SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Sections 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 23, 1994
VANGUARD CELLULAR SYSTEMS, INC.
(Exact Name of Registrant as Specified in its Charter)
North Carolina 0-16560 56-1549590
(State or other Jurisdiction (Commission File (IRS Employer
of Incorporation) Number) Identification
No.)
2002 Pisgah Church Road, Suite 300, Greensboro, NC 27455
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code: (910) 282-3690
Item 2. Acquisition or Disposition of Assets
On December 23, 1994, the Registrant completed the closing of a $675
million credit facility, pursuant to an Amended and Restated Loan
Agreement (the "1994 Credit Facility") with various lenders led by The
Toronto-Dominion Bank and The Bank of New York (collectively referred
to herein as the "Lenders"). The 1994 Credit Facility refinanced the
Registrant's then existing $390 million credit facility (the "1993 Loan
Agreement"). The participating Lenders are enumerated in Schedule A
below together with their share of each separate facility contemplated
under the 1994 Credit Facility. Under the terms of a Security
Agreement and a Master Subsidiary Security Agreement, the Registrant
and its wholly owned subsidiaries, who are guarantors of the
Registrant's obligations under the 1994 Credit Facility, granted the
Lenders security interests in substantially all of the tangible and
intangible assets of the Registrant and its wholly owned subsidiaries.
These pledged assets include, without limitation, the stock of the
wholly owned subsidiaries of the Registrant and all of the tangible and
intangible assets of the Registrant and its wholly owned subsidiaries.
The 1994 Credit Facility consists of a "Term Loan" and a "Revolving
Loan." The Term Loan, in the amount of $325 million, is to refinance
the Registrant's existing borrowings under the 1993 Loan Agreement.
The Revolving Loan, in the amount of up to $350 million, is available
for capital expenditures, to make acquisitions of and investments in
cellular and other wireless communication interests, and for other
general corporate purposes.
The 1994 Credit Facility requires maintenance of certain covenants
including but not limited to maintenance of certain financial ratios,
insurance, compliance with all applicable laws, and prescribed amounts
of interest rate protection. Additionally, the 1994 Credit Facility
restricts, among other things, the creation of certain additional
indebtedness, disposition of certain assets, payment of cash dividends,
capital expenditures and cellular acquisitions and other wireless
communications investments. These restrictions generally permit
borrowings to consummate the Company's pending acquisition of Sunshine
Cellular (the Federal Communications Commission license holder for the
nonwireline cellular telephone system in the Pennsylvania 8-Union rural
service area) and up to $75 million of acquisitions and investments
(including up to $35 million of investments in noncellular wireless
communications and in cellular markets that are not continguous to the
Registrant's existing markets). Capital expenditure restrictions are
based on the number of the Registrant's cellular subscribers in
decreasing amounts over the term of the facility (approximately $150
million in 1995). The requirements of the 1994 Credit Facility were
established in relation to the Registrant's projected capital and
financing needs and projected results of operations. These
requirements generally were designed to require continued improvement
in the registrant's operating performance such that its operating cash
flow would be sufficient to begin servicing the debt as repayments are
required.
The Term Loan and the Revolving Loan bear interest at a rate equal to
the Registrant's choice of the Prime Rate or Eurodollar Rate plus an
applicable margin based upon a leverage ratio for the most recent
fiscal quarter. The leverage ratio, which is computed as the ratio of
Total Debt (as defined) to Adjusted Cash Flow (as defined), currently
is at such a level as to cause the applicable margins on the borrowings
to be 0.375% and 1.625% per annum for the Prime Rate and Eurodollar
Rate, respectively.
The outstanding amount of the Term Loan as of March 30, 1998 is to be
repaid in increasing quarterly installments commencing on March 31,
1998 and terminating at its maturity date of December 31, 2003. The
quarterly installment payments begin at 1.875% of the outstanding
principal amount at March 30, 1998 and gradually increases to 5.625% at
March 31, 2003. The available borrowings under the Revolving Loan
shall be reduced on a quarterly basis also commencing on March 31, 1998
and terminating on December 31, 2003. The quarterly reduction begins
at 1.875% of the Revolving Loan Commitment at March 30, 1998 and
gradually increases to 5.625% on March 31, 2003.
