
/s/ Steven T. Campbell |
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Steven T. Campbell |
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Executive Vice President - Finance, Chief Financial |
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Officer and Treasurer |
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By: |
/s/ Peter L. Sereda |
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Peter L. Sereda, Authorized Representative and |
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Senior Vice President - Finance and Treasurer of |
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Parent Company |
CREDIT AGREEMENT – Signature Page
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COBANK, ACB, |
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as Administrative Agent and a Lender |
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By: |
/s/ Andy Smith |
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Andy Smith |
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Vice President |
CREDIT AGREEMENT – Signature Page
SCHEDULE 1.01
SPECIAL ENTITIES
King Street Wireless, L.P., and King Street Wireless, Inc., its general partner
Aquinas Wireless, L.P., and Aquinas Wireless, Inc., its general partner
Advantage Spectrum, L.P., and Frequency Advantage, L.P., its general partner
Allentown SMSA Limited
Partnership
Farmers Cellular Telephone Company, Inc.
Farmers Mutual Cellular
Telephone Company, Inc.
Fresno MSA Limited Partnership
Iowa RSA No. 9 Limited
Partnership
Iowa RSA No. 12 Limited Partnership
Jefferson Cellular Telephone Company, Inc.
Los Angeles SMSA Limited Partnership
Madison SMSA Tower Holdings LLC
Oklahoma City SMSA Limited
Partnership
Oklahoma City SMSA Tower Holdings LLC
Pennsylvania RSA 1 Limited Partnership
Pennsylvania RSA No. 6(I) Limited Partnership
Pennsylvania RSA No. 6(II) Limited Partnership
Redding MSA Limited Partnership
Texas RSA 6 Limited Partnership
Texas RSA 6 Tower Holdings, LP
Venus Cellular Telephone Company, Inc.
SCHEDULE 2.01
COMMITMENTS
AND APPLICABLE PERCENTAGES
Lender |
Commitment |
Applicable Percentage |
CoBank, ACB |
$225,000,000 |
100.0% |
SCHEDULE 5.05
UNITED STATES CELLULAR CORPORATION
SUPPLEMENT TO INTERIM FINANCIAL STATEMENTS
See the attached copy of “Contractual and Other Obligations” from U.S. Cellular’s Form 10-K for the year ended December 31, 2013. There were no material changes outside the ordinary course of business since December 31, 2013 to the Contractual and Other Obligations disclosed in U.S. Cellular’s Form 10-K for the year ended December 31, 2013, except for a contractual obligation to Amdocs Software Systems Limited entered into on November 25, 2014, that is estimated to be approximately $110 million through September 30, 2019, as disclosed in U.S. Cellular’s Form 8-K dated November 25, 2014.
“Contractual and Other Obligations” from U.S. Cellular’s Form 10-K for the year ended December 31, 2013
Contractual and Other Obligations |
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At December 31, 2013, the resources required for contractual obligations were as follows: |
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Payments Due by Period |
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(Dollars in millions) |
Total |
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Less Than 1 Year |
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1 - 3 Years |
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3 - 5 Years |
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More Than 5 Years |
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Long-term debt obligations (1) |
$ |
886.0 |
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$ |
- |
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$ |
- |
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$ |
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$ |
886.0 |
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Interest payments on long-term debt obligations |
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1,846.2 |
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60.3 |
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120.4 |
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120.4 |
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1,545.1 |
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Operating leases (2) |
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1,363.6 |
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152.3 |
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251.3 |
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176.3 |
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783.7 |
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Capital leases |
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6.9 |
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0.5 |
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1.1 |
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1.0 |
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4.3 |
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Purchase obligations (3) |
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1,783.8 |
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589.9 |
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1,006.9 |
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121.0 |
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79.5 |
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$ |
5,900.0 |
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$ |
803.0 |
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$ |
1,379.7 |
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$ |
418.7 |
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$ |
3,298.6 |
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(1) |
Includes current and long-term portions of debt obligations. The total long-term debt obligation differs from Long-term debt in the Consolidated Balance Sheet due to capital leases and the $11.6 million unamortized discount related to U.S. Cellular’s 6.7% Senior Notes. See Note 10 — Debt in the Notes to Consolidated Financial Statements for additional information. |
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(2) |
Includes future lease costs related to office space, retail sites, cell sites and equipment. See Note 11 — Commitments and Contingencies in the Notes to Consolidated Financial Statements for additional information. |
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(3) |
Includes obligations payable under non-cancellable contracts, commitments for network facilities and transport services, agreements for software licensing, long-term marketing programs, and an agreement with Apple to purchase Apple iPhone products. As described more fully in Note 5 — Acquisitions, Divestitures and Exchanges in the Notes to Consolidated Financial Statements, U.S. Cellular expects to incur network-related exit costs in the Divestiture Markets as a result of the transaction, including: (i) costs to decommission cell sites and mobile telephone switching office (“MTSO”) sites, (ii) costs to terminate real property leases and (iii) costs to terminate certain network access arrangements in the subject markets. The impacts of these exit activities on U.S. Cellular's purchase obligations are reflected in the table above only to the extent that agreements were consummated at December 31, 2013. |
The table above excludes liabilities related to “unrecognized tax benefits” as defined by GAAP because U.S. Cellular is unable to predict the period of settlement of such liabilities. Such unrecognized tax benefits were $28.8 million at December 31, 2013.
SCHEDULE 5.13
SUBSIDIARIES AND
OTHER EQUITY INVESTMENTS
Part (a). Subsidiaries.
The Subsidiaries identified on Exhibit 21 to U.S. Cellular’s 10-K for the period ended 12/31/13, a copy of which is attached, except as follows:
The following companies identified on Exhibit 21 to U.S. Cellular’s 10-K for the period ended 12/31/13 should no longer be included as Subsidiaries:
North Carolina RSA 1 Partnership
USCIC of North Carolina RSA #1, Inc.
The
following companies should be added to the list of Subsidiaries identified on
Exhibit 21 to U.S. Cellular’s 10-K for the period ended 12/31/13:
VB Midwest I LLC
VB Midwest II LLC
VB Midwest III LLC
U.S. Cellular indirectly owns less than 100% of the following subsidiaries listed on Exhibit 21 to U.S. Cellular’s 10-K for the period ended 12/31/13:
Bangor
Cellular Telephone, L.P. – 97.5723% interest
Cedar Rapids Cellular Telephone, L.P. – 96.7636% interest
Community Cellular Telephone Company – 61.36% interest
Dubuque Cellular Telephone, L.P. – 97.5515% interest
Indiana RSA No. 4 Limited Partnership – 85.714% interest
Indiana RSA No. 5 Limited Partnership – 66.67% interest
Jacksonville Cellular Partnership – 97.567257% interest
Jacksonville Cellular Telephone Company - 97.567257% interest
Kansas #15 Limited Partnership – 75% interest
Kenosha Cellular Telephone, L.P. – 99.3223%
Madison Cellular Telephone Company – 92.5% interest
New York RSA 2 Cellular Partnership – 57.1428% interest
Racine Cellular Telephone Company – 96.0833% interest
St. Lawrence Seaway RSA Cellular Partnership – 60% interest
Texahoma Cellular Limited Partnership – 78.45135% interest
Western Sub-RSA Limited Partnership – 98.2353% interest
Wilmington Cellular Partnership – 98.82064% interest
Wilmington Cellular Telephone Company - 98.82064% interest
Yakima MSA Limited Partnership – 87.8085% interest
Part (b). Other Equity Investments.
Advantage Spectrum, L.P. – 90% interest
Allentown
SMSA Limited Partnership – 8.12% interest
Aquinas Wireless, L.P. – 90% interest
Farmers Cellular Telephone Company, Inc. – 49% interest
Farmers
Mutual Cellular Telephone Company, Inc. – 49% interest
Fresno MSA Limited Partnership – 1.9% interest
Iowa RSA No. 9 Limited Partnership – 15.001% interest
Iowa RSA No. 12 Limited Partnership – 24.5% interest
Jefferson Cellular Telephone Company, Inc. – 49% interest
King Street Wireless, L.P. – 90% interest
Los Angeles SMSA Limited Partnership – 5.5% interest
Madison SMSA Tower Holdings LLC – 4.938% interest
Oklahoma
City SMSA Limited Partnership – 14.6% interest
Oklahoma City SMSA Tower Holdings LLC – 14.6% interest
Pennsylvania RSA 1 Limited Partnership – 9.80% interest
Pennsylvania RSA No. 6(I) Limited Partnership – 8.17% interest
Pennsylvania RSA No. 6(II) Limited Partnership – 8.17% interest
Redding
MSA Limited Partnership – 2.9% interest
Texas RSA 6 Limited Partnership – 13.5% interest
Texas RSA 6 Tower Holdings, LP – 13.5% interest
Venus Cellular Telephone Company, Inc. – 49% interest
Exhibit 21 to U.S. Cellular's 10-K for the period ended 12/31/13 |
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Exhibit 21 |
UNITED STATES CELLULAR CORPORATION |
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SUBSIDIARY COMPANIES |
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December 31, 2013 |
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SUBSIDIARY COMPANIES |
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STATE OF ORGANIZATION |
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BANGOR CELLULAR TELEPHONE, L.P. |
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DELAWARE |
BARAT WIRELESS, INC. |
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DELAWARE |
BARAT WIRELESS, L.P. |
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DELAWARE |
CALIFORNIA RURAL SERVICE AREA #1, INC. |
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CALIFORNIA |
CARROLL PCS, INC. |
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DELAWARE |
CARROLL WIRELESS, L.P. |
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DELAWARE |
CEDAR RAPIDS CELLULAR TELEPHONE, L.P. |
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DELAWARE |
CELLVEST, INC. |
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DELAWARE |
CENTRAL CELLULAR TELEPHONES, LTD. |
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ILLINOIS |
CHAMPLAIN CELLULAR, INC. |
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NEW YORK |
COMMUNITY CELLULAR TELEPHONE COMPANY |
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TEXAS |
CROWN POINT CELLULAR, INC. |
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NEW YORK |
DUBUQUE CELLULAR TELEPHONE, L.P. |
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DELAWARE |
EASTERN NORTH CAROLINA CELLULAR JOINT VENTURE |
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DELAWARE |
HARDY CELLULAR TELEPHONE COMPANY |
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DELAWARE |
HUMPHREYS COUNTY CELLULAR, INC. |
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DELAWARE |
INDIANA RSA # 5, INC. |
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INDIANA |
INDIANA RSA NO. 4 LIMITED PARTNERSHIP |
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INDIANA |
INDIANA RSA NO. 5 LIMITED PARTNERSHIP |
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INDIANA |
IOWA RSA # 3, INC. |
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DELAWARE |
IOWA RSA # 9, INC. |
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DELAWARE |
IOWA RSA # 12, INC. |
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DELAWARE |
JACKSONVILLE CELLULAR PARTNERSHIP |
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NORTH CAROLINA |
JACKSONVILLE CELLULAR TELEPHONE COMPANY |
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NORTH CAROLINA |
KANSAS #15 LIMITED PARTNERSHIP |
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DELAWARE |
KENOSHA CELLULAR TELEPHONE, L.P. |
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DELAWARE |
MADISON CELLULAR TELEPHONE COMPANY |
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WISCONSIN |
MAINE RSA # 1, INC. |
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MAINE |
MAINE RSA # 4, INC. |
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MAINE |
MCDANIEL CELLULAR TELEPHONE COMPANY |
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DELAWARE |
MINNESOTA INVCO OF RSA # 7, INC. |
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DELAWARE |
NEWPORT CELLULAR, INC. |
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NEW YORK |
NH #1 RURAL CELLULAR, INC. |
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NEW HAMPSHIRE |
NORTH CAROLINA RSA 1 PARTNERSHIP |
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DELAWARE |
OREGON RSA #2, INC. |
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OREGON |
PCS WISCONSIN, LLC |
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WISCONSIN |
RACINE CELLULAR TELEPHONE COMPANY |
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WISCONSIN |
TENNESSEE NO. 3, LIMITED PARTNERSHIP |
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TENNESSEE |
TEXAHOMA CELLULAR LIMITED PARTNERSHIP |
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TEXAS |
TEXAS INVCO OF RSA # 6, INC. |
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DELAWARE |
TOWNSHIP CELLULAR TELEPHONE, INC. |
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DELAWARE |
UNITED STATES CELLULAR INVESTMENT CO. OF OKLAHOMA CITY, INC. |
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OKLAHOMA |
UNITED STATES CELLULAR INVESTMENT COMPANY, LLC |
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DELAWARE |
UNITED STATES CELLULAR INVESTMENT CORPORATION OF LOS ANGELES |
