-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Eb0bz2UyUO0mjheXHyuTzUDXCB/6I1KZ+4km5z0iO9JzWTSDUv35flxCRFp90nGh 9DOROxp4+LGkj2Ry0bxtKg== 0000912057-00-018194.txt : 20000417 0000912057-00-018194.hdr.sgml : 20000417 ACCESSION NUMBER: 0000912057-00-018194 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 12 CONFORMED PERIOD OF REPORT: 20000401 ITEM INFORMATION: ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20000414 FILER: COMPANY DATA: COMPANY CONFORMED NAME: RURAL CELLULAR CORP CENTRAL INDEX KEY: 0000869561 STANDARD INDUSTRIAL CLASSIFICATION: RADIO TELEPHONE COMMUNICATIONS [4812] IRS NUMBER: 411693295 STATE OF INCORPORATION: MN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-27416 FILM NUMBER: 601924 BUSINESS ADDRESS: STREET 1: 3905 DAKOTA ST SW STREET 2: P O BOX 2000 CITY: ALEXANDRIA STATE: MN ZIP: 56308 BUSINESS PHONE: 3207622000 MAIL ADDRESS: STREET 1: P O BOX 2000 CITY: ALEXANDRIA STATE: MN ZIP: 56038 8-K 1 8-K 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): April 1, 2000 RURAL CELLULAR CORPORATION - ------------------------------------------------------------------------------- (Exact name of Registrant as Specified in its Charter) MINNESOTA - ------------------------------------------------------------------------------- (State or Other Jurisdiction of Incorporation) 0-27416 41-1693295 - ------------------------------------------------------------------------------ (Commission File Number) (IRS Employer Identification No.) 3905 DAKOTA STREET S.W., ALEXANDRIA, MINNESOTA 56308 - ------------------------------------------------------------------------------ (Address of Principal Executive Offices) (Zip Code) Registrant's Telephone Number, Including Area Code (320) 762-2000 ------------------------ - ------------------------------------------------------------------------------ Former Name or Former Address, if Changed Since Last Report Item 2. Acquisition or Disposition of Assets. Effective April 1, 2000, the Registrant's wholly owned subsidiary, RCC Holdings, Inc., completed the previously announced acquisition of the licenses, operations, and related assets of Triton Cellular Partners, L.P. ("Triton Cellular"), which includes 20 rural service areas in Alabama, Kansas, Mississippi, Oregon and Washington and unbuilt PCS licenses in four basic trading areas in Oregon. As consideration for the acquisition of Triton Cellular, the Registrant paid approximately $1.256 billion in cash, utilizing $135.8 million of net proceeds from the February 2000 issuance of 140,000 shares of Junior Exchangeable Preferred Stock, $1.012 billion in funds borrowed under a new $1.2 billion credit facility arranged by TD Securities (USA) Inc. and $108.1 million of net proceeds from its April 2000 issuance of 110,000 shares of Class M preferred stock. The purchasers of Class M preferred stock included Madison Dearborn Capital Partners III, L.P., Madison Dearborn Special Equity III, L.P., Special Advisors Fund I, LLC (collectively, "Madison Dearborn"), Boston Ventures Limited Partnership V ("Boston Ventures"), and Toronto Dominion Investments, Inc. The Registrant had no affiliation with Triton Cellular prior to negotiations regarding the acquisition, although the two entities did have agreements regarding service on "roaming" traffic in their respective service areas. The consideration was determined in arm's-length negotiations among Triton Cellular and the Registrant and was determined to be fair and reasonable by the Registrant's Board of Directors. In order to comply with the FCC's rules regarding cross-ownership of cellular licensees within a given market, the Registrant also issued shares of Class T convertible preferred stock to Telephone & Data Systems, Inc. ("TDS") in exchange for 43,000 shares of Class A Common Stock and 105,940 shares of Class B Common Stock owned by TDS. An affiliate of TDS operates the competing cellular licensee in two of the RSAs acquired by the Registrant from Triton Cellular. TDS or the Registrant can convert the Class T preferred stock to Class A or Class B Common Stock in the future if ownership by TDS of the Common Stock would then be permissible under FCC rules. Under current FCC rules, TDS is not allowed to own more than 5% of the outstanding Class A or Class B Common Stock. Item 5. Other Events Effective April 4, 2000, the Registrant announced the appointment of Paul Finnegan and John Hunt to its Board of Directors. These appointments increase the size of the Board to ten members. The appointment of Mr. Finnegan and Mr. Hunt was required under the terms of the Class M Preferred Stock pursuant to which Madison Dearborn and Boston Ventures are each entitled to designate one member of the Registrant's Board of Directors. Further information regarding Mr. Finnegan and Mr. Hunt is disclosed in the Registrant's April 4, 2000 Press Release filed as exhibit 99.2 to this report. Item 7. Financial Statements and Exhibits (a) The Registrant intends to file the required financial statements for Triton Cellular within the period provided for under Item 7 (a) (4) of Form 8-K. (b) The Registrant intends to file the required proforma financial information within the period provided for under Item 7 (a) (4) of Form 8-K. (c) Exhibits *2.1 (a) Asset Purchase Agreement among Triton Cellular Partners, L.P. and Rural Cellular Corporation as of November 8, 1999 *Filed as an exhibit to Registrant's Report on Form 10-Q for the quarter ended September 30, 1999 (SEC No. 000-27416), filed November 15, 1999, and incorporated herein by reference 4.1 (a) Recapitalization Agreement dated October 31, 1999 by and between Rural Cellular Corporation and Telephone and Data Systems, Inc. 4.1 (b) First Amendment to Recapitalization Agreement dated December 6, 1999 by and between Rural Cellular Corporation and Telephone and Data Systems, Inc. 4.1 (c) Second Amendment to Recapitalization Agreement dated March 31, 2000 by and between Rural Cellular Corporation and Telephone and Data Systems, Inc. 4.1 (d) Registration Rights Agreement dated March 31, 2000 by and between Rural Cellular Corporation and Telephone and Data Systems, Inc. 4.1 (e) Certificate of Designation of Voting Power, Preferences and Relative Participating, Optional and Other Special Rights, Qualifications, and Restrictions of Class T Convertible Preferred Stock of Rural Cellular Corporation 4.2 (a) Preferred Stock Purchase Agreement dated April 3, 2000 among Rural Cellular Corporation, Madison Dearborn Capital Partners III, L.P., Madison Dearborn Special Equity III, L.P., Special Advisors Fund I, LLC, Boston Ventures Limited Partnership V and Toronto Dominion Investments, Inc. (collectively "Class M Investors") 4.2 (b) Certificate of Designation of Voting Power, Preferences and Relative Participating, Optional and Other Special Rights, Qualifications and Restrictions of Class M Redeemable Voting Convertible Preferred Stock of Rural Cellular Corporation 4.2 (c) Registration Rights Agreement dated April 3, 2000 among Rural Cellular Corporation and Class M Investors 10.1 (a) Second Amended and Restated Loan Agreement dated April 3, 2000 among Rural Cellular Corporation and certain financial institutions and Toronto Dominion (Texas), Inc. as administrative agent 99.1 Press release dated April 3, 2000, announcing the completion of the Triton Cellular Acquisition 99.2 Press release dated April 4, 2000, announcing the addition of two new board members SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. Date: April 14, 2000 RURAL CELLULAR CORPORATION /s/ Richard P. Ekstrand RICHARD P. EKSTRAND PRESIDENT AND CHIEF EXECUTIVE OFFICER EX-4.1(A) 2 EXHIBIT 4.1(A) Exhibit 4.1(a) RECAPITALIZATION AGREEMENT This Recapitalization Agreement (the "Agreement") is made and entered into as the 31st day of October, 1999, by and between Rural Cellular Corporation, a Minnesota corporation (including its successors, assigns and subsidiaries, "RCC") and Telephone & Data Systems, Inc., a Delaware corporation (including its successors, assigns and subsidiaries, "TDS"). R E C I T A L S: A. TDS presently owns (directly and indirectly) within the meaning of the FCC Cross-Ownership Rule (defined below), five hundred eighty-six thousand seven hundred ninety-nine (586,799) shares of RCC's Class A Common Stock, par value $.01 per share (the "Class A Common Stock") and one hundred thirty-two thousand five hundred ninety-seven (132,597) shares of RCC's Class B Common Stock, par value $.01 per share (the "Class B Common Stock"); and B. TDS has an ownership interest in RCC through its ownership of the Class A Common Stock and Class B Common Stock identified in Recital A above and has an ownership interest through its subsidiary, United States Cellular Corporation, in licenses in cellular channel blocks in rural service areas OR-3 and OR-6; and C. RCC is presently negotiating with Triton Cellular Partners, L.P., for the acquisition (the "Triton Acquisition") of FCC licenses and related assets for the "A" frequency channel blocks, in, among other rural service areas OR-3 and OR-6 (the "A" frequency channel blocks in OR-3 and OR-6 are hereinafter referred to as the "Oregon Competing Channel Blocks"); and D. Pursuant to the Cross-Ownership Rule (defined below), the acquisition by RCC of the FCC licenses for the Oregon Competing Channel Blocks would be permissible under the Cross-Ownership Rule only if TDS's ownership interest in RCC does not exceed five percent (5%), with respect to each class of RCC's equity securities outstanding; and E. As of the date hereof TDS's ownership of Class A Common Stock and Class B Common Stock exceeds the five percent limitation provided in the Cross-Ownership Rule; and F. TDS's ownership of Class A Common Stock and Class B Common Stock in excess of the five percent limitation provided in the Cross-Ownership Rule limits the opportunities of RCC and TDS to acquire FCC licenses and related assets for certain channel blocks in cellular markets where the other already controls or operates the competing channel block for such cellular market (the "Cross Ownership Issues"); and G. Remediating the Cross-Ownership Issues generally will also remediate Cross-Ownership Issues with respect to RCC's possible acquisition of the Oregon Competing Channel Blocks in connection with the Triton Acquisition; and H. RCC and TDS desire to consummate a transaction to remediate the Cross-Ownership Issues generally, and specifically with regard to the Triton Acquisition (i) if acceptable to the FCC in remediation of Cross-Ownership Issues, through the exchange of the Excess Shares (defined below) for RCC's convertible preferred stock pursuant to a tax free recapitalization in accordance with the provisions of Section 368(a)(1)(E), 354, 351(g) and other applicable provisions of the Internal Revenue Code of 1986, as amended (the "FCC Recapitalization"); or (ii) alternatively, in the event that the transaction described in (i) of this Recital H is not acceptable to the FCC in remediation of Cross-Ownership Issues, through the issuance of a convertible subordinated debenture in exchange for the Excess Shares, but only if RCC acquires the contract right to acquire the FCC licenses and related assets for the "A" frequency channel blocks in rural service areas OR-3 and OR-6 in the Triton Acquisition (the "Triton Recapitalization"); and I. RCC and TDS desire to enter into this Agreement pursuant to which, under the terms and conditions set forth herein, RCC and TDS will consummate a transaction to remediate the Cross-Ownership Issues. AGREEMENT: NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: ARTICLE 1 DEFINITIONS For purposes of this Agreement, the following terms shall have the meanings set forth below: "Acquisition Agreement" means that certain Asset Purchase Agreement in executable form between Triton Cellular Partners, L.P., a Delaware limited partnership, designated wholly owned subsidiaries of Triton Cellular Partners, L.P., defined as the "Triton Entities" (collectively defined as the "Triton Parties") and RCC, subject to such amendments as are negotiated by the Triton Parties and RCC prior to execution thereof. "Class A Common Stock" has the meaning set forth in the Recitals; "Class B Common Stock" has the meaning set forth in the Recitals; "Closing" has the meanings given in Section 9.1; "Code" means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations promulgated thereunder; 2 "Convertible Preferred Stock" means shares of RCC's convertible preferred stock issued by RCC containing the terms and conditions set forth on the term sheet attached hereto as Exhibit A, to be delivered by RCC to TDS on the FCC Closing Date in accordance with the provisions of this Agreement; "Cross-Ownership Issues" has the meaning given in the Recitals. "Cross-Ownership Rule" means Subpart H of Part 22 of Title 47 of the Code of Federal Regulations, Section 22.942 entitled "Limitations on interest in licensees for both channel blocks in an area" as amended September 22, 1999, scheduled to become effective November 6, 1999. "Debenture" means a convertible subordinated debenture issued by RCC containing the terms and conditions set forth on the term sheet attached hereto as Exhibit B, to be delivered by RCC to TDS on the Triton Closing Date in accordance with the provisions of this Agreement. "Excess Shares" means the aggregate number of whole (not fractional) shares of Class A Common Stock and Class B Common Stock which are in excess of five percent (5%) of the issued and outstanding shares of each respective class of RCC common stock, determined as of the Closing Date; the calculation of the aggregate number of said shares being made in accordance with the applicable provisions of the Cross-Ownership Rule to reduce TDS's ownership interest in RCC such that TDS shall have a direct or indirect ownership interest in RCC of not more than five percent (5%) in accordance with Section 22.942(a) thereof. "FCC" means the Federal Communications Commission. "FCC Closing" means the closing of the FCC Recapitalization. "FCC Closing Date" means the date on which the FCC Closing shall occur. "FCC Recapitalization" has the meaning set forth in the recitals. "Oregon Competing Channel Blocks" has the meaning given in the Recitals. "Owned Entity" means any entity in which TDS or RCC , as applicable, has an "ownership interest" as that term is used in subsection (d)(7) of the Cross-Ownership Rule. "Purchase Price" has the meaning set forth in Section 3.1. "RCC" has the meaning set forth in the preamble. "RCC Price" means $50 5/8 per Excess Share, which takes into consideration the size of the block of shares, the low "float", and the recent volatility of the market in RCC shares. "Section 4.1 Payment" has the meaning set forth in Section 4.1. "TDS" has the meaning set forth in the preamble. "Triton Acquisition" has the meaning set forth in the recitals. 3 "Triton Closing" means the closing of the Triton Recapitalization. "Triton Closing Date" means the date on which the Triton Closing shall occur. "Triton Recapitalization" means the transactions contemplated by Article 3 and Article 4 of this Agreement, consummated on the terms and conditions set forth herein. ARTICLE 2 FCC RECAPITALIZATION 2.1 FCC Authorization to Proceed with Preferred Stock Recapitalization. Notwithstanding any other provision of this Agreement to the contrary, the parties shall consummate the transactions contemplated by this Agreement in the form of the FCC Recapitalization if the issuance of Convertible Preferred Stock by RCC to TDS on the terms set forth in Exhibit A is acceptable to the FCC to remedy the existence of Cross-Ownership Issues generally, including any Cross Ownership Issue with respect to RCC's possible acquisition of the Oregon Competing Channel Blocks. It shall be conclusive to the parties that the issuance of Convertible Preferred Stock by RCC to TDS on the terms set forth in Exhibit A is acceptable to remedy such Cross-Ownership Issues (a) if the FCC shall provide a written opinion stating its acceptance of such remedy, or (b) if the FCC shall grant an application of RCC or TDS for the transfer of control or the assignment of a cellular license in circumstances where a Cross-Ownership Issue exists and such application expressly sets forth the issuance of Convertible Preferred Stock by RCC to TDS on the terms set forth in Exhibit A as a remedy of such Cross-Ownership Issue. 2.2 Exchange of Excess Shares for Preferred Stock. In the event parties proceed with the FCC Recapitalization, on the FCC Closing Date RCC shall issue Convertible Preferred Stock to TDS in exchange for the surrender by TDS of the Excess Shares. The number of shares of Convertible Preferred Stock so delivered to TDS on the FCC Closing Date shall be determined by multiplying the total number of Excess Shares by the RCC Price and dividing the dollar amount so determined by one thousand dollars ( fractional shares shall be permitted ). 2.3 Other Terms. In the event that the parties proceed with the FCC Recapitalization, the provisions of Articles 3 and 4 shall not apply. All other sections of this Agreement shall be applicable without any additional considerations. 2.4 Tax Characterization. RCC and TDS shall treat the Convertible Preferred Stock as equity for United States federal, state and local income tax purposes and to take no position inconsistent with such characterization on any tax return. ARTICLE 3 TRITON RECAPITALIZATION Except as provided in Article 2, on the Triton Closing Date, RCC agrees to purchase the Excess Shares from TDS and TDS agrees to sell, assign, transfer and deliver the Excess Shares to RCC, on the terms and conditions set forth below: 4 3.1 Purchase Price. The "Purchase Price" for the Excess Shares shall be the amount determined by multiplying the total number of Excess Shares by the RCC Price. 3.2 Payment of Purchase Price. In the event the parties proceed with the Triton Recapitalization, on the Triton Closing Date RCC shall issue to TDS the Debenture in exchange for the surrender by TDS of the Excess Shares .The face value of the Debenture to be so delivered to TDS on the Triton Closing Date shall be equal to the Purchase Price (fractional issuance shall be permitted). ARTICLE 4 ADDITIONAL COVENANTS TO TRITON RECAPITALIZATION In the event that RCC purchases the Excess Shares pursuant to Article 3, the following provisions shall apply: 4.1 RCC shall pay to TDS on the Closing Date the Section 4.1 Payment. "Section 4.1 Payment" means an amount determined under the following formula: Gain x TR/(1-TR) where Gain means the excess of the fair market value of the Excess Shares on the Closing Date over TDS's tax basis in the Excess Shares, and TR means 0.4. For example, if the fair market value of the Excess Shares on the Closing Date was $20 million and TDS's tax basis in the Excess Shares was $5 million, the Section 4.1 Payment would be equal to $10 million ($15 million Gain x 0.4/0.6). For purposes of the foregoing calculation, the fair market value of the Excess Shares on the Closing Date shall be assumed to be equal to the Purchase Price; provided, however, that if, as a result of an audit or examination of TDS or any of its subsidiaries, a taxing authority asserts that the fair market value of the Excess Shares on the Closing Date exceeded the Purchase Price, the Section 4.1 Payment shall be redetermined accordingly and RCC shall pay to TDS the difference between the revised Section 4.1 Payment and the originally determined Section 4.1 Payment together with any interest and penalties resulting from such redetermination and contest expenses relating thereto. RCC shall be given prompt notice of any such audit and an opportunity to participate (at its own expense) in the resolution of any issues that would affect it but only to the extent such issue can be separated on audit from any other tax issues of TDS. TDS shall vigorously contest any recharacterizations of the payments hereunder and payment shall be due from RCC only after a final non-appealable determination with respect thereto or a further contest becomes commercially unreasonable. For purposes of the foregoing calculation, the Excess Shares shall constitute those shares of the Class A Common Stock and Class B Common Stock owned by TDS which have the highest tax basis, thereby resulting in the lowest taxable income to TDS. 4.2 If at any time within five years following the Closing, TDS or any of its subsidiaries sells or otherwise disposes of any of its shares of Class A Common Stock or Class B Common Stock owned as of the Closing Date (excluding the Excess Shares) in a taxable transaction, TDS will refund to RCC, in conjunction with such sale, a portion of the Section 4.1 Payment in an amount equal to the Section 4.1 Payment multiplied by a fraction, the numerator of which is the number of shares of RCC stock sold or otherwise disposed of and the 5 denominator of which is the total number of Excess Shares; provided, however, that in no event shall the aggregate amount refunded pursuant to this Section 4.2 exceed the Section 4.1 Payment. ARTICLE 5 FCC CROSS-OWNERSHIP COMPLIANCE 5.1 TDS Cross-Ownership Compliance. From the date of this Agreement until (i) the earlier of the FCC Closing Date, the Triton Closing Date or the termination of this Agreement, and (ii) if either the FCC Closing or the Triton Closing occurs, then perpetually thereafter, TDS shall not take any action , or cause any of its subsidiaries or Owned Entities to take any action, that will result in TDS, any of its subsidiaries or any of its Owned Entities to be in non-compliance with the Cross-Ownership Rule as applicable to competing channel blocks for cellular markets that TDS and RCC may control or operate. The preceding sentence shall not preclude any action taken subject to FCC approval of such action (e.g., signing a transaction agreement which requires FCC approval of the contemplated transaction as a condition precedent to the closing of such transaction) or subject to coming into compliance with the Cross-Ownership Rule (e.g. divestiture of one or more markets that cause the non-compliance with the Cross-Ownership Rule). In the event that TDS or its subsidiaries do acquire any additional ownership interest in RCC, whether or not caused by TDS, TDS agrees that it will promptly take such commercially reasonable action as it determines to be necessary to cause the resulting non -compliance with the Cross Ownership Rule as applicable to competing channel blocks for cellular markets that TDS and RCC may control or operate to be remedied. 5.2 RCC Cross-Ownership Compliance. From the date this Agreement until (i) the earlier of the FCC Closing Date, the Triton Closing Date or the termination of this Agreement, and (ii) if either the FCC Closing or the Triton Closing occurs, then perpetually thereafter, RCC shall not take any action , or cause any of its subsidiaries or Owned Entities to take any action, that will result in RCC, any of its subsidiaries or any of its Owned Entities to be in non-compliance with the Cross-Ownership Rule as applicable to competing channel blocks for cellular markets that TDS and RCC may control or operate. The preceding sentence shall not preclude any action taken subject to FCC approval of such action (e.g., signing a transaction agreement which requires FCC approval of the contemplated transaction as a condition precedent to the closing of such transaction) or subject to coming into compliance with the Cross-Ownership Rule (e.g. divestiture of one or more markets that cause the non-compliance with the Cross-Ownership Rule). ARTICLE 6 CONDITIONS PRECEDENT TO PARTIES OBLIGATIONS TO TRITON RECAPITALIZATION In the event that RCC consummates a transaction pursuant to the Acquisition Agreement which does not include the Oregon Competing Channel Blocks, or any other cellular license which would create the existence of a cross-ownership interest prohibited by the Cross- 6 Ownership Rule, neither RCC nor TDS shall be obligated to consummate the Triton Recapitalization. ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF RCC As an inducement for TDS to enter into this Agreement and consummate the transactions contemplated hereby, intending that TDS rely thereon in entering into and performing this Agreement, RCC warrants and represents to TDS the following: 7.1 Due Authorization. The execution, delivery and performance of this Agreement, including the Convertible Preferred Stock, the Debenture and the other documents, instruments and agreements to be executed and/or delivered by RCC pursuant to this Agreement, and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of RCC. 7.2 Valid Issuance. At the FCC Closing or the Triton Closing, as applicable, RCC will deliver to TDS the Convertible Preferred Stock or the Debenture, as applicable, and such securities of RCC will be legally binding, validly issued and fully paid, securities of RCC enforceable against RCC in accordance with their terms and applicable law. ARTICLE 8 REPRESENTATIONS AND WARRANTIES OF TDS As an inducement for RCC to enter into this Agreement and consummate the transactions contemplated hereby, intending that RCC rely thereon in entering into and performing this Agreement, TDS warrants and represents to RCC the following: 8.1 Due Authorization. The execution, delivery and performance of this Agreement, including the documents, instruments and agreements to be executed and/or delivered by TDS pursuant to this Agreement, and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action on the part of TDS. 8.2 Clear Title. At the FCC Closing or the Triton Closing, as applicable, TDS will convey to RCC title to the Excess Shares free and clear of any and all liens, claims and encumbrances of any kind, nature or description whatsoever. ARTICLE 9 CLOSING; ADDITIONAL COVENANTS 9.1 Closing Date. The closing of the transaction contemplated by this Agreement (the "Closing") shall be effected by the delivery of such documents and instruments as are contemplated by this Agreement as of the FCC Closing Date or the Triton Closing Date, as applicable. The FCC Closing Date shall be the date established for the FCC Closing by written notice given by RCC to TDS, or by TDS to RCC, but in no event shall such FCC Closing Date be less than ten business days after receipt of such notice by the receiving party. The Triton Closing Date shall be the "Closing Date" of the Acquisition Agreement, and shall be established 7 by written notice given by RCC to TDS, but in no event shall such Triton Closing Date be less than four business days after receipt of such notice by TDS. 9.2 Pre-Closing. Three business days prior to the anticipated FCC Closing Date or Triton Closing Date, as applicable, ("Pre-Closing Date"), TDS and RCC shall each execute and deliver to an escrow agent which shall be mutually acceptable to RCC and TDS their respective closing documents described in Section 9.4, which documents and instruments shall be held in escrow pending the Closing. 9.3 Effective Time. The Closing of the transaction contemplated by this Agreement shall be effective as of the beginning of business on the FCC Closing Date or Triton Closing Date, as applicable. In the event the transactions contemplated by the Acquisition Agreement are not consummated within ten business days following the Pre-Closing Date, then the escrow shall be terminated and the closing documents executed by each respective party shall be returned thereto, but such event shall not result in a termination of this Agreement except as expressly provided in Section 10.11 hereof. 9.4 Closing Documents. (a) Documents to be Delivered by TDS. At the Closing, TDS shall execute, where necessary or appropriate, and deliver to RCC the certificates evidencing the Excess Shares duly endorsed in blank or accompanied by Assignments Separate from Certificate duly executed in blank. (b) Documents to be Delivered by RCC. At the Closing, RCC shall execute, where necessary or appropriate, and deliver to TDS each and all of the following: (i) The Convertible Preferred Stock, if the transaction is consummated in accordance with the provisions of Article 2; or a Debenture in the amount of the Purchase Price, duly endorsed by an authorized officer of RCC if the transaction is consummated in accordance with the provisions of Article 3. (ii) If the transaction is consummated by issuing the Debenture, a cash payment delivered by wire transfer of immediately available funds to an account or accounts designated by TDS in an amount equal to the Section 4.1 Payment. (iii) A copy certified by the Secretary of RCC of the duly adopted resolutions of the Board of Directors of RCC approving this Agreement and authorizing the execution and delivery of this Agreement, including the Convertible Preferred Stock or Debenture, as applicable, and other documents, instruments and agreements to be executed and/or delivered by RCC pursuant hereto, and the consummation of the transactions contemplated hereby and thereby. 8 ARTICLE 10 MISCELLANEOUS 10.1 Further Acts and Assurances. Each party will, at any time from time to time, on and after the FCC Closing or the Triton Closing, as applicable, upon reasonable request of the other party, do all such further acts and things and execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, any and all papers, documents, instruments, agreements, deeds, assignments, transfers, assurances and conveyances as may be necessary or desirable carryout and give effect to the provisions of this Agreement and (a) with respect to further acts by TDS, to vest, perfect and confirm of record in RCC, its successors and assigns, title to the Excess Shares, and (b) with respect to further acts by RCC, to vest, perfect and confirm of record in TDS, it successors and assigns, title to the Convertible Preferred Stock or the Debenture, as applicable. 10.2 Entire Agreement. This Agreement, including the documents, instruments and agreements to be executed by the parties pursuant hereto, contains the entire agreement of the parties hereto and supersedes all prior or contemporaneous agreements and understandings, oral or written between the parties hereto with respect to the subject matter hereof. 10.3 Specific Performance. Each party acknowledges that the other party will have no adequate remedy at law if it shall fail to perform any of its obligations hereunder, and (a) with respect to TDS's possible failure to perform, including but not limited to surrendering the Excess Shares in accordance with this Agreement, and (b) with respect to RCC's possible failure to perform, including but not limited to, the issuance of Convertible Preferred Stock in accordance with Article 2 or the issuance of the Debenture in accordance with Article 3. In such event, each party shall have the right, in addition to any other rights it may have, to specific performance of this Agreement. 10.4 Amendments. No purported amendment, modification or waiver of any provision of this Agreement or any of the documents, instruments or agreements to be executed by the parties pursuant hereto shall be effective unless in a writing specifically referring to this Agreement and signed by both parties. 10.5 Notices. All notices or other communications hereunder shall be in writing and shall be given (and shall be deemed to have been given upon receipt) by delivery in person against receipt by overnight courier service, by facsimile transmission, or by registered or certified mail (return receipt requested and postage prepaid) with an acknowledgement of receipt signed by the addressee or authorized representative thereof, addressed as follows (or to such other address for a party as shall be specified by like notice): If to TDS: Telephone & Data Systems, Inc. 30 North LaSalle Street Chicago, Illinois 60602 Attn: LeRoy T. Carlson, Chairman 9 With a copy to: Sidley & Austin Bank One Plaza 10 South Dearborn Chicago, Illinois 60603 Attention: William S. DeCarlo, Esq. If to RCC: Rural Cellular Corporation 3905 Dakota Street S.W. Alexandria, MN 56308 Attn: Ann K. Newhall, Esq. With a copy to: Moss & Barnett A Professional Association 4800 Norwest Center 90 South Seventh Street Minneapolis, MN 55402-4129 Attn: Richard J. Kelber, Esq. 10.6 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and the respective successors and permitted assigns, but nothing in this Agreement is to be construed as an authorization or right of any party to assign its rights or delegate its duties under this Agreement without the prior written consent of the other party hereto. 10.7 Costs. RCC shall pay its own costs and expenses and promptly reimburse TDS for its costs and expenses incurred in connection with negotiating and preparing this Agreement and consummating the transactions contemplated hereby (including the consummation of the Closing of the exchange of the Excess Shares for the Convertible Preferred Stock or the Debenture, as applicable, and the consummation of the closing of the conversion of the Convertible Preferred Stock or Debenture for Class A Common Stock or Class B Common Stock, as applicable), including but not limited to fees and disbursements of their attorneys and accountants. 10.8 Counterparts; Facsimile Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same agreement. Facsimile signatures on this Agreement shall be deemed to be original signatures. 10.9 Severability. In the event that any provision of this Agreement is declared or held by any court of competent jurisdiction to be invalid or unenforceable, such provision shall be severable from, and such invalidity or unenforceablity shall not be construed to have any effect on, the remaining provisions of this Agreement, unless such invalid or unenforceable provision goes to the essence of this Agreement, in which case the entire Agreement may be declared invalid and not binding upon any of the parties. 10 10.10 Incorporation of Recitals. The Recitals set forth above are incorporate in this Agreement as if fully set forth herein and shall constitute an expression of the intent of the parties and shall act as an aid in the construction of this Agreement. 10.11 Termination. This Agreement may be terminated (i) at any time, by the mutual written agreement of the parties; or (ii) upon thirty (30) days prior written notice by either party if neither the FCC Closing nor the Triton Closing shall have occurred on or before the first anniversary of this Agreement. 10.12 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota without giving effect to the conflicts of laws principles thereof and without regard to any rules of construction or interpretation as to which party drafted this Agreement. 10.13 Confidentiality of Agreement and Acquisition Agreement. Each party shall keep secret and retain in strictest confidence, and shall not, without the express prior written consent of an executive officer of the other party, directly or indirectly disclose the terms, conditions or existence of this Agreement (and TDS shall also keep secret and retain in strict confidence the Acquisition Agreement, including the negotiations and transaction contemplated thereby) except, with respect to this Agreement, to: (i) its representatives, and, with respect to RCC, to Triton Cellular Partners, L.P. and its representatives (who shall be informed of the confidential nature of such information and who shall agree to keep such information confidential); (ii) the FCC, subject to Section 10.16; and (iii) as otherwise required by applicable law, including securities or communications laws. In the event a party breaches, or threatens to commit a breach, of the provisions of this Section 10.13, the non-breaching party or non-threatening party, as applicable, shall have the right, in addition to any other rights and remedies available to such non-breaching or non-threatening party, as applicable, at law or in equity, to equitable relief, including injunctions, against such breach or threatened breach, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable harm to such non-breaching or non-threatening party, as applicable, and that money damages would not be an adequate remedy to such non-breaching or non-threatening party, as applicable. 10.14 Alternative Transaction. Following the date hereof and continuing thereafter until the Pre-Closing Date or the termination of this Agreement prior to the Pre-Closing Date by mutual agreement, TDS and RCC will work together in good faith to determine an alternative approach to consummating the transactions contemplated by the Triton Recapitalization, the purpose being to develop, if possible, the terms and conditions of a transaction in remediation of Cross-Ownership Issues with respect to the Oregon Competing Channel Blocks which will mitigate, to the maximum extent possible, the Section 4.1 Payment which would result from consummating the Triton Recapitalization, and if a mutually agreeable alternative approach is so determined, to amend this Agreement, as appropriate, to incorporate the terms of such alternative approach and to implement that approach as soon as practicable. 10.15 Arbitration. The parties intend this Agreement to be a legally binding agreement. If any term of this Agreement is unclear or incomplete and the parties cannot resolve the issue through negotiation expeditiously, the parties shall resolve their differences as to the interpretation hereof by arbitration pursuant to the rules of the American Arbitration Association, 11 held in Minneapolis, Minnesota . The arbitrator shall be a practicing attorney specializing in corporate finance or a certified public accountant , in each case with at least twenty years of experience. 10.16 Redaction. This Agreement shall not be filed with the FCC without first being redacted to eliminate references to Triton or its property, direct or indirect, or by which it might be identified. 10.17 Reasonable Efforts. The parties agree to use all commercially reasonable efforts to put this Agreement into effect expeditiously, including preparation of documents, application to the FCC for a ruling, and all other necessary actions. ARTICLE 11 NON-DILUTION PROVISION 11.1 Non -Dilution Provision. As a holder of the Convertible Preferred Stock or the Debenture, as applicable, TDS's right as a holder of such securities to convert the same into Class A Common Stock or Class B Common Stock, as applicable, shall be protected from dilution under the circumstances and in the manner set forth in the following sentences (the "Non-Dilution Provision"): In the event that, at any time after the exchange of the Excess Shares and prior to the conversion of the Convertible Preferred Stock or the Debenture, as applicable, RCC shall effect (i) a dividend upon its Class A Common Stock or its Class B Common Stock payable in its Class A Common Stock or its Class B Common Stock or other property other than cash, including common stock, preferred stock or other securities of a subsidiary corporation, (ii) a combination of its outstanding Class A Common Stock or its Class B Common Stock into a smaller number of such Class A Common Stock or Class B Common Stock, (iii) a subdivision of its outstanding Class A Common Stock or Class B Common Stock into a larger number of such Class A Common Stock or Class B Common Stock or (iv) any reorganization or reclassification of its Class A Common Stock or Class B Common Stock, or any liquidation, consolidation or merger with another corporation, or the sale of all or substantially all of its assets to another corporation, in such a way that the holders of its outstanding Class A Common Stock or Class B Common Stock shall be entitled to receive (either directly, or upon subsequent liquidation) stock, securities or other property (including cash) with respect to or in exchange for such Class A Common Stock or Class B Common Stock, (any such event set forth in (i) - (iv) above referred to as a "Diluting Event"), then as a condition of such Diluting Event lawful and adequate provisions shall be made whereby TDS shall be entitled to receive, (under the same terms otherwise applicable to TDS' receipt of RCC's Class A Common Stock or Class B Common Stock) upon TDS' conversion of the Convertible Preferred Stock or the Debenture, as applicable, (the "RCC Convertible Shares"), the following: (i) if the Diluting Event results in an exchange of RCC's Class A Common Stock or its Class B Common Stock for other property, TDS shall be entitled to receive in lieu of the RCC Convertible Shares to which TDS was entitled immediately prior to the Diluting Event but which TDS had not yet received, such shares of stock, securities or other property as may be issued or payable by virtue of the Diluting Event in exchange for that number of 12 RCC Convertible Shares to which TDS was entitled immediately prior to the Diluting Event but which it had not yet received; (ii) if the Diluting Event results in an issuance or payment with respect to RCC's Class A Common Stock or its Class B Common Stock, TDS shall be entitled to receive, in addition to the RCC Convertible Shares to which it was entitled immediately prior to the Diluting Event but which it had not yet received, such shares of stock, securities or other property as may be issued or payable by virtue of the Diluting Event with respect to that number of RCC Convertible Shares to which TDS was entitled immediately prior to the Diluting Event but which it had not yet received. If any Diluting Event occurs, provision shall be made with respect to TDS' rights and interests resulting from the application of this Section to ensure that this Section applies as well to any shares of stock, securities or other property deliverable to TDS as a result of such Diluting Event. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by duly authorized representatives as of the day, month and year first above-written. RURAL CELLULAR CORPORATION By /s/ Richard P. Ekstrand Its President TELEPHONE & DATA SYSTEMS, INC. By /s/ LeRoy T. Carlson Its Chairman Signature Page to Recapitalization Agreement relating to Telephone & Data System's Inc.'s Ownership Interest in Rural Cellular Corporation dated October 31, 1999 AMENDED EXHIBIT A TERM SHEET FOR CONVERTIBLE PREFERRED STOCK o Class: The convertible preferred stock shall be a separate class of preferred stock. Only TDS, affiliates of TDS or TDS Owned Entities or their respective successors and assigns shall hold such separate class of preferred stock. o Date of Issuance: Issuance of the convertible preferred stock shall be conditioned upon the FCC's acceptance of the issuance of such convertible preferred stock as a remedy for the Cross-Ownership Issues (the "FCC Closing Date"). o Liquidation Preference: The convertible preferred stock shall have a liquidation preference of $1,000.00 per share. o Amount: The Excess Shares shall be exchangeable for convertible preferred stock based on a ratio determined by dividing the product of $50 5/8 (the RCC common stock price as of October 22, 1999 ) times the number of Excess Shares by $1,000.00. o Term: The preferred stock is mandatorily redeemable by the Company for cash on the first day following the twentieth ( 20th ) anniversary of the date of issuance. o Payment of Dividends: Dividends on the convertible preferred stock shall be cumulative, with a fixed coupon rate of four percent (4%) per annum. Dividends would be payable at the end of the term , at which point they would be declared and paid unless prohibited by law . In the event of conversion prior to the end of the term , dividends would not be declared . The convertible preferred stock will also participate on a current basis in dividends, if any, declared with respect to the Company's Class A Common Stock or Class B Common Stock. o Conversion: The convertible preferred stock shall convert in the aggregate into the same number of shares of Class A and Class B Common Stock as the number of Excess Shares originally exchanged. Partial conversions shall be effected on a proportionate basis. The Non-Dilution Provision shall apply. The convertible preferred stock shall be convertible at any time prior to the twentieth ( 20th ) anniversary at the option of either TDS or the Company, in whole or in part, so long as the issuance of shares of the Company's Class A Common Stock and/or Class B Common Stock shall not violate the then applicable FCC rules on cross-ownership. o Subordination: The convertible preferred stock shall be subordinate, at the option of the Company as exercised from time to time , to any or all classes of preferred stock and debt, whether now outstanding or hereafter issued, with respect to the liquidation preference and the payment of dividends. o Transferability: The convertible preferred stock shall be transferable by TDS to the extent permitted under applicable securities laws, provided that notice of any proposed transfer must be provided to the Company at least 30 days in advance and, if the Company so requires, an opinion of counsel satisfactory to the Company that such transfer does not violate the registration requirements of federal or state securities laws, and, further provided, that such transfer shall not be in violation of any FCC rule nor result in a Cross Ownership Issue between RCC and the transferee . To the extent that any shares of convertible preferred stock which are convertible into Class B Common Stock are transferred to a person that is not an affiliate of TDS (as the term "affiliate" is defined in RCC's Articles of Incorporation,) such share(s) of convertible preferred stock transferred shall thereafter be convertible only into Class A Common Stock. The conversion rights will not be transferable separate from the convertible preferred stock. o Registration Rights: The convertible preferred stock shall not be registered under federal or state securities laws. (See also the First Amendment with regard to a potential "Additional Dividend") 2 EXHIBIT B TERM SHEET FOR SUBORDINATED CONVERTIBLE DEBENTURES o Date of Issuance: Issuance of the convertible debentures shall be conditioned upon and concurrent with the closing of the Acquisition Agreement (the "Triton Closing Date"). o Amount: The dollar amount of the subordinated convertible debenture shall be determined as of the Triton Closing Date and shall equal the number of shares to be redeemed in exchange for the debenture times the RCC Price. o Term: The debenture will mature on the first day after the twentieth (20th) anniversary of the date of issuance. o Interest Rate: Interest shall accrue at the Applicable Federal Rate (as defined in the Internal Revenue Code and regulations) for long-term instruments, fixed as of the Closing Date (the "Interest Rate"). o Payment of Interest: Interest shall be payable, at the Company's option, either in cash or by issuance of additional subordinated convertible debentures ("PIK") in an amount equal to the dollar amount of the interest due. With respect to any interest payment due the holder payable in PIK, the holder shall be paid an "Additional Amount of Interest" on the principal in accordance with the following formula: (Interest Rate X .4 X .09) / .6 For example, if the Interest Rate is 6.39%, the Additional Amount of Interest would be .383%, determined as follows: (6.39% X .4 X .09) / .6 = .383% o Conversion. The debenture shall be convertible, in the aggregate, into the same number of shares of Class A Common Stock and Class B Common Stock, as the number of Excess Shares originally exchanged therefor; provided, however, that if any interest payment due the holder was not paid in cash, the holder shall be entitled upon conversion to an additional number of shares of Class A Common Stock and Class B Common Stock, as applicable, in an amount equal to Additional Amount of Interest X $1,000 per $1,000 amount of debenture (under the above example, $3.83 / $1,000) for each year the debenture was outstanding and interest was not paid in cash. For purposes of determining such additional number of shares of Class A Common Stock and Class B Common Stock, as applicable, such applicable dollar amount shall be divided by the average closing price of Class A Common Stock for the five trading days immediately prior to the conversion date. Partial conversions shall be effected on a proportionate basis. The Non-Dilution Provision shall apply. The debentures shall be convertible at any time at the option of either TDS or the Company, in whole or in part, so long as the issuance of the shares shall not violate the then applicable FCC rules on cross-ownership. o Subordination: The debentures shall be deeply subordinated to all classes of preferred stock and debt of RCC, whether now or hereafter issued, with respect to the liquidation preference and payment of interest. o Transferability: The debentures shall be transferable by TDS to the extent permitted under applicable securities laws, provided that notice of any proposed transfer must be provided to the Company at least 30 days in advance and, if the Company so requires, an opinion of counsel satisfactory to the Company that such transfer does not violate the registration requirements of federal or state securities laws, and, further provided, that such transfer shall not be in violation of any FCC rule nor result in a Cross Ownership Issue between RCC and the transferee. To the extent that any debenture is transferred to a person that is not an affiliate of TDS (as the term "affiliate" is defined in RCC's Articles of Incorporation), such debenture shall thereafter be convertible only into Class A Common Stock. The conversion rights will not be transferable separate from the debentures. o Registration Rights: The debentures shall not be registered under federal or state securities laws. No registration rights shall attach to the debentures. EX-4.1(B) 3 EXHIBT 4.1(B) Exhibit 4.1(b) FIRST AMENDMENT TO RECAPITALIZATION AGREEMENT This First Amendment to Recapitalization Agreement (the "Amendment") is made and entered into as of the 6th day of December 1999, by and between Rural Cellular Corporation, a Minnesota corporation (including its successors, assigns and affiliates "RCC") and Telephone & Data Systems, Inc., a Delaware corporation, (including its successors, assigns and affiliates, "TDS"). R E C I T A L S: A. RCC and TDS entered into that certain Recapitalization Agreement dated the 31st day of October 1999 (the "Agreement"); and B. The Parties desire to amend the Agreement for the purpose of amending and restating the terms of the Convertible Preferred Stock which would be issued by RCC in the event the FCC Recapitalization is consummated. AGREEMENT: NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: 1. Defined Terms. Capitalized terms used, but not defined herein, shall have the meaning ascribed thereto in the Agreement. 2. Amendment and Restatement of Terms of Convertible Preferred Stock. Exhibit A entitled "Term Sheet for Convertible Preferred Stock" attached to the Agreement, is hereby amended and restated in its entirety as set forth in the Amended Exhibit A attached hereto. 3. Tax Position. TDS acknowledges that RCC's tax advisors have recommended to RCC that, under the Code, the dividends due at the end of the term of the Convertible Preferred Stock should not be deemed taxable income to TDS until and unless the dividends are actually declared at the end of the term. TDS and RCC agree that the position recommended is justified and agree to file their federal and other applicable income tax returns in a manner consistent with that position. If, as a result of an audit or examination of TDS or any of its subsidiaries, a taxing authority asserts that the dividends payable at the end of the term of the Convertible Preferred Stock must be accrued and taxed currently (a "Deemed Dividend " ), then RCC shall pay to TDS a Tax Indemnity Payment, defined and computed as set forth below, together with any interest and penalties resulting from such assertion and contest expenses relating thereto. RCC shall be given prompt notice of any such audit or examination and an opportunity to participate (at its own expense) in the resolution of any issues that would affect it, but only to the extent such issue can be separated on audit from any other tax issues of TDS, and shall reimburse TDS for TDS's expenses relating thereto. In the event that TDS chooses not to challenge the position of the taxing authority, RCC, at its own expense, may elect to challenge, on behalf of TDS and itself, any adverse position taken by an applicable taxing authority and for appealing any adverse decisions, but only to the extent such issue can be separated on audit from any other tax issues of TDS ; TDS shall cooperate with any such challenge by RCC, at RCC's expense. Payment of the Tax Indemnity Payment shall be due from RCC only after a final non-appealable determination with respect thereto or if a further contest becomes commercially unreasonable. Following such an event (an "Adverse Tax Determination"), TDS shall no longer be bound by the second sentence of this section 3. 4. Tax Indemnity Payments. Following an Adverse Tax Determination , RCC shall pay to TDS an annual Tax Indemnity Payment equal to 0.24% of the face amount of the outstanding Convertible Preferred Stock owned by TDS for each year covered by the Adverse Tax Determination and all future periods during which the Convertible Preferred Stock is outstanding. The Tax Indemnity Payment shall be paid by RCC immediately following the Adverse Tax Determination in the case of prior periods and, in the case of future periods , on or before January 15 of the year following the year for which each Deemed Dividend is deemed to have accrued. 5. Confirmation of Agreement. Except as set forth in this Amendment, the provisions of the Agreement are hereby ratified, confirmed and approved in all respects as if fully set forth herein. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by duly authorized representatives as of the day, month and year first above written. RURAL CELLULAR CORPORATION By /s/ Richard P. Ekstrand Its President TELEPHONE & DATA SYSTEMS, INC. By /s/ LeRoy T. Carlson Its Chairman Signature page to First Amendment to Recapitalization Agreement relating to Telephone & Data Systems, Inc.'s ownership interest in Rural Cellular Corporation dated December 6, 1999. 2 AMENDED EXHIBIT A TERM SHEET FOR CONVERTIBLE PREFERRED STOCK o Class: The convertible preferred stock shall be a separate class of preferred stock. Only TDS, affiliates of TDS or TDS Owned Entities or their respective successors and assigns shall hold such separate class of preferred stock. o Date of Issuance: Issuance of the convertible preferred stock shall be conditioned upon the FCC's acceptance of the issuance of such convertible preferred stock as a remedy for the Cross-Ownership Issues (the "FCC Closing Date"). o Liquidation Preference: The convertible preferred stock shall have a liquidation preference of $1,000.00 per share. o Amount: The Excess Shares shall be exchangeable for that number of shares of convertible preferred stock determined by dividing the product of $50 5/8 (the RCC common stock price as of October 22, 1999) times the number of Excess Shares by $1,000.00. o Term: The preferred stock is mandatorily redeemable by the Company for cash on the first day following the twentieth (20th) anniversary of the date of issuance. o Payment of Dividends: Dividends on the convertible preferred stock shall be cumulative, with a fixed coupon rate of four percent (4%) per annum. Dividends would be payable at the end of the term , at which point they would be declared and paid unless prohibited by law. In the event of conversion prior to the end of the term , dividends would not be declared. The convertible preferred stock will also participate on a current basis in dividends, if any, declared with respect to the Company's Class A Common Stock or Class B Common Stock. o Conversion: The convertible preferred stock shall convert in the aggregate into the same number of shares of Class A and Class B Common Stock as the number of Excess Shares originally exchanged. Partial conversions shall be effected on a proportionate basis. The Non-Dilution Provision shall apply. The convertible preferred stock shall be convertible at any time prior to the twentieth (20th) anniversary at the option of either TDS or the Company, in whole or in part, so long as the issuance of shares of the Company's Class A Common Stock and/or Class B Common Stock shall not violate the then applicable FCC rules on cross-ownership. o Subordination: The convertible preferred stock shall be subordinate, at the option of the Company as exercised from time to time, to any or all classes of preferred stock and debt, whether now outstanding or hereafter issued, with respect to the liquidation preference and the payment of dividends. o Transferability: The convertible preferred stock shall be transferable by TDS to the extent permitted under applicable securities laws, provided that notice of any proposed transfer must be provided to the Company at least 30 days in advance and, if the Company so requires, an opinion of counsel satisfactory to the Company that such transfer does not violate the registration requirements of federal or state securities laws, and, further provided, that such transfer shall not be in violation of any FCC rule nor result in a Cross Ownership Issue between RCC and the transferee. To the extent that any shares of convertible preferred stock which are convertible into Class B Common Stock are transferred to a person that is not an affiliate of TDS (as the term "affiliate" is defined in RCC's Articles of Incorporation,) such share(s) of convertible preferred stock transferred shall thereafter be convertible only into Class A Common Stock. The conversion rights will not be transferable separate from the convertible preferred stock. o Registration Rights: The convertible preferred stock shall not be registered under federal or state securities laws. 2 EX-4.1(C) 4 EXHIBIT 4.1(C) Exhibit 4.1(c) SECOND AMENDMENT TO RECAPITALIZATION AGREEMENT This Second Amendment to Recapitalization Agreement (the "Amendment") is made and entered into as of the 31st day of March 2000, by and between Rural Cellular Corporation, a Minnesota corporation (including its successors, assigns and affiliates "RCC") and Telephone and Data Systems, Inc., a Delaware corporation, (including its successors, permitted assigns and affiliates, "TDS"). R E C I T A L S: A. RCC and TDS entered into that certain Recapitalization Agreement dated the 31st day of October 1999, as amended by that certain First Amendment to Recapitalization Agreement dated December 6, 1999 (collectively the "Agreement"); and B. The Parties desire to further amend the Agreement for the purpose of (i) establishing the number of shares of Class A Common Stock and Class B Common Stock which shall constitute the Excess Shares to be exchanged by TDS for Class T Preferred Stock, Series A and Series B of RCC, as such securities are more fully described in the Certificate of Designation of Voting Power thereof (herein "Class T Preferred Stock") in consummating the FCC Recapitalization; (ii) incorporating provisions which will ensure the parties continued compliance with the Cross Ownership Rule, as required by the FCC in approving the FCC Recapitalization as a remedy for the Cross-Ownership Issues; and (iii) to provide registration rights to TDS with respect to the shares of Class T Preferred Stock to be issued to TDS in exchange for the Excess Shares; all on the terms and conditions set forth in this Amendment. AGREEMENT: NOW, THEREFORE, in consideration of the foregoing premises, the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby agree as follows: 1. Defined Terms. Capitalized terms used, but not defined herein, shall have the meaning ascribed thereto in the Agreement. 2. Shares Exchanged. Notwithstanding the provisions of the Agreement to the contrary, the number of shares of Class A Common Stock and Class B Common Stock to be exchanged by TDS in consummating the FCC Recapitalization shall be 43,000 shares of Class A Common Stock and 105,940 shares of the Class B Common Stock, which shares shall be exchanged by the TDS affiliates as shown on Exhibit A hereto. 3. Continued Compliance. In addition to the provisions of Article 5 of the Agreement, in order to further ensure continued compliance of RCC and TDS with respect to the Cross-Ownership Rule, if, following the FCC Closing: (i) TDS and its affiliates own Excess Shares; and (ii) as a result thereof, RCC and TDS fail to comply with the Cross Ownership Rule, then TDS agrees to exchange the Excess Shares for shares of Class T Preferred Stock, Series A or Series B, respectively, as necessary to bring RCC and TDS into compliance with the Cross-Ownership Rule. The closing of such transaction shall occur in accordance with the provisions of the Agreement, as the same relate to the Closing of the FCC Recapitalization. RCC's obligation to effect an Exchange of the Excess Shares in the manner contemplated by the Agreement shall apply only to the issued and outstanding shares of Class A Common Stock and Class B Common Stock owned by TDS as of the date hereof, as reflected on Exhibit A. 4. Certificate of Designation. TDS hereby acknowledges that the Certificate of Designations attached hereto as Exhibit B constitutes the terms and relative rights and preferences of the Class T Preferred Stock in accordance with the provisions of the Agreement. RCC shall file the Certificate of Designations with the Minnesota Secretary of State on or prior to the FCC Closing Date. 5. Registration Rights. RCC hereby agrees to provide TDS with registration rights with respect to the Class T Preferred Stock in accordance with the provisions of the Registration Agreement for Class T Preferred Stock attached hereto as Exhibit C. 6. Confirmation of Agreement. Except as modified by this Amendment, the provisions of the Agreement are hereby ratified, confirmed and shall remain in full force and effect. 7. Reimbursement. Without limiting any further obligations under Section ____ of the Recapitalization Agreement, RCC confirms that it will promptly reimburse United States Cellular Corporation in the amount of $33,455.49 for fees and disbursements of Sidley & Austin incurred in connection herewith through February 29, 2000. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by duly authorized representatives as of the day, month and year first above written. RURAL CELLUAR CORPORATION TELEPHONE AND DATA SYSTEMS, INC. By /s/ Ann K. Newhall By /s/ LeRoy T. Carlson Its Sr. Vice President Its Chairman Signature page to Second Amendment to Recapitalization Agreement relating to Telephone & Data Systems, Inc.'s ownership interest in Rural Cellular Corporation dated March 31, 2000. 2 EXHIBIT A - -------------------------------------------------------------------------------- BEFORE EXCHANGE AFTER - -------------------------------------------------------------------------------- A B A B A B ================================================================================ Arvig 172,348 70,243 0 61,356 172,348 8,887 ================================================================================ Mid State 74,746 31,177 0 22,292 74,746 8,885 ================================================================================ MN Invco 339,705 31,177 43,000 22,292 296,705 8,885 ------- ------- ------ ------- ------- ------ ================================================================================ 586,799 132,597 43,000 105,940 543,799 26,657 ======= ======= ====== ======= ======= ====== - -------------------------------------------------------------------------------- EXHIBIT B CERTIFICATE OF DESIGNATION CLASS T PREFERRED STOCK [Included as Exhibit 4.1(e) to Report on Form 8-K dated April 1, 2000] EXHIBIT C REGISTRATION AGREEMENT FOR CLASS T PREFERRED STOCK [Included as Exhibit 4.1(d) to Report on Form 8-K dated April 1, 2000] EX-4.1(D) 5 EXHIBIT 4.1(D) Exhibit 4.1(d) RURAL CELLULAR CORPORATION REGISTRATION RIGHTS AGREEMENT THIS AGREEMENT is made as of March 31, 2000, between Rural Cellular Corporation, a Minnesota corporation (the "Company"), and Telephone and Data Systems, Inc., a Delaware corporation (together with its affiliates, "TDS"). The parties to this Agreement are parties to a Recapitalization Agreement dated October 31, 1999, as amended effective December 6, 1999, and March 31, 2000 (as amended, the "Recapitalization Agreement"). In order to induce TDS to enter into the Recapitalization Agreement, the Company has agreed to provide the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the Closing under the Recapitalization Agreement. Unless otherwise provided in this Agreement, capitalized terms used herein shall have the meanings set forth in paragraph 8 hereof or in the Recapitalization Agreement. The parties hereto agree as follows: 1. DEMAND REGISTRATIONS. (a) REQUESTS FOR REGISTRATION. At any time after the conversion of Class T Preferred Stock into shares of Common Stock ("Registrable Securities", as further defined in Section 8(a) hereof), TDS may request up to three registrations under the Securities Act of 1933, as amended (the "Securities Act") of all or any portion of its Registrable Securities, provided that the aggregate offering value of the Registrable Securities requested to be registered in any registration under this paragraph 1(a) (any "Demand Registration") must equal at least $5 million. All requests for Demand Registrations shall be made by giving written notice thereof to the Company (a "Demand Notice"). Each Demand Notice shall specify the number of Registrable Securities requested to be registered. (b) DEMAND EXPENSES. The Registration Expenses (as defined in Section 5(a) hereof) in all Demand Registrations shall be paid by the Company. (c) RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall not be obligated to effect any Demand Registration within 270 days after the effective date of a previous Demand Registration or a previous registration in which TDS was given piggyback rights pursuant to paragraph 2 and in which TDS was able to register and sell at least 60% of the Registrable Securities requested to be included therein. The Company may postpone for up to 90 days the filing or the effectiveness of a registration statement for a Demand Registration if the Company's board of directors determines in its reasonable good faith judgment that such Demand Registration could reasonably be expected to have a material adverse effect on any activities, operations or prospects of the Company or any of its Subsidiaries (whether or not in the ordinary course of business); provided that in such event, TDS shall be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration shall not count as one of the permitted Demand Registrations hereunder and the Company shall pay all Registration Expenses in connection with such registration. The Company may delay a Demand Registration hereunder only once in any twelve-month period. (d) SELECTION OF UNDERWRITERS. TDS shall have the right to select the investment banker(s) and manager(s) to administer the offering, subject to the Company's approval, which shall not be unreasonably withheld or delayed. 2. PIGGYBACK REGISTRATIONS. (a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register any of its equity securities under the Securities Act other than pursuant to a Demand Registration and the registration form to be used may be used for the registration of Registrable Securities and is not a Form S-4 or S-8 or a successor form (a "Piggyback Registration"), the Company shall give prompt written notice to TDS of its intention to effect such a registration and, subject to the terms of paragraphs 2(c) and 2(d) hereof, shall include in such registration all Registrable Securities with respect to which the Company has received a written request for inclusion therein within 20 days after the receipt of the Company's notice. (B) PIGGYBACK EXPENSES. The Registration Expenses in all Piggyback Registrations shall be paid by the Company. (c) PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the Company, the Company shall include in such registration (i) first, the securities the Company proposes to sell, (ii) second, pro rata among the holders of the Registrable Securities to the extent requested to be included in such registration and the holders of securities requested to be included in such registration by persons having registration rights under the Registration Agreement between the Company and the purchasers of its Class M Redeemable Voting Convertible Preferred Stock to the extent requested to be included in such registration and (iii) third, any other securities requested to be included in such registration, pro rata among the holders of the other securities on the basis of the number of shares owned by each such holder. (d) PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the holders initially requesting such registration, the Company shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, (ii) second, pro rata among the holders of the Registrable 2 Securities to the extent requested to be included in such registration and the holders of securities requested to be included in such registration by persons having registration rights under the Registration Agreement among the Company and the purchasers of its Class M Redeemable Voting Convertible Preferred Stock to the extent requested to be included in such registration, and (iii) third, any other securities requested to be included in such registration, pro rata among the holders of such securities on the basis of the number of shares owned by each such holder. (e) SELECTION OF UNDERWRITERS. If any Piggyback Registration is an underwritten primary offering, the selection of investment banker(s) and manager(s) for the offering shall be made by the Company. 3. HOLDBACK AGREEMENT. TDS shall not effect any public sale or distribution (including sales pursuant to Rule 144 promulgated under the Securities Act) of equity securities of the Company, or any securities convertible into or exchangeable or exercisable for such securities, during (i) with respect to any underwritten Demand Registration or any underwritten Piggyback Registration in which Registrable Securities are included, for a period beginning seven days prior to and ending 90 days after the effective date of such registration and (ii) upon notice from the Company of the commencement of an underwritten distribution in connection with any registration pursuant to Rule 415 under the Securities Act (a "Shelf Registration") for a period beginning seven days prior to and ending 90 days after the date of commencement of such distribution, in each case except as part of such underwritten registration and in each case unless the underwriters managing the registered public offering otherwise agree. 4. REGISTRATION PROCEDURES. Whenever TDS has requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company shall as expeditiously as practicable: (a) prepare and file with the Securities and Exchange Commission a registration statement with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective (provided that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to the counsel selected by TDS copies of all such documents proposed to be filed, and the Company shall in good faith consider any comments of such counsel); (b) notify TDS of the effectiveness of each registration statement filed hereunder and prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of not less than 90 days (or, in the case of a Shelf Registration, a period ending on the earlier of (i) the date on which all Registrable Securities have been sold pursuant to the Shelf Registration or have otherwise ceased to be Registrable Securities and (ii) the second anniversary of the effective date of such Shelf Registration) and comply with the provisions of the Securities Act with respect to the disposition of all 3 securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement; (c) furnish to TDS such number of copies of the prospectus included in such registration statement (including each preliminary prospectus), each amendment and supplement thereto and such other documents as TDS may reasonably request in order to facilitate the disposition of the Registrable Securities; (d) use commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as TDS reasonably requests and to do any and all other acts and things which may be reasonably necessary or advisable to enable TDS to consummate the disposition in such jurisdictions of the Registrable Securities (provided that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction); (e) notify TDS at any time when a prospectus relating to the Registrable Securities is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and the Company shall prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading; (f) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any common stock included in such registration statement for sale in any jurisdiction, the Company shall use commercially reasonable efforts promptly to obtain the withdrawal of such order. 5. REGISTRATION EXPENSES. (a) All expenses incident to the Company's performance of or compliance with this Agreement, including without limitation all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, fees and disbursements of custodians, and fees and disbursements of counsel for the Company (but not fees and disbursements of counsel for TDS) and all independent certified public accountants (excluding costs of accountants retained to conduct any special audits required in connection with a Demand Registration), underwriters (excluding discounts and commissions) and other Persons retained by the Company ( and fees and disbursements of underwriter's counsel if the underwriter is retained by the Company )(all such expenses being herein called "Registration Expenses"), shall be borne by the Company as provided in this Agreement, except that the Company shall, in any event, pay its internal expenses (including, without limitation, 4 all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed or on the Nasdaq Stock Market. (b) To the extent any expenses relating to a registration hereunder are not required to be paid by the Company, each holder of securities included in any registration hereunder shall pay those expenses allocable to the registration of such holder's securities so included, including the fees and disbursements of such holder's counsel and any expenses not so allocable shall be borne by all sellers of securities included in such registration in proportion to the aggregate selling price of the securities to be so registered. (c) Any obligation to pay Registration Expenses or other expenses provided for in this Agreement shall survive the termination of this Agreement. 6. INDEMNIFICATION. (a) The Company agrees to indemnify, to the extent permitted by law, TDS, its directors, officers, employees, agents, Affiliates, and each Person who controls TDS (within the meaning of the Securities Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act")) against all losses, claims, damages, liabilities, and expenses caused by any untrue or alleged untrue statement of material fact contained in any registration statement, prospectus, or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company by TDS expressly for use by the Company in such registration statement or by TDS's failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto after the Company has furnished TDS with such number of copies of the same as was previously requested by TDS. In connection with an underwritten offering, the Company shall indemnify such underwriters, their officers, directors, employees, agents, and each Person who controls such underwriters (within the meaning of the Securities Act and the Exchange Act) to substantially the same extent as provided above with respect to the indemnification of TDS. (b) In connection with any registration statement in which TDS is participating, TDS shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the extent permitted by law, shall indemnify the Company, its directors, officers, employees, agents, Affiliates, and each Person who controls the Company (within the meaning of the Securities Act and the Exchange Act) against any losses, claims, damages, liabilities, and expenses caused by any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus, or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or 5 necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by TDS expressly for use by the Company in such registration statement; provided that the obligation to indemnify shall be limited to the net amount of proceeds received by TDS from the sale of Registrable Securities pursuant to such registration statement. (c) Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person's right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. The indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which case the indemnifying party shall be obligated to pay the fees and expenses of counsel for the indemnified party with whom the conflict of interest exists. (d) The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, employee, agent, Affiliate, or controlling Person of such indemnified party and shall survive the transfer of securities and the termination of this Agreement. The Company also agrees to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company's indemnification is unavailable for any reason. 7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may participate in any registration hereunder that is underwritten unless such Person (i) agrees to sell such Person's securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements; provided that TDS shall not be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding TDS and its intended method of distribution) or to undertake any indemnification obligations to the Company or the underwriters with respect thereto, except as otherwise provided in paragraph 6 hereof. 6 8. DEFINITIONS. (a) "Registrable Securities" means (i) any Class A Common Stock or Class B Common Stock issued or issuable upon the conversion of any Class T Preferred Stock issued pursuant to the Recapitalization Agreement and (ii) any Class A Common Stock or Class B Common Stock or other Common Stock issued or issuable with respect to any Registrable Securities by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when they have been sold, transferred or otherwise disposed of pursuant to an offering registered under the Securities Act, through a broker, dealer, or market maker in compliance with Rule 144 under the Securities Act (or any similar rule then in force), or repurchased by the Company or any Subsidiary. For purposes of this Agreement, TDS shall be deemed to be a holder of Registrable Securities, and the Registrable Securities shall be deemed to be in existence, whenever TDS has the right to acquire directly or indirectly such Registrable Securities (upon conversion or exercise in connection with a transfer of securities or otherwise, but disregarding any restrictions or limitations upon the exercise of such right), whether or not such acquisition has actually been effected, and TDS shall be entitled to exercise the rights of a holder of Registrable Securities hereunder. (b) "Affiliate" shall have the meaning set forth in Rule 12b-2 under the Exchange Act. (c) "Person" means any individual, corporation, partnership, joint venture, limited liability company, or other form of business entity or any government or agency or political subdivision thereof. (d) Unless otherwise stated, other capitalized terms contained herein have the meanings set forth in the Recapitalization Agreement. 9. TERMINATION. Except as otherwise provided herein, the rights granted herein shall terminate whenever TDS and any Affiliate with which it must aggregate its sales of restricted securities for purposes of Rule 144 promulgated under the Securities Act may sell all of their restricted securities during a single three-month period pursuant to the provisions of Rule 144. Except as otherwise provided herein, this Agreement shall terminate at such time as TDS has no rights hereunder. 10. MISCELLANEOUS. (a) SUCCESSORS. All covenants and agreements in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors of the parties hereto. The rights of the parties under this Agreement may not be assigned. Telephone and Data Systems, Inc. shall be the sole party entitled to exercise the rights of TDS hereunder on behalf of all TDS affiliates. (b) SEVERABILITY. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any 7 provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. (c) COUNTERPARTS. This Agreement may be executed simultaneously in two or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Agreement. (d) DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement. Whenever required by the context, any pronoun used in this Agreement shall include the corresponding masculine, feminine, or neuter forms, and the singular forms of nouns, pronouns, and verbs shall include the plural and vice versa. Reference to any agreement, document, certificate, or instrument means such agreement, document, certificate, or instrument as the same is amended, waived, or otherwise modified from time to time in accordance with the terms thereof and, if applicable, hereof. Except as otherwise provided in this Agreement, words such as "herein," "hereunder," "hereof," and the like shall be deemed to refer to this Agreement as a whole and not to any particular document or article, Section, paragraph, or other portion of a document. The use of the words "include" or "including" in this Agreement shall be by way of example rather than by limitation. The use of the words "or," "either," or "any" shall not be exclusive. (e) GOVERNING LAW. The laws of the State of Minnesota shall govern all issues and questions concerning the construction, validity, interpretation, and enforcement of this Agreement, without giving effect to any choice of law or conflict of law rules or provisions. (f) NOTICES. All notices, demands, or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, telecopied to the recipient (with hard copy sent by overnight courier in the manner provided hereunder) if sent prior to 5:00 p.m. Minnesota time on a business day (and otherwise, on the immediately succeeding business day), one business day after being sent to the recipient by reputable overnight courier service (charges prepaid), or three business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. Such notices, demands, and other communications shall be sent to the Company and TDS at the address indicated below: If to RCC: Rural Cellular Corporation 3905 Dakota Street SW Alexandria, Minnesota 56308 Attention: Chief Executive Officer Telephone: (320) 808-2100 Telecopy: (320) 808-2120 8 with a copy to: Moss & Barnett 4800 Norwest Center 90 South 7th Street Minneapolis, Minnesota Attention: Richard Kelber, Esq. Telephone: (612) 347-0300 Telecopy: (612) 339-6686 If to TDS: Telephone and Data Systems, Inc. 30 North LaSalle Street Chicago, IL 60602 Attn: LeRoy T. Carlson, Chairman Telephone: (312) 630-1900 Telecopy: (312) 630-9299 with a copy to: Sidley & Austin Bank One Plaza 10 South Dearborn Chicago, Illinois 60603 Attn: William S. DeCarlo, Esq. Telephone: (312) 853-6094 Telecopy: (312) 853-7036 or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. (g) BUSINESS DAYS. If any time period for giving notice or taking action hereunder expires on a day which is a Saturday, Sunday, or legal holiday in the State of Minnesota or the jurisdiction in which the Company's or TDS's principal office is located, the time period shall automatically be extended to the business day immediately following such Saturday, Sunday, or legal holiday. (h) DELIVERY BY FACSIMILE. This Agreement, the agreements referred to herein, and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall re-execute original forms thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine as a defense to the formation or enforceability of a contract and each such party forever waives any such defense. 9 IN WITNESS WHEREOF, the parties have executed this Registration Agreement as of the date first written above. RURAL CELLULAR CORPORATION By: /s/ Ann K. Newhall Its: Sr. Vice President TELEPHONE AND DATA SYSTEMS, INC. By: /s/ LeRoy T. Carlson Its: Chairman SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT BETWEEN RURAL CELLULAR CORPORATION AND TELEPHONE & DATA SYSTEMS, INC. DATED: March 31, 2000 EX-4.1(E) 6 EXHIBIT 4,1(E) Exhibit 4.1(e) CERTIFICATE OF DESIGNATION OF VOTING POWER, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL AND OTHER SPECIAL RIGHTS AND QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS OF CLASS T CONVERTIBLE PREFERRED STOCK OF RURAL CELLULAR CORPORATION ------------------------ Pursuant to Section 302A.401 of the Minnesota Business Corporation Act ----------------------- Rural Cellular Corporation, a Minnesota corporation (the "Company"), certifies that pursuant to the authority contained in its Articles of Incorporation, as amended (the "Articles of Incorporation"), and in accordance with the provisions of Section 302A.401 of the Minnesota Business Corporation Act (as amended from time to time, the "MBCA"), the Board of Directors of the Company (the "Board of Directors") at a meeting duly called and held on March 23, 2000, duly approved and adopted the following resolution, which resolution remains in full force and effect on the date hereof: RESOLVED, that pursuant to the authority vested in the Board of Directors by the Articles of Incorporation, the Board of Directors does hereby designate, create, authorize and provide for the issuance of a class of preferred stock consisting of two series, each having a par value of $.01 per share, which shall be designated as Class T Convertible Preferred Stock - Series A, consisting of 15,000 shares (the "Class T Preferred Stock - Series A") and Class T Convertible Preferred Stock - Series B, consisting of 10,000 shares (the "Class T Preferred Stock - Series B"), and shall have the voting powers, preferences and relative participating, optional and other special rights and qualifications, limitations and restrictions thereon as follows: 1. Certain Definitions. Unless the context otherwise requires, the terms defined in this Section 1 shall have, for all purposes of this Certificate of Designation, the meanings herein specified (with terms defined in the singular having comparable meanings when used in the plural). "Affiliate" of any Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such Person. For the purposes of this definition, "control" when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Articles of Incorporation" has the meaning set forth in the introductory paragraph in this Certificate of Designation. "Board of Directors" has the meaning set forth in the introductory paragraph to this Certificate of Designation. "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in New York City or the State of Minnesota or the State of Illinois are authorized or obligated by law or executive order to close. "Capital Stock" means any and all shares, interests, participations or other equivalents (however designated, whether voting or nonvoting) of equity of the Company. 2 "Certificate of Designation" means this Certificate of Designation of Voting Power, Preferences and Relative, Participating, Optional and Other Special Rights and Qualifications, Limitations and Restrictions of Class T Convertible Preferred Stock of the Company. "Class A Common Stock" means the Company's Class A Common Stock, $.01 par value per share. "Class A Share Rights Agreement" means the Class A Share Rights Agreement, dated as of April 30, 1999, by and among the Company and Norwest Bank Minnesota, National Association, as Rights Agent, as amended and modified from time to time. "Class B Common Stock" means the Company's Class B Common Stock, $.01 par value per share. "Class B Share Rights Agreement" means the Class B Share Rights Agreement, dated as of April 30, 1999, by and among the Company and Norwest Bank Minnesota, National Association, as Rights Agent, as amended and modified from time to time. "Class M Preferred Stock" means the Class M Redeemable Voting Convertible Preferred Stock, $.01 par value per share, of the Company. "Class T Preferred Stock" means the Class T Preferred Stock - Series A and Class T Preferred Stock - Series B, collectively. "Common Convertible Shares" has the meaning set forth in Section 6(e) of this Certificate of Designation. "Common Stock" means the Class A Common Stock and Class B Common Stock, collectively. "Cross-Ownership Rules" mean Subpart H of Part 22 of Title 47 of the Code of Federal Regulations, Section 22.942 entitled "Limitations on interest in licensees for both channel blocks in an area," as amended and modified from time to time, and all other rules of the Federal 3 Communications Commission in effect from time to time applicable to the ownership of competing channel blocks for the same cellular market. "Diluting Event" has the meaning set forth in Section 6(e). "Dividend Payment Date" has the meaning set forth in Section 3(a). "Holder" means a Person in whose name a share of Class T Preferred Stock is registered. "Issue Date" means the time and date of the first issuance of the Class T Preferred Stock pursuant to the Recapitalization Agreement dated as of October 31, 1999, between the Company and Telephone and Data Systems, Inc., as amended and modified from time to time. "Junior Exchangeable Preferred Stock" means the 12 1/4% Junior Exchangeable Preferred Stock, $.01 par value per share, of the Company. "Junior Stock" has the meaning set forth in Section 2(a). "Liquidation Preference" means $1,000 per share of Class T Preferred Stock. "Mandatory Redemption Date" means the date which is twenty (20) years and one (1) day after the Issue Date. "MBCA" has the meaning set forth in the introductory paragraph to this Certificate of Designation. "Parity Stock" has the meaning set forth in Section 2(a). "Person" means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof. "Preferred Stock" means any and all shares of Capital Stock of the Company that have preferential rights to any other Capital Stock of the Company with respect to dividends or redemptions or upon liquidation. "Senior Exchangeable Preferred Stock" means the 11 3/8% Senior Exchangeable Preferred Stock, $.01 par value per share, of the Company. 4 "Senior Stock" has the meaning set forth in Section 2(a). "Series A Preferred Stock" means the Company's Series A Junior Participating Preferred Stock, $.01 par value per share, which may be issued pursuant to the Class A Share Rights Agreement. "Series B Preferred Stock" means the Company's Series B Junior Participating Preferred Stock, $.01 par value per share, which may be issued pursuant to the Class B Share Rights Agreement. "Undesignated Shares" means the undesignated shares of the Capital Stock of the Company which are authorized under its Articles of Incorporation. 2. Ranking. (a) The Class T Preferred Stock shall, with respect to dividend rights and rights upon the liquidation, winding-up and dissolution of the Company, rank (i) junior to the Senior Exchangeable Preferred Stock (the "Senior Stock"), (ii) senior to the Junior Exchangeable Preferred Stock, the Class M Preferred Stock, the Series A Preferred Stock, the Series B Preferred Stock, the Common Stock and each other class or series of Capital Stock established after the Issue Date by the Board of Directors the terms of which expressly provide that it ranks junior to Class T Preferred Stock as to dividend rights and rights upon the liquidation, winding-up and dissolution of the Company (collectively referred to as "Junior Stock"), and (iii) subject to certain conditions, described below, on a parity with each other class or series of Capital Stock established after the Issue Date by the Board of Directors, the terms of which expressly provide that it ranks on a parity with the Class T Preferred Stock as to dividend rights and rights upon the liquidation, winding-up and dissolution of the Company (collectively referred to as "Parity Stock"). 5 (b) The Company may authorize, create and issue any new class or series of Senior Stock, Junior Stock and/or Parity Stock without the affirmative vote or consent of the Holders of any shares of Class T Preferred Stock. The Holders of the Class T Preferred Stock will have no right to dissent under Sections 302A.471 and/or 302A.473 of the MBCA in connection with the authorization, creation and/or issuance of any new class or series of Senior Stock and/or Parity Stock. (c) Except as otherwise expressly provided in Section 6(d), the Class T Preferred Stock - Series A and Class T Preferred Stock - Series B shall have equal voting powers, preferences and relative participating, optional and other special rights and qualifications, limitations and restrictions thereon, and shall rank equally, share ratably, and be identical in all respects as to all matters. 3. Dividends. (a) The Holders of the outstanding shares of the Class T Preferred Stock shall be entitled to receive, when declared by the Board of Directors out of funds of the Company legally available therefor, dividends on the Class T Preferred Stock which shall accrue at the rate of four percent (4%) per annum. All dividends will be cumulative from the Issue Date, and unless the Class T Preferred Stock is converted into Common Stock pursuant to Section 6, will be declared and paid in arrears fifteen (15) days after the Mandatory Redemption Date or, if such date is not a Business Day, on the next succeeding Business Day (the "Dividend Payment Date") to the Holders of record on the Mandatory Redemption Date; provided, however, that the Board of Directors shall not be required to declare or pay the cumulative dividend on the Class T Preferred Stock if then prohibited by the MBCA, the terms and conditions of any Senior Stock or Parity Stock, or any debt of the Company to which the Class T Preferred Stock is subordinate. No 6 dividends will be declared or paid pursuant to this section 3 (a) with respect to any Class T Preferred Stock converted into Common Stock pursuant to Section 6 hereof. Dividends payable on the Class T Preferred Stock will be computed on the basis of a 360-day year consisting of twelve (12) thirty (30) day months and shall be deemed to accrue on a daily basis, commencing on the Issue Date. (b) Dividends on the Class T Preferred Stock shall accrue whether or not the Company has earnings or profits, whether or not there are funds legally available for the payment of such dividends and whether or not dividends are declared. If the cumulative dividend (or portion thereof) payable on the Dividend Payment Date is not paid in full in cash on the Dividend Payment Date, the amount of the accumulated but unpaid dividend will continue to bear interest at the dividend rate on the Class T Preferred Stock from the Dividend Payment Date until paid in full. (c) Notwithstanding any provision of this Certificate of Designation to the contrary, no dividends shall be declared or paid with respect to the Class T Preferred Stock unless and until any accrued dividends due and payable on any Senior Stock shall have been paid in full. (d) Prior to the Mandatory Redemption Date, this Certificate of Designation shall not impose any restrictions or limitations on the declaration and/or payment of any dividends on any or all of the Parity Stock and/or Junior Stock. From and after the Mandatory Redemption Date, no full dividend or distribution shall be declared or paid or funds set apart for the payment of dividends or distributions on any Parity Stock or any Junior Stock for any period unless full cumulative dividends on the Class T Preferred Stock shall have been or contemporaneously are declared and paid in full or declared and a sum in cash sufficient for such payment set apart for such payment. If full cumulative 7 dividends on the Class T Preferred Stock are not so paid, the Class T Preferred Stock will share dividends or distributions declared or paid on and after the Mandatory Redemption Date pro rata with the Parity Stock. Unless full cumulative dividends on all outstanding shares of Class T Preferred Stock shall have been declared and paid, or declared and a sufficient sum for the payment thereof set apart, then from and after the Mandatory Redemption Date: (i) no dividend (other than a dividend on Junior Stock payable solely in shares of any Junior Stock) shall be declared or paid upon (or deemed paid), or any sum set apart for the payment of dividends upon, any shares of Junior Stock; (ii) no other distribution shall be declared or made upon, or any sum set apart for the payment of any distribution upon, any shares of Junior Stock, other than a distribution consisting solely of Junior Stock; (iii) no shares of Junior Stock or Parity Stock shall be repurchased, redeemed or otherwise acquired or retired by the Company; and (iv) no money shall be paid into or set apart or made available for a sinking or other like fund for the purchase, redemption or other acquisition or retirement for value of any shares of Junior Stock or Parity Stock by the Company. (e) In addition to the cumulative dividends at the rate provided for in Section 3(a) hereof, the Holders of issued and outstanding Class T Preferred Stock shall be entitled to receive, from time to time, out of any funds legally available therefor, dividends and other distributions at the same rate and at the same time as any dividends or other distributions declared on the Common Stock of the Company (other than distributions upon the liquidation, dissolution or winding-up of the Company), when, as and if declared by the Board of Directors; provided that, for purposes of this Section 3(e) only, the Holders of the Class T Preferred Stock shall be deemed to own the number of shares of Common Stock into which such shares of Class T Preferred Stock are 8 convertible, pursuant to Section 6 herein, at the time such dividend or other distribution is declared. (f) The Company shall not be required to pay into or set apart or make available for a sinking or other like fund any money for the payment of the cumulative dividends on the Class T Preferred Stock. 4. Liquidation Preference. Upon any voluntary or involuntary liquidation, dissolution or winding-up of the Company, Holders of Class T Preferred Stock shall be entitled to payment, out of the assets of the Company legally available for distribution to stockholders, of the Liquidation Preference per share of Class T Preferred Stock, plus, without duplication, an amount in cash equal to all accumulated and unpaid dividends thereon to but excluding the date fixed for liquidation, dissolution or winding-up, before any distribution is made on any Junior Stock. If, upon any voluntary or involuntary liquidation, dissolution or winding-up of the Company, the amounts payable with respect to the Class T Preferred Stock and all other Parity Stock are not paid in full, the Holders of the Class T Preferred Stock and the Parity Stock shall share equally and ratably in any distribution of assets of the Company in proportion to the full liquidation preference to which each is entitled. After payment of the full amount of the liquidation preference and accumulated and unpaid dividends to which they are entitled, the Holders of shares of Class T Preferred Stock shall not be entitled to any further participation in any distribution of assets of the Company. The Holders of shares of Class T Preferred Stock shall not be entitled to participate in the distribution of any assets of the Company in connection with the liquidation, dissolution or winding-up of the Company unless and until the holders of all Senior Stock shall have received the full liquidation preference to which they are entitled. Neither the sale, conveyance, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property or assets of the Company nor the 9 consolidation or merger of the Company with or into one or more Persons shall be deemed to be a liquidation, dissolution or winding-up of the Company 5. Redemption by the Company. (a) On the Mandatory Redemption Date, the Company shall be required to redeem all of the outstanding shares of Class T Preferred Stock at a price in cash equal to 100% of the aggregate Liquidation Preference thereof, plus, without duplication, all accumulated and unpaid dividends, if any, to but excluding the Mandatory Redemption Date. Except as contemplated by Section 5(c) below, the Company shall not be required to pay into or set apart or make available for a sinking or other like fund any money for the redemption of the Class T Preferred Stock. (b) Notice of any such redemption shall be sent by or on behalf of the Company not less than thirty (30) nor more than sixty (60) days prior to the Mandatory Redemption Date, by first class mail, postage prepaid, to all Holders of the Class T Preferred Stock at their registered address. In addition to any information required by law, such notice shall state (i) the Mandatory Redemption Date, (ii) the Liquidation Preference of, and the accrued and unpaid dividends on, the shares of Class T Preferred Stock to be redeemed; (iii) that on the Mandatory Redemption Date the redemption price shall become due and payable upon each share of Class T Preferred Stock to be redeemed; and (iv) the place or places where shares are to be surrendered for payment of the redemption price. (c) If a notice of redemption has been mailed in accordance with Section 5(b) above and, provided that on or before the Mandatory Redemption Date all funds necessary for such redemption shall have been irrevocably set aside by the Company, separate and apart from its other funds, in trust for the pro rata benefit of the Holders of 10 the shares so called for redemption, so as to be, and to continue to be available therefor, then, on and after the Mandatory Redemption Date, unless the Company defaults in the payment of the applicable redemption price, dividends on the shares of the Class T Preferred Stock so called for redemption shall cease to accumulate and all rights of the Holders of such shares shall terminate except for the right to receive from the Company the redemption price, without interest. Upon surrender, in accordance with said notice, of the certificates for any shares so redeemed (properly endorsed or assigned for transfer, if the Company shall so require and the notice shall so state), such shares shall be redeemed by the Company at the applicable redemption price. Shares of Class T Preferred Stock issued and reacquired by the Company shall, upon compliance with the applicable requirements of MBCA, have the status of authorized but unissued Undesignated Shares of the Company and may, with any and all other authorized but unissued Undesignated Shares of the Company, be designated or redesignated, and issued or reissued, as the case may be, as part of any class or series of Capital Stock of the Company. (d) Any deposit of funds with a bank or trust company for the purpose of redeeming Class T Preferred Stock shall be irrevocable except that: (i) The Company shall be entitled to receive from such bank or trust company the interest or other earnings, if any, earned on any money deposited in trust, and the Holders of any shares redeemed shall have no claim to such interest or other earnings; and (ii) any balance of monies so deposited by the Company and unclaimed by the Holders of the Class T Preferred Stock entitled thereto at the expiration of two years from the Mandatory Redemption Date shall be repaid, together with any interest or other earnings earned thereon, to the Company, and 11 after any such repayment, the Holders of the shares entitled to the funds so repaid to the Company shall look only to the Company for payment without interest or other earnings. (e) Notwithstanding any provision of this Certificate of Designation to the contrary, the Company shall not be required to redeem any Class T Preferred Stock if such redemption would cause the Company to violate the MBCA, the terms and conditions applicable to any Senior Stock or Parity Stock or the terms and conditions of any debt of the Company to which the Class T Preferred Stock is subordinate. 6. Conversion. (a) At the option of each Holder, each share of Class T Preferred Stock shall be converted, at any time after the Issue Date and before the close of business two (2) days prior to the Mandatory Redemption Date, at the office of the Company (or at such other office or offices, if any, as the Company may designate), into fully paid and nonassessable shares of Common Stock of the Company; provided, however, that no such Holder may convert any shares of Class T Preferred Stock into Common Stock if such conversion would directly or indirectly result in a violation of the Cross-Ownership Rules. In order to voluntarily convert shares of Class T Preferred Stock into shares of Common Stock, the Holder thereof shall (i) surrender at any office hereinabove mentioned the certificate or certificates evidencing such shares, duly endorsed to the Company or in blank, (ii) give written notice to the Company at such office that such Holder elects to convert such number of shares of Class T Preferred Stock specified in the notice, and (iii) deliver to the Company at such office a certificate of such Holder (which certificate shall be in a form reasonably acceptable to the Company) to the effect that the conversion of such shares into Common Stock shall not directly or indirectly 12 result in a violation of the Cross-Ownership Rules. The shares of Class T Preferred Stock voluntarily tendered by the Holder for conversion shall be deemed to have been converted into Common Stock as provided for herein at the close of business on the date which is three (3) Business Days after the date the Company receives the Holder's notice of conversion together with the duly endorsed certificates and the certificate of the Holder, and the Person entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the record holder of such shares of Common Stock at such time. As soon as reasonably practicable after the date the conversion is deemed to occur, the Company shall provide the Holder of the Class T Preferred Stock tendered for conversion with a newly issued certificate evidencing such Holder's ownership of Common Stock issued upon conversion of the Class T Preferred Stock as provided for herein, together with a certificate representing any shares of Class T Preferred Stock which were represented by the certificate or certificates delivered to the Company in connection with such conversion but which were not converted. (b) At the option of the Company, all or any part of the issued and outstanding shares of Class T Preferred Stock held by any Holder shall be converted, at any time after the Issue Date and prior to the close of business two (2) days prior to the Mandatory Redemption Date, at the office of the Company (or at such other office or offices, if any, as the Company may designate), into fully paid and nonassessable shares of Common Stock of the Company; provided, however, that the Company may not convert any shares of Class T Preferred Stock into Common Stock if such conversion would directly or indirectly result in a violation of the Cross-Ownership Rules. In order to cause the conversion of shares of Class T Preferred Stock into shares of Common Stock, the Company shall (i) send written notice thereof to the Holder of the Class T Preferred Stock being converted specifying the effective date of the conversion, the number of shares being converted, the terms of the conversion and the place or places where certificates evidencing the shares of Class T Preferred Stock being converted are to be surrendered and (ii) deliver to the Holder of the Class T Preferred 13 Stock being converted a certificate of the Company to the effect that the conversion of such shares into Common Stock shall not directly or indirectly result in a violation of the Cross-Ownership Rules. Each Holder so notified shall be required to surrender for conversion the certificate(s) evidencing the shares of Class T Preferred Stock being converted, endorsed to the Company or in blank, within five (5) Business Days of receipt of such notice from the Company. The conversion of the Class T Preferred Stock shall be deemed to occur on the date specified in the Company's notice regardless of whether the Holder of the Class T Preferred Stock shall have then tendered its certificates evidencing such shares duly endorsed, and the Person entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for all purposes as the recordholder of such shares of Common Stock at such time. As soon as reasonably practicable after the date the certificates evidencing the Class T Preferred Stock shall have been tendered to the Company for conversion, the Company shall provide the Holders of the Class T Preferred Stock so tendered with newly issued certificates evidencing such Holder's ownership of Common Stock issued upon conversion of the Class T Preferred Stock as provided herein, together with a certificate representing any shares of Class T Preferred Stock which were represented by the certificate or certificates delivered to the Company in connection with such conversion but which were not converted. (c) In connection with the conversion of Class T Preferred Stock into Common Stock, whether initiated by the Holder thereof or the Company, no dividends 14 then accrued or cumulated on the Class T Preferred Stock pursuant to section 3 (a) hereof shall be paid or payable by the Company in cash, shares of Common Stock or otherwise. (d) Except as hereinafter provided in this Section 6(d), each share of Class T Preferred Stock - Series A shall be converted into the number of shares of Class A Common Stock calculated by dividing the Liquidation Preference by 50.625 and each share of Class T Preferred Stock - Series B shall be converted into the number of shares of Class B Common Stock calculated by dividing the Liquidation Preference by 50.625. Notwithstanding the foregoing, if any shares of Class T Preferred Stock - Series B are ever, voluntarily or involuntarily, sold, assigned or otherwise transferred by the original Holder or any subsequent Holder thereof to any Person which is not an affiliate of the original Holder thereof, then such shares of Class T Preferred Stock - Series B shall no longer be convertible into shares of Class B Common Stock as provided herein but each such share of Class T Preferred Stock - Series B shall thereafter be convertible into the number of shares of Class A Common Stock calculated by dividing the Liquidation Preference by 50.625. If requested by the Company at the time of the conversion of the Class T Preferred Stock - Series B, the Holder thereof shall provide the Company with evidence reasonably acceptable to the Company that such Holder is an affiliate of the original Holder of such shares of Class T Preferred Stock - Series B. For purposes of this subsection (d) only, the term "affiliate" shall be defined as set forth in the Articles of Incorporation of the Company. (e) In the event that, prior to the conversion of Class T Preferred Stock into Common Stock pursuant to Section 6(a) or Section 6(b), the Company shall effect: (w) a dividend upon its Common Stock payable in shares of Common Stock or other property other than cash (including common stock, preferred stock or other securities of a 15 subsidiary of the Company); (x) a combination of its Common Stock into a smaller number of shares of such Common Stock, by reclassification or otherwise; (y) a subdivision of its Common Stock into a larger number of shares of such Common Stock, by reclassification or otherwise; or (z) any reorganization or reclassification of its Common Stock, or any liquidation, consolidation or merger with another Person, or the sale of all or substantially all of its assets to another Person, in such a way that the holders of Common Stock shall be entitled to receive (either directly, or upon subsequent liquidation) common stock, preferred stock, securities or other property (including cash) with respect to or in exchange for such shares of Common Stock (any such event set forth in (w) - (z) above referred to as a "Diluting Event"), then, as a condition of such Diluting Event, lawful and adequate provisions shall be made whereby each Holder shall, unless it results in a duplication of the dividends and other distributions provided for in Section 3 and the other provisions of this Certificate of Designation, be entitled to receive, (under the same terms otherwise applicable to such Holder's receipt of Common Stock) upon the conversion of the shares of Class T Preferred Stock held by such Holder in accordance with the provisions of Section 6(a) or 6(b) hereof, (hereinafter such shares are referred to as the "Common Convertible Shares"), the following: (A) if the Diluting Event results in an exchange of Common Stock for common stock, preferred stock, securities or other property, each Holder shall be entitled to receive in lieu of the Common Convertible Shares to which such Holder was entitled immediately prior to the Diluting Event but which such Holder had not yet received, such shares of common stock, preferred stock, securities or other property as may be issued or payable by virtue of the Diluting Event in exchange for that number of Common Convertible Shares to which such Holder was entitled immediately prior to the Diluting Event but which such 16 Holder had not yet received; and/or (B) if the Diluting Event results in an issuance or payment with respect to Common Stock, such Holder shall be entitled to receive, in addition to the Common Convertible Shares to which such Holder was entitled immediately prior to the Diluting Event but which it had not yet received, such shares of common stock, preferred stock, securities or other property as may be issued or payable by virtue of the Diluting Event with respect to that number of Common Convertible Shares to which such Holder was entitled immediately prior to the Diluting Event but which it had not yet received. If any Diluting Event occurs, provision shall be made with respect to each Holder's rights and interests resulting from the application of this Section 6(e) to ensure that this Section 6(e) applies as well to any shares of common stock, preferred stock, securities or other property deliverable to such Holder upon conversion as a result of the occurrence of each such Diluting Event. (f) The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, for the purpose of effecting the conversion of the Class T Preferred Stock, the full number of shares of Common Stock then deliverable upon the conversion of all shares of Class T Preferred Stock then outstanding. (g) The number of shares of Class T Preferred Stock converted at any time and from time to time shall be such number as will result in the exchange therefore of a whole number of shares of Common Stock, unless the Holders and the Company otherwise agree. 7. Voting Rights. The shares of Class T Preferred Stock shall not have any voting rights except in such circumstances as required by the nonwaivable provisions of the MBCA. 17 8. Transfer. No Holder may voluntarily or involuntarily sell, assign or otherwise transfer any shares of Class T Preferred Stock unless such Holder delivers to the Company at least thirty (30) days prior to the effective date of such sale, assignment or other transfer (i) a written notice describing all of the material terms and conditions of the proposed sale, assignment or other transfer, including the name and address of the proposed purchaser, assignee or other transferee, and (ii) an opinion of counsel (which opinion shall be in a form and shall be issued by an attorney reasonably acceptable to the Company) addressed to the Company to the effect that the proposed sale, assignment or other transfer is exempt from the registration requirements of applicable state and federal securities laws and that such sale, assignment or other transfer shall not directly or indirectly cause the Company and/or any of its Affiliates to violate the Cross-Ownership Rules. 9. Restrictions on Issuance. Shares of Class T Preferred Stock shall be a separate class of capital stock and may be issued by the Company only to Telephone and Data Systems, Inc., a Delaware corporation ("TDS") and/or its Affiliates and their respective successors and assigns permitted under Section 8 hereof. 10. Amendment. This Certificate of Designation shall not be amended, either directly or indirectly, or through merger or consolidation with another Person, in any manner that would alter or change the powers, preferences or special rights of the Class T Preferred Stock so as to affect them adversely without the affirmative vote of the Holders of at least a majority of the outstanding Class T Preferred Stock voting separately as a class. 11. Exclusion of Other Rights. Except as may otherwise be required by law, the shares of Class T Preferred Stock shall not have any voting powers, preferences and relative, participating, optional or other special rights, other than those specifically set forth in this Certificate of Designation (as such Certificate of Designation may be amended from time to time 18 in accordance with the terms hereof) and in the Articles of Incorporation. The shares of Class T Preferred Stock shall have no preemptive or subscription rights. 12. Headings of Section. The headings of the various sections and subsections hereof are for convenience of reference only and shall not affect the interpretation of any of the provisions hereof. 13. Severability of Provisions. If any voting power, preference or relative, participating, optional and other special right of the Class T Preferred Stock or qualification, limitation or restriction thereof set forth in this Certificate of Designation (as this Certificate of Designation may be amended from time to time) is invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, all other voting powers, preferences and relative, participating, optional and other special rights of Class T Preferred Stock and qualifications, limitations and restrictions thereof set forth in this Certificate of Designation (as so amended) which can be given effect without the invalid, unlawful or unenforceable voting power, preference and relative, participating, optional or other special right of Class T Preferred Stock or qualification, limitation or restriction thereof, shall, nevertheless, remain in full force and effect, and no voting powers, preferences and relative, participating, optional or other special rights of Class T Preferred Stock and qualifications, limitations and restrictions thereof herein set forth shall be deemed dependent upon any other such voting powers, preferences and relative, participating, optional or other special rights of Class T Preferred Stock and qualifications, limitations and restrictions thereof unless so expressed herein. 19 IN WITNESS WHEREOF, the Company has caused this certificate to be duly executed by Ann K. Newhall, the Secretary of the Company this 31st day of March, 2000. RURAL CELLULAR CORPORATION By /s/ Ann K. Newhall Name Ann K. Newhall Title Secretary 20 EX-4.2(A) 7 EXHIBIT 4.2(A) Exhibit 4.2(a) PREFERRED STOCK PURCHASE AGREEMENT DATED APRIL 3, 2000 AMONG RURAL CELLULAR CORPORATION, MADISON DEARBORN CAPITAL PARTNERS III, L.P., MADISON DEARBORN SPECIAL EQUITY III, L.P., SPECIAL ADVISORS FUND I, LLC, BOSTON VENTURES LIMITED PARTNERSHIP V, AND TORONTO DOMINION INVESTMENTS, INC. TABLE OF CONTENTS PAGE 1. Authorization and Closing..................................................1 1A. Authorization of the Preferred Stock.........................1 1B. Purchase and Sale of the Preferred Stock.....................1 1C. The Closing..................................................1 2. Conditions of Each Purchaser's Obligation at the Closing...................1 2A. Representations and Warranties; Covenants....................2 2B. Certificate of Designation...................................2 2C. Articles of Incorporation....................................2 2D. Company's Bylaws.............................................2 2E. Registration Agreement.......................................2 2F. Acquisition Agreement........................................2 2G. Senior Loan Agreement........................................3 2H. Bridge Financing Agreement...................................3 2I. Class T Preferred Stock Agreement............................3 2J. Sale of Preferred Stock to Each Purchaser....................3 2K. Securities Law Compliance....................................4 2L. Compliance with Applicable Laws..............................4 2M. Opinions of the Company's Counsel............................4 2N. Expenses.....................................................4 2O. Undrawn Commitment Fee.......................................4 2P. Receipt of Necessary Approvals..............................4 2Q. Closing Documents............................................5 2R. Waiver.......................................................6 3. Covenants..................................................................6 3A. Financial Statements and Other Information...................6 3B. Restrictive Covenants........................................6 3C. Designation of Directors.....................................9 3D. Affirmative Covenants.......................................13 3E. Year 2000 (Y2K) Compliance..................................14 3F. Compliance with Agreements..................................15 3G. Regulatory Compliance Cooperation...........................15 3H. Public Disclosures..........................................15 4. Covenants of the Purchasers...............................................15 4A. Confidentiality.............................................15 4B. Purchaser Standstill........................................16 4C. FCC Compliance..............................................18 5. Transfer of Purchaser Securities..........................................18 5A. General Provisions..........................................18 5B. Legend Removal..............................................18 6. Representations and Warranties of the Company.............................18 6A. Organization; Ownership; Power; Qualification...............18 6B. Authorization; Enforceability...............................19 6C. Capital Stock and Related Matters...........................19 6D. Subsidiaries; Authorization; Enforceability.................20 6E. Compliance with Other Documents and Contemplated Transactions..........................................21 6F. Business....................................................21 6G. Licenses, etc...............................................21 6H. Compliance with Law.........................................21 6I. Title to Assets.............................................21 6J. Litigation..................................................22 6K. Taxes.......................................................22 6L. Financial Statements........................................22 6M. No Material Adverse Change..................................22 6N. ERISA.......................................................22 6O. Investment Company Act......................................23 6P. Governmental Regulation.....................................23 6Q. Absence of Default, Etc.....................................23 6R. Accuracy and Completeness of Information....................24 - i - 6S. Agreements with Affiliates..................................24 6T. Payment of Wages............................................24 6U. Indebtedness................................................24 6V. Solvency....................................................24 6W. Year 2000 Compliance........................................25 6X. Reports with the Securities and Exchange Commission.........25 7. Definitions...............................................................25 8. Miscellaneous.............................................................32 8A. Expenses....................................................32 8B. Remedies....................................................32 8C. Purchaser's Investment Representations......................33 8D. Understanding Among the Purchasers..........................35 8E. Treatment of the Preferred Stock............................35 8F. Indemnification.............................................35 8G. Consent to Amendments.......................................35 8H. Survival of Representations and Warranties..................36 8I. Successors and Assigns......................................36 8J. Severability................................................36 8K. Counterparts................................................36 8L. Descriptive Headings; Interpretation........................36 8M. No Strict Construction......................................37 8N. Complete Agreement..........................................37 8O. Schedules...................................................37 8P. Delivery by Facsimile.......................................37 8Q. Governing Law...............................................38 8R. Notices.....................................................38 SCHEDULES AND EXHIBITS Schedule of Purchasers List of Exhibits List of Disclosure Schedules - ii - RURAL CELLULAR CORPORATION PREFERRED STOCK PURCHASE AGREEMENT THIS AGREEMENT is made as of April 3, 2000, by and among Rural Cellular Corporation, a Minnesota corporation (the "COMPANY"), and the Persons listed on the SCHEDULE OF PURCHASERS attached hereto (collectively referred to herein as the "PURCHASERS" and individually as a "PURCHASER"). Except as otherwise indicated herein, capitalized terms used herein are defined in Section 7 hereof. The parties hereto agree as follows: Section 1. AUTHORIZATION AND CLOSING. 1A. AUTHORIZATION OF THE PREFERRED STOCK. The Company shall authorize the issuance and sale to the Purchasers of 110,000 shares of its Class M Redeemable Voting Convertible Preferred Stock, par value $0.01 per share (the "PREFERRED STOCK"), having the rights and preferences set forth with respect thereto in the Certificate of Designation attached hereto as EXHIBIT A. The Preferred Stock is convertible into shares of the Company's Class A Common Stock, par value $0.01 per share (the "CLASS A COMMON STOCK"), in the manner and upon the terms and conditions set forth in the Certificate of Designation (as defined in Section 2B below). 1B. PURCHASE AND SALE OF THE PREFERRED STOCK. At the Closing, the Company shall sell to each Purchaser and, subject to the terms and conditions set forth herein, each Purchaser shall purchase from the Company the number of shares of Preferred Stock set forth opposite such Purchaser's name on the SCHEDULE OF PURCHASERS attached hereto at a price of $1,000 per share of Preferred Stock. The sale of the Preferred Stock to each Purchaser shall constitute a separate sale hereunder. 1C. THE CLOSING. The closing of the separate purchases and sales of the Preferred Stock (the "CLOSING") shall take place at the offices of Moss & Barnett, 4800 Norwest Center, 90 South 7th Street, Minneapolis, Minnesota, at 10:00 a.m. local time on the date hereof, or at such other place or on such other date as may be mutually agreeable to the Company and each Purchaser (the date of the Closing, the "CLOSING DATE"). At the Closing, the Company shall deliver to each Purchaser a stock certificate evidencing the Preferred Stock to be purchased by such Purchaser, registered in such Purchaser's or its nominee's name, upon payment of the purchase price thereof by delivery to the Company by wire transfer of immediately available funds to an account designated by the Company prior to the Closing, in the aggregate amount set forth opposite such Purchaser's name on the SCHEDULE OF PURCHASERS. Unless otherwise waived by the Company in its sole discretion, the Company's obligations under this Agreement, including the issuance and sale of the Preferred Stock, are contingent upon the receipt by the Company of the entire purchase price for the Preferred Stock from each Purchaser, as set forth on the SCHEDULE OF PURCHASERS. Section 2. CONDITIONS OF EACH PURCHASER'S OBLIGATION AT THE CLOSING. The obligation of each Purchaser to purchase and pay for the Preferred Stock at the Closing is subject to the satisfac tion as of the Closing of the following conditions: 2A. REPRESENTATIONS AND WARRANTIES; COVENANTS. The representations and warranties contained in Section 6 hereof shall be true and correct in all material respects at and as of the Closing as though then made, except to the extent of changes caused by the transactions expressly contemplated herein, and the Company shall have performed in all material respects all of the covenants required to be performed by it hereunder prior to the Closing. 2B. CERTIFICATE OF DESIGNATION. The Company shall have duly adopted, executed and filed with the Secretary of State of Minnesota a Certificate of Designation of Voting Power, Preferences and Relative, Participating, Optional and Other Special Rights and Qualifications, Limitations and Restrictions establishing the terms and the relative rights and preferences of the Preferred Stock in the form set forth in EXHIBIT A hereto (the "CERTIFICATE OF DESIGNATION"), and the Company shall not have adopted or filed any other document designating terms, relative rights or preferences of its preferred stock, other than the Other Preferred Stock Agreements. The Certificate of Designation shall be in full force and effect as of the Closing under the laws of the State of Minnesota and shall not have been amended or modified. 2C. ARTICLES OF INCORPORATION. The Company's Articles of Incorporation shall be in form and substance as previously delivered to the Purchasers, a copy of which is attached hereto as EXHIBIT B (the "ARTICLES OF INCORPORATION"), shall be in full force and effect under the laws of the State of Minnesota as of the Closing and shall not have been amended or modified. - 1 - 2D. COMPANY'S BYLAWS. The Company's bylaws shall be in form and substance as previously delivered to the Purchasers, a copy of which is attached hereto as EXHIBIT C (the "BYLAWS"), shall be in full force and effect as of the Closing and shall not have been amended or modified. 2E. REGISTRATION AGREEMENT. The Company and the Purchasers shall have entered into a registration agreement in form and substance as set forth in EXHIBIT D attached hereto (the "REGISTRATION AGREEMENT"), and the Registration Agreement shall be in full force and effect as of the Closing and shall not have been amended or modified. 2F. ACQUISITION AGREEMENT. The Asset Purchase Agreement, dated as of November 6, 1999, among the Company, Triton Cellular Partners, L.P., Triton Communications, L.L.C., Triton Cellular Alabama License Company, L.L.C. and certain of their affiliates (the "ACQUISITION AGREEMENT"), providing for the purchase of substantially all of the cellular telephone operations of various subsidiaries of Triton Cellular Partners, L.P. in the states of Alabama, Kansas, Mississippi, Oregon and Washington (the "ACQUISITION"), shall be in form and substance substantially as attached hereto as EXHIBIT E, shall be in full force and effect as of the Closing and shall not have been amended or modified in any material respect. All conditions to the obligations of the seller thereunder to sell the assets subject to the Acquisition shall have been satisfied in full (or duly waived without the payment of additional consideration in excess of $5,000,000 in the aggregate, together with all other payments of additional consideration for waivers to agreements in paragraphs 2F to 2I, inclusive, for such waiver), and the Acquisition contemplated by the Acquisition Agreement shall have been consummated prior to or simultaneously with the Closing hereunder in accordance with the terms of the Acquisition Agreement. 2G. SENIOR LOAN AGREEMENT. The Senior Loan Agreement shall be in form and substance substantially as attached hereto as EXHIBIT F, shall have been duly authorized, executed and delivered by the Company and/or its Subsidiaries, shall be in full force and effect as of the Closing and shall not have been amended or modified in any material respect. All conditions to the obligations of the Senior Lenders to make loans under the Senior Loan Agreement shall have been satisfied in full (or duly waived without the payment of additional consideration in excess of $5,000,000 in the aggregate, together with all other payments of additional consideration for waivers to agreements in paragraphs 2F to 2I, inclusive, for such waiver), and the loans to be made thereunder by the Senior Lenders at the Closing shall have been advanced to the Company prior to or simultaneously with the Closing hereunder in accordance with the terms of the Senior Loan Agreement. 2H. BRIDGE FINANCING AGREEMENT. The Bridge Financing Agreement shall be in form and substance substantially as attached hereto as EXHIBIT G, shall have been duly authorized, executed and delivered by the Company, shall be in full force and effect as of the Closing and shall not have been amended or modified in any material respect. All conditions to the obligations of the Bridge Financing Investors to purchase Company securities under the Bridge Financing Agreement shall have been satisfied in full (or duly waived without the payment of additional consideration in excess of $5,000,000 in the aggregate, together with all other payments of additional consideration for waivers to agreements in paragraphs 2F to 2I, inclusive, for such waiver), all conditions to the release of funds held in escrow under the Escrow Agreement entered into pursuant to the Junior Exchangeable Preferred Stock Agreement shall have been satisfied in full (or duly waived without the payment of additional consideration in excess of $5,000,000 in the aggregate, together with all other payments of additional consideration for waivers to agreements in paragraphs 2F to 2I, inclusive, for such waiver), and the purchase transactions contemplated by the Bridge Financing Agreement shall have been consummated prior to or simultaneously with the Closing hereunder in accordance with the terms of the Bridge Financing Agreement. 2I. CLASS T PREFERRED STOCK AGREEMENT. The Class T Preferred Stock Agreement shall be in form and substance substantially as attached hereto as EXHIBIT H, shall have been duly authorized, executed and delivered by the Company, shall be in full force and effect as of the Closing and shall not have been amended or modified in any material respect. All conditions to the obligations of the Class T Preferred Investors to purchase Company securities under the Class T Preferred Stock Agreement shall have been satisfied in full (or duly waived without the payment of additional consideration in excess of $5,000,000 in the aggregate, together with all other payments of additional consideration for waivers to agreements in paragraphs 2F to 2I, inclusive, for such waiver), and the purchase transactions contemplated by the Class T Preferred Stock Agreement shall have been consummated prior to or simultaneously with the Closing hereunder in accordance with the terms of the Class T Preferred Stock Agreement. 2J. SALE OF PREFERRED STOCK TO EACH PURCHASER. The Company shall have simultaneously sold to each Purchaser the Preferred Stock to be purchased by such Purchaser - 2 - hereunder at the Closing and shall have received payment therefor in full in immediately available funds as provided in paragraph 1C above; PROVIDED THAT, in the event that any Purchaser fails to deliver its purchase price for its Preferred Stock as provided herein, at the sole option of the Company, the Company may terminate this Agreement as to such defaulting Purchaser and accept the payment and delivery of each other Purchaser hereunder, and this Agreement shall remain in full force and effect as to the Company and such non-defaulting Purchasers. 2K. SECURITIES LAW COMPLIANCE. The Company shall have made all necessary filings, if any required, under all applicable federal and state securities laws in connection with the issuance of the Preferred Stock pursuant to this Agreement. 2L. COMPLIANCE WITH APPLICABLE LAWS. (i) The issuance and sale of the Preferred Stock to the Purchasers pursuant to the terms hereof shall not violate, in any material respect, any order, writ, judgment, injunction, decree, statute, law, rule or regulation applicable to or bearing upon the Company of any jurisdiction, court, tribunal or other governmental entity or authority having jurisdiction over the Company or its assets. (ii) The purchase of Preferred Stock by each Purchaser hereunder shall not be prohibited by any applicable law or governmental rule or regulation and shall not subject such Purchaser to any penalty, liability or, in such Purchaser's sole judgment, other onerous condition under or pursuant to any applicable law or governmental rule or regulation, and the purchase of the Preferred Stock by each Purchaser hereunder shall be permitted by laws, rules and regulations of the jurisdictions and governmental authorities and agencies to which such Purchaser is subject. 2M. OPINIONS OF THE COMPANY'S COUNSEL. Each Purchaser shall have received from Moss & Barnett, counsel for the Company, an opinion with respect to the matters set forth in EXHIBIT I attached hereto, from Mayer, Brown & Platt, special New York counsel to the Company, an opinion with respect to the matters set forth in EXHIBIT J attached hereto, and from Lukas, Nace, Gutierrez & Sachs, special communications counsel to the Company, an opinion with respect to the matters set forth in EXHIBIT K attached hereto, each of which shall be addressed to each Purchaser, dated the date of the Closing and in form and substance reasonably satisfactory to each Purchaser and its special counsel. 2N. EXPENSES. At the Closing, the Company shall have paid or reimbursed the Purchasers for all fees and expenses required to be paid pursuant to paragraph 8A hereof. 2O. UNDRAWN COMMITMENT FEE. At the Closing, the Company shall have paid the Purchasers a fee of $1,800,000, which fee, the Purchasers hereby consent and agree, will be allocated among the Purchasers PRO RATA according to the number of shares of Preferred Stock purchased by each such Purchaser at the Closing hereunder. 2P. RECEIPT OF NECESSARY APPROVALS. The Company shall have obtained all governmental, regulatory, third party and other consents, approvals, and filings, if any, required in connection with the consummation of the transactions contemplated under this Agreement (including, without limitation, all blue sky law filings and waivers of all preemptive rights and rights of first refusal with respect to the Company's equity securities), the Acquisition Agreement and the other agreements described herein and therein. 2Q. CLOSING DOCUMENTS. The Company shall have delivered to each Purchaser all of the following documents: (i) an Officer's Certificate, dated the date of the Closing, stating that the conditions specified in Section 1, paragraphs 2A through 2L(i), inclusive, and paragraph 2P have been fully satisfied; (ii) certified copies of the resolutions duly adopted by the Board authorizing (A) the execution, delivery and performance of this Agreement, the Registration Agreement, the Senior Loan Agreement, the Bridge Financing Agreement, the Class T Preferred Stock Agreement, the Acquisition Agreement and each of the other agreements contemplated hereby and thereby, (B) the filing of the Certificate of Designation referred to in paragraph 2B, (C) the appointment to the Board of the directors designated pursuant to paragraph 3C hereof, (D) the issuance and sale of the Preferred Stock to the Purchasers at the Closing, (E) the reservation for issuance upon conversion of the Preferred Stock of an - 3 - aggregate of 2,075,472 shares of Class A Common Stock and (F) the consummation of all other transactions contemplated by this Agreement; (iii) an Officer's Certificate, dated the date of the Closing, certifying that the Company's stockholders have approved (A) the issuance and sale of the Preferred Stock, (B) an amendment to the Articles of Incorporation of the Company increasing the number of authorized shares of capital stock to 300,000,000 shares, consisting of 200,000,000 shares of Class A Common Stock, 10,000,000 shares of Class B Common Stock, and 90,000,000 undesignated shares and (C) the adoption of an amendment to the Bylaws of the Company increasing the size of the Board to eleven members; (iv) certified copies of the Articles of Incorporation, the Certificate of Designation and the Company's Bylaws, each as in effect at the Closing; (v) duly completed and executed copies of the Acquisition Agreement, the Registration Agreement, the Senior Loan Agreement, the Bridge Financing Agreement and the Class T Preferred Stock Agreement, each as in effect at the Closing; (vi) good standing certificates for the jurisdiction of incorporation of the Company and each of its Subsidiaries and for each jurisdiction in which the Company or any of its Subsidiaries is qualified to do business; and (vii) such other documents relating to the transactions contemplated by this Agreement as any Purchaser or its special counsel may reasonably request. 2R. WAIVER. Any condition specified in this Section 2 may be waived if consented to by each Purchaser; PROVIDED THAT no such waiver shall be effective against any Purchaser unless it is set forth in a writing executed by such Purchaser. Section 3. COVENANTS. 3A. FINANCIAL STATEMENTS AND OTHER INFORMATION. The Company shall deliver to each holder of at least 25% of the outstanding Purchaser Securities (and to Toronto Dominion Investments, Inc. so long as it and its Affiliates hold at least 80% of the Purchaser Securities originally issued to Toronto Dominion Investments, Inc. at the Closing hereunder) (each, a "QUALIFIED HOLDER"): (i) as soon as practicable but in any event within 30 days after the end of each monthly accounting period in each fiscal year, all of the financial information which is provided to the Board with respect to such monthly accounting period; (ii) within ten days after transmission thereof, copies of all financial statements, proxy statements, reports and any other general written communications which the Company sends to its stockholders and copies of all registration statements and all regular, special or periodic reports which it files, or (to its knowledge) any of its officers or directors file with respect to the Company, with the Securities and Exchange Commission (or any governmental authority that may by the successor therefor) or with any securities exchange on which any of its securities are then listed, and copies of all press releases and other statements made available generally by the Company to the public concerning material developments in the Company's and its Subsidiaries' businesses; and (iii) with reasonable promptness, such other information and financial data concerning the Company and its Subsidiaries as any Qualified Holder may reasonably request. All financial statements included in the information to be provided pursuant to paragraphs (i) and (ii) shall fairly report the financial condition and results of operations of the Company and its Subsidiaries as of the dates and for the periods stated therein, and shall be prepared in accordance with GAAP, consistently applied, subject in the case of unaudited financial statements to changes resulting from normal year-end adjustments for recurring accruals. For purposes of this Agreement, all holdings of Purchaser Securities by Persons who are Affiliates of each other shall be aggregated for purposes of meeting any threshold tests under this Agreement. 3B. RESTRICTIVE COVENANTS. So long as any Preferred Stock remains outstanding, the Company shall not, without the prior written consent of the holders of a majority of the Preferred Stock then outstanding: - 4 - (i) directly or indirectly declare or pay, or permit any Subsidiary to declare or pay, any dividends or make any distributions upon any of its capital stock or other equity securities, except for (A) dividends payable on the Other Preferred Stock pursuant to the terms of the Other Preferred Stock Agreements as in effect on the date hereof, (B) dividends payable on the Preferred Stock pursuant to the term of the Articles of Incorporation (and the Certificate of Designation filed thereunder with respect to the Preferred Stock), (C) dividends payable in shares of Junior Securities issued upon the outstanding shares of Junior Securities, (D) so long as no Event of Noncompliance then exists or would be caused thereby, dividends payable on the Common Stock out of (1) cumulative earnings available to Common Stock or (2) net proceeds to the Company from the issuance of Junior Securities subsequent to the date of this Agreement and (E) dividends payable by any Subsidiary (1) to the Company or to any of its Wholly Owned Subsidiaries or (2) if such dividends are made on a PRO RATA basis with respect to all of such Subsidiary's capital stock or equity interests; (ii) directly or indirectly redeem, purchase or otherwise acquire, or permit any Subsidiary to redeem, purchase or otherwise acquire, any of the Company's or any Subsidiary's capital stock or other equity securities (including, without limitation, warrants, options and other rights to acquire such capital stock or other equity securities) or directly or indirectly redeem, purchase or make any payments with respect to any stock appreciation rights, phantom stock plans or similar rights or plans, except for (A) redemptions of the Other Preferred Stock pursuant to the terms of the Other Preferred Stock Agreements as in effect on the date hereof, (B) redemptions of the Preferred Stock pursuant to the terms of the Articles of Incorporation (and the Certificate of Designation filed thereunder with respect to the Preferred Stock), (C) so long as no Event of Noncompliance then exists or would be caused thereby, redemptions or repurchases of Common Stock (or payments with respect to any stock appreciation rights, phantom stock plans or similar rights or plans) (1) with the net proceeds to the Company from the issuance of Junior Securities subsequent to the date of this Agreement or (2) from employees of the Company and its Subsidiaries pursuant to equity subscription agreements, stock option agreements, stock appreciation rights, phantom stock plans or similar rights or plans in effect on the date hereof and which have been disclosed to the Purchasers on the Schedules hereto and (D) redemptions or repurchases of the capital stock or other equity securities of a Subsidiary (1) that are held by the Company or any of its Wholly Owned Subsidiaries or (2) by such Subsidiary if such redemptions or repurchases are made on a PRO RATA basis with respect to all of such Subsidiary's capital stock or other equity interests; (iii) except as expressly contemplated by this Agreement, amend, supplement, modify, terminate, waive or permit to be amended, supplemented, modified, terminated or waived any of the provisions of the Articles of Incorporation (including the Certificate of Designation or any other certificate of designation setting forth the terms of any class or series of preferred stock), the Company's Bylaws, the Other Preferred Stock Agreements, or any other agreement entered into with respect to the capital stock or equity securities of the Company or file any resolution of the Board with the Minnesota Secretary of State, in each case in any manner which would reasonably be expected to be adverse to the holders of Preferred Stock; (iv) except for (A) issuances of the Preferred Stock at the Closing as contemplated under this Agreement, (B) issuances of Other Preferred Stock as payment-in- kind dividends on the Other Preferred Stock pursuant to the terms of the Other Preferred Stock Agreements as in effect on the date hereof and (C) issuances of Other Preferred Stock at the Closing as contemplated by the Bridge Financing Agreement, authorize, issue or enter into any agreement providing for the issuance (contingent or otherwise) of (or take any action that would amend the terms of or reclassify any existing securities so as to constitute) (a) any notes or debt securities containing equity features (including, without limitation, any notes or debt securities convertible into or exchangeable for capital stock or other equity securities, issued in connection with the issuance of capital stock or other equity securities or containing profit participation features) or (b) any capital stock or other equity securities (or any securities convertible into or exchangeable for any capital stock or other equity securities) which are senior to or on a parity with the Preferred Stock with respect to the payment of dividends, redemptions or distributions upon liquidation or otherwise; (v) effect any liquidation, dissolutions or winding up of the Company (whether voluntary or involuntary) (a "LIQUIDATION EVENT"), unless in connection with such Liquidation Event each holder of the Preferred Stock receives with respect to its Preferred Stock an amount not less than the full liquidation value of such Preferred Stock (together with all accrued but unpaid dividends thereon) as set forth in the Certificate of Designation, - 5 - or effect any reorganization of the Company into a partnership, limited liability company or other non-corporate entity which is treated as a partnership for federal income tax purposes; (vi) engage, or permit any Subsidiary to engage, directly or indirectly, in any business activities other than such business activities which are substantially of the type (or incidental to) the business being conducted by the Company and its Subsidiaries as of the date of the Closing; (vii) enter into, cause, permit or otherwise suffer to exist or permit any Subsidiary to enter into, cause, permit or otherwise suffer to exist any agreement, transaction, commitment or arrangement with any of its or any Subsidiary's officers, directors, senior executives, principal stockholders (other than the Company or another Subsidiary) or Affiliates, or with any such individual's spouse, sibling, lineal ancestor or descendant, or spouse's sibling or lineal ancestor or descendant, or with any entity in which any of the foregoing owns a beneficial interest, unless such arrangement is otherwise not expressly prohibited under this Agreement, is in the ordinary course of the Company's or such Subsidiary's business and is on fair and reasonable terms that are not less favorable to the Company or such Subsidiary than those that would be obtainable at the time in an arm's length transaction with a Person not described above; PROVIDED THAT the following shall in any event be permitted: (A) dividends, redemptions, stock purchases and other distributions otherwise permitted under this Agreement, (B) the payment of reasonable fees to directors of the Company or any Subsidiary who are not employees of the Company or any of its Subsidiaries, (C) so long as no Event of Noncompliance would arise therefrom, any transaction with an officer or member of the Board or any Sub Board in the ordinary course of business involving indemnity or expense reimbursement, (D) loans or advances to officers, directors or employees in the ordinary court of business, (E) customary employment arrangements and benefit programs on reasonable terms as approved by the Board or a committee thereof and (F) transactions and agreements in existence on the date hereof and described with particularity in the AFFILIATED TRANSACTIONS SCHEDULE attached hereto; (viii) make or permit, or permit any Subsidiary to make or permit, any change in its respective fiscal year or in any of its other accounting principles and practices; (ix) use the proceeds from the sale of the Preferred Stock other than to pay a portion of the purchase price for the Acquisition and to pay related costs, fees and expenses; or (x) agree or commit to any of the foregoing. 3C. DESIGNATION OF DIRECTORS. Subject to the limitations set forth in this paragraph 3C, MDP and Boston Ventures each shall have the right to designate one representative for election to the Board (individually a "BOARD REPRESENTATIVE" and collectively the "BOARD REPRESENTATIVES"). The terms and conditions governing the election, term of office, filling of vacancies and other features of such directorships shall be as follows: (i) INTERIM APPOINTMENT OF DIRECTORS. Pursuant to written direction delivered by MDP and Boston Ventures to the Company, MDP and Boston Ventures have each nominated one Board Representative to be elected to the Board. At a meeting of the Board held on March 23, 2000, in fulfillment of the Company's obligation set forth in clause (C) of paragraph 2Q(ii), the Board, acting in accordance with authority provided pursuant to Sections 3.02(a) and 3.02(b) of the Bylaws, approved resolutions which: (a) increased the size of the Board from eight members to ten members through the addition of two additional seats for Class III directors; and (b) filled the vacancies created by such increase in the size of the Board with the Board Representatives nominated by MDP and Boston Ventures. The appointment of the Board Representatives as Class III directors is effective as of the day following the Closing Date and is contingent upon the consummation of the transactions contemplated by this Agreement. Each Board Representative appointed pursuant to this paragraph 3C(i) shall continue to hold office until the first regular meeting of the shareholders of the Company following the Closing (at which time the term shall expire automatically), subject, however, to prior death, resignation, retirement, disqualification or termination of term of office as provided in this paragraph 3C. (ii) CONTINUING DESIGNATION OF BOARD REPRESENTATIVES. Commencing with the first regular meeting of shareholders of the Company following the Closing, the term of the Board Representatives appointed to the Board as provided for in paragraph 3C(i) shall expire and, thereafter, the Board Representatives designated by MDP and Boston Ventures - 6 - shall be elected in accordance with the following provisions of paragraph 3C(ii)(A) or (B), as applicable: (A) Subject to the provisions of paragraph 3C(iii), so long as any Preferred Stock remains issued and outstanding, the Board Representative(s) designated by MDP and/or Boston Ventures shall be elected to the Board by the affirmative vote of the holders of all of the issued and outstanding shares of Preferred Stock, voting separately as a class, at a regular or special meeting of the shareholders of the Company. The Board Representative(s) elected by the holders of Preferred Stock shall not be divided into classes and shall be in addition to the maximum number of directors who may be elected by the holders of the Company's Common Stock. Subject to the provisions of paragraph 3C(iii), all holders of Preferred Stock shall vote their shares of Preferred Stock in such a manner to effect the election of the Board Representative(s) designated by MDP and/or Boston Ventures pursuant to this paragraph. A Board Representative elected pursuant to this paragraph 3C(ii)(A) shall hold office until his successor is duly qualified and elected, subject to prior death, resignation, retirement, disqualification, there being no Preferred Stock remaining issued and outstanding (at which time the term shall expire automatically) or termination of term of office pursuant to the provisions of paragraph 3C(iii) or paragraph 3C(iv). (B) Commencing at such time as no shares of Preferred Stock remain issued and outstanding, the term of the Board Representatives designated by MDP and Boston Ventures as provided for in paragraph 3C(ii)(A) will expire automatically, and thereafter the Company shall, subject to the provisions of paragraph 3C(iii), nominate the Board Representative(s) designated by MDP and/or Boston Ventures for election to the Board by the holders of Common Stock and solicit proxies from the Company's shareholders in favor of the election of such Board Representative(s) provided written notice is delivered to the Secretary of the Company in the manner provided in the Bylaws for the nomination of directors, generally. Subject to the provisions of paragraph 3C(iii), the Company shall use commercially reasonable efforts to cause such Board Representative(s) to be elected to the Board (including voting all unrestricted proxies in favor of the election of such board Representative(s)) and shall not take any action which would diminish the prospects of such Board Representative(s) being elected to the Board. Board Representatives elected as directors pursuant to this paragraph 3C(ii)(B) shall be divided into classes and shall be included in the maximum number of directors who may be elected by the holders of the Company's Common Stock in accordance with the provisions of Section 3.02(a) and (b) of the Bylaws. (iii) TERMINATION OF BOARD REPRESENTATIVE DESIGNATION RIGHTS. The right of MDP to designate a Board Representative pursuant to this paragraph 3C shall terminate at such time as MDP ceases to hold Purchaser Securities equal to at least 50% of the amount of Purchaser Securities initially issued to MDP on closing. The right of Boston Ventures to designate a Board Representative pursuant to this paragraph 3C shall terminate at such time as Boston Ventures ceases to hold at least 50% of the amount of Purchaser Securities initially issued to MDP on Closing. If the rights of MDP and/or Boston Ventures, as the case may be, to designate a Board Representative cease under either of the two immediately preceding sentences, then (1) the Board may terminate the term of the Board Representative of the Person as to which such rights have ceased (MDP or Boston Ventures, as the case may be) by the affirmative vote of the Board (in which vote the Board Representative whose term of office the Board seeks to terminate shall not participate) if such director was designated pursuant to paragraph 3C(ii)(A) or (2) the Company may use commercially reasonable efforts to effect the removal of such director if such director was designated pursuant to paragraph 3C(ii)(B). The loss of a Board Representative by MDP or Boston Ventures shall not, in and of itself, cause the loss of the other Person's Board Representative designation rights. (iv) QUALIFICATIONS; DISQUALIFICATION; RESIGNATION; TERMINATION OF TERM; REMOVAL; AND VACANCIES. (A) QUALIFICATIONS; DISQUALIFICATION. Any candidate designated by MDP or Boston Ventures as a Board Representative may not be, in the Company's sole but reasonable judgment, a representative of a competitor of the Company. The Board may, at any time, terminate the term of office of any Board Representative designated pursuant to paragraph 3C(ii)(A) who, in the Company's sole but reasonable judgment, becomes a representative of a competitor of the Company after the date of such Board Representative's election, upon the affirmative vote of a - 7 - majority of the Board determined without regard to the vote of the Board Representative or Representatives who are deemed to be disqualified from serving based on the criteria hereinabove described. The Company may, at any time, use commercially reasonable efforts to effect the removal of any Board Representative who, in the Company's sole but reasonable judgment, becomes a representative of a competitor of the Company after the date of such Board Representative's election. (B) RESIGNATION. An elected Board Representative may resign from the Board at any time by giving written notice to the Company at its principal executive office. The resignation is effective without acceptance when the notice is given to the Company, unless a later effective time is specified in the notice. (C) TERMINATION OF TERM OF OFFICE. So long as any Preferred Stock remains outstanding, the term of office of any Board Representative designated pursuant to paragraph 3C(ii)(A) may be terminated only in the following circumstances (and may not otherwise be removed): (1) so long as MDP or Boston Ventures retain the right to designate a Board Representative pursuant to paragraph 3C(ii)(A), by the Person (MDP or Boston Ventures, as the case may be) which designated such Board Representative to the Board; (2) by the Board in accordance with the provisions of paragraph 3C(iii); or (3) by the Board in accordance with the provisions of paragraph 3C(iv)(A). (D) REMOVAL. So long as MDP or Boston Ventures retains the right to designate a director pursuant to paragraph 3C(ii)(B), the Company shall use commercially reasonable efforts to remove any such director in the following circumstances (and only in such circumstances): (1) if so directed by the Person (MDP or Boston Ventures, as the case may be) who designated such director; (2) in accordance with the provisions of paragraph 3C(iii); and (3) at the Company's option, in accordance with the provisions of paragraph 3C(iv)(A). (E) VACANCIES. In the event of a vacancy on the Board resulting from the death, disqualification, resignation, retirement or termination of term of office of the Board Representative designated by MDP or Boston Ventures, (1) if such Person (MDP or Boston Ventures, as the case may be) retains the right to designate a director pursuant to paragraph 3C(ii)(A), then the resulting vacancy shall be filled by a representative designated by MDP or Boston Ventures, as the case may be, as provided hereunder, or (2) if such Person (MDP or Boston Ventures, as the case may be) retains the right to designate a director pursuant to paragraph 3C(ii)(B), then the Company shall use commercially reasonable efforts to fill such vacancy with a representative designated by MDP or Boston Ventures, as the case may be, as provided hereunder, in either case to serve until the next annual or special meeting of the shareholders (and at such meeting, such representative, or another representative designated by such Person (MDP or Boston Ventures, as the case may be), will be elected to the Board in the manner described in paragraph 3C(ii)). If MDP or Boston Ventures, as the case may be, fails or declines to fill the vacancy, then the directorship shall remain open until such time as MDP or Boston Ventures, as the case may be, elects to fill it with a representative designated hereunder. During any such period that MDP or Boston Ventures, as the case may be, is entitled to, but has failed or declined to, designate a Board Representative, such Person (MDP or Boston Ventures, as the may be) shall have the right to designate one representative to attend all Board meetings as a non-voting observer. The observer shall be entitled to notice of all Board meetings in the manner that notice is provided to members of the Board, shall be entitled to receive all materials provided to members of the Board, shall be entitled to attend (whether in person, by telephone, or otherwise) all meetings of the Board as a non-voting observer, and shall be entitled to fees and expenses paid to Board Representatives pursuant to paragraph 3C(v). (v) FEES & EXPENSES. Board Representatives shall be entitled to fees, other compensation and reimbursement of expenses paid to Board members who are not employees of the Company or its Subsidiaries. (vi) REPORTING INFORMATION. With respect to each Board Representative designated pursuant to the provisions of paragraph 3C(ii), MDP and Boston Ventures shall provide the Company with all necessary assistance and information related to such Board - 8 - Representative that is required (or would be required if the Company were subject to Regulation 14A under the Securities Exchange Act of 1934, as amended) to be disclosed in solicitations of proxies or otherwise, including such person's written consent to being named in the proxy statement (if applicable) and to serving as a director if elected. (vii) VOTING AGREEMENT. The Purchasers intend the provisions of this paragraph 3C to be enforceable as a shareholder voting agreement in accordance with the provisions of Section 302A.455 of the Minnesota Business Corporations Act. In addition to the limitations on transfer contained in Section 5 hereof, no Purchaser shall sell, transfer, assign or otherwise dispose of any Preferred Stock to any Person, other than another Purchaser or pursuant to the provisions of clauses (iii) through (vii), inclusive, of paragraph 5A, unless and until such Person shall agree in writing to take such Preferred Stock subject to, and shall agree in writing to be bound by the terms and conditions of, this Agreement. The certificates evidencing the Preferred Stock shall contain a legend referring to the shareholder voting agreement provisions of this Agreement. 