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INDIANA |
UNITED STATES CELLULAR OPERATING COMPANY LLC |
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DELAWARE |
UNITED STATES CELLULAR OPERATING COMPANY OF BANGOR |
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MAINE |
UNITED STATES CELLULAR OPERATING COMPANY OF CEDAR RAPIDS |
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DELAWARE |
UNITED STATES CELLULAR OPERATING COMPANY OF CHICAGO, LLC |
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DELAWARE |
UNITED STATES CELLULAR OPERATING COMPANY OF DUBUQUE |
|
IOWA |
UNITED STATES CELLULAR OPERATING COMPANY OF KNOXVILLE |
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TENNESSEE |
UNITED STATES CELLULAR OPERATING COMPANY OF MEDFORD |
|
OREGON |
UNITED STATES CELLULAR OPERATING COMPANY OF YAKIMA |
|
WASHINGTON |
UNITED STATES CELLULAR TELEPHONE COMPANY (GREATER KNOXVILLE), L.P. |
|
TENNESSEE |
USCC DISTRIBUTION CO., LLC |
|
DELAWARE |
USCC FINANCIAL L.L.C. |
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ILLINOIS |
USCC PURCHASE, LLC |
|
DELAWARE |
USCC REAL ESTATE CORPORATION |
|
DELAWARE |
USCC SERVICES, LLC |
|
DELAWARE |
USCC WIRELESS INVESTMENT, INC. |
|
DELAWARE |
USCCI CORPORATION |
|
DELAWARE |
USCIC OF FRESNO |
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CALIFORNIA |
USCIC OF NORTH CAROLINA RSA # 1, INC. |
|
DELAWARE |
USCOC NEBRASKA/KANSAS, INC. |
|
DELAWARE |
USCOC NEBRASKA/KANSAS, LLC |
|
DELAWARE |
USCOC OF CENTRAL ILLINOIS, LLC |
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ILLINOIS |
USCOC OF CHICAGO REAL ESTATE HOLDINGS, LLC |
|
DELAWARE |
USCOC OF CUMBERLAND, LLC |
|
DELAWARE |
USCOC OF GREATER IOWA, LLC |
|
DELAWARE |
USCOC OF GREATER MISSOURI, LLC |
|
DELAWARE |
USCOC OF GREATER NORTH CAROLINA, LLC |
|
DELAWARE |
USCOC OF GREATER OKLAHOMA, LLC |
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OKLAHOMA |
USCOC OF JACK/WIL, INC. |
|
DELAWARE |
USCOC OF JACKSONVILLE, LLC |
|
DELAWARE |
USCOC OF LACROSSE, LLC |
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WISCONSIN |
USCOC OF OREGON RSA # 5, INC. |
|
DELAWARE |
USCOC OF PENNSYLVANIA RSA NO. 10-B2, INC. |
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DELAWARE |
USCOC OF RICHLAND, INC. |
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WASHINGTON |
USCOC OF ROCHESTER, INC. |
|
DELAWARE |
USCOC OF SOUTH CAROLINA RSA # 4, INC. |
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SOUTH CAROLINA |
USCOC OF TEXAHOMA, INC. |
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TEXAS |
USCOC OF VIRGINIA RSA # 3, INC. |
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VIRGINIA |
USCOC OF WASHINGTON-4, INC. |
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DELAWARE |
USCOC OF WILMINGTON, LLC |
|
DELAWARE |
VERMONT RSA NO. 2-B2, INC. |
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DELAWARE |
WASHINGTON RSA # 5, INC. |
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WASHINGTON |
WESTELCOM CELLULAR, INC. |
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NEW YORK |
WESTERN SUB-RSA LIMITED PARTNERSHIP |
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DELAWARE |
WILMINGTON CELLULAR PARTNERSHIP |
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NORTH CAROLINA |
WILMINGTON CELLULAR TELEPHONE COMPANY |
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NORTH CAROLINA |
YAKIMA MSA LIMITED PARTNERSHIP |
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DELAWARE |
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OTHER ENTITIES CONSOLIDATED IN ACCORDANCE WITH GAAP |
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AQUINAS WIRELESS, L.P. |
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DELAWARE |
KING STREET WIRELESS, L.P. |
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DELAWARE |
KING STREET WIRELESS, INC. |
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DELAWARE |
SCHEDULE 7.01
UNITED STATES CELLULAR CORPORATION
EXISTING LIENS
NONE
SCHEDULE 7.03
EXISTING INDEBTEDNESS |
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As of Closing Date (1) |
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(Dollars in thousands) |
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U.S. Cellular Subsidiaries— |
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Obligation on capital leases of Subsidiaries |
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$ 2,149 |
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Total debt |
|
2,149 |
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|
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|
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Surety bonds of Subsidiaries |
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11,988 |
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|
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Total indebtedness |
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$ 14,137.00 |
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(1) The balances as of December 31, 2014 have been used as a proxy to the Closing Date amounts. There have been no substantive changes from December 31, 2014 to the Closing Date. |
With respect to the Special Entities King Street Wireless, L.P., Aquinas Wireless, L.P. and Advantage Spectrum, L.P. which 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., 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’ covenants” in the applicable partnership agreement “are performed,” including each Purchase Obligation. Thus, United States Cellular Corporation has guaranteed USCC Wireless’ payment obligation under the Purchase Obligation. There is no similar investment agreement with respect to Advantage Spectrum, L.P. The value of the Purchase Obligation as reported in the Borrower’s Form 10-Q for the quarterly period ended September 30, 2014 was $1,007,000.
SCHEDULE 7.07
EXISTING AFFILIATE TRANSACTIONS*
Farmers Cellular Telephone Company, Inc. – 49% interest
- Connection and Switch Sharing Agreement dated February 15, 1990 between USCOC of Greater Iowa, LLC (as successor to The SEG Cellular Limited Partnership) and Farmers Cellular Telephone Company. [Expired February 15, 2013 and automatically renews for successive 3 year terms unless terminated.]
- Management Agreement dated September 17, 1996 between United States Cellular Corporation and Farmers Cellular Telephone Company, Inc., including First Amendment dated October 1, 2003. Second Amendment effective September 30, 2010. [Expires September 30, 2017 but may be terminated earlier on 1 year’s notice.]
- Tower Lease dated January 16, 2002 between United States Cellular Corporation and Farmers Cellular Telephone Company, Inc. [Expired January 15, 2012, but continuing month-to-month.]
- Intercarrier Roamer Service Agreement dated January 21, 1998 between United States Cellular Corporation and Farmers Cellular Telephone Company, Inc., including First Amendment dated January 24, 2000 and Second Amendment dated July 16, 2001. [Perpetual but may be terminated on 30 days’ notice.]
- Spectrum Manager Lease Agreement for Ottumwa, Iowa (BTA 337) (Block PCS E-Block) dated August 13, 2012 between USCOC of Greater Iowa, LLC and Farmers Cellular Telephone Company, Inc. [Expires April 28, 2017.]
- Spectrum Manager Lease Agreement for Monroe, Iowa (RSA 3) (700 MHz C-Block) dated August 13, 2012 between USCOC of Greater Iowa, LLC and Farmers Cellular Telephone Company, Inc. [Expires June 13, 2019.]
Iowa RSA No. 9 Limited Partnership – 15.001% interest
- Management Agreement dated August 15, 1989 between United States Cellular Corporation and Iowa RSA No. 9 Limited Partnership, including First Amendment dated August 15, 1996 and Second Amendment dated August 15, 1999. [Perpetual but may be terminated on 6 months’ notice.]
Iowa RSA No. 12 Limited Partnership – 24.5% interest
- Connection and Switch Sharing Agreement dated October 1, 1990 between United States Cellular Operating Company of Cedar Rapids (as successor to Iowa Cellular, Inc.) and Iowa RSA No. 12 Limited Partnership. [Expired October 1, 2013 and automatically renews for successive 3 year terms unless terminated.]
- Connection and Transport Agreement dated October 1, 1990 between United States Cellular Operating Company of Dubuque and Iowa RSA No. 12 Limited Partnership. [Expired October 1, 2013 and automatically renews for successive 3 year terms unless terminated.]
- Management Agreement dated May 31, 1989 between United States Cellular Corporation and Iowa RSA No. 12 Limited Partnership, including First Amendment dated June 1, 1996, Second Amendment dated May 31, 2003 and Third Amendment dated May 31, 2010. [Expires May 31, 2017.]
* Each agreement on this Schedule 7.07 was made on an arms-length basis.
SCHEDULE 10.02
ADMINISTRATIVE AGENT'S OFFICE;
CERTAIN ADDRESSES FOR NOTICES
BORROWER:
UNITED STATES CELLULAR CORPORATION
c/o Telephone and Data Systems, Inc. (“TDS”)
30 N. LaSalle, Suite 4000
Chicago, IL 60602
Attention: Peter L. Sereda, Senior Vice President - Finance and Treasurer of
TDS
Telephone: 312-592-5308
Facsimile: 608-830-5530
Electronic Mail: peter.sereda@tdsinc.com
With a copy to (which shall not constitute notice)
UNITED STATES CELLULAR
CORPORATION
8410 West Bryn Mawr Avenue
Chicago, Illinois 60631
Attention: Steven T. Campbell, Executive Vice President – Finance, Chief
Financial Officer and Treasurer
Telephone:
773-399-4850
Facsimile: 773-399-8959
Electronic Mail: steve.campbell@uscellular.com
Website Address: www.uscellular.com
U.S. Taxpayer Identification Number: 62-1147325
and
SIDLEY
AUSTIN LLP
One S. Dearborn Street
Chicago, Illinois 60603
Attention: Stephen P. Fitzell, General Counsel of U.S. Cellular
Telephone: (312) 853-7379
Facsimile: (312) 853-7036
Electronic Mail: sfitzell@sidley.com
and
SIDLEY
AUSTIN LLP
One S. Dearborn Street
Chicago, Illinois 60603
Attention: William S. DeCarlo, General Counsel of TDS
Telephone: (312) 853-6094
Facsimile: (312) 853-7036
Electronic Mail: wdecarlo@sidley.com
ADMINISTRATIVE AGENT:
COBANK, ACB
5500 South Quebec Street
Greenwood Village, Colorado 80111
Attention: Communications Banking Group
Telephone (303) 740-4000
Telecopy (303) 224-2718
With a copy to (which shall not constitute notice)
COBANK, ACB
5500 South Quebec Street
Greenwood Village, Colorado
80111
Attention: Syndication Loan Accounting
Fax No.: (303) 740-4021
Telephone No.: (303) 740-6447
E-Mail: agency@cobank.com
SCHEDULE 10.06
VOTING PARTICIPANTS
1. 1st Farm Credit Services, FLCA
2. AgChoice Farm Credit, ACA, on behalf of itself and its wholly-owned subsidiaries, AgChoice Farm Credit, FLCA, and AgChoice Farm Credit, PCA
3. AgFirst Farm Credit Bank
4. AgStar Financial Services, FLCA
5. American AgCredit, FLCA
6. Badgerland Financial, FLCA
7. Farm Credit Bank of Texas
8. Farm Credit Mid-America, FLCA
9. Farm Credit West, FLCA
10. Farm Credit Services of America, FLCA
11. GreenStone Farm Credit ACA/FLCA
12. MidAtlantic Farm Credit, FLCA
13. United FCS, FLCA d/b/a FCS Commercial Finance Group
EXHIBIT A
FORM OF COMMITTED LOAN NOTICE
Date: ___________, 20__
To: CoBank, ACB, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of January 21, 2015 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the "Agreement;" the terms defined therein being used herein as therein defined), among United States Cellular Corporation, a Delaware corporation (the "Borrower"), CoBank, ACB, as Administrative Agent and a Lender and the Lenders from time to time party thereto.
The undersigned hereby requests (select one):
¨ A Borrowing of Committed Loans ¨ A conversion or continuation of Loans
1. On _________________________________ (a Business Day).
2. In the amount of $__________________.
3. Comprised of _________________________. [Type of Committed Loan requested]
4. For Eurodollar Rate Loans: with an Interest Period of _______ months.
The Committed Borrowing, if any, requested herein complies with the provisos to the first sentence of Section 2.01 of the Agreement.
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UNITED STATES CELLULAR CORPORATION |
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By: |
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Name: |
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Title: |
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By: |
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EXHIBIT B
FORM OF NOTE
_____________, 20__
FOR VALUE RECEIVED, the undersigned (the "Borrower") hereby promises to pay to _____________________ or its registered assigns (the "Lender"), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of January 21, 2015 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the "Agreement;" the terms defined therein being used herein as therein defined), among the Borrower, CoBank, ACB, as the Administrative Agent and a Lender and the Lenders from time to time party thereto.
The Borrower promises to pay interest on the unpaid principal amount of each Loan from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All 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 Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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UNITED STATES CELLULAR CORPORATION |
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
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LOANS AND PAYMENTS
WITH RESPECT THERETO
Date |
Amount of Loan Made |
End of Interest Period |
Amount of Principal or Interest Paid This Date |
Outstanding Principal Balance This Date |
Notation Made By |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
________ |
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EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _____________, 20___
To: CoBank, ACB, as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of January 21, 2015 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the "Agreement;" the terms defined therein being used herein as therein defined), among United States Cellular Corporation, a Delaware corporation (the "Borrower"), CoBank, ACB, as Administrative Agent and a Lender and the Lenders from time to time party thereto.
The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the of the Borrower, and that, as such, he/she is authorized to execute and deliver this 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 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 statements]
1. The Borrower has delivered the unaudited financial statements required by Section 6.01(b) of the Agreement for the fiscal quarter of the Borrower ended as of the above date. Such financial statements fairly present in all material respects the financial condition of the Borrower and its Subsidiaries in accordance with GAAP as of the date thereof and their results of operations and cash flows of the Borrower and its Subsidiaries 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 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 Borrower during the accounting period covered by such financial statements.
3. A review of the activities of the Borrower during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Borrower performed and observed all its Obligations under the Loan Documents, and
[select one:]
1. [as of the date of this certificate, to the best knowledge of the undersigned, during such fiscal period the Borrower performed and observed each covenant and condition of the Loan Documents applicable to it, and no Default has occurred and is continuing.]