3D. AFFIRMATIVE COVENANTS. So long as any Preferred Stock remains outstanding, the Company shall, and shall cause each Subsidiary to, unless it has received the prior written waiver of the holders of a majority of the outstanding Preferred Stock: (i) at all times cause to be done all things necessary to maintain, preserve and renew its corporate existence and all material licenses (including FCC licenses), authorizations, orders, permits and other governmental approvals necessary to the conduct of its businesses, and qualify and remain qualified as a foreign corporation, except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect; (ii) comply with all obligations that it incurs pursuant to any contract or agreement, whether oral or written, express or implied, as such obligations become due, unless and to the extent that (A) the failure to so comply would not (either individually or in the aggregate) reasonably be expected to result in a Material Adverse Effect, or (B) the same are being contested in good faith and by appropriate proceedings and adequate reserves or other provisions (as determined in accordance with GAAP, consistently applied) have been made and recorded on the Company's financial records with respect thereto; (iii) comply with the applicable requirements of all laws, rules, regulations and orders of all governmental authorities (including, but not limited to, ERISA and the rules, regulations and orders promulgated thereunder and all rules, regulations and orders promulgated by the FCC), except where the failure to comply would not (either individually or in the aggregate) reasonably be expected to result in a Material Adverse Effect; (iv) maintain and keep its properties in good repair, working order and condition (ordinary wear and tear excepted), and from time to time make all necessary or desirable repairs, renewals and replacements, so that its businesses may be properly and advantageously conducted at all times, except where the failure to do so would not (either individually or in the aggregate) reasonably be expected to result in a Material Adverse Effect; (v) possess and maintain all material Intellectual Property Rights necessary to the conduct of their respective businesses and own all right, title and interest in and to, or have a valid license for, all such Intellectual Property Rights, except where the failure to do so would not (either individually or in the aggregate) reasonably be expected to result in a Material Adverse Effect; (vi) maintain proper records and books of account which present fairly in all material respects the financial condition, results of operations and financial transactions of the Company and its Subsidiaries, and make provisions on its financial statements for all such proper reserves as in each case are required in accordance with GAAP, consistently applied; (vii) maintain insurance on its properties and businesses with financially sound and reputable insurance companies in such amounts, of such types and covering such casualties, risks and contingencies as is ordinarily carried by companies engaged in similar businesses and owning similar properties in the same general locations in which the Company and its Subsidiaries operate; and (viii) pay and discharge when payable all taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or upon any properties belonging to it (in each case prior to the date on which the same becomes delinquent and before penalties accrue thereon), and all lawful claims which, if unpaid, - 9 - would by law become a Lien upon any of the properties of the Company or its Subsidiaries, unless and to the extent that the same are being contested in good faith and by appropriate proceedings and adequate reserves or other provisions (as determined in accordance with GAAP, consistently applied) have been made and recorded on the Company's financial records with respect thereto and except where failure to do so would not reasonably be expected to result in a Material Adverse Effect. 3E. YEAR 2000 (Y2K) COMPLIANCE. (i) So long as any Preferred Stock remains outstanding, the Company and its Subsidiaries shall continue to conduct assessments and tests of all software, computers, network equipment, technical infrastructure, production equipment and other equipment and systems that are material to the operation of its business and that rely or utilize date or time processing ("SYSTEMS") and shall ensure that all of such Systems are Year 2000 Compliant. The Company and its Subsidiaries shall comply with all applicable laws and regulations relating to Year 2000 compliance, including, without limitation, making disclosures required by the federal securities laws. (ii) For purposes of this Purchase Agreement, "YEAR 2000 COMPLIANT" means a System or product will at all times (i) consistently and accurately handle and process date and time information and data with values before, during and after January 1, 2000, including, without limitation, accepting date input, providing date output, and performing calculations on or utilizing dates or portions of dates; (ii) function accurately and in accordance with its specifications without interruption, abnormal endings, degradation, change in operation or other impact, or disruption of the other parts of the Company's and its Subsidiaries' Systems, resulting from processing data or time data with values, before, during and after January 1, 2000; (iii) respond to and process two-digit date input in a way that resolves any ambiguity as to century; and (iv) store and provide output of date information in ways that are unambiguous as to century, except in any case, as would not result (either individually or in the aggregate) in a Material Adverse Effect. 3F. COMPLIANCE WITH AGREEMENTS. So long as any Preferred Stock remains outstanding, the Company shall perform and observe (i) all of its obligations to each holder of Purchaser Securities set forth in the Articles of Incorporation, the Certificate of Designation and the Company's Bylaws and (ii) all of its obligations to each holder of Registrable Securities (as defined in the Registration Agreement) set forth in the Registration Agreement. 3G. REGULATORY COMPLIANCE COOPERATION. If the Company proposes or plans to redeem, purchase or otherwise acquire, directly or indirectly, or convert or take any action with respect to the voting rights of, any shares of any class of its capital stock or any securities convertible into or exchangeable for any shares of any class of its capital stock (other than a redemption or conversion of the Preferred Stock) that would reasonably be expected to cause a Regulatory Problem for any Purchaser (or other holder of Purchaser Securities) that is subject to regulation under the Bank Holding Company Act or any similar law then in force (each, a "REGULATED PURCHASER"), then the Company shall give written notice of such pending action to each Purchaser at least 30 days prior to such action. For purposes of this paragraph, a Person shall be deemed to have a "REGULATORY PROBLEM" when such Person and such Person's Affiliates would own, control or have power over a greater quantity of securities of any kind issued by the Company or any other entity than are permitted under any requirement of any governmental authority. 3H. PUBLIC DISCLOSURES. After the date hereof, the Company shall not, nor shall it permit any Subsidiary to, disclose any Purchaser's name or identity as an investor in the Company in any press release or other public announcement or in any document or material filed with any governmental entity, without the prior written consent of such Purchaser, unless such disclosure is required by applicable law or governmental regulations or by order of a court of competent juris diction, in which case, unless otherwise prohibited by Applicable Law, prior to making such disclosure the Company shall give written notice to such Purchaser describing in reasonable detail the proposed content of such disclosure and shall permit the Purchaser to review and comment upon the form and substance of such disclosure. Section 4. COVENANTS OF THE PURCHASERS. 4A. CONFIDENTIALITY. (i) Each Purchaser will hold, and will use its commercially reasonable efforts to cause its officers, directors, shareholders, employees, accountants, counsel, consultants, advisors, financing sources, financial institutions and agents (its "REPRESENTATIVES") to hold, -10- in confidence, unless compelled to disclose by judicial or administrative process or by other requirements of law or national stock exchange, all confidential documents and information concerning the Company or any of its Affiliates furnished to the Purchaser, except to the extent that such information can be shown to have been (a) previously known on a non- confidential basis by the Purchaser or such Representatives, (b) in the public domain through no fault of the Purchaser or such Representatives (acting in their capacity as such or with respect to information received in their capacity as such) or (c) later acquired by the Purchaser or such Representatives from sources other than the Company or any of its Affiliates not known by the Purchaser or such Representatives, as applicable, to be bound by any confidentiality obligation; PROVIDED THAT the Purchaser may disclose such information to any of the Representatives in connection with the transactions contemplated by this Agreement so long as such Persons are informed by the Purchaser of the confidential nature of such information and are directed by the Purchaser to treat such information confidentially; AND PROVIDED FURTHER that the Purchaser may disclose such information in connection with a sale or transfer permitted by paragraph 5A of any Purchaser Securities if such Purchaser's transferee agrees to be bound by the provisions of this paragraph. Each Purchaser shall be responsible for any failure of it or any of its Representatives to treat such information confidentially. Each Purchaser agrees that it shall not and it shall cause each of its Representatives not to use any confidential documents or information for any purpose other than monitoring and evaluating its investment in the Company and in connection with the transactions contemplated by this Agreement. If this Agreement is terminated, then upon written request from the Company each Purchaser will, and will use its best efforts to cause its Representatives to, destroy or deliver to the Company all documents and other materials, and all copies thereof, obtained by such Purchaser or on its behalf from the Company, or any of its Representatives, in connection with this Agreement that are subject to such confidence. (ii) In the event any of the Purchasers or anyone to whom any of the Purchasers transmit confidential information is requested or required (by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demand or similar process) to disclose any such information, such Purchaser will provide the Company with prompt notice so that the Company may seek a protective order or other appropriate remedy and/or waive such Purchaser's compliance with the provisions of this paragraph. In the event that such protective order or other remedy is not obtained sufficiently promptly so as not to adversely affect such Purchaser or those of its officers, directors, employees, accountants, counsel, consultants, advisors and agents as to whom the information has been requested or required, or the Company waives such Purchaser's compliance with the provisions of this Agreement, such Purchaser will furnish only that portion of such information that such Purchaser is advised by counsel is legally required and will, at the Company's expense and direction, exercise its reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such information. 4B. PURCHASER STANDSTILL. (i) Except with the prior approval of the Board (as evidenced by a duly adopted resolution), each Purchaser and each holder of Purchaser Securities covenants and agrees that until the seventh anniversary of the date of this Agreement it will not, and will not cause or permit its Affiliates, directly or indirectly, either individually or together with any other Persons acting in concert, to (A) acquire, or offer or agree to acquire, or become the beneficial owner of or obtain any rights in respect of any capital stock of the Company, except for any shares of Class A Common Stock that may be issuable upon the conversion of the Preferred Stock or otherwise as permitted pursuant to this Agreement, PROVIDED THAT the foregoing limitation shall not prohibit the acquisition of securities of the Company or any of its successors issued as dividends or as a result of stock splits and similar reclassifications or received in a merger or other business combination of Preferred Stock or Purchaser Securities held by the Purchasers or any of their Affiliates at the time of such dividend, split or reclassification or merger or business combination; (B) grant or solicit proxies or consents or become a "participant" in a "solicitation" (as such terms are defined or used in Regulation 14A under the Securities Exchange Act) of proxies or consents with respect to any securities of the Company or any of its successors having current or contingent voting power or initiate or become a participant in any stockholder proposal or "election contest" (as such term is defined or used in Rule 14a-11 under the Securities Exchange Act) with respect to the Company or any of its successors or facilitate or induce others in the - 11 - initiation of the same, or otherwise seek to advise or influence any Person with respect to the voting of any voting securities of the Company or any of its successors (except for activities undertaken by the Purchasers or the directors elected by MDP and Boston Ventures pursuant to paragraph 3C in connection with solicitations by the Board); (C) publicly or privately propose, encourage, solicit or participate in the solicitation of any Person to acquire, offer to acquire or agree to acquire, by merger, tender offer, purchase or otherwise, the Company or a substantial portion of its assets or more than 5% of the outstanding capital stock (except in connection with the registration of securities pursuant to the Registration Agreement or a sale of Purchaser Securities); (D) directly or indirectly join in or in any way participate in a pooling agreement, syndicate, voting trust or other arrangement with respect to any of the Company's securities having current or contingent voting power or otherwise act in concert with any other Person (other than controlled Affiliates), for the purpose of acquiring, holding, voting or disposing of any such securities of the Company except agreements or arrangements related to the voting of securities for the election of the directors to be designated by MDP and Boston Ventures pursuant to paragraph 3C; (E) seek, alone or in concert with others, representation on the Board except as specifically set forth in paragraph 3C hereof, or seek the removal or termination of term of office of any member of the Board; (F) make any proposal, statement or inquiry, or disclose any intention, plan or arrangement (whether written or oral) inconsistent with the foregoing; or (G) have any discussions or communications, or enter into any arrangements, understandings or agreements (whether written or oral) with, or advise, finance, assist or encourage, any other Person in connection with any of the foregoing. (ii) Each holder of Purchaser Securities agrees that, in the event of any breach of the provisions of this paragraph 4B, the Company shall in addition to any right at law to damages be deemed irreparably harmed and entitled to equitable relief (without the posting of any bond or other security), including injunctive relief requiring prompt disposition of securities acquired contrary to this Agreement in a manner which is calculated to cause wide distribution of the shares and which is agreeable to the Company. 4C. FCC COMPLIANCE. Each Purchaser covenants and agrees that it will not acquire any interest in a Commercial Mobile Radio Service ("CMRS") licensee that would cause the Company to be in violation of the FCC's Cellular Cross Ownership Rules or the FCC's CMRS Spectrum Cap Rules then in effect (collectively, the "FCC'S CROSS OWNERSHIP RULES"). Each Purchaser further covenants and agrees that, in the event it does acquire such an interest, it will use commercially reasonable efforts to dispose promptly of sufficient interests (either by sale of stock or by divesting business segment(s)) in either (i) the competing CMRS channel block(s) or (ii) the Company, to the extent necessary to once again be compliant with the FCC's Cross Ownership Rules. Section 5. TRANSFER OF PURCHASER SECURITIES. 5A. GENERAL PROVISIONS. Purchaser Securities are not transferable by any Purchaser except (i) to the Company or a Person approved by the Company, (ii) to an Affiliate, (iii) pursuant to a merger or plan of liquidation of the Company, (iv) in response to an offer to purchase voting securities which is made by the Company or any third party not opposed by the Board, (v) pursuant to an open-market sale under Rule 144 of the Securities and Exchange Commission (or any similar rule or rules then in force) if such rule is available, (vi) pursuant to a public offering registered under the Securities Act and (vii) by way of an in-kind distribution by any Purchaser that is an investment fund to its partners or members in connection with a distribution of freely tradeable securities. 5B. LEGEND REMOVAL. If any Purchaser Securities become eligible for sale pursuant to Rule 144(k), the Company shall, upon the request of the holder of such Purchaser Securities, remove the legend set forth in paragraph 8C from the certificates for such Purchaser Securities; PROVIDED THAT such Purchaser Securities shall remain subject to paragraph 5A. - 12 - Section 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. As a material inducement to the Purchasers to enter into this Agreement and purchase the Preferred Stock hereunder, the Company hereby represents and warrants at and as of the Closing Date, after giving effect to the transactions contemplated by this Agreement (including the Acquisition), that: 6A. ORGANIZATION; OWNERSHIP; POWER; QUALIFICATION. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Minnesota. The Company has the corporate power and authority to own its properties and to carry on its business as now being and as proposed hereafter to be conducted. Each Subsidiary of the Company is a corporation or partnership duly organized, validly existing and in good standing under the laws of the state of its incorporation or formation, as the case may be, and has the corporate or partnership power, as the case may be, and authority to own its properties and to carry on its business as now being and as proposed hereafter to be conducted. The Company and each of its Subsidiaries are duly qualified, in good standing and authorized to do business in each jurisdiction in which the character of their respective properties or the nature of their respective businesses requires such qualification or authorization. 6B. AUTHORIZATION; ENFORCEABILITY. The Company has the corporate power and has taken all necessary corporate action to authorize it to execute, deliver and perform this Agreement, the Registration Agreement and all other documents contemplated hereby to which it is a party in accordance with their respective terms, and to consummate the transactions contemplated hereby and thereby. This Agreement has been duly executed and delivered by the Company and is, and each of the other documents referred to herein to which the Company is a party is, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to the following qualifications: (i) an order of specific performance and an injunction are discretionary remedies and, in particular, may not be available where damages are considered an adequate remedy at law; (ii) enforcement may be limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction and other similar laws affecting enforcement of creditors' rights generally (insofar as any such law relates to the bankruptcy, insolvency or similar event of the Company); and (iii) a court, on equitable grounds, may decline to enforce certain provisions or allow the exercise of certain remedies based upon the facts and circumstances that may exist at the time the enforcement or exercise is sought. 6C. CAPITAL STOCK AND RELATED MATTERS. (i) As of the Closing and immediately thereafter, the authorized capital stock of the Company shall consist of (a) 90,000,000 undesignated shares, of which 110,000 shares shall be designated as Class M Redeemable Voting Convertible Preferred Stock (of which 110,000 shall be issued and outstanding), 15,000 shares shall be designated as Class T Preferred Stock, Series A (of which 2,176.875 shall be issued and outstanding), 10,000 shares shall be designated as Class T Preferred Stock, Series B (of which 5,363.214 shall be issued and outstanding), 450,000 shares shall be designated as Senior Exchangeable Preferred Stock (of which 177,046 shall be issued and outstanding), 400,000 shares shall be designated as Junior Exchangeable Preferred Stock (of which 140,000 shall be issued and outstanding), 200,000 shares shall be designated as Series A Junior Participating Preferred Stock (of which none shall be issued and outstanding) and 50,000 shares shall be designated as Series B Junior Participating Preferred Stock (of which none shall be issued and outstanding); (b) 200,000,000 shares of Class A Common Stock, of which 10,879,160 shares shall be issued and outstanding, 2,075,472 shares shall be reserved for issuance upon conversion of the Preferred Stock, 296,297 shares shall be reserved for issuance upon conversion of the Class T Preferred Stock, Series A, 2,348,197 shares shall be reserved under the Company's stock option plans (of which options for 1,218,497 shares of Class A Common Stock shall have been granted) and 188,418 shares shall be reserved for issuance under the Company's Employee Stock Purchase Plan; and (c) 10,000,000 shares of Class B Common Stock, of which 888,543 shares shall be issued and outstanding and 197,531 shares shall be reserved for issuance upon conversion of the Class T Preferred Stock, Series B. As of the Closing, neither the Company nor any Subsidiary shall have outstanding any stock or securities convertible or exchangeable for any shares of its capital stock or containing any profit participation features, nor shall they have outstanding any rights or options to subscribe for or to purchase its capital stock or any stock or securities convertible into or exchangeable for its capital stock or any stock appreciation rights or phantom stock plans, except for the Preferred Stock and except as set forth on the attached "CAPITALIZATION SCHEDULE." As of the Closing, neither the Company nor any Subsidiary shall be subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any shares of its capital stock or any warrants, options or other rights to acquire its capital stock, except as set forth on the Capitalization Schedule and except pursuant to the Articles of Incorporation. As of - 13 - the Closing, all of the outstanding shares of the Company's capital stock shall be validly issued, fully paid and nonassessable. (ii) Except as set forth on the Capitalization Schedule, there are no statutory or, to the best of the Company's knowledge, contractual stockholders preemptive rights or rights of refusal with respect to the issuance of the Preferred Stock hereunder or the issuance of the Class A Common Stock upon conversion of the Preferred Stock. The Company has complied with all applicable federal or state securities laws in connection with the offer, sale or issuance of any of its capital stock, and the offer, sale and issuance of the Preferred Stock hereunder do not require registration under the Securities Act or any applicable state securities laws. To the best of the Company's knowledge, there are no agreements between the Company's stockholders with respect to the voting or transfer of the Company's capital stock. 6D. SUBSIDIARIES; AUTHORIZATION; ENFORCEABILITY. The Company's Subsidiaries and the Company's direct and indirect ownership thereof as of the date of this Agreement are as set forth on the SUBSIDIARY SCHEDULE attached hereto, and to the extent such Subsidiaries are corporations, the Company has the unrestricted right to vote the issued and outstanding shares of the Subsidiaries shown thereon and such shares of such Subsidiaries have been duly authorized and issued and are fully paid and nonassessable. Each Subsidiary of the Company has the corporate or partnership power and has taken all necessary corporate or partnership action to authorize it to execute, deliver and perform any documents contemplated hereby to which it is a party in accordance with their respective terms and to consummate the transactions contemplated by this Agreement and such other documents. Each such document to which any Subsidiary of the Company is a party is a legal, valid and binding obligation of such Subsidiary enforceable against such Subsidiary in accordance with its terms, subject, as to enforcement of remedies, to the following qualifications: (i) an order of specific performance and an injunction are discretionary remedies and, in particular, may not be available where damages are considered an adequate remedy at law; (ii) enforcement may be limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction and other similar laws affecting enforcement of creditors' rights generally (insofar as any such law relates to the bankruptcy, insolvency or similar event of any such Subsidiary) and (iii) a court, on equitable grounds, may decline to enforce certain provisions or allow the exercise of certain remedies based upon the facts and circumstances that may exist at the time the enforcement or exercise is sought. The Company's ownership interest in each of its Subsidiaries represents a direct or indirect controlling interest of such Subsidiary for purposes of directing or causing the direction of the management and policies of each Subsidiary. 6E. COMPLIANCE WITH OTHER DOCUMENTS AND CONTEMPLATED TRANSACTIONS. The execution, delivery and performance, in accordance with their respective terms, by the Company of this Agreement, and by the Company and its Subsidiaries of each of the other documents contemplated hereby to which they are respectively party, and the consummation of the transactions contemplated hereby and thereby, do not and will not (i) require any consent or approval, governmental or otherwise, not already obtained, (ii) violate any Applicable Law respecting the Company or any of its Subsidiaries, (iii) conflict with, result in a breach of, or constitute a default under the certificate or articles of incorporation or by-laws or partnership agreements, as the case may be, as amended, of the Company or any of its Subsidiaries, or under any material indenture, agreement, or other instrument, including, without limitation, the Licenses, to which the Company or any of its Subsidiaries is a party or by which any of them or their respective properties may be bound or (iv) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Company or any of its Subsidiaries, except for Permitted Liens. 6F. BUSINESS. The Company, together with its Subsidiaries, is engaged in the business of owning, constructing, managing, operating and investing in Cellular Systems and other wireless communications and related businesses. 6G. LICENSES, ETC. The Licenses, all of which are set forth on the LICENSES SCHEDULE, have been duly issued and are in full force and effect. The Company and its Subsidiaries are in compliance in all material respects with all of the provisions thereof. The Company and its Subsidiaries have secured all Necessary Authorizations and all such Necessary Authorizations are in full force and effect. Except as set forth in the POTENTIAL REVOCATIONS OF LICENSES SCHEDULE attached hereto, neither any License nor any Necessary Authorization is the subject of any pending or, to the best of the Company's or any of its Subsidiaries' knowledge, threatened revocation. 6H. COMPLIANCE WITH LAW. The Company and its Subsidiaries are in compliance with all Applicable Laws in all material respects, except where the failure to be in compliance would not, individually or in the aggregate, have a Material Adverse Effect. - 14 - 6I. TITLE TO ASSETS. As of the date of this Agreement, the Company and its Subsidiaries have good, legal and marketable title to, or a valid leasehold interest in, all of its material assets. None of the properties or assets of the Company or any of its Subsidiaries is subject to any Liens, except for Permitted Liens. Except for financing statements evidencing Permitted Liens, no financing statement under the Uniform Commercial Code as in effect in any jurisdiction and no other filing which names the Company or any of its Subsidiaries as debtor or which covers or purports to cover any of the assets of the Company or any of its Subsidiaries is currently effective and on file in any state or other jurisdiction, and neither the Company nor any of its Subsidiaries has signed any such financing statement or filing or any security agreement authorizing any secured party thereunder to file any such financing statement or filing. 6J. LITIGATION. There is no action, suit, proceeding or investigation pending against, or, to the knowledge of the Company, threatened against or in any other manner relating adversely to, the Company or any of its Subsidiaries or any of their respective properties, including without limitation the Licenses, in any court or before any arbitrator of any kind or before or by any governmental body (including without limitation the FCC) except as set forth on the LITIGATION SCHEDULE attached hereto. No such action, suit, proceeding or investigation (i) calls into question the validity of this Agreement or (ii) individually or collectively involves the possibility of any judgment or liability not fully covered by insurance which, if determined adversely to the Company or any of its Subsidiaries, would have a Material Adverse Effect. 6K. TAXES. All federal, state and other tax returns of the Company and each of its Subsidiaries required by law to be filed have been duly filed and all federal, state and other taxes, including, without limitation, withholding taxes, assessments and other governmental charges or levies required to be paid by the Company or any of its Subsidiaries or imposed upon the Company or any of its Subsidiaries or any of their respective properties, income, profits or assets, which are due and payable, have been paid, except any such taxes (i) (x) the payment of which the Company or any of its Subsidiaries is diligently contesting in good faith by appropriate proceedings, (y) for which adequate reserves have been provided on the books of the Company or its Subsidiaries involved, and (z) as to which no Lien other than a Permitted Lien has attached and no foreclosure, distraint, sale or similar proceedings have been commenced, or (ii) which may result from audits not yet conducted. The charges, accruals and reserves on the books of the Company and its Subsidiaries in respect of taxes are, in the judgment of the Company, adequate. 6L. FINANCIAL STATEMENTS. The Company has furnished or caused to be furnished to the Purchasers as of the date of this Agreement, audited financial statements of the Company and audited financial statements of the Subsidiaries of the Company on a consolidated basis for the fiscal years ended December 31, 1998, and December 31, 1999, and unaudited financial statements of the Company and its Subsidiaries on a consolidated basis for the two month period ended February 29, 2000, all of which have been prepared in accordance with GAAP and present fairly in all material respects the financial position of the Company and its Subsidiaries on a consolidated and consolidating basis, as the case may be, on and as at such dates and the results of operations for the periods then ended. Neither the Company nor any of its Subsidiaries has any material liabilities, contingent or otherwise, other than as disclosed in the financial statements referred to in the preceding sentence or as set forth or referred to in this Agreement, and there are no material unrealized losses of the Company or any of its Subsidiaries and no material anticipated losses of the Company or any of its Subsidiaries, other than as set forth on the attached CONTINGENT LIABILITIES SCHEDULE. 6M. NO MATERIAL ADVERSE CHANGE. There has occurred no event since December 31, 1999, which has or which could reasonably be expected to have a Material Adverse Effect. 6N. ERISA. The Company and each of its Subsidiaries and each of their respective Plans are in material compliance with ERISA and the IRC. Neither the Company nor any of its ERISA Affiliates, including its Subsidiaries, has incurred any accumulated funding deficiency with respect to any Employee Pension Plan within the meaning of ERISA or the IRC. Neither the Company nor any of its Subsidiaries has made any promises of retirement or other benefits to employees, except as set forth in the Plans, in written agreements with such employees, or in the Company's employee handbook and memoranda to employees. Neither the Company nor any of its ERISA Affiliates, including its Subsidiaries, has incurred any material liability to PBGC in connection with any such Plan; have suffered the imposition of a Lien under Section 412(m) of the IRC; or have been required to provide security as a result of any amendment to any such Plan as required by Section 401(a)(29) of the IRC. The assets of each such Plan which is subject to Title IV of ERISA are sufficient to provide the benefits under such Plan, the payment of which PBGC would guarantee if such Plan were terminated, and such assets are also sufficient to provide all other "benefit liabilities" (within the meaning of Section 4041 of ERISA) due under the Plan upon -15- termination. No Reportable Event which would cause a Material Adverse Effect has occurred and is continuing with respect to any such Plan. No such Plan or trust created thereunder, or party in interest (as defined in Section 3(14) of ERISA), or any fiduciary (as defined in Section 3(21) of ERISA), has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the IRC) which would subject such Plan or any other Plan of the Company or any of its Subsidiaries, any trust created thereunder, or any such party in interest or fiduciary, or any party dealing with any such Plan or any such trust, to the tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or Section 4975 of the IRC which would cause a Material Adverse Effect. Neither the Company nor any of its ERISA Affiliates, including its Subsidiaries, is or has been obligated to make any payment to a Multiemployer Plan. 6O. INVESTMENT COMPANY ACT. Neither the Company nor any of its Subsidiaries is required to register under the provisions of the Investment Company Act of 1940, as amended, and neither the entering into or performance by the Company and its Subsidiaries of this Agreement and any other documents contemplated hereby violate any provision of such Act or requires any consent, approval or authorization of, or registration with, the Securities and Exchange Commission or any other governmental or public body or authority pursuant to any provisions of such Act. 6P. GOVERNMENTAL REGULATION. Neither the Company nor any of its Subsidiaries is required to obtain any consent, approval, authorization, permit or license which has not already been obtained from, or effect any filing or registration which has not already been effected with, any federal, state or local regulatory authority in connection with the execution and delivery of this Agreement or any other agreements contemplated hereby. Neither the Company nor any of its Subsidiaries is required to obtain any consent, approval, authorization, permit or license which has not already been obtained from, or effect any filing or registration which has not already been effected with, any federal, state or local regulatory authority in connection with the performance, in accordance with their respective terms, of this Agreement or any other agreements contemplated hereby. 6Q. ABSENCE OF DEFAULT, ETC. The Company and its Subsidiaries are in compliance in all respects with all of the provisions of their respective partnership agreements, certificates or articles of incorporation and by-laws, as the case may be, and no event has occurred or failed to occur which has not been remedied or waived, the occurrence or non-occurrence of which constitutes a material default by the Company or any of its Subsidiaries under any indenture, agreement or other instrument relating to Indebtedness of the Company or any of its Subsidiaries in the amount of $1,000,000 or more in the aggregate, any License, or any judgment, decree or order to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties may be bound or affected. Neither the Company nor any of its Subsidiaries is a party to or bound by any contract or agreement continuing after the Closing Date, where the compliance therewith or the performance thereof would reasonably be expected to have a Material Adverse Effect or result in the loss of any License issued by the FCC. 6R. ACCURACY AND COMPLETENESS OF INFORMATION. All information, reports, prospectuses and other papers and data relating to the Company or any of its Subsidiaries and furnished by or on behalf of the Company or any of its Subsidiaries to the Purchasers were, at the time furnished, true, complete and correct in all material respects to the extent necessary to give the Purchasers true and accurate knowledge of the subject matter, and all projections (i) disclose all assumptions made with respect to costs, general economic conditions, and financial and market conditions formulating the Projections; (ii) are based on reasonable estimates and assumptions; and (iii) reflect, as of the date prepared, and continue to reflect, as of the date hereof, the reasonable estimate of Company of the results of operations and other information projected therein for the periods covered thereby. 6S. AGREEMENTS WITH AFFILIATES. Except for agreements or arrangements with Affiliates wherein the Company or one or more of its Subsidiaries provides services to such Affiliates for fair consideration or which are set forth on the AFFILIATED TRANSACTIONS SCHEDULE attached hereto, neither the Company nor any of its Subsidiaries has (i) any written agreements or binding arrangements of any kind with any Affiliate or (ii) any management or consulting agreements of any kind with any Affiliate. 6T. PAYMENT OF WAGES. The Company and each of its Subsidiaries are in compliance with the Fair Labor Standards Act, as amended, in all material respects, and to the knowledge of the Company and each of its Subsidiaries, such Persons have paid all minimum and overtime wages required by law to be paid to their respective employees. 6U. INDEBTEDNESS. Except as shown on the financial statements of the Company for the fiscal year ended December 31, 1999, and the Subordinated Notes and the Other Preferred - 16 - Stock, neither the Company nor any of its Subsidiaries has outstanding, as of the date of this Agreement, any Indebtedness other than pursuant to the Senior Loan Agreement. 6V. SOLVENCY. As of the date of this Agreement and after giving effect to the transactions contemplated hereby (i) the property of the Company, at a fair valuation, will exceed its debt; (ii) the capital of the Company will not be unreasonably small to conduct its business; (iii) the Company will not have incurred debts, or have intended to incur debts, beyond its ability to pay such debts as they mature; and (iv) the present fair salable value of the assets of the Company will be materially greater than the amount that will be required to pay its probable liabilities (including debts) as they become absolute and matured. For purposes of this paragraph, "debt" means any liability on a claim, and "claim" means (i) the right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, undisputed, legal, equitable, secured or unsecured, or (ii) the right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, undisputed, secured or unsecured. 6W. YEAR 2000 COMPLIANCE. The Company (i) has completed a review and assessment of all areas within its and each of its Subsidiaries' businesses and operations (including those affected by suppliers, vendors and customers) that could be adversely affected by the "YEAR 2000 PROBLEM" (that is, the risk that computer applications used by the Company or any of its Subsidiaries (or suppliers, vendors and customers) may be unable to recognize and perform properly date-sensitive functions involving certain dates prior to and any date after December 31, 1999), (ii) has developed a plan and timeline for ensuring Year 2000 Compliance on a timely basis and (iii) is implementing that plan in accordance with that timetable. Based on the foregoing, the Company believes that all Systems (including those of its suppliers, vendors and customers) that are material to its or any of its Subsidiaries' businesses and operations are reasonably expected on a timely basis to be Year 2000 Compliant, except to the extent that a failure to do so could not reasonably be expected to have a Material Adverse Effect. 6X. REPORTS WITH THE SECURITIES AND EXCHANGE COMMISSION. The Company's annual report on Form 10-K for its two most recent fiscal years, all other reports or documents required to be filed by the Company pursuant to Section 13(a) or 15(d) of the Securities Exchange Act since the filing of the most recent annual report on Form 10-K, its most recent annual report to its stockholders and the solicitation of proxy statements delivered to the Company's stockholders regarding the Acquisition and the issuance of the Preferred Stock and the Other Preferred Stock in connection therewith (in each case, together with all amendments thereof and notices or updates with respect thereto) do not contain any material false statements or any misstatement of any material fact and do not omit to state any fact necessary to make the statements set forth therein not misleading. The Company has made all filings with the Securities and Exchange Commission which it is required to make, and the Company has not received any request from the Securities and Exchange Commission to file any amendment or supplement to any of the reports described in this paragraph. Section 7. DEFINITIONS. For the purposes of this Agreement, the following terms have the meanings set forth below: "AFFILIATE" of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where "control" means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract or otherwise. With respect to the Company, "control" includes, without limitation, the direct or indirect beneficial ownership of more than ten percent (10%) of the voting securities or voting equity of such Person or the power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise. "APPLICABLE LAW" means, in respect of any Person, all provisions of constitutions, statutes, rules, regulations and orders of governmental bodies or regulatory agencies applicable to such Person, including, without limiting the foregoing, the Licenses, the Communications Act and all Environmental Laws, and all orders, decisions, judgments and decrees of all courts and arbitrators in proceedings or actions to which the Person in question is a party or by which it is bound. "BOARD" means the Company's board of directors. "BOSTON VENTURES" means Boston Ventures Limited Partnership V and any of its Affiliates. - 17 - "BRIDGE FINANCING AGREEMENT" means the Junior Exchangeable Preferred Stock Agreement and the Senior Exchangeable Preferred Stock Agreement (to the extent relating to the issuance of Senior Exchangeable Preferred Stock in connection with the Acquisition). "BRIDGE FINANCING INVESTORS" means the purchasers of Junior Exchangeable Preferred Stock and Senior Exchange Preferred Stock pursuant to the Bridge Financing Agreement. "CELLULAR SYSTEMS" means cellular mobile radio telephone systems constructed and operated, or a PCS System constructed and operated and shall include a microwave system or a paging system operated in connection with (and in the same general service area as) any of the foregoing systems. "CLASS T PREFERRED STOCK" means up to $15 million aggregate liquidation value of the Company's Class T Convertible Preferred Stock, par value $.01 per share, issued to Telephone & Data Systems, Inc. pursuant to the Class T Preferred Stock Agreement in connection with the Acquisition. "CLASS T PREFERRED STOCK AGREEMENT" means that certain Recapitalization Agreement, dated as of October 31, 1999, by and between the Company and Telephone & Data Systems, Inc., as amended on December 6, 1999, as such agreement may be further amended or otherwise modified from time to time, the other agreements and instruments entered into by the parties thereto in connection therewith, and the certificate of designation filed with the Secretary of State of Minnesota setting forth the rights and preferences of the Class T Preferred Stock, all as originally executed and delivered and, except as otherwise provided herein, as such agreements or instruments may be amended or modified from time to time in accordance with their respective terms. "CLASS T PREFERRED INVESTORS" means the purchasers of Class T Preferred Stock pursuant to the Class T Preferred Stock Agreement. "COMMITMENT LETTER" means the letter, dated as of November 5, 1999, from several of the Purchasers to the Company. "COMMON STOCK" means the Company's Class A Common Stock and the Company's Class B Common Stock, par value $0.01 per share. "COMMUNICATIONS ACT" means the Communications Act of 1934, and any similar or successor federal statute, and the rules and regulations of the FCC thereunder, all as the same may be in effect from time to time. "EMPLOYEE PENSION PLAN" means any Plan which is (a) maintained by the Company, any of its Subsidiaries or any of its ERISA Affiliates and (b) subject to Part 3 of Title I of ERISA. "ENVIRONMENTAL LAWS" means all applicable federal, state or local laws, statutes, rules, regulations or ordinances, codes, common law, consent agreements, orders, decrees, judgments or injunctions issued, promulgated, approved or entered thereunder relating to public health, safety or the pollution or protection of the environment, including, without limitation, those relating to releases, discharges, emissions, spills, leaching, or disposals to air, water, land or ground water, to the withdrawal or use of ground water, to the use, handling or disposal of polychlorinated biphenyls, asbestos or urea formaldehyde, to the treatment, storage, disposal or management of hazardous substances (including, without limitation, petroleum, crude oil or any fraction thereof, or other hydrocarbons), pollutants or contaminants, to exposure to toxic, hazardous or other controlled, prohibited, or regulated substances, including, without limitation, any such provisions under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601 et seq.), or the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. ss. 6901 et seq.). "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto. "ERISA AFFILIATES" means any Person, including a Subsidiary or an Affiliate of the Company, that is a member of any group of organizations (within the meaning of Code Sections 414(b), (c), (m) or (o)) of which the Company is a member. "EVENT OF NONCOMPLIANCE" has the meaning set forth in the Certificate of Designation. "FCC" means the Federal Communications Commission and any governmental body or agency succeeding to the functions thereof. - 18 - "GAAP" means the generally accepted accounting principles in the United States, as in effect from time to time, applied on a consistent basis both as to classification of items and amounts. "INDEBTEDNESS" means, with respect to any Person and without duplication, (i) all items, except items of shareholders' and partners' equity or capital stock or surplus or general contingency or deferred tax reserves, which in accordance with GAAP would be included in determining total liabilities for money borrowed as shown on the liability side of a balance sheet of such Person, including, without limitation, to the extent of the higher of the book value or fair market value of the property or asset securing such obligation (if less than the amount of such obligation), secured non-recourse obligations of such Persons, (ii) all direct or indirect obligations of any other Person secured by any Lien to which any property or asset owned by such Person is subject, but only to the extent of the higher of the fair market value or the book value of the property or asset subject to such Lien (if less than the amount of such obligation) if the obligation secured thereby shall not have been assumed, (iii) to the extent not otherwise included, all capitalized lease obligations of such Person and all obligations of such Person with respect to leases constituting part of a sale and lease- back arrangement, (iv) all reimbursement obligations with respect to outstanding letters of credit, (v) to the extent not otherwise included, all obligations subject to guaranties of such Person or its Subsidiaries and (vi) all obligations of such Person under interest hedge agreements in respect of any of the foregoing. "INTELLECTUAL PROPERTY RIGHTS" means all (i) patents, patent applications, patent disclosures and inventions, (ii) trademarks, service marks, trade dress, trade names, logos and corporate names and registrations and applications for registration thereof together with all of the goodwill associated therewith, (iii) copyrights (registered or unregistered) and copyrightable works and registrations and applications for registration thereof, (iv) mask works and registrations and applications for registration thereof, (v) computer software, data, data bases and documentation thereof, (vi) trade secrets and other confidential information (including, without limitation, ideas, formulas, compositions, inventions (whether patentable or unpatentable and whether or not reduced to practice), know-how, manufacturing and production processes and techniques, research and development information, drawings, specifications, designs, plans, proposals, technical data, copyrightable works, financial and marketing plans and customer and supplier lists and information), (vii) other intellectual property rights and (viii) copies and tangible embodiments thereof (in whatever form or medium). "INVESTMENT" means, with respect to the Company or any of its Subsidiaries, (i) any loan, advance or extension of credit (other than to customers in the ordinary course of business) by such Person to, or any guaranty or other contingent liability with respect to the capital stock, Indebtedness or other obligations of, or any contributions to the capital of, any other Person, or any ownership, purchase or other acquisition by such Person of any interest in any capital stock, limited partnership interest, general partnership interest, or other securities of any such other Person, other than an acquisition, (ii) any acquisition by the Company or any of its Subsidiaries of any assets relating to the wireless communications business and (iii) all expenditures by the Company or any of its Subsidiaries relating to the foregoing. "Investment" also shall include the total cost of any future commitment or other obligation binding on any Person to make an Investment or any subsequent Investment. "IRC" means the Internal Revenue Code of 1986, as amended, and any reference to any particular IRC section shall be interpreted to include any revision of or successor to that section regardless of how numbered or classified. "IRS" means the United States Internal Revenue Service and any governmental body or agency succeeding to the functions thereof. "JUNIOR EXCHANGEABLE PREFERRED STOCK" means up to $140 million aggregate liquidation value of the Company's 12 1/4% Junior Exchangeable Preferred Stock, par value $.01 per share. "JUNIOR EXCHANGEABLE PREFERRED STOCK AGREEMENT" means that certain Underwriting Agreement, dated as of February 8, 2000, by and among the Company, TD Securities (USA) Inc., First Union Securities, Inc. and The Robinson-Humphrey Company, as Qualified Independent Underwriter, the other agreements and instruments entered into by the parties thereto in connection therewith, and the certificate of designation filed with the Secretary of State of Minnesota setting forth the rights and preferences of the Junior Exchangeable Preferred Stock, all as originally executed and delivered and, except as otherwise provided herein, as such agreements or instruments may be amended or modified from time to time in accordance with their respective terms. - 19 - "JUNIOR SECURITIES" shall have the meaning set forth in the Certificate of Designation. "knowledge" or "aware" in respect of the Company shall mean and include (i) the actual knowledge or awareness of the chief executive officer, the chief financial officer, the general counsel or any vice president of the Company, and (ii) with respect to each of the Persons identified in clause (i) above, the knowledge or awareness which a prudent business person would have obtained in the conduct of his business after making reasonable inquiry and reasonable diligence with respect to the particular matter in question. "LICENSES" means any cellular telephone, microwave, personal communications or other license, authorization, certificate of compliance, franchise, approval or permit, whether for the construction or the operation of any Cellular System, granted or issued by the FCC and held by the Company or any of its Subsidiaries, all of which are listed as of the date of this Agreement on the LICENSES SCHEDULE hereto. "LIENS" means with respect to any property, any mortgage, lien, pledge, negative pledge or other agreement not to pledge, assignment, charge, security interest, title retention agreement, levy, execution, seizure, attachment, garnishment or other encumbrance of any kind in respect of such property, whether created by statute, contract, the common law or otherwise, and whether or not choate, vested or perfected. "MATERIAL ADVERSE EFFECT" or "MATERIAL ADVERSE CHANGE" means, any change that, individually or in the aggregate with all other related changes or effects, is materially adverse to the business, financial condition, operating results, assets, value, customer or employee relations, operations or, except to the extent affected by general economic condition, business prospects of the Company and its Subsidiaries taken as a whole. "MDP" means Madison Dearborn Partners III, L.P. and any of its Affiliates. "MULTIEMPLOYER PLAN" means a multiemployer pension plan as defined in Section 3(37) of ERISA to which the Company, any of its Subsidiaries, or any of its ERISA Affiliates is or has been required to contribute subsequent to September 25, 1980. "NECESSARY AUTHORIZATIONS" means all approvals and licenses from, and all filings and registrations with, any governmental or other regulatory authority, including, without limitation, the Licenses and all approvals, licenses, filings and registrations under the Communications Act, necessary in order to enable the Company and its Subsidiaries to own, construct, maintain, and operate Cellular Systems and to invest in other Persons who own, construct, maintain, and operate Cellular Systems. "OFFICER'S CERTIFICATE" means a certificate signed by the Company's president or its chief financial officer (in his capacity as an officer of the Company and not in his personal or any other capacity), stating that (i) the officer signing such certificate has made or has caused to be made such investigations as are necessary in order to permit him to verify the accuracy of the information set forth in such certificate and (ii) to the best of such officer's knowledge, such certificate does not misstate any material fact and does not omit to state any fact necessary to make the certificate not misleading. "OTHER PREFERRED STOCK" means, collectively, the Senior Exchangeable Preferred Stock, the Junior Exchangeable Preferred Stock, and the Class T Preferred Stock. "OTHER PREFERRED STOCK AGREEMENTS" means, collectively, the Senior Exchangeable Preferred Stock Agreement, the Junior Exchangeable Preferred Stock Agreement, and the Class T Preferred Stock Agreement. "PBGC" means the Pension Benefit Guaranty Corporation, or any successor thereto. "PCS SYSTEM" means any broad band personal communications services telecommunications system operating on radio spectrum in a "basic trading area" (as defined and modified from time to time by the FCC) or a License to operate such a system. "PERMITTED LIENS" shall have the meaning set forth in the Senior Loan Agreement. "PERSON" means an individual, a partnership, a corporation, a limited liability company, an association, a trust or estate, a joint venture, an unincorporated organization, a government or any agency or political subdivision thereof or any other entity. - 20 - "PLAN" means an employee benefit plan within the meaning of Section 3(3) of ERISA or any other employee benefit plan maintained for employees of the Company or any ERISA Affiliate of the Company, including the Subsidiaries. "PURCHASER SECURITIES" means (i) the Preferred Stock issued to the Purchasers hereunder, (ii) any Class A Common Stock issued or issuable upon conversion of the Preferred Stock referred to in clause (i) and (iii) any securities issued directly or indirectly with respect to any of the foregoing securities by way of a stock split, stock dividend or other division of securities, or in connection with a combination of securities, recapitalization, merger, consolidation or other reorganization. As to any particular securities constituting Purchaser Securities, such securities shall cease to be Purchaser Securities when they have been (a) effectively registered under the Securities Act and disposed of in accordance with the registration statement covering them, (b) distributed to the public through a broker, dealer or market maker pursuant to Rule 144 under the Securities Act (or any similar provision then in force) or (c) repurchased or otherwise acquired by the Company. Any reference herein to a "majority of the Purchaser Securities" or the "number of Purchaser Securities" or words of like effect for purposes of comparison or calculation shall refer, with respect to any particular Purchaser Securities, to the number shares of Class A Common Stock (or equivalent common equity securities of the Company) then represented by such Purchaser Securities (on a fully diluted, as-if-converted basis). "REPORTABLE EVENT" means, with respect to any Employee Pension Plan, an event described in Section 4043(b) of ERISA. "SECURITIES ACT" means the Securities Act of 1933, as amended, or any similar federal law then in force. "SECURITIES AND EXCHANGE COMMISSION" includes any governmental body or agency succeeding to the functions thereof. "SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or any similar federal law then in force. "SENIOR EXCHANGEABLE PREFERRED STOCK" means up to $150 million aggregate liquidation value of the Company's 11 3/8% Senior Exchangeable Preferred Stock, par value $.01 per share. "SENIOR EXCHANGEABLE PREFERRED STOCK AGREEMENT" means that certain Purchase Agreement, dated as of May 7, 1998, by and among the Company, TD Securities (USA) Inc., NationsBanc Montgomery Securities LLC and BancBoston Securities Inc., the other agreements and instruments entered into by the parties thereto in connection therewith, that certain Underwriting Agreement, dated as of February 8, 2000, by and among the Company, TD Securities (USA) Inc., First Union Securities, Inc. and The Robinson-Humphrey Company, as Qualified Independent Underwriter, the other agreements and instruments entered into by the parties thereto in connection therewith, and the certificate of designation filed with the Secretary of State of Minnesota setting forth the rights and preferences of the Senior Exchangeable Preferred Stock, all as originally executed and delivered and, except as otherwise provided herein, as such agreements or instruments may be amended or modified from time to time in accordance with their respective terms. "SENIOR LENDERS" means the financial institutions whose names appear as Lenders on the signature pages to the Senior Loan Agreement. "SENIOR LOAN AGREEMENT" means that certain Second Amended and Restated Loan Agreement, dated as of April 3, 2000, among Rural Cellular Corporation, as Borrower, the lenders parties thereto; Toronto Dominion (Texas), Inc., as Administrative Agent; TD Securities (USA), Inc., as Book Runner and Lead Arranger; First Union Securities, Inc. and PNC Bank, National Association, as Co-Syndication Agents; and Bank of America Securities, LLC, as Documentation Agent, all notes issued thereunder, and all other agreements and instruments entered into by the parties thereto in connection therewith, all as originally executed and delivered and, except as otherwise provided herein, as such agreements or instruments may be amended or modified from time to time in accordance with their respective terms. "SUB BOARD" means the board of directors of any of the Company's Subsidiaries. "SUBORDINATED NOTES" means the Company's 9 5/8% Senior Subordinated Notes in the amount of $125,000,000 due 2008. - 21 - "SUBSIDIARY" means, as applied to any Person, (i) any corporation of which more than fifty percent (50%) of the outstanding stock (other than directors' qualifying shares) having ordinary voting power to elect a majority of its board of directors, regardless of the existence at the time of a right of the holders of any class or classes of securities of such corporation to exercise such voting power by reason of the happening of any contingency, or any partnership or limited liability company of which more than fifty percent (50%) of the outstanding partnership or membership interests is at the time owned directly or indirectly by such Person, or by one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of such Person, or (ii) any other entity which is directly or indirectly controlled or capable of being controlled by such Person, or by one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of such Person. For purposes of this Agreement, if the context does not otherwise specify in respect of which Person the term "Subsidiary" is used, the term "Subsidiary" shall refer to a Subsidiary of the Company. Notwithstanding the foregoing, Subsidiary shall not include Wireless Alliance, L.L.C., a Minnesota limited liability company. Section 8. MISCELLANEOUS. 8A. EXPENSES. The Company shall pay, and hold each Purchaser and all holders of Purchaser Securities harmless against liability for the payment of, their reasonable out-of-pocket costs and expenses (including reasonable attorney's fees and expenses for one counsel selected by the Purchasers) arising in connection with: (i) the negotiation and execution of the Commitment Letter, this Agreement, and the other agreements contemplated hereby and the consummation of the transac tions contemplated hereby or thereby, (ii) any amendments or waivers (whether or not the same become effective) under or in respect of this Agreement, any of the agreements contemplated hereby, the Articles of Incorporation or the Certificate of Designation (including, without limitation, in connection with any proposed merger, sale or recapitalization of the Company), (iii) stamp and other taxes which may be payable in respect of the execution and delivery of this Agreement or the issuance, delivery or acquisition of any shares of Preferred Stock at the Closing or any shares of Common Stock issuable upon conversion of the Preferred Stock, (iv) the enforcement of the rights granted under this Agreement, any of the agreements contemplated hereby, the Articles of Incorporation and the Certificate of Designation and (v) any filing with any governmental agency with respect to its investment in the Company or in any other filing with any governmental agency with respect to the Company which mentions such Person. 8B. REMEDIES. Each holder of Purchaser Securities shall have all rights and remedies set forth in this Agreement, the Articles of Incorporation and the Certificate of Designation and all rights and remedies which such holders have been granted at any time under any other agreement or contract and all of the rights which such holders have under any law or at equity. Any Person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law or at equity. 8C. PURCHASER'S INVESTMENT REPRESENTATIONS. Each of the Purchasers hereby represents and warrants for itself, severally and ratably and not jointly, that: (i) ORGANIZATION, GOOD STANDING, POWER, AUTHORITY, ETC. Such Purchaser is validly organized and existing and in good standing under the laws of its jurisdiction of organization and has full power and authority to execute and deliver this Agreement, the Registration Agreement and all other agreements contemplated hereby or thereby to which such Purchaser is a party, and to perform its obligations hereunder or thereunder. Such Purchaser has taken all necessary corporate or other organizational action in order to authorize the execution and delivery of this Agreement, the Registration Agreement and each other agreement contemplated hereby or thereby to which such Purchaser is a party and the consummation of the transactions contemplated hereby or thereby, and each such agreement is a valid and binding obligation of such Purchaser, enforceable in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, similar laws affecting creditors' rights generally or general principles of equity. (ii) NO CONFLICTS; NO CONSENTS. Neither the execution nor delivery of this Agreement, the Registration Agreement and all other agreements contemplated hereby or thereby to which such Purchaser is a party nor the consummation by such Purchaser of the purchase of the Preferred Stock contemplated hereby will conflict with, or result in any violation of, or constitute any default under, any provision of such Purchaser's organizational documents. (iii) OWNERSHIP OF SECURITIES. As of immediately prior to the date hereof, such Purchaser does not own any debt or equity securities issued by the Company. - 22 - (iv) INVESTOR SUITABILITY. Such Purchaser is an "accredited investor" as such term is defined in Rule 501 promulgated under the Securities Act. (v) DISCLOSURE OF INFORMATION. Such Purchaser acknowledges that it or its representatives have been furnished with all information regarding the Company and its business, assets, results of operations and financial condition that such Purchaser has requested. Each Purchaser further represents that it has had an opportunity to ask questions of and receive answers from the Company regarding the Company and its business, assets, results of operations, and financial condition and the terms and conditions of the issuance of the Securities; however, no representations or warranties have been made by the Company to the Purchasers in their capacity as Purchasers except as are set forth in this Agreement. NOTHING CONTAINED IN THIS PARAGRAPH 8C(V) AND NO INVESTIGATION, OR NEGLIGENCE OF THE PURCHASERS IN CONNECTION THEREWITH, BY PURCHASERS SHALL IN ANY WAY AFFECT THE PURCHASERS' RIGHT TO RELY UPON THE COMPANY'S REPRESENTATIONS AND COVENANTS CONTAINED IN THIS AGREEMENT. (vi) INVESTMENT EXPERIENCE. Each Purchaser represents that it has such knowledge, experience and skill in evaluating and investing in common and preferred stocks and other securities, based on actual participation in financial, investment and business matters, so that each is capable of evaluating the merits and risks of an investment in the Preferred Stock and has such knowledge, experience and skill in financial and business maters that each is capable of evaluating the merits and risks of the investment in the Company and the suitability of the Preferred Stock as an investment and can bear the economic risk of an investment in the Preferred Stock . No guarantees have been made or can be made with respect to the future value, if any, of the Preferred Stock, or the profitability or success of the Company's business. (vii) BROKERAGE. No broker, finder or other party is entitled to receive from such Purchaser, any brokerage or finder's fee or any other fee, commission or payment as a result of the transactions contemplated by this Agreement for which the Company could have any liability or responsibility. (viii) PURCHASE FOR OWN ACCOUNT. Such Purchaser is acquiring the Purchaser Securities purchased hereunder or acquired pursuant hereto for its own account with the present intention of holding such securities for purposes of investment, and that it has no intention of selling such securities in a public distribution in violation of the federal securities laws or any applicable state securities laws; PROVIDED THAT nothing contained herein shall prevent any Purchaser and subsequent holders of Purchaser Securities from transferring such securities in compliance with the provisions of Section 5 hereof. (ix) FCC CONCERNS. Each Purchaser represents that, at and as of the Closing, it holds no direct or indirect interest in any CMRS licensee that would violate Section 22.942 or Section 20.6 of the FCC's Cross Ownership Rules if the purchase of the Preferred Stock were consummated on the terms and subject to the conditions set forth in this Agreement. (x) RESTRICTIVE LEGENDS. Each certificate or instrument representing Purchaser Securities shall be imprinted with a legend in substantially the following form: "The securities represented by this certificate were originally issued on April 3, 2000, and have not been registered under the Securities Act of 1933, as amended. The securities represented by this certificate are subject to the restrictions on transfer, voting agreement and other provisions set forth in the Preferred Stock Purchase Agreement, dated as of April 3, 2000, and as amended and modified from time to time, between the issuer (the "Company") and certain investors, and the Company reserves the right to refuse the transfer of such securities until such provisions have been complied with in respect of such transfer. A copy of such provisions shall be furnished by the Company to the holder hereof upon written request and without charge." 8D. UNDERSTANDING AMONG THE PURCHASERS. The determination of each Purchaser to purchase the Preferred Stock pursuant to this Agreement has been made by such Purchaser independent of any other Purchaser and independent of any statements or opinions as to the advisability of such purchase or as to the properties, business, prospects or condition (financial or otherwise) of the Company and its Subsidiaries which may have been made or given by any other Purchaser or by any agent or employee of any other Purchaser. In addition, it is acknowledged by - 23 - each of the other Purchasers that MDP has not acted as an agent of such Purchaser in connection with making its investment hereunder and that MDP shall not be acting as an agent of such Purchaser in connection with monitoring its investment hereunder. 8E. TREATMENT OF THE PREFERRED STOCK. The Company covenants and agrees that (i) so long as federal income tax laws prohibit a deduction for distributions made by the Company with respect to preferred stock, it shall treat all distributions paid by it on the Preferred Stock as non-deductible dividends on all of its tax returns and (ii) it shall treat the Preferred Stock as preferred stock in all of its financial statements and other reports and shall treat all distributions paid by it on the Preferred Stock as dividends on preferred stock in such statements and reports. 8F. INDEMNIFICATION. In consideration of the Purchaser's execution and delivery of this Agreement and acquiring the Preferred Stock hereunder and in addition to all of the Company's other obligations under this Agreement, the Company shall defend, protect, indemnify and hold harmless each Purchaser and each other holder of Purchaser Securities and all of their officers, directors, employees and agents (including, without limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the "INDEMNITEES") from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys' fees and disbursements (the "INDEMNIFIED LIABILITIES"), incurred by the Indemnitees or any of them as a result of, or arising out of, or relating to (a) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Preferred Stock, (b) the execution, delivery, performance or enforcement of this Agreement and any other instrument, document or agreement executed pursuant hereto by any of the Indemnitees or (c) any breach of any covenant, agreement, representation or warranty of the Company under this Agreement or any other instrument, document or agreement contemplated hereby to which the Company is a party. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. 8G. CONSENT TO AMENDMENTS. Except as otherwise expressly provided herein, the provisions of this Agreement may be amended or modified and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of the holders of a majority of the Purchaser Securities outstanding at the time the amendment or waiver becomes effective or, in the case of any provision requiring the consent of the holders of a majority of the Preferred Stock, only if the Company has obtained the written consent of the holders of a majority of the Preferred Stock outstanding at the time the amendment or waiver becomes effective; PROVIDED THAT if any such amendment, modification or waiver would adversely affect any holder of Purchaser Securities or Preferred Stock, as the case may be, relative to the holders of Purchaser Securities or Preferred Stock voting in favor of such amendment, modification, or waiver, such amendment, modification or waiver shall also require the written consent of the holders of a majority of the outstanding Purchaser Securities or Preferred Stock, as the case may be, held by all holders so adversely affected; PROVIDED FURTHER that if any such amendment, modification or waiver is to a provision in this Agreement that requires a specific vote to take an action thereunder or to take an action with respect to the matters described therein, such amendment, modification or waiver shall not be effective unless such vote is obtained with respect to such amendment, modification or waiver. No other course of dealing between the Company and the holder of any Purchaser Securities or Preferred Stock or any delay in exercising any rights hereunder or under the Articles of Incorporation shall operate as a waiver of any rights of any such holders. For purposes of this Agreement, Purchaser Securities or Preferred Stock held by the Company or any Subsidiaries shall not be deemed to be outstanding. 8H. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and warranties contained herein or made in writing by any party in connection herewith shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, regardless of any investigation made by any Purchaser or on its behalf. 8I. SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein, all covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not other than any transferee pursuant to clause (iii), (iv), (v), (vi) or (vii) of Section 5A hereof. In addition, and whether or not any express assignment has been made, the provisions of this Agreement which are for any Purchaser's benefit as a purchaser or holder of Purchaser Securities are also for the benefit of, and enforceable by, any subsequent holder of such Purchaser Securities other than any transferee pursuant to clause (iii), (iv), (v), (vi) or (vii) of Section 5A hereof. - 24 - 8J. SEVERABILITY. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. 8K. COUNTERPARTS. This Agreement may be executed simultaneously in two or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Agreement. 8L. DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement. Whenever required by the context, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns, pronouns, and verbs shall include the plural and vice versa. Reference to any agreement, document, certificate, or instrument means such agreement, document, certificate or instrument as the same is amended, waived or otherwise modified from time to time in accordance with the terms thereof and, if applicable, hereof. Words such as "herein," "hereunder," "hereof" and the like shall be deemed to refer to this Agreement as a whole and not to any particular document or article, Section, paragraph or other portion of a document. The use of the words "include" or "including" in this Agreement shall be by way of example rather than by limitation. The use of the words "or," "either" or "any" shall not be exclusive. The "knowledge" or "awareness" of a Person means the actual knowledge of such Person (which includes the actual knowledge of all officers, directors and executive employees of such Person after reasonable inquiry). 8M. NO STRICT CONSTRUCTION. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. 8N. COMPLETE AGREEMENT. Except as otherwise expressly set forth herein, this Agreement and the other agreements, certificates and instruments expressly required to be delivered hereby embody the complete agreement and understanding of the parties hereto and supersede and preempt any prior understandings, agreements or representations by or among the parties, whether written or oral, which may have related to the subject matter hereof in any way, and such agreements may not be contradicted or varied by evidence of prior, contemporaneous or subsequent oral discussions or understandings of the parties. The parties hereto acknowledge and agree there are no oral understandings or agreements between them with respect to the subject matter hereof. 8O. SCHEDULES. Nothing in any Schedule attached hereto shall be adequate to disclose an exception to a representation or warranty made in this Agreement unless such Schedule identifies the exception with particularity and describes the relevant facts in reasonable detail. Without limiting the generality of the foregoing, the mere listing (or inclusion of a copy) of a document or other item shall not be adequate to disclose an exception to a representation or warranty made in this Agreement, unless the representation or warranty has to do with the existence of such document or such other item itself. 8P. DELIVERY BY FACSIMILE. This Agreement, the agreements referred to herein, and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall reexecute original forms thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine as a defense to the formation or enforeceability of a contract and each such party forever waives any such defense. 8Q. GOVERNING LAW. The corporate law of the State of Minnesota shall govern all issues and questions concerning the relative rights and obligations of the Company and its stockholders. All other issues and questions concerning the construction, validity, enforcement and interpretation of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New York or any other juris- -25- diction) that would cause the application of the laws of any jurisdiction other than the State of New York. 8R. NOTICES. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, telecopied to the recipient (with hard copy sent by overnight courier in the manner provided hereunder) if sent prior to 4:00 p.m. New York time on a business day (and otherwise, on the immediately succeeding business day), one business day after being sent to the recipient by reputable overnight courier service (charges prepaid) or three business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to each Purchaser at the address indicated on the SCHEDULE OF PURCHASERS and to the Company at the address indicated below: Rural Cellular Corporation 3905 Dakota Street SW Alexandria, Minnesota 56308 Attention: Chief Executive Officer Telephone: (320) 762-2000 Telecopy: (320) 808-2120 WITH COPIES TO: Moss & Barnett 4800 Norwest Center 90 South 7th Street Minneapolis, Minnesota 55402-4129 Attention: Richard Kelber, Esq. Telephone: (612) 347-0300 Telecopy: (612) 339-6686 Mayer, Brown & Platt 1675 Broadway New York, New York 10019 Attention: Mark S. Wojciechowski, Esq. Telephone: (212) 506-2500 Telecopy: (212) 262-1910 or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. * * * * * - 26 - IN WITNESS WHEREOF, the parties hereto have executed this Preferred Stock Purchase Agreement on the date first written above. COMPANY: RURAL CELLULAR CORPORATION By: /s/ Wesley E. Schultz --------------------------------------------- Name: Wesley E. Schultz ------------------------------------------- Its: Sr. Vice President and CFO ------------------------------------------- PURCHASERS: MADISON DEARBORN CAPITAL PARTNERS III, L.P. By Madison Dearborn Partners III, L.P., its General Partner By Madison Dearborn Partners, LLC, its General Partner By: /s/ Paul J. Finnegan --------------------------------------------- Name: Paul J. Finnegan ------------------------------------------- Its Managing Director MADISON DEARBORN SPECIAL EQUITY III, L.P. By Madison Dearborn Partners III, L.P., its General Partner By Madison Dearborn Partners, LLC, its General Partner By: /s/ Paul J. Finnegan --------------------------------------------- Name: Paul J. Finnegan ------------------------------------------- Its Managing Director SPECIAL ADVISORS FUND I, LLC By Madison Dearborn Partners III, L.P., its Manager By Madison Dearborn Partners, LLC, its General Partner By: /s/ Paul J. Finnegan --------------------------------------------- Name: Paul J. Finnegan ------------------------------------------- Its Managing Director (Continuation of Signature Page to Preferred Stock Purchase Agreement) BOSTON VENTURES LIMITED PARTNERSHIP V By Boston Ventures Company V, L.L.C. its General Partner By: /s/ Anthony J. Bolland --------------------------------------------- Name: Anthony J. Bolland ------------------------------------------- Its: Managing Director -------------------------------------------- TORONTO DOMINION INVESTMENTS, INC. By: /s/ Martha L. Gariepy --------------------------------------------- Name: Martha L. Gariepy ------------------------------------------- Its Vice President (Continuation of Signature Page to Preferred Stock Purchase Agreement) SCHEDULE OF PURCHASERS
Total No. of Purchase Shares Price of for Names and Preferred Preferred ADDRESSES STOCK STOCK --------- --------- --------- Madison Dearborn Capital Partners III, L.P. 53,658.55 $53,658,550 Three First National Plaza, Suite 3800 Chicago, Illinois 60670 Attention: Paul J. Finnegan James H. Kirby Telephone: (312) 895-1000 Telecopy: (312) 895-1001 Madison Dearborn Special Equity III, L.P. 1,191.45 $1,191,450 Three First National Plaza, Suite 3800 Chicago, Illinois 60670 Attention: Paul J. Finnegan James H. Kirby Telephone: (312) 895-1000 Telecopy: (312) 895-1001 Special Advisors Fund I, L.P. 150 $150,000 Three First National Plaza, Suite 3800 Chicago, Illinois 60670 Attention: Paul J. Finnegan James H. Kirby Telephone: (312) 895-1000 Telecopy: (312) 895-1001 EACH WITH A COPY TO: Kirkland & Ellis 200 East Randolph Drive, Suite 5400 Chicago, Illinois 60601 Attention: Edward T. Swan Telephone: (312) 861-2000 Telecopy: (312) 861-2200 Boston Ventures Limited Partnership V 36,666.67 $36,666,670 One Federal Street Boston, MA 02110 Attention: John Hunt Telephone: (617) 350-1599 Telecopy: (617) 350-1574 Toronto Dominion Investments, Inc. 18,333.33 $18,333,330 909 Fannin, Suite 1700 Houston, TX 77010 Attention: Martha Gariepy Telephone: (713) 653-8225 Telecopy: (713) 652-2647 WITH A COPY TO: TD Capital 31 West 52nd Street New York, NY 10019-6101 Attention: Chris Shipman Telephone: (212) 827-7733 Telecopy: (212) 974-8429 -------------- ------------- TOTAL 110,000 $110,000,000
LIST OF EXHIBITS Exhibit A - Certificate of Designation Exhibit B - Articles of Incorporation Exhibit C - Company's Bylaws Exhibit D - Registration Agreement Exhibit E - Acquisition Agreement Exhibit F - Senior Loan Agreement Exhibit G - Bridge Financing Agreement Exhibit H - Class T Preferred Stock Agreement Exhibit I - Opinion of Moss & Barnett Exhibit J - Opinion of Mayer, Brown & Platt Exhibit K - Opinion of Lukas, Nace, Gutierrez & Sachs LIST OF DISCLOSURE SCHEDULES Affiliated Transactions Schedule Capitalization Schedule Subsidiary Schedule Licenses Schedule Potential Revocations of Licenses Schedule Litigation Schedule Contingent Liabilities Schedule EX-4.2(B) 8 EXHIBIT 4.2(B) Exhibit 4.2(b) CERTIFICATE OF DESIGNATION OF VOTING POWER, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL AND OTHER SPECIAL RIGHTS AND QUALIFICATIONS, LIMITATIONS AND RESTRICTIONS OF CLASS M REDEEMABLE VOTING CONVERTIBLE PREFERRED STOCK OF RURAL CELLULAR CORPORATION Pursuant to Section 302A.401 of the Minnesota Business Corporation Act Rural Cellular Corporation, a Minnesota corporation (the "Corporation"), certifies that pursuant to the authority contained in Article 3.03 of its Articles of Incorporation, as amended (the "Articles of Incorporation"), and in accordance with the provisions of Sections 302A.401 and 302A.239 of the Minnesota Business Corporation Act, the Board of Directors of the Corporation (the "Board of Directors"), pursuant to minutes of action effective March 23, 2000, duly approved and adopted the following resolution which resolution remains in full force and effect on the date hereof: RESOLVED, that pursuant to the authority vested in the Board of Directors by the Articles of Incorporation, the Board of Directors does hereby designate, create, authorize and provide for the issuance of preferred stock having a par value of $.01 per share, which shall be designated as Class M Redeemable Voting Convertible Preferred Stock Preferred Stock, consisting of 110,000 shares, and shall have the voting powers, preferences and relative participating, optional and other special rights, and qualifications, limitations, and restrictions thereon as follows: Section 1. Dividends. 1A. General Obligation. When and as declared by the Corporation's Board of Directors and to the extent permitted under the laws of Minnesota, the Corporation shall pay preferential dividends in cash to the holders of the Class M Redeemable Voting Convertible Preferred Stock (the "Class M Preferred Stock") as provided in this Section 1. Except as otherwise provided herein, dividends on each share of the Class M Preferred Stock (a "Share") shall accrue on a daily basis at the rate of 8% per annum on the sum of the Liquidation Value thereof plus all Accumulated Dividends (as defined in Section 1B) thereon from and including the date of issuance of such Share to and including the first to occur of (i) the date on which the Liquidation Value of such Share (plus all accrued and unpaid dividends thereon) is paid to the holder thereof in connection with the liquidation of the Corporation or the redemption of such Share by the Corporation, (ii) the date on which such Share is converted into shares of Conversion Stock hereunder or (iii) the date on which such Share is otherwise acquired by the Corporation. Such dividends shall accrue whether or not they have been declared and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends. The date on which the Corporation initially issues any Share shall be deemed to be its "date of issuance" regardless of the number of times transfer of such Share is made on the stock records maintained by or for the Corporation and regardless of the number of certificates which may be issued to evidence such Share. 1B. Dividend Reference Dates. To the extent not paid on March 31, June 30, September 30 and December 31 of each year, beginning June 30, 2000 (the "Dividend Reference Dates"), all dividends which have accrued on each Share outstanding during the three-month period (or other period in the case of the initial Dividend Reference Date) ending upon each such Dividend Reference Date shall be accumulated (and shall be referred to herein as "Accumulated Dividends") and shall remain Accumulated Dividends with respect to such Share until paid to the holder thereof. 1C. Distribution of Partial Dividend Payments. Except as otherwise provided herein, if at any time the Corporation pays less than the total amount of dividends then accrued with respect to the Class M Preferred Stock, such payment shall be distributed pro rata among the holders thereof based upon the aggregate accrued but unpaid dividends on the Shares held by each such holder. 1D. Participating Dividends. In the event that the Corporation declares or pays any dividends upon the Common Stock (whether payable in cash, securities or other property) other than dividends payable solely in shares of Common Stock, the Corporation shall also declare and pay to the holders of the Class M Preferred Stock at the same time that it declares and pays such dividends to the holders of the Common Stock, the dividends which would have been declared and paid with respect to the Common Stock issuable upon conversion of the Class M Preferred Stock had all of the outstanding Class M Preferred Stock been converted immediately prior to the record date for such dividend, or if no record date is fixed, the date as of which the record holders of Common Stock entitled to such dividends are to be determined. Section 2. Liquidation. Upon any liquidation, dissolution or winding-up of the Corporation (whether voluntary or involuntary) (a "Liquidation Event"), each holder of Class M Preferred Stock shall be entitled to be paid, before any distribution or payment is made upon any Junior Securities, an amount in cash equal to the greater of (i) the aggregate Liquidation Value of all Shares held by such holder -2- (plus all accrued and unpaid dividends thereon) and (ii) the aggregate amount that would be paid in connection with such Liquidation Event with respect to the Common Stock issuable upon conversion of all Shares held by such holder had all of the outstanding Class M Preferred Stock been converted immediately prior to such Liquidation Event, and the holders of Class M Preferred Stock shall not be entitled to any further payment. If upon any such Liquidation Event the Corporation's assets to be distributed among the holders of the Class M Preferred Stock are (after satisfaction of the aggregate liquidation preference of all Senior Preferred Securities pursuant to the terms of the Senior Preferred Securities Agreements as in effect on the date of the Purchase Agreement) insufficient to permit payment to such holders of the aggregate amount which they are entitled to be paid under this Section 2, then the entire assets available to be distributed to the Corporation's stockholders (after satisfaction of the aggregate liquidation preference of all Senior Preferred Securities pursuant to the terms of the Senior Preferred Securities Agreements as in effect on the date of the Purchase Agreement) shall be distributed pro rata among such holders based upon the aggregate Liquidation Value (plus all accrued and unpaid dividends) of the Class M Preferred Stock held by each such holder. Not less than 60 days prior to the payment date stated therein, the Corporation shall mail written notice of any such Liquidation Event to each record holder of Class M Preferred Stock, setting forth in reasonable detail the amount of proceeds to be paid with respect to each Share and each share of Common Stock in connection with such Liquidation Event. Neither the consolidation or merger of the Corporation into or with any other entity or entities (whether or not the Corporation is the surviving entity), nor the sale or transfer by the Corporation of all or any part of its assets, nor the reduction of the capital stock of the Corporation nor any other form of recapitalization or reorganization affecting the Corporation shall be deemed to be a Liquidation Event within the meaning of this Section 2. Section 3. Redemptions. 3A. Scheduled Redemption. On April 3, 2012 (the "Scheduled Redemption Date"), the Corporation shall redeem all Shares of Class M Preferred Stock at a price per Share equal to the Liquidation Value thereof (plus all accrued and unpaid dividends thereon) (the "Scheduled Redemption"). 3B. Optional Redemptions. (i) At any time and from time to time after April 3, 2005, the Corporation may redeem all or any portion of the Shares of Class M Preferred Stock then outstanding. Upon any such redemption, the Corporation shall pay a price per Share equal to the Liquidation Value thereof (plus all accrued and unpaid dividends thereon). (ii) If, at any time and from time to time after April 3, 2003, the closing price for the Corporation's Class A Common Stock on the principal securities market on which it is traded has equaled or exceeded 175% of the Class M Preferred Stock's Conversion Price for the 30 consecutive trading days immediately preceding the notice delivered pursuant to paragraph 3F, then the -3- Corporation may redeem all or any portion of the Shares of Class M Preferred Stock then outstanding. Upon any such redemption, the Corporation shall pay a price per Share equal to the Liquidation Value thereof (plus all accrued and unpaid dividends thereon). (iii) If at any time less than $25 million of Class M Preferred Stock remains outstanding (determined based on the then aggregate Liquidation Value thereof plus all accrued and unpaid dividends thereon), then the Corporation may at any time redeem all, but not less than all, of the Shares of Class M Preferred Stock then outstanding. Upon any such redemption, the Corporation shall pay a price per Share equal to the Liquidation Value thereof (plus all accrued and unpaid dividends thereon). 3C. Optional Clawback Redemption. (i) During the 90-day period commencing on April 3, 2000, the Corporation may at any time and from time to time redeem all or any portion of up to an aggregate of $25 million of the Shares of Class M Preferred Stock then outstanding (determined based on the Liquidation Value thereof, without regard to any accrued dividends); provided that after any such redemption under this paragraph 3C, at least $110 million of the Shares of Class M Preferred Stock must remain outstanding (determined based on the Liquidation Value thereof, without regard to any accrued dividends). (ii) For any redemption under this paragraph 3C, the redemption price paid by the Corporation for the repurchased Shares shall be the sum of (x) 102% of the Liquidation Value thereof plus (y) accrued and unpaid dividends thereon; provided that, solely for purposes of this subparagraph 3C(ii), dividends shall be deemed to have accrued from the date of issuance of such shares at an annual rate of 600 basis points over the three-month LIBOR (determined as of the date of issuance of such Shares). 3D. Change of Control Put Redemptions. (i) Upon the occurrence of a Change of Control, the Corporation shall be required to make an offer to each holder of shares of Class M Preferred Stock to redeem all or any part of such holder's shares of Class M Preferred Stock at a cash purchase price equal to the greater of (a) 101% of the Liquidation Value thereof, plus accrued and unpaid dividends thereon or (b) the Fair Market Value of the total consideration that the holder of Class M Preferred Stock to be redeemed would have received in connection with such Change of Control had such holder converted its Class M Preferred Stock to be redeemed into Class A Common Stock immediately prior to such Change of Control (the "Change of Control Payment"). (ii) Within 30 days following any Change of Control, the Corporation shall mail a notice to such holder stating: (A) that the offer to redeem is being made pursuant to this Certificate of Designation and that, to the extent lawful, all shares of Class M Preferred Stock tendered will be -4- accepted for payment; (B) the purchase price and the purchase date, which shall be no earlier than 30 days nor later than 40 days from the date such notice is mailed (the "Change of Control Payment Date"); (C) that any shares of Class M Preferred Stock not tendered will continue to accrue dividends in accordance with the terms of this Certificate of Designation; (D) that, unless the Corporation defaults in the payment of the Change of Control Payment, all shares of Class M Preferred Stock accepted for payment pursuant to the offer to redeem shall cease to accrue dividends on and after the Change of Control Payment Date and all rights of the holders of such Class M Preferred Stock shall terminate on and after the Change of Control Payment Date; and (E) a description of the procedures to be followed by such holder in order to have its shares of Class M Preferred Stock repurchased. (iii) On the Change of Control Payment Date, (A) the Corporation shall (1) accept for payment shares of Class M Preferred Stock tendered pursuant to the offer to redeem and (2) promptly mail to each holder of shares Class M Preferred Stock so accepted payment in an amount equal to the Change of Control Payment for such shares and (B) unless the Corporation defaults in the payment for the shares of Class M Preferred Stock tendered pursuant to the Offer to Purchase, dividends shall cease to accrue with respect to the shares of Class M Preferred Stock tendered and all rights of holders of such tendered shares shall terminate, except for the right to receive payment therefor, on the Change of Control Payment Date. The Corporation shall publicly announce the results of the offer to redeem on or as soon as practicable after the Change of Control Payment Date. (iv) The Corporation shall comply with Rule 14e-1 under the Securities Exchange Act of 1934, as amended, and any securities laws and regulations to the extent such laws and regulations are applicable to the repurchase of shares of the Class M Preferred Stock in connection with a Change of Control. 3E. Redemption Payments. For each Share which is to be redeemed hereunder, the Corporation shall be obligated on the Redemption Date to pay to the holder thereof (upon surrender by such holder at the Corporation's principal office of the certificate representing such Share) an amount in cash equal to the Liquidation Value of such Share (plus all accrued and unpaid dividends thereon) (or, in the case of a redemption pursuant to paragraph 3C or 3D, the redemption price specified in such paragraph); provided that, in the case of a scheduled redemption pursuant to paragraph 3A above, the Corporation may, at its option, pay the redemption price for such redemption in cash or in shares of Class A Common Stock (valued at the Market Price for such Class A Common Stock). If the funds of the Corporation legally available for redemption of Shares on any Redemption Date are insufficient to redeem the total number of Shares to be redeemed on such date, those funds which are legally available shall be used to redeem the maximum possible number of Shares pro rata among the holders of the Shares to be redeemed based upon the aggregate Liquidation Value of such Shares held by each such holder (plus all accrued and unpaid dividends thereon). At any time thereafter when additional funds of the Corporation are legally available for the redemption of Shares, such funds shall immediately be used to redeem the balance of the Shares -5- which the Corporation has become obligated to redeem on any Redemption Date but which it has not redeemed. 3F. Notice of Redemption. Except as otherwise provided herein, the Corporation shall mail written notice of each redemption of any Class M Preferred Stock to each record holder thereof not more than 60 nor less than 30 days prior to the date on which such redemption is to be made. Upon mailing any notice of redemption which relates to a redemption at the Corporation's option, the Corporation shall become obligated to redeem the total number of Shares specified in such notice at the time of redemption specified therein. In case fewer than the total number of Shares represented by any certificate are redeemed, a new certificate representing the number of unredeemed Shares shall be issued to the holder thereof without cost to such holder as soon as practicable after surrender of the certificate representing the redeemed Shares. 3G. Determination of the Number of Each Holder's Shares to be Redeemed. Except as otherwise provided herein, the number of Shares of Class M Preferred Stock to be redeemed from each holder thereof in redemptions by the Corporation under this Section 3 shall be the number of Shares determined by multiplying the total number of Shares of Class M Preferred Stock to be redeemed times a fraction, the numerator of which shall be the total number of Shares then held by such holder and the denominator of which shall be the total number of Shares then outstanding. 3H. Dividends After Redemption. No Share shall be entitled to any dividends accruing after the date on which the Liquidation Value of such Share (plus all accrued and unpaid dividends thereon) (or, in the case of a redemption pursuant to paragraph 3C or 3D, the redemption price specified in such paragraph) is paid to the holder of such Share. On such date, all rights of the holder of such Share shall cease, and such Share shall no longer be deemed to be issued and outstanding. 3I. Redeemed or Otherwise Acquired Shares. Any Shares which are redeemed or otherwise acquired by the Corporation shall be canceled and retired to authorized but unissued shares and shall not be reissued, sold or transferred. 3J. Other Redemptions or Acquisitions. The Corporation shall not, nor shall it permit any Subsidiary to, redeem or otherwise acquire any Shares of Class M Preferred Stock, except as expressly authorized herein or pursuant to a purchase offer made pro rata to all holders of Class M Preferred Stock on the basis of the number of Shares owned by each such holder. Section 4. Voting Rights. 4A. Election of Directors. In the election of directors of the Corporation, the holders of the Class M Preferred Stock, voting separately as a class to the exclusion of all other classes of the Corporation's capital stock and with each Share of Class M Preferred Stock entitled -6- to one vote, shall be entitled at an annual or special meeting of the shareholders to elect up to two directors to serve as members of the Corporation's Board of Directors, each until his successor is duly elected by the holders of the Class M Preferred Stock, subject to prior death, resignation, retirement, disqualification, or removal or termination of term of office in accordance with the terms of the Purchase Agreement. The directors so elected shall be in addition to the directors elected by the holders of the Common Stock of the Corporation, and shall increase the maximum number of directors otherwise permitted pursuant to the Corporation's bylaws. Any directors so elected shall not be divided into classes. Said right of election, term of office, filling vacancies and other features of such directorships shall be governed by and are subject to the applicable terms and conditions set forth in the Purchase Agreement, which contains, inter alia, provisions which constitute a voting agreement among the holders of the Class M Preferred Stock. The provisions of paragraph 3C of the Purchase Agreement are hereby incorporated into this Certificate of Designation by this reference as though fully set forth herein. The Corporation shall retain a copy of the Purchase Agreement at its principal executive office. 4B. Other Voting Rights. The holders of the Class M Preferred Stock shall be entitled to notice of all shareholders' meetings in accordance with the Corporation's bylaws, and, except as otherwise required by applicable law, the holders of the Class M Preferred Stock shall be entitled to vote on all matters submitted to the shareholders for a vote together with the holders of the Class A Common Stock voting together as a single class with each share of Class A Common Stock entitled to one vote per share and each Share of Class M Preferred Stock entitled to one vote for each share of Class A Common Stock issuable upon conversion of the Class M Preferred Stock as of the record date for such vote or, if no record date is specified, as of the date of such vote. Section 5. Conversion. 5A. Conversion Procedure. (i) At any time and from time to time, any holder of Class M Preferred Stock may convert all or any portion of the Class M Preferred Stock (including any fraction of a Share) held by such holder into a number of shares of Conversion Stock computed by multiplying the number of Shares to be converted by $1,000.00 and dividing the result by the Conversion Price then in effect. (ii) Except as otherwise provided herein, each conversion of Class M Preferred Stock shall be deemed to have been effected as of the close of business on the date on which the certificate or certificates representing the Class M Preferred Stock to be converted have been surrendered for conversion at the principal office of the Corporation. At the time any such conversion has been effected, the rights of the holder of the Shares converted as a holder of Class M Preferred Stock shall cease and the Person or Persons in whose name or names any certificate or certificates for shares of Conversion Stock are to be issued upon such conversion shall be deemed to have become the holder or holders of record of the shares of Conversion Stock represented thereby. -7- (iii) The conversion rights of any Share subject to redemption hereunder shall terminate on the Redemption Date for such Share unless the Corporation has failed to pay to the holder thereof the Liquidation Value of such Share (plus all accrued and unpaid dividends thereon) (or, in the case of a redemption pursuant to paragraph 3C or 3D, the redemption price specified in such paragraph). (iv) Notwithstanding any other provision hereof, if a conversion of Class M Preferred Stock is to be made in connection with a Public Offering, a Change of Control or other transaction affecting the Corporation, the conversion of any Shares of Class M Preferred Stock may, at the election of the holder thereof, be conditioned upon the consummation of such transaction, in which case such conversion shall not be deemed to be effective until such transaction has been consummated. (v) As soon as practicable after a conversion has been effected, the Corporation shall deliver to the converting holder: (a) a certificate or certificates representing the number of shares of Conversion Stock issuable by reason of such conversion in such name or names and such denomination or denominations as the converting holder has specified; (b) payment in an amount equal to the amount payable under subparagraph (ix) below with respect to such conversion; and (c) a certificate representing any Shares of Class M Preferred Stock which were represented by the certificate or certificates delivered to the Corporation in connection with such conversion but which were not converted. (vi) The issuance of certificates for shares of Conversion Stock upon conversion of Class M Preferred Stock shall be made without charge to the holders of such Class M Preferred Stock for any issuance tax in respect thereof or other cost incurred by the Corporation in connection with such conversion and the related issuance of shares of Conversion Stock; provided, however, that the Corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue or delivery of shares of Common Stock in a name other than that of the holder of the Class M Preferred Stock to be converted and that no such issue or delivery shall be made unless and until the Person requesting such issue or delivery has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid. Upon conversion of each Share of Class M Preferred Stock, the Corporation shall take all such actions as are necessary in order to insure that the Conversion Stock issuable with respect to such conversion shall be validly issued, fully paid and nonassessable, free and clear of all taxes, liens, charges and encumbrances with respect to the issuance thereof. -8- (vii) The Corporation shall not close its books against the transfer of Class M Preferred Stock or of Conversion Stock issued or issuable upon conversion of Class M Preferred Stock in any manner which interferes with the timely conversion of Class M Preferred Stock. The Corporation shall assist and cooperate with any holder of Shares required to make any governmental filings or obtain any governmental approval prior to or in connection with any conversion of Shares hereunder (including, without limitation, making any filings required to be made by the Corporation); provided, however, that any such holder of Shares requesting such assistance or cooperation shall bear all expenses, including reasonable attorney fees, incurred by the Corporation if such filings or approvals are not required to be made by the Corporation. (viii) The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Conversion Stock, solely for the purpose of issuance upon the conversion of the Class M Preferred Stock, the number of shares of Conversion Stock issuable upon the conversion of all outstanding Class M Preferred Stock. All shares of Conversion Stock which are so issuable shall, when issued, be duly and validly issued, fully paid and nonassessable and free from all taxes, liens and charges. The Corporation shall take all such actions as may be necessary to assure that all such shares of Conversion Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Conversion Stock may be listed (except for official notice of issuance which shall be immediately delivered by the Corporation upon each such issuance). The Corporation shall not take any action which would cause the number of authorized but unissued shares of Conversion Stock to be less than the number of such shares required to be reserved hereunder for issuance upon conversion of the Class M Preferred Stock. (ix) If any fractional interest in a share of Conversion Stock would, except for the provisions of this subparagraph, be delivered upon any conversion of the Class M Preferred Stock, the Corporation, in lieu of delivering the fractional share therefor, shall pay an amount to the holder thereof equal to the Market Price of such fractional interest as of the date of conversion. 5B. Conversion Price. (i) The initial Conversion Price shall be $53.00. In order to prevent dilution of the conversion rights granted under this Section 5, the Conversion Price shall be subject to adjustment from time to time pursuant to this paragraph 5B. (ii) If and whenever the Corporation issues or sells, or in accordance with paragraph 5C is deemed to have issued or sold, any shares of its Common Stock for a consideration per share less than the Market Price of the Common Stock determined as of the date of such issue or sale, then immediately upon such issue or sale or deemed issue or sale the Conversion Price shall be reduced to the Conversion Price determined by multiplying the Conversion Price in effect immediately prior to such issue or sale by a fraction, the numerator of which shall be the sum of (1) the number of shares of Common Stock Deemed Outstanding immediately prior to such issue -9- or sale multiplied by the Market Price of the Common Stock determined as of the date of such issuance or sale, plus (2) the consideration, if any, received by the Corporation upon such issue or sale, and the denominator of which shall be the product derived by multiplying the Market Price of the Common Stock by the number of shares of Common Stock Deemed Outstanding immediately after such issue or sale. (iii) Notwithstanding the foregoing, there shall be no adjustment to the Conversion Price hereunder with respect to issuances of Common Stock (or of securities exchangeable or exercisable for or convertible into Common Stock) (A) to officers, directors, employees, or consultants of the Corporation and its Subsidiaries pursuant to compensation arrangements approved by the Corporation's board of directors, (B) to suppliers, lessors, or lenders of the Corporation and its Subsidiaries issued in the ordinary course of business in connection with (as applicable) their supply arrangements or lease arrangements with, or loans to, the Corporation or any of its Subsidiaries, or (C) upon the conversion of any Convertible Securities (including the Class M Preferred Stock and Class T Preferred Stock). 5C. Effect on Conversion Price of Certain Events. For purposes of determining the adjusted Conversion Price under paragraph 5B, the following shall be applicable: (i) Issuance of Rights or Options. If the Corporation in any manner grants or sells any Options and the price per share for which Common Stock is issuable upon the exercise of such Options, or upon conversion or exchange of any Convertible Securities issuable upon exercise of such Options, is less than the Market Price of the Common Stock determined as of such time, then the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon conversion or exchange of the total maximum amount of such Convertible Securities issuable upon the exercise of such Options shall be deemed to be outstanding and to have been issued and sold by the Corporation at the time of the granting or sale of such Options for such price per share. For purposes of this paragraph, the "price per share for which Common Stock is issuable" shall be determined by dividing (A) the total amount, if any, received or receivable by the Corporation as consideration for the granting or sale of such Options, plus the minimum aggregate amount of additional consideration payable to the Corporation upon exercise of all such Options, plus in the case of such Options which relate to Convertible Securities, the minimum aggregate amount of additional consideration, if any, payable to the Corporation upon the issuance or sale of such Convertible Securities and the conversion or exchange thereof, by (B) the total maximum number of shares of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of all such Convertible Securities issuable upon the exercise of such Options. No further adjustment of the Conversion Price shall be made when Convertible Securities are actually issued upon the exercise of such Options or when Common Stock is actually issued upon the exercise of such Options or the conversion or exchange of such Convertible Securities. (ii) Issuance of Convertible Securities. If the Corporation in any manner issues or sells any Convertible Securities and the price per share for which Common Stock is issuable upon -10- conversion or exchange thereof is less than the Market Price of the Common Stock determined as of such time, then the maximum number of shares of Common Stock issuable upon conversion or exchange of such Convertible Securities shall be deemed to be outstanding and to have been issued and sold by the Corporation at the time of the issuance or sale of such Convertible Securities for such price per share. For the purposes of this paragraph, the "price per share for which Common Stock is issuable" shall be determined by dividing (A) the total amount received or receivable by the Corporation as consideration for the issue or sale of such Convertible Securities, plus the minimum aggregate amount of additional consideration, if any, payable to the Corporation upon the conversion or exchange thereof, by (B) the total maximum number of shares of Common Stock issuable upon the conversion or exchange of all such Convertible Securities. No further adjustment of the Conversion Price shall be made when Common Stock is actually issued upon the conversion or exchange of such Convertible Securities, and if any such issue or sale of such Convertible Securities is made upon exercise of any Options for which adjustments of the Conversion Price had been or are to be made pursuant to other provisions of this Section 5, no further adjustment of the Conversion Price shall be made by reason of such issue or sale. (iii) Change in Option Price or Conversion Rate. If the purchase price provided for in any Options, the additional consideration, if any, payable upon the conversion or exchange of any Convertible Securities or the rate at which any Convertible Securities are convertible into or exchangeable for Common Stock changes at any time, the Conversion Price in effect at the time of such change shall be immediately adjusted to the Conversion Price which would have been in effect at such time had such Options or Convertible Securities still outstanding provided for such changed purchase price, additional consideration or conversion rate, as the case may be, at the time initially granted, issued or sold; provided that if such adjustment would result in an increase of the Conversion Price then in effect, such adjustment shall not be effective until 30 days after written notice thereof has been given by the Corporation to all holders of the Class M Preferred Stock. For purposes of paragraph 5C, if the terms of any Option or Convertible Security which was outstanding as of the date of issuance of the Class M Preferred Stock are changed in the manner described in the immediately preceding sentence, then such Option or Convertible Security and the Common Stock deemed issuable upon exercise, conversion or exchange thereof shall be deemed to have been issued as of the date of such change; provided that no such change shall at any time cause the Conversion Price hereunder to be increased. (iv) Treatment of Expired Options and Unexercised Convertible Securities. Upon the expiration of any Option or the termination of any right to convert or exchange any Convertible Security without the exercise of any such Option or right, the Conversion Price then in effect hereunder shall be adjusted immediately to the Conversion Price which would have been in effect at the time of such expiration or termination had such Option or Convertible Security, to the extent outstanding immediately prior to such expiration or termination, never been issued; provided that if such expiration or termination would result in an increase in the Conversion Price then in effect, such increase shall not be effective until 30 days after written notice thereof has been given to all holders of the Class M Preferred Stock. For purposes of paragraph 5C, the expiration or termination -11- of any Option or Convertible Security which was outstanding as of the date of issuance of the Class M Preferred Stock shall not cause the conversion Price hereunder to be adjusted unless, and only to the extent that, a change in the terms of such Option or Convertible Security caused it to be deemed to have been issued after the date of issuance of the Class M Preferred Stock. (v) Calculation of Consideration Received. If any Common Stock, Option or Convertible Security is issued or sold or deemed to have been issued or sold for cash, the consideration received therefor shall be deemed to be the amount received by the Corporation therefor (net of discounts, commissions and related expenses). If any Common Stock, Option or Convertible Security is issued or sold for a consideration other than cash, the amount of the consideration other than cash received by the Corporation shall be the fair value of such consideration, except where such consideration consists of securities, in which case the amount of consideration received by the Corporation shall be the Market Price thereof as of the date of receipt. If any Common Stock, Option or Convertible Security is issued to the owners of the non-surviving entity in connection with any merger in which the Corporation is the surviving corporation, the amount of consideration therefor shall be deemed to be the fair value of such portion of the net assets and business of the non-surviving entity as is attributable to such Common Stock, Option or Convertible Security, as the case may be. The fair value of any consideration other than cash and securities shall be determined in the reasonable good faith judgment of the board of directors of the Corporation. (vi) Integrated Transactions. In case any Option is issued in connection with the issue or sale of other securities of the Corporation, together comprising one integrated transaction in which no specific consideration is allocated to such Option by the parties thereto, the Option shall be deemed to have been issued for a consideration of $.01. (vii) Treasury Shares. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Corporation or any Subsidiary, and the disposition of any shares so owned or held shall be considered an issue or sale of Common Stock. (viii) Record Date. If the Corporation takes a record of the holders of Common Stock for the purpose of entitling them (a) to receive a dividend or other distribution payable in Common Stock, Options or in Convertible Securities or (b) to subscribe for or purchase Common Stock, Options or Convertible Securities, then such record date shall be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or upon the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be. 5D. Subdivision or Combination of Common Stock. If the Corporation at any time subdivides (by any stock split, stock dividend, recapitalization or otherwise) one or more classes of its outstanding shares of Common Stock into a greater number of shares, the Conversion -12- Price in effect immediately prior to such subdivision shall be proportionately reduced, and if the Corporation at any time combines (by reverse stock split or otherwise) one or more classes of its outstanding shares of Common Stock into a smaller number of shares, the Conversion Price in effect immediately prior to such combination shall be proportionately increased. 5E. Reorganization, Reclassification, Consolidation, Merger or Sale. Any recapitalization, reorganization, reclassification, consolidation, merger, sale of all or substantially all of the Corporation's assets or other transaction, in each case which is effected in such a manner that the holders of Common Stock are entitled to receive (either directly or upon subsequent liquidation) stock, securities or assets with respect to or in exchange for Common Stock, is referred to herein as an "Organic Change." Prior to the consummation of any Organic Change, the Corporation shall make appropriate provisions (in form and substance satisfactory to the holders of a majority of the Class M Preferred Stock then outstanding) to insure that each of the holders of Class M Preferred Stock shall thereafter have the right to acquire and receive, in lieu of or in addition to (as the case may be) the shares of Conversion Stock immediately theretofore acquirable and receivable upon the conversion of such holder's Class M Preferred Stock, such shares of stock, securities or assets as such holder would have received in connection with such Organic Change if such holder had converted its Class M Preferred Stock immediately prior to such Organic Change. In each such case, the Corporation shall also make appropriate provisions (in form and substance satisfactory to the holders of a majority of the Class M Preferred Stock then outstanding) to insure that the provisions of this Section 5 and Section 6 hereof shall thereafter be applicable to the Class M Preferred Stock (including, in the case of any such consolidation, merger or sale in which the successor entity or purchasing entity is other than the Corporation, an immediate adjustment of the Conversion Price, and a corresponding immediate adjustment in the number of shares of Conversion Stock acquirable and receivable upon conversion of Class M Preferred Stock, if the value so reflected is less than the Market Price of the Common Stock determined as of the date of such consolidation, merger or sale). The Corporation shall not effect any such consolidation, merger or sale, unless prior to the consummation thereof, the successor entity (if other than the Corporation) resulting from consolidation or merger or the entity purchasing such assets assumes by written instrument (in form and substance satisfactory to the holders of a majority of the Class M Preferred Stock then outstanding), the obligation to deliver to each such holder such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holder may be entitled to acquire. 5F. Certain Events. If any event occurs of the type contemplated by the provisions of this Section 5 but not expressly provided for by such provisions (including, without limitation, the granting of stock appreciation rights, phantom stock rights or other rights with equity features), then the Corporation's Board of Directors shall make an appropriate adjustment in the Conversion Price so as to protect the rights of the holders of Class M Preferred Stock; provided that no such adjustment shall increase the Conversion Price as otherwise determined pursuant to this Section 5 or decrease the number of shares of Conversion Stock issuable upon conversion of each Share of Class M Preferred Stock. -13- 5G. Notices. (i) Immediately upon any adjustment of the Conversion Price, the Corporation shall give written notice thereof to all holders of Class M Preferred Stock, setting forth in reasonable detail and certifying the calculation of such adjustment. (ii) The Corporation shall give written notice to all holders of Class M Preferred Stock as specified in Section 2 for any liquidation and in paragraph 3D or paragraph 3F for any redemption. 5H. No Avoidance. If the Corporation shall enter into any transaction for the purpose of avoiding the application of the provisions of this Section 5, the benefits of such provisions shall nevertheless apply and be preserved. Section 6. Events of Noncompliance. 6A. Definition. An Event of Noncompliance shall have occurred if: (i) the Corporation fails to make any redemption payment with respect to the Class M Preferred Stock which it is required to make hereunder, whether or not such payment is legally permissible or is prohibited by any agreement to which the Corporation is subject; (ii) the Corporation materially breaches or otherwise fails to perform or observe any other covenant or agreement set forth herein or in the Purchase Agreement, and such breach or failure continues for a period of 30 days; or (iii) the Corporation or any Subsidiary makes an assignment for the benefit of creditors or admits in writing its inability to pay its debts generally as they become due; or an order, judgment or decree is entered adjudicating the Corporation or any Subsidiary bankrupt or insolvent; or any order for relief with respect to the Corporation or any Subsidiary is entered under the Federal Bankruptcy Code; or the Corporation or any Subsidiary petitions or applies to any tribunal for the appointment of a custodian, trustee, receiver or liquidator of the Corporation or any Subsidiary or of any substantial part of the assets of the Corporation or any Subsidiary, or commences any proceeding (other than a proceeding for the voluntary liquidation and dissolution of a Subsidiary) relating to the Corporation or any Subsidiary under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction; or any such petition or application is filed, or any such proceeding is commenced, against the Corporation or any Subsidiary and either (a) the Corporation or any such Subsidiary by any act indicates its approval thereof, consent thereto or acquiescence therein or (b) such petition, application or proceeding is not dismissed within 60 days. -14- 6B. Consequences of Events of Noncompliance. (i) If an Event of Noncompliance (other than an Event of Noncompliance of the type described in subparagraphs 6A(ii) or 6A(iii)) has occurred and is continuing, the holder or holders of a majority of the Class M Preferred Stock then outstanding may demand (by written notice delivered to the Corporation) immediate redemption of all or any portion of the Class M Preferred Stock owned by such holder or holders at a price per Share equal to the Liquidation Value thereof (plus all accrued and unpaid dividends thereon). The Corporation shall give prompt written notice of such election to the other holders of Class M Preferred Stock (but in any event within five days after receipt of the initial demand for redemption, and each such other holder may demand immediate redemption of all or any portion of such holder's Class M Preferred Stock by giving written notice thereof to the Corporation within seven days after receipt of the Corporation's notice. The Corporation shall redeem all Class M Preferred Stock as to which rights under this paragraph have been exercised within 15 days after receipt of the initial demand for redemption. (ii) If an Event of Noncompliance (other than an Event of Noncompliance of the type described in subparagraphs 6A(i) or 6A(ii)) has occurred, all of the Class M Preferred Stock then outstanding shall be subject to immediate redemption by the Corporation (without any action on the part of the holders of the Class M Preferred Stock) at a price per Share equal to the Liquidation Value thereof (plus all accrued and unpaid dividends thereon). The Corporation shall immediately redeem all Class M Preferred Stock upon the occurrence of such Event of Noncompliance. (iii) If any Event of Noncompliance exists, each holder of Class M Preferred Stock shall also have any other rights which such holder is entitled to under any contract or agreement at any time and any other rights which such holder may have pursuant to applicable law. -15- Section 7. Exchange of Shares. (i) The Corporation, at its option, may at any time exchange all or any portion of the Shares (including any fraction of a Share) of the Class M Preferred Stock (the "Exchange Option") for junior subordinated debentures (the "Exchange Debentures"); provided that before exercising the Exchange Option the Corporation will deliver to each holder of Class M Preferred Stock an opinion of legal counsel reasonably satisfactory to the holders of a majority of the Class M Preferred Stock that the exercise of the Exchange Option, in and of itself, will not trigger the recognition of any material income (including, without limitation, dividend income or original issue discount to be included in income in subsequent periods) by such holder for any U.S. federal or state income tax purpose. The Exchange Debentures shall mature on April 3, 2012, and shall have other terms, including but not limited to coupons or discounts equivalent to the dividends on the Class M Preferred Stock, put rights, redemption rights and options and convertibility into Class A Common Stock with anti-dilution protections, substantively equivalent to the terms herein, in the Purchase Agreement, the Registration Agreement and in the other agreements entered into by and among the Corporation and the holders of Class M Preferred Stock with respect to it. If at any time the Corporation exchanges less than all of the Shares outstanding, then such exchange shall be made ratably among the holders thereof based upon the aggregate Liquidation Value plus all accrued and unpaid dividends thereon of the Shares of each such holder and the aggregate Liquidation Value plus all accrued and unpaid dividends thereon of all Shares then issued and outstanding. (ii) The Corporation shall mail written notice of its proposed exercise of an Exchange Option to each holder of Class M Preferred Stock no more than 60 nor less than 30 days prior to the date on which such Exchange Option is to be made. (iii) Upon exercise of the Exchange Option, each holder of outstanding Shares shall receive Exchange Debentures in an aggregate principal amount equal to the Liquidation Value of all Shares held by such holder to be exchanged by the Corporation (together with all accrued and unpaid dividends thereon) as of the date such exchange is effective. The Exchange Debentures shall be duly executed and authenticated as of the date on which such exchange is effective. -16- Section 8. Registration of Transfer. The Corporation shall keep at its principal office a register for the registration of Class M Preferred Stock. Upon the surrender of any certificate representing Class M Preferred Stock at such place, the Corporation shall, at the request of the record holder of such certificate, execute and deliver (at the Corporation's expense) a new certificate or certificates in exchange therefor representing in the aggregate the number of Shares represented by the surrendered certificate. Each such new certificate shall be registered in such name and shall represent such number of Shares as is requested by the holder of the surrendered certificate and shall be substantially identical in form to the surrendered certificate, and dividends shall accrue on the Class M Preferred Stock represented by such new certificate from the date to which dividends have been fully paid on such Class M Preferred Stock represented by the surrendered certificate. Section 9. Replacement. Upon receipt of evidence reasonably satisfactory to the Corporation (an affidavit of the registered holder shall be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing Shares of Class M Preferred Stock, and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to the Corporation (provided that if the holder is a financial institution or other institutional investor its own agreement shall be satisfactory), or, in the case of any such mutilation upon surrender of such certificate, the Corporation shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the number of Shares of such class represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate, and dividends shall accrue on the Class M Preferred Stock represented by such new certificate from the date to which dividends have been fully paid on such lost, stolen, destroyed or mutilated certificate. Section 10. Definitions. "Acquisition" means the acquisition of substantially all of the cellular telephone operations of various subsidiaries of Triton Cellular Partners, L.P. pursuant to the Acquisition Agreement. "Acquisition Agreement" means that certain Asset Purchase Agreement, dated as of November 6, 1999, among the Corporation, Triton Cellular Partners, L.P., Triton Communications, L.L.C., Triton Cellular Alabama License Company, L.L.C. and certain of their affiliates. "Change of Control" means (a) any transaction or event (including, without limitation, any sale, transfer or issuance or series of sales, transfers and/or issuances of Common Stock by the Corporation or any holders thereof) which results in any Person or group of Persons (as the term "group" is used under the Securities Exchange Act of 1934), other than the holders of Common Stock and Class M Preferred Stock as of the date of the Purchase Agreement, acquiring -17- "beneficial ownership" (as that term is used under the Securities Exchange Act of 1934) of more than 50% of the Common Stock outstanding at the time of such transaction or event, or of capital stock of the Corporation possessing the voting power (under ordinary circumstances) to elect a majority of the Corporation's board of directors, or (b) (i) any sale or transfer of all or substantially all of the assets of the Corporation and its Subsidiaries on a consolidated basis (measured either by book value in accordance with generally accepted accounting principles consistently applied or by fair market value determined in the reasonable good faith judgment of the Corporation's board of directors) in any transaction or series of transactions (other than sales in the ordinary course of business) and (ii) any merger or consolidation to which the Corporation is a party, except for a merger in which the Corporation is the surviving corporation, the terms of the Class M Preferred Stock are not changed and the Class M Preferred Stock is not exchanged for cash, securities or other property, and after giving effect to such merger no Person or group of Persons (as the term "group" is used under the Securities Exchange Act of 1934), other than the holders of Common Stock and Class M Preferred Stock as of the date of the Purchase Agreement, has "beneficial ownership" (as that term is used under the Securities Exchange Act of 1934) of more than 50% of the outstanding Common Stock or of capital stock of the Corporation possessing the voting power (under ordinary circumstances) to elect a majority of the Corporation's board of directors. "Class T Preferred Stock" means up to $15 million aggregate liquidation value of the Corporation's Class T Convertible Preferred Stock, par value $.01 per share, issued to Telephone & Data Systems, Inc. pursuant to the Class T Preferred Stock Agreement in connection with the Acquisition. "Class T Preferred Stock Agreement" means that certain Recapitalization Agreement, dated as of October 31, 1999, by and between the Corporation and Telephone & Data Systems, Inc., as amended on December 6, 1999, as such agreement may be further amended or otherwise modified from time to time, the other agreements and instruments entered into by the parties thereto in connection therewith, and the certificate of designation filed with the Secretary of State of Minnesota setting forth the rights and preferences of the Class T Preferred Stock, all as originally executed and delivered and, except as otherwise provided herein, as such agreements or instruments may be amended or modified from time to time in accordance with their respective terms. "Common Stock" means, collectively, the Corporation's Class A Common Stock, par value $.01 per share, the Corporation's Class B Common Stock, par value $.01 per share, and any capital stock of any class of the Corporation hereafter authorized which is not limited to a fixed sum or percentage of par or stated value in respect to the rights of the holders thereof to participate in dividends or in the distribution of assets upon any liquidation, dissolution or winding-up of the Corporation. "Common Stock Deemed Outstanding" means, at any given time, the number of shares of Common Stock actually outstanding at such time, plus the number of shares of Common -18- Stock deemed to be outstanding pursuant to subparagraphs 5C(i) and 5C(ii) hereof whether or not the Options or Convertible Securities are actually exercisable at such time. "Conversion Stock" means shares of the Corporation's Class A Common Stock, par value $0.01 per share; provided that if there is a change such that the securities issuable upon conversion of the Class M Preferred Stock are issued by an entity other than the Corporation or there is a change in the type or class of securities so issuable, then the term "Conversion Stock" shall mean one share of the security issuable upon conversion of the Class M Preferred Stock if such security is issuable in shares, or shall mean the smallest unit in which such security is issuable if such security is not issuable in shares. "Convertible Securities" means any stock or securities directly or indirectly convertible into or exchangeable for Common Stock. "Fair Market Value" means (a) with respect to cash, the amount thereof, (b) with respect to securities, their Market Price and (c) with respect to any consideration other than cash or securities, its fair value as determined by the reasonable good faith judgment of the board of directors of the Corporation. "Junior Exchangeable Preferred Stock" means up to $140 million aggregate liquidation value of the Corporation's 12 1/4% Junior Exchangeable Preferred Stock, par value $.01 per share. "Junior Exchangeable Preferred Stock Agreement" means that certain Underwriting Agreement, dated as of February 8, 2000, by and among the Corporation, TD Securities (USA) Inc., First Union Securities, Inc. and The Robinson-Humphrey Company, as Qualified Independent Underwriter, the other agreements and instruments entered into by the parties thereto in connection therewith, and the certificate of designation filed with the Secretary of State of Minnesota setting forth the rights and preferences of the Junior Exchangeable Preferred Stock, all as originally executed and delivered and, except as otherwise provided herein, as such agreements or instruments may be amended or modified from time to time in accordance with their respective terms. "Junior Securities" means any capital stock or other equity securities of the Corporation, except for the Class M Preferred Stock and the Senior Preferred Securities. "LIBOR" means the average (rounded upward to the nearest one-hundredth (1/100th) of one percent (1%)) of the interest rates per annum at which deposits in United States Dollars for a three-month period are offered to The Toronto-Dominion Bank, in the London interbank borrowing market at approximately 11:00 a.m. (London, England time), for the three-month period following the Issue Date, in an amount approximately equal to the Issue Price of the shares to be redeemed. -19- "Liquidation Value" of any Share as of any particular date shall be equal to $1,000. "Market Price" of any security means the average, over a period of 15 days consisting of the day as of which "Market Price" is being determined and the 14 consecutive trading days prior to such day, of the closing prices of such security's sales on the principal securities exchange on which such security may at the time be listed, or, if there has been no sales on such exchange on any day, the average of the highest bid and lowest asked prices on such exchange at the end of such day, or, if on any day such security is not so listed, the average of the representative bid and asked prices quoted in the Nasdaq National Market System as of 4:00 P.M., New York time, or, if on any day such security is not quoted in the Nasdaq National Market System, the average of the highest bid and lowest asked prices on such day in the domestic over-the-counter market as reported by the National Quotation Bureau, Incorporated, or any similar successor organization. If at any time such security is not listed on any securities exchange or quoted in the Nasdaq National Market System or the over-the-counter market, the "Market Price" shall be the fair value thereof as determined by the reasonable good faith judgment of the board of directors of the Corporation. "Options" means any rights, warrants or options to subscribe for or purchase Common Stock or Convertible Securities. "Person" means an individual, a partnership, a corporation, a limited liability company, a limited liability, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof. "Public Offering" means any offering by the Corporation of its capital stock or equity securities to the public pursuant to an effective registration statement under the Securities Act of 1933, as then in effect, or any comparable statement under any similar federal statute then in force. "Purchase Agreement" means the Preferred Stock Purchase Agreement, dated as of April 3, 2000, by and among the Corporation and certain purchasers, as such agreement may from time to time be amended in accordance with its terms. "Redemption Date" as to any Share means the date specified in the notice of any redemption at the Corporation's option or at the holder's option or the applicable date specified herein in the case of any other redemption; provided that no such date shall be a Redemption Date unless the Liquidation Value of such Share is actually paid in full on such date, and if not so paid in full, the Redemption Date shall be the date on which such amount is fully paid. "Registration Agreement" means the Registration Agreement, dated as of April 3, 2000, by and among the Corporation and certain investors, as such agreement may be amended from time to time in accordance with its terms. -20- "Senior Exchangeable Preferred Stock" means up to $150 million aggregate liquidation value of the Corporation's 11 3/8% Senior Exchangeable Preferred Stock, par value $.01 per share. "Senior Exchangeable Preferred Stock Agreement" means that certain Purchase Agreement, dated as of May 7, 1998, by and among the Corporation, TD Securities (USA) Inc., NationsBanc Montgomery Securities LLC and BancBoston Securities Inc., the other agreements and instruments entered into by the parties thereto in connection therewith, that certain Underwriting Agreement, dated as of February 8, 2000, by and among the Corporation, TD Securities (USA) Inc., First Union Securities, Inc. and The Robinson-Humphrey Company, as Qualified Independent Underwriter, the other agreements and instruments entered into by the parties thereto in connection therewith, and the certificate of designation filed with the Secretary of State of Minnesota setting forth the rights and preferences of the Senior Exchangeable Preferred Stock, all as originally executed and delivered and, except as otherwise provided herein, as such agreements or instruments may be amended or modified from time to time in accordance with their respective terms. "Senior Preferred Securities" means, collectively, the Senior Exchangeable Preferred Stock, the Junior Exchangeable Preferred Stock, and the Class T Preferred Stock. "Senior Preferred Securities Agreements" means, collectively, the Senior Exchangeable Preferred Stock Agreement, the Junior Exchangeable Preferred Stock Agreement, and the Class T Preferred Stock Agreement. "Subsidiary" means, as applied to any Person, (i) any corporation of which more than fifty percent (50%) of the outstanding stock (other than directors' qualifying shares) having ordinary voting power to elect a majority of its board of directors, regardless of the existence at the time of a right of the holders of any class or classes of securities of such corporation to exercise such voting power by reason of the happening of any contingency, or any partnership or limited liability company of which more than fifty percent (50%) of the outstanding partnership or membership interests, is at the time owned directly or indirectly by such Person, or by one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of such Person, or (ii) any other entity which is directly or indirectly controlled or capable of being controlled by such Person, or by one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of such Person. For purposes of this Certificate of Designation, if the context does not otherwise specify in respect of which Person the term "Subsidiary" is used, the term "Subsidiary" shall refer to a Subsidiary of the Corporation. Notwithstanding the foregoing, Subsidiary shall not include Wireless Alliance, L.L.C., a Minnesota limited liability company. Section 11. Amendment and Waiver. -21- No amendment, modification or waiver shall be binding or effective with respect to any provision of Sections 1 to 13 hereof without the prior written consent of the holders of a majority of the Class M Preferred Stock outstanding at the time such action is taken; provided that if any such amendment, modification or waiver would adversely affect any holder of Class M Preferred Stock relative to the holders of Class M Preferred Stock voting in favor of such amendment, modification, or waiver, such amendment, modification or waiver shall also require the written consent of the holders of a majority of the outstanding Class M Preferred Stock held by all holders so adversely affected; provided further that if any such amendment, modification or waiver is to a provision in this Certificate of Designation that requires a specific vote to take an action thereunder or to take an action with respect to the matters described therein, such amendment, modification or waiver shall not be effective unless such vote is obtained with respect to such amendment, modification or waiver; and provided further that no change in the terms hereof may be accomplished by merger or consolidation of the Corporation with another corporation or entity unless the Corporation has obtained the prior written consent of the holders of the applicable percentage of the Class M Preferred Stock then outstanding. No other course of dealing between the Corporation and the holder of any Class M Preferred Stock or any delay in exercising any rights hereunder shall operate as a waiver of any rights of any such holders. For purposes of this Certificate of Designation, Class M Preferred Stock held by the Corporation or any Subsidiaries shall not be deemed to be outstanding. Section 12. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Certificate of Designation shall be in writing and shall be deemed to have been given when delivered personally to the recipient, telecopied to the recipient (with hard copy sent by overnight courier in the manner provided hereunder) if sent prior to 4:00 p.m. New York time on a business day (and otherwise, on the immediately succeeding business day), one business day after being sent to the recipient by reputable overnight courier service (charges prepaid) or three business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent (i) to the Corporation, at its principal executive offices and (ii) to any stockholder, at such holder's address as it appears in the stock records of the Corporation (unless otherwise indicated by any such holder). Section 13. Effective Date. The effective date of this Certificate of Designation shall be April 3, 2000. -22- IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designation to be duly executed by the Sr. Vice President and CFO of the Corporation this 30th day of March, 2000. RURAL CELLULAR CORPORATION By: /s/ Wesley E. Schultz Name: Wesley E. Schultz Title: Sr. V.P. & CFO -23- EX-4.2(C) 9 EXHIBIT 4.2(C) Exhibit 4.2(c) RURAL CELLULAR CORPORATION REGISTRATION AGREEMENT THIS REGISTRATION AGREEMENT is made as of April 3, 2000, between Rural Cellular Corporation, a Minnesota corporation (the "COMPANY"), and the Investors listed on the SCHEDULE OF INVESTORS attached hereto. The parties to this Agreement are parties to a Preferred Stock Purchase Agreement of even date herewith (the "PURCHASE AGREEMENT"). In order to induce the Investors to enter into the Purchase Agreement, the Company has agreed to provide the registration rights set forth in this Agreement. The execution and delivery of this Agreement is a condition to the Closing under the Purchase Agreement. Unless otherwise provided in this Agreement, capitalized terms used herein shall have the meanings set forth in paragraph 8 hereof. The parties hereto agree as follows: 1. DEMAND REGISTRATIONS. 1A. REQUESTS FOR REGISTRATION. At any time after the third anniversary of the Closing under the Purchase Agreement, the holders of a majority of the Registrable Securities then outstanding may request up to three registrations under the Securities Act of all or any portion of their Registrable Securities on Form S-1 or any similar long-form registration as the Company may elect ("LONG-FORM REGISTRATIONS"), and the holders of at least one-third of the Registrable Securities then outstanding may request registration under the Securities Act of all or any portion of their Registrable Securities on Form S-3 or any similar short-form registration as the Company may elect ("SHORT-FORM REGISTRATIONS"), if available; PROVIDED THAT the aggregate offering value of the Registrable Securities requested to be registered in any registration under this paragraph 1(a) (any "DEMAND REGISTRATION") must equal at least $25 million in any Long-Form Registration and at least $5 million in any Short-Form Registration. All requests for Demand Registrations shall be made by giving written notice thereof to the Company (a "DEMAND NOTICE"). Each Demand Notice shall specify the number of Registrable Securities requested to be registered. Within ten business days after receipt of any Demand Notice, the Company shall give written notice of such requested registration to all other holders of Registrable Securities and, subject to the terms of paragraph 1(e) hereof, shall include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 15 business days after the delivery of the Company's notice in accordance with Section 10(k) hereof. 1B. DEMAND EXPENSES. The Registration Expenses (as defined in Section 5(a) hereof) in all Demand Registrations shall be paid by the Company. 1C. LONG-FORM REGISTRATIONS. A registration shall not count as one of the permitted Long-Form Registrations until it has become effective; PROVIDED THAT in any event the Company shall pay all Registration Expenses in connection with any registration initiated as a Demand Registration whether or not it has become effective and whether or not such registration has counted as one of the permitted Long-Form Registrations, but solely to the extent provided in Section 5(b) below. All Long-Form Registrations shall be underwritten registrations unless otherwise requested by the holders of a majority of the Registrable Securities included in the applicable Long- Form Registration. 1D. SHORT-FORM REGISTRATIONS. Demand Registrations shall be Short-Form Registrations whenever the Company is permitted to use any applicable short form and if the managing underwriters (if any) agree to the use of a Short-Form Registration, and the Company shall use commercially reasonable efforts to make Short-Form Registrations on Form S-3 available for the sale of Registrable Securities. The holders of a majority of the Registrable Securities then outstanding may, in connection with any Demand Registration requested by such holders that is a Short-Form Registration, require the Company to file such Short-Form Registration with the Securities and Exchange Commission in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect) (a "SHELF REGISTRATION"). 