--or--
2. [as of the date of this certificate, to the best knowledge of the undersigned, during such fiscal period the following covenants or conditions have not been performed or observed and the following is a list of each such Default and its nature and status:]
4. The financial covenant analyses and information set forth on Schedules 1 and 2 attached hereto are true and accurate in all material respects on and as of the date of this Certificate.
IN WITNESS WHEREOF, the
undersigned has executed this Certificate as
of , .
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UNITED STATES CELLULAR CORPORATION |
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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SCHEDULE 1
to the Compliance Certificate
($ in 000's)
For the Quarter/Year ended ___________________ ("Statement Date")
I. |
Section 7.10(a) – Consolidated Interest Coverage Ratio. |
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A. |
Consolidated EBITDA for four consecutive fiscal quarters ending on above date ("Subject Period"): |
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1. |
Consolidated Net Income for the Subject Period: |
$____________ |
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2. |
Distributions received from unconsolidated subsidiaries (to the extent not already included in Consolidated Net Income): |
$____________ |
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3. |
To the extent deducted from Consolidated Net Income, Consolidated Interest Charges for the Subject Period: |
$____________ |
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4. |
To the extent deducted from Consolidated Net Income, provision for income taxes for the Subject Period (net of any income tax credits for the Subject Period): |
$____________ |
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5. |
To the extent deducted from Consolidated Net Income, depreciation, amortization and accretion expenses for the Subject Period: |
$____________ |
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6. |
All other reductions of Consolidated Net Income for Subject Period which do not represent a cash item during the Subject Period: |
$____________ |
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7. |
All previous non-cash items deducted from Consolidated EBITDA pursuant to Line 8 below in a prior subject period which have become cash received items in the Subject Period: |
$____________ |
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8. |
All non-cash additions to Consolidated Net Income for the Subject Period: |
$____________ |
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9. |
All previous non-cash items added to Consolidated EBITDA pursuant to Line 6 above in a prior subject period which have become cash paid items in the Subject Period: |
$____________ |
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10. |
Consolidated EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5 + 6 + 7 – 8 – 9): |
$____________ |
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B. |
Consolidated Interest Charges for Subject Period: |
$____________ |
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C. |
Consolidated Interest Coverage Ratio (Line I.A.10 ¸ Line I.B): |
$____________ |
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Minimum required: |
3.00 to 1 |
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II. |
Section 7.10(b) – Consolidated Leverage Ratio. |
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A. |
Consolidated Funded Indebtedness at Statement Date: |
$____________ |
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B. |
Consolidated EBITDA for Subject Period (Line I.A.10 above): |
$____________ |
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C. |
Consolidated Leverage Ratio (Line II.A ¸ Line II.B): |
$____________ |
Maximum Permitted:
Period |
Ratio |
From the Closing Date through December 31, 2015 |
3.75:1.00 |
From January 1, 2016 through June 30, 2016 |
3.50:1.00 |
From July 1, 2016 through December 31, 2016 |
3.25:1.00 |
From January 1, 2017 and thereafter |
3.00:1.00 |
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
For the Quarter/Year ended ___________________ ("Statement Date")
Consolidated EBITDA
(in accordance with the definition of
Consolidated EBITDA
as set forth in the Agreement)
Consolidated |
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Twelve Months |
Consolidated |
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+ Consolidated Interest Charges |
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+ income taxes (net of any income tax credits) |
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+ depreciation expense |
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+ amortization expense |
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+ accretion expense |
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+ all other non-cash deductions |
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+ all previous non-cash items deducted from Consolidated EBITDA in a prior subject period which have become cash received items in the Subject Period |
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- non-cash income |
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- all previous non-cash items added to Consolidated EBITDA in a prior subject period which have become cash paid items in the Subject Period |
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= Consolidated EBITDA |
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EXHIBIT D-1
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] 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]2 hereunder are several and not joint.]3 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the "Credit Agreement"), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and 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] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, 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 Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to subsection (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to subsections (i) and (ii) above being referred to herein collectively as [the][an] "Assigned Interest"). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.
1. Assignor[s]: ______________________________
______________________________
_________________________
1 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.
2 Select as appropriate.
3 Include bracketed language if there are either multiple Assignors or multiple Assignees.
2. Assignee[s]: ______________________________
______________________________
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]]
3. Borrower: United States Cellular Corporation
4. Administrative Agent: CoBank, ACB, as the administrative agent under the Credit Agreement
5. Credit Agreement: Credit Agreement, dated as of January 21, 2015, among United States Cellular Corporation, CoBank, ACB, as Administrative Agent and a Lender and the Lenders from time to time party thereto.
6. Assigned Interest[s]:
Assignor[s]4 |
Assignee[s]5 |
Facility Assigned |
Aggregate Amount of Commitment for all Lenders6 |
Amount of Commitment Assigned |
Percentage Assigned of Commitment7 |
CUSIP Number |
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__________ |
$____________ |
$______ |
_________% |
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__________ |
$____________ |
$______ |
_________% |
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__________ |
$____________ |
$______ |
_________% |
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[7. Trade Date: __________________]8
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
_________________________
4 List each Assignor, as appropriate.
5 List each Assignee, as appropriate.
6 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.
7 Set forth, to at least 9 decimals, as a percentage of the Commitment of all Lenders thereunder.
8 To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.
The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR |
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[NAME OF ASSIGNOR] |
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By: |
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Title: |
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ASSIGNEE |
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[NAME OF ASSIGNEE] |
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By: |
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Title: |
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[Consented to and]9 Accepted:
COBANK, ACB,
as Administrative Agent
By:
Title:
[Consented to:]10
By:
Title:
_________________________
9 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
10 To be added only if the consent of the Borrower and/or other parties is required by the terms of the Credit Agreement.
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
[___________________] 11
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan 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. [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), (v) and (vi) of the Credit Agreement (subject to such consents, if any, as may be required under Section 10.06(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment 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 required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.
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 instrument. 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 governed by, and construed in accordance with, the law of the State of New York.
_________________________
11 Describe Credit Agreement at option of Administrative Agent.
EXHIBIT D-2
FORM OF ADMINISTRATIVE QUESTIONNAIRE
[On File with Agent]
EXHIBIT E
OPINION MATTERS
The matters contained in the following Sections of the Credit Agreement should be covered by the legal opinion:
Section 5.01(a), (b) and (c) (provided that the opinion required by subsection (c) will be limited to the Borrower and Illinois law)
Section 5.02
Section 5.03
Section 5.04
Section 5.14(b) (solely with respect to the Borrower
EXHIBIT F
SUBORDINATION AGREEMENT
dated as of January 21, 2015
-among-
TELEPHONE AND DATA SYSTEMS, INC. AND THE OTHER
SUBORDINATED CREDITORS
as Subordinated Creditors
UNITED STATES CELLULAR CORPORATION
as a Debtor
- and -
COBANK, ACB
as Administrative Agent for the Senior Creditors
TABLE OF CONTENTS |
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ARTICLE I DEFINITIONS |
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SECTION 1.1. |
Definitions in Senior Credit Agreement....................................................................................................................................................................................... |
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SECTION 1.2. |
Certain Terms.................................................................................................................................................................................................................................. |
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SECTION 1.3. |
Genral Provisions Relating to Definitions................................................................................................................................................................................... |
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ARTICLE II CONSOLIDATED FUNDED INDEBTEDNESS SUBORDINATION ARRANGEMENTS |
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SECTION 2.1. |
Agreement to Subordinate; Addition of Subordinated Creditors and Subordinated Debt................................................................................................ |
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SECTION 2.2. |
Limitations on Subordinated Debt Payments............................................................................................................................................................................ |
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SECTION 2.3. |
Permitted Sub Debt Payments; etc.............................................................................................................................................................................................. |
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SECTION 2.4. |
Payment Blockage Periods............................................................................................................................................................................................................ |
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SECTION 2.5. |
Bankruptcy or Insolvency Proceedings...................................................................................................................................................................................... |
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SECTION 2.6. |
Certain Other Bankruptcy Matters; etc...................................................................................................................................................................................... |
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SECTION 2.7. |
Delivery of Prohibited Payments or Distributions on Account of Subordinated Debt....................................................................................................... |
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SECTION 2.8. |
Subrogation...................................................................................................................................................................................................................................... |
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ARTICLE III LIMITATIONS ON CERTAIN ENFORCEMENT ACTIONS AND OTHER NEGATIVE COVENANTS |
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SECTION 3.1. |
Prohibitions on Commencement of Certain Enforcement Actions....................................................................................................................................... |
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SECTION 3.1. |
Limitations on Remedies Under Subordinated Debt Documents.......................................................................................................................................... |
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SECTION 3.1. |
Limitations on Liens Securing Subordinated Debt.................................................................................................................................................................... |
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ARTICLE IV WAIVERS AND CONSENTS |
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SECTION 4.1. |
Waivers of Notice; etc.................................................................................................................................................................................................................... |
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ARTICLE V ADDITIONAL REPRESENTATIONS AND OTHER COVENANTS |
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SECTION 5.1. |
Information Regarding Subordinated Debt............................................................................................................................................................................... |
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SECTION 5.2. |
Additional Representations and Covenants of Subordinated Creditors............................................................................................................................... |
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SECTION 5.3. |
No Other Subordination................................................................................................................................................................................................................. |
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SECTION 5.4. |
Legend; etc....................................................................................................................................................................................................................................... |
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SECTION 5.5. |
Consent to Credit Agreement........................................................................................................................................................................................................ |
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SECTION 5.6. |
No Impairment................................................................................................................................................................................................................................ |
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ARTICLE VI MISCELLANEOUS |
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SECTION 6.1. |
Effectiveness of Agreement.......................................................................................................................................................................................................... |
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SECTION 6.2. |
Amendments, Waivers; etc........................................................................................................................................................................................................... |
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SECTION 6.3. |
Further Assurances.......................................................................................................................................................................................................................... |
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SECTION 6.4. |
Specific Performance; Remedies Cumulative........................................................................................................................................................................... |
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SECTION 6.5. |
Severability....................................................................................................................................................................................................................................... |
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SECTION 6.6. |
Continuing Agreement................................................................................................................................................................................................................... |
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SECTION 6.7. |
Successors and Assigns.................................................................................................................................................................................................................. |
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SECTION 6.8. |
Notices............................................................................................................................................................................................................................................... |
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SECTION 6.9. |
Loan Document; etc....................................................................................................................................................................................................................... |
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SECTION 6.10. |
CHOICE OF LAW......................................................................................................................................................................................................................... |
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SECTION 6.11. |
WAIVER OF JURY TRIAL......................................................................................................................................................................................................... |
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SECTION 6.12. |
Survival........................................................................................................................................................................................................................................... |
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SECTION 6.13. |
Termination.................................................................................................................................................................................................................................... |
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SECTION 6.14. |
Indemnification............................................................................................................................................................................................................................. |
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SECTION 6.15. |
Expenses of Enforcement............................................................................................................................................................................................................ |
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SECTION 6.16. |
Obligations Several; No Third Parties Benefited...................................................................................................................................................................... |
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SECTION 6.17. |
Counterparts................................................................................................................................................................................................................................... |
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SECTION 6.18. |
Headings......................................................................................................................................................................................................................................... |
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SECTION 6.19. |
Delivery by Telecopier.................................................................................................................................................................................................................. |
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- ii - |
LIST OF SCHEDULES |
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Schedule A |
List of Debtors |
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Schedule B |
Permitted Sub Debt Payments |
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Schedule C |
List of Subordinated Creditors |
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Schedule D |
List of Subordinated Debt |
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Schedule E |
List of Subordinated Debt Documents |
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Schedule F |
List of Notice Addresses |
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LIST OF EXHIBITS |
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Exhibit A |
Form of Subordinated Creditor Supplement |
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Exhibit B |
Form of Subordinated Debt Supplement |
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- iii - |
SUBORDINATION AGREEMENT
This SUBORDINATION AGREEMENT is entered into as of January 21, 2015 by and among: (A) TELEPHONE AND DATA SYSTEMS, INC., a Delaware corporation, as a “Subordinated Creditor” hereunder; (B) each of the other SUBORDINATED CREDITORS (as defined below); (C) UNITED STATES CELLULAR CORPORATION, a Delaware corporation (hereinafter, together with its successors in title and assigns, called the “Borrower”), as a “Debtor” hereunder, and (D) COBANK, ACB, not in its individual capacity, but in its capacity as Administrative Agent (as defined below) for the Senior Creditors (as defined below).
PRELIMINARY STATEMENTS.
(1) Upon the terms and subject to the conditions contained in the Credit Agreement, dated as of January 21, 2015, among the Borrower, the Senior Lenders (as defined below) party thereto on and as of the date hereof and CoBank, as Administrative Agent for the Senior Creditors (as defined below) (as amended and in effect from time to time, the “Senior Credit Agreement”), the Senior Lenders agreed to make Extensions of Credit to the Borrower.
(2) This Agreement contains terms and provisions of subordination that are required by the Senior Creditors in connection with financing arrangements governed by the Senior Credit Agreement, and it is a condition precedent to the making of additional Extensions of Credit under the Senior Credit Agreement that the Subordinated Creditors and the Borrower shall have entered into this Agreement and shall have agreed to become bound by the terms of subordination and other provisions contained herein.