1E. PRIORITY ON DEMAND REGISTRATIONS. The Company shall not include in any Demand Registration any securities which are not Registrable Securities without the prior written consent of the holders of a majority of the Registrable Securities included in such registration. If a Demand Registration is an underwritten offering and the managing underwriters advise the Company in writing that in their opinion the number of Registrable Securities and, if permitted hereunder, other securities requested to be included in such offering exceeds the number of Registrable Securities and other securities, if any, which can be sold in an orderly manner in such offering within a price range acceptable to the holders of a majority of the Registrable Securities requested to be included in such offering, the Company shall include in such registration prior to the inclusion of any securities which are not Registrable Securities the number of Registrable Securities requested to be included which in the opinion of such underwriters can be sold in an orderly manner within the price range of such offering, pro rata among the respective holders thereof on the basis of the amount of Registrable Securities owned by each such holder. 1F. RESTRICTIONS ON DEMAND REGISTRATIONS. The Company shall not be obligated to effect any Demand Registration within 365 days after the effective date of a previous Demand Registration or a previous registration in which the holders of Registrable Securities were given piggyback rights pursuant to paragraph 2 and in which such holders were able to register and sell at least 80% of the Registrable Securities requested to be included therein. The Company may postpone for up to 180 days the filing or the effectiveness of a registration statement for a Demand Registration if the Company's board of directors determines in its reasonable good faith judgment that such Demand Registration could reasonably be expected to have a material adverse effect on any activities, operations or prospects of the Company or any of its Subsidiaries (whether or not in the ordinary course of business); PROVIDED THAT in such event, the holders of Registrable Securities initially requesting such Demand Registration shall be entitled to withdraw such request and, if such request is withdrawn, such Demand Registration shall not count as one of the permitted Long-Form Registrations hereunder and the Company shall pay all Registration Expenses in connection with such registration. The Company may delay a Demand Registration hereunder only once in any twelve-month period. 1G. SELECTION OF UNDERWRITERS. The holders of a majority of the Registrable Securities included in any Demand Registration shall have the right to select the investment banker(s) and manager(s) to administer the offering, subject to the Company's approval which shall not be unreasonably withheld or delayed. 1H. OTHER REGISTRATION RIGHTS. The Company represents and warrants that it is not a party to, or otherwise subject to, any other agreement granting registration rights to any other Person with respect to any securities of the Company, except as set forth on the attached SCHEDULE OF OTHER REGISTRATION RIGHTS. Except as provided in this Agreement, the Company shall not grant to any Person the right to request the Company to register any equity securities of the Company, or any securities convertible or exchangeable into or exercisable for such securities, without the prior written consent of the holders of a majority of the Registrable Securities; PROVIDED THAT the Company may grant rights to other Persons to (i) participate in Piggyback Registrations so long as such rights are subordinate to or pari passu with the rights of the holders of Registrable Securities with respect to such Piggyback Registrations as provided in paragraphs 2(c) and 2(d) below and (ii) request registrations so long as the holders of Registrable Securities are entitled to participate in any such registrations in the manner described in Section 2 below. Any securities (other than Registrable Securities) as to which the Company has granted contractual registration rights shall be referred to as "OTHER SECURITIES." 2. PIGGYBACK REGISTRATIONS. 2A. RIGHT TO PIGGYBACK. Whenever the Company proposes to register any of its equity securities under the Securities Act other than pursuant to a Demand Registration and the registration form to be used may be used for the registration of Registrable Securities and is not in Form S-4 or S-8 or a successor form (a "PIGGYBACK REGISTRATION"), the Company shall give prompt written notice to all holders of Registrable Securities of its intention to effect such a registration and, subject to the terms of paragraphs 2(c) and 2(d) hereof, shall include in such registration all Registrable Securities with respect to which the Company has received written requests for inclusion therein within 20 days after the receipt of the Company's notice. 2B. PIGGYBACK EXPENSES. The Registration Expenses in all Piggyback Registrations shall be paid by the Company. 2C. PRIORITY ON PRIMARY REGISTRATIONS. If a Piggyback Registration is an underwritten primary registration on behalf of the Company, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the Company, the Company shall include in such registration (i) first, the securities the Company proposes to sell, and (ii) second, the Registrable Securities requested to be included in such registration and the Other Securities requested to be included in such registration, pro rata among the holders of any such securities on the basis of the number of shares requested to be included therein by each such holder. 2D. PRIORITY ON SECONDARY REGISTRATIONS. If a Piggyback Registration is an underwritten secondary registration on behalf of holders of the Company's securities, and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in an orderly manner in such offering within a price range acceptable to the holders initially requesting such registration, the Company shall include in such registration (i) first, the securities requested to be included therein by the holders requesting such registration, and (ii) second, the Registrable Securities requested to be included in such registration and the Other Securities requested to be included in such registration, pro rata among the holders of any such securities on the basis of the number of shares requested to be included therein by each such holder. 2E. SELECTION OF UNDERWRITERS. If any Piggyback Registration is an underwritten offering, the selection of investment banker(s) and manager(s) for the offering shall be made by the Company after consulting in good faith with the holders of a majority of the Registrable Securities included in such Piggyback Registration. 2F. OTHER REGISTRATIONS. If the Company has previously filed a registration statement with respect to Registrable Securities pursuant to paragraph 1 or pursuant to this paragraph 2, and if such previous registration has not been withdrawn or abandoned, the Company shall not file or cause to be effected any other registration of any of its equity securities or securities convertible or exchangeable into or exercisable for its equity securities under the Securities Act (except on Form S-4, Form S-8 or any successor form), whether on its own behalf or at the request of any holder or holders of such securities, until a period of at least 90 days has elapsed from the effective date of such previous registration. 3. HOLDBACK AGREEMENTS. 3A. HOLDERS OF REGISTRABLE SECURITIES. Each holder of Registrable Securities shall not effect any public sale or distribution (including sales pursuant to Rule 144 promulgated under the Securities Act) of equity securities of the Company, or any securities convertible into or exchangeable or exercisable for such securities, during (i) with respect to any underwritten Demand Registration or any underwritten Piggyback Registration in which Registrable Securities are included, the seven days prior to and the 90-day period beginning on the effective date of such registration and (ii) upon notice from the Company of the commencement of an underwritten distribution in connection with any Shelf Registration, the seven days prior to and the 90-day period beginning on the date of commencement of such distribution, in each case except as part of such underwritten registration and in each case unless the underwriters managing the registered public offering otherwise agree. 3B. The Company (i) shall not effect any public sale or distribution of its equity securities, or any securities convertible into or exchangeable or exercisable for such securities (except pursuant to registration on Form S-4, Form S-8 or any successor form), during (A) with respect to any underwritten Demand Registration or any underwritten Piggyback Registration in which Registrable Securities are included, the seven days prior to and the 90-day period beginning on the effective date of such registration and (B) upon notice from any holder(s) of Registrable Securities subject to a Shelf Registration that such holder(s) intend to effect a distribution of Registrable Securities pursuant to such Shelf Registration (upon receipt of which, the Company will promptly notify all other holders of Registrable Securities of the date of commencement of such distribution), the seven days prior to and the 90-day period beginning on the date of commencement of such distribution and (ii) shall cause each holder of its Common Stock, or any securities convertible into or exchangeable or exercisable for Common Stock, purchased from the Company at any time after the date of this Agreement (other than in a registered public offering or pursuant to Rule 144 or pursuant to equity subscription agreements, stock option agreements, stock appreciation rights, phantom stock plans or similar rights or plans in effect on the date of this Agreement) to agree not to effect any public sale or distribution (including sales pursuant to Rule 144) of any such securities during such period, in each case except as part of such underwritten registration and in each case unless the underwriters managing the registered public offering otherwise agree. 4. REGISTRATION PROCEDURES. Whenever the holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use commercially reasonable efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company shall as expeditiously as practicable: 4A. prepare and file with the Securities and Exchange Commission a registration statement with respect to such Registrable Securities and use commercially reasonable efforts to cause such registration statement to become effective (PROVIDED THAT before filing a registration statement or prospectus or any amendments or supplements thereto, the Company shall furnish to the counsel selected by the holders of a majority of the Registrable Securities covered by such registration statement copies of all such documents proposed to be filed, and the Company shall in good faith consider any comments of such counsel); 4B. notify each holder of Registrable Securities of the effectiveness of each registration statement filed hereunder and prepare and file with the Securities and Exchange Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for a period of not less than 90 days (or, in the case of a Shelf Registration, a period ending on the earlier of (i) the date on which all Registrable Securities have been sold pursuant to the Shelf Registration or have otherwise ceased to be Registrable Securities and (ii) the second anniversary of the effective date of such Shelf Registration) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement; 4C. furnish to each seller of Registrable Securities such number of copies of the prospectus included in such registration statement (including each preliminary prospectus), each amendment and supplement thereto and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller; 4D. use commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and to do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (PROVIDED THAT the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction); 4E. notify each seller of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Company shall prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading; 4F. cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if not so listed, to be listed on the NASD automated quotation system and, if listed on the NASD automated quotation system, use commercially reasonable efforts to secure designation of all such Registrable Securities covered by such registration statement as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing that, to secure NASDAQ authorization for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with the NASD; 4G. provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement; 4H. enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including preparing for and participating in such number of "road shows" as the underwriters managing such offering may reasonably request); 4I. make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement; 4J. otherwise use its best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Company's first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; 4K. permit any holder of Registrable Securities which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a controlling person of the Company, to participate in the preparation of such registration or comparable statement and to require the insertion therein of material, furnished to the Company in writing, which in the reasonable judgment of such holder and its counsel should be included; PROVIDED THAT such holder shall indemnify and hold harmless the Company from any liability arising from the inclusion of such material or the receiving or incurring thereof in the manner and on the term set forth in Section 6(b); 4L. in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any common stock included in such registration statement for sale in any jurisdiction, the Company shall use commercially reasonable efforts promptly to obtain the withdrawal of such order; 4M. use commercially reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities; and 4N. in the case of an underwritten offering, and if required by the underwriting agreement with respect thereto, obtain a cold comfort letter from the Company's independent public accountant in the form and covering such matters as may be required by such underwriting agreement. 5. REGISTRATION EXPENSES. 5A. All expenses incident to the Company's performance of or compliance with this Agreement, including without limitation all registration and filing fees, fees and expenses of compliance with securities or blue sky laws, printing expenses, messenger and delivery expenses, fees and disbursements of custodians, and fees and disbursements of counsel for the Company (but except as provided in paragraph (b) not fees and disbursements of counsel for any holder of Registrable Securities) and all independent certified public accountants (excluding costs of accountants retained to conduct any special audits required in connection with a Demand Registration), underwriters (excluding discounts and commissions) and other Persons retained by the Company (all such expenses being herein called "REGISTRATION EXPENSES"), shall be borne by the Company as provided in this Agreement, except that the Company shall, in any event, pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit or quarterly review, the expense of any liability insurance and the expenses and fees for listing the securities to be registered on each securities exchange on which similar securities issued by the Company are then listed or on the NASD automated quotation system. 5B. In connection with (i) each registration initiated as a Long-Form Registration (whether or not such registration is declared effective or counts as one of the permitted Long-Form Registrations) until the Company has consummated a Demand Registration that counts as one of the permitted Long-Form Registrations hereunder and (ii) the first Demand Registration the Company consummates that counts as one of the permitted Long-Form Registrations hereunder, the Company shall reimburse the holders of Registrable Securities included in such registration for the reasonable fees and disbursements of one counsel chosen by the holders of a majority of the Registrable Securities included in such registration. Notwithstanding the foregoing, the Company shall not be required to reimburse the holders of Registrable Securities for any fees or disbursements of counsel with respect to any registration terminated by the holders due to unacceptable pricing or underwriter cutbacks. 5C. To the extent any expenses relating to a registration hereunder are not required to be paid by the Company, each holder of securities included in any registration hereunder shall pay those expenses allocable to the registration of such holder's securities so included, and any expenses not so allocable shall be borne by all sellers of securities included in such registration in proportion to the aggregate selling price of the securities to be so registered. 5D. Any obligation to pay Registration Expenses or other expenses provided for in this Agreement shall survive the termination of the rights of any particular holder of Registrable Securities and the termination of this Agreement. 6. INDEMNIFICATION. 6A. The Company agrees to indemnify, to the extent permitted by law, each holder of Registrable Securities, its officers, directors, employees, agents, Affiliates and each Person who controls such holder (within the meaning of the Securities Act and the Securities Exchange Act) against all losses, claims, damages, liabilities and expenses caused by any untrue or alleged untrue statement of material fact contained in any registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company by such holder expressly for use therein or by such holder's failure to deliver a copy of the registration statement or prospectus or any amendments or supplements thereto after the Company has furnished such holder with such number of copies of the same as was previously requested by such holder. In connection with an underwritten offering, the Company shall indemnify such underwriters, their officers, directors, employees, agents and each Person who controls such underwriters (within the meaning of the Securities Act and the Securities Exchange Act) to substantially the same extent as provided above with respect to the indemnification of the holders of Registrable Securities. 6B. In connection with any registration statement in which a holder of Registrable Securities is participating, each such holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such registration statement or prospectus and, to the extent permitted by law, shall indemnify the Company, its directors, officers, employees, agents, Affiliates and each Person who controls the Company (within the meaning of the Securities Act and the Securities Exchange Act) against any losses, claims, damages, liabilities and expenses resulting from any untrue or alleged untrue statement of material fact contained in the registration statement, prospectus or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by such holder; PROVIDED THAT the obligation to indemnify shall be individual and ratable, not joint and several, for each holder and shall be limited to the net amount of proceeds received by such holder from the sale of Registrable Securities pursuant to such registration statement. 6C. Any Person entitled to indemnification hereunder shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any Person's right to indemnification hereunder to the extent such failure has not prejudiced the indemnifying party) and (ii) unless in such indemnified party's reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. 6D. The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director, employee, agent, Affiliate or controlling Person of such indemnified party and shall survive the transfer of securities, the termination of the rights of any particular holder of Registrable Securities and the termination of this Agreement. The Company also agrees to make such provisions, as are reasonably requested by any indemnified party, for contribution to such party in the event the Company's indemnification is unavailable for any reason. 7. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may participate in any registration hereunder that is underwritten unless such Person (i) agrees to sell such Person's securities on the basis provided in any underwriting arrangements approved by the Person or Persons entitled hereunder to approve such arrangements and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements; PROVIDED THAT no holder of Registrable Securities included in any underwritten registration shall be required to make any representations or warranties to the Company or the underwriters (other than representations and warranties regarding such holder, such holder's title to the securities and such holder's intended method of distribution) or to undertake any indemnification obligations to the Company or the underwriters with respect thereto, except as otherwise provided in paragraph 6 hereof. 8. DEFINITIONS. 8A. "REGISTRABLE SECURITIES" means (i) any Class A Common Stock issued upon the conversion of any Preferred Stock issued pursuant to the Purchase Agreement and (ii) any Class A Common Stock or other Common Stock issued or issuable with respect to any Registrable Securities by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when they have been sold, transferred or otherwise disposed of pursuant to an offering registered under the Securities Act, through a broker, dealer or market maker in compliance with Rule 144 under the Securities Act (or any similar rule then in force) or repurchased by the Company or any Subsidiary. For purposes of this Agreement, including exercising any rights or meeting any threshold tests hereunder, a Person shall be deemed to hold any Registrable Securities issuable upon conversion of any Preferred Stock on an as-if-converted basis, and such Registrable Securities shall be deemed to be in existence without taking into account any restriction or limitation on the conversion thereof. 8B. Unless otherwise stated, other capitalized terms contained herein have the meanings set forth in the Purchase Agreement. 9. TERMINATION. Except as otherwise provided herein, the rights granted to any particular holder of Registrable Securities herein shall terminate whenever such holder and any Affiliate with which it must aggregate its Registrable Securities for purposes of Rule 144 promulgated under the Securities Act may sell all of their Registrable Securities during a single three-month period pursuant to the provisions of Rule 144. Except as otherwise provided herein, this Agreement shall terminate at such time as no holder of Registrable Securities has any rights hereunder. 10. MISCELLANEOUS. 10A. NO INCONSISTENT AGREEMENTS. The Company shall not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights granted to the holders of Registrable Securities in this Agreement. 10B. CURRENT PUBLIC INFORMATION. The Company shall file all reports required to be filed by it under the Securities Act and the Securities Exchange Act and the rules and regulations adopted by the Securities and Exchange Commission thereunder and shall take such further action as any holder or holders of Registrable Securities may reasonably request, all to the extent required to enable such holders to sell Registrable Securities pursuant to Rule 144 adopted by the Securities and Exchange Commission under the Securities Act (as such rule may be amended from time to time) or any similar rule or regulation hereafter adopted by the Securities and Exchange Commission. Upon request, the Company shall deliver to any holder of Registrable Securities a written statement as to whether it has complied with such requirements. The Company shall at all times cause the Class A Common Stock into which the Preferred Stock is convertible to be listed on one or more of the New York Stock Exchange, the American Stock Exchange or the NASDAQ National Market System. 10C. ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. Except for actions taken by the Company or its board of directors in the exercise of their fiduciary duties and prudent business judgment, the Company shall not take any action, or permit any change to occur, with respect to its securities which would materially and adversely affect the ability of the holders of Registrable Securities to include such Registrable Securities in a registration undertaken pursuant to this Agreement or which would materially and adversely affect the marketability of such Registrable Securities in any such registration (including, without limitation, effecting a stock split or a combination of shares). 10D. REMEDIES. Any Person having rights under any provision of this Agreement shall be entitled to enforce such rights specifically to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that, in addition to any other rights and remedies existing in its favor, any party shall be entitled to specific performance and/or other injunctive relief from any court of law or equity of competent jurisdiction (without posting any bond or other security) in order to enforce or prevent violation of the provisions of this Agreement. 10E. CONSENT TO AMENDMENTS. Except as otherwise expressly provided herein, the provisions of this Agreement may be amended or modified and the Company may take any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company has obtained the written consent of the holders of a majority of the Registrable Securities outstanding at the time the amendment or waiver becomes effective; PROVIDED THAT if any such amendment, modification or waiver would adversely affect any holder of Registrable Securities relative to the holders of Registrable Securities voting in favor of such amendment, modification, or waiver, such amendment, modification or waiver shall also require the written consent of the holders of a majority of the outstanding Registrable Securities held by all holders so adversely affected; PROVIDED FURTHER that if any such amendment, modification or waiver is to a provision in this Agreement that requires a specific vote to take an action thereunder or to take an action with respect to the matters described therein, such amendment, modification or waiver shall not be effective unless such vote is obtained with respect to such amendment, modification or waiver. No other course of dealing between the Company and the holder of any Registrable Securities or any delay in exercising any rights hereunder shall operate as a waiver of any rights of any such holders. For purposes of this Agreement, Registrable Securities held by the Company or any Subsidiaries shall not be deemed to be outstanding. 10F. SUCCESSORS AND ASSIGNS. All covenants and agreements in this Agreement by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns of the parties hereto whether so expressed or not. In addition, whether or not any express assignment has been made, the provisions of this Agreement which are for the benefit of purchasers or holders of Registrable Securities are also for the benefit of, and enforceable by, any subsequent holder of Registrable Securities. Notwithstanding the foregoing, the registration rights granted to the Investors pursuant to this Agreement may be transferred to a party that is not an Affiliate of such Investor only if (i) as a result of such transfer such party and its Affiliates acquire at least 25% of the Registrable Securities held by such Investor as of the date hereof, (ii) the transfer of the Registrable Securities complies with all restrictions on the transfer of such securities found in the Purchase Agreement and any other agreement contemplated thereby and (iii) the Investor provides written notice to the Company of such assignment no less than ten business days prior to the transfer of the Registrable Securities. 10G. SEVERABILITY. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. 10H. COUNTERPARTS. This Agreement may be executed simultaneously in two or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Agreement. 10I. DESCRIPTIVE HEADINGS. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement. Whenever required by the context, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular forms of nouns, pronouns, and verbs shall include the plural and vice versa. Reference to any agreement, document, certificate, or instrument means such agreement, document, certificate or instrument as the same is amended, waived or otherwise modified from time to time in accordance with the terms thereof and, if applicable, hereof. Except as otherwise provided in this Agreement, words such as "herein," "hereunder," "hereof" and the like shall be deemed to refer to this Agreement as a whole and not to any particular document or article, Section, paragraph or other portion of a document. The use of the words "include" or "including" in this Agreement shall be by way of example rather than by limitation. The use of the words "or," "either" or "any" shall not be exclusive. 10J. GOVERNING LAW. The corporate law of the State of Minnesota shall govern all issues and questions concerning the relative rights of the Company and its stockholders. All other issues and questions concerning the construction, validity, interpretation and enforcement of this Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. 10K. NOTICES. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when delivered personally to the recipient, telecopied to the recipient (with hard copy sent by overnight courier in the manner provided hereunder) if sent prior to 4:00 p.m. New York time on a business day (and otherwise, on the immediately succeeding business day), one business day after being sent to the recipient by reputable overnight courier service (charges prepaid) or three business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid. Such notices, demands and other communications shall be sent to each Investor at the address indicated on the SCHEDULE OF INVESTORS and to the Company at the address indicated below: Rural Cellular Corporation 3905 Dakota Street SW Alexandria, Minnesota 56308 Attention: chief executive officer Telephone: (320) 762-2000 Telecopy: (320) 808-2120 WITH COPIES TO: Moss & Barnett 4800 Norwest Center 90 South 7th Street Minneapolis, Minnesota 55402-4129 Attention: Richard Kelber, Esq. Telephone: (612) 347-0300 Telecopy: (612) 339-6686 and Mayer Brown & Platt 1675 Broadway New York, New York 10019 Attention: Mark S. Wojciechowski, Esq. Telephone: (212) 506-2500 Telecopy: (212) 262-1910 or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. 10L. BUSINESS DAYS. If any time period for giving notice or taking action hereunder expires on a day which is a Saturday, Sunday or legal holiday in the State of Minnesota or the jurisdiction in which the Company's principal office is located, the time period shall automatically be extended to the business day immediately following such Saturday, Sunday or legal holiday. 10M. DELIVERY BY FACSIMILE. This Agreement, the agreements referred to herein and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto shall reexecute originals forms thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine as a defense to the formation or enforceability of a contract and each such party forever waives any such defense. * * * * * IN WITNESS WHEREOF, the parties have executed this Registration Agreement as of the date first written above. THE COMPANY: RURAL CELLULAR CORPORATION By: /s/ Wesley E. Schultz --------------------------------------------- Name: Wesley E. Schultz ------------------------------------------- Its: Sr. Vice President and CFO ------------------------------------------- INVESTORS: MADISON DEARBORN CAPITAL PARTNERS III, L.P. By Madison Dearborn Partners III, L.P., its General Partner By Madison Dearborn Partners, LLC, its General Partner By: /s/ Paul J. Finnegan --------------------------------------------- Name: Paul J. Finnegan ------------------------------------------- Its Managing Director MADISON DEARBORN SPECIAL EQUITY III, L.P. By Madison Dearborn Partners III, L.P., its General Partner By Madison Dearborn Partners, LLC, its General Partner By: /s/ Paul J. Finnegan --------------------------------------------- Name: Paul J. Finnegan ------------------------------------------- Its Managing Director SPECIAL ADVISORS FUND I, LLC By Madison Dearborn Partners III, L.P., its Manager By Madison Dearborn Partners, LLC, its General Partner By: /s/ Paul J. Finnegan --------------------------------------------- Name: Paul J. Finnegan ------------------------------------------- Its Managing Director BOSTON VENTURES LIMITED PARTNERSHIP V By Boston Ventures Company V, L.L.C. its General Partner By: /s/ Anthony J. Bolland --------------------------------------------- Name: Anthony J. Bolland ------------------------------------------- Its: Managing Director -------------------------------------------- (Continuation of Signature Page to Registration Agreement) TORONTO DOMINION INVESTMENTS, INC. By: /s/ Martha L. Gariepy --------------------------------------------- Name: Martha L. Gariepy ------------------------------------------- Its Vice President (Continuation of Signature Page to Registration Agreement) SCHEDULE OF INVESTORS NAME AND ADDRESS Madison Dearborn Capital Partners III, L.P. Three First National Plaza, Suite 3800 Chicago, Illinois 60670 Attention: Paul J. Finnegan James H. Kirby Telephone: (312) 895-1000 Telecopy: (312) 895-1001 Madison Dearborn Special Equity III, L.P. Three First National Plaza, Suite 3800 Chicago, Illinois 60670 Attention: Paul J. Finnegan James H. Kirby Telephone: (312) 895-1000 Telecopy: (312) 895-1001 Special Advisors Fund I, L.P. Three First National Plaza, Suite 3800 Chicago, Illinois 60670 Attention: Paul J. Finnegan James H. Kirby Telephone: (312) 895-1000 Telecopy: (312) 895-1001 EACH WITH A COPY TO: Kirkland & Ellis 200 East Randolph Drive, Suite 5400 Chicago, Illinois 60601 Attention: Edward T. Swan Telephone: (312) 861-2000 Telecopy: (312) 861-2200 Boston Ventures Limited Partnership V One Federal Street Boston, MA 02110 Attention: John Hunt Telephone: (617) 350-1599 Telecopy: (617) 350-1574 TD Investments Inc. 909 Fannin, Suite 1700 Houston, TX 77010 Attention: Martha Gariepy Telephone: (713) 652-8225 Telecopy: (713) 652-2647 WITH A COPY TO: TD Capital 31 West 52nd Street New York, NY 10019-6101 Attention: Chris Shipman Telephone: (212) 827-7733 Telecopy: (212) 974-8429 SCHEDULE OF OTHER REGISTRATION RIGHTS Registration rights granted to Telephone & Data Systems, Inc. pursuant to that certain Registration Rights Agreement, dated as of March 31, 2000, by and between Rural Cellular Corporation, a Minnesota corporation, and Telephone & Data Systems, Inc., a Delaware corporation. EX-10.1(A) 10 EXHIBIT 10.1(A) Exhibit 10.1(a) SECOND AMENDED AND RESTATED LOAN AGREEMENT AMONG RURAL CELLULAR CORPORATION; THE FINANCIAL INSTITUTIONS WHOSE NAMES APPEAR AS LENDERS ON THE SIGNATURE PAGES HEREOF; AND TORONTO DOMINION (TEXAS), INC. AS ADMINISTRATIVE AGENT WITH TD SECURITIES (USA) INC., AS BOOK RUNNER AND LEAD ARRANGER; FIRST UNION NATIONAL BANK AND PNC BANK, NATIONAL ASSOCIATION AS CO-SYNDICATION AGENTS AND BANK OF AMERICA SECURITIES, LLC AS DOCUMENTATION AGENT DATED AS OF APRIL 3, 2000 POWELL, GOLDSTEIN, FRAZER & MURPHY LLP ATLANTA, GEORGIA TABLE OF CONTENTS PAGE ARTICLE 1 DEFINITIONS.................................................3 ARTICLE 2 LOANS......................................................22 SECTION 2.1 THE LOANS..................................................22 SECTION 2.2 MANNER OF BORROWING AND DISBURSEMENT.......................23 SECTION 2.3 INTEREST...................................................25 SECTION 2.4 COMMITMENT FEES............................................28 SECTION 2.5 MANDATORY COMMITMENT REDUCTIONS............................28 SECTION 2.6 VOLUNTARY COMMITMENT REDUCTIONS............................30 SECTION 2.7 PREPAYMENTS AND REPAYMENTS.................................31 SECTION 2.8 NOTES; LOAN ACCOUNTS.......................................36 SECTION 2.9 MANNER OF PAYMENT..........................................37 SECTION 2.10 REIMBURSEMENT..............................................38 SECTION 2.11 PRO RATA TREATMENT.........................................38 SECTION 2.12 CAPITAL ADEQUACY...........................................39 SECTION 2.13 LENDER TAX FORMS...........................................40 SECTION 2.14 INCREMENTAL FACILITY ADVANCES..............................40 SECTION 2.15 REPLACEMENT OF LENDERS.....................................41 ARTICLE 3 CONDITIONS PRECEDENT.......................................42 SECTION 3.1 CONDITIONS PRECEDENT TO EFFECTIVENESS OF AGREEMENT.........42 SECTION 3.2 CONDITIONS PRECEDENT TO EACH ADVANCE.......................44 ARTICLE 4 REPRESENTATIONS AND WARRANTIES.............................45 SECTION 4.1 REPRESENTATIONS AND WARRANTIES.............................45 SECTION 4.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC............51 ARTICLE 5 GENERAL COVENANTS..........................................51 SECTION 5.1 PRESERVATION OF EXISTENCE AND SIMILAR MATTERS..............51 SECTION 5.2 BUSINESS; COMPLIANCE WITH APPLICABLE LAW...................52 SECTION 5.3 MAINTENANCE OF PROPERTIES..................................52 SECTION 5.4 ACCOUNTING METHODS AND FINANCIAL RECORDS...................52 SECTION 5.5 INSURANCE..................................................52 SECTION 5.6 PAYMENT OF TAXES AND CLAIMS................................52 SECTION 5.7 COMPLIANCE WITH ERISA......................................53 SECTION 5.8 VISITS AND INSPECTIONS.....................................54 SECTION 5.9 PAYMENT OF INDEBTEDNESS; LOANS.............................55 SECTION 5.10 USE OF PROCEEDS............................................55 SECTION 5.11 REAL ESTATE................................................55 SECTION 5.12 INDEMNITY..................................................56 SECTION 5.13 INTEREST RATE HEDGING......................................57 SECTION 5.14 COVENANTS REGARDING FORMATION OF SUBSIDIARIES AND ACQUISITIONS; PARTNERSHIP, SUBSIDIARIES....................57 SECTION 5.15 PAYMENT OF WAGES...........................................58 SECTION 5.16 FURTHER ASSURANCES.........................................58 ARTICLE 6 INFORMATION COVENANTS......................................58 SECTION 6.1 QUARTERLY FINANCIAL STATEMENTS AND INFORMATION.............58 SECTION 6.2 ANNUAL FINANCIAL STATEMENTS AND INFORMATION................59 SECTION 6.3 PERFORMANCE CERTIFICATES...................................59 SECTION 6.4 COPIES OF OTHER REPORTS....................................59 SECTION 6.5 NOTICE OF LITIGATION AND OTHER MATTERS.....................60 ARTICLE 7 NEGATIVE COVENANTS.........................................61 SECTION 7.1 INDEBTEDNESS OF THE BORROWER AND ITS SUBSIDIARIES..........61 SECTION 7.2 LIMITATION ON LIENS........................................62 SECTION 7.3 AMENDMENT AND WAIVER.......................................62 SECTION 7.4 LIQUIDATION, MERGER, OR DISPOSITION OF ASSETS..............62 SECTION 7.5 LIMITATION ON GUARANTIES...................................63 SECTION 7.6 INVESTMENTS AND ACQUISITIONS...............................63 SECTION 7.7 RESTRICTED PAYMENTS AND PURCHASES..........................65 SECTION 7.8 TOTAL LEVERAGE RATIO.......................................65 SECTION 7.9 SENIOR LEVERAGE RATIO......................................66 SECTION 7.10 ANNUALIZED OPERATING CASH FLOW TO PRO FORMA DEBT...........66 SECTION 7.11 ANNUALIZED OPERATING CASH FLOW TO INTEREST EXPENSE.........67 SECTION 7.12 FIXED CHARGE COVERAGE RATIO................................67 SECTION 7.13 AFFILIATE TRANSACTIONS.....................................67 SECTION 7.14 REAL ESTATE................................................68 SECTION 7.15 ERISA LIABILITIES..........................................68 ARTICLE 8 DEFAULT....................................................68 SECTION 8.1 EVENTS OF DEFAULT..........................................68 SECTION 8.2 REMEDIES...................................................71 SECTION 8.3 PAYMENTS SUBSEQUENT TO DECLARATION OF EVENT OF DEFAULT.....72 ARTICLE 9 THE AGENTS.................................................73 SECTION 9.1 APPOINTMENT AND AUTHORIZATION..............................73 SECTION 9.2 INTEREST HOLDERS...........................................73 SECTION 9.3 CONSULTATION WITH COUNSEL..................................73 SECTION 9.4 DOCUMENTS..................................................73 SECTION 9.5 ADMINISTRATIVE AGENT AND AFFILIATES........................73 SECTION 9.6 RESPONSIBILITY OF THE ADMINISTRATIVE AGENT.................74 SECTION 9.7 COLLATERAL.................................................74 SECTION 9.8 ACTION BY ADMINISTRATIVE AGENT.............................74 SECTION 9.9 NOTICE OF DEFAULT OR EVENT OF DEFAULT......................74 SECTION 9.10 RESPONSIBILITY DISCLAIMED..................................75 SECTION 9.11 INDEMNIFICATION............................................75 SECTION 9.12 CREDIT DECISION............................................76 SECTION 9.13 SUCCESSOR ADMINISTRATIVE AGENT.............................76 SECTION 9.14 DELEGATION OF DUTIES.......................................77 SECTION 9.15 NO RESPONSIBILITIES OF AGENTS..............................77 ARTICLE 10 CHANGE IN CIRCUMSTANCES AFFECTING LIBOR ADVANCES...........77 SECTION 10.1 LIBOR BASIS DETERMINATION INADEQUATE OR UNFAIR.............77 SECTION 10.2 ILLEGALITY.................................................77 SECTION 10.3 INCREASED COSTS............................................78 SECTION 10.4 EFFECT ON OTHER ADVANCES...................................79 ARTICLE 11 MISCELLANEOUS..............................................79 SECTION 11.1 NOTICES....................................................79 SECTION 11.2 EXPENSES...................................................81 SECTION 11.3 WAIVERS....................................................81 SECTION 11.4 SET-OFF....................................................82 SECTION 11.5 ASSIGNMENT.................................................82 SECTION 11.6 ACCOUNTING PRINCIPLES......................................85 SECTION 11.7 COUNTERPARTS...............................................85 - ii - SECTION 11.8 GOVERNING LAW..............................................85 SECTION 11.9 SEVERABILITY...............................................86 SECTION 11.10 INTEREST...................................................86 SECTION 11.11 TABLE OF CONTENTS AND HEADINGS.............................86 SECTION 11.12 AMENDMENT AND WAIVER.......................................86 SECTION 11.13 ENTIRE AGREEMENT...........................................87 SECTION 11.14 OTHER RELATIONSHIPS........................................87 SECTION 11.15 DIRECTLY OR INDIRECTLY.....................................87 SECTION 11.16 RELIANCE ON AND SURVIVAL OF VARIOUS PROVISIONS.............87 SECTION 11.17 SENIOR DEBT................................................88 SECTION 11.18 OBLIGATIONS SEVERAL........................................88 SECTION 11.19 CONFIDENTIALITY............................................88 ARTICLE 12 WAIVER OF JURY TRIAL.......................................88 SECTION 12.1 WAIVER OF JURY TRIAL.......................................88 - iii - EXHIBITS Exhibit A - Form of Borrower's Pledge Agreement Exhibit B - Form of Certificate of Financial Condition Exhibit C - Form of Notice of Incremental Facility Commitment Exhibit D - Form of Request for Advance Exhibit E - Form of Revolving Loan Note Exhibit F - Form of Security Agreement Exhibit G - Form of Subsidiary Guaranty Exhibit H - Form of Subsidiary Pledge Agreement Exhibit I - Form of Subsidiary Security Agreement Exhibit J - Form of Term Loan A Note Exhibit K - Form of Term Loan B Note Exhibit L - Form of Term Loan C Note Exhibit M - Form of Incremental Facility Note Exhibit N - Form of Borrower's Loan Certificate Exhibit O - Form of Subsidiary Loan Certificate Exhibit P - Form of Opinion of FCC Counsel to the Borrower Exhibit Q - Form of Opinion of General Counsel to the Borrower Exhibit R - Form of Performance Certificate Exhibit S - Form of Assignment and Assumption Agreement SCHEDULES Schedule 1 - Licenses Schedule 2 - Liens Existing on the Agreement Date Schedule 3 - Subsidiaries Schedule 4 - Permitted Exceptions Schedule 5 - Litigation Schedule 6 - Affiliate Agreements Schedule 7 - Addresses of Lenders - iv - SECOND AMENDED AND RESTATED LOAN AGREEMENT AMONG RURAL CELLULAR CORPORATION, AS BORROWER; THE FINANCIAL INSTITUTIONS WHOSE NAMES APPEAR AS LENDERS ON THE SIGNATURE PAGES HEREOF; TORONTO DOMINION (TEXAS), INC., AS ADMINISTRATIVE AGENT WITH TD SECURITIES (USA) INC., AS BOOK RUNNER AND LEAD ARRANGER; AND FIRST UNION NATIONAL BANK AND PNC BANK, NATIONAL ASSOCIATION AS CO-SYNDICATION AGENTS AND BANK OF AMERICA SECURITIES, LLC AS DOCUMENTATION AGENT W I T N E S S E T H: WHEREAS, the Borrower, the financial institutions whose names appeared as Lenders on the signature pages thereof and the Administrative Agent are all parties to that certain Amended and Restated Loan Agreement dated as of July 1, 1998 (the "PRIOR LOAN AGREEMENT"); and WHEREAS, the Borrower has requested that the Administrative Agent and the Lenders consent to certain amendments to the Prior Loan Agreement, as more fully set forth in this Second Amended and Restated Loan Agreement; and WHEREAS, the Administrative Agent and the Lenders have agreed to amend and restate the Prior Loan Agreement in its entirety as set forth herein; and WHEREAS, the Borrower acknowledges and agrees that the security interest granted to the Administrative Agent, for itself and on behalf of the Lenders pursuant to the Prior Loan Agreement and the Loan Documents (as defined in the Prior Loan Agreement) executed in connection therewith shall remain outstanding and in full force and effect in accordance with the Prior Loan Agreement and shall continue to secure the Obligations (as defined therein); and WHEREAS, the Borrower acknowledges and agrees that (i) the Obligations (as defined herein) represent, among other things, the amendment, restatement, renewal, extension, consolidation and modification of the Obligations (as defined in the Prior Loan Agreement) arising in connection with the Prior Loan Agreement and the other Loan Documents (as defined in the Prior Loan Agreement) executed in connection therewith; (ii) the parties hereto intend that the Prior Loan Agreement and the other Loan Documents (as defined in the Prior Loan Agreement) executed in connection therewith and the collateral pledged thereunder shall secure, without interruption or impairment of any kind, all existing Indebtedness under the Prior Loan Agreement and the other Loan Documents (as defined in the Prior Loan Agreement) executed in connection therewith as so amended, restated, restructured, renewed, extended, consolidated and modified hereunder, together with all other Obligations hereunder; (iii) all Liens evidenced by the Prior Loan Agreement and the other Loan Documents (as defined in the Prior Loan Agreement) executed in connection therewith are hereby ratified, confirmed and continued; and (iv) the Loan Documents (as defined herein) are intended to restructure, restate, renew, extend, consolidate, amend and modify the Prior Loan Agreement and the other Loan Documents (as defined in the Prior Loan Agreement) executed in connection therewith; and WHEREAS, the parties hereto intend that (i) the provisions of the Prior Loan Agreement and the other Loan Documents (as defined in the Prior Loan Agreement) executed in connection therewith, to the extent restructured, restated, renewed, extended, consolidated, amended and modified hereby, are hereby superseded and replaced by the provisions hereof and of the Loan Documents (as defined herein); and (ii) the Notes (as hereinafter defined) amend, renew, extend, modify, replace, are substituted for and supersede in their entirety, but do not extinguish the indebtedness arising under the promissory notes issued pursuant to the Prior Loan Agreement; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties hereto, the parties hereby amend and restate the Prior Loan Agreement as follows: - 2 - ARTICLE 1 DEFINITIONS For the purposes of this Agreement: "2000 SENIOR PREFERRED STOCK" shall mean those 25,000 shares of 11 3/8% Senior Exchangeable Preferred Stock of the Borrower, together with any additional Senior Preferred Stock issued as payment in kind dividends thereon. "ACQUISITION" shall mean (whether by purchase, lease, exchange, issuance of stock or other equity or debt securities, merger, reorganization or any other method) (i) any acquisition by the Borrower or any of its Subsidiaries of any other Person, which Person shall then become consolidated with the Borrower or any such Subsidiary in accordance with GAAP or (ii) any acquisition by the Borrower or any of its Subsidiaries of all or any substantial part of the assets of any other Person. "ADMINISTRATIVE AGENT" shall mean Toronto Dominion (Texas), Inc., in its capacity as Administrative Agent for the Lenders or any successor Administrative Agent appointed pursuant to Section 9.13 hereof. "ADMINISTRATIVE AGENT'S OFFICE" shall mean the office of the Administrative Agent located at 909 Fannin Street, Suite 1700, Houston, Texas 77010, or such other office as may be designated pursuant to the provisions of Section 11.1 hereof. "ADVANCE" shall mean amounts advanced by the Lenders to the Borrower pursuant to Article 2 hereof on the occasion of any borrowing and having the same Interest Rate Basis and Interest Period; and "Advances" shall mean more than one Advance. "AFFILIATE" shall mean, with respect to a Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such first Person. For purposes of this definition, "control" when used with respect to any Person includes, without limitation, the direct or indirect beneficial ownership of more than ten percent (10%) of the voting securities or voting equity of such Person or the power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise. "AGENTS" shall mean, collectively, the Administrative Agent, the Lead Arranger, the Co-Syndication Agents and the Documentation Agent. "AGREEMENT" shall mean this Second Amended and Restated Loan Agreement, as amended, supplemented, restated or otherwise modified from time to time. "AGREEMENT DATE" shall mean April 3, 2000. "ANNUALIZED OPERATING CASH FLOW" shall mean, as of any date, the Operating Cash Flow for the immediately preceding two (2) fiscal quarters multiplied by two (2); PROVIDED THAT, for all - 3 - calculations of Annualized Operating Cash Flow (a) from and including the Agreement Date through the date on which the Borrower files its Form 10-Q for the quarter ended March 31, 2000 (the "10-Q DATE"), Annualized Operating Cash Flow shall be Operating Cash Flow for the quarters ended September 30, 1999 and December 31, 1999 (after giving pro forma effect to the Triton Acquisition) multiplied by two (2), (b) from the 10-Q Date through June 29, 2000, Annualized Operating Cash Flow shall be Operating Cash Flow for the four (4) quarters ended March 31, 2000 (after giving effect to the Triton Acquisition) and (c) from and including June 30, 2000 through September 29, 2000, Annualized Operating Cash Flow shall be Operating Cash Flow for the quarter ended June 30, 2000, multiplied by four (4). "APPLICABLE LAW" shall mean, in respect of any Person, all provisions of constitutions, statutes, rules, regulations and orders of governmental bodies or regulatory agencies applicable to such Person, including, without limiting the foregoing, the Licenses, the Communications Act and all Environmental Laws, and all orders, decisions, judgments and decrees of all courts and arbitrators in proceedings or actions to which the Person in question is a party or by which it is bound. "APPLICABLE MARGIN" shall mean the interest rate margin applicable to Base Rate Advances and LIBOR Advances under the applicable Loans, as the case may be, in each case determined in accordance with Section 2.3(f) hereof (or, with respect to Incremental Facility Advances, as set forth in the Notice of Incremental Facility Commitment). "APPROVED FUND" means, with respect to any Lender that is a fund that invests in commercial loans, any other fund that invests in commercial loans and is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor. "AUTHORIZED SIGNATORY" shall mean such senior personnel of a Person as may be duly authorized and designated in writing by such Person to execute documents, agreements and instruments on behalf of such Person. "BASE RATE" shall mean, at any time, a fluctuating interest rate per annum equal to the higher of (a) the rate of interest quoted from time to time by the Administrative Agent as its "prime rate" or "base rate" and (b) the sum of (i) the Federal Funds Rate and (ii) one-half of one percent (1/2%). The Base Rate is not necessarily the lowest rate of interest chargeD to borrowers of the Administrative Agent. "BASE RATE ADVANCE" shall mean an Advance which the Borrower requests to be made as a Base Rate Advance or is Converted to a Base Rate Advance, in accordance with the provisions of Section 2.2 hereof, and which shall be in a principal amount of at least $500,000, and in an integral multiple of $100,000. "BASE RATE BASIS" shall mean a simple interest rate equal to the sum of (i) the Base Rate and (ii) the Applicable Margin for Base Rate Advances with respect to the applicable Loans. The Base Rate Basis shall be adjusted automatically as of the opening of business on the effective date of each change in the Base Rate to account for such change, and shall also be adjusted to reflect changes in the Applicable Margin applicable to Base Rate Advances. - 4 - "BORROWER" shall mean Rural Cellular Corporation, a Minnesota corporation. "BORROWER'S PLEDGE AGREEMENT" shall mean that certain Second Amended and Restated Borrower's Pledge Agreement dated as of the Agreement Date between the Borrower and the Administrative Agent, substantially in the form of EXHIBIT A attached hereto, pursuant to which the Borrower has pledged to the Administrative Agent, for itself and on behalf of the Lenders, all of the Borrower's stock ownership or membership interests in each of its Subsidiaries. "BTA" shall mean any "basic trading area" as defined and modified by the FCC for the purpose of licensing personal communications services telecommunications systems. "BUSINESS DAY" shall mean a day on which banks and foreign exchange markets are open for the transaction of business required for this Agreement in Houston, Texas, New York, New York and London, England, as relevant to the determination to be made or the action to be taken. "CAPITAL EXPENDITURES" shall mean for any period, expenditures (including, without limitation, the aggregate amount of Capitalized Lease Obligations required to be paid during such period) incurred by any Person to acquire or construct fixed assets, plant and equipment (including, without limitation, renewals, improvements and replacements, but excluding repairs and maintenance) during such period, that would be required to be capitalized on the balance sheet of such Person in accordance with GAAP on a consolidated basis for the Borrower and its Subsidiaries; PROVIDED, THAT for all calculations hereunder which include periods prior to the Agreement Date, Capital Expenditures hereunder shall include Capital Expenditures by Triton with respect to the assets acquired from Triton during such period. "CAPITAL STOCK" shall mean, as applied to any Person, any capital stock of such Person, regardless of class or designation, and all warrants, options, purchase rights, conversion or exchange rights, voting rights, calls or claims of any character with respect thereto. "CAPITALIZED LEASE OBLIGATION" shall mean that portion of any obligation of a Person as lessee under a lease which at the time would be required to be capitalized on the balance sheet of such lessee in accordance with GAAP. "CELLULAR SYSTEM" means a cellular mobile radio telephone system constructed and operated in an MSA or an RSA, or a PCS System constructed and operated in a BTA and shall include a microwave system or a paging system operated in connection with (or in the same general service area as) any of the foregoing systems. "CERTIFICATE OF FINANCIAL CONDITION" shall mean a certificate, substantially in the form of EXHIBIT B attached hereto, signed by the chief financial officer of the Borrower, together with any schedules, exhibits or annexes appended thereto. "CLASS M STOCK" shall mean those 110,000 shares of Convertible Voting Preferred Stock of the Borrower issued on the Agreement Date in connection with the Triton Acquisition. - 5 - "CLASS T STOCK" shall mean those (a) 2,176,875 Class A shares and (b) 5,363,214 Class B shares, in each case of Preferred Stock of the Borrower issued on April 3, 2000 to Telephone & Data Systems, Inc. in exchange for certain of their Class A and Class B Common Stock of the Borrower issued, together with any additional stock of this class issued as payment in kind dividends thereon. "COBRA" shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985 and any amendments thereto. "CODE" shall mean the Internal Revenue Code of 1986, as amended from time to time. "COLLATERAL" shall mean any property of any kind constituting collateral for the Obligations under any of the Security Documents. "COMMITMENTS" shall mean, collectively, the Revolving Loan Commitments, the Term Loan A Commitments, the Term Loan B Commitments, the Term Loan C Commitments and, as applicable, the Incremental Facility Commitments; and "COMMITMENT" shall mean any of the foregoing Commitments. "COMMITMENT RATIOS" shall mean the percentages in which the Lenders are severally bound to fund their respective portion of Advances to the Borrower under the Commitments set forth on Schedule 7, attached hereto, (together with dollar amounts) as of the Agreement Date (and which may change from time to time in accordance with Sections 2.15 and 11.5 hereof). "COMMUNICATIONS ACT" shall mean the Communications Act of 1934, and any similar or successor federal statute, and the rules and regulations of the FCC thereunder, all as the same may be in effect from time to time. "CONTINUE", "CONTINUATION" and "CONTINUED" shall mean the continuation pursuant to Article 2 hereof of a LIBOR Advance as a LIBOR Advance from one Interest Period to a different Interest Period. "CONVERT", "CONVERSION" and "CONVERTED" shall mean a conversion pursuant to Article 2 hereof of a LIBOR Advance into a Base Rate Advance or of a Base Rate Advance into a LIBOR Advance, as applicable. "COOPERATIVE LENDER" shall mean CoBank, ACB. "CO-SYNDICATION AGENTS" shall mean First Union National Bank and PNC Bank, National Association. "DEBT SERVICE" shall mean, with respect to the Borrower and its Subsidiaries, for any period, the sum of (a) Scheduled Loan Payments with respect to the Revolving Loans during such period; (b) scheduled payments of principal on all Indebtedness for Money Borrowed (other than the Revolving Loans) during such period and (c) Interest Expense during such period. - 6 - "DEFAULT" shall mean any Event of Default, and any of the events specified in Section 8.1 hereof, regardless of whether there shall have occurred any passage of time or giving of notice, or both, that would be necessary in order to constitute such event an Event of Default. "DEFAULT RATE" shall mean, as of any date, a simple per annum interest rate equal to the sum of (a) the Base Rate, (b) the Applicable Margin for Base Rate Advances (calculated using the highest Applicable Margin for Base Rate Advances for the applicable Loans as set forth in Section 2.3(f) hereof without giving effect to the Total Leverage Ratio then in effect), and (c) two percent (2%). "DEPOSIT ACCOUNT" shall have the meaning ascribed thereto in Section 2.11(c) hereof. "DOCUMENTATION AGENT" shall mean Bank of America Securities, LLC. "EBITDA" shall mean, with respect to any Person for any period, the earnings before interest, taxes, depreciation and amortization expenses for such period, all as determined in accordance with GAAP. "EMPLOYEE PENSION PLAN" shall mean any Plan which is (a) maintained by the Borrower, any of its Subsidiaries or any of its ERISA Affiliates and (b) subject to Part 3 of Title I of ERISA. "ENVIRONMENTAL LAWS" shall mean all applicable federal, state or local laws, statutes, rules, regulations or ordinances, codes, common law, consent agreements, orders, decrees, judgments or injunctions issued, promulgated, approved or entered thereunder relating to public health, safety or the pollution or protection of the environment, including, without limitation, those relating to releases, discharges, emissions, spills, leaching, or disposals to air, water, land or ground water, to the withdrawal or use of ground water, to the use, handling or disposal of polychlorinated biphenyls, asbestos or urea formaldehyde, to the treatment, storage, disposal or management of hazardous substances (including, without limitation, petroleum, crude oil or any fraction thereof, or other hydrocarbons), pollutants or contaminants, to exposure to toxic, hazardous or other controlled, prohibited, or regulated substances, including, without limitation, any such provisions under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. ss. 9601 et seq.), or the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. ss. 6901 et seq.). "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as in effect from time to time. "ERISA AFFILIATE" shall mean any Person, including a Subsidiary or an Affiliate of the Borrower, that is a member of any group of organizations (within the meaning of Code Sections 414(b), (c), (m) or (o)) of which the Borrower is a member. "EURODOLLAR RESERVE PERCENTAGE" shall mean the percentage which is in effect from time to time under Regulation D of the Board of Governors of the Federal Reserve System, as such regulation may be amended from time to time ("REGULATION D"), as the maximum reserve - 7 - requirement applicable with respect to Eurocurrency Liabilities (as that term is defined in Regulation D), whether or not any Lender has any such Eurocurrency Liabilities subject to such reserve requirement at that time. "EVENT OF DEFAULT" shall mean any of the events specified in Section 8.1 hereof, provided that any requirement for notice or lapse of time has been satisfied. "EXCESS CASH FLOW" shall mean, as of the end of any fiscal year of the Borrower based on the audited financial statements provided under Section 6.2 hereof for such fiscal year, the remainder of (a) Operating Cash Flow for such fiscal year, minus (b) the sum of (i) Capital Expenditures made during such fiscal year exclusive of Investments by the Borrower in Wireless Alliance permitted hereunder, (ii) Scheduled Loan Payments made during such period, (iii) cash taxes paid by the Borrower and its Subsidiaries during such fiscal year, (iv) Interest Expense during such fiscal year, (v) principal payments in respect of Indebtedness for Money Borrowed (other than with respect to the Revolving Loans) paid by the Borrower and its Subsidiaries during such year and (vi) $1,000,000. "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended from time to time. "FCC" shall mean the Federal Communications Commission, or any other similar or successor agency of the federal government administering the Communications Act. "FEDERAL FUNDS RATE" shall mean, as of any date, the weighted average of the rates on overnight federal funds transactions with the members of the Federal Reserve System arranged by federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three (3) federal funds brokers of recognized standing selected by the Administrative Agent. "GAAP" shall mean, as in effect from time to time, generally accepted accounting principles in the United States, consistently applied. "GUARANTY" or "GUARANTEED," as applied to an obligation, shall mean and include (a) a guaranty, direct or indirect, in any manner, of all or any part of such obligation, and (b) any agreement, direct or indirect, contingent or otherwise, the practical effect of which is to assure in any way the payment or performance (or payment of damages in the event of non-performance) of all or any part of such obligation, including, without limiting the foregoing, any reimbursement obligations as to amounts drawn down by beneficiaries of outstanding letters of credit or capital call requirements. "HEADQUARTER'S MORTGAGE" shall mean those certain Mortgages in favor of the Administrative Agent (on behalf of the Lenders) and pertaining to the Borrower's headquarter's properties located in Alexandria, Minnesota. - 8 - "INCREMENTAL FACILITY ADVANCE" shall mean an Advance made by any Lender holding an Incremental Facility Commitment pursuant to Section 2.14 hereof. "INCREMENTAL FACILITY COMMITMENT" shall mean the commitment of any Lender or Lenders to make advances to the Borrower in accordance with Section 2.14 hereof (the Borrower may obtain Incremental Facility Commitments from more than one Lender, which commitments shall be several obligations of each such Lender); and "INCREMENTAL FACILITY COMMITMENTS" shall mean the aggregate of the Incremental Facility Commitments of each Lender. "INCREMENTAL FACILITY COMMITMENT RATIOS" shall mean percentages in which the Lenders holding an Incremental Facility Commitment are severally bound to fund their respective portions of Advances to the Borrower under the Incremental Facility Commitments which are set forth in the Notice of Incremental Facility Commitment. "INCREMENTAL FACILITY LOANS" shall mean the amounts advanced by the Lenders holding an Incremental Facility Commitment to the Borrower as Incremental Facility Loans under the Incremental Facility Commitment, and evidenced by the Incremental Facility Notes. "INCREMENTAL FACILITY MATURITY DATE" shall mean that date specified in the Notice of Incremental Facility Commitment as the maturity date of an Incremental Facility Advance. "INCREMENTAL FACILITY NOTES" shall mean those certain Incremental Facility Notes described in Section 2.14 hereof. "INDEBTEDNESS" shall mean, with respect to any Person, and without duplication, (a) all items, except items of shareholders' and partners' equity or capital stock or surplus or general contingency or deferred tax reserves, which in accordance with GAAP would be included in determining total liabilities as shown on the liability side of a balance sheet of such Person, including, without limitation, to the extent of the higher of the book value or fair market value of the property or asset securing such obligation (if less than the amount of such obligation), secured non-recourse obligations of such Person, (b) all direct or indirect obligations of any other Person secured by any Lien to which any property or asset owned by such Person is subject, but only to the extent of the higher of the fair market value or the book value of the property or asset subject to such Lien (if less than the amount of such obligation) if the obligation secured thereby shall not have been assumed, (c) to the extent not otherwise included, all Capitalized Lease Obligations of such Person and all obligations of such Person with respect to leases constituting part of a sale and lease-back arrangement, (d) all reimbursement obligations with respect to outstanding letters of credit, and (e) to the extent not otherwise included, all obligations subject to Guaranties of such Person or its Subsidiaries, and (f) all obligations of such Person under Interest Hedge Agreements. "INDEBTEDNESS FOR MONEY BORROWED" shall mean, with respect to any Person, Indebtedness for money borrowed and Indebtedness represented by notes payable and drafts accepted representing extensions of credit, all obligations evidenced by bonds, debentures, notes or other similar instruments, all Indebtedness upon which interest charges are customarily paid, - 9 - all Capitalized Lease Obligations, all reimbursement obligations with respect to outstanding letters of credit, all Indebtedness issued or assumed as full or partial payment for property or services (other than trade payables arising in the ordinary course of business, but only if and so long as such accounts are payable on customary trade terms), whether or not any such notes, drafts, obligations or Indebtedness represent Indebtedness for money borrowed, purchase money indebtedness and, without duplication, Guaranties of any of the foregoing but excluding Preferred Stock. For purposes of this definition, interest which is accrued but not paid on the scheduled due date for such interest shall be deemed Indebtedness for Money Borrowed. "INDEMNITEE" shall have the meaning ascribed thereto in Section 5.12 hereof. "INTEREST EXPENSE" shall mean, for any period, all cash interest expense (including imputed interest with respect to Capitalized Lease Obligations) with respect to any Indebtedness for Money Borrowed of the Borrower and its Subsidiaries on a consolidated basis during such period pursuant to the terms of such Indebtedness for Money Borrowed, together with all fees payable in respect thereof, all as calculated in accordance with GAAP (including, without limitation, all cash interest paid on any Subordinated Indebtedness) and dividends paid in cash with respect to the Preferred Stock; PROVIDED, HOWEVER, that for all calculations of Interest Expense (a) from and including the Agreement Date through June 29, 2000 shall be calculated with respect to the Loans assuming that the Loans advanced on the Agreement Date were outstanding for the relevant period at the interest rates in effect for such Loans (and giving effect to Advances made subsequent to the Agreement Date, if applicable), (b) from and including June 30, 2000 through September 29, 2000, shall be Interest Expense for the quarter ended June 30, 2000, multiplied by four (4), (c) from and including September 30, 2000, through December 30, 2000, shall be Interest Expense for the two quarter period ended September 30, 2000 multiplied by two (2), and (d) from and including December 31, 2000 through March 30, 2001, shall be Interest Expense for the three (3) quarters ending December 31, 2000 multiplied by 4/3. "INTEREST HEDGE AGREEMENTS" shall mean the obligations of any Person pursuant to any arrangement with any other Person whereby, directly or indirectly, such Person is entitled to receive from time to time periodic payments calculated by applying either a floating or a fixed rate of interest on a stated notional amount in exchange for periodic payments made by such Person calculated by applying a fixed or a floating rate of interest on the same notional amount and shall include, without limitation, interest rate swaps, caps, floors, collars and similar agreements. "INTEREST PERIOD" shall mean (a) in connection with any Base Rate Advance, the period beginning on the date such Advance is made and ending on the last day of the calendar quarter in which such Advance is made; PROVIDED, HOWEVER, that if a Base Rate Advance is made on the last day of any calendar quarter, it shall have an Interest Period ending on, and its Payment Date shall be, the last day of the following calendar quarter, and (b) in connection with any LIBOR Advance, the term of such Advance selected by the Borrower or otherwise determined in accordance with this Agreement. Notwithstanding the foregoing, however, (i) any applicable Interest Period which would otherwise end on a day which is not a Business Day shall be extended to the next succeeding Business Day unless, with respect to LIBOR Advances only, - 10 - such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any applicable Interest Period, with respect to LIBOR Advances only, which begins on a day for which there is no numerically corresponding day in the calendar month during which such Interest Period is to end shall (subject to clause (i) above) end on the last day of such calendar month, and (iii) the Borrower shall not select an Interest Period which extends beyond the Revolving Loan Maturity Date, Term Loan A Maturity Date, Term Loan B Maturity Date, Term Loan C Maturity Date or Incremental Facility Maturity Date, as applicable or such earlier date as would interfere with the Borrower's repayment obligations under Section 2.4, 2.6 or 2.7 hereof. Interest shall be due and payable with respect to any Advance as provided in Section 2.3 hereof. "INTEREST RATE BASIS" shall mean the Base Rate Basis or the LIBOR Basis, as appropriate. "INVESTMENT" shall mean, with respect to the Borrower or any of its Subsidiaries, (a) any loan, advance or extension of credit (other than to customers in the ordinary course of business) by such Person to, or any Guaranty or other contingent liability with respect to the capital stock, Indebtedness or other obligations of, or any contributions to the capital of, any other Person, or any ownership, purchase or other acquisition by such Person of any interest in any capital stock, limited partnership interest, general partnership interest, or other securities of any such other Person, other than an Acquisition, (b) any acquisition by the Borrower or any of its Subsidiaries of any assets relating to the wireless communications business, and (c) all expenditures by the Borrower or any of its Subsidiaries relating to the foregoing. "Investment" shall also include the total cost of any future commitment or other obligation binding on any Person to make an Investment or any subsequent Investment. "JUNIOR PREFERRED STOCK" shall mean those 140,000 shares of 12 1/4% Junior Exchangeable Preferred Stock of the Borrower issued February 11, 2000, together with any additional Junior Preferred Stock issued as payment in kind dividends thereon. "KNOWN TO THE BORROWER" or "TO THE KNOWLEDGE OF THE BORROWER" shall mean known by or reasonably should have been known by the executive officers of the Borrower (which shall include, without limitation, the chief executive officer, the chief financial officer, the general counsel, or any vice president of the Borrower). "LEAD ARRANGER" shall mean TD Securities (USA) Inc. "LENDERS" shall mean the Persons whose names appear as "Lenders" on the signature pages hereof and any other Person which becomes a "Lender" hereunder after the Agreement Date; and "Lender" shall mean any one of the foregoing Lenders; and for the purposes of the Security Documents, "Lenders" shall include other holders of Obligations hereunder. "LIBOR" shall mean, for any Interest Period, the average (rounded upward to the nearest one-hundredth (1/100th) of one percent (1%)) of the interest rates per annum at which deposits in United States Dollars for such Interest Period are offered to The Toronto-Dominion Bank, in the London interbank borrowing market at approximately 11:00 a.m. (London, England time), two (2) Business Days before the first day of such Interest Period, in an amount approximately equal - 11 - to the principal amount of, and for a length of time approximately equal to the Interest Period for, the LIBOR Advance sought by the Borrower. "LIBOR ADVANCE" shall mean an Advance which the Borrower requests to be made as, Converted to or Continued as a LIBOR Advance, in accordance with the provisions of Section 2.2 hereof, and which shall be in a principal amount of at least $1,000,000 and in an integral multiple of $1,000,000. "LIBOR BASIS" shall mean a simple per annum interest rate equal to the sum of (a) the quotient of (i) LIBOR divided by (ii) one (1) MINUS the Eurodollar Reserve Percentage, if any, stated as a decimal, PLUS (b) the Applicable Margin for LIBOR Advances for the applicable Loans. The LIBOR Basis shall apply to Interest Periods of one (1), two (2), three (3), six (6) months, and, subject to availability as determined by the Administrative Agent, nine (9) and twelve (12) months and, once determined, shall remain unchanged during the applicable Interest Period, except for changes to reflect adjustments in the Eurodollar Reserve Percentage and the Applicable Margin as adjusted pursuant to Section 2.3(f) hereof. The LIBOR Basis for any LIBOR Advance shall be adjusted as of the effective date of any change in the Eurodollar Reserve Percentage. "LICENSES" shall mean any cellular telephone, microwave, personal communications or other license, authorization, certificate of compliance, franchise, approval or permit, whether for the construction or the operation of any Cellular System, granted or issued by the FCC and held by the Borrower or any of its Subsidiaries, all of which are listed as of the Agreement Date on Schedule 1 hereto. "LIEN" shall mean, with respect to any property, any mortgage, lien, pledge, negative pledge or other agreement not to pledge, assignment, charge, security interest, title retention agreement, levy, execution, seizure, attachment, garnishment or other encumbrance of any kind in respect of such property, whether created by statute, contract, the common law or otherwise, and whether or not choate, vested or perfected. "LOAN DOCUMENTS" shall mean this Agreement, the Notes, the Security Documents, all fee letters, all Requests for Advance, all Interest Hedge Agreements between the Borrower, on the one hand, and the Administrative Agent or any of the Lenders (or any of their Affiliates) on the date such Interest Hedge Agreement was entered into, or any of them, on the other hand, all Notices of Incremental Facility Commitments, and all other certificates, documents, instruments and agreements executed or delivered in connection with or contemplated by this Agreement or any other Loan Document. "LOANS" shall mean, collectively, the Term Loans, the Revolving Loans, and, if applicable, the Incremental Facility Loans; and "LOAN" shall mean any one of the foregoing Loans. "MATERIALLY ADVERSE EFFECT" shall mean (a) any material adverse effect upon the business, assets, liabilities, financial condition, results of operations, properties, or business prospects of the Borrower and its Subsidiaries on a consolidated basis, taken as a whole, or (b) a material - 12 - adverse effect upon the binding nature, validity, or enforceability of this Agreement and the Notes, or upon the ability of the Borrower and its Subsidiaries to perform the payment obligations or other material obligations under this Agreement or any other Loan Document, or upon the value of the Collateral or upon the rights, benefits or interests of the Lenders in and to the Loans or the rights of the Administrative Agent and the Lenders in the Collateral; in either case, whether resulting from any single act, omission, situation, status, event or undertaking, or taken together with other such acts, omissions, situations, statuses, events or undertakings. "MSA" shall mean any "metropolitan statistical area" as defined and modified by the FCC for the purpose of licensing public cellular radio telecommunications service systems. "MULTIEMPLOYER PLAN" shall mean a multiemployer pension plan as defined