(3) The Subordinated Creditors and the Borrower have agreed with the Administrative Agent, acting for and on behalf of all of the Senior Creditors, to execute and deliver this Agreement and to become bound by the terms of subordination and other provisions set forth herein.
NOW, THEREFORE, in consideration of these premises, the Subordinated Creditors and the Borrower hereby agree with the Administrative Agent, acting for and on behalf of all of the Senior Creditors, as follows:
1.
DEFINITIONS
2. Definitions in Senior Credit Agreement. Unless otherwise defined herein, terms defined in the Senior Credit Agreement (as in effect on the date hereof) are used herein as therein defined.
3. Certain Terms. The following terms, when used in this Agreement, including the introductory paragraph and the Preliminary Statements hereto, shall, except where the context otherwise requires, have the following meanings:
“Administrative Agent” means CoBank, ACB, not in its individual capacity, but in its capacity as administrative agent for the Senior Creditors under the Senior Credit Agreement and the other Senior Loan Documents, and any successor to such administrative agent.
SUBORDINATION AGREEMENT – Page 1
“Agreement” means this Subordination Agreement, as amended and in effect from time to time.
“Affiliate” means any Person that would be considered to be an affiliate of another Person under Rule 144(a) of the Rules and Regulations of the Securities and Exchange Commission, as in effect on the date hereof, if such other Person were issuing securities. For purposes of this Agreement, none of the Subsidiaries of the Borrower shall be deemed to be an Affiliate of the Borrower or of any other Subsidiaries of the Borrower.
“Bankruptcy or Insolvency Proceeding” means, in relation or with respect to any Debtor or any other Person, (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding, relative to such Person or to its creditors, as such, or to its Property, (b) any liquidation, dissolution, reorganization or winding up of such Person, whether voluntary or involuntary, partial or complete, and whether or not involving receivership, insolvency or bankruptcy, or (c) any assignment for the benefit of creditors of such Person, or any other marshalling of Property or liabilities of such Person.
“Borrower” has the meaning specified in the introductory paragraph hereto.
“Capital Stock” means (a) in the case of any corporation, any corporate capital stock of any class or series, (b) in the case of any association or business entity, any shares, interests, participations, rights or other equivalents (howsoever designated) of corporate capital stock, and (c) in the case of any partnership or limited liability company, partnership or membership interests (whether general or limited).
“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, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments (including, without limitation, all purchase money Indebtedness and all direct obligations arising under letters of credit (including standby and commercial), bankers' acceptances, bank guaranties, surety bonds and similar instruments), (b) all obligations incurred as the deferred purchase price of property or services (other than (i) trade payables entered into in the ordinary course of business pursuant to ordinary terms and (ii) ordinary course of business purchase price adjustments and earnouts); (c) all reimbursement and other payment obligations with respect to letters of credit, bankers’ acceptances, surety bonds and other similar documents; (d) all obligations evidenced by promissory notes, bonds, debentures or other similar instruments, including all obligations so evidenced that are incurred in connection with the acquisition of property or any business; (e) all indebtedness created under any conditional sale or other title retention agreements or sales of accounts receivable; (f) all non-recourse indebtedness of the kind described in clause (a) through clause (e) secured by Liens on property of the obligor; (g) Attributable Indebtedness in respect of capital leases and Synthetic Lease Obligations, (h) net obligations under any Swap Contract, (i) all Indebtedness of the types referred to in subsections (a) through (h) above of any partnership or joint venture (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
SUBORDINATION AGREEMENT – Page 2
partner in a limited partnership), unless such Indebtedness is expressly made non-recourse to the Borrower or such Subsidiary and (j) all Guarantees in respect of indebtedness of the kind described in clause (a) through clause (h) above; excluding up to $25,000,000 in the aggregate of contingent liabilities of the Borrower and its Subsidiaries which are not required by GAAP to be recorded on the balance sheet of the Borrower and its Subsidiaries. For all purposes of this Agreement, the term “Consolidated Funded Indebtedness” shall not include, with respect to the Borrower and its Subsidiaries, the contractual and other similar obligations of the Borrower and its Subsidiaries with respect to any Monetization Transactions.
“Debtors” means, collectively, the Borrower, each (if any) of the Subsidiaries of the Borrower identified on Schedule A attached hereto, and each (if any) of the other Subsidiaries of the Borrower which is an obligor of any kind with respect to any Subordinated Debt.
“Enforcement Action” means, in relation to or with respect to any Debtor or any other Person, any of the following:
4. the acceleration of the maturity of all or any part of any Consolidated Funded Indebtedness of such Person;
5. the commencement or pursuit of any action at law or other legal proceeding against such Person to collect all or any part of any Consolidated Funded Indebtedness of such Person, or the enforcement of any other rights or remedies against such Person under or with respect to all or any part of any Consolidated Funded Indebtedness of such Person, whether by action at law, suit in equity, arbitration proceedings or any other similar proceedings;
6. the realization, foreclosure or other enforcement of any Liens of any kind on all or any part of any Property of such Person, or the obtaining of payment of any Consolidated Funded Indebtedness of such Person through exercise of any rights of set-off, counterclaim or cross-claim; or
7. the commencement or initiation of any Bankruptcy or Insolvency Proceeding against such Person, or the joining with any other creditor or creditors of such Person to commence or initiate any Bankruptcy or Insolvency Proceeding against such Person.
“Equity Interests” means, with respect to any Person, all of the outstanding shares of capital stock of (or other ownership or profit interests in) such Person, all of the outstanding warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the outstanding securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other outstanding ownership or profit 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.
“Event of Default” has the meaning specified for that term in the Senior Credit Agreement.
SUBORDINATION AGREEMENT – Page 3
“Extension of Credit” means the making of any advance or loan or the extension of any other credit or financial accommodation of any kind or character.
“Instrument” means any contract, agreement, indenture, mortgage or other document or writing (whether a formal agreement, letter or otherwise) under which any obligation is evidenced, assumed or undertaken, or any right to any Lien is granted or perfected.
“Parent Affiliated Companies” means, collectively, (a) the Parent Company, and (b) all Subsidiaries and Affiliates of the Parent Company, other than the Borrower and the Borrower’s Subsidiaries.
“Parent Company” means Telephone and Data Systems, Inc., a Delaware corporation.
“Payment Blockage Notice” has the meaning specified in Section 2.4(a).
“Payment Blockage Period” means, in relation to any Payment Blockage Notice, the period beginning on the date on which such Payment Blockage Notice shall be received by the Parent Company (as provided in Section 2.4(a)) and ending on the date determined pursuant to Section 2.4(b).
“payment in full” and “paid in full” mean payment in full in cash.
“payment or distribution on account of Subordinated Debt” means any payment or distribution of any kind or character, whether in cash or other Property, or any combination thereof, and whether voluntary or involuntary, (a) on account of any principal of (or premium, if any), interest on, or other amounts owing in respect of all or any part of any Subordinated Debt, or (b) on account of any purchase, repurchase, redemption, retirement, prepayment, defeasance or other acquisition for value of any Subordinated Debt. For purposes of this Agreement, “payments or distributions on account of Subordinated Debt” shall in any event include: (i) all payments payable on account of Subordinated Debt by virtue of the provisions of, or any security for, any Instrument governing any other Consolidated Funded Indebtedness of the Borrower or any of its Subsidiaries which is subordinate in right of payment to any Subordinated Debt; (ii) all payments on account of Subordinated Debt made through exercise of any rights of set-off, counterclaim or cross-claim; and (iii) all payments on account of Subordinated Debt made through realization, foreclosure or other enforcement of any Liens of any kind.
“Permitted Equity Interests” means any Equity Interests of the Borrower on account of or with respect to which none of the Borrower or its Subsidiaries has any obligation of any kind to (a) declare or pay any dividends or make other distributions at any time on or prior to January 2, 2013, except dividends or other distributions to be paid in Permitted Equity Interests of the Borrower, (b) make any redemption, repurchase, retirement or acquisition, whether through the Borrower or any of its Subsidiaries or otherwise, at any time on or prior to January 2, 2013, except (in any such case) with Permitted Equity Interests of the Borrower, (c) make any return of capital to the holder thereof at any time on or prior to January 2, 2013, except with Permitted Equity Interests of the Borrower, or (d) make any other distributions of any kind at any time on or prior to January 2, 2013, except distributions to be made in Permitted Equity Interests of the Borrower.
SUBORDINATION AGREEMENT – Page 4
“Permitted Interest Payments” has the meaning specified in Section 2.3(a).
“Permitted Sub Debt Payments” means, collectively, (a) Permitted Interest Payments, and (b) the other specific payments or distributions identified and described in Schedule B attached hereto (as amended or supplemented from time to time).
“Property” means any interest in any kind of property or asset, whether real, personal or mixed, and whether tangible or intangible.
“Senior Compliance Event of Default” means any Event of Default other than a Senior Payment Event of Default.
“Senior Credit Agreement” has the meaning specified in the Preliminary Statements hereto.
“Senior Creditors” means, collectively, (a) all of the Senior Lenders, and (b) the Administrative Agent. For purposes of this Agreement, the term “Senior Creditors” shall in any event include any and all lawful holders from time to time of all or any part of the Senior Debt.
“Senior Debt” means, collectively, all Consolidated Funded Indebtedness of the Borrower or of any of its Subsidiaries, contingent or otherwise, now or hereafter existing, under or with respect to:
(a) the unpaid principal of any and all Senior Extensions of Credit made or to be made or otherwise extended to the Borrower or to any of its Subsidiaries under the Senior Debt Documents;
(b) interest (including interest accruing at the contract rate after the commencement of any Bankruptcy or Insolvency Proceedings in relation to the Borrower or any of its Subsidiaries, whether or not such interest accrues after the commencement of such proceedings for purposes of any applicable insolvency laws or is an allowed claim in such proceedings) on Senior Extensions of Credit described in clause (a) or on any other Consolidated Funded Indebtedness described in this clause (b) or in clause (c) of this definition, and fees, costs, expenses, indemnities, reimbursements and other amounts owing under any Senior Debt Documents (whether or not any such fees, costs, expenses or other amounts are incurred or otherwise accrue after the commencement of any Bankruptcy or Insolvency Proceedings in relation to the Borrower or any of its Subsidiaries, and whether or not all or any portion of any claims with respect thereto are allowed claims in any such proceedings); and
(c) claims by any of the Senior Creditors against the Borrower or any of its Subsidiaries under any guaranties by the Borrower or by any of its Subsidiaries of any Consolidated Funded Indebtedness described in clause (a) or (b) of this definition (whether or not any of such claims are made against the Borrower or any of its Subsidiaries after the commencement of any Bankruptcy or Insolvency Proceedings with respect to any of such Persons, and whether or not all or any portion of such claims are allowed claims in any such proceedings).
SUBORDINATION AGREEMENT – Page 5
“Senior Debt Documents” means, collectively, (a) the Senior Credit Agreement and all of the other Senior Loan Documents, (b) all other Instruments pursuant to which any Consolidated Funded Indebtedness owing to the Senior Creditors under the Senior Credit Agreement or any other Senior Loan Documents shall be deferred, extended, renewed, replaced, refunded or refinanced, in whole or in part, and without limitation as to parties, maturities, amounts, interest rates or other provisions, and (c) all other Instruments executed in connection with or evidencing, governing, guarantying or securing any Consolidated Funded Indebtedness under any Instruments referred to in clause (a) or (b) of this definition; in each case (with respect to any Instruments referred to in clause (a), (b) or (c)), as modified, amended or supplemented from time to time.
“Senior Extensions of Credit” means, collectively:
(a) any and all Extensions of Credit made or to be made or otherwise extended by Senior Creditors under or in respect of Senior Debt Documents at any time and from time to time on, prior to or after the date hereof to the Borrower or to any of its Subsidiaries; and
(b) any and all Extensions of Credit replacing, refunding or refinancing, in whole or in part, whether directly or indirectly, and without limitation as to parties, maturities, amounts, interest rates or other provisions, any or all of the Senior Debt described in clause (a), clause (b) or clause (c) of that defined term.
“Senior Lenders” has the meaning specified in the Senior Credit Agreement for the term “Lenders”.
“Senior Loan Documents” has the meaning specified in the Senior Credit Agreement for the term “Loan Documents”.
“Senior Payment Event of Default” means any Event of Default resulting from any default by the Borrower in the payment or prepayment of any principal, interest or any other sum that has become due and payable under the Senior Credit Agreement or any of the other Senior Debt Documents.
“Subordinated Creditors” means, collectively, and in each case solely in their respective capacities as holders of Subordinated Debt, (a) the Parent Company, (b) each of the other Parent Affiliated Companies identified in Schedule C attached hereto (as amended or supplemented from time to time), and (c) each of the other Parent Affiliated Companies that, at any time after the date hereof, shall execute and deliver to the Administrative Agent a Subordinated Creditor Supplement and thereby become a party hereto and bound hereby as a “Subordinated Creditor” hereunder.
“Subordinated Creditor Supplement” means any supplement to this Agreement, in or substantially in the form of Exhibit A attached hereto, by which any Parent Affiliated Company shall become a party to and bound by this Agreement as a “Subordinated Creditor” hereunder and additional Subordinated Debt and Subordinated Debt Documents shall be made subject to this Agreement.
SUBORDINATION AGREEMENT – Page 6
“Subordinated Debt” means, collectively:
(a) all Consolidated Funded Indebtedness of the Borrower or of any of its Subsidiaries identified in Schedule D attached hereto (as amended or supplemented from time to time);
(b) all other Consolidated Funded Indebtedness of the Borrower or of any of its Subsidiaries from time to time identified and described in any Subordinated Creditor Supplement or any Subordinated Debt Supplement which at any time after the date hereof shall be executed by any Subordinated Creditor and delivered to the Administrative Agent;
(c) interest (including all (if any) interest accruing after the commencement of any Bankruptcy or Insolvency Proceedings in relation to the Borrower or any of its Subsidiaries) payable on or with respect to any Consolidated Funded Indebtedness described in clause (a), (b), (c), (d) or (e) of this definition, and all fees, costs, expenses, indemnities, reimbursements and other amounts owing in respect of any such Consolidated Funded Indebtedness;
(d) all obligations of the Borrower or any of its Subsidiaries, contingent or otherwise, to purchase, repurchase, redeem, retire, prepay, defease or otherwise acquire any or all of the Consolidated Funded Indebtedness of the Borrower or of any of its Subsidiaries described in clause (a), (b), (c) or (e) of this definition; and
(e) all Consolidated Funded Indebtedness under or with respect to guaranties by the Borrower or by any of its Subsidiaries of any Consolidated Funded Indebtedness described in any of clause (a), (b), (c) or (d) of this definition.
“Subordinated Debt Documents” means, collectively:
(a) all Instruments from time to time identified and described in Schedule E attached hereto (as amended and supplemented from time to time);
(b) all other Instruments from time to time identified and described in any Subordinated Creditor Supplement or any Subordinated Debt Supplement which at any time after the date hereof shall be executed by any Subordinated Creditor and delivered to the Administrative Agent;
(c) each (if any) Instrument pursuant to which any Subordinated Debt of the Borrower or of any of its Subsidiaries to each or any of the Subordinated Creditors, whether now or hereafter existing, is or will be evidenced, governed, guaranteed or secured;
(d) each Instrument pursuant to which any Subordinated Debt to any of the Subordinated Creditors shall be deferred, extended, renewed, replaced, refunded or refinanced, in whole or in part; and
(e) each other Instrument executed in connection with or otherwise evidencing, governing, guarantying or securing any Subordinated Debt of any kind, including, without limitation, any Subordinated Debt under any Instrument referred to in clause (a), (b), (c) or (d) of
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this definition; in each case (with respect to any Instrument referred to in clause (a), (d) or (e) of this definition), as modified, amended or supplemented from time to time.
“Subordinated Debt Supplement” means any supplement to this Agreement, in or substantially in the form of Exhibit B attached hereto, by which any Subordinated Debt and Subordinated Debt Documents shall be made subject to this Agreement and thereby become “Subordinated Debt” and “Subordinated Debt Documents” hereunder.
8. General Provisions Relating to Definitions. Terms for which meanings are defined in this Agreement shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The term “including” means including, without limiting the generality of any description preceding such term. Each reference herein to any Person shall include a reference to such Person’s successors in title and assigns or (as the case may be) his successors, assigns, heirs, executors, administrators and other legal representatives. References to any Instrument defined in this Agreement refer, unless otherwise provided herein, to such Instrument as originally executed, or, if subsequently varied, replaced or supplemented from time to time, as so varied, replaced or supplemented and in effect at the relevant time of reference thereto.
9.
CONSOLIDATED FUNDED INDEBTEDNESS SUBORDINATION ARRANGEMENTS
10. Agreement to Subordinate; Addition of Subordinated Creditors and Subordinated Debt.
11. Each of the Subordinated Creditors severally agrees with and for the benefit of each of the Senior Creditors that all Subordinated Debt (whether now existing or from time to time after the date hereof, incurred, assumed, created or arising) owing to it is hereby expressly subordinated and made junior in right of payment, to the extent and in the manner hereinafter provided in this Article II, to the prior payment in full of all Senior Debt (whether now existing or from time to time after the date hereof, incurred, assumed, created or arising).
12. Any Parent Affiliated Company which has not previously become a party to and bound by this Agreement as a “Subordinated Creditor” hereunder may at any time become a Subordinated Creditor under this Agreement by executing and delivering to the Administrative Agent a properly completed Subordinated Creditor Supplement. Upon execution and delivery of a Subordinated Creditor Supplement by any Parent Affiliated Company, (i) such Parent Affiliated Company shall automatically (without any other action on the part of any party hereto) become a Subordinated Creditor hereunder for all purposes of this Agreement, (ii) the Consolidated Funded Indebtedness identified and described in such Subordinated Creditor Supplement shall automatically (without any other action on the part of any party hereto) become Subordinated Debt for all purposes of this Agreement, and (iii) all related Subordinated Debt Documents identified and described therein shall automatically (without any other action on the part of any party hereto) become Subordinated Debt Documents for all purposes of this Agreement.
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13. Any Consolidated Funded Indebtedness not previously designated as Subordinated Debt under this Agreement shall automatically become Subordinated Debt under this Agreement upon the due execution by the Subordinated Creditor to whom such Consolidated Funded Indebtedness is owed and delivery to the Administrative Agent of a properly completed Subordinated Debt Supplement identifying and describing such Consolidated Funded Indebtedness and all Subordinated Debt Documents pursuant to which such Subordinated Debt is evidenced or governed. Upon execution and delivery of a Subordinated Debt Supplement with respect to any Consolidated Funded Indebtedness, such Consolidated Funded Indebtedness and all related Subordinated Debt Documents described therein shall automatically (without any other action on the part of any party hereto) become Subordinated Debt and Subordinated Debt Documents for all purposes of this Agreement.
14. Limitations on Subordinated Debt Payments. Except as and to the extent otherwise expressly permitted or provided by Sections 2.3 and 2.5 hereof, neither the Borrower nor any of its Subsidiaries shall at any time make any payments or distributions of any kind on account of Subordinated Debt, whether in cash, securities or other Property or by way of conversion, exchange or set-off or otherwise, and the Subordinated Creditors shall not at any time demand, receive or accept from the Borrower or from any of its Subsidiaries, any payments or distributions on account of Subordinated Debt.
15. Permitted Sub Debt Payments; etc.
16. So long as no Payment Blockage Period shall be continuing at the time of payment, the Borrower and its Subsidiaries shall be permitted to pay to Subordinated Creditors, and Subordinated Creditors shall be entitled to receive and apply, interest that has accrued on Subordinated Debt at the applicable contract rates of interest set forth in the applicable Subordinated Debt Documents (as in effect on the date such documents shall become Subordinated Debt Documents) (all such permitted payments of interest being herein called “Permitted Interest Payments”). No prepayments of interest which has not yet accrued under applicable Subordinated Debt Documents shall be permitted by this Agreement, and no such prepayments of such interest shall constitute “Permitted Interest Payments” for purposes of this Agreement.
17. So long as no Payment Blockage Period shall be continuing, the Borrower and its Subsidiaries shall be permitted to pay to Subordinated Creditors, and Subordinated Creditors shall be entitled to receive and apply, the other Permitted Sub Debt Payments identified and described in Schedule B attached hereto (as amended and supplemented from time to time).
18. So long as no Bankruptcy or Insolvency Proceeding shall be continuing with respect to the Borrower or any of its Subsidiaries, Subordinated Creditors shall be entitled at any time and from time to time to convert all or any part of any Subordinated Debt into, or (as the case may be) to exchange all or any part of any Subordinated Debt for, Permitted Equity Interests of the Borrower.
19. Except as otherwise expressly permitted by paragraph (a), paragraph (b) or paragraph (c) of this Section 2.3 or by Section 2.5 hereof, or as otherwise expressly consented to in writing by the Administrative Agent in any particular instance, the limitations on the making of payments or
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distributions on account of Subordinated Debt set forth in Section 2.2 shall be absolute, unconditional and irrevocable at all times and in all circumstances.
20. Payment Blockage Periods.
21. The Administrative Agent may, while any Event of Default is continuing, give to each Subordinated Creditor a written notice (“Payment Blockage Notice”) of such Event of Default and the imposition of a Payment Blockage Period pursuant to this Section 2.4.
22. With respect to each Payment Blockage Notice identifying any one or more Senior Payment Events of Default, a Payment Blockage Period shall commence on the date on which the Subordinated Creditors shall receive from the Administrative Agent such Payment Blockage Notice and shall terminate on the earlier to occur of: (i) the date on which each of the Senior Payment Events of Default identified in such Payment Blockage Notice shall have been cured or waived or shall otherwise have ceased to exist; or (ii) the date on which such Payment Blockage Period shall be terminated by written notice to the Subordinated Creditors from the Administrative Agent. So long as any Senior Payment Event of Default shall be continuing, any number of Payment Blockage Notices identifying Senior Payment Events of Default may be given and any number of Payment Blockage Periods may be commenced by the Administrative Agent pursuant to this paragraph (b).
23. With respect to each Payment Blockage Notice identifying any one or more Senior Compliance Events of Default, a Payment Blockage Period shall commence on the date on which the Subordinated Creditors shall receive from the Administrative Agent such Payment Blockage Notice and shall terminate on the earlier to occur of: (i) the date 179 days after the commencement of such Payment Blockage Period (or such earlier date as may be required by the next sentence); (ii) the date on which each of the Senior Compliance Events of Default identified in such Payment Blockage Notice shall have been cured or waived or shall otherwise have ceased to exist; or (iii) the date on which such Payment Blockage Period shall be terminated by written notice to the Subordinated Creditors from the Administrative Agent. So long as any Senior Compliance Event of Default shall be continuing, any number of Payment Blockage Notices identifying Senior Compliance Events of Default may be given and any number of Payment Blockage Periods may be commenced by the Administrative Agent pursuant to this paragraph (c), but the aggregate duration of all Payment Blockage Periods commenced by the Administrative Agent pursuant to this paragraph (c) during any period of 365 consecutive days shall not exceed 179 days. Notwithstanding any other provision of this paragraph (c), no Senior Compliance Event of Default which existed or was continuing on the date of the commencement of any Payment Blockage Period pursuant to this paragraph (c) shall be, or be made, the basis for the commencement of a second Payment Blockage Period pursuant to this paragraph (c).
24. Bankruptcy or Insolvency Proceedings. Each of the Subordinated Creditors and Debtors hereby agrees with the Senior Creditors that, in the event of any Bankruptcy or Insolvency Proceeding with respect to any of the Debtors:
25. the Senior Creditors shall first be entitled to receive payment in full of all Senior Debt before the Subordinated Creditors shall be entitled to receive any payment or distribution on account of Subordinated Debt from such Debtor;
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26. the Senior Creditors shall be entitled to receive from such Debtor (until payment in full of all Senior Debt) all payments and distributions on account of Subordinated Debt which would otherwise be payable or deliverable to the Subordinated Creditors, including, without limitation, all cash, securities, Equity Interests and other Property distributed, divided or applied by way of dividend or payment, and any securities or Equity Interests issued, on account of the Subordinated Debt, and, to that end, all such payments and distributions from such Debtor that otherwise would be payable or deliverable upon or with respect to any Subordinated Debt shall instead be paid or delivered forthwith directly to the Administrative Agent, for the benefit of the Senior Creditors, in the same form as so received (with any necessary endorsement or assignment) for application to the payment of Senior Debt until all Senior Debt shall have been paid in full, and the Administrative Agent shall be entitled to hold all such securities, Equity Interests and other Property as collateral for the Senior Debt, to sell, assign, transfer or dispose of such securities, Equity Interests and other Property as the Administrative Agent shall deem appropriate, and to apply all proceeds from the sale, assignment, transfer or disposition of such securities, Equity Interests and other Property to the Senior Debt;
27. if any Subordinated Creditor shall fail to file a proper proof of claim in the form required by applicable law against such Debtor in respect of the Subordinated Debt prior to the date thirty (30) days before the expiration of the time to file such claim, then the Administrative Agent is authorized, but shall have no obligation, to file such claim in the name of and on behalf of such Subordinated Creditor; and
28. the Subordinated Creditors shall duly and promptly take such action as the Administrative Agent may reasonably request to collect Subordinated Debt from such Debtor, and to collect and receive any and all payments or distributions on account of such Subordinated Debt.