in Section 3(37) of ERISA to which the Borrower, any of its Subsidiaries, or any of its ERISA Affiliates is or has been required to contribute subsequent to September 25, 1980. "NECESSARY AUTHORIZATIONS" shall mean all approvals and licenses from, and all filings and registrations with, any governmental or other regulatory authority, including, without limitation, the Licenses and all approvals, licenses, filings and registrations under the Communications Act, necessary in order to enable the Borrower and its Subsidiaries to own, construct, maintain, and operate Cellular Systems and to invest in other Persons who own, construct, maintain, and operate Cellular Systems. "NET INCOME" shall mean, for the Borrower and its Subsidiaries on a consolidated basis, for any period, net income determined in accordance with GAAP. "NET PROCEEDS" shall mean, with respect to any sale, lease, transfer or other disposition of assets by, or insurance or condemnation proceedings with respect to the assets of the Borrower or any of its Subsidiaries, the aggregate amount of cash received for such assets (including, without limitation, any payments received by the Borrower or any of its Subsidiaries for non-competition covenants, consulting or management fees in connection with such sale, and any portion of the amount received evidenced by a promissory note or other evidence of Indebtedness issued by the purchaser), net of (i) amounts reserved, if any, for taxes payable with respect to any such sale (after application (assuming application, to the extent permitted by Applicable Law, first to such reserves) of any available losses, credits or other offsets), (ii) reasonable and customary transaction costs properly attributable to such transaction or proceeding and payable by the Borrower or any of its Subsidiaries (other than to an Affiliate) in connection with such transaction or proceeding, including, without limitation, commissions, and (iii) until actually received by the Borrower or any of its Subsidiaries, any portion of the amount (x) received held in escrow or (y) evidenced by a promissory note or other evidence of Indebtedness issued by a purchaser or non-compete agreement or covenant or (z) otherwise for which compensation is paid over time. Upon receipt by the Borrower or any of its Subsidiaries of (A) amounts referred to in item (iii) of the preceding sentence, or (B) if there shall occur any reduction in the tax reserves referred to in item (i) of the preceding sentence resulting in a payment to the Borrower, such amounts shall then be deemed to be "Net Proceeds." "NON-U.S. BANK" shall have the meaning ascribed thereto in Section 2.8(a) hereof. - 13 - "NOTES" shall mean, collectively, the Term Loan Notes, the Revolving Loan Notes, if applicable, the Incremental Facility Notes, and any other promissory note issued by the Borrower to evidence the Term Loans or Revolving Loans pursuant to this Agreement, and any extensions, renewals, or amendments to, or replacements of, the foregoing; and "NOTE" shall mean any one of the foregoing Notes. "NOTICE OF INCREMENTAL FACILITY COMMITMENT" shall mean the notice by the Borrower of the Incremental Facility Commitment, which notice shall be substantially in the form of EXHIBIT C attached hereto and shall be delivered to the Administrative Agent and the Lenders. "OBLIGATIONS" shall mean all payment and performance obligations of every kind, nature and description of the Borrower, its Subsidiaries, and any other obligors to the Lenders, the Administrative Agent, or any of them, under this Agreement and the other Loan Documents (including, without limitation, any interest, fees and other charges on the Loans or otherwise under the Loan Documents that would accrue but for the filing of a bankruptcy action with respect to the Borrower, whether or not such claim is allowed in such bankruptcy action and including Obligations to the Lenders pursuant to Section 5.13 hereof) as they may be amended from time to time, or as a result of making the Loans, whether such obligations are direct or indirect, absolute or contingent, due or not due, contractual or tortious, liquidated or unliquidated, arising by operation of law or otherwise, now existing or hereafter arising. "OPERATING CASH FLOW" shall mean, with respect to the Borrower and its Subsidiaries on a consolidated basis as of the end of any period, (a) Net Income for such period (after eliminating any extraordinary gains and losses, including, without limitation, gains and losses from the sale of assets), plus (b) to the extent deducted in determining Net Income, the sum of the following for such period: (i) depreciation and amortization expense, (ii) Interest Expense, (iii) tax expense, and (iv) all other non-cash items (which shall include non-cash interest expense, if any), minus (c) the sum of (i) non-cash credits to Net Income and (ii) EBITDA of Wireless Alliance. In the case of an Acquisition permitted hereunder, Operating Cash Flow of the Borrower and its Subsidiaries for the applicable test period during which such Acquisition occurs shall be adjusted (A) to give effect to such Acquisition, as if such Acquisition had occurred on the first day of such test period, by excluding the Operating Cash Flow of such Acquisition during such test period prior to the date of such Acquisition and adding to the Operating Cash Flow of the Borrower, if positive, or subtracting from such Operating Cash Flow, if negative, the product of (i) the actual Operating Cash Flow of such Acquisition for that portion of such test period from the date of such Acquisition to the last day of such period, TIMES (ii) a fraction the numerator of which is the number of calendar days in such test period and the denominator of which is the number of days in such test period from and including the date of such Acquisition through the last day of such test period, and (B) by adding to the Operating Cash Flow of the Borrower such expenses incurred by the Borrower and its Subsidiaries as the Required Lenders may agree relate to such Acquisition. For purposes of calculating Operating Cash Flow in connection with an Advance for any such Acquisition, Operating Cash Flow for the Borrower and its Subsidiaries as of the last day of the immediately preceding calendar quarter shall include Operating Cash Flow for the Acquisition for the same period and shall exclude any dispositions of assets during the same period. - 14 - "PAYMENT DATE" shall mean the last day of any Interest Period. "PBGC" shall mean the Pension Benefit Guaranty Corporation, or any successor thereto. "PCS SYSTEM" shall mean any broad band personal communications services telecommunications system operating on radio spectrum in a BTA, or a License to operate such a system. "PERMITTED LIENS" shall mean, as applied to any Person: (a) Any Lien in favor of the Administrative Agent given to secure the Obligations; (b) (i) Liens on real estate or other property for taxes, assessments, governmental charges or levies not yet delinquent and (ii) Liens for taxes, assessments, judgments, governmental charges or levies or claims the non-payment of which is being diligently contested in good faith by appropriate proceedings and for which adequate reserves have been set aside on such Person's books, but only so long as no foreclosure, distraint, sale or similar proceedings have been commenced with respect thereto; (c) Liens of carriers, warehousemen, mechanics, laborers and materialmen incurred in the ordinary course of business for sums not yet due or being diligently contested in good faith, if reserves or appropriate provisions shall have been made therefor; (d) Liens incurred in the ordinary course of business in connection with workers' compensation and unemployment insurance which are not overdue for more than sixty (60) days; (e) Restrictions on the transfer of the Licenses or assets of the Borrower or its Subsidiaries imposed by any of the Licenses as presently in effect or by the Communications Act and any regulations thereunder; (f) Easements, rights-of-way, and other similar encumbrances on the use of real property which do not materially interfere with the ordinary conduct of the business of such Person or the use of such property; (g) Liens securing Indebtedness to the extent permitted pursuant to Sections 7.1(g) and (i) hereof; (h) Liens reflected by Uniform Commercial Code financing statements filed in respect of Capitalized Lease Obligations permitted pursuant to Section 7.1(i) hereof and true leases of the Borrower or any of its Subsidiaries; and (i) Liens set forth on SCHEDULE 2 attached hereto. - 15 - "PERSON" shall mean an individual, corporation, limited liability company, association, partnership, joint venture, trust or estate, an unincorporated organization, a government or any agency or political subdivision thereof, or any other entity. "PLAN" shall mean an employee benefit plan within the meaning of Section 3(3) of ERISA or any other employee benefit plan maintained for employees of the Borrower or any ERISA Affiliate of the Borrower, including the Subsidiaries. "PREFERRED STOCK" shall mean the Previous Senior Preferred Stock, the 2000 Senior Preferred Stock, the Junior Preferred Stock, the Class M Stock and the Class T Stock. "PREVIOUS SENIOR PREFERRED STOCK" shall mean those 125,000 shares of 11 3/8% Senior Exchangeable Preferred Stock of the Borrower, issued on May 14, 1998, together with additional 11 3/8% Senior Exchangeable Preferred Stock of the Borrower issued as payment in kind dividends thereon. "PRO FORMA DEBT SERVICE" shall mean, with respect to the Borrower and its Subsidiaries, for any period, the sum of (a) Pro Forma Scheduled Principal Payments with respect to the Revolving Loans during such period, (b) scheduled payments of principal with respect to the Term Loans during such period, and (c) scheduled payments on all other Indebtedness for Money Borrowed during such period. "PRO FORMA SCHEDULED PRINCIPAL PAYMENTS" shall mean for any period (a) the outstanding principal amount of the Revolving Loans on the date of determination minus (b) the Revolving Loan Commitment scheduled to be available on the last day of such period after giving effect to the reductions set forth in Section 2.5(a) hereof. "REFINANCING DATE" shall mean that date six months prior to the May 2008 maturity date of the Subordinated Notes. "REGISTER" shall have the meaning ascribed to such term in Section 11.5(g) hereof. "REGISTERED NOTEHOLDER" shall mean each Non-U.S. Bank that requests or holds a Registered Note pursuant to Section 2.8(a) hereof or registers its Loans pursuant to Section 11.5(g) hereof. "REGISTERED NOTES" shall mean, collectively, those certain Notes that have been issued in registered form in accordance with Sections 2.8(a) and 11.5(g) hereof and each of which bears the following legend: "This is a Registered Note, and this Registered Note and the Loans evidenced hereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer on the Register and in compliance with all other requirements provided for in the Loan Agreement." "REGULATIONS" shall have the meaning ascribed thereto in Section 4.1(n) hereof. - 16 - "REPORTABLE EVENT" shall mean, with respect to any Employee Pension Plan, an event described in Section 4043(b) of ERISA. "REQUEST FOR ADVANCE" shall mean a certificate designated as a "Request for Advance," signed by an Authorized Signatory of the Borrower requesting an Advance hereunder, which shall be in substantially the form of EXHIBIT D attached hereto, and shall, among other things, (i) specify the date of the Advance, which shall be a Business Day, the amount of the Advance, the type of Advance (LIBOR or Base Rate), and, with respect to LIBOR Advances, the Interest Period selected by the Borrower, (ii) state that, to the knowledge of the Person signing such request, there shall not exist, on the date of the requested Advance and after giving effect thereto, a Default, as of the date of such Advance and after giving effect thereto, (iii) the Applicable Margin, and (iv) designate the amount of the Revolving Loan Commitments and, if applicable, the Term Loan A Commitments, Term Loan B Commitments, Term Loan C Commitments and the Incremental Facility Commitments, being drawn. "REQUIRED LENDERS" shall mean collectively, (a) if there are no Loans outstanding, Lenders the total of whose Commitment Ratios equals or exceeds fifty-one percent (51%) of the Commitment Ratios of all Lenders entitled to vote hereunder or (b) if there are any Loans outstanding, Lenders the total of whose Commitment Ratios for Revolving Loans (and Incremental Facility Commitment Ratios as applicable) and Term Loans A Loans, Term Loan B Loans and Term Loan C Loans outstanding equals or exceeds fifty-one percent (51%) of the Commitment Ratios for Revolving Loans (and Incremental Facility Commitment Ratios as Applicable) and Term Loan A Loans, Term Loan B Loans, and Term Loan C Loans of all Lenders entitled to vote hereunder. "RESTRICTED PAYMENT" shall mean any direct or indirect cash distribution, dividend, cash interest payment or other payment to any Person (other than to the Borrower or any majority-owned Subsidiary of the Borrower) on account of (a) any general or limited partnership or membership interest in, or shares of Capital Stock or other securities of, the Borrower or any of its Subsidiaries (other than dividends payable solely in stock of such Person and stock splits), including, without limitation, any direct or indirect distribution, dividend or other payment to any Person (other than to the Borrower or any Subsidiary of the Borrower) on account of any warrants or other rights or options to acquire shares of capital stock of the Borrower or any of its Subsidiaries and (b) Subordinated Indebtedness. "RESTRICTED PURCHASE" shall mean any payment (including, without limitation, any sinking fund payment, prepayment or installment payment) on account of the purchase, redemption or other acquisition or retirement of any general or limited partnership or membership interest in, or shares of capital stock or other securities of the Borrower or any of the Borrower's Subsidiaries, including, without limitation, any warrants or other rights or options to acquire shares of capital stock of the Borrower or any of the Borrower's Subsidiaries or any loan, advance, release or forgiveness of Indebtedness by the Borrower or its Subsidiaries to any partner, shareholder or Affiliate of any such Person. "REVOLVING LOAN COMMITMENTS" shall mean the several obligations of the Lenders to advance to the Borrower an aggregate amount of up to $275,000,000 at any one time - 17 - outstanding, in accordance with their respective Commitment Ratios for Revolving Loans as set forth in the definition of "Commitment Ratios" pursuant to the terms hereof, and as such obligations may be reduced from time to time pursuant to the terms hereof. "REVOLVING LOAN MATURITY DATE" shall mean April 3, 2008, or as the case may be, such earlier date as payment of the Obligations shall be due (whether by acceleration, reduction of the Commitments to zero or otherwise); PROVIDED, HOWEVER, that if the Subordinated Notes are not repaid or refinanced prior to the Refinancing Date, the Revolving Loan Maturity Date shall accelerate to that Refinancing Date. "REVOLVING LOAN NOTES" shall mean, collectively, those certain revolving promissory notes in the aggregate original principal amount of the Revolving Loan Commitment and one issued by the Borrower to each of the Lenders holding a Revolving Loan Commitments, each substantially in the form of EXHIBIT E attached hereto, and any extensions, modifications, renewals or replacements of, or amendments to, any of the foregoing. "REVOLVING LOANS" shall mean the amounts advanced by each Lender having a Revolving Loan Commitment to the Borrower as Revolving Loans, and evidenced by the Revolving Loan Notes. "RSA" shall mean any "rural service area" as defined and modified by the FCC for the purpose of licensing public cellular radio telecommunications service systems. "SCHEDULED LOAN PAYMENTS" shall mean, for any period, with respect to the Revolving Loans, the excess, if any, of (i) the highest amount of the Revolving Loans outstanding at any time during such period, over (ii) the amount of the Revolving Loan Commitment on the last day of such period (after giving effect to any reduction in the Revolving Loan Commitment on such date pursuant to Section 2.5 hereof). "SECURITY AGREEMENT" shall mean that certain Second Amended and Restated Security Agreement dated as of the Agreement Date by and between the Borrower and the Administrative Agent, for itself and on behalf of the Lenders, substantially in the form of EXHIBIT F attached hereto. "SECURITY DOCUMENTS" shall mean the Borrower's Pledge Agreement, the Security Agreement, each Subsidiary Guaranty, each Subsidiary Pledge Agreement, each Subsidiary Security Agreement, the Headquarter's Mortgage, any other agreement or instrument providing Collateral for the Obligations whether now or hereafter in existence, and any filings (including, without limitation, financing statements), instruments, agreements, and documents related thereto or to this Agreement, and providing the Administrative Agent, for the benefit of the Lenders, with Collateral for the Obligations. "SECURITY INTEREST" shall mean all Liens in favor of the Administrative Agent, for the benefit of the Administrative Agent and the Lenders, created hereunder or under any of the Security Documents to secure the Obligations. - 18 - "SUBORDINATED INDEBTEDNESS" shall mean Indebtedness for Money Borrowed of the Borrower which is subordinated to the Obligations on terms and conditions acceptable to the Required Lenders and shall include, without limitation, the Subordinated Notes. "SUBORDINATED NOTES" shall mean those $125,000,000 (9 5/8%) Senior Subordinated Notes due 2008 of the Borrower. "SUBSIDIARY" shall mean, as applied to any Person, (a) any corporation of which more than fifty percent (50%) of the outstanding stock (other than directors' qualifying shares) having ordinary voting power to elect a majority of its board of directors, regardless of the existence at the time of a right of the holders of any class or classes of securities of such corporation to exercise such voting power by reason of the happening of any contingency, or any partnership or limited liability company of which more than fifty percent (50%) of the outstanding partnership or membership interests, is at the time owned directly or indirectly by such Person, or by one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of such Person, or (b) any other entity which is directly or indirectly controlled or capable of being controlled by such Person, or by one or more Subsidiaries of such Person, or by such Person and one or more Subsidiaries of such Person. Notwithstanding the foregoing, Subsidiary shall not include Wireless Alliance. "SUBSIDIARY GUARANTY" shall mean that certain Second Amended and Restated Master Subsidiary Guaranty dated as of the Agreement Date in substantially the form of EXHIBIT G attached hereto in favor of the Administrative Agent and the Lenders, given by each Subsidiary of the Borrower, and shall include any similar agreements executed pursuant to Section 5.14 hereof. "SUBSIDIARY PLEDGE AGREEMENT" shall mean that certain Second Amended and Restated Master Subsidiary Pledge Agreement dated as of the Agreement Date in substantially the form of EXHIBIT F attached hereto by and between each Subsidiary of the Borrower having one or more of its own Subsidiaries, on the one hand, and the Administrative Agent, for itself and on behalf of the Lenders, on the other hand, and shall include any similar agreements executed pursuant to Section 5.14 hereof. "SUBSIDIARY SECURITY AGREEMENT" shall mean that certain Second Amended and Restated Master Subsidiary Security Agreement dated as of the Agreement Date in substantially the form of EXHIBIT G attached hereto by and between each of the Borrower's Subsidiaries, on the one hand, and the Administrative Agent, for itself and on behalf of the Lenders, on the other hand, and shall include any similar agreements executed pursuant to Section 5.14 hereof. "TERM LOAN A COMMITMENTS" shall mean the several obligations of the Lenders having a Term Loan A Commitment to advance to the Borrower an aggregate amount of up to $450,000,000 at any one time outstanding, in accordance with their respective Commitment Ratios for Term Loan A Loans, and as such obligations may be reduced from time to time in each case, pursuant to the terms hereof; and "TERM LOAN A COMMITMENT" shall mean the individual commitment of each such Lender to advance Term Loan A Loans hereunder. - 19 - "TERM LOAN A LOANS" shall mean the amounts advanced by the Lenders holding a Term Loan A Commitment to the Borrower as Term Loan A Loans and evidenced by the Term Loan A Notes. "TERM LOAN A MATURITY DATE" shall mean April 3, 2008, or as the case may be, such earlier date as payment of the Obligations shall be due (whether by acceleration, reduction of the Commitments to zero or otherwise); PROVIDED, HOWEVER, that if the Subordinated Notes are not repaid or refinanced prior to the Refinancing Date, the Term Loan A Maturity Date shall accelerate to that Refinancing Date. "TERM LOAN A NOTES" shall mean, collectively, those certain term promissory notes in the aggregate original principal amount of the Term Loan A Commitments, and one issued by the Borrower to each of the Lenders having a Term Loan A Commitment, each substantially in the form of EXHIBIT J attached hereto, and any extensions, modifications, renewals or replacements of, or amendments to, any of the foregoing. "TERM LOAN B COMMITMENTS" shall mean the several obligations of the Lenders having a Term Loan B Commitment to advance to the Borrower an aggregate amount of up to $237,500,000 at any time outstanding, in accordance with their respective Commitment Ratios for Term Loan B Loans pursuant to the terms hereof, and as such obligations may be reduced from time to time pursuant to the terms hereof; and "TERM LOAN B COMMITMENT" shall mean the individual commitment of each such Lender to advance Term Loan B Loans hereunder. "TERM LOAN B LOANS" shall mean the amounts advanced by the Lenders holding a Term Loan B Commitment to the Borrower as Term Loan B Loans and evidenced by the Term Loan B Notes. "TERM LOAN B MATURITY DATE" shall mean October 3, 2008, or as the case may be, such earlier date as payment of the Obligations shall be due (whether by acceleration, reduction of the Commitments to zero or otherwise). "TERM LOAN B NOTES" shall mean, collectively, those certain term promissory notes in the aggregate original principal amount of Term Loan B Commitment, and one issued by the Borrower to each of the Lenders having a Term Loan B Commitment, each substantially in the form of EXHIBIT K attached hereto, and any extensions, modifications, renewals or replacements of, or amendments to, any of the foregoing. "TERM LOAN C COMMITMENTS" shall mean the several obligations of the Lenders having a Term Loan Commitment to advance to the Borrower an aggregate amount of up to $237,500,000 at any one time outstanding, in accordance with their respective Commitment Ratios for Term Loan C Loans pursuant to the terms hereof; and as such obligations may be reduced from time to time pursuant to the terms hereof; and "TERM LOAN C COMMITMENT" shall mean the individual commitment of each such Lender to advance Term Loan C Loans hereunder. - 20 - "TERM LOAN C LOANS" shall mean the amounts advanced by the Lenders holding a Term Loan C Commitment to the Borrower as Term Loan C Loans and evidenced by the Term Loan C Notes. "TERM LOAN C MATURITY DATE" shall mean April 3, 2009, or as the case may be, such earlier date as payment of the Obligations shall be due (whether by acceleration, reduction of the Commitments to zero or otherwise). "TERM LOAN C NOTES" shall mean, collectively, those certain term promissory notes in the aggregate original principal amount of the Term Loan C Commitments, and one issued by the Borrower to each of the Lenders having a Term Loan C Commitment, each substantially in the form of EXHIBIT L attached hereto, and any extensions, modifications, renewals or replacements of, or amendments to, any of the foregoing. "TERM LOAN NOTES" shall mean, collectively, the Term Loan A Notes, the Term Loan B Notes and the Term Loan C Notes. "TERM LOANS" shall mean, collectively, Term Loan A Loans, Term Loan B Loans and Term Loan C Loans. "TOTAL DEBT" shall mean, for the Borrower and its Subsidiaries on a consolidated basis as of any date, the sum of (without duplication) (i) the outstanding principal amount of the Loans, (ii) the aggregate amount of Capitalized Lease Obligations and Indebtedness for Money Borrowed of such Persons, and (iii) the aggregate amount of all Guarantees of Indebtedness for Money Borrowed by such Persons. "TOTAL LEVERAGE RATIO" shall mean, as of any date, the ratio of (a) the Total Debt (for purposes hereof, Total Debt shall not include the principal amount of any Indebtedness for Money Borrowed equal to the amount of any cash balance maintained by the Borrower in a segregated deposit account or escrow account which is designated solely for repayments of such Indebtedness for Money Borrowed) of the Borrower and its Subsidiaries on a consolidated basis on such date, to (b) Annualized Operating Cash Flow of the Borrower and its Subsidiaries on a consolidated basis as of the calendar quarter end being tested or the most recently completed calendar quarter for which financial statements are required to have been delivered pursuant to Section 6.1 or 6.2 hereof, as the case may be. "TRITON ACQUISITION" shall mean the Acquisition by the Borrower of substantially all of the assets of Triton Cellular Partners, L.P. "TRITON ASSET PURCHASE AGREEMENT" shall mean that certain Asset Purchase Agreement dated as of November 6, 1999 among Triton Communications L.L.C., the Other Triton Parties and the Borrower. "TRITON KANSAS PROPERTIES" shall mean all assets acquired in Kansas RSA's 1, 2, 6, 7, 11, 12 and 13. - 21 - "UNREINVESTED NET PROCEEDS" shall mean the aggregate Net Proceeds from the sale, transfer or other disposition of an asset in the ordinary course for the Borrower or any of its Subsidiaries with respect to which (a) the Borrower has notified the Administrative Agent in writing that the Borrower intends to use any or all of such Net Proceeds to acquire or purchase an asset as a substitute or replacement of the asset disposed of within twelve (12) months of the date of the sale or disposition of the assets (so long as the Borrower is in compliance with all terms and conditions of this Agreement) and (b) the Borrower uses or irrevocably commits to be used within such twelve (12) month period; PROVIDED, HOWEVER, that once applied to reduce the Commitments or repay Loans hereunder, such Unreinvested Net Proceeds shall cease to be Unreinvested Net Proceeds. "WIRELESS ALLIANCE" shall mean Wireless Alliance, L.L.C., a Minnesota limited liability company. Each definition of an agreement in this Article 1 shall include such agreement as modified, amended or supplemented from time to time in accordance herewith. ARTICLE 2 LOANS Section 2.1 THE LOANS. (a) REVOLVING LOAN COMMITMENT. The Lenders having Revolving Loan Commitments agree, severally, in accordance with their respective Commitment Ratios for Revolving Loans, and not jointly, upon the terms and subject to the conditions of this Agreement, to lend and relend to the Borrower from time to time, amounts which do not exceed, in the aggregate, at any one time outstanding the amount of the Revolving Loan Commitment as in effect from time to time. Subject to the terms and conditions hereof, Advances under the Revolving Loan Commitment may be repaid and reborrowed from time to time on a revolving basis. (b) TERM LOAN A LOANS. The Lenders having Term Loan A Commitments agree severally, and not jointly, upon the terms and subject to the conditions of this Agreement to lend to the Borrower, on the Agreement Date, amounts which do not exceed, (i) in the aggregate at any one time outstanding, the Term Loan A Commitments and, (ii) individually, such Lender's Term Loan A Commitment, in each case, as in effect from time to time; PROVIDED, HOWEVER that amounts repaid under the Term Loan A Commitments may not be reborrowed. (c) TERM LOAN B LOANS. The Lenders having Term Loan B Commitments agree severally, and not jointly, upon the terms and subject to the conditions of this Agreement to lend to the Borrower on the Agreement Date amounts which do not exceed, (i) in the aggregate at any one time outstanding, the Term Loan B Commitments and, (ii) individually, such Lender's Term Loan B Commitment; PROVIDED, HOWEVER, that amounts repaid under the Term Loan B Commitments may not be reborrowed. - 22 - (d) TERM LOAN C LOANS. The Lenders having Term Loan C Commitments agree severally, and not jointly, upon the terms and subject to the conditions of this Agreement to lend to the Borrower on the Agreement Date amounts which do not exceed, (i) in the aggregate at any one time outstanding, the Term Loan C Commitments and, (ii) individually, such Lender's Term Loan C Commitment; PROVIDED, HOWEVER, that amounts repaid under the Term Loan C Commitments may not be reborrowed. Section 2.2 MANNER OF BORROWING AND DISBURSEMENT. (a) CHOICE OF INTEREST RATE, ETC. Any Advance shall, at the option of the Borrower, be made as a Base Rate Advance or a LIBOR Advance; PROVIDED, HOWEVER, that at such time as there shall have occurred and be continuing a Default hereunder, the Borrower shall not have the right to receive or Continue a LIBOR Advance or to Convert a Base Rate Advance to a LIBOR Advance. Any notice given to the Administrative Agent in connection with a requested Advance hereunder shall be given to the Administrative Agent prior to 11:00 a.m. (New York, New York time) in order for such Business Day to count toward the minimum number of Business Days required. (b) BASE RATE ADVANCES. (i) ADVANCES. The Borrower shall give the Administrative Agent in the case of Base Rate Advances at least one (1) Business Day's irrevocable prior written notice in the form of a Request for Advance, or telephonic notice followed immediately by a Request for Advance; PROVIDED, HOWEVER, that the Borrower's failure to confirm any telephonic notice with a Request for Advance shall not invalidate any notice so given if acted upon by the Administrative Agent. (ii) CONVERSIONS. The Borrower may, without regard to the applicable Payment Date and upon at least three (3) Business Days' irrevocable prior telephonic notice followed by a Request for Advance, Convert all or a portion of the principal of a Base Rate Advance to a LIBOR Advance. On the date indicated by the Borrower, such Base Rate Advance shall be so Converted. The failure to give timely notice hereunder with respect to the Payment Date of any Base Rate Advance shall be considered a request for a Base Rate Advance. - 23 - (c) LIBOR ADVANCES. (i) ADVANCES. Upon request, the Administrative Agent, whose determination shall be conclusive, shall determine the available LIBOR Bases and shall notify the Borrower of such LIBOR Bases. The Borrower shall give the Administrative Agent in the case of LIBOR Advances at least three (3) Business Days' irrevocable prior written notice in the form of a Request for Advance, or telephonic notice followed immediately by a Request for Advance; PROVIDED, HOWEVER, that the Borrower's failure to confirm any telephonic notice with a Request for Advance shall not invalidate any notice so given if acted upon by the Administrative Agent. (ii) CONVERSIONS AND CONTINUATIONS. At least three (3) Business Days prior to the Payment Date for each LIBOR Advance, the Borrower shall give the Administrative Agent telephonic notice followed by written notice specifying whether all or a portion of such LIBOR Advance (A) is to be Continued in whole or in part as one or more LIBOR Advances, (B) is to be Converted in whole or in part to a Base Rate Advance, or (C) is to be repaid. The failure to give such notice shall preclude the Borrower from Continuing such Advance as a LIBOR Advance on its Payment Date and shall be considered a request to Convert such Advance to a Base Rate Advance. Upon such Payment Date such LIBOR Advance will, subject to the provisions hereof, be so Continued, Converted or repaid, as applicable. (d) NOTIFICATION OF LENDERS. Upon receipt of a Request for Advance, or a notice from the Borrower with respect to any outstanding Advance (including a notice of Conversion or Continuation) prior to the Payment Date for such Advance, the Administrative Agent shall promptly but no later than the close of business on the day of such notice notify each Lender (or, in the case of an Advance under the Incremental Facility Commitment, each Lender having an Incremental Facility Commitment) by telephone or telecopy of the contents thereof and the amount of such Lender's portion of the Advance. Each Lender (or, in the case of an Advance under the Incremental Facility Commitment, each Lender having an Incremental Facility Commitment) shall, not later than 1:00 p.m. (New York, New York time) on the date of borrowing specified in such notice, make available to the Administrative Agent at the Administrative Agent's Office, or at such account as the Administrative Agent shall designate, the amount of its portion of any Advance which represents an additional borrowing hereunder in immediately available funds. (e) DISBURSEMENT. (i) Prior to 2:00 p.m. (New York, New York time) on the date of an Advance hereunder, the Administrative Agent shall, subject to the satisfaction of the conditions set forth in Article 3 hereof, disburse the amounts made available to the Administrative Agent by the Lenders in like funds by (A) transferring the amounts so made available by wire transfer pursuant to the Borrower's instructions, or (B) in the absence of such instructions, crediting the amounts so made available to the account of the Borrower maintained with the Administrative Agent. - 24 - (ii) Unless the Administrative Agent shall have received notice from a Lender prior to 12:00 noon (New York, New York time) on the date of any Advance that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Advance, the Administrative Agent may assume that such Lender has made or will make such portion available to the Administrative Agent on the date of such Advance and the Administrative Agent may in its sole discretion and in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent the Lender does not make such ratable portion available to the Administrative Agent, such Lender agrees to repay to the Administrative Agent on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Administrative Agent, at the Federal Funds Rate. (iii) If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's portion of the applicable Advance for purposes of this Agreement. If such Lender does not repay such corresponding amount immediately upon the Administrative Agent's demand therefor, the Administrative Agent shall notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent, with interest at the Federal Funds Rate. The failure of any Lender to fund its portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to fund its respective portion of the Advance on the date of such borrowing, but no Lender shall be responsible for any such failure of any other Lender. (iv) In the event that, at any time when the Borrower is not in Default and has otherwise satisfied each of the conditions in Section 3.2 hereof, a Lender for any reason fails or refuses to fund its portion of an Advance and such failure shall continue for a period in excess of thirty (30) days, then, until such time as such Lender has funded its portion of such Advance (which late funding shall not absolve such Lender from any liability it may have to the Borrower), or all other Lenders have received payment in full from the Borrower (whether by repayment or prepayment) or otherwise of the principal and interest due in respect of such Advance, such non-funding Lender shall not have the right (A) to vote regarding any issue on which voting is required or advisable under this Agreement or any other Loan Document, and such Lender's portion of the Loans shall not be counted as outstanding for purposes of determining "Required Lenders" hereunder, and (B) to receive payments of principal, interest or fees from the Borrower, the Administrative Agent or the other Lenders in respect of its portion of the Loans. Section 2.3 INTEREST. (a) ON BASE RATE ADVANCES. Interest on each Base Rate Advance shall be computed on the basis of a year of 365/366 days (or, to the extent based on the Federal Funds Rate, 360 days) for the actual number of days elapsed and shall be payable at the Base Rate Basis for such Advance, in arrears on the applicable Payment Date. Interest on Base Rate Advances then outstanding shall also be due and payable on the Revolving Loan Maturity Date, - 25 - Term Loan A Maturity Date, Term Loan B Maturity Date, Term Loan C Maturity Date and Incremental Facility Maturity Date, as applicable. (b) ON LIBOR ADVANCES. Interest on each LIBOR Advance shall be computed on the basis of a 360-day year for the actual number of days elapsed and shall be payable at the LIBOR Basis for such Advance, in arrears on the applicable Payment Date, and, in addition, if the Interest Period for a LIBOR Advance exceeds three (3) months, interest on such LIBOR Advance shall also be due and payable in arrears on every three-month anniversary of the beginning of such Interest Period. Interest on LIBOR Advances then outstanding shall also be due and payable on the Revolving Loan Maturity Date, Term Loan A Maturity Date, Term Loan B Maturity Date, Term Loan C Maturity Date and Incremental Facility Maturity Date, as applicable. (c) INTEREST IF NO NOTICE OF SELECTION OF INTEREST RATE BASIS. If the Borrower fails to give the Administrative Agent timely notice of its selection of a LIBOR Basis, or if for any reason a determination of a LIBOR Basis for any Advance is not timely concluded, the Base Rate Basis shall apply to such Advance. (d) INTEREST UPON DEFAULT. Immediately upon the occurrence of an Event of Default hereunder, the outstanding principal balance of the Loans shall bear interest at the Default Rate. Such interest shall be payable on demand by the Required Lenders and shall accrue until the earlier of (i) waiver or cure of the applicable Event of Default, (ii) agreement by the Required Lenders (or, if applicable to the underlying Event of Default, the Lenders) to rescind the charging of interest at the Default Rate, or (iii) payment in full of the Obligations. (e) LIBOR CONTRACTS. At no time may the number of outstanding LIBOR Advances together with any outstanding Base Rate Advances exceed eight (8). For the purposes of this Section 2.3(e), all outstanding Base Rate Advances shall be deemed to be a single Base Rate Advance. (f) APPLICABLE MARGIN. (i) REVOLVING LOANS AND TERM LOAN A LOANS. With respect to any Advance under the Revolving Loan Commitments or the Term Loan A Commitments, the Applicable Margin shall be as set forth in a certificate of the chief financial officer of the Borrower delivered to the Administrative Agent based upon the Total Leverage Ratio for the most recent fiscal quarter end for which financial statements are furnished by the Borrower to the Administrative Agent and each Lender as follows: - 26 -
BASE RATE ADVANCE LIBOR ADVANCE TOTAL LEVERAGE RATIO APPLICABLE MARGIN APPLICABLE MARGIN -------------------- ----------------- ----------------- A. Greater than 7.50:1.00 1.750% 2.750% B. Greater than 7.00:1.00, but 1.625% 2.625% less than or equal to 7.50:1.00 C. Greater than 6.50:1.00, but 1.500% 2.500% less than or equal to 7.00:1.00 D. Greater than 6.00:1.00, but 1.250% 2.250% less than or equal to 6.50:1.00 E. Greater than 5.00:1.00, but 1.000% 2.000% less than or equal to 6.00:1.00 F. Greater than 4.00:1.00, but 0.750% 1.750% less than or equal to 5.00:1.00 G. Less than or equal to 0.500% 1.500% 4.00:1.00
(ii) TERM LOAN B LOANS. With respect to any Advance under the Term Loan B Commitments, the Applicable Margin shall be as set forth in a certificate of the chief financial officer of the Borrower delivered to the Administrative Agent based upon the Total Leverage Ratio for the most recent fiscal quarter end for which financial statements are furnished by the Borrower to the Administrative Agent and each Lender as follows:
BASE RATE ADVANCE LIBOR ADVANCE TOTAL LEVERAGE RATIO APPLICABLE MARGIN APPLICABLE MARGIN -------------------- ----------------- ----------------- A. Greater than 7.00:1.00 2.000% 3.000% B. Less than or equal to 1.750% 2.750% 7.00:1.00
(iii) TERM LOAN C LOANS. With respect to any Advance under the Term Loan C Commitments, the Applicable Margin shall be as set forth in a certificate of the chief financial officer of the Borrower delivered to the Administrative Agent based upon the Total Leverage Ratio for the most recent fiscal quarter end for which financial statements are furnished by the Borrower to the Administrative Agent and each Lender as follows:
BASE RATE ADVANCE LIBOR ADVANCE TOTAL LEVERAGE RATIO APPLICABLE MARGIN APPLICABLE MARGIN -------------------- ----------------- ----------------- A. Greater than 7.00:1.00 2.250% 3.250% B. Less than or equal to 2.000% 3.000% 7.00:1.00
- 27 - (iv) The Applicable Margin on the Agreement Date shall be based on the Annualized Operating Cash Flow on the Agreement Date (with appropriate adjustment for any Acquisitions or dispositions as provided in the definition of "Operating Cash Flow") for the Borrower and the Total Debt as of the Agreement Date. (v) Subject to the last sentence hereof, with respect to Section 2.3(f)(i), (ii) and (iii), changes to the Applicable Margin shall be effective as of the second (2nd) Business Day after the day on which the financial statements are delivered to the Administrative Agent and the Lenders pursuant to Section 6.1 or 6.2 hereof, as the case may be. Upon the occurrence and during the continuance of an Event of Default, the Applicable Margins shall not be subject to downward adjustment and shall automatically revert to the Applicable Margins set forth in, (A) with respect to Section 2.3(f)(i), part A of the table in Section 2.3(f)(i) above, (B) with respect to Section 2.3(f)(ii), part (A) of Section 2.3(f)(ii) above and (C) with respect to Section 2.3(f)(iii), part A of Section 2.3(f)(iii) above, in each case, until such time as such Event of Default is cured or waived. Section 2.4 COMMITMENT FEES. Commencing on and at all times after the Agreement Date, the Borrower agrees to pay to the Administrative Agent for the account of each of the Lenders having Revolving Loan Commitments in accordance with their respective Commitment Ratios for Revolving Loans, a commitment fee on the aggregate unborrowed balance of the Revolving Loan Commitments for each day from the Agreement Date until the Revolving Loan Maturity Date, (a) at all times that the Total Leverage Ratio is greater than 6.50 to 1.00, at a rate of one-half of one percent (0.500%) per annum and (b) at all times that Total Leverage Ratio is equal to or less than 6.50 to 1.00, at a rate of three-eighths of one percent (0.375%) per annum. Such commitment fee shall be computed on the basis of a year of 365/366 days for the actual number of days elapsed, shall be payable quarterly in arrears on the last day of each calendar quarter, and shall be fully earned when due and non-refundable when paid. A final payment of any commitment fee then payable shall also be due and payable on the Revolving Loan Maturity Date. Section 2.5 MANDATORY REVOLVING LOAN COMMITMENT REDUCTIONS. (a) SCHEDULED REDUCTIONS OF REVOLVING LOAN COMMITMENTS. Commencing on June 30, 2003, and on the last day of each calendar quarter ending during the periods set forth below, the Revolving Loan Commitments as of June 29, 2003 shall be automatically and permanently reduced by the percentage amount set forth below (which reductions are in addition to those set forth in Sections 2.5(b) and (c) and 2.6 hereof):
QUARTERLY PERCENTAGE FOR REDUCTION OF REVOLVING LOAN COMMITMENTS AS OF DATES OF REVOLVING LOAN COMMITMENT REDUCTION JUNE 29, 2003 - -------------------------------------------- ------------- June 30, 2003, September 30, 2003, December 31, 2003 and March 31, 2004 3.125%
- 28 -
QUARTERLY PERCENTAGE FOR REDUCTION OF REVOLVING LOAN COMMITMENTS AS OF DATES OF REVOLVING LOAN COMMITMENT REDUCTION JUNE 29, 2003 - -------------------------------------------- ------------- June 30, 2004, September 30, 2004, December 31, 2004 and March 31, 2005 4.375% June 30, 2005, September 30, 2005, December 31, 2005 and March 31, 2006 5.000% June 30, 2006, September 30, 2006, December 31, 2006 and March 31, 2007 6.250% June 30, 2007, September 30, 2007, December 31, 2007 and March 31, 2008 6.250%
(b) REDUCTION FROM EXCESS CASH FLOW. On or prior to March 31, 2004, and on or prior to each March 31st thereafter during the term of this Agreement, the Revolving Loan Commitments shall be automatically and permanently reduced by an amount equal to the repayment of Revolving Loans (and, if applicable, the Incremental Facility Loans) required under Section 2.7(b)(v) hereof; PROVIDED, HOWEVER, that if there are no Loans then outstanding or if fifty percent (50%) of Excess Cash Flow for such period exceeds the Loans then outstanding, the Revolving Loan Commitments (and, if applicable, the Incremental Facility Commitments) shall be reduced by an aggregate amount equal to fifty percent (50%) of Excess Cash Flow for such period, or the excess of fifty percent of the Excess Cash Flow for such period over the Loans, which reduction shall be in addition to the reduction set forth in the first part of this Section 2.5(b), as applicable, regardless of any repayment of the Revolving Loans. Reductions under this Section 2.5(b) to the Revolving Loan Commitments shall be applied to the reductions set forth in Section 2.5(a) hereof (and, if applicable, to the Incremental Facility Commitments shall be applied to the reductions set forth in the Notice of Incremental Facility Commitments) in inverse order of the reductions set forth therein. (c) REDUCTIONS FROM PERMITTED ASSET SALES. At any time after the aggregate Unreinvested Net Proceeds from all sales, transfers or other dispositions of assets of the Borrowers and their Subsidiaries, or from any insurance or condemnation proceeding in respect of such assets, after the Agreement Date exceeds $15,000,000, the Revolving Loan Commitments and, if applicable, the Incremental Facility Commitments shall be automatically and permanently reduced by an amount equal to the repayment of Revolving Loans and, if applicable, the Incremental Facility Loans required under Section 2.7(b)(vi) hereof; PROVIDED, HOWEVER, that if there are no Loans then outstanding, or if the Unreinvested Net Proceeds exceeds the Loans then outstanding, the Revolving Loan Commitments and, if applicable, the Incremental Facility Commitments shall be reduced on a pro rata basis by an aggregate amount equal to such Unreinvested Net Proceeds, or the excess of such Unreinvested Net Proceeds over the Loans (which reduction shall be in addition to the reduction set forth in the first part of this Section 2.5(c)), as applicable, regardless of any repayment of the Revolving Loans (or, if applicable, the Incremental Facility Loans); PROVIDED FURTHER, HOWEVER, that, prior to the occurrence or continuance of a Default of Event or Default, there shall be no reduction of the - 29 - Revolving Loan Commitments hereunder with respect to a disposition of assets (i) the Net Proceeds of which do not exceed (A) $5,000,000 for any single transaction (or series of related transactions), and (B) $15,000,000 in the aggregate during the term hereof, (ii) in the event that Borrower delivers to the Administrative Agent evidence that the Net Proceeds of such disposition have been used by the Borrower or its Subsidiaries for any sale/leaseback or similar arrangement involving the cellular towers owned by the Borrower or its Subsidiaries, (iii) to the extent that the Total Leverage Ratio is less than 6.0 to 1.0 (before and after giving effect to the application to such proceeds), and the after-tax Net Proceeds of which are used to retire in whole or in part the Junior Preferred Stock or (iv) the Net Proceeds of which were realized from the sale of the Triton Kansas Properties in excess of 7.00 times EBITDA of such properties, provided that such sale is consummated within twelve (12) months of the acquisition of the Triton Kansas Properties. Reductions under this Section 2.5(c) to the Revolving Loan Commitments shall be applied to the reductions set forth in Section 2.5(a) hereof (and, if applicable, to the Incremental Facility Commitments shall be applied to the reductions set forth in the Notice of Incremental Facility Commitments) in inverse order of the reductions set forth therein. Section 2.6 VOLUNTARY COMMITMENT REDUCTIONS. The Borrower shall have the right, at any time and from time to time after the Agreement Date and prior to the Revolving Loan Maturity Date, Term Loan A Maturity Date, Term Loan B Maturity Date, Term Loan C Maturity Date and Incremental Facility Maturity Date, as applicable, upon at least three (3) Business Days' prior written notice to the Administrative Agent, without premium or penalty, to cancel or reduce permanently all or a portion of the Revolving Loan Commitment (or the Incremental Facility Commitment) on the basis of the respective Revolving Loan Commitment Ratios (or the Incremental Facility Commitment Ratios) of the Lenders applicable to the Revolving Loan Commitment (or the Incremental Facility Commitment); PROVIDED, HOWEVER, that the Borrower shall reimburse the Lenders and the Administrative Agent, on demand by the applicable Lender or the Administrative Agent, for any loss or out-of-pocket expense incurred by any Lender or the Administrative Agent in connection with such prepayment, as set forth in Section 2.10 hereof; PROVIDED FURTHER, HOWEVER, that Borrower's failure to confirm any telephonic notice with a written notice, shall not invalidate any notice so given if acted upon by the Administrative Agent; PROVIDED FURTHER, HOWEVER, that any such partial reduction shall be made in an amount not less than $1,000,000 and in integral multiples of not less than $1,000,000. As of the date of cancellation or reduction set forth in such notice, the Revolving Loan Commitments (or the Incremental Facility Commitments) shall be permanently reduced to the amount stated in the Borrower's notice for all purposes herein, and the Borrower shall pay to the Administrative Agent for the Lenders the amount necessary to reduce the principal amount of the Revolving Loans (or Incremental Facility Loans) then outstanding under the Revolving Loan Commitment (or the Incremental Facility Commitments) to not more than the amount of the Revolving Loan Commitment (or the Incremental Facility Commitment) as so reduced, together with accrued interest on the amount so prepaid and commitment fees accrued through the date of the reduction with respect to the amount reduced. Reductions in the Revolving Loan Commitment pursuant to this Section shall be applied pro rata to the then remaining reductions set forth in Section 2.5(a) hereof in inverse order of the reductions set forth therein. - 30 - Section 2.7 PREPAYMENTS AND REPAYMENTS. (a) PREPAYMENT. The principal amount of any Base Rate Advance may be prepaid in full or ratably in part at any time, without penalty and without regard to the Payment Date for such Advance. LIBOR Advances may be prepaid prior to the applicable Payment Date, upon three (3) Business Days' prior written notice, or telephonic notice followed immediately by written notice, to the Administrative Agent; PROVIDED, HOWEVER, that the Borrower shall reimburse the Lenders and the Administrative Agent, on demand by the applicable Lender or the Administrative Agent, for any loss or out-of-pocket expense incurred by any Lender or the Administrative Agent in connection with such prepayment, as set forth in Section 2.10 hereof; PROVIDED FURTHER, HOWEVER, that Borrower's failure to confirm any telephonic notice with a written notice, shall not invalidate any notice so given if acted upon by the Administrative Agent. Any prepayment hereunder shall be in amounts of not less than $500,000 and in integral multiples of $100,000. Amounts prepaid pursuant to this Section 2.7 may be reborrowed, subject to the terms and conditions hereof. Amounts prepaid shall be paid together with accrued interest on the amount so prepaid and commitment fees accrued through the date of the reduction with respect to the amount reduced. Amounts prepaid pursuant to this Section 2.7(a) shall be applied to Term Loan A Loans, Term Loan B Loans, Term Loan C Loans or Revolving Loans as the Borrower may direct; PROVIDED, THAT, if the Borrower shall direct amounts prepaid pursuant to this Section 2.7(a) to be applied to Term Loan A Loans, Term Loan B Loans or Term Loan C Loans, such amount shall be applied to the scheduled payments for such Loans in Section 2.7(b) hereof in inverse order of maturity. (b) REPAYMENTS. (i) SCHEDULED REPAYMENTS OF THE TERM LOAN A LOANS. Commencing June 30, 2003, the principal balance of the Term Loan A Loans outstanding on June 29, 2003 shall be repaid in consecutive quarterly installments on the last day of each calendar quarter ending during the periods set forth below until paid in full in such amounts as follows: - 31 -
PERCENTAGE OF PRINCIPAL OF TERM LOAN A LOANS OUTSTANDING ON JUNE 29, 2003 DUE ON LAST REPAYMENT DATES DAY OF EACH QUARTER --------------- ------------------- June 30, 2003, September 30, 2003, December 31, 2003 and March 31, 2004 3.125% June 30, 2004, September 30, 2004, December 31, 2004 and March 31, 2005 4.375% June 30, 2005, September 30, 2005, December 31, 2005 and March 31, 2006 5.000% June 30, 2006, September 30, 2006, December 31, 2006 and March 31, 2007 6.250% June 30, 2007, September 30, 2007, December 31, 2007 and March 31, 2008 6.250%
(ii) SCHEDULED REPAYMENTS OF TERM LOAN B LOANS. Commencing June 30, 2003, the principal balance of the Term Loan B Loans outstanding on June 29, 2003 shall be repaid in consecutive quarterly installments on the last day of each calendar quarter ending during the periods set forth below until paid in full in such amounts as follows: - 32 -
PERCENTAGE OF PRINCIPAL OF TERM LOAN B LOANS OUTSTANDING ON JUNE 29, 2003 DUE ON LAST REPAYMENT DATES DAY OF EACH QUARTER --------------- ------------------- June 30, 2003, September 30, 2003, December 31, 2003 and March 31, 2004 0.250% June 30, 2004, September 30, 2004, December 31, 2004 and March 31, 2005 0.250% June 30, 2005, September 30, 2005, December 31, 2005 and March 31, 2006 0.250% June 30, 2006, September 30, 2006, December 31, 2006 and March 31, 2007 0.250% June 30, 2007, September 30, 2007, December 31, 2007 and March 31, 2008 0.250% June 30, 2008 and September 30, 2008 47.50%
- 33 - (iii) SCHEDULED REPAYMENTS OF TERM LOAN C LOANS. Commencing June 30, 2003, the principal balance of the Term Loan C Loans outstanding on June 29, 2003 shall be repaid in consecutive quarterly installments on the last day of each calendar quarter ending during the periods set forth below until paid in full in such amounts as follows:
PERCENTAGE OF PRINCIPAL OF TERM LOAN C LOANS OUTSTANDING ON JUNE 29, 2003 DUE ON LAST REPAYMENT DATES DAY OF EACH QUARTER --------------- ------------------- June 30, 2003, September 30, 2003 December 31, 2003 and March 31, 2004 0.250% June 30, 2004, September 30, 2004 December 31, 2004 and March 31, 2005 0.250% June 30, 2005, September 30, 2005 December 31, 2005 and March 31, 2006 0.250% June 30, 2006, September 30, 2006 December 31, 2006 and March 31, 2007 0.250% June 30, 2007, September 30, 2007 December 31, 2007 and March 30, 2008 0.250% June 30, 2008, September 30, 2008 December 31, 2008 and March 31, 2009 23.75%
(iv) LOANS IN EXCESS OF REVOLVING LOAN COMMITMENTS (AND/OR INCREMENTAL FACILITY COMMITMENTS). If, at any time, the amount of the Revolving Loans (or the Incremental Facility Loans) then outstanding shall exceed the Revolving Loan Commitment (or the Incremental Facility Commitment), the Borrower shall, on such date and subject to Sections 2.10 and 2.11 hereof, make a repayment of the principal amount of the Revolving Loans (or the Incremental Facility Loans) in an amount equal to such excess, together with any accrued interest and fees with respect thereto. (v) EXCESS CASH FLOW. On March 31, 2004, and on each March 31st thereafter, the Borrower shall make a repayment of the Loans then outstanding in an amount equal to fifty percent (50%) of the Borrower's Excess Cash Flow for the immediately preceding calendar year. Subject to Section 2.7(b)(xii) hereof, the amount of the Excess Cash Flow required to be repaid under this Section 2.7(b)(v) shall be applied first to the Term Loans then outstanding (on a pro rata basis for all Term Loans) in inverse order of maturity for each Term Loan, second to the Revolving Loans and then, if applicable, to the Incremental Facility Loans. Accrued interest on the principal - 34 - amount of the Loans being prepaid pursuant to this Section 2.7(b)(iii) to the date of such prepayment will be paid by the Borrower concurrently with such principal prepayment. (vi) ASSET SALES. On the twelve (12) calendar month anniversary of the date of any disposition or sale of any assets by the Borrower or any of its Subsidiaries in accordance with Section 7.4 hereof, the Borrower shall make a repayment of the Loans then outstanding in an amount equal to such Net Proceeds; PROVIDED, HOWEVER, that prior to the occurrence or continuance of a Default of Event or Default, the Borrower shall not be required to make a repayment hereunder with respect to a sale of assets (i) in the ordinary course of the Borrower's or its Subsidiaries' businesses the Net Proceeds of which have been used by the Borrower or its Subsidiaries to acquire or purchase an asset as a substitute or replacement of the asset disposed of within twelve (12) months of the date of such asset disposition so long as the Borrower is in compliance with all terms and conditions of this Agreement, (ii) the Net Proceeds of which do not exceed (A) $5,000,000 for any single transaction (or series of related transactions), and (B) $15,000,000 in the aggregate during the term hereof, (iii) in the event that Borrower delivers to the Administrative Agent evidence that the Net Proceeds of such disposition have been used by the Borrower or its Subsidiaries for any sale/leaseback or similar arrangement involving the Borrower's towers, (iv) to the extent that the Total Leverage Ratio is less than 6.0 to 1.0 (before and after giving effect to the application of such proceeds), and the after-tax Net Proceeds of which are used to retire in whole or in part the Junior Preferred Stock or (v) the Net Proceeds of which were realized from the sale of the to-be-acquired Triton Kansas Properties in excess of 7.00 to 1.00 EBITDA, provided that such sale is consummated within twelve (12) months of the acquisition of such properties. Subject to Section 2.7(b)(xii) hereof, the amount of the Net Proceeds required to be repaid under this Section 2.7(b)(vi) shall be applied to the Term Loans then outstanding (on a pro rata basis for all Term Loans) in inverse order of maturity for each Term Loan, second to the Revolving Loans and then, if applicable, to the Incremental Facility Loans. Accrued interest on the principal amount of the Loans being prepaid pursuant to this Section 2.7(b)(iv) to the date of such prepayment will be paid by the Borrower concurrently with such principal prepayment. (vii) REVOLVING LOAN MATURITY DATE. In addition to the foregoing, a final payment of all Revolving Loans, together with accrued interest and fees with respect thereto, shall be due and payable on the Revolving Loan Maturity Date. (viii) TERM LOAN A MATURITY DATE. In addition to the foregoing, a final payment of the Term Loan A Loans, together with accrued interest and fees with respect thereto, shall be due and payable on the Term Loan A Maturity Date. (ix) TERM LOAN B MATURITY DATE. In addition to the foregoing, a final payment of Term Loan B Loans, together with accrued interest and fees with respect thereto, shall be due and payable on the Term Loan B Maturity Date. (x) TERM LOAN C MATURITY DATE. In addition to the foregoing, a final payment of Term Loan C Loans, together with accrued interest and fees with respect - 35 - thereto and all other Obligations then outstanding, other than the Incremental Facility Loans, if any, shall be due and payable on the Term Loan C Maturity Date. (xi) INCREMENTAL FACILITY MATURITY DATE. If applicable, in addition to the foregoing, a final payment of the Incremental Facility Loans, together with accrued interest and fees with respect thereto, shall be due and payable on the Incremental Facility Maturity Date. (xii) PREPAYMENTS UPON DEFAULT OR EVENT OF DEFAULT. After the occurrence of and during the continuation of any Default or an Event of Default, all amounts received from the Borrower under Sections 2.7(b)(v) and (vi) hereunder shall be applied as set forth in Section 8.3 hereunder. Section 2.8 NOTES; LOAN ACCOUNTS. (a) The Loans shall be repayable in accordance with the terms and provisions set forth herein and shall be evidenced by the Notes (and, if applicable, the Incremental Facility Notes). One (1) Term Loan A Note, one (1) Term Loan B Note, one (1) Term Loan C Note, one (1) Revolving Loan Note and, if applicable, one (1) Incremental Facility Note shall be payable to the order of each Lender, in accordance with such Lender's applicable Commitment Ratio for Term Loan A Loans, Term Loan B Loans, Term Loan C Loans, Revolving Loans and, if applicable, the Incremental Facility Loans, as the case may be. The Notes shall be issued by the Borrower to the Lenders and shall be duly executed and delivered by one or more Authorized Signatories. Any Lender (i) which is not a U.S. Person (a "NON-U.S. BANK") and (ii) which could become completely exempt from withholding of United States federal income taxes in respect of payment of any obligations due to such Lender hereunder relating to any of its Loans if such Loans were in registered form for United States federal income tax purposes may request the Borrower (through the Administrative Agent), and the Borrower agrees thereupon, to register such Loans as provided in Section 11.5(g) hereof and to issue to such Lender Notes evidencing such Loans as Registered Notes or to exchange Notes evidencing such Loans for new Registered Notes, as applicable. Registered Notes may not be exchanged for Notes that are not in registered form. (b) Each Lender may open and maintain on its books in the name of the Borrower a loan account with respect to its portion of the Loans and interest thereon. Each Lender which opens such a loan account shall debit such loan account for the principal amount of its portion of each Advance made by it and accrued interest thereon, and shall credit such loan account for each payment on account of principal of or interest on its Loans. The records of a Lender with respect to the loan account maintained by it shall be prima facie evidence of its portion of the Loans and accrued interest thereon absent manifest error, but the failure of any Lender to make any such notations or any error or mistake in such notations shall not affect the Borrower's repayment obligations with respect to such Loans. - 36 - Section 2.9 MANNER OF PAYMENT. (a) Each payment (including, without limitation, any prepayment) by the Borrower on account of the principal of or interest on the Loans, commitment fees and any other amount owed to the Lenders or the Administrative Agent or any of them under this Agreement or the Notes shall be made not later than 1:00 p.m. (New York, New York time) on the date specified for payment under this Agreement to the Administrative Agent at the Administrative Agent's Office, for the account of the Lenders or the Administrative Agent, as the case may be, in lawful money of the United States of America in immediately available funds. Any payment received by the Administrative Agent after 1:00 p.m. (New York, New York time) shall be deemed received on the next Business Day. Receipt by the Administrative Agent of any payment intended for any Lender or Lenders hereunder prior to 1:00 p.m. (New York, New York time) on any Business Day shall be deemed to constitute receipt by such Lender or Lenders on such Business Day. In the case of a payment for the account of a Lender, the Administrative Agent will promptly, but no later than the close of business on the date such payment is deemed received, thereafter distribute the amount so received in like funds to such Lender. If the Administrative Agent shall not have received any payment from the Borrower as and when due, the Administrative Agent will promptly notify the Lenders accordingly. In the event that the Administrative Agent shall fail to make distribution to any Lender as required under this Section 2.9, the Administrative Agent agrees to pay such Lender interest from the date such payment was due until paid at the Federal Funds Rate. (b) The Borrower agrees to pay principal, interest, fees and all other amounts due hereunder or under the Notes or the other Loan Documents without set-off or counterclaim or any deduction whatsoever, including withholding taxes, excluding, (i) in the case of each Lender and the Administrative Agent taxes measured by its net income, and franchise taxes imposed on it by the jurisdiction under the laws of which it is organized or any political subdivision thereof, (ii) in the case of each Lender, taxes (including, but not limited to, the Branch Profits Tax under Section 884 of the Code) measured by its net income, and franchise taxes imposed on it, by the jurisdiction of such Lender's applicable lending office or any political subdivision thereof and (iii) in the case of any Lender organized under the laws of a jurisdiction outside the United States, United States federal withholding tax payable with respect to payments by the Borrower which would not have been imposed had such Lender, to the extent then required thereunder, delivered to the Borrower and the Administrative Agent the forms prescribed by Section 2.13 hereof. (c) Prior to the declaration of an Event of Default under Section 8.2 hereof, if some but less than all amounts due from the Borrower are received by the Administrative Agent with respect to the Obligations, the Administrative Agent shall distribute such amounts in the following order of priority, all on a pro rata basis to the Lenders: (i) to the payment on a pro rata basis of any fees or expenses then due and payable to the Administrative Agent, the Lenders, or any of them; (ii) to the payment of interest then due and payable on the Loans; (iii) to the payment of all other amounts not otherwise referred to in this Section 2.9(c) then due and payable to the Administrative Agent or the Lenders, or any of them, hereunder or under the Notes or any other Loan Document; and (iv) to the payment of principal then due and payable on the Loans. - 37 - (d) Subject to any contrary provisions in the definition of Interest Period, if any payment under this Agreement or any of the other Loan Documents is specified to be made on a day which is not a Business Day, it shall be made on the next Business Day, and such extension of time shall in such case be included in computing interest and fees, if any, in connection with such payment. Section 2.10 REIMBURSEMENT. (a) Whenever any Lender shall sustain or incur any losses or reasonable out-of-pocket expenses in connection with (i) failure by the Borrower to borrow, Convert or Continue any LIBOR Advance after having given notice of its intention to borrow, Convert or Continue in accordance with Section 2.2 hereof (whether by reason of the Borrower's election not to proceed or the non-fulfillment of any of the conditions set forth in Article 3 hereof), or (ii) prepayment (or failure to prepay after giving notice thereof) of any LIBOR Advance in whole or in part for any reason, the Borrower agrees to pay to such Lender, upon such Lender's demand, an amount sufficient to compensate such Lender for all such losses and out-of-pocket expenses. Such Lender's good faith determination of the amount of such losses or reasonable out-of-pocket expenses, as set forth in writing and accompanied by calculations in reasonable detail demonstrating the basis (which need not reflect the purchase of deposits in the relevant market bearing interest at the rate applicable to such Advance and having a maturity identical to the Interest Period for such Advance) for its demand, shall be presumptively correct absent manifest error. (b) Losses subject to reimbursement hereunder shall include, without limiting the generality of the foregoing, lost margins, expenses incurred by any Lender or any participant of such Lender permitted hereunder in connection with the re-employment of funds prepaid, paid, repaid, not borrowed, or not paid, as the case may be, and will be payable whether the Revolving Loan Maturity Date, Term Loan A Maturity Date, Term Loan B Maturity Date, Term Loan C Maturity Date and Incremental Facility Maturity Date, as applicable is changed by virtue of an amendment hereto (unless such amendment expressly waives such payment) or as a result of acceleration of the Obligations. Section 2.11 PRO RATA TREATMENT. (a) ADVANCES. Each Advance under the Revolving Loan Commitments from the Lenders hereunder shall be made pro rata on the basis of the applicable Commitment Ratios of the Lenders having a Revolving Loan Commitment. Each Advance under the Term Loan A Commitment shall be made pro rata on the basis of the applicable Commitment Ratios of the Lenders having Term Loan A Commitments. Each Advance under the Term Loan B Commitment shall be made pro rata on the basis of the applicable Commitment Ratios of the Lenders having Term Loan B Commitments. Each Advance under the Term Loan C Commitment shall be made pro rata on the basis of the applicable Commitment Ratios of the Lenders having Term Loan C Commitments. - 38 - (b) PAYMENTS. Each payment and prepayment of principal of the Loans, and, except as provided in Section 2.2(e) and Article 10 hereof, each payment of interest on the Loans, shall be made to the Lenders having interest in the Loans being paid pro rata on the basis of their respective unpaid principal amounts outstanding under the Notes (including, if applicable, the Incremental Facility Notes) immediately prior to such payment or prepayment. If any Lender shall obtain any payment (whether involuntary, through the exercise of any right of set-off, or otherwise) on account of the Loans in excess of its ratable share of the Loans under its Commitment Ratio, such Lender shall forthwith purchase from the other Lenders such participations in the portion of the Loans made by them as shall be necessary to cause such purchasing Lender to share the excess payment ratably with each of them; PROVIDED, HOWEVER, that if all or any portion of such excess payment is thereafter recovered from such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall repay to the purchasing Lender the purchase price to the extent of such recovery. The Borrower agrees that any Lender so purchasing a participation from another Lender pursuant to this Section 2.11(b) may, to the fullest extent permitted by law, exercise all its rights of payment (including, without limitation, the right of set-off) with respect to such participation as fully as if such Lender were the direct creditor of the Borrower in the amount of such participation. (c) At the election of the Borrower, amounts to be applied, pursuant to Sections 2.7(b)(iv), (v) or (vi) hereof, to prepayment of principal bearing interest at the LIBOR Basis may be remitted into a specifically designated "DEPOSIT ACCOUNT" and shall not be applied to such prepayment until the end of the Interest Period ending after the date such payment would otherwise be required, so as to avoid incurrence of costs required pursuant to Section 2.10 which might otherwise be incurred upon prepayment. In the event the aggregate amount to be prepaid by reason of Section 2.7(b)(iv),(v) or (vi) hereof exceeds the amount of principal to be prepaid at the end of the first such Interest Period to terminate after the relevant date of reduction, the excess shall remain in such specifically designated Deposit Account until the end of the next Interest Period, and so on, until the full amount required to be repaid under Section 2.7(b)(iv),(v) or (vi) hereof has been applied to the Loans. As used herein, the aforesaid "DEPOSIT ACCOUNT" shall be an interest-bearing account maintained with the Administrative Agent as part of the Collateral, and Borrower hereby authorizes the Administrative Agent to apply as set forth above or, at any time during the continuance of an Event of Default, without further authorization from the Borrower, the balance of said Deposit Account to the prepayments required hereunder. (d) COMMITMENT REDUCTIONS. Any reduction of the Revolving Loan Commitments required or permitted hereunder shall reduce, as applicable, the Revolving Loan Commitment of each Lender having such a commitment on a pro rata basis based on the Commitment Ratio of such Lender for such commitment. Section 2.12 CAPITAL ADEQUACY. If after the date hereof, the adoption of any Applicable Law regarding the capital adequacy of banks or bank holding companies, or any change in Applicable Law (whether adopted before or after the Agreement Date) or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Lender (or the bank holding company of such Lender) with any directive regarding capital adequacy (whether or not having the force of law) of any such governmental authority, central - 39 - bank or comparable agency, has or would have the effect of reducing the rate of return on any Lender's capital as a consequence of its obligations hereunder with respect to the Loans and the Commitment to a level below that which it could have achieved but for such adoption, change or compliance (taking into consideration such Lender's policies with respect to capital adequacy immediately before such adoption, change or compliance and assuming that such Lender's capital was fully utilized prior to such adoption, change or compliance) by an amount reasonably deemed by such Lender to be material, then, if such Lender exercises its capital adequacy protection rights (if any) generally for borrowers situated similarly to the Borrower and upon demand by such Lender, the Borrower shall promptly pay to such Lender such additional amounts as shall be sufficient to compensate such Lender for such reduced return, together with interest on such amount from the fourth (4th) Business Day after the date of demand or the Revolving Loan Maturity Date, Term Loan A Maturity Date, Term Loan B Maturity Date, Term Loan C Maturity Date and Incremental Facility Maturity Date, as applicable, until payment in full thereof at the Default Rate. A certificate of such Lender setting forth the amount to be paid to such Lender by the Borrower as a result of any event referred to in this paragraph and supporting calculations in reasonable detail shall be presumptively correct absent manifest error. Section 2.13 LENDER TAX FORMS. On or prior to the Agreement Date or on or prior to the date such Lender becomes a party hereto pursuant to Section 11.5 hereof, and on or prior to the first Business Day of each calendar year thereafter, each Lender which is organized in a jurisdiction other than the United States or state thereof shall provide each of the Administrative Agent and the Borrower with a properly executed originals of Form 4224 or 1001 (or any successor form) prescribed by the Internal Revenue Service or other documents satisfactory to the Borrower and the Administrative Agent, and/or properly executed Internal Revenue Service Form W-8 or W-9, as the case may be, to the extent permitted under Applicable Law, certifying (i) as to such Lender's status for purposes of determining exemption from United States withholding taxes with respect to all payments to be made to such Lender hereunder and under the Notes or (ii) that all payments to be made to such Lender hereunder and under the Notes are subject to such taxes at a rate reduced to zero by an applicable tax treaty. Each such Lender agrees to provide the Administrative Agent and the Borrower with new forms prescribed by the Internal Revenue Service upon the expiration or obsolescence of any previously delivered form, or after the occurrence of any event requiring a change in the most recent forms delivered by it to the Administrative Agent and the Borrower. Section 2.14 INCREMENTAL FACILITY ADVANCES. (a) Subject to the terms and conditions of this Agreement, the Borrower may request the Incremental Facility Commitment on any Business Day; PROVIDED, HOWEVER, that the Borrower may not request the Incremental Facility Commitment or an Incremental Facility Advance after the occurrence and during the continuance of a Default, including, without limitation, any Event of Default that would result after giving effect to any Incremental Facility Advance; and provided, further, that the Borrower may request only one (1) Incremental Facility Commitment (although such commitment may be from more than one Lender). The aggregate amount of the Incremental Facility Commitment and outstanding Incremental Facility Advances shall not exceed $175,000,000. The maturity date for the Incremental Facility Advances shall be no earlier than twelve (12) calendar months after the Revolving Loan Maturity Date, Term Loan - 40 - A Maturity Date, Term Loan B Maturity Date and Term Loan C Maturity Date, as applicable. The decision of any Lender to make an Incremental Facility Commitment to the Borrower shall be at such Lender's sole discretion and shall be made in writing. The Incremental Facility Commitment (x) may be in the form of a revolving credit facility, (y) must not require principal repayment earlier, or in amount larger (or percentage greater), than those set forth in, the repayment schedule for the Term Loans or the Revolving Loans as set forth in Section 2.7(b) hereof and (z) must be governed by this Agreement and the other Loan Documents and be on terms and conditions no more restrictive than those set forth herein and therein. Each Lender shall have the right, but not the obligation, to participate in any Incremental Facility Commitment on a pro rata basis. (b) Prior to the effectiveness of the Incremental Facility Commitment, the Borrower shall (i) deliver to the Administrative Agent and the Lenders a Notice of Incremental Facility Commitment in substantially the form of EXHIBIT C attached hereto; and (ii) provide revised projections to the Administrative Agent and the Lenders, which shall be in form and substance reasonably satisfactory to the Administrative Agent and which shall demonstrate the Borrower's ability to timely repay such Incremental Facility Commitment and any Incremental Facility Advances thereunder and to comply with the covenants contained in Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereof. (c) No Incremental Facility Commitment shall by itself result in any reduction of the Commitment or of the Commitment