29. Certain Other Bankruptcy Matters; etc.
(a) In order to carry out and to give full effect to the express intentions of each of the parties hereto as set out in Section 2.5, and in order better to ensure the performance by the Subordinated Creditors of the covenants of the Subordinated Creditors with the Administrative Agent, for the benefit of the Senior Creditors, contained in Section 2.5, each of the Subordinated Creditors hereby absolutely and irrevocably constitutes and appoints the Administrative Agent its true and lawful agent and attorney-in-fact, with full power of substitution, in the name and on behalf of such Subordinated Creditor or in the name of the Administrative Agent or any of the Senior Creditors or in the name of the Administrative Agent’s substitute agents or attorneys, to do, in any Bankruptcy or Insolvency Proceeding with respect to any Debtor, if all of the Senior Debt shall not have been paid in full at the time, all or any of the following:
30. to enforce all or any of the claims comprising all or any part of any Subordinated Debt of such Debtor by filing claims, proofs of claim, suit or otherwise;
31. to enforce all or any of the Liens on any Property of such Debtor;
32. to give or withhold the consent of such Subordinated Creditor to the use by such Debtor of any Property of such Debtor;
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33. to give or withhold the consent of such Subordinated Creditor to the sale, transfer or other disposition by such Debtor of any Property of such Debtor;
34. to collect or receive all or any of the Property of any Debtor distributed, divided or applied by way of dividend or payment on account of all or any part of any Subordinated Debt of such Debtor and to apply the same, or the proceeds of any realization upon the same that the Administrative Agent in its sole and absolute discretion shall elect to effect, to all or any part of the Senior Debt until all of the Senior Debt shall have been paid in full;
35. to execute, deliver or otherwise perfect any Instrument and to execute and do all of such other assurances, acts and things which the Administrative Agent or any of the Administrative Agent’s substitute agents or attorneys may deem proper in or for the purpose of exercising all or any of the powers and authorities granted to the Administrative Agent by each of the Subordinated Creditors pursuant to this paragraph (a);
36. to cast all ballots and vote all claims in respect of the Subordinated Debt of such Debtor and to negotiate, accept or reject on behalf of the Subordinated Creditors any plan of partial or complete liquidation, reorganization, arrangement, composition or extension proposed in connection with any Bankruptcy or Insolvency Proceeding with respect to such Debtor, all in such manner and on such terms and conditions as the Administrative Agent shall in its sole and absolute discretion determine to be in the best interests of the Senior Creditors; and
37. generally, to take, in connection with any such Bankruptcy or Insolvency Proceeding with respect to such Debtor and solely in relation to all or any part of any Subordinated Debt of such Debtor, any action which the Subordinated Creditors would, but for the terms of this Agreement, be otherwise entitled to take in or for the purpose of exercising all or any of the powers, authorities or rights specified in the foregoing provisions of this paragraph (a).
38. Each of the Subordinated Creditors hereby ratifies and confirms and agrees to ratify and confirm whatever the Administrative Agent (or any of the Administrative Agent’s substitute agents) or attorneys shall do or purport to do in good faith in the exercise, at any time and from time to time prior to (but not after) the payment in full of all Senior Debt, of the power of attorney granted to the Administrative Agent by such Subordinated Creditor pursuant to Section 2.5(a), which power of attorney, being coupled with an interest, is irrevocable.
39. Each of the Subordinated Creditors severally covenants and agrees with the Administrative Agent that, in any Bankruptcy or Insolvency Proceeding with respect to any of the Debtors, if all of the Senior Debt shall not have been paid in full at the time:
40. such Subordinated Creditor shall, for all purposes of such Bankruptcy or Insolvency Proceeding, be deemed to have given its consent to and approval for (A) the use by any of the Debtors of any Property of any of the Debtors, and (B) the sale, transfer or other disposition by the Debtors or any of them of any Property of any of the Debtors, in each such case, if and to the extent that any such use, sale, transfer or other disposition shall be consented to or otherwise approved by the Administrative Agent;
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41. if any payments or distributions made to the Administrative Agent on account of any Senior Debt, whether before or after the commencement of any Bankruptcy or Insolvency Proceeding with respect to the Borrower or any of its Subsidiaries, shall be avoided as a fraudulent transfer or fraudulent conveyance under any applicable law, then, for purposes of determining whether and when all of the Senior Debt shall have been paid in full, the Administrative Agent shall be deemed never to have received the payments or distributions so avoided; and
42. during such Bankruptcy or Insolvency Proceeding, until all Senior Debt shall be paid in full, the Administrative Agent shall (as between the Administrative Agent and the Subordinated Creditors) have the exclusive right to collect, foreclose upon, sell, transfer, liquidate or otherwise dispose of, or exercise any other Enforcement Action with respect to, all or any part of the Property of any of the Debtors in the manner deemed appropriate by the Administrative Agent, without regard to the rights of any of the Subordinated Creditors, and, to the extent permitted by applicable law, each of the Subordinated Creditors hereby agrees not to hinder, delay or otherwise interfere with any Enforcement Action by the Administrative Agent with respect to any of the Debtors, any of their Property or any part thereof.
43. Delivery of Prohibited Payments or Distributions on Account of Subordinated Debt. If any payment or distribution on account of Subordinated Debt shall at any time be collected or received by any of the Subordinated Creditors, by way of set-off or otherwise, and such collection or receipt shall not be expressly permitted by this Article II at the time of such collection or receipt, then such payment or distribution shall be paid over or delivered forthwith to the Administrative Agent for application to Senior Debt. Payments or distributions on account of Subordinated Debt paid or delivered to the Administrative Agent in compliance with this Article II that are in the form of cash shall be used to pay Senior Debt. Any such payments or distributions that are not in the form of cash shall be held by the Administrative Agent as security for the payment of Senior Debt. The Administrative Agent shall be entitled to sell, assign, transfer or dispose of such Property as the Administrative Agent deems appropriate. Cash proceeds of any such non‑cash payments or distributions on account of Subordinated Debt shall, when such cash proceeds are received by the Administrative Agent, be used to pay Senior Debt.
44. Subrogation. Upon payment in full of all Senior Debt, the Subordinated Creditors shall be immediately subrogated to the rights of the Senior Creditors (to the extent of payments and distributions previously made to or for the account of the Senior Creditors pursuant to the provisions of this Article II), to receive payments and distributions of Property of the Borrower or of any of its Subsidiaries applicable to Senior Debt until all amounts owing on Subordinated Debt shall be paid in full. No payments or distributions applicable to Senior Debt which the Subordinated Creditors shall receive by reason of their being subrogated to the rights of the Senior Creditors pursuant to the provisions of this Section 2.8 shall, as between the Borrower or any of its Subsidiaries, any of their creditors other than the Senior Creditors, and the Subordinated Creditors, be deemed to be a payment by such Person to or for the account of any Subordinated Debt; and, for the purposes of such subrogation, no payments or distributions to the Senior Creditors of any Property to which the Subordinated Creditors would be entitled except for the provisions of this Agreement, and no payment over pursuant to provisions of this Agreement, to the Senior Creditors by the Subordinated
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Creditors, shall, as between the Borrower or any of its Subsidiaries, any of their creditors other than the Senior Creditors, and the Subordinated Creditors, be deemed to be a payment by such Person to or for the account of any Senior Debt, it being understood that the provisions of this Agreement are intended solely for the purpose of defining the relative rights of the Subordinated Creditors, on the one hand, and the Senior Creditors, on the other hand, and nothing contained in this Section 2.8 or elsewhere in this Agreement, is intended to or shall impair, as between the Borrower or any of its Subsidiaries and the Subordinated Creditors, the obligations of the Borrower and its Subsidiaries, which are absolute and unconditional, to pay to the Subordinated Creditors, subject always to the rights of the Senior Creditors, the Subordinated Debt as and when the same shall become due and payable in accordance with its terms.
45.
LIMITATIONS ON CERTAIN ENFORCEMENT ACTIONS AND
OTHER NEGATIVE COVENANTS
46. Prohibitions on Commencement of Certain Enforcement Actions. Until all of the Senior Debt shall have been paid in full, the Subordinated Creditors shall not at any time commence or institute, or join with any other Person or Persons in commencing or instituting, any Enforcement Action of any kind against the Borrower or any of the Borrower’s Subsidiaries or against any of the Property of the Borrower or any of its Subsidiaries with respect to any Subordinated Debt.
47. Limitations on Remedies Under Subordinated Debt Documents. Notwithstanding any contrary provision of any Subordinated Debt Document, the occurrence or continuation of any Default or Event of Default of any kind whatsoever under or with respect to any of the Senior Debt Documents shall not constitute a “default” or an “event of default” under any of the Subordinated Debt Documents.
48. Limitations on Liens Securing Subordinated Debt.
49. The Borrower shall not at any time grant, or cause or permit any of its Subsidiaries at any time to grant, to any of the Subordinated Creditors, and the Subordinated Creditors shall not at any time acquire, demand, receive or accept from the Borrower or from any of its Subsidiaries, any Liens on any Property of any kind as security for any Subordinated Debt, unless (i) such Liens shall at all times be junior in priority to Liens securing Senior Debt, and (ii) at no time shall such Liens attach to any Property except Property subject to Liens which secure the Senior Debt on terms and conditions satisfactory to the Administrative Agent.
50. Liens on Property securing all or any part of the Senior Debt shall at all times have priority in every respect over, and shall in all respects and at all times be senior and superior to, all Liens (if any) on such Property securing all or any part of the Subordinated Debt. The priorities specified in this paragraph (b) for the Liens described herein shall be applicable (i) whether or not any such Liens shall have been duly and properly created or perfected, whether or not any such Liens shall be legal, valid, binding or enforceable, and whether or not any such Liens shall or may be subject to avoidance, or shall be avoided, as a fraudulent transfer or fraudulent conveyance, in any case whether before or after the commencement of any Bankruptcy or Insolvency
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Proceedings with respect to any Debtor, (ii) whether or not any such Liens shall be acquired or created consensually or by attachment, levy, execution, distraint or otherwise, and (iii) irrespective of (A) the time, order or method of creation, attachment or perfection of any such Liens, (B) the time or order of filing or recording of financing statements or other Instruments pertaining to any such Liens, or (C) the possession of any of such Property subject to any such Liens.
51. Until all of the Senior Debt shall have been paid in full, the Subordinated Creditors shall not at any time commence or institute, or join any other Person or Persons in commencing or instituting, any Enforcement Action of any kind with respect to any Liens securing all or any part of the Subordinated Debt.
52. Any Liens acquired in violation of paragraph (a) of this Section 3.3 shall be null and void ab initio, and none of the Subordinated Creditors shall have any rights, remedies, claims, benefits or priorities, as secured party or otherwise, in relation to any Property subject to any such Liens.
53.
WAIVERS AND CONSENTS
54. Waivers of Notice; etc. To the extent permitted by applicable law, the obligations of each of the Subordinated Creditors and Debtors under this Agreement, and the subordination arrangements and covenants contained herein, shall not be to any extent or in any way or manner whatsoever impaired or otherwise affected by any of the following, whether or not any of the Subordinated Creditors or Debtors shall have had any notice or knowledge of any thereof:
55. the dissolution, termination of existence, bankruptcy, liquidation, insolvency, appointment of a receiver for all or any part of the Property of, assignment for the benefit of creditors by, or the commencement of any Bankruptcy or Insolvency Proceeding by or against, the Borrower or any of its Subsidiaries;
56. the absorption, merger or consolidation of, or the effectuation of any other change whatsoever in the name, membership, constitution or place of formation of, the Borrower or any of its Subsidiaries;
57. any extension or postponement of the time for the payment of any Senior Debt, the acceptance of any partial payment thereon, any and all other indulgences whatsoever by the Senior Creditors in respect of any Senior Debt, the taking, addition, substitution or release, in whole or in part, at any time or times, of any collateral or Liens securing any Senior Debt, or the addition, substitution or release, in whole or in part, of any Person or Persons primarily or secondarily liable in respect of any Senior Debt;
58. any action or delay in acting or failure to act on the part of any Senior Creditor under any Senior Debt Document or in respect of any Senior Debt or Liens securing any Senior Debt or otherwise, including (i) any action by any Senior Creditor to enforce any of its rights, remedies or claims in respect of Liens securing any Senior Debt, (ii) any failure by any Senior Creditor strictly or diligently to assert any rights or to pursue any remedies or claims against any of the Debtors or any other Person or Persons under any of the Senior Debt Documents or provided by
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statute or at law or in equity, (iii) any failure by any Senior Creditor to perfect or to preserve the perfection or priority of any of its Liens securing any Senior Debt, or (iv) any failure or refusal by any Senior Creditor to foreclose or to realize upon any Liens securing any Senior Debt or to take any action to enforce any of its rights, remedies or claims under any Senior Debt Document;
59. any modification or amendment of, or any supplement or addition to, any of the Senior Debt Documents;
60. any waiver, consent or other action or acquiescence by any of the Senior Creditors in respect of any default by the Borrower or by any of its Subsidiaries in its performance or observance of or compliance with any term, covenant or condition contained in any Senior Debt Document;
61. any Senior Debt or any Senior Debt Document or any provision thereof or any Liens securing any Senior Debt shall at any time or for any reason whatsoever cease to be in full force or effect or shall be declared null and void or illegal, invalid, unenforceable or inadmissible in evidence, or any Senior Debt or any payments or distributions on account of Senior Debt or any Liens securing Senior Debt shall be subject to avoidance, or shall be avoided, as a fraudulent transfer or fraudulent conveyance, in any case whether prior to or after the commencement of any Bankruptcy or Insolvency Proceedings by or against the Borrower or any of its Subsidiaries;
62. any Subordinated Debt or any Subordinated Debt Document or any provision thereof or any Liens securing any Subordinated Debt shall at any time or for any reason whatsoever cease to be in full force or effect or shall be declared null and void or illegal, invalid, unenforceable or inadmissible in evidence, or any Subordinated Debt or any payments or distributions on account of Subordinated Debt or any Liens securing any Subordinated Debt shall be subject to avoidance, or shall be avoided, as a fraudulent transfer or fraudulent conveyance, in any case whether prior to or after the commencement of Bankruptcy or Insolvency Proceedings by or against the Borrower or any of its Subsidiaries;
63. the existence or creation at any time or times on or after the date of this Agreement of any claim, defense, right of set-off or counterclaim of any nature whatsoever of any Subordinated Creditor against the Borrower or any of its Subsidiaries or against any of the Senior Creditors; or
64. the existence of any other condition or circumstance or the occurrence of any other event that might otherwise constitute a legal or equitable discharge of or a suretyship defense to the performance by any Subordinated Creditor of any of its obligations or other liabilities hereunder.
To the extent permitted by applicable law, each of the Subordinated Creditors hereby absolutely, unconditionally and irrevocably assents to and waives notice of any and all matters hereinbefore specified in clauses (a) through (j). This Agreement shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment of any Senior Debt previously made by any Debtor to any of the Senior Creditors is rescinded or must otherwise be returned by any of the Senior Creditors in connection with any Bankruptcy or Insolvency Proceedings with respect to any of the Debtors or otherwise, all as though such payment of Senior Debt had not been made.
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65.
ADDITIONAL REPRESENTATIONS AND OTHER COVENANTS
66. Information Regarding Subordinated Debt. Each of the Borrower and the Subordinated Creditors shall furnish to the Administrative Agent from time to time all such information regarding Subordinated Debt as the Administrative Agent may from time to time reasonably request.
67. Additional Representations and Covenants of Subordinated Creditors.
68. No part of the Subordinated Debt is evidenced by any Instrument or other writing a true and complete copy which has not previously been furnished to the Administrative Agent. The Subordinated Creditors are the lawful owners of the Subordinated Debt, and no part thereof has been assigned to or subordinated or subjected to any Liens in favor of any Person or Persons, except in compliance with the provisions of paragraph (b) of this Section 5.2.
69. Until all of the Senior Debt shall have been paid in full, none of the Subordinated Creditors shall sell, assign, pledge, encumber or otherwise transfer any Subordinated Debt or any rights or interests in any Subordinated Debt or any Subordinated Debt Documents, unless, prior to and in connection with any such transfer, the purchaser, assignee or other transferee thereof shall have agreed in writing to become a party to and bound by this Agreement as a Subordinated Creditor hereunder.
70. No part of the Subordinated Debt is secured by any Liens on Property of any kind of the Borrower or any of its Subsidiaries.
71. No Other Subordination. Each Subordinated Creditor represents that the Subordinated Debt is not subordinated to any obligations other than the Senior Debt and covenants that it will not subordinate the Subordinated Debt to any other obligations except with the prior written consent of the Administrative Agent.
72. Legend; etc. Each of the Debtors and the Subordinated Creditors covenants to cause each Instrument or certificate representing or evidencing any of the Subordinated Debt to have affixed upon it a legend substantially as follows:
“THIS SUBORDINATED NOTE IS SUBORDINATED AND MADE JUNIOR IN RIGHT OF PAYMENT, AND MADE SUBJECT TO RESTRICTIONS AND LIMITATIONS ON ENFORCEMENT (INCLUDING ACCELERATION) AND RESTRICTION AND LIMITATIONS ON SALE, ASSIGNMENT, ENCUMBRANCE AND OTHER TRANSFERS, ALL UPON THE TERMS, IN THE MANNER, AND TO THE EXTENT SET FORTH IN THE SUBORDINATION AGREEMENT, DATED AS OF JANUARY 21, 2015, AS FROM TIME TO TIME IN EFFECT, AMONG TELEPHONE AND DATA SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS FROM TIME TO TIME PARTY THERETO, UNITED STATES CELLULAR CORPORATION, AND COBANK, ACB, AS ADMINISTRATIVE AGENT.”
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The Parent Company and the Debtors shall cause any financial statement describing or listing or otherwise reflecting the existence of any Consolidated Funded Indebtedness included in the Subordinated Debt to indicate clearly the subordinated character thereof, to the extent appropriate under Generally Accepted Accounting Principles.
73. Consent to Credit Agreement. Each Subordinated Creditor acknowledges receipt from the Parent Company of a correct and complete copy of the Senior Credit Agreement as in effect as of the date such Subordinated Creditor became a party to this Agreement, and consents to all of the provisions of the Senior Credit Agreement as in effect as of such date.
74. No Impairment. No right of the Senior Creditors under this Agreement shall at any time be prejudiced or impaired by any conduct on the part of any Debtor or any Subordinated Creditor, including any noncompliance by any Debtor or any Subordinated Creditor with the terms of this Agreement, or by any conduct, in good faith, by any Senior Creditor, regardless of any knowledge thereof which any Senior Creditor may have or otherwise be charged with.
75.
MISCELLANEOUS
76. Effectiveness of Agreement. This Agreement shall be effective as to, and shall be enforceable by the Administrative Agent against, each Subordinated Creditor from and after the execution and delivery by such Subordinated Creditor of a counterpart of this Agreement or a Subordinated Creditor Supplement. The agreements and obligations of each Subordinated Creditor under this Agreement are separate and independent from and in addition to the agreements and obligations of each of the other Subordinated Creditors and shall be enforceable by the Administrative Agent against each Subordinated Creditor notwithstanding (a) the failure of any other Parent Affiliated Company to execute and deliver a counterpart of this Agreement or a Subordinated Creditor Supplement, (b) the invalidity, unenforceability or inadmissibility in evidence of this Agreement against any one or more of the other Subordinated Creditors, (c) the release by the Administrative Agent of all or any of the other Subordinated Creditors from all or any part of their obligations under this Agreement, or (d) any waiver, termination or cancellation by the Administrative Agent of, or any consent by the Administrative Agent to any departure from, any of the agreements or obligations of any other Subordinated Creditor hereunder on any occasion or occasions, or any failure by the Administrative Agent to enforce any of the agreements or obligations of any other Subordinated Creditor hereunder on any occasion or occasions.
77. Amendments, Waivers; etc. The provisions of this Agreement may from time to time be amended if such amendment is in writing and consented to by each of the parties hereto. No failure or delay on the part of any Person in exercising any power or right under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise thereof or the exercise of any other power or right. The remedies herein provided are cumulative and not exclusive of any other remedies provided at law or in equity. No waiver or approval by a Person under this Agreement shall, except as may be otherwise stated in such waiver or approval, be applicable to any subsequent transactions.
SUBORDINATION AGREEMENT – Page 18
78. Further Assurances. The Subordinated Creditors shall execute and deliver all such further Instruments, and take all such further action, as may be reasonably necessary or appropriate, or as the Administrative Agent may reasonably request, in order to carry out the intent and purpose of this Agreement. The Administrative Agent shall execute and deliver all such further Instruments, and take all such further action, as may be reasonably necessary or appropriate, or as the Subordinated Creditors may reasonably request, in order to carry out the intent and purposes of this Agreement.
79. Specific Performance; Remedies Cumulative. Each of the Subordinated Creditors and Debtors (a) acknowledges that a remedy at law for any breach or attempted breach of this Agreement may be inadequate, (b) agrees that the Administrative Agent and the other Senior Creditors shall be entitled to specific performance, and (c) agrees to waive any requirement for obtaining or posting any bond in connection with seeking or obtaining any such injunctive or equitable relief. The rights and remedies of each of the Administrative Agent and the other Senior Creditors provided herein are cumulative, and not exclusive of any of the rights and remedies which may be granted or provided by applicable law or by any of the other Senior Debt Documents.
80. Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of any such provision in any other jurisdiction.
81. Continuing Agreement. This Agreement shall in all respects be a continuing agreement, and this Agreement and the agreements and obligations of each of the Subordinated Creditors hereunder shall remain in full force and effect until all Senior Debt shall be paid in full.
82. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, each of the Administrative Agent and the other Senior Creditors, the Subordinated Creditors and the Borrower and their respective successors in title and permitted assigns.
83. Notices. All notices and other communications provided to a party hereunder shall (except as otherwise specifically provided herein) be in writing and shall be delivered in hand, mailed by United States registered or certified first class mail, postage prepaid, or sent by telecopy and confirmed by delivery via courier or postal service and shall be addressed or delivered to it at its address designated for notices set forth on Schedule F attached hereto (as amended or supplemented from time to time) or at such other address as may be designated by such party in a notice to the other parties. Any such notice shall be deemed to have been duly received and to have become effective (a) if telecopied, or delivered by hand to a responsible officer of the party to which it is directed, at the time of the receipt thereof by such officer and (b) if sent by registered or certified first-class mail, postage prepaid, three days after the date mailed.
84. Loan Document; etc. This Agreement constitutes a “Loan Document” for all purposes of the Senior Credit Agreement and the other Senior Loan Documents. This Agreement, constitutes the entire agreement among the Senior Creditors and the Subordinated Creditors with respect to the subject matter hereof and supersedes any prior or contemporaneous
SUBORDINATION AGREEMENT – Page 19
agreements, representations, warranties or understandings, whether oral, written or implied, as to the subject matter of this Agreement.
85. CHOICE OF LAW. THIS AGREEMENT IS A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER THAN GENERAL OBLIGATIONS LAW §5-1401).
86. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EACH SUBORDINATED CREDITOR (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY SENIOR CREDITOR HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH SENIOR CREDITOR WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
87. Survival. The agreements and obligations of each party hereto under Sections 6.10, 6.11, 6.14 and 6.15 hereof shall survive the termination of this Agreement and the payment in full of all Senior Debt. The representations and warranties made by the Debtors or (as the case may be) by the Subordinated Creditors in this Agreement shall survive the execution and delivery of this Agreement.
88. Termination. This Agreement and all of the covenants and other obligations of each of the parties hereto shall, except as otherwise expressly provided by Section 6.12, terminate upon, and be of no further force or effect whatsoever after, the payment in full of all of the Senior Debt.
89. Indemnification. Each party hereto (each, an “indemnifying party”) agrees to indemnify and hold harmless each of the other parties hereto from and against any and all losses, damages, claims and liabilities which such other parties shall sustain or incur and which shall arise directly out of or which shall be directly caused by any breach by the indemnifying party of any of its covenants or agreements hereunder.
90. Expenses of Enforcement. Each Subordinated Creditor hereby agrees to pay to the Administrative Agent, on demand by the Administrative Agent, all reasonable out-of-pocket costs and expenses (including, but not limited to, court costs and expenses and reasonable fees and disbursements of attorneys) at any time or from time to time incurred or sustained by the Administrative Agent or any of the other Senior Creditors in connection with its enforcement of any of its claims or remedies against such Subordinated Creditor under this Agreement.
SUBORDINATION AGREEMENT – Page 20
91. Obligations Several; No Third Parties Benefited.
92. The agreements and obligations of each of the Subordinated Creditors under this Agreement are several and not joint. No Subordinated Creditor shall be responsible for the failure of any other Subordinated Creditor to perform its obligations hereunder.
93. This Agreement is made and entered into for the sole protection and legal benefit of each of the Administrative Agent and the other Senior Creditors and its successors in title and assigns. It is not the intention of the parties hereto to confer any third-party beneficiary rights, and this Agreement shall not be construed so as to confer any such rights upon any other Person or Persons not party hereto. Neither the Borrower nor any of its Subsidiaries nor any other Person or Persons (other than a party hereto) shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement.
94. Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same Instrument. A set of counterparts executed by all of the parties hereto shall be lodged with the Borrower and the Administrative Agent. Delivery by facsimile by any of the parties hereto of an executed counterpart hereof, of any amendment or waiver hereto or any Subordinated Creditor Supplement or Subordinated Debt Supplement, shall be as effective as an original executed document and shall be considered a representation that such original executed document, as the case may be, will be delivered.
95. Headings. The descriptive headings in this Agreement are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Agreement or any provision hereof.
96. Delivery by Telecopier. Delivery of photocopies of the signature pages to this Agreement by facsimile shall be effective as delivery of manually executed counterparts of this Agreement.
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SUBORDINATION AGREEMENT – Page 21
IN WITNESS WHEREOF, the parties hereto have caused this SUBORDINATION AGREEMENT to be executed by their duly authorized officers as of the day and in the year first above written.
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The Subordinated Creditor: |
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SUBORDINATION AGREEMENT – Signature Page
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The Borrower: |
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UNITED STATES CELLULAR CORPORATION |
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The Administrative Agent: |
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COBANK, ACB, as Administrative Agent |
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SUBORDINATION AGREEMENT – Signature Page
SCHEDULE A
SCHEDULE A TO THE SUBORDINATION AGREEMENT, DATED AS
OF JANUARY 21, 2015, AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES CELLULAR CORPORATION, AS A DEBTOR, AND
COBANK, ACB, AS ADMINISTRATIVE AGENT
LIST OF DEBTORS
A. BORROWER
United States Cellular Corporation
B. CERTAIN
SUBSIDIARIES OF UNITED STATES CELLULAR
CORPORATION
None.
SCHEDULE B
SCHEDULE B TO THE SUBORDINATION AGREEMENT, DATED AS
OF JANUARY 21, 2015, AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS, UNITED
STATES CELLULAR CORPORATION, AS A DEBTOR, AND COBANK, ACB, AS ADMINISTRATIVE
AGENT
PERMITTED SUB DEBT PAYMENTS
None.
SCHEDULE C
SCHEDULE C TO THE SUBORDINATION AGREEMENT, DATED AS
OF JANUARY 21, 2015, AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES CELLULAR CORPORATION, AS A DEBTOR, AND
COBANK, ACB, AS ADMINISTRATIVE AGENT
LIST OF SUBORDINATED CREDITORS
Telephone and Data Systems, Inc.