Ratio of the Lender making such Incremental Facility Commitment. (d) Incremental Facility Advances (i) shall bear interest at the Base Rate Basis or the LIBOR Basis; (ii) subject to Section 2.14(a) hereof, shall be repaid as agreed to by the Borrower and the Lender making such Incremental Facility Advances; (iii) shall for all purposes be Loans and Obligations hereunder and under the Loan Documents; (iv) shall be represented by an Incremental Facility Note in substantially the form of EXHIBIT M attached hereto; and (v) shall rank pari passu with the other Loans for purposes of Sections 2.9 and 8.2 hereof. (e) Incremental Facility Advances shall be requested by the Borrower pursuant to a request (which shall be in substantially the form of a Request for Advance) delivered in the same manner as a Request for Advance, but shall be funded pro rata only by those Lenders holding the Incremental Facility Commitment. Section 2.15 REPLACEMENT OF LENDERS. The Borrower shall have the right, if no Default then exists, to replace any Lender (the "REPLACED Lender") with one or more other assignees permitted under Section 11.5 hereof reasonably acceptable to the Administrative Agent (the "REPLACEMENT LENDER") if (x) such Lender is charging the Borrower increased costs pursuant to Section 10.3 hereof in excess of those being charged generally by the other Lenders or such Lender becomes incapable of making LIBOR Advances as provided in Section 10.3 hereof and/or (y) such Lender fails to fund a properly requested Advance at a time when there does not exist a Default or Event of Default; PROVIDED, HOWEVER, that (i) at the time of any replacement pursuant to this Section 2.15, the Replacement Lender and the Replaced Lender shall enter into one or more assignment agreements (and with all fees payable pursuant to said Section 11.5 - 41 - hereof to be paid by the Replacement Lender) pursuant to which the Replacement Lender shall acquire all of the Commitments and outstanding Loans of the Replaced Lender and, in connection therewith, shall pay to (x) the Replaced Lender, an amount equal to the sum of (A) the principal of, and all accrued interest on, all outstanding Loans of the Replaced Lender, and (B) all accrued, but theretofore unpaid, fees, owing to the Replaced Lender pursuant to Section 2.4 hereof, and (ii) all obligations of the Borrower owing to the Replaced Lender (other than those specifically described in clause (i) above in respect of which the assignment purchase price has been, or is concurrently being, paid, but including any amounts which would be paid to a Lender pursuant to Section 2.7 hereof if Borrower were prepaying a LIBOR Advance) shall be paid in full to such Replaced Lender concurrently with such replacement. Upon the execution of the respective assignment agreement, the payment of amounts referred to in clauses (i) and (ii) above and, if so requested by the Replacement Lender, delivery to the Replacement Lender of Notes executed by Borrower, the Replacement Lender shall become a Lender hereunder and the Replaced Lender shall cease to constitute a Lender hereunder and be released of all its obligations as a Lender, except with respect to indemnification provisions applicable to the Replaced Lender under this Agreement, which shall survive as to such Replaced Lender. ARTICLE 3 CONDITIONS PRECEDENT Section 3.1 CONDITIONS PRECEDENT TO EFFECTIVENESS OF AGREEMENT. The obligation of the Lenders to undertake the Commitments, and the effectiveness of this Agreement are subject to the prior or contemporaneous fulfillment of each of the following conditions: (a) The Administrative Agent and the Lenders shall have received each of the following: (i) the loan certificate of the Borrower dated as of the Agreement Date, in substantially the form attached hereto as EXHIBIT N, including a certificate of incumbency with respect to each Authorized Signatory of such Person, together with the following items: (A) a true, complete and correct copy of the Certificate of Incorporation and By-laws of the Borrower as in effect on the Agreement Date, (B) certificates of good standing for the Borrower issued by the Secretary of State or similar state official for the state of incorporation of the Borrower and for each state in which the Borrower is required to qualify to do business, (C) a true, complete and correct copy of the corporate resolutions of the Borrower authorizing the Borrower to execute, deliver and perform this Agreement and the other Loan Documents, and (D) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to the stock of the Borrower; (ii) loan certificates of each Subsidiary of the Borrower dated as of the Agreement Date and in substantially the form of EXHIBIT O attached hereto, including a certificate of incumbency with respect to each Authorized Signatory of such Subsidiary, together with the following items: (A) a true, complete and correct copy of the Certificate/Articles of Incorporation and By-Laws of such Subsidiary as in effect on the - 42 - Agreement Date, (B) certificates of good standing for such Subsidiary issued by the Secretary of State or similar state official for the state of incorporation of such Subsidiary and for each state in which such Subsidiary is required to qualify to do business, (C) a true, complete and correct copy of the corporate resolutions of such Subsidiary authorizing such Subsidiary to execute, deliver and perform such Loan Documents to which it is a party, and (D) a true, complete and correct copy of any shareholders' agreements or voting trust agreements in effect with respect to the Capital Stock or membership interests of such Subsidiary; (iii) duly executed Notes; (iv) duly executed Security Documents; (v) copies of insurance binders or certificates covering the assets of the Borrower and its Subsidiaries, and otherwise meeting the requirements of Section 5.5 hereof, together with copies of the underlying insurance policies; (vi) legal opinions of (A) Lukas, Nace, Gutierrez & Sachs Chartered, FCC counsel to the Borrower and its Subsidiaries, and (B) Moss & Barnett, special counsel to the Borrower and its Subsidiaries, in substantially the forms attached hereto as EXHIBIT P and EXHIBIT Q, respectively, each as counsel to the Borrower and its Subsidiaries, addressed to each Lender and the Administrative Agent, and dated as of the Agreement Date; (vii) duly executed Certificate of Financial Condition in substantially the form attached hereto as EXHIBIT B for the Borrower and its Subsidiaries on a consolidated and consolidating basis; (viii) any required FCC consents or other required consents to the closing of this Agreement and the Triton Acquisition or to the execution, delivery and performance of this Agreement and the other Loan Documents, each of which shall be in form and substance satisfactory to the Administrative Agent and the Lenders; (ix) duly executed UCC-3 termination statements and releases with respect to any Liens (other than Permitted Liens, if any) existing on the properties or assets being acquired in connection with the Triton Acquisition; and (x) all such other documents as either the Administrative Agent or any Lender may reasonably request, certified by an appropriate governmental official or an Authorized Signatory if so requested. (b) The Administrative Agent and the Lenders shall have received evidence satisfactory to them that all Necessary Authorizations, including, without limitation, all necessary consents to the closing of this Agreement, have been obtained or made, are in full force and effect and are not subject to any pending or, to the knowledge of the Borrower, - 43 - threatened reversal or cancellation, and the Administrative Agent and the Lenders shall have received a certificate of an Authorized Signatory so stating. (c) The Borrower shall have paid to the Administrative Agent for itself and for the account of each Lender, as applicable, the fees set forth in those certain fee letter agreements dated the Agreement Date in favor of the Administrative Agent and each Lender, as the case may be. (d) The Administrative Agent and the Lenders shall have received evidence, in form and substance satisfactory to them, that all conditions precedent to the closing of the Triton Acquisition have been or will be satisfied contemporaneously. (e) The Borrower shall have provided to the Administrative Agent a duly executed certificate, in form and substance satisfactory to the Administrative Agent, setting forth the Total Leverage Ratio of the Borrower on the Agreement Date, which Total Leverage Ratio shall not exceed 8.0 to 1.0 as calculated on the Agreement Date after giving effect to any Advances made hereunder on the Agreement Date. Section 3.2 CONDITIONS PRECEDENT TO EACH ADVANCE. The obligation of the Lenders to make each Advance on or after the Agreement Date which increases the principal amount of the Loans outstanding is subject to the fulfillment of each of the following conditions immediately prior to or contemporaneously with such Advance: (a) All of the representations and warranties of the Borrower under this Agreement and the other Loan Documents (including, without limitation, all representations and warranties with respect to the Borrower's Subsidiaries), which, pursuant to Section 4.2 hereof, are made at and as of the time of such Advance, shall be true and correct at such time in all material respects, both before and after giving effect to the application of the proceeds of such Advance, and after giving effect to any updates to information provided to the Lenders in accordance with the terms of such representations and warranties, and no Default hereunder shall then exist or be caused thereby; (b) The Administrative Agent shall have received a duly executed Request for Advance which shall contain evidence satisfactory to the Administrative Agent that the Borrower is, as of the date of such Advance and after giving effect thereto, in compliance with Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereof; (c) Each of the Administrative Agent and the Lenders shall have received all such other certificates, reports, statements, opinions of counsel (if such Advance is in connection with an Acquisition) or other documents as the Administrative Agent or any Lender may reasonably request; (d) With respect to any Advance relating to any Acquisition or the formation of any Subsidiary which is permitted hereunder, the Administrative Agent and the Lenders shall have received such documents and instruments relating to such Acquisition or formation of a new Subsidiary as are described in Section 5.14 hereof or otherwise required herein; and - 44 - (e) No Materially Adverse Effect shall have occurred and no event shall have occurred which, in the reasonable opinion of the Required Lenders, may be expected to have a Materially Adverse Effect. ARTICLE 4 REPRESENTATIONS AND WARRANTIES Section 4.1 REPRESENTATIONS AND WARRANTIES. The Borrower hereby agrees, represents and warrants, upon the Agreement Date, and at all times thereafter as required pursuant to the terms hereof, in favor of the Administrative Agent and each Lender that: (a) ORGANIZATION; OWNERSHIP; POWER; QUALIFICATION. The Borrower is a corporation duly organized, validly existing and in good standing under the laws of the State of Minnesota. The Borrower has the corporate power and authority to own its properties and to carry on its business as now being and as proposed hereafter to be conducted. Each Subsidiary of the Borrower is a corporation or partnership duly organized, validly existing and in good standing under the laws of the state of its incorporation or formation, as the case may be, and has the corporate or partnership power, as the case may be, and authority to own its properties and to carry on its business as now being and as proposed hereafter to be conducted. The Borrower and each of its Subsidiaries are duly qualified, in good standing and authorized to do business in each jurisdiction in which the character of their respective properties or the nature of their respective businesses requires such qualification or authorization. (b) AUTHORIZATION; ENFORCEABILITY. The Borrower has the corporate power and has taken all necessary corporate action to authorize it to borrow hereunder, to execute, deliver and perform this Agreement and each of the other Loan Documents to which it is a party in accordance with their respective terms, and to consummate the transactions contemplated hereby and thereby. This Agreement has been duly executed and delivered by the Borrower and is, and each of the other Loan Documents to which the Borrower is a party is, a legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance with its terms, subject, as to enforcement of remedies, to the following qualifications: (i) an order of specific performance and an injunction are discretionary remedies and, in particular, may not be available where damages are considered an adequate remedy at law; (ii) enforcement may be limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction and other similar laws affecting enforcement of creditors' rights generally (insofar as any such law relates to the bankruptcy, insolvency or similar event of the Borrower); and (iii) a court, on equitable grounds, may decline to enforce certain provisions or allow the exercise of certain remedies based upon the facts and circumstances that may exist at the time the enforcement or exercise is sought. (c) SUBSIDIARIES; AUTHORIZATION; ENFORCEABILITY. The Borrower's Subsidiaries and the Borrower's direct and indirect ownership thereof as of the Agreement Date are as set forth on SCHEDULE 3 attached hereto, and to the extent such Subsidiaries are corporations, the Borrower has the unrestricted right to vote the issued and outstanding shares of the Subsidiaries - 45 - shown thereon and such shares of such Subsidiaries have been duly authorized and issued and are fully paid and nonassessable. Each Subsidiary of the Borrower has the corporate or partnership power and has taken all necessary corporate or partnership action to authorize it to execute, deliver and perform each of the Loan Documents to which it is a party in accordance with their respective terms and to consummate the transactions contemplated by this Agreement and by such Loan Documents. Each of the Loan Documents to which any Subsidiary of the Borrower is a party is a legal, valid and binding obligation of such Subsidiary enforceable against such Subsidiary in accordance with its terms, subject, as to enforcement of remedies, to the following qualifications: (i) an order of specific performance and an injunction are discretionary remedies and, in particular, may not be available where damages are considered an adequate remedy at law; (ii) enforcement may be limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction and other similar laws affecting enforcement of creditors' rights generally (insofar as any such law relates to the bankruptcy, insolvency or similar event of any such Subsidiary) and (iii) a court, on equitable grounds, may decline to enforce certain provisions or allow the exercise of certain remedies based upon the facts and circumstances that may exist at the time the enforcement or exercise is sought. The Borrower's ownership interest in each of its Subsidiaries represents a direct or indirect controlling interest of such Subsidiary for purposes of directing or causing the direction of the management and policies of each Subsidiary. (d) COMPLIANCE WITH OTHER LOAN DOCUMENTS AND CONTEMPLATED TRANSACTIONS. The execution, delivery and performance, in accordance with their respective terms, by the Borrower of this Agreement and the Notes, and by the Borrower and its Subsidiaries of each of the other Loan Documents to which they are respectively party, and the consummation of the transactions contemplated hereby and thereby, do not and will not (i) require any consent or approval, governmental or otherwise, not already obtained, (ii) violate any Applicable Law respecting the Borrower or any of its Subsidiaries, (iii) conflict with, result in a breach of, or constitute a default under the certificate or articles of incorporation or by-laws or partnership agreements, as the case may be, as amended, of the Borrower or any of its Subsidiaries, or under any material indenture, agreement, or other instrument, including, without limitation, the Licenses, to which the Borrower or any of its Subsidiaries is a party or by which any of them or their respective properties may be bound, or (iv) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by the Borrower or any of its Subsidiaries, except for Permitted Liens. (e) BUSINESS. The Borrower, together with its Subsidiaries, is engaged in the business of owning, constructing, managing, operating and investing in Cellular Systems and other wireless communications and related businesses. (f) LICENSES, ETC. The Licenses have been duly issued and are in full force and effect. The Borrower and its Subsidiaries are in compliance in all material respects with all of the provisions thereof. The Borrower and its Subsidiaries have secured all Necessary Authorizations and all such Necessary Authorizations are in full force and effect. Except as set forth in SCHEDULE 4 attached hereto, neither any License nor any Necessary Authorization is the subject of any pending or, to the best of the Borrower's or any of its Subsidiaries' knowledge, threatened revocation. - 46 - (g) COMPLIANCE WITH LAW. The Borrower and its Subsidiaries are in compliance with all Applicable Laws in all material respects, except where the failure to be in compliance would not, individually or in the aggregate, have a Materially Adverse Effect. (h) TITLE TO ASSETS. As of the Agreement Date, the Borrower and its Subsidiaries have good, legal and marketable title to, or a valid leasehold interest in, all of its material assets. None of the properties or assets of the Borrower or any of its Subsidiaries is subject to any Liens, except for Permitted Liens. Except for financing statements evidencing Permitted Liens, no financing statement under the Uniform Commercial Code as in effect in any jurisdiction and no other filing which names the Borrower or any of its Subsidiaries as debtor or which covers or purports to cover any of the assets of the Borrower or any of its Subsidiaries is currently effective and on file in any state or other jurisdiction, and neither the Borrower nor any of its Subsidiaries has signed any such financing statement or filing or any security agreement authorizing any secured party thereunder to file any such financing statement or filing. (i) LITIGATION. There is no action, suit, proceeding or investigation pending against, or, to the knowledge of the Borrower, threatened against or in any other manner relating adversely to, the Borrower or any of its Subsidiaries or any of their respective properties, including without limitation the Licenses, in any court or before any arbitrator of any kind or before or by any governmental body (including without limitation the FCC) except as set forth on SCHEDULE 5 attached hereto (as such schedule may be updated with the consent of the Required Lenders from time to time). No such action, suit, proceeding or investigation (i) calls into question the validity of this Agreement or any other Loan Document, or (ii) individually or collectively involves the possibility of any judgment or liability not fully covered by insurance which, if determined adversely to the Borrower or any of its Subsidiaries, would have a Materially Adverse Effect. (j) TAXES. All federal, state and other tax returns of the Borrower and each of its Subsidiaries required by law to be filed have been duly filed and all federal, state and other taxes, including, without limitation, withholding taxes, assessments and other governmental charges or levies required to be paid by the Borrower or any of its Subsidiaries or imposed upon the Borrower or any of its Subsidiaries or any of their respective properties, income, profits or assets, which are due and payable, have been paid, except any such taxes (i) (x) the payment of which the Borrower or any of its Subsidiaries is diligently contesting in good faith by appropriate proceedings, (y) for which adequate reserves have been provided on the books of the Borrower or its Subsidiaries involved, and (z) as to which no Lien other than a Permitted Lien has attached and no foreclosure, distraint, sale or similar proceedings have been commenced, or (ii) which may result from audits not yet conducted. The charges, accruals and reserves on the books of the Borrower and its Subsidiaries in respect of taxes are, in the judgment of the Borrower, adequate. (k) FINANCIAL STATEMENTS. The Borrower has furnished or caused to be furnished to the Administrative Agent and the Lenders as of the Agreement Date, audited financial statements of the Borrower and audited financial statements of the Subsidiaries of the Borrower on a consolidated basis for the fiscal year ended December 31, 1999, and unaudited financial statements of the Borrower and its Subsidiaries on a consolidated basis for the fiscal - 47 - quarter ended September 30, 1999, all of which have been prepared in accordance with GAAP and present fairly in all material respects the financial position of the Borrower and its Subsidiaries on a consolidated and consolidating basis, as the case may be, on and as at such dates and the results of operations for the periods then ended. Neither the Borrower nor any of its Subsidiaries has any material liabilities, contingent or otherwise, other than as disclosed in the financial statements referred to in the preceding sentence or as set forth or referred to in this Agreement, and there are no material unrealized losses of the Borrower or any of its Subsidiaries and no material anticipated losses of the Borrower or any of its Subsidiaries other than (i) writeoffs of the Borrower's unamortized costs in connection with the Prior Loan Agreement and (ii) those which have been previously disclosed in writing to the Administrative Agent and the Lenders and identified as such. (l) NO MATERIAL ADVERSE CHANGE. There has occurred no event since December 31, 1999 which has or which could reasonably be expected to have a Materially Adverse Effect. (m) ERISA. The Borrower and each of its Subsidiaries and each of their respective Plans are in material compliance with ERISA and the Code. Neither the Borrower nor any of its ERISA Affiliates, including its Subsidiaries, has incurred any accumulated funding deficiency with respect to any Employee Pension Plan within the meaning of ERISA or the Code. Neither the Borrower nor any of its Subsidiaries has made any promises of retirement or other benefits to employees, except as set forth in the Plans, in written agreements with such employees, or in the Borrower's employee handbook and memoranda to employees. Neither the Borrower nor any of its ERISA Affiliates, including its Subsidiaries, has incurred any material liability to PBGC in connection with any such Plan; have suffered the imposition of a Lien under Section 412(m) of the Code; or have been required to provide security as a result of any amendment to any such Plan as required by Section 401(a)(29) of the Code. The assets of each such Plan which is subject to Title IV of ERISA are sufficient to provide the benefits under such Plan, the payment of which PBGC would guarantee if such Plan were terminated, and such assets are also sufficient to provide all other "benefit liabilities" (within the meaning of Section 4041 of ERISA) due under the Plan upon termination. No Reportable Event which would cause a Materially Adverse Effect has occurred and is continuing with respect to any such Plan. No such Plan or trust created thereunder, or party in interest (as defined in Section 3(14) of ERISA), or any fiduciary (as defined in Section 3(21) of ERISA), has engaged in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) which would subject such Plan or any other Plan of the Borrower or any of its Subsidiaries, any trust created thereunder, or any such party in interest or fiduciary, or any party dealing with any such Plan or any such trust, to the tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or Section 4975 of the Code which would cause a Materially Adverse Effect. Neither the Borrower nor any of its ERISA Affiliates, including its Subsidiaries, is or has been obligated to make any payment to a Multiemployer Plan. (n) COMPLIANCE WITH REGULATIONS T, U AND X. Neither the Borrower nor any of its Subsidiaries is engaged principally or as one of its important activities in the business of extending credit for the purpose of purchasing or carrying, and neither the Borrower nor any of the Borrower's Subsidiaries owns or presently intends to acquire, any "margin security" or - 48 - "margin stock" as defined in Regulations T, U, and X (12 C.F.R. Parts 220, 221 and 224) (the "REGULATIONS") of the Board of Governors of the Federal Reserve System (herein called "MARGIN STOCK"). None of the proceeds of the Loans will be used, directly or indirectly, for the purpose of purchasing or carrying any margin stock or for the purpose of reducing or retiring any Indebtedness which was originally incurred to purchase or carry margin stock or for any other purpose which might constitute this transaction a "purpose credit" within the meaning of the Regulations. Neither the Borrower nor any of its Subsidiaries has taken, caused or authorized to be taken, and will not take any action which might cause this Agreement or the Notes to violate any of the Regulations or any other regulation of the Board of Governors of the Federal Reserve System or to violate the Exchange Act, in each case as now in effect or as the same may hereafter be in effect. If so requested by the Administrative Agent, the Borrower will furnish the Administrative Agent with (i) a statement or statements in conformity with the requirements of Federal Reserve Form U-1 or G-3 referred to in Regulation U of said Board of Governors and (ii) other documents evidencing its compliance with the margin regulations, reasonably requested by the Administrative Agent. Neither the making of the Loans nor the use of proceeds thereof will violate, or be inconsistent with, the provisions of any of the Regulations. (o) INVESTMENT COMPANY ACT. Neither the Borrower nor any of its Subsidiaries is required to register under the provisions of the Investment Company Act of 1940, as amended, and neither the entering into or performance by the Borrower and its Subsidiaries of this Agreement and the Loan Documents nor the issuance of the Notes violates any provision of such Act or requires any consent, approval or authorization of, or registration with, the Securities and Exchange Commission or any other governmental or public body or authority pursuant to any provisions of such Act. (p) GOVERNMENTAL REGULATION. Neither the Borrower nor any of its Subsidiaries is required to obtain any consent, approval, authorization, permit or license which has not already been obtained from, or effect any filing or registration which has not already been effected with, any federal, state or local regulatory authority in connection with the execution and delivery of this Agreement or any other Loan Document. Neither the Borrower nor any of its Subsidiaries is required to obtain any consent, approval, authorization, permit or license which has not already been obtained from, or effect any filing or registration which has not already been effected with, any federal, state or local regulatory authority in connection with the performance, in accordance with their respective terms, of this Agreement or any other Loan Document, other than filing of appropriate UCC financing statements. (q) ABSENCE OF DEFAULT, ETC. The Borrower and its Subsidiaries are in compliance in all respects with all of the provisions of their respective partnership agreements, Certificates or Articles of Incorporation and By-Laws, as the case may be, and no event has occurred or failed to occur (including, without limitation, any matter which could create a Default hereunder by cross-default) which has not been remedied or waived, the occurrence or non-occurrence of which constitutes, (i) a Default or (ii) a material default by the Borrower or any of its Subsidiaries under any indenture, agreement or other instrument relating to Indebtedness of the Borrower or any of its Subsidiaries in the amount of $1,000,000 or more in the aggregate, any License, or any judgment, decree or order to which the Borrower or any of its Subsidiaries is a party or by which the Borrower or any of its Subsidiaries or any of their - 49 - respective properties may be bound or affected. The Loans are "Senior Indebtedness" as defined under the terms of the Subordinated Indebtedness. (r) ACCURACY AND COMPLETENESS OF INFORMATION. All information, reports, prospectuses and other papers and data relating to the Borrower or any of its Subsidiaries and furnished by or on behalf of the Borrower or any of its Subsidiaries to the Administrative Agent or the Lenders were, at the time furnished, true, complete and correct in all material respects to the extent necessary to give the Administrative Agent and the Lenders true and accurate knowledge of the subject matter, and all projections, consisting of a statement of operating statistics, an income statement summary, a debt repayment schedule and pro forma compliance calculations (the "PROJECTIONS") (i) disclose all assumptions made with respect to costs, general economic conditions, and financial and market conditions formulating the Projections; (ii) are based on reasonable estimates and assumptions; and (iii) reflect, as of the date prepared, and continue to reflect, as of the date hereof, the reasonable estimate of Borrower of the results of operations and other information projected therein for the periods covered thereby. (s) AGREEMENTS WITH AFFILIATES. Except for agreements or arrangements with Affiliates wherein the Borrower or one or more of its Subsidiaries provides services to such Affiliates for fair consideration or which are set forth on SCHEDULE 6 attached hereto, neither the Borrower nor any of its Subsidiaries has (i) any written agreements or binding arrangements of any kind with any Affiliate or (ii) any management or consulting agreements of any kind with any Affiliate. (t) PAYMENT OF WAGES. The Borrower and each of its Subsidiaries are in compliance with the Fair Labor Standards Act, as amended, in all material respects, and to the knowledge of the Borrower and each of its Subsidiaries, such Persons have paid all minimum and overtime wages required by law to be paid to their respective employees. (u) PRIORITY. The Security Interest is a valid and, upon filing of appropriate UCC financing statements or taking of possession, if applicable, perfected first priority security interest in the Collateral in favor of the Administrative Agent, for the benefit of itself and the Lenders, securing, in accordance with the terms of the Security Documents, the Obligations, and the Collateral is subject to no Liens other than Permitted Liens. The Liens created by the Security Documents are enforceable as security for the Obligations in accordance with their terms with respect to the Collateral subject, as to enforcement of remedies, to the following qualifications: (i) an order of specific performance and an injunction are discretionary remedies and, in particular, may not be available where damages are considered an adequate remedy at law, and (ii) enforcement may be limited by bankruptcy, insolvency, liquidation, reorganization, reconstruction and other similar laws affecting enforcement of creditors' rights generally (insofar as any such law relates to the bankruptcy, insolvency or similar event of the Borrower or any of its Subsidiaries, as the case may be). (v) INDEBTEDNESS. Except as shown on the financial statements of the Borrower for the fiscal year ended December 31, 1998 and the Subordinated Indebtedness, neither the Borrower nor any of its Subsidiaries has outstanding, as of the Agreement Date, and - 50 - after giving effect to the initial Advances hereunder on the Agreement Date, any Indebtedness for Money Borrowed other than the Loans. (w) SOLVENCY. As of the Agreement Date and after giving effect to the transactions contemplated by the Loan Documents (i) the property of the Borrower, at a fair valuation, will exceed its debt; (ii) the capital of the Borrower will not be unreasonably small to conduct its business; (iii) the Borrower will not have incurred debts, or have intended to incur debts, beyond its ability to pay such debts as they mature; and (iv) the present fair salable value of the assets of the Borrower will be materially greater than the amount that will be required to pay its probable liabilities (including debts) as they become absolute and matured. For purposes of this Section, "debt" means any liability on a claim, and "claim" means (i) the right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, undisputed, legal, equitable, secured or unsecured, or (ii) the right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, undisputed, secured or unsecured. Section 4.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All representations and warranties made under this Agreement and any other Loan Document shall be deemed to be made, and shall be true and correct, at and as of the Agreement Date and on the date of each Advance except to the extent previously fulfilled in accordance with the terms hereof and to the extent relating specifically to the Agreement Date. All representations and warranties made under this Agreement and the other Loan Documents shall survive, and not be waived by, the execution hereof by the Lenders and the Administrative Agent, any investigation or inquiry by any Lender or the Administrative Agent, or the making of any Advance under this Agreement. ARTICLE 5 GENERAL COVENANTS So long as any of the Obligations is outstanding and unpaid or the Lenders have an obligation to fund Advances hereunder (whether or not the conditions to borrowing have been or can be fulfilled), and unless the Required Lenders, or such greater number of Lenders as may be expressly provided herein, shall otherwise consent in writing: Section 5.1 PRESERVATION OF EXISTENCE AND SIMILAR MATTERS. The Borrower will, and will cause each of its Subsidiaries to: (a) preserve and maintain (i) its existence, and (ii) its material rights, franchises, licenses and privileges in the state of its incorporation, including, without limiting the foregoing, the Licenses and all other Necessary Authorizations; and (b) qualify and remain qualified and authorized to do business in each jurisdiction in which the character of its properties or the nature of its business requires such qualification or authorization. - 51 - Section 5.2 BUSINESS; COMPLIANCE WITH APPLICABLE LAW. The Borrower will, and will cause each of its Subsidiaries to, (a) engage in the business of owning, constructing, managing, operating and investing in Cellular Systems and other wireless communications and related businesses and no unrelated activities, and (b) comply in all material respects with the requirements of all Applicable Law. Section 5.3 MAINTENANCE OF PROPERTIES. The Borrower will, and will cause each of its Subsidiaries to, maintain or cause to be maintained in the ordinary course of business in good repair, working order and condition (reasonable wear and tear excepted) all properties used in their respective businesses (whether owned or held under lease), other than obsolete equipment or unused assets, and from time to time make or cause to be made all needed and appropriate repairs, renewals, replacements, additions, betterments and improvements thereto, except as to leased properties where the landlord is required to make such repairs, in which event Borrower shall be under no obligation to do so unless the particular lease permits the Borrower to do so in the absence of the landlord complying with its obligations. Section 5.4 ACCOUNTING METHODS AND FINANCIAL RECORDS. The Borrower will, and will cause each of its Subsidiaries on a consolidated and consolidating basis to, maintain a system of accounting established and administered in accordance with GAAP, keep adequate records and books of account in which complete entries will be made in accordance with GAAP and reflecting all transactions required to be reflected by GAAP and keep accurate and complete records of their respective properties and assets. The Borrower and each of its Subsidiaries will maintain a fiscal year ending on December 31st. Section 5.5 INSURANCE. The Borrower will, and will cause each of its Subsidiaries to: (a) Maintain insurance, including, without limitation, business interruption coverage and public liability coverage insurance from responsible companies in such amounts and against such risks to the Borrower and each of its Subsidiaries as is standard for similarly situated companies engaged in the cellular telephone and wireless communications industry. (b) Keep their respective assets insured by insurers on terms and in a manner reasonably acceptable to the Administrative Agent against loss or damage by fire, flood, theft, burglary, loss in transit, explosions and hazards insured against by extended coverage, in amounts which are prudent for the cellular telephone and wireless communications industry and reasonably satisfactory to the Administrative Agent, all premiums thereon to be paid by the Borrower and its Subsidiaries. (c) Require that each insurance policy provide for at least thirty (30) days' prior written notice to the Administrative Agent of any termination of or proposed cancellation or nonrenewal of such policy, and name the Administrative Agent as additional named lender loss payee and, as appropriate, additional insured, to the extent of the Obligations. Section 5.6 PAYMENT OF TAXES AND CLAIMS. The Borrower will, and will cause each of its Subsidiaries to, pay and discharge all taxes, including, without limitation, withholding taxes, - 52 - assessments and governmental charges or levies required to be paid by them or imposed upon them or their income or profits or upon any properties belonging to them, prior to the date on which penalties attach thereto, and all lawful claims for labor, materials and supplies which, if unpaid, might become a Lien or charge upon any of their properties; except that no such tax, assessment, charge, levy or claim need be paid which is being diligently contested in good faith by appropriate proceedings and for which adequate reserves shall have been set aside on the appropriate books, but only so long as such tax, assessment, charge, levy or claim does not become a Lien or charge other than a Permitted Lien and no foreclosure, distraint, sale or similar proceedings shall have been commenced. The Borrower will, and will cause each of its Subsidiaries to, timely file all information returns required by federal, state or local tax authorities. Section 5.7 COMPLIANCE WITH ERISA. (a) The Borrower will, and will cause its Subsidiaries to, make all contributions to any Employee Pension Plan when such contributions are due and not incur any "accumulated funding deficiency" within the meaning of Section 412(a) of the Code, whether or not waived, and will otherwise comply with the requirements of the Code and ERISA with respect to the operation of all Plans, except to the extent that the failure to so comply could not have a Materially Adverse Effect. (b) The Borrower will, and will cause its Subsidiaries to, comply in all respects with the requirements of COBRA with respect to any Plans subject to the requirements thereof, except to the extent that the failure to so comply could not have a Materially Adverse Effect. (c) The Borrower will furnish to the Administrative Agent (i) within thirty (30) days after any officer of the Borrower obtains knowledge that a "prohibited transaction" (within the meaning of Section 406 of ERISA or Section 4975 of the Code) has occurred with respect to any Plan of the Borrower or its ERISA Affiliates, including its Subsidiaries, that any Reportable Event has occurred with respect to any Employee Pension Plan or that PBGC has instituted or will institute proceedings under Title IV of ERISA to terminate any Employee Pension Plan or to appoint a trustee to administer any Employee Pension Plan, a statement setting forth the details as to such prohibited transaction, Reportable Event or termination or appointment proceedings and the action which it (or any other Employee Pension Plan sponsor if other than the Borrower) proposes to take with respect thereto, together with a copy of the notice of such Reportable Event given to PBGC if a copy of such notice is available to the Borrower, any of its Subsidiaries or any of its ERISA Affiliates, (ii) promptly after receipt thereof, a copy of any notice the Borrower, any of its Subsidiaries or any of its ERISA Affiliates or the sponsor of any Plan receives from PBGC, or the Internal Revenue Service or the Department of Labor which sets forth or proposes any action or determination with respect to such Plan, (iii) promptly after the filing thereof, any annual report required to be filed pursuant to ERISA in connection with each Employee Pension Plan subject to Title IV of ERISA maintained by the Borrower or any of its ERISA Affiliates, including the Subsidiaries, and (iv) promptly upon the Administrative Agent's request therefor, such additional information concerning any such Plan as may be reasonably requested by the Administrative Agent. (d) The Borrower will promptly notify the Administrative Agent of any excise taxes which have been assessed or, other than as described in subsection (c) above, which the Borrower, any of its Subsidiaries or any of its ERISA Affiliates has reason to believe may be assessed against the Borrower, any of its Subsidiaries or any of its ERISA Affiliates by the Internal Revenue Service or the Department of Labor with respect to any Plan of the Borrower or its ERISA Affiliates, including its Subsidiaries. - 53 - (e) Within the time required for notice to the PBGC under Section 302(f)(4)(A) of ERISA or Section 412(m)(4) of the Code, as the case may be, the Borrower will notify the Administrative Agent of any lien arising under Section 302(f) of ERISA or Section 412(m) of the Code in favor of any Plan of the Borrower or its ERISA Affiliates, including its Subsidiaries. (f) The Borrower will not, and will not permit any of its Subsidiaries or any of its ERISA Affiliates to take any of the following actions or permit any of the following events to occur if such action or event together with all other such actions or events would subject the Borrower, any of its Subsidiaries, or any of its ERISA Affiliates to any tax, penalty, or other liabilities which could have a Materially Adverse Effect: (1) engage in any transaction in connection with which the Borrower, any of its Subsidiaries or any ERISA Affiliate could be subject to either a civil penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of the Code; (2) terminate any Employee Pension Plan in a manner, or take any other action, which could result in any liability of the Borrower, any of its Subsidiaries or any ERISA Affiliate to the PBGC; (3) fail to make full payment when due of all amounts which, under the provisions of any Employee Pension Plan, the Borrower, any of its Subsidiaries or any ERISA Affiliate is required to pay as contributions thereto, or permit to exist any accumulated funding deficiency within the meaning of Section 412(a) of the Code, whether or not waived, with respect to any Employee Pension Plan; (4) permit the present value of all benefit liabilities under all Employee Pension Plans which are subject to Title IV of ERISA to exceed the present value of the assets of such Plans allocable to such benefit liabilities (within the meaning of Section 4041 of ERISA), except as may be permitted under actuarial funding standards adopted in accordance with Section 412 of the Code; or (5) requires the provision of security in favor of any Plan maintained by the Borrower or its ERISA Affiliates, including its Subsidiaries under Section 401(a)(29) of the Code. Section 5.8 VISITS AND INSPECTIONS. The Borrower will, and will cause each of its Subsidiaries to, permit representatives of the Administrative Agent and any of the Lenders, upon - 54 - reasonable notice, to (i) visit and inspect the properties of the Borrower or any of its Subsidiaries during business hours, (ii) inspect and make extracts from and copies of their respective books and records, and (iii) discuss with their respective principal officers their respective businesses, assets, liabilities, financial positions, results of operations and business prospects. The Borrower will, and will cause each of its Subsidiaries to, also permit representatives of the Administrative Agent and any of the Lenders to discuss with their respective accountants the Borrower's and its Subsidiaries' businesses, assets, liabilities, financial positions, results of operations and business prospects. Section 5.9 PAYMENT OF INDEBTEDNESS; LOANS. Subject to any provisions herein or in any other Loan Document, the Borrower will, and will cause each of its Subsidiaries to, pay any and all of their respective Indebtedness when and as it becomes due or to the extent of trade payables of such Persons otherwise in accordance with ordinary business practices customary for the wireless communications industry, other than amounts diligently disputed in good faith and for which adequate reserves have been set aside in accordance with GAAP. Section 5.10 USE OF PROCEEDS. The Borrower will use the aggregate proceeds of all Advances under the Loans directly or indirectly: (a) to fund Capital Expenditures; (b) for working capital needs and other corporate purposes of the Borrower and its Subsidiaries (including, without limitation, the fees and expenses incurred in connection with the execution and delivery of this Agreement) which do not otherwise conflict with this Section 5.10; (c) to fund the Triton Acquisition in an aggregate amount not to exceed $1,240,000,000 on substantially the terms and conditions set forth in the Triton Asset Purchase Agreement and the fees and expenses incurred by the Borrower in connection with the Triton Acquisition; (d) to fund Acquisitions as permitted under Section 7.6(e) hereof; (e) to make Restricted Payments as permitted under Section 7.7 hereof; and (f) to refinance the Borrower's existing bank debt. No proceeds of Advances hereunder shall be used for the purchase or carrying or the extension of credit for the purpose of purchasing or carrying, any margin stock within the meaning of the Regulations. Section 5.11 REAL ESTATE. Subject to Section 7.14 hereof, the Borrower will, and will cause its Subsidiaries to, grant a mortgage to the Administrative Agent securing the Obligations or such amount thereof as is equal to the fair market value of such real estate, in form and substance reasonably satisfactory to the Administrative Agent, covering (a) any parcel of real estate not subject to a Permitted Lien described in clause (i) of the definition thereof or covered - 55 - by the Headquarter's Mortgage having a fair market value, exclusive of equipment acquired by the Borrower or any of its Subsidiaries after the Agreement Date, the value of which exceeds $5,000,000 individually, and (b) all parcels of real estate owned by the Borrower and its Subsidiaries not subject to a Permitted Lien described in clause (i) of the definition thereof or covered by the Headquarter's Mortgage at such time as the aggregate fair market value of all such real estate equals or exceeds $20,000,000. The Borrower will, and will cause its Subsidiaries to, deliver to the Administrative Agent all documentation, including, without limitation, opinions of counsel and policies of title insurance, which in the reasonable opinion of the Administrative Agent are appropriate with each such grant, including any phase I environmental audit requested by the Required Lenders. The Borrower and the Lenders hereby agree that although the Headquarter's Mortgage will not be recorded on the Agreement Date the Administrative Agent may, at the direction of the Required Lenders after the occurrence and during the continuance of an Event of Default, cause the Headquarter's Mortgage to be recorded in the appropriate jurisdiction and further agree that upon becoming aware of any change in the recording tax in the State of Minnesota such that the recording costs for the Headquarter's Mortgage do not exceed $10,000, the Administrative Agent shall promptly cause the Headquarter's Mortgage to be recorded in the appropriate jurisdiction. The Borrower agrees to take any action including, without limitation, the execution and delivery of any additional mortgage documents or amendments thereto as may be necessary to permit the actions set forth in the preceding sentence. Any recording taxes or fees paid by the Administrative Agent in connection with the Headquarter's Mortgage shall be expenses hereunder and shall be subject to reimbursement under Sections 9.11 and 11.2 hereof. Section 5.12 INDEMNITY. The Borrower agrees to indemnify and hold harmless each Lender and the Administrative Agent, and each of their respective affiliates, employees, representatives, shareholders, officers, directors, trustees and advisors (any of the foregoing shall be an "INDEMNITEE") from and against any and all claims, liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, reasonable attorneys', experts', agents', consultants' fees and expenses (as such fees and expenses are incurred) and demands by any party, including, without limitation, the costs of investigating and defending such claims, whether or not the Borrower, any of its Subsidiaries or the Person seeking indemnification is the prevailing party (a) resulting from any breach or alleged breach by the Borrower or any of its Subsidiaries of any representation or warranty made hereunder or under any other Loan Document; or (b) otherwise arising out of (i) the Commitment or otherwise under this Agreement, any Loan Document or any transaction contemplated hereby or thereby, including, without limitation, the use of the proceeds of Loans hereunder in any fashion by the Borrower or the performance of their respective obligations under the Loan Documents by the Borrower or any of its Subsidiaries, (ii) allegations of any participation by the Lenders or the Administrative Agent, or any of them, in the affairs of the Borrower or any of its Subsidiaries, or allegations that any of them has any joint liability with the Borrower or any of its Subsidiaries arising out of the Commitment or otherwise under this Agreement or any Loan Document (or the rights of such Person arising thereunder); (iii) any claims against the Lenders or the Administrative Agent, or any of them, by any shareholder or other investor in or lender to the Borrower or any Subsidiary of the Borrower, by any brokers or finders or investment advisers or investment bankers retained by the Borrower or by any other third party, arising out of the Commitment or otherwise under this Agreement; or (c) in connection with taxes (not including federal or state income taxes or other taxes based - 56 - solely upon the revenues of such Persons), fees, and other charges payable in connection with the Loans, or the execution, delivery, and enforcement of this Agreement, the Security Documents, the other Loan Documents, any amendments thereto or waivers of any of the provisions thereof; unless the Person seeking indemnification hereunder is determined in such case to have acted with gross negligence or willful misconduct, in any case, by a final, non-appealable judicial order. The obligations of the Borrower under this Section 5.12 are in addition to, and shall not otherwise limit, any liabilities which the Borrower might otherwise have in connection with any warranties or similar obligations of the Borrower in any other Loan Document. Section 5.13 INTEREST RATE HEDGING. Within ninety (90) days of the Agreement Date and forty-five (45) days after each Advance, the Borrower shall enter into (and shall at all times thereafter maintain) one or more Interest Hedge Agreements with respect to the Borrower's interest obligations on not less than fifty percent (50%) of the principal amount of the Loans outstanding from time to time. Such Interest Hedge Agreements shall provide interest rate protection in conformity with International Swap Dealers Association standards and for an average period of at least three (3) years from the date of such Interest Hedge Agreements or, if earlier, until the later of the Revolving Loan Maturity Date, Term Loan A Maturity Date, Term Loan B Maturity Date, Term Loan C Maturity Date or Incremental Facility Maturity Date on terms reasonably acceptable to the Administrative Agent, such terms to include consideration of the creditworthiness of the other party to the proposed Interest Hedge Agreement. All Obligations of the Borrower to either Administrative Agent or any of the Lenders (or any of their Affiliates) pursuant to any Interest Hedge Agreement and all Liens granted to secure such Obligations shall rank PARI PASSU with all other Obligations and Liens securing such other Obligations up to the then effective amount of the Commitments; and any Interest Hedge Agreement between the Borrower and any other Person shall be unsecured. Section 5.14 COVENANTS REGARDING FORMATION OF SUBSIDIARIES AND ACQUISITIONS; PARTNERSHIP, SUBSIDIARIES. At the time of (i) any Acquisition permitted hereunder or (ii) the formation of any new Subsidiary of the Borrower or any of its Subsidiaries which is permitted under this Agreement, the Borrower will, and will cause its Subsidiaries, as appropriate, to (a) provide to the Administrative Agent an executed Subsidiary Security Agreement for such new Subsidiary, in substantially the form of EXHIBIT I attached hereto, together with appropriate UCC-1 financing statements, as well as an executed Subsidiary Guaranty for such new Subsidiary, in substantially the form of EXHIBIT G attached hereto, which shall constitute both Security Documents and Loan Documents for purposes of this Agreement, as well as a loan certificate for such new Subsidiary, substantially in the form of EXHIBIT O attached hereto, together with appropriate attachments; (b) pledge to the Administrative Agent all of the stock or partnership interests (or other instruments or securities evidencing ownership) of such Subsidiary or Person which is acquired or formed, beneficially owned by the Borrower or any of the Borrower's Subsidiaries, as the case may be, as additional Collateral for the Obligations to be held by the Administrative Agent in accordance with the terms of the Borrower's Pledge Agreement, an existing Subsidiary Pledge Agreement, or a new Subsidiary Pledge Agreement in substantially the form of EXHIBIT H attached hereto, and execute and deliver to the Administrative Agent all such documentation for such pledge as, in the reasonable opinion of the Administrative Agent, is appropriate; and (c) provide revised financial projections for the remainder of the fiscal year and for each subsequent year until the Revolving Loan Maturity - 57 - Date, Term Loan A Maturity Date, Term Loan B Maturity Date, Term Loan C Maturity Date and Incremental Facility Maturity Date, as applicable which reflect such Acquisition or formation, certified by the chief financial officer of the Borrower, together with a statement by such Person that, to the knowledge of the Borrower, no Default exists or would be caused by such Acquisition or formation, and all other documentation, including one or more opinions of counsel, reasonably satisfactory to the Administrative Agent which in its reasonable opinion is appropriate with respect to such Acquisition or the formation of such Subsidiary. Any document, agreement or instrument executed or issued pursuant to this Section 5.14 shall be a Loan Document for purposes of this Agreement. Section 5.15 PAYMENT OF WAGES. The Borrower will, and will cause each of its Subsidiaries to, at all times comply in all material respects with the requirements of the Fair Labor Standards Act, as amended, including, without limitation, the provisions of such Act relating to the payment of minimum and overtime wages as the same may become due from time to time. Section 5.16 FURTHER ASSURANCES. The Borrower will promptly cure, or cause to be cured, defects in the creation and issuance of any of the Notes and the execution and delivery of the Loan Documents (including, without limitation, this Agreement), resulting from any acts or failure to act by the Borrower or any of the Borrower's Subsidiaries or any employee or officer thereof. The Borrower at its expense will promptly execute and deliver to the Administrative Agent and the Lenders, or cause to be executed and delivered to the Administrative Agent and the Lenders, all such other and further documents, agreements, and instruments in compliance with or accomplishment of the covenants and agreements of the Borrower in the Loan Documents, including this Agreement, or to correct any omissions in the Loan Documents, or more fully to state the obligations set out herein or in any of the Loan Documents, or to obtain any consents, all as may be necessary or appropriate in connection therewith and as may be reasonably requested. ARTICLE 6 INFORMATION COVENANTS So long as any of the Obligations is outstanding and unpaid or the Lenders have an obligation to fund Advances hereunder (whether or not the conditions to borrowing have been or can be fulfilled) and unless the Required Lenders shall otherwise consent in writing, the Borrower will furnish or cause to be furnished to each Lender and the Administrative Agent, at their respective offices: Section 6.1 QUARTERLY FINANCIAL STATEMENTS AND INFORMATION. Within forty-five (45) days after the last day of each of the first three (3) quarters of each fiscal year of the Borrower, commencing with the quarter ending March 31, 2000, the balance sheets of the Borrower on a consolidated and consolidating basis with its Subsidiaries as at the end of such quarter and as of the end of the preceding fiscal year, and the related statements of operations and the related statements of cash flows of the Borrower on a consolidated and consolidating basis with its Subsidiaries for such quarter and for the elapsed portion of the year ended with the last day of - 58 - such quarter, which shall set forth in comparative form such figures as at the end of and for such quarter and appropriate prior period and shall be certified by the chief financial officer, the president or the chief operating officer of the Borrower to have been prepared in accordance with GAAP and to present fairly in all material respects the financial position of the Borrower on a consolidated and consolidating basis with its Subsidiaries as at the end of such period and the results of operations for such period, and for the elapsed portion of the year ended with the last day of such period, subject only to normal year-end and audit adjustments. Section 6.2 ANNUAL FINANCIAL STATEMENTS AND INFORMATION. Within one hundred twenty (120) days after the end of each fiscal year of the Borrower, the audited consolidated balance sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and the related audited consolidated and unaudited consolidating statements of operations for such fiscal year and for the previous fiscal year, the related audited consolidated statements of cash flow and stockholders' equity for such fiscal year and for the previous fiscal year, which shall be accompanied by an opinion, which opinion shall be in scope and substance reasonably satisfactory to the Administrative Agent, of independent certified public accountants of recognized national standing acceptable to the Administrative Agent, together with a statement of such accountants that in connection with their audit, nothing came to their attention that caused them to believe that the Borrower was not in compliance with the terms, covenants, provisions or conditions of Articles 7 and 8 hereof insofar as they relate to accounting matters. Section 6.3 PERFORMANCE CERTIFICATES. At the time the financial statements are furnished pursuant to Sections 6.1 and 6.2, a certificate of the president or chief financial officer of the Borrower as to its financial performance, in substantially the form attached hereto as EXHIBIT R: (a) setting forth as and at the end of such quarterly period or fiscal year, as the case may be, the arithmetical calculations required to establish (i) any adjustment to the Applicable Margins, as provided for in Section 2.3(f) hereof, and (ii) whether or not the Borrower was in compliance with the requirements of Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereof; (b) setting forth on a consolidated basis for the Borrower and its Subsidiaries for each such fiscal quarter (i) the number of subscribers at the beginning of the quarter, (ii) the number of gross new subscribers added and deactivated subscribers lost during the quarter, and (iii) the number of subscribers at the end of the quarter; and (c) stating that, to the best of his or her knowledge, no Default has occurred as at the end of such quarterly period or year, as the case may be, or, if a Default has occurred, disclosing each such Default and its nature, when it occurred, whether it is continuing and the steps being taken by the Borrower with respect to such Default. Section 6.4 COPIES OF OTHER REPORTS. (a) Promptly upon receipt thereof, copies of all reports, if any, submitted to the Borrower by the Borrower's independent public accountants regarding the Borrower, - 59 - including, without limitation, any management report prepared in connection with the annual audit referred to in Section 6.2 hereof. (b) Promptly upon receipt thereof, copies of any material adverse notice or report regarding any License from the FCC. (c) From time to time and promptly upon each request, such data, certificates, reports, statements, documents or further information regarding the business, assets, liabilities, financial position, projections, results of operations or business prospects of the Borrower or any of its Subsidiaries, as the Administrative Agent or any Lender may reasonably request. (d) Annually, within ninety (90) days of the last day of each fiscal year of the Borrower, certificates of insurance indicating that the requirements of Section 5.5 hereof remain satisfied for such fiscal year, together with copies of any new or replacement insurance policies obtained during such year. (e) Prior to January 31st of each year, the annual budget for the Borrower and the Borrower's Subsidiaries, including, without limitation, forecasts of the income statement, the balance sheet and a cash flow statement for such year, on a quarter by quarter basis. (f) Promptly after the sending thereof, copies of all statements, reports and other information which the Borrower or any of its Subsidiaries sends to security holders of the Borrower generally or files with the Securities and Exchange Commission or any national securities exchange. Section 6.5 NOTICE OF LITIGATION AND OTHER MATTERS. Notice specifying the nature and status of any of the following events, promptly, but in any event not later than fifteen (15) days (or, in the case of Section 6.5(d) hereof, ten (10) days) after the occurrence of any of the following events becomes known to the Borrower or any of its Subsidiaries: (a) the commencement of all proceedings and investigations by or before any governmental body and all actions and proceedings in any court or before any arbitrator against, or to the extent known to the Borrower or any of its Subsidiaries, in any other way relating materially adversely to the Borrower or any of its Subsidiaries, or any of their respective properties, assets or businesses or any License; (b) any material adverse change with respect to the business, assets, liabilities, financial position, results of operations or business prospects of the Borrower or any of its Subsidiaries other than changes in the ordinary course of business which have not had and would not reasonably be expected to have a Materially Adverse Effect and other changes in the industry in which either the Borrower or any of its Subsidiaries operate which would not reasonably be expected to have a Materially Adverse Effect; (c) any material adverse amendment or change to the financial projections or annual budget provided to the Lenders by the Borrower; - 60 - (d) any Default or the occurrence or non-occurrence of any event (i) which constitutes, or which with the passage of time or giving of notice or both would constitute a default by the Borrower or any of its Subsidiaries under any material agreement other than this Agreement and the other Loan Documents to which the Borrower or any of its Subsidiaries is party or by which any of their respective properties may be bound, or (ii) which could have a Materially Adverse Effect, giving in each case a detailed description thereof and specifying the action proposed to be taken with respect thereto; (e) the occurrence of any Reportable Event or a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) with respect to any Plan of the Borrower or any of its Subsidiaries or the institution or threatened institution by PBGC of proceedings under ERISA to terminate or to partially terminate any such Plan or the commencement or threatened commencement of any litigation regarding any such Plan or naming it or the trustee of any such Plan with respect to such Plan or any action taken by the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate of the Borrower to withdraw or partially withdraw from any Plan or to terminate any Plan; and (f) the occurrence of any event subsequent to the Agreement Date which, if such event had occurred prior to the Agreement Date, would have constituted an exception to the representation and warranty in Section 4.1(m) hereof. ARTICLE 7 NEGATIVE COVENANTS So long as any of the Obligations is outstanding and unpaid or the Lenders have an obligation to fund Advances hereunder (whether or not the conditions to borrowing have been or can be fulfilled) and unless the Required Lenders, or such greater number of Lenders as may be expressly provided herein, shall otherwise give their prior consent in writing: Section 7.1 INDEBTEDNESS OF THE BORROWER AND ITS SUBSIDIARIES. The Borrower shall not, and shall not permit any of its Subsidiaries to, create, assume, incur or otherwise become or remain obligated in respect of, or permit to be outstanding, any Indebtedness except: (a) the Obligations; (b) operating accounts payable, accrued expenses and customer advance payments and accrued Plan contributions incurred in the ordinary course of business; (c) Indebtedness secured by Permitted Liens; (d) obligations under Interest Hedge Agreements with respect to the Loans; (e) Indebtedness of the Borrower, or of any of its Subsidiaries to the Borrower or any other Subsidiary, so long as the corresponding debt instruments are pledged to the - 61 - Administrative Agent as security for the Obligations and Indebtedness expressly permitted pursuant to Section 7.5 hereof; (f) the Incremental Facility; (g) (i) secured Indebtedness of the Borrower which does not exceed $10,000,000 in the aggregate at any one time outstanding, and/or (ii) unsecured Indebtedness of the Borrower which does not exceed $25,000,000 in the aggregate at any one time outstanding; PROVIDED, HOWEVER, that the sum of (1) the aggregate amount of secured Indebtedness permitted pursuant to this Section 7.1(g), PLUS (2) the aggregate amount of unsecured Indebtedness permitted pursuant to this Section 7.1(g) shall not exceed $25,000,000 in the aggregate at any one time outstanding, on terms and conditions reasonably satisfactory to the Administrative Agent; (h) Subordinated Indebtedness and Preferred Stock; (i) Indebtedness which does not exceed $5,000,000 in the aggregate at any one time outstanding; PROVIDED, HOWEVER, that such Indebtedness is (i) purchase money Indebtedness of the Borrower or any of its Subsidiaries that is incurred or assumed to finance part or all of (but not more than) the purchase price of a tangible asset in which neither the Borrower nor such Subsidiary had at any time prior to such purchase any interest other than a security interest or an interest as lessee under an operating lease, or (ii) Capitalized Lease Obligations. Section 7.2 LIMITATION ON LIENS. The Borrower shall not, and shall not permit any of its Subsidiaries to, create, assume, incur or permit to exist or to be created, assumed, incurred or permitted to exist, directly or indirectly, any Lien on any of its properties or assets, whether now owned or hereafter acquired, except for Permitted Liens. Section 7.3 AMENDMENT AND WAIVER. The Borrower shall not, and shall not permit any of its Subsidiaries to, without the consent of the Required Lenders, enter into any amendment of, or agree to or accept or consent to any waiver of any of the material provisions of, as applicable, (a) its articles or certificate of incorporation or partnership agreement, (b) its by-laws or membership agreement, (c) the membership agreement of Wireless Alliance (d) the Subordinated Notes (or the related indenture) or (e) the Preferred Stock (or the related indentures). Section 7.4 LIQUIDATION, MERGER, OR DISPOSITION OF ASSETS. (a) DISPOSITION OF ASSETS. The Borrower shall not, and shall not permit any of its Subsidiaries to, at any time sell, lease, abandon, or otherwise dispose of any assets (other than assets disposed of in the ordinary course of business) without the prior written consent of the Lenders; PROVIDED, HOWEVER, that the prior written consent of the Lenders shall not be required for (i) the transfer of assets (including, without limitation, cash or cash equivalents) among the Borrower and its Subsidiaries (excluding Wireless Alliance) or for the transfer of assets (including, without limitation, cash or cash equivalents, but excluding the Licenses) between or - 62 - among Subsidiaries (excluding Wireless Alliance) of the Borrower, (ii) dispositions of assets the proceeds of which are applied pursuant to Section 2.5(c) or 2.7(b)(vi) hereof (PROVIDED, HOWEVER, that, with respect to such sales under Section 2.5(c) or 2.7(b)(vi), the Borrower provides to the Administrative Agent and the Lenders on the date of such sale a certificate reflecting compliance with the terms and provisions of Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereof both before and after giving effect to such sale or transfer) or (iii) the Borrower or any of its Subsidiaries may enter into sale/leaseback transactions with respect to its cellular towers so long as the documentation for any such sale/ leaseback or similar arrangement is approved as to form by the Administrative Agent (such approval not to be unreasonably withheld). (b) LIQUIDATION OR MERGER. The Borrower shall not, and shall not permit any of its Subsidiaries to, at any time liquidate or dissolve itself (or suffer any liquidation or dissolution) or otherwise wind up, or enter into any merger, other than (i) a merger or consolidation among the Borrower and one or more Subsidiaries; PROVIDED, HOWEVER, that the Borrower is the surviving corporation, or (ii) a merger between or among two or more Subsidiaries, or (iii) in connection with an Acquisition permitted hereunder effected by a merger in which the Borrower or, in a merger in which the Borrower is not a party, a Subsidiary of the Borrower is the surviving corporation. Section 7.5 LIMITATION ON GUARANTIES. The Borrower shall not, and shall not permit any of its Subsidiaries to, at any time Guaranty, assume, be obligated with respect to, or permit to be outstanding any Guaranty of, any obligation of any other Person other than (a) a guaranty by endorsement of negotiable instruments for collection in the ordinary course of business, (b) obligations under agreements of the Borrower or any of its Subsidiaries entered into in connection with leases of real property or the acquisition of services, supplies and equipment in the ordinary course of business of the Borrower or any of its Subsidiaries, (c) Guaranties of Indebtedness incurred as permitted pursuant to Section 7.1 hereof (other than Section 7.1(h) hereof), (d) as may be contained in any Loan Document, including, without limitation, the Subsidiary Guaranty or (e) in its capacity as a general partner in any of its Subsidiaries. Section 7.6 INVESTMENTS AND ACQUISITIONS. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make any loan or advance, or otherwise acquire for consideration evidences of Indebtedness, capital stock or other securities of any Person or other assets or property (other than assets or property in the ordinary course of business), or make any Acquisition or Investment; PROVIDED, HOWEVER, that: (a) The Borrower or any of its Subsidiaries may, directly or through a brokerage account, (i) purchase marketable, direct obligations of the United States of America, its agencies and instrumentalities maturing within three hundred sixty-five (365) days of the date of purchase, (ii) purchase commercial paper, money-market funds and business savings accounts issued by corporations, each of which shall have a combined net worth of at least $100,000,000 and each of which conducts a substantial part of its business in the United States of America, maturing within two hundred seventy (270) days from the date of the original issue thereof, and rated "P-2" or better by Moody's Investors Service, Inc. or "A-2" or better by Standard and Poor's Ratings Group, a division of McGraw-Hill, Inc., and (iii) purchase repurchase agreements, bankers' acceptances, and certificates of deposit maturing within three hundred - 63 - sixty-five (365) days of the date of purchase which are issued by, or time deposits maintained with, a United States national or state bank the deposits of which are insured by the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation and having capital, surplus and undivided profits totaling more than $100,000,000 and rated "A" or better by Moody's Investors Service, Inc. or Standard and Poor's Ratings Group, a division of McGraw-Hill, Inc.; (b) So long as no Default then exists or would be caused thereby, and subject to compliance with Section 5.14 hereof, the Borrower or any of its Subsidiaries may complete the following Acquisitions: (i) the Triton Acquisition; and (ii) Acquisitions in the aggregate not to exceed $100,000,000 (including reasonable and customary costs and expenses related to such Acquisitions) of not less than fifty and one one-hundredth percent (50.01%) of the ownership interest (after giving effect to any ownership interest acquired on or prior to the date of such Acquisition as permitted hereunder) in Cellular Systems, or the right to construct a Cellular System (including, without limitation, associated construction costs), in an RSA or an MSA or a BTA (in the case of a PCS System) which is primarily within the same geographic area as or contiguous to a Cellular System then owned by the Borrower or any of its Subsidiaries; (c) So long as no Default then exists or would be caused thereby, the Borrower or any of its Subsidiaries may make Investments in an aggregate amount not to exceed $50,000,000, in Cellular Systems, or the right to construct a Cellular System (including without limitation, associated construction costs), in an RSA or an MSA or a BTA (in the case of a PCS System) which is primarily within the same geographic area as or contiguous to a Cellular System then owned by the Borrower or any of its Subsidiaries, Capital Expenditures and general working capital purposes without the consent of the Lenders; PROVIDED, HOWEVER, that (i) prior to making such Investment, the Borrower shall deliver to the Administrative Agent and the Lenders a certificate reflecting pro forma projections and compliance with the terms and conditions of this Agreement from the date of such Acquisition through the Revolving Loan Maturity Date, Term Loan A Maturity Date, Term Loan B Maturity Date, Term Loan C Maturity Date and Incremental Facility Maturity Date, as applicable after giving effect to such Investment and using reasonable assumptions in the opinion of the Required Lenders; (ii) in the case of any equity investment, any equity interests received in connection with such Investment are pledged as Collateral for the Obligations; and (iii) in the case of any loan or extension of Indebtedness, such loan is evidenced by a promissory note which is assigned as Collateral for the Obligations; (d) So long as no Default then exists or would be caused thereby, the Borrower or any of its Subsidiaries may make Investments in Wireless Alliance in an aggregate amount not to exceed $50,000,000 (which amount shall include, without limitation, any Investment in Wireless Alliance made prior to the Agreement Date, but exclude Acquisitions made pursuant to Section 7.6(b) hereof and Investments made pursuant to Section 7.6(e) hereof); PROVIDED, HOWEVER, that (i) in the case of any equity investment, any equity interests received in connection with such Investment are pledged as Collateral for the Obligations and (ii) in the case of any loan or extension of Indebtedness, such loan is evidenced by a promissory note which is assigned as Collateral for the Obligations; - 64 - (e) except so long as no Default then exists or would be caused thereby, subject to compliance with Section 5.14 hereof, the Borrower may issue equity interests in the Borrower in exchange for ownership interests in any Person operating a Cellular System; PROVIDED HOWEVER to the extent that the Borrower has acquired less than or equal to fifty percent (50%) of the total ownership interests in such Person, no such acquired ownership interest subjects the Borrower to any obligation to fund additional capital or otherwise make any Investment (in cash or otherwise) in such Person; and (f) During such time as any Cooperative Lender shall be a Lender, the Borrower may purchase such non-voting equity interests in such Cooperative Lender represented by participation certificates of such Cooperative Lender as such Cooperative Lender may from time to time require in accordance with such Cooperative Lender's bylaws and "Loan-Based Capital Plan." Each Cooperative Lender shall have a statutory first Lien on the equity in such Cooperative Lender to secure all obligations of the Borrower to such Cooperative Lender, and such Lien shall be deemed to constitute a Permitted Lien hereunder. No Cooperative Lender shall be obligated to set off or otherwise apply such equities to the Borrower's obligations to the Cooperative Lender. Section 7.7 RESTRICTED PAYMENTS AND PURCHASES. The Borrower shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, declare or make any Restricted Payment or Restricted Purchase; PROVIDED, HOWEVER, that so long as no Default hereunder then exists or would be caused thereby, (a) and so long as a Subsidiary of the Borrower is not obligated on any Indebtedness to the Borrower or any of its Subsidiaries, such Subsidiary may make distributions to (i) any partner or shareholder of such Subsidiary holding a minority position with respect to such Subsidiary, so long as such Subsidiary makes a contemporaneous pro rata distribution to the Borrower or any of its Subsidiaries, and such partner or shareholder is not an Affiliate of the Borrower, (ii) the Borrower or any of its Subsidiaries, (b) the Borrower may make scheduled interest payments, when such payments are due and payable, on any Subordinated Indebtedness to the extent such Subordinated Indebtedness has scheduled payments permitted hereunder in accordance with any subordination provisions thereunder, (c) the Borrower may make scheduled dividend payments, when such payments are due and payable on any Preferred Stock to the extent such Preferred Stock has scheduled dividend payments permitted hereunder in accordance with any subordination provisions thereunder and (d) the Borrower may repay in whole or in part the Junior Preferred Stock pursuant to Section 2.7(b)(vi) hereunder. Section 7.8 TOTAL LEVERAGE RATIO. (a) As of the end of any calendar quarter, and (b) at the time of any Advance hereunder (after giving effect to such Advance), the Borrower shall not permit its Total Leverage Ratio to exceed the ratios set forth below during the periods indicated:
PERIOD TOTAL LEVERAGE RATIO ------ -------------------- Agreement Date through 8.50:1.00 June 30, 2000 July 1, 2000 through 7.50:1.00 December 31, 2000
- 65 - January 1, 2001 through 7.25:1.00 June 30, 2001 July 1, 2001 through 6.50:1.00 December 31, 2001 January 1, 2002 through 6.00:1.00 December 31, 2002 January 1, 2003 and thereafter 5.00:1.00
Notwithstanding anything herein to the contrary, the Total Leverage Ratio on the Agreement Date shall (after giving effect to the initial Advances hereunder) be less than or equal to 8.00 to 1.00. Section 7.9 SENIOR LEVERAGE RATIO. (a) As of the end of any calendar quarter, and (b) at the time of any Advance hereunder (after giving effect to such Advance), the Borrower shall not permit the ratio of (i) the principal amount of the Loans outstanding on such date to (ii) its Annualized Operating Cash Flow (as of the calendar quarter end being tested, or as of the most recently completed calendar quarter for which financial statements are required to have been delivered pursuant to Section 6.1 or 6.2 hereof, as the case may be) to exceed the ratios set forth below during the periods indicated:
PERIOD SENIOR LEVERAGE RATIO ------ --------------------- Agreement Date through 7.50:1.00 June 30, 2000 July 1, 2000 through 7.00:1.00 December 31, 2000 January 1, 2001 through 6.25:1.00 June 30, 2001 July 1, 2001 through 5.50:1.00 December 31, 2001 January 1, 2002 through December 31, 2002 5.00:1.00 January 1, 2003 and thereafter 4.50:1.00
Section 7.10 ANNUALIZED OPERATING CASH FLOW TO PRO FORMA DEBT SERVICE. (a) As of the end of any calendar quarter, and (b) at the time of any Advance hereunder (after giving effect to such Advance), the Borrower shall not permit the ratio of (i) its Annualized Operating Cash - 66 - Flow (as of the calendar quarter end being tested, or as of the most recently completed calendar quarter for which financial statements are required to have been delivered pursuant to Section 6.1 or 6.2 hereof, as the case may be) to (ii) the sum of (A) its Pro Forma Debt Service for the four (4) calendar quarters immediately following the calculation date and (B) Interest Expense for the four (4) calendars quarters immediately preceding the calculation date, to be less than 1.20 to 1.00. Section 7.11 ANNUALIZED OPERATING CASH FLOW TO INTEREST EXPENSE. (a) As of the end of any calendar quarter, and (b) at the time of any Advance hereunder (after giving effect to such Advance), the Borrower shall not permit the ratio of (i) its Annualized Operating Cash Flow (as of the calendar quarter end being tested, or as of the most recently completed calendar quarter for which financial statements are required to have been delivered pursuant to Section 6.1 or 6.2 hereof, as the case may be) to (ii) its Interest Expense for the twelve (12) calendar months immediately preceding the calculation date to be less than the ratios set forth below for the periods indicated:
ANNUALIZED OPERATING CASH PERIOD FLOW TO INTEREST EXPENSE ------ ------------------------ Agreement Date through 1.25:1.00 June 30, 2000 July 1, 2000 through 1.50:1.00 June 30, 2001 July 1, 2001 and 2.00:1.00 thereafter
Section 7.12 FIXED CHARGE COVERAGE RATIO (a) As of the end of any calendar quarter, and (b) at the time of any Advance hereunder (after giving effect to such Advance), the Borrower shall not permit the ratio of (i) its Annualized Operating Cash Flow (as of the calendar quarter end being tested, or as of the most recently completed calendar quarter for which financial statements are required to have been delivered pursuant to Section 6.1 or 6.2 hereof, as the case maybe) to (ii) the sum of, without duplication, for the twelve (12) calendar months preceding the calculation date (A) Capital Expenditures made during such period PLUS (B) Debt Service for such period PLUS (C) Restricted Payments made during such period to be less than 1.00:1.00. Section 7.13 AFFILIATE TRANSACTIONS. Except as specifically provided herein and as may be described on SCHEDULE 6 attached hereto, the Borrower shall not, and shall not permit any of its Subsidiaries to, at any time engage in any transaction with an Affiliate, or make an assignment or other transfer of any of its properties or assets to any Affiliate, on terms less advantageous to the Borrower or such Subsidiary than would be the case if such transaction had been effected with a non-Affiliate. - 67 - Section 7.14 REAL ESTATE. The Borrower shall not, and shall cause each of its Subsidiaries not to, purchase real estate; PROVIDED, HOWEVER, that subject to Section 5.11 hereof, the Borrower and each of its Subsidiaries may purchase real estate solely for use in the business of the Borrower and its Subsidiaries. Section 7.15 ERISA LIABILITIES. The Borrower shall not, and shall cause each of its ERISA Affiliates not to, (i) permit the assets of any of their respective Employee Pension Plans to be less than the amount necessary to provide all accrued benefits under such Plans, or (ii) enter into any Multiemployer Plan. ARTICLE 8 DEFAULT Section 8.1 EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default, whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment or order of any court or any order, rule or regulation of any governmental or non-governmental body: (a) Any representation or warranty made under this Agreement or any other Loan Document shall prove incorrect or misleading in any material respect when made or deemed to be made pursuant to Section 4.2 hereof; (b) The Borrower shall default in the payment of: (i) any interest under any of the Notes (or Incremental Facility Notes) or fees or other amounts payable to the Lenders and the Administrative Agent under any of the Loan Documents, or any of them, when due, and such Default shall not be cured by payment in full within five (5) Business Days from the due date; or (ii) any principal under any of the Notes (or Incremental Facility Notes) when due; (c) The Borrower shall default (i) in the performance or observance of any agreement or covenant contained in Sections 5.2(a), 5.10, 6.5, 7.1, 7.2 (if the event causing such default is consensual in nature), 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10, 7.11, and 7.12 hereof; or (ii) in providing any financial statement or report under Article 6 hereof, and, with respect to this clause (ii) only, such Default shall not be cured by delivery thereof within a period of fifteen (15) days from the later of (x) occurrence of such Default and (y) the date on which such Default became known to the Borrower; (d) The Borrower shall default in the performance or observance of any other agreement or covenant contained in this Agreement not specifically referred to elsewhere in this Section 8.1, and such default shall not be cured within a period of thirty (30) days from the later of (i) occurrence of such default and (ii) the date on which such default became known to the Borrower; (e) There shall occur any default in the performance or observance of any agreement or covenant or breach of any representation or warranty contained in any of the Loan Documents (other than this Agreement or as otherwise provided in this Section 8.1) by the - 68 - Borrower, any of its Subsidiaries, or any other obligor thereunder, which shall not be cured within a period of thirty (30) days from the later of (i) occurrence of such default and (ii) the date on which such default became known to the Borrower; (f) There shall be entered and remain unstayed a decree or order for relief in respect of the Borrower or any of its Subsidiaries under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy law or other similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar official of the Borrower or any of its Subsidiaries, or of any substantial part of their respective properties, or ordering the winding-up or liquidation of the affairs of the Borrower or any of its Subsidiaries; or an involuntary petition shall be filed against the Borrower or any of its Subsidiaries and a temporary stay entered, and (i) such petition and stay shall not be diligently contested, or (ii) any such petition and stay shall continue undismissed for a period of sixty (60) consecutive days; (g) The Borrower or any of its Subsidiaries shall file a petition, answer or consent seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy law or other similar law, or the Borrower or any of its Subsidiaries shall consent to the institution of proceedings thereunder or to the filing of any such petition or to the appointment or taking of possession of a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Borrower or any of its Subsidiaries or of any substantial part of their respective properties, or the Borrower or any of its Subsidiaries shall fail generally to pay their respective debts as they become due or shall be adjudicated insolvent; the Borrower shall suspend or discontinue its business; the Borrower or any of its Subsidiaries shall have concealed, removed any of its property with the intent to hinder or defraud its creditors or shall have made a fraudulent or preferential transfer under any applicable fraudulent conveyance or bankruptcy law, or the Borrower or any of its Subsidiaries shall take any action in furtherance of any such action; (h) A judgment not covered by insurance or indemnification, where the indemnifying party has agreed to indemnify and is financially able to do so, shall be entered by any court against the Borrower or any of its Subsidiaries for the payment of money which exceeds singly or in the aggregate with other such judgments, $1,000,000, or a warrant of attachment or execution or similar process shall be issued or levied against property of the Borrower or any of its Subsidiaries which, together with all other such property of the Borrower or any of its Subsidiaries subject to other such process, exceeds in value $1,000,000 in the aggregate, and if, within thirty (30) days after the entry, issue or levy thereof, such judgment, warrant or process shall not have been paid or discharged or stayed pending appeal or removed to bond, or if, after the expiration of any such stay, such judgment, warrant or process shall not have been paid or discharged or removed to bond; (i) (i) There shall be at any time any "accumulated funding deficiency," as defined in ERISA or in Section 412 of the Code, with respect to any Plan maintained by the Borrower or any of its Subsidiaries or any ERISA Affiliate, or to which the Borrower or any of its Subsidiaries or any ERISA Affiliate has any liabilities, or any trust created thereunder; or a trustee shall be appointed by a United States District Court to administer any such Plan; or - 69 - (ii) PBGC shall institute proceedings to terminate any such Plan; or (iii) the Borrower or any of its Subsidiaries or any ERISA Affiliate shall incur any liability to PBGC in connection with the termination of any such Plan; or (iv) any Plan or trust created under any Plan of the Borrower or any of its Subsidiaries or any ERISA Affiliate shall engage in a "prohibited transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of the Code) which would subject any such Plan, any trust created thereunder, any trustee or administrator thereof, or any party dealing with any such Plan or trust to the tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or Section 4975 of the Code which has or could be reasonably likely to have a Materially Adverse Effect and which is not cured to the reasonable satisfaction of the Required Lenders within thirty (30) days from the later of (A) the occurrence of such event or (B) the date on which such event became known to the Borrower; or (v) the Borrower or any of its Subsidiaries or any ERISA Affiliate shall adopt or otherwise contribute to a Multiemployer Plan. (j) Any event not referred to elsewhere in this Section 8.1 shall occur which has a Materially Adverse Effect and such event shall not be cured within a period of thirty (30) days from the later of (i) occurrence of such event and (ii) the date on which such event became known to the Borrower or any of its Subsidiaries; (k) There shall occur (i) any acceleration of the maturity of any Indebtedness of the Borrower or any of its Subsidiaries in an aggregate principal amount exceeding $1,000,000, or, as a result of a failure to comply with the terms thereof, such Indebtedness shall otherwise become due and payable; (ii) any event or condition the occurrence of which would permit such acceleration of such Indebtedness, or which, as a result of a failure to comply with the terms thereof, would make such Indebtedness otherwise due and payable, and which event or condition has not been cured within any applicable cure period or waived in writing prior to any declaration of an Event of Default or acceleration of the Loans hereunder; or (iii) any material default under any Interest Hedge Agreement which would permit the obligation of the Borrower to make payments to the counterparty thereunder to be then due and payable; (l) The FCC shall deliver to the Borrower or any of its Subsidiaries an order to show cause why an order of revocation should not be issued based upon any alleged attribution of alien ownership (within the meaning of 47 U.S.C. ss. 310(b) and any interpretation of the FCC thereunder) to the Borrower or any of its Subsidiaries and (i) such order shall not have been rescinded within thirty (30) days after such delivery or (ii) in the reasonable judgment of the Required Lenders, proceedings by or before the FCC related to such order are reasonably likely to result in one or more orders of revocation and would constitute an Event of Default under Section 8.1(m) hereof; (m) One or more Licenses shall be terminated or revoked or substantially adversely modified such that the Borrower and its Subsidiaries are no longer able to operate the related Cellular System or Systems or portions thereof and retain the revenue received therefrom or any such License shall fail to be renewed at the stated expiration thereof such that the Borrower and its Subsidiaries are no longer able to operate the related Cellular System or Systems or portions thereof and retain the revenue received therefrom, and the overall effect of such termination, revocation or failure to renew would be to reduce Operating Cash Flow - 70 - (determined as at the last day of the most recently ended fiscal year of the Borrower) by ten percent (10%) or more; (n) Any "person" or "group" (within the meaning of Sections 13(d)(3) and 14(d)(2) of the Exchange Act or any successor provision to either of the foregoing, including any group acting for the purpose of acquiring, holding or disposing of securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of fifty percent (50%) or more of the voting or economic Capital Stock of the Borrower; (o) Any Loan Document or any material provision thereof, shall at any time and for any reason be declared by a court of competent jurisdiction to be null and void, or a proceeding shall be commenced by the Borrower or any of its Subsidiaries or by any governmental authority having jurisdiction over the Borrower or any of its Subsidiaries seeking to establish the invalidity or unenforceability thereof (exclusive of questions of interpretation of any provision thereof), or the Borrower or any of its Subsidiaries shall deny that it has any liability or obligation for the payment of principal or interest purported to be created under any Loan Document; or (p) Any Security Document shall for any reason, fail or cease (except by reason of lapse of time) to create a valid and perfected and first-priority Lien on or Security Interest in any portion of the Collateral purported to be covered thereby. Section 8.2 REMEDIES. (a) If an Event of Default specified in Section 8.1 (other than an Event of Default under Section 8.1(f) or (g) hereof) shall have occurred and shall be continuing, the Administrative Agent, at the request of the Required Lenders subject to Section 9.8(a) hereof, shall (i) terminate the Commitment and the Incremental Facility Commitment, and/or (ii) declare the principal of and interest on the Loans and the Notes and the Incremental Facility Notes, and all other amounts owed to the Lenders and the Administrative Agent under this Agreement, the Notes and the Incremental Facility Notes, and any other Loan Documents to be forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything in this Agreement, the Notes and the Incremental Facility Notes, or any other Loan Document to the contrary notwithstanding, and the Commitment and the Incremental Facility Commitment shall thereupon forthwith terminate. (b) Upon the occurrence and continuance of an Event of Default specified in Section 8.1(f) or (g) hereof, all principal, interest and other amounts due hereunder and under the Notes and the Incremental Facility Notes, and all other Obligations, shall thereupon and concurrently therewith become due and payable and the Commitment and the Incremental Facility Commitment shall forthwith terminate and the principal amount of the Loans outstanding hereunder shall bear interest at the Default Rate, all without any action by the Administrative Agent, the Lenders, or the Required Lenders, or any of them and without presentment, demand, protest or other notice of any kind, all of which are expressly waived, anything in this Agreement or in the other Loan Documents to the contrary notwithstanding. - 71 - (c) Upon acceleration of the Notes and, if applicable, the Incremental Facility Notes as provided in subsection (a) or (b) of this Section 8.2, above, the Administrative Agent and the Lenders shall have all of the post-default rights granted to them, or any of them, as applicable under the Loan Documents and under Applicable Law. (d) Upon acceleration of the Notes and the Incremental Facility Notes, as provided in subsection (a) or (b) of this Section 8.2, the Administrative Agent, upon request of the Required Lenders, shall have the right to the appointment of a receiver for the properties and assets of the Borrower and its Subsidiaries, and the Borrower, for itself and on behalf of its Subsidiaries, hereby consents to such rights and such appointment and hereby waives any objection the Borrower or any of its Subsidiaries may have thereto or the right to have a bond or other security posted by the Administrative Agent on behalf of the Lenders, in connection therewith. The rights of the Administrative Agent under this Section 8.2(d) shall be subject to its prior compliance with the Communications Act and the FCC rules and policies promulgated thereunder to the extent applicable to the exercise of such rights. (e) The rights and remedies of the Administrative Agent and the Lenders hereunder shall be cumulative, and not exclusive. Section 8.3 PAYMENTS SUBSEQUENT TO DECLARATION OF EVENT OF Default. After the occurrence of and during the continuation of any Default or Event of Default, payments and prepayments under this Agreement made to any of the Administrative Agent and the Lenders or otherwise received by any of such Persons (from realization on Collateral for the Obligations or otherwise) shall be paid over to the Administrative Agent (if necessary) and distributed by the Administrative Agent as follows: FIRST, to the reasonable costs and expenses, if any, incurred by the Lenders or the Administrative Agent in connection with the collection of such payment or prepayment, including, without limitation, any reasonable costs incurred by any of them in connection with the sale or disposition of any Collateral for the Obligations and all amounts under Section 11.2(b) and (c) hereof; SECOND, to the Lenders and the Administrative Agent for any fees hereunder or under any of the other Loan Documents then due and payable; THIRD, to the Lenders pro rata on the basis of their respective unpaid principal amounts (except as provided in Section 2.2(e) hereof), to the payment of any unpaid interest which may have accrued on the Obligations; FOURTH, to the Lenders pro rata until all Loans (amounts applied to the Revolving Loans hereunder shall permanently reduce the Revolving Loan Commitments in such amounts) and, if applicable, the Incremental Facility Loans, have been paid in full (and, for purposes of this clause, obligations under Interest Hedge Agreements with the Lenders or any of them shall be paid on a pro rata basis with the Loans to the extent such payments are proceeds of Collateral and, if applicable, the Incremental Facility Loans); FIFTH, to the Lenders pro rata on the basis of their respective unpaid amounts, to the payment of any other unpaid Obligations; and SIXTH, to the Borrower or as otherwise required by law. - 72 - ARTICLE 9 THE AGENTS Section 9.1 APPOINTMENT AND AUTHORIZATION. Each Lender hereby irrevocably appoints and authorizes, and hereby agrees that it will require any transferee of any of its interest in its portion of the Loans and in its Note irrevocably to appoint and authorize the Administrative Agent to take such actions as its agents on its behalf and to exercise such powers hereunder and under the other Loan Documents as are delegated by the terms hereof and thereof, together with such powers as are reasonably incidental thereto. Neither the Administrative Agent nor any of its directors, officers, employees or agents, shall be liable for any action taken or omitted to be taken by it hereunder or in connection herewith, except for its own gross negligence or willful misconduct as determined by a final, non-appealable judicial order of a court of competent jurisdiction. Section 9.2 INTEREST HOLDERS. The Administrative Agent may treat each Lender, or the Person designated in the last notice filed with the Administrative Agent, as the holder of all of the interests of such Lender in its portion of the Loans and in its Note until written notice of transfer, signed by such Lender (or the Person designated in the last notice filed with the Administrative Agent) and by the Person designated in such written notice of transfer, in form and substance satisfactory to the Administrative Agent, shall have been filed with the Administrative Agent. Section 9.3 CONSULTATION WITH COUNSEL. The Administrative Agent may consult with Powell, Goldstein, Frazer & Murphy LLP, Atlanta, Georgia, special counsel to the Administrative Agent, or with other legal counsel selected by them and shall not be liable for any action taken or suffered by them in good faith in consultation with the Required Lenders and in reasonable reliance on such consultations. Section 9.4 DOCUMENTS. The Administrative Agent shall be under no duty to examine, inquire into, or pass upon the validity, effectiveness or genuineness of this Agreement, any Note, any other Loan Document, or any instrument, document or communication furnished pursuant hereto or in connection herewith, and the Administrative Agent shall be entitled to assume that they are valid, effective and genuine, have been signed or sent by the proper parties and are what they purport to be. Section 9.5 ADMINISTRATIVE AGENT AND AFFILIATES. With respect to the Commitments, the Incremental Facility Commitment and the Loans, the Administrative Agent shall have the same rights and powers hereunder as any other Lender, and the Administrative Agent and Affiliates of the Administrative Agent may accept deposits from, lend money to and generally engage in any kind of business with the Borrower, any of its Subsidiaries or any Affiliates of, or Persons doing business with, the Borrower, as if they were not affiliated with the Administrative Agent and without any obligation to account therefor. The foregoing sentence shall apply with equal force to the Administrative Agent. - 73 - Section 9.6 RESPONSIBILITY OF THE ADMINISTRATIVE AGENT. The duties and obligations of the Administrative Agent under this Agreement are only those expressly set forth in this Agreement. The Administrative Agent shall be entitled to assume that no Default or Event of Default has occurred and is continuing unless it has actual knowledge, or has been notified in writing by the Borrower, of such fact, or has been notified by a Lender in writing that such Lender considers that a Default or an Event of Default has occurred and is continuing, and such Lender shall specify in detail the nature thereof in writing. The Administrative Agent shall not be liable hereunder for any action taken or omitted to be taken except for its own gross negligence or willful misconduct as determined by a final, non-appealable judicial order of a court of competent jurisdiction. The Administrative Agent shall provide each Lender with copies of such documents received from the Borrower as such Lender may reasonably request. Section 9.7 COLLATERAL. The Administrative Agent is hereby authorized to act on behalf of the Lenders, in its own capacity and through other agents and sub-agents appointed by it, under the Security Documents; PROVIDED, HOWEVER, that the Administrative Agent shall not agree to the release of any Collateral, or any property encumbered by any mortgage, pledge or security interest, except in compliance with Section 11.12 hereof. Section 9.8 ACTION BY ADMINISTRATIVE AGENT. (a) The Administrative Agent shall be entitled to use its discretion with respect to exercising or refraining from exercising any rights which may be vested in it by, and with respect to taking or refraining from taking any action or actions which it may be able to take under or in respect of, this Agreement, unless the Administrative Agent shall have been instructed by the Required Lenders to exercise or refrain from exercising such rights or to take or refrain from taking such action; PROVIDED, HOWEVER, that the Administrative Agent shall not exercise any rights under Section 8.2(a) hereof without the request of the Required Lenders (or, where expressly required, all the Lenders) unless time is of the essence, in which case, such action can be taken at the request of the Administrative Agent. The Administrative Agent shall incur no liability under or in respect of this Agreement with respect to anything which it may do or refrain from doing in the reasonable exercise of its judgment or which may seem to it to be necessary or desirable in the circumstances, except for its gross negligence or willful misconduct as determined by a final, nonappealable judicial order of a court having jurisdiction over the subject matter. (b) The Administrative Agent shall not be liable to the Lenders or to any Lender or the Borrower or any of the Borrower's Subsidiaries in acting or refraining from acting under this Agreement or any other Loan Document in accordance with the instructions of the Required Lenders (or, where expressly required, all the Lenders), and any action taken or failure to act pursuant to such instructions shall be binding on all Lenders. The Administrative Agent shall not be obligated to take any action which is contrary to law or which would in such Person's reasonable opinion subject such Person to liability. Section 9.9 NOTICE OF DEFAULT OR EVENT OF DEFAULT. In the event that the Administrative Agent or any Lender shall acquire actual knowledge, or shall have been notified, of any Default or Event of Default, the Administrative Agent or such Lender shall promptly notify the Lenders - 74 - and the Administrative Agent, as applicable (PROVIDED, HOWEVER, that failure to give such notice shall not result in any liability on the part of such Lender or Administrative Agent), and the Administrative Agent shall take such action and assert such rights under this Agreement and the other Loan Documents as the Required Lenders shall request in writing, and the Administrative Agent shall not be subject to any liability by reason of its acting pursuant to any such request. If the Required Lenders shall fail to request the Administrative Agent to take action or to assert rights under this Agreement or any other Loan Documents in respect of any Default or Event of Default within ten (10) days after their receipt of the notice of any Default or Event of Default from the Administrative Agent or any Lender, or shall request inconsistent action with respect to such Default or Event of Default, the Administrative Agent may, but shall not be required to, take such action and assert such rights (other than rights under Article 8 hereof) as it deems in its discretion to be advisable for the protection of the Lenders, except that, if the Required Lenders have instructed the Administrative Agent not to take such action or assert such right, in no event shall the Administrative Agent act contrary to such instructions unless time is of the essence. Section 9.10 RESPONSIBILITY DISCLAIMED. The Administrative Agent shall not be under any liability or responsibility whatsoever as Administrative Agent: (a) To the Borrower or any other Person as a consequence of any failure or delay in performance by or any breach by, any Lender or Lenders of any of its or their obligations under this Agreement; (b) To any Lender or Lenders, as a consequence of any failure or delay in performance by, or any breach by, (i) the Borrower of any of its obligations under this Agreement or the Notes or any other Loan Document, or (ii) any Subsidiary of the Borrower or any other obligor under any other Loan Document; (c) To any Lender or Lenders, for any statements, representations or warranties in this Agreement, or any other document contemplated by this Agreement or any information provided pursuant to this Agreement, any other Loan Document, or any other document contemplated by this Agreement, or for the validity, effectiveness, enforceability or sufficiency of this Agreement, the Notes, any other Loan Document, or any other document contemplated by this Agreement; or (d) To any Person for any act or omission other than that arising from gross negligence or willful misconduct of the Administrative Agent as determined by a final, non-appealable judicial order of a court of competent jurisdiction. Section 9.11 INDEMNIFICATION. The Lenders agree to indemnify the Administrative Agent (to the extent not reimbursed by the Borrower) pro rata according to their respective Commitment Ratios and Incremental Facility Commitment Ratios, from and against any and all liabilities, obligations, losses (other than the loss of principal and interest hereunder in the event of a bankruptcy or out-of-court "work-out" of the Loans), damages, penalties, actions, judgments, suits, costs, expenses (including, without limitation, reasonable fees and expenses of experts, agents, consultants and counsel), or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the Administrative Agent in any way - 75 - relating to or arising out of this Agreement, any other Loan Document, or any other document contemplated by this Agreement or any other Loan Document or any action taken or omitted by the Administrative Agent under this Agreement, any other Loan Document, or any other document contemplated by this Agreement, except that no Lender shall be liable to the Administrative Agent for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, or disbursements resulting from the gross negligence or willful misconduct of the Administrative Agent as determined by a final, non-appealable judicial order of a court having jurisdiction over the subject matter. Section 9.12 CREDIT DECISION. Each Lender represents and warrants to each other and to the Administrative Agent that: (a) In making its decision to enter into this Agreement and to make its portion of the Loans it has independently taken whatever steps it considers necessary to evaluate the financial condition and affairs of the Borrower and that it has made an independent credit judgment, and that it has not relied upon the Administrative Agent or information provided by the Administrative Agent (other than information provided to the Administrative Agent by the Borrower and forwarded by the Administrative Agent to the Lenders); and (b) So long as any portion of the Loans remains outstanding or such Lender has an obligation to make its portion of Advances hereunder, it will continue to make its own independent evaluation of the financial condition and affairs of the Borrower. Section 9.13 SUCCESSOR ADMINISTRATIVE AGENT. Subject to the appointment and acceptance of a successor Administrative Agent as provided below, the Administrative Agent may resign at any time by giving written notice thereof to the Lenders and the Borrower and may be removed at any time for cause by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the right to appoint a successor Administrative Agent which appointment shall, prior to an Event of Default, be subject to the consent of the Borrower, acting reasonably. If (a) no successor Administrative Agent shall have been so appointed by the Required Lenders or (b) if appointed, no successor Administrative Agent shall have accepted such appointment within thirty (30) days after the retiring Administrative Agent gave notice of resignation or the Required Lenders removed the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent which shall be any Lender or a commercial bank organized under the laws of the United States of America or any political subdivision thereof which has combined capital and reserves in excess of $250,000,000, which appointment shall, prior to an Event of Default, be subject to the consent of the Borrower, acting reasonably. Upon the acceptance of any appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges, duties and obligations of the retiring Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents. After any retiring Administrative Agent's resignation or removal hereunder as Administrative Agent the provisions of this Article shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Administrative Agent. - 76 - Section 9.14 DELEGATION OF DUTIES. The Administrative Agent may execute any of its duties under the Loan Documents by or through agents or attorneys selected by it using reasonable care, and shall be entitled to advice of counsel concerning all matters pertaining to such duties. Section 9.15 NO RESPONSIBILITIES OF THE AGENTS. The Agents (except for the Administrative Agent) shall have no responsibilities hereunder or under any of the other Loan Documents in their respective capacities. ARTICLE 10 CHANGE IN CIRCUMSTANCES AFFECTING LIBOR ADVANCES Section 10.1 LIBOR BASIS DETERMINATION INADEQUATE OR UNFAIR. If with respect to any proposed LIBOR Advance for any Interest Period, the Administrative Agent determines after consultation with the Lenders that deposits in dollars (in the applicable amount) are not being offered to each of the Lenders in the relevant market for such Interest Period, the Administrative Agent shall forthwith give notice thereof to the Borrower and the Lenders, whereupon until the Administrative Agent notifies the Borrower that the circumstances giving rise to such situation no longer exist, the obligations of any affected Lender to make its portion of such type of LIBOR Advances shall be suspended. Section 10.2 ILLEGALITY. If after the date hereof, the adoption of any Applicable Law, or any change in any Applicable Law (whether adopted before or after the Agreement Date), or any change in interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender with any directive (whether or not having the force of law) of any such authority, central bank or comparable agency, shall make it unlawful or impossible for any Lender to make, maintain or fund its portion of LIBOR Advances, such Lender shall so notify the Administrative Agent, and the Administrative Agent shall forthwith give notice thereof to the other Lenders and the Borrower. Before giving any notice to the Administrative Agent pursuant to this Section 10.2, such Lender shall designate a different lending office if such designation will avoid the need for giving such notice and will not, in the sole judgment of such Lender, be otherwise materially disadvantageous to such Lender. Upon receipt of such notice, notwithstanding anything contained in Article 2 hereof, the Borrower shall repay in full the then outstanding principal amount of such Lender's portion of each affected LIBOR Advance, together with accrued interest thereon, on either (a) the last day of the then current Interest Period applicable to such affected LIBOR Advances if such Lender may lawfully continue to maintain and fund its portion of such LIBOR Advance to such day or (b) immediately if such Lender may not lawfully continue to fund and maintain its portion of such affected LIBOR Advances to such day. Concurrently with repaying such portion of each affected LIBOR Advance, the Borrower may borrow a Base Rate Advance from such Lender, and such Lender shall make such Advance, if so requested, in an amount such that the outstanding principal amount of the affected Note held by - 77 - such Lender shall equal the outstanding principal amount of such Note or Notes immediately prior to such repayment. Section 10.3 INCREASED COSTS. (a) If after the date hereof, the adoption of any Applicable Law, or any change in any Applicable Law (whether adopted before or after the Agreement Date), or any interpretation or change in interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof or compliance by any Lender with any directive (whether or not having the force of law) of any such authority, central bank or comparable agency: (1) shall subject any Lender to any tax, duty or other charge with respect to its obligation to make its portion of LIBOR Advances, or its portion of existing Advances, or shall change the basis of taxation of payments to any Lender of the principal of or interest on its portion of LIBOR Advances or in respect of any other amounts due under this Agreement, in respect of its portion of LIBOR Advances or its obligation to make its portion of LIBOR Advances (except for changes in the rate or method of calculation of tax on the overall net income of such Lender); or (2) shall impose, modify or deem applicable any reserve (including, without limitation, any imposed by the Board of Governors of the Federal Reserve System, but excluding any included in an applicable Eurodollar Reserve Percentage), special deposit, capital adequacy, assessment or other requirement or condition against assets of, deposits with or for the account of, or commitments or credit extended by, any Lender or shall impose on any Lender or the London interbank borrowing market any other condition affecting its obligation to make its portion of such LIBOR Advances or its portion of existing Advances; and the result of any of the foregoing is to increase the cost to such Lender of making or maintaining any of its portion of LIBOR Advances, or to reduce the amount of any sum received or receivable by such Lender under this Agreement or under its Note with respect thereto, then, if such Lender exercises comparable rights (if any) for borrowers situated similarly to the Borrower, within ten (10) days after demand by such Lender, the Borrower agrees to pay to such Lender such additional amount or amounts as will compensate such Lender for such increased costs. Each Lender will promptly notify the Borrower and the Administrative Agent of any event of which it has knowledge, occurring after the date hereof, which will entitle such Lender to compensation pursuant to this Section 10.3 and will designate a different lending office if such designation will avoid the need for, or reduce the amount of, such compensation and will not, in the sole judgment of such Lender made in good faith, be otherwise disadvantageous to such Lender. (b) Any Lender claiming compensation under this Section 10.3 shall provide the Borrower with a written certificate setting forth the additional amount or amounts to be paid to it hereunder and calculations therefor in reasonable detail. Such certificate shall be presumptively correct absent manifest error. In determining such amount, such Lender may use - 78 - any reasonable averaging and attribution methods. If any Lender demands compensation under this Section 10.3, the Borrower may at any time, upon at least five (5) Business Days' prior notice to such Lender, prepay in full such Lender's portion of the then outstanding LIBOR Advances, together with accrued interest thereon to the date of prepayment, along with any reimbursement required under Section 2.10 hereof. Concurrently with prepaying such portion of LIBOR Advances the Borrower may borrow a Base Rate Advance, or a LIBOR Advance not so affected, from such Lender, and such Lender shall, if so requested, make such Advance in an amount such that the outstanding principal amount of the affected Note or Notes held by such Lender shall equal the outstanding principal amount of such Note or Notes immediately prior to such prepayment. Section 10.4 EFFECT ON OTHER ADVANCES. If notice has been given pursuant to Section 10.1, 10.2 or 10.3 hereof suspending the obligation of any Lender to make its portion of any type of LIBOR Advance, or requiring such Lender's portion of LIBOR Advances to be repaid or prepaid, then, unless and until such Lender notifies the Borrower that the circumstances giving rise to such repayment no longer apply, all amounts which would otherwise be made by such Lender as its portion of LIBOR Advances shall, unless otherwise notified by the Borrower, be made instead as Base Rate Advances. Any Base Rate Advance for this purpose shall not be counted in the number of Advances permitted under Section 2.3(e) hereof. ARTICLE 11 MISCELLANEOUS Section 11.1 NOTICES. (a) Except as otherwise expressly provided herein, all notices and other communications under this Agreement and the other Loan Documents (unless otherwise specifically stated therein) shall be in writing and shall be deemed to have been given three (3) Business Days after deposit in the mail, designated as certified mail, return receipt requested, postage-prepaid, or one (1) Business Day after being entrusted to a reputable commercial overnight delivery service for next day delivery, or when sent on a Business Day prior to 5:00 p.m. (New York, New York time) by telecopy addressed to the party to which such notice is directed at its address determined as provided in this Section 11.1. All notices and other communications under this Agreement shall be given to the parties hereto at the following addresses: - 79 - (1) If to the Borrower, to it at: Rural Cellular Corporation 3905 Dakota Street, S.W. Alexandria, Minnesota 56308 Attn: Wesley Schultz, Vice President Finance and CFO Telecopy No.: (320) 808-2102 with a copy to: Moss & Barnett 4800 Norwest Center 90 South Seventh Street Minneapolis, Minnesota 55402-4129 Attn: James A. Rubenstein, Esq. Telecopy No.: (612) 339-6686 (2) If to the Administrative Agent, to it at: Toronto Dominion (Texas), Inc. c/o The Toronto-Dominion Bank 909 Fannin Street, Suite 900 Houston, Texas 77010 Attn: Manager, Agency Telecopy No.: (713) 951-9921 with a copy to: Powell, Goldstein, Frazer & Murphy LLP Sixteenth Floor 191 Peachtree Street, N.E. Atlanta, Georgia 30303 Attn: Douglas S. Gosden, Esq. Telecopy No.: (404) 572-6999 (3) If to the Lenders, to them at the addresses set forth on SCHEDULE 7 attached hereto. Copies shall be provided to Persons other than parties hereto only in the case of notices under Article 8 hereof and the failure to provide such copies shall not affect the validity of the notice given to the primary recipient. - 80 - (b) Any party hereto may change the address to which notices shall be directed under this Section 11.1 by giving ten (10) days' written notice of such change to the other parties. Section 11.2 EXPENSES. The Borrower will promptly pay, or reimburse: (a) all reasonable out-of-pocket expenses of the Administrative Agent in connection with the preparation, negotiation, execution and delivery of this Agreement and the other Loan Documents, and the transactions contemplated hereunder and thereunder and the making of the initial Advance hereunder (whether or not such Advance is made), including, without limitation, the reasonable fees and disbursements of Powell, Goldstein, Frazer & Murphy LLP, special counsel for the Administrative Agent; (b) all reasonable out-of-pocket expenses of the Administrative Agent in connection with the restructuring and "work out" of the transactions contemplated in this Agreement or the other Loan Documents, and the preparation, negotiation, execution and delivery of any waiver, amendment or consent by the Administrative Agent and the Lenders, or any of them, relating to this Agreement or the other Loan Documents, including, but not limited to, the reasonable fees and disbursements of any experts, agents or consultants and, prior to the occurrence and continuance of an Event of Default, of a single law firm acting as special counsel for the Administrative Agent and the Lenders, and during the occurrence and continuance of an Event of Default a law firm for Administrative Agent and a single law firm for the Lenders; and (c) all out-of-pocket costs and expenses of the Administrative Agent and the Lenders in connection with the restructuring and "workout" of the transactions contemplated in this Agreement or other Loan Documents or of enforcement under this Agreement or the other Loan Documents and all out-of-pocket costs and expenses of collection if an Event of Default occurs in the payment of the Notes, which in each case shall include reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent and the Lenders. Section 11.3 WAIVERS. The rights and remedies of the Administrative Agent and the Lenders under this Agreement and the other Loan Documents shall be cumulative and not exclusive of any rights or remedies which they would otherwise have. No failure or delay by the Administrative Agent, the Required Lenders, or the Lenders, or any of them, in exercising any right, shall operate as a waiver of such right. The Administrative Agent and the Lenders expressly reserve the right to require strict compliance with the terms of this Agreement in connection with any future funding of a Request for Advance. In the event the Lenders decide to fund a Request for Advance at a time when the Borrower is not in strict compliance with the terms of this Agreement, such decision by the Lenders shall not be deemed to constitute an undertaking by the Lenders to fund any further Request for Advance or preclude the Lenders or the Administrative Agent from exercising any rights available under the Loan Documents or at law or equity. Any waiver or indulgence granted by the Administrative Agent, the Lenders, or the Required Lenders, shall not constitute a modification of this Agreement or any other Loan Document, except to the extent expressly provided in such waiver or indulgence, or constitute a course of dealing at variance with the terms of this Agreement or any other Loan Document such - 81 - as to require further notice of their intent to require strict adherence to the terms of this Agreement or any other Loan Document in the future. Section 11.4 SET-OFF. In addition to any rights now or hereafter granted under Applicable Law and not by way of limitation of any such rights, upon the occurrence of an Event of Default and during the continuation thereof, the Administrative Agent and each of the Lenders are hereby authorized by the Borrower at any time or from time to time, without notice to the Borrower or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, time or demand, including, without limitation, Indebtedness evidenced by certificates of deposit, in each case whether matured or unmatured) and any other Indebtedness at any time held or owing by any Lender or the Administrative Agent to or for the credit or the account of the Borrower or any of its Subsidiaries, against and on account of the obligations and liabilities of the Borrower to the Lenders and the Administrative Agent, including, but not limited to, all Obligations and any other claims of any nature or description arising out of or connected with this Agreement, the Notes or any other Loan Document, irrespective of whether (a) any Lender or the Administrative Agent shall have made any demand hereunder or (b) any Lender or the Administrative Agent shall have declared the principal of and interest on the Loans and other amounts due hereunder to be due and payable as permitted by Section 8.2 hereof and although such obligations and liabilities or any of them shall be contingent or unmatured. Upon direction by the Administrative Agent with the consent of the Lenders, each Lender holding deposits of the Borrower or any of its Subsidiaries shall exercise its set-off rights as so directed; and, within one (1) Business Day following any such setoff, the Administrative Agent shall give notice thereof to the Borrower. Section 11.5 ASSIGNMENT. (a) The Borrower may not assign or transfer any of its rights or obligations hereunder, under the Notes, the Incremental Facility Notes or under any other Loan Document without the prior written consent of each Lender. (b) Each Lender may at any time sell assignments or participations of up to one hundred percent (100%) of its interest hereunder to (A) one (1) or more wholly-owned Affiliates of such Lender or Approved Funds (PROVIDED, HOWEVER, that if such Affiliate is not a financial institution, such Lender shall be obligated to repurchase such assignment if such Affiliate is unable to honor its obligations hereunder), (B) any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any Operating Circular issued by such Federal Reserve Bank (PROVIDED, HOWEVER, that no such assignment shall relieve such Lender from its obligations hereunder) or (C) any Lender. (c) Each Lender may at any time enter into assignment agreements or participations with one or more other banks or other Persons pursuant to which each Lender may assign or participate its interest under this Agreement and the other Loan Documents, including, its interest in any particular Advance or portion thereof; PROVIDED, HOWEVER, that (i) all assignments (other than assignments described in clause (b) hereof) shall be in minimum principal amounts of the lesser of (X) (1) $5,000,000 for the Revolving Commitments and Term Loan A Loans, and if applicable, the Incremental Facility Commitments (in a single assignment - 82 - only) and (2) $1,000,000 for the Term Loan B Loans and Term Loan C Loans, and (Y) the amount of such Lender's Commitment or Incremental Facility Commitment (in a single assignment only), and (ii) all assignments (other than assignments described in clause (b) hereof) and participations hereunder shall be subject to the following additional terms and conditions: (1) No assignment (except assignments permitted in Section 11.5(b) hereof) shall be sold without the prior consent of the Administrative Agent and prior to the occurrence and continuation of an Event of Default, the consent of the Borrower, which consents shall not be unreasonably withheld or delayed; (2) Any Person purchasing a participation or an assignment of any portion of the Loans from any Lender shall be required to represent and warrant that its purchase shall not constitute a "prohibited transaction" (as defined in Section 4.1(m) hereof); (3) The Borrower, the Lenders, and the Administrative Agent agree that assignments permitted hereunder (including the assignment of any Advance or portion thereof) shall be made with all voting rights, and shall be made pursuant to an Assignment and Assumption Agreement substantially in the form of EXHIBIT S attached hereto. An administrative fee of $3,500 shall be payable to the Administrative Agent by the assigning Lender at the time of any assignment under Section 11.5(c) hereof; (4) No participation agreement shall confer any rights under this Agreement or any other Loan Document to any purchaser thereof, or relieve any issuing Lender from any of its obligations under this Agreement, and all actions hereunder shall be conducted as if no such participation had been granted; PROVIDED, HOWEVER, that any participation agreement may confer on the participant the right to approve or disapprove decreases in the interest rate, increases in the principal amount of the Loans participated in by such participant, decreases in fees, extensions of the Revolving Loan Maturity Date, Term Loan A Maturity Date, Term Loan B Maturity Date, Term Loan C Maturity Date and Incremental Facility Maturity Date, as applicable or other principal payment date for the Loans or of the scheduled reduction of the Commitment and releases of Collateral; (5) Each Lender agrees to provide the Administrative Agent and the Borrower with prompt written notice of any issuance of participations in or assignments of its interests hereunder; (6) No assignment, participation or other transfer of any rights hereunder or under the Notes shall be effected that would result in any interest requiring registration under the Securities Act of 1933, as amended, or qualification under any state securities law; (7) No such assignment may be made to (A) any bank or other financial institution (x) with respect to which a receiver or conservator (including, without limitation, the Federal Deposit Insurance Corporation, the Resolution Trust Company or the Office of Thrift Supervision) has been appointed or (y) that is not - 83 - "adequately capitalized" (as such term is defined in Section 131(b)(1)(B) of the Federal Deposit Insurance Corporation Improvement Act as in effect on the Agreement Date) or (B) any fund unless such fund invests in commercial loans; and (8) If applicable, each Lender shall, and shall cause each of its assignees to, provide to the Administrative Agent on or prior to the effective date of any assignment an appropriate Internal Revenue Service form as required by Applicable Law supporting such Lender's or assignee's position that no withholding by the Borrower or the Administrative Agent for U.S. income tax payable by such Lender or assignee in respect of amounts received by it hereunder is required. For purposes of this Agreement, an appropriate Internal Revenue Service form shall mean Form 1001 (Ownership Exemption or Reduced Rate Certificate of the U.S. Department of Treasury), or Form 4224 (Exemption from Withholding of Tax on Income Effectively Connected with the Conduct of a Trade or Business in the United States), and/or properly executed Internal Revenue Service Form W-8 or W-9, as applicable, or any successor or related forms adopted by the relevant U.S. taxing authorities. (d) Except as specifically set forth in Section 11.5(b) and (c) hereof, nothing in this Agreement or the Notes, expressed or implied, is intended to or shall confer on any Person other than the respective parties hereto and thereto and their successors and assignees permitted hereunder and thereunder any benefit or any legal or equitable right, remedy or other claim under this Agreement or the Notes. (e) In the case of any participation, all amounts payable by the Borrower under the Loan Documents shall be calculated and made in the manner and to the parties hereto as if no such participation had been sold. (f) The provisions of this Section 11.5 shall not apply to any purchase of participations among the Lenders pursuant to Section 2.11 hereof. (g) The Administrative Agent, acting, for this purpose only, as agent of the Borrower shall maintain, at no extra charge to the Borrower, a register (the "REGISTER") at the address to which notices to the Administrative Agent are to be sent under Section 11.1 hereof on which Register the Administrative Agent shall enter the name, address and taxpayer identification number (if provided) of the registered owner of the Loans evidenced by a Registered Note or, upon the request of the registered owner, for which a Registered Note has been requested. A Registered Note and the Loans evidenced thereby may be assigned or otherwise transferred in whole or in part only by registration of such assignment or transfer of such Registered Note and the Loans evidenced thereby on the Register. Any assignment or transfer of all or part of such Loans and the Registered Note evidencing the same shall be registered on the Register only upon compliance with the other provisions of this Section 11.5 and surrender for registration of assignment or transfer of the Registered Note evidencing such Loans, duly endorsed by (or accompanied by a written instrument of assignment or transfer duly executed by) the Registered Noteholder thereof, and thereupon one or more new Registered Notes in the same aggregate principal amount shall be issued to the designated assignee(s) or transferee(s) and, if less than the aggregate principal amount of such Registered Notes is thereby - 84 - transferred, the assignor or transferor. Prior to the due presentment for registration of transfer of any Registered Note, the Borrower and the Administrative Agent shall treat the Person in whose name such Loans and the Registered Note evidencing the same is registered as the owner thereof for the purpose of receiving all payments thereon and for all other purposes, notwithstanding any notice to the contrary. (h) The Register shall be available for inspection by the Borrower and any Lender at any reasonable time during the Administrative Agent's regular business hours upon reasonable prior notice. (i) Notwithstanding any other provision in this Agreement, any Lender that is a fund that invests in bank loans may, without the consent of the Administrative Agent or the Borrower, pledge all or any portion of its rights under, and interest in, this Agreement and the Notes to any trustee or to any other representative of holders of obligations owed or securities issued, by such fund as security for such obligations or securities; provided, HOWEVER, that any transfer to any Person upon the enforcement of such pledge or security interest may only be made subject to the assignment provisions of this Section 11.5. Section 11.6 ACCOUNTING PRINCIPLES. All references in this Agreement to GAAP shall be to such principles as in effect from time to time. All accounting terms used herein without definition shall be used as defined under GAAP. The Borrower shall deliver to the Lenders at the same time as the delivery of any quarterly or annual financial statements required pursuant to Section 6.1 or 6.2 hereof, as applicable, (a) a description in reasonable detail of any material variation between the application of GAAP employed in the preparation of such statements and the application of GAAP employed in the preparation of the next preceding quarterly or annual financial statements, as applicable, and (b) reasonable estimates of the differences between such statements arising as a consequence thereof. If, within thirty (30) days after the delivery of the quarterly or annual financial statements referred to in the immediately preceding sentence, the Required Lenders shall object in writing to the Borrower's determining compliance hereunder on such basis, (1) calculations for the purposes of determining compliance hereunder shall be made on a basis consistent with those used in the preparation of the latest financial statements as to which such objection shall not have been made, or (2) if requested by the Borrower, the Required Lenders will negotiate in good faith to amend the covenants herein to give effect to the changes in GAAP in a manner consistent with this Agreement. Section 11.7 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such separate counterparts shall together constitute but one and the same instrument. Section 11.8 GOVERNING LAW. This Agreement and the Notes shall be construed in accordance with and governed by the internal laws of the State of New York applicable to agreements made and to be performed in the State of New York. If any action or proceeding shall be brought by the Administrative Agent or any Lender hereunder or under any other Loan Document in order to enforce any right or remedy under this Agreement or under any Note or any other Loan Document, the Borrower hereby consents and will, and the Borrower will cause each Subsidiary to, submit to the jurisdiction of any state or federal court of competent - 85 - jurisdiction sitting within the area comprising the Southern District of New York on the date of this Agreement. The Borrower, for itself and on behalf of its Subsidiaries, hereby agrees that service of the summons and complaint and all other process which may be served in any such suit, action or proceeding may be effected by mailing by registered mail a copy of such process to the offices of the Borrower at the address given in Section 11.1 hereof and that personal service of process shall not be required. Nothing herein shall be construed to prohibit service of process by any other method permitted by law, or the bringing of any suit, action or proceeding in any other jurisdiction. The Borrower agrees that final judgment in such suit, action or proceeding shall be conclusive and may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by Applicable Law. Section 11.9 SEVERABILITY. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction. Section 11.10 INTEREST. (a) In no event shall the amount of interest due or payable hereunder or under the Notes exceed the maximum rate of interest allowed by Applicable Law, and in the event any such payment is inadvertently made by the Borrower or inadvertently received by the Administrative Agent or any Lender, then such excess sum shall be credited as a payment of principal, unless the Borrower shall notify the Administrative Agent or such Lender, in writing, that it elects to have such excess sum returned forthwith. It is the express intent hereof that the Borrower not pay and the Administrative Agent and the Lenders not receive, directly or indirectly in any manner whatsoever, interest in excess of that which may legally be paid by the Borrower under Applicable Law. (b) Notwithstanding the use by the Lenders of the Base Rate and LIBOR as reference rates for the determination of interest on the Loans, the Lenders shall be under no obligation to obtain funds from any particular source in order to charge interest to the Borrower at interest rates related to such reference rates. Section 11.11 TABLE OF CONTENTS AND HEADINGS. The Table of Contents and the headings of the various subdivisions used in this Agreement are for convenience only and shall not in any way modify or amend any of the terms or provisions hereof, nor be used in connection with the interpretation of any provision hereof. Section 11.12 AMENDMENT AND WAIVER. Neither this Agreement nor any Loan Document nor any term hereof or thereof may be amended orally, nor may any provision hereof or thereof be waived orally but only by an instrument in writing signed by or at the written direction of the Required Lenders and, in the case of an amendment, by the Borrower, except that in the event of (a) any increase in the amount of any Lender's portion of the Commitments or Commitment Ratios or any reduction or postponement of the reductions to the Revolving Loan Commitments set forth in Section 2.5(a) hereof, (b) any reduction (without a corresponding payment) or postponement of the repayments of the principal amount of the Loans provided in Section 2.5 or - 86 - 2.7 (b)(i), (ii) or (iii) hereof, and, during the continuance of an Event of Default, Section 2.7(b)(v) or (vi) hereof, (c) any reduction or postponement in interest or fees due hereunder without a corresponding payment of such interest or fee amount by the Borrower, (d) any release of any material portion of the Collateral for the Loans except as otherwise provided in Section 7.4 hereof, (e) any waiver of any Default due to the failure by the Borrower to pay any sum due to any of the Lenders hereunder, (f) any release of any material Guarantor to a Guaranty from its or any portion of the Obligations, except in connection with a merger, sale or other disposition otherwise permitted hereunder (in which case, such release shall require no further approval by the Lenders), (g) any amendment to the pro rata treatment of the Lenders set forth in Section 2.11 hereof, or (h) any amendment of this Section 11.12, of the definition of Required Lenders, or of any Section herein to the extent that such Section requires action by all Lenders or (i) subordinate the Loans in full or in part to any Indebtedness, any amendment or waiver or consent may be made only by an instrument in writing signed by each of the Lenders and, in the case of an amendment, by the Borrower. Any amendment to any provision hereunder governing the rights, obligations, or liabilities of the Administrative Agent, in its capacity as such, may be made only by an instrument in writing signed by such affected Person and by each of the Lenders. For purposes hereof, "material Guarantor" shall mean any Guarantor having assets in excess of $500,000.00 Section 11.13 ENTIRE AGREEMENT. Except as otherwise expressly provided herein, this Agreement and the other documents described or contemplated herein will embody the entire agreement and understanding among the parties hereto and thereto and supersede all prior agreements and understandings relating to the subject matter hereof and thereof. Section 11.14 OTHER RELATIONSHIPS. No relationship created hereunder or under any other Loan Document shall in any way affect the ability of the Administrative Agent and each Lender to enter into or maintain business relationships with the Borrower or any of its Affiliates beyond the relationships specifically contemplated by this Agreement and the other Loan Documents. Section 11.15 DIRECTLY OR INDIRECTLY. If any provision in this Agreement refers to any action taken or to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person, whether or not expressly specified in such provision. Section 11.16 RELIANCE ON AND SURVIVAL OF VARIOUS PROVISIONS. All covenants, agreements, statements, representations and warranties made herein or in any certificate delivered pursuant hereto (i) shall be deemed to have been relied upon by the Administrative Agent and each of the Lenders notwithstanding any investigation heretofore or hereafter made by them, and (ii) shall survive the execution and delivery of the Notes and shall continue in full force and effect so long as any Note is outstanding and unpaid. Any right to indemnification hereunder, including, without limitation, rights pursuant to Sections 2.10, 2.12, 5.12, 10.3 and 11.2 hereof, shall survive the termination of this Agreement and the payment and performance of all Obligations. - 87 - Section 11.17 SENIOR DEBT. The Obligations are secured by the Security Documents and is intended by the parties hereto to be in parity with the Interest Hedge Agreements and senior in right of payment to all other Indebtedness of the Borrower. Section 11.18 OBLIGATIONS SEVERAL. The obligations of the Administrative Agent and each of the Lenders hereunder are several, not joint. Section 11.19 CONFIDENTIALITY. All information furnished to the Administrative Agent or the Lenders concerning the Borrower and its Subsidiaries is presumed to be non-public proprietary or confidential unless otherwise identified by the Person furnishing the information. The Lenders and the Administrative Agent shall hold all non-public, proprietary or confidential information obtained pursuant to the requirements of this Agreement in accordance with their customary procedures for handling confidential information of this nature and in accordance with safe and sound lending practices; however, the Lenders may make disclosure of any such information to their examiners, Affiliates, outside auditors, counsel, consultants, appraisers, other professional advisors and any direct or indirect contractual counterparty in swap agreements or such counterparty's professional advisor in connection with this Agreement or as reasonably required by any proposed syndicate member or any proposed transferee or participant in connection with the contemplated transfer of any Note or participation therein or as required or requested by any governmental authority (including, without limitation, the National Association of Insurance Commissioners or any similar organization or requlators or quasi-regulatory authority having jurisdiction over any Lender or representative thereof or in connection with the enforcement hereof or of any Loan Document or related document or pursuant to legal process or with respect to any litigation between or among the Borrower and any of the Lenders so long as any such recipient is advised of the non-public, proprietary or confidential nature of the information and of the Lender's obligations under this Section. Unless specifically requested by the Borrower, no Lender shall be obligated or required to return any materials furnished to it by the Borrower and no Lender may be obligated to return such materials (a) unless (i) such Lender ceases to be a Lender hereunder or (ii) such material was inadvertently provided to such Lender by the Borrower or (b) at any time when there exists a Default or Event of Default. The foregoing provisions shall not apply to a Lender with respect to information that (i) is or becomes generally available to the public (other than through such Lender), or (ii) is already in the possession of such Lender on a nonconfidential basis. ARTICLE 12 WAIVER OF JURY TRIAL Section 12.1 WAIVER OF JURY TRIAL. THE BORROWER, FOR ITSELF AND ON BEHALF OF EACH OF ITS SUBSIDIARIES, AND THE ADMINISTRATIVE AGENT AND EACH OF THE LENDERS, HEREBY AGREE TO WAIVE AND HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY TYPE IN WHICH THE BORROWER, ANY OF THE BORROWER'S SUBSIDIARIES, ANY OF THE LENDERS, THE ADMINISTRATIVE AGENT, OR ANY OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS - 88 - AND THINGS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT, ANY OF THE NOTES OR THE OTHER LOAN DOCUMENTS AND THE RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION 12.1. EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES ANY RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS SECTION, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS AGREEMENT (i) CERTIFIES THAT NEITHER ANY REPRESENTATIVE, AGENT NOR ATTORNEY OF THE ADMINISTRATIVE AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCLOSED BY AND TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES. [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] - 89 - IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused it to be executed by their duly authorized officers, all as of the day and year first above written. BORROWER: RURAL CELLULAR CORPORATION By: /s/ Wesley E. Schultz ------------------------------------- Its: Sr. Vice President and CFO ------------------------------------- ADMINISTRATIVE AGENT AND LENDERS: TORONTO DOMINION (TEXAS), INC., as Administrative Agent and a Lender By: /s/ Jano Mott ------------------------------------- Its: Vice President ------------------------------------- EX-99.1 11 EXHIBIT 99.1 Exhibit 99.1 RURAL CELLULAR CORPORATION COMPLETES FINANCING AND ACQUISITION OF TRITON CELLULAR PARTNERS, L.P. =============================================================================== FOR IMMEDIATE RELEASE APRIL 3, 2000 - Alexandria, MN - Rural Cellular Corporation ("RCC") (Nasdaq/NMS: RCCC) today announced that its subsidiary, RCC Holdings, Inc., has completed its $1.256 billion acquisition of the licenses, operations, and related assets of Triton Cellular Partners, L.P. ("Triton Cellular"). All of the properties are 100% owned and the 20 rural service areas ("RSAs") are contiguous within their respective geographic regions. In addition, the acquisition includes unbuilt PCS licenses in four basic trading areas in Oregon. The cellular regions acquired by RCC Holdings include the following RSAs: SOUTH REGION Alabama (AL-3, AL-4, AL-5, AL-7) Northern Mississippi (MS-1, MS-3, MS-4) Western Kansas (KS-1, KS-2, KS-6, KS-7, KS-11, KS-12, KS-13) NORTHWEST REGION Oregon (OR-3, OR-4, OR-6) Washington (WA-2, WA-3, WA-8) The new regions will be managed through their operational headquarters located in Enterprise, Alabama and Bend, Oregon, respectively. In conjunction with the acquisition, RCC has entered into a new $1.2 billion credit facility arranged by TD Securities (USA) Inc., which replaces the previously existing $300 million credit facility. In addition, RCC has issued 110,000 shares of redeemable voting convertible preferred stock for consideration of $110 million. The purchasers included Madison Dearborn Capital Partners III, L.P., Madison Dearborn Special Equity III, L.P., Special Advisors Fund I, LLC ("Madison Dearborn") and including Boston Ventures Limited Partnership V ("Boston Ventures") and Toronto Dominion Investments, Inc. ("TD Investments"). Madison Dearborn, Boston Ventures and TD Investments have significant collective experience investing in wireless communication companies. In order to comply with the FCC's rules regarding cross-ownership of cellular licensees within a given market, the Company also issued shares of Class T convertible preferred stock to Telephone & Data Systems, Inc. ("TDS") in exchange for 43,000 shares of Class A Common Stock and 105,940 shares of Class B Common Stock owned by TDS. An affiliate of TDS operates the competing cellular licensee in two of the RSAs acquired by the Company from Triton Cellular. TDS or the Company can convert the Class T preferred stock to Class A or Class B Common Stock in the future if ownership by TDS of the Common Stock would then be permissible under FCC rules. Under current FCC rules, TDS is not allowed to own more than 5% of the outstanding Class A or Class B Common Stock. Richard P. Ekstrand, RCC's president and chief executive officer, said: "We are pleased to close this acquisition early in 2000, allowing us to complete the integration of the South and Northwest Regions into RCC. RCC's doubling in size sets the stage for a strong 2000." Rural Cellular Corporation provides wireless communication services through its ownership, operation and management of cellular, paging and Personal Communication Services systems. These systems are concentrated in the Upper Midwest, New England, South and Northwest regions of the United States. Statements about RCC's anticipated performance are forward looking and therefore involve certain risks and uncertainties, including but not limited to: competitive considerations, success of customer enrollment initiatives, the ability to increase wireless usage and reduce customer acquisition costs, the successful integration of newly acquired operations with RCC's existing operations, the ability to service debt incurred in connection with expansion, and other factors discussed from time to time in RCC's filings with the Securities and Exchange Commission. Contact: Wesley Schultz, Senior V.P. and CFO (320) 762-2000 Chris Boraas, Investor Relations Manager (320) 808-2451 EX-99.2 12 EXHIBIT 99.2 Exhibit 99.2 RURAL CELLULAR CORPORATION BOARD APPOINTMENTS =============================================================================== APRIL 4, 2000--ALEXANDRIA, MN - Rural Cellular Corporation (RCC) (Nasdaq/NMS: RCCC) announced the appointment of Paul Finnegan and John Hunt to its Board of Directors. These appointments increase the size of the Board to ten members. Paul Finnegan, age 46, is a Managing Director of Madison Dearborn Partners, where he concentrates on investments in the communications industry. Mr. Finnegan has been with Madison Dearborn Partners since he co-founded that company in 1993. Prior to that time, Mr. Finnegan worked at First Chicago Venture Capital for ten years. Mr. Finnegan serves on the boards of directors of Allegiance Telecom, Inc., @link Networks, Inc., Comple Tel Europe LLC, Enews.com, Focal Communications Corporation, Madison River Telephone Company, LLC, Reiman Holding Company, LLC, Spectrum Healthcare Services, Inc., and Wireless One Network, L.P. He also serves on the board of trustees of The Skyline Fund, a small cap mutual fund. Mr. Finnegan received his B.A. from Harvard College and an M.B.A. from the Harvard Graduate School of Business Administration. John Hunt, age 34, is a director of Boston Ventures Management, Inc., where he focuses on telecommunications investments. He joined Boston Ventures in 1990 as an Associate, was promoted to Associate Director in 1996, and was named to his current position in 1998. Prior to joining Boston Ventures, Mr. Hunt was an investment analyst at Bear Stearns & Co., Inc. Mr. Hunt also serves on the board of directors of Integra Telecom, Inc., a competitive local exchange carrier, and on the board of managers of Sports Trend Info, LLC. Mr. Hunt received a bachelor's degree in finance from the University of Massachusetts at Amherst in 1988. Richard P. Ekstrand, RCC's president and chief executive officer, said: "Paul Finnegan and John Hunt are a welcome addition to our board. Their broad experience will be a valuable asset to Rural Cellular as we continue to expand our presence within the wireless industry." The appointment of Mr. Finnegan and Mr. Hunt to the Board is required under the terms of the Class M Preferred Stock issued to Madison Dearborn Partners and Boston Ventures as part of the financing for the Company's acquisition of the assets of Triton Cellular Partners, L.P. Madison Dearborn and Boston Ventures each has the right to designate a member of the Company's Board of Directors so long as it holds a specified number of shares of the Class M Preferred Stock or the number of shares of Class A Common Stock into which that number of shares of Class M can be converted. Rural Cellular Corporation provides wireless communication services through its ownership, operation and management of cellular, paging and Personal Communications Services systems. These systems are concentrated in the Upper Midwest, New England, South and Northwest regions of the United States. Statements about RCC's anticipated performance are forward looking and therefore involve certain risks and uncertainties, including but not limited to: competitive considerations, success of customer enrollment initiatives, the ability to increase wireless usage and reduce customer acquisition costs, the successful integration of newly acquired operations with RCC's existing operations, the ability to service debt incurred in connection with expansion, and other factors discussed from time to time in RCC's filings with the Securities and Exchange Commission. Contact: Wesley Schultz, Senior V.P. Finance and CFO (320) 762-2000 Chris Boraas, Investor Relations Manager (320) 808-2451 World Wide Web address: http://www.rccwireless.com # # # -----END PRIVACY-ENHANCED MESSAGE-----