SCHEDULE D
SCHEDULE D TO THE SUBORDINATION AGREEMENT, DATED AS
OF JANUARY 21, 2015, AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES CELLULAR CORPORATION, AS A DEBTOR, AND
COBANK, ACB, AS ADMINISTRATIVE AGENT
SUBORDINATED DEBT
Name of Debtor |
Outstanding Principal |
Maturity Date |
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SCHEDULE E
SCHEDULE E TO THE SUBORDINATION AGREEMENT, DATED AS
OF JANUARY 21, 2015, AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES CELLULAR CORPORATION, AS A DEBTOR, AND
COBANK, ACB, AS ADMINISTRATIVE AGENT
SUBORDINATED DEBT DOCUMENTS
Name of Debtor Name and Description of Instrument
SCHEDULE F
SCHEDULE F TO THE SUBORDINATION AGREEMENT, DATED AS
OF JANUARY 21, 2015, AMONG TELEPHONE AND DATA
SYSTEMS, INC., THE OTHER SUBORDINATED CREDITORS,
UNITED STATES CELLULAR CORPORATION, AS A DEBTOR, AND
COBANK, ACB, AS ADMINISTRATIVE AGENT
ADDRESSES FOR NOTICES
1.1. Address of Subordinated Creditors.
Telephone and Data Systems,
Inc.
30 North LaSalle Street
Chicago, Illinois 60602
Attention: President
Fax No.: 312-630-9299
Telephone No.: 312-592-5302
With a Copy To (which
shall not itself constitute notice):
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Attention: William S. DeCarlo
General Counsel of Telephone and Data
Systems, Inc.
Fax No.: (312) 853-7036
Telephone No.: (312) 853-6094
1.2. Address of Debtors.
United States Cellular
Corporation
8410 West Bryn Mawr Avenue
Chicago, Illinois 60631
Attention: Executive Vice President-Finance
Fax No.: (773) 399-8959
Telephone No.: (773) 399-4850
With a Copy To (which shall not itself constitute notice):
Sidley Austin LLP
One South Dearborn Street
Chicago,
Illinois 60603
Attention: Stephen P. Fitzell
General
Counsel of the Borrower
Fax No.: (312) 853-7036
Telephone No.: (312) 853-7379
-and-
Telephone and Data Systems, Inc.
30 North LaSalle Street
Chicago, Illinois 60602
Attention: Corporate Treasurer
Fax No.: (608) 830-5530
Telephone No.: (312) 592-5308
-and-
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
Attention: William S. DeCarlo
General Counsel of Telephone and Data
Systems, Inc.
Fax: (312) 853-7036
Telephone No.: (312) 853-6094
1.3. Address of Administrative Agent.
CoBank, ACB
5500 South Quebec Street
Greenwood
Village, Colorado 80111
Attention: Communications Banking Group
Fax No.: (303) 224-2718
Telephone No.: (303) 740-4000
With a Copy To (which
shall not itself constitute notice):
CoBank, ACB
5500 South Quebec Street
Greenwood
Village, Colorado 80111
Attention: Syndication Loan Accounting
Fax
No.: (303) 740-4021
Telephone No.: (303) 740-6447
E-Mail: agency@cobank.com
EXHIBIT A
FORM OF
SUBORDINATED CREDITOR SUPPLEMENT
THIS SUBORDINATED CREDITOR SUPPLEMENT (this “Supplement”), dated as of ____________________, is made by the undersigned. Unless otherwise defined herein, capitalized terms used herein and defined in the Subordination Agreement referred to below are used herein as so defined.
RECITALS:
A. Reference is made to the Subordination Agreement (the “Subordination Agreement”), dated as of January 21, 2015, by and among Telephone and Data Systems, Inc., as a Subordinated Creditor, the other Subordinated Creditors party thereto, United States Cellular Corporation, as a Debtor, and CoBank, ACB, as Administrative Agent for the Senior Creditors.
B. Pursuant to Section 2.1(b) of the Subordination Agreement, the undersigned intends to become a “Subordinated Creditor” for all purposes of the Subordination Agreement and executes and delivers this Supplement in order to become a “Subordinated Creditor” for all purposes of the Subordination Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Subordinated Creditor. By executing and delivering this Supplement, the undersigned hereby becomes a party to the Subordination Agreement as a “Subordinated Creditor” thereunder for all purposes of the Subordination Agreement, and hereby covenants and agrees to be bound by and comply with all terms and conditions thereunder.
2. Subordinated Debt and Subordinated Debt Documents. By executing and delivering this Supplement, the undersigned hereby also attaches a Supplement to Schedule D to the Subordination Agreement and Supplement to Schedule E to the Subordination Agreement and agrees that (a) the “Subordinated Debt” owing to the undersigned identified and described in such Supplement to Schedule D shall be and become “Subordinated Debt” for all purposes of the Subordination Agreement, and (b) the “Subordinated Debt Documents” to which the undersigned is a party identified and described in such Supplement to Schedule E shall be and become “Subordinated Debt Documents” for all purposes of the Subordination Agreement.
3. Attachment to Subordination Agreement. The undersigned hereby agrees that this Supplement, together with the attached Supplement to Schedule D and Supplement to Schedule E, will be attached to the Subordination Agreement and deemed to amend such existing Schedules.
4. Representations and Warranties. The undersigned hereby makes each of the representations and warranties contained in Sections 5.2 and 5.3 of the Subordination Agreement on the date hereof, after giving effect to this Supplement.
FORM OF SUBORDINATED CREDITOR SUPPLEMENT – Page 1
5. Counterparts. This Supplement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same Instrument. A set of counterparts executed by all of the parties hereto shall be lodged with the Borrower and the Administrative Agent. Delivery by facsimile by any of the parties hereto of an executed counterpart hereof shall be effective as an original executed document and shall be considered a representation that an original executed counterpart hereof will be delivered.
6. GOVERNING LAW. THIS SUPPLEMENT IS A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER THAN GENERAL OBLIGATIONS LAW §5-1401).
7. Delivery by Telecopier. Delivery of photocopies of the signature pages to this Agreement by facsimile shall be effective as delivery of manually executed counterparts of this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
FORM OF SUBORDINATED CREDITOR SUPPLEMENT – Page 2
IN WITNESS WHEREOF, the undersigned has caused this SUPPLEMENT to be duly executed and delivered as of the date first above written.
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[NAME OF SUBORDINATED CREDITOR], |
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as Subordinated Creditor |
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Agreed to and Accepted: |
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COBANK, ACB, |
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as Administrative Agent |
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FORM OF SUBORDINATED CREDITOR SUPPLEMENT – Page 3
SUBORDINATED CREDITOR
SUPPLEMENT
Dated as of _________________ , _________
SUPPLEMENT TO SCHEDULE D TO THE SUBORDINATION
AGREEMENT, DATED AS OF JANUARY 21, 2015, AMONG
TELEPHONE AND DATA SYSTEMS, INC., THE OTHER
SUBORDINATED CREDITORS, UNITED STATES CELLULAR
CORPORATION, AS A DEBTOR, AND COBANK, ACB, AS ADMINISTRATIVE AGENT
SUBORDINATED DEBT
Name of Debtor |
Outstanding Principal |
Maturity Date |
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SUBORDINATED CREDITOR
SUPPLEMENT
dated as of _________________, __________
SUPPLEMENT TO SCHEDULE E TO THE SUBORDINATION
AGREEMENT, DATED AS OF JANUARY 21, 2015, AMONG
TELEPHONE AND DATA SYSTEMS, INC., THE OTHER
SUBORDINATED CREDITORS, UNITED STATES CELLULAR
CORPORATION, AS A DEBTOR, AND COBANK, ACB, AS ADMINISTRATIVE AGENT
SUBORDINATED DEBT DOCUMENTS
Name of Debtor Name and Description of Instrument
EXHIBIT B
FORM OF
SUBORDINATED DEBT SUPPLEMENT
THIS SUBORDINATED DEBT SUPPLEMENT (this “Supplement”), dated as of _________________, is made by the undersigned Subordinated Creditor. Unless otherwise defined herein, capitalized terms used herein and defined in the Subordination Agreement referred to below are used herein as so defined.
RECITALS:
A. Reference is made to the Subordination Agreement (the “Subordination Agreement”), dated as of January 21, 2015, by and among Telephone and Data Systems, Inc., as a Subordinated Creditor, the other Subordinated Creditors party thereto, United States Cellular Corporation, as a Debtor, and CoBank, ACB, as Administrative Agent for the Senior Creditors.
B. Pursuant to Section 2.1(c) of the Subordination Agreement, the undersigned Subordinated Creditor intends that the “Subordinated Debt” and the “Subordinated Debt Documents” identified and described on the Schedules attached hereto shall be and become part of the “Subordinated Debt” and “Subordinated Debt Documents” for all purposes of the Subordination Agreement and delivers this Supplement so that such “Subordinated Debt” and “Subordinated Debt Documents” shall be and become part of the “Subordinated Debt” and “Subordinated Debt Documents” for all purposes of the Subordination Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Subordinated Debt and Subordinated Debt Documents. By executing and delivering this Supplement, the undersigned Subordinated Creditor hereby attaches a Supplement to Schedule D to the Subordination Agreement and Supplement to Schedule E to the Subordination Agreement and agrees that (a) the “Subordinated Debt” owing to the undersigned Subordinated Creditor identified and described on such Supplement to Schedule D shall be and become “Subordinated Debt” for all purposes of the Subordination Agreement and, (b) the “Subordinated Debt Documents” to which the undersigned Subordinated Creditor is a party identified in such Supplement to Schedule E shall be and become “Subordinated Debt Documents” for all purposes of the Subordination Agreement.
2. Attachment to Subordination Agreement. The undersigned Subordinated Creditor hereby agrees that this Supplement, together with the attached Supplement to Schedule D and Supplement to Schedule E, will be attached to the Subordination Agreement and deemed to amend such existing Schedules.
3. Representations and Warranties. The undersigned Subordinated Creditor hereby certifies that each of the representations and warranties contained in Sections 5.2 and 5.3 of the Subordination Agreement were true as of the date as of which they were made and are true at and as of the date hereof.
FORM OF SUBORDINATED DEBT SUPPLEMENT – Page 1
4. Counterparts. This Supplement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which, when so executed and delivered, shall be an original, but all of which shall together constitute one and the same Instrument. A set of counterparts executed by all of the parties hereto shall be lodged with the Borrower and the Administrative Agent. Delivery by facsimile by any of the parties hereto of an executed counterpart hereof shall be effective as an original executed document and shall be considered a representation that an original executed counterpart hereof will be delivered.
5. GOVERNING. LAW. THIS SUPPLEMENT IS A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW OTHER THAN GENERAL OBLIGATIONS LAW §5-1401).
6. Delivery by Telecopier. Delivery of photocopies of the signature pages to this Agreement by facsimile shall be effective as delivery of manually executed counterparts of this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
FORM OF SUBORDINATED DEBT SUPPLEMENT – Page 2
IN WITNESS WHEREOF, the undersigned Subordinated Creditor has caused this Supplement to be duly executed and delivered as of the date first above written.
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[NAME OF SUBORDINATED CREDITOR], |
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as Subordinated Creditor |
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Agreed to and Accepted: |
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COBANK, ACB, |
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as Administrative Agent |
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FORM OF SUBORDINATED DEBT SUPPLEMENT – Page 3
SUBORDINATED DEBT
SUPPLEMENT
dated as of _________________ , _________
SUPPLEMENT TO SCHEDULE D TO THE SUBORDINATION
AGREEMENT, DATED AS OF JANUARY 21, 2015, AMONG
TELEPHONE AND DATA SYSTEMS, INC., THE OTHER
SUBORDINATED CREDITORS, UNITED STATES CELLULAR
CORPORATION, AS A DEBTOR, AND COBANK, ACB, AS ADMINISTRATIVE AGENT
SUBORDINATED DEBT
Name of Debtor |
Outstanding Principal |
Maturity Date |
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SUBORDINATED DEBT
SUPPLEMENT
dated as of _________________, __________
SUPPLEMENT TO SCHEDULE E TO THE SUBORDINATION
AGREEMENT, DATED AS OF JANUARY 21, 2015, AMONG
TELEPHONE AND DATA SYSTEMS, INC., THE OTHER
SUBORDINATED CREDITORS, UNITED STATES CELLULAR
CORPORATION, AS A DEBTOR, AND COBANK, ACB, AS ADMINISTRATIVE AGENT
SUBORDINATED DEBT DOCUMENTS
Name of Debtor Name and Description of Instrument
EXHIBIT G-1
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 January 21, 2015 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among United States Cellular Corporation, a Delaware corporation, CoBank, ACB, as Administrative Agent and a Lender and the Lenders from time to time party thereto.
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the 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 has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the 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 Agreement.
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EXHIBIT G-2
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 January 21, 2015 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among United States Cellular Corporation, a Delaware corporation, CoBank, ACB, as Administrative Agent and a Lender and the Lenders from time to time party thereto.
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the 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. 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.
[NAME OF PARTICIPANT] |
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EXHIBIT G-3
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 January 21, 2015 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among United States Cellular Corporation, a Delaware corporation, CoBank, ACB, as Administrative Agent and a Lender and the Lenders from time to time party thereto.
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record 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 direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT] |
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, 20[ ] |
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EXHIBIT G-4
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 January 21, 2015 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among United States Cellular Corporation, a Delaware corporation, CoBank, ACB, as Administrative Agent and a Lender and the Lenders from time to time party thereto.
Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record 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) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in 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 Administrative 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 IRS Form W-8BEN-E or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER] |
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, 20[ ] |
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