Schedule A
Term Loan Revolving Loan
Lender Commitment Commitment
MANAGING AGENTS
The Toronto-Dominion Bank $28,888,888.89 $31,111,111.11
The Bank of New York 26,722.222.21 28,777.777.79
CO-AGENTS
NationsBank of
North Carolina, N.A. 21,666,666.67 23,333,333.33
LTCB Trust Company 21,666,666.67 23,333,333.33
Canadian Imperial Bank
of Commerce 21,666,666.67 23,333,333.33
The Bank of Nova Scotia 17,935,185.19 19,314,814.81
First National Bank 17,935,185.19 19,314,814.81
of Boston
LENDERS
Barclays Bank plc 16,851,851.85 18,148,148.15
The Bank of Montreal 12,037,037.04 12,962,962.96
Banque Nationale De Paris 12,037,037.04 12,962,962.96
Credit Lyonnais Cayman
Island Branch 12,037,037.04 12,962,962.96
First National Bank of
Maryland 12,037,037.04 12,962,962.96
First Union National
Bank of North Carolina 12,037,037.04 12,962,962.96
Fleet National Bank 12,037,037.04 12,962,962.96
The Bank of Tokyo
Trust Company 9,629,629.63 10,370,370.37
Societe Generale 9,629,629.63 10,370,370.37
ABN-AMRO Bank N.V. 7,222,222.22 7,777,777.78
Bank of Hawaii 7,222,222.22 7,777,777.78
CoreStates Bank, N.A. 7,222,222.22 7,777,777.78
Meridian Bank 7,222,222.22 7,777,777.78
National Westminster Bank, USA 7,222,222.22 7,777,777.78
Royal Bank of Canada 7,222,222.22 7,777,777.78
The Sumitomo Trust & 7,222,222.22 7,777,777.78
Banking Co., Ltd.,
The Bank of California, N.A. 4,814,814.81 5,185,185.19
Shawmut Bank Connecticut, N.A. 4,814,814.81 5,185,185.19
$325,000,000.00 $350,000,000.00
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits
(a) Financial Statements of Business Acquired. Not Applicable.
(b) Pro Forma Financial Information. Not Applicable.
(c) The Exhibits furnished in connection with this report are as follows:
2(a) Amended and Restated Loan Agreement dated as of December 23,
1994
2(b) Security Agreement dated as of December 23, 1994
2(c) Master Subsidiary Security Agreement dated as of December 23, 1994
The following schedules to the Loan Agreement, filed as Exhibit 2(a)
hereto, have been omitted. The Registrant hereby undertakes to furnish
supplementally a copy of any such omitted schedule to the Commission
upon request.
Exhibit A Form of Assignment of Rights by Partner
Exhibit B Form of Borrower Pledge Agreement
Exhibit C Form of Certificate of Financial Condition
Exhibit D Form of Term Loan Note
Exhibit E Form of Revolving Loan Note
Exhibit F-1 Form of Request for Advance - Initial Advance
Exhibit F-2 Form of Request for Advance - Advances Subsequent to the
Agreement Date
Exhibit G Form of Security Agreement
Exhibit H Form of Subsidiary Guaranty
Exhibit I Form of Subsidiary Pledge Agreement
Exhibit J Form of Subsidiary Security Agreement
Exhibit K Form of Use of Proceeds Letter
Exhibit L Form of Borrower's Loan Certificate
Exhibit M Form of Subsidiary Loan Certificate
Exhibit N Form of Performance Certificate
Exhibit O Form of Assignment and Assumption Agreement
Schedule 1 Licenses
Schedule 2 Liens of Record as of the Agreement Date
Schedule 3 Subsidiaries
Schedule 4 Litigation
Schedule 5 Agreements with Affiliates
Schedule 6 Investments
The following schedules to the Security Agreement, filed as Exhibit 2(b)
hereto, have been omitted. The Registrant hereby undertakes to furnish
supplementally a copy of such omitted Schedule to the Commission upon
request.
Exhibit A Licenses
Exhibit B Contracts
Exhibit C Leases
The following schedules to the Master Subsidiary Security Agreement,
filed as Exhibit 2(c) hereto, have been omitted. The Registrant hereby
undertakes to furnish supplementally a copy of any such omitted Schedule
to the Commission upon request.
Exhibit A Licenses
Exhibit B Contracts
Exhibit C Leases
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.
VANGUARD CELLULAR SYSTEMS, INC.
By:
Stephen L. Holcombe, Senior Vice
President and Chief Financial
Officer
Date: January , 1995
INDEX TO EXHIBITS
Exhibit
No. Exhibit Page
2(a) Amended and Restated Loan Agreement dated
as of December 23, 1994.
2(b) Security Agreement dated as of December 23, 1994.
2(c) Master Subsidiary Security Agreement dated as of
December 23, 1994.
AMENDED AND RESTATED LOAN AGREEMENT
AMONG VANGUARD CELLULAR SYSTEMS, INC. (THE "BORROWER");
THE FINANCIAL INSTITUTIONS PARTY HERETO AS LENDERS
(THE "LENDERS"); THE FINANCIAL INSTITUTIONS PARTY
HERETO AS CO-AGENTS (THE "CO-AGENTS");
THE BANK OF NEW YORK AND THE TORONTO-DOMINION BANK
AS MANAGING AGENTS (THE "MANAGING AGENTS");
THE BANK OF NEW YORK AS ADMINISTRATIVE AGENT
(THE "ADMINISTRATIVE AGENT");
THE TORONTO-DOMINION BANK AS DOCUMENTATION/REVIEW AGENT
(THE "DOCUMENTATION AGENT");
AND TORONTO DOMINION (TEXAS), INC.
AS COLLATERAL AGENT (THE "COLLATERAL AGENT")
INDEX
Page
ARTICLE 1 Definitions . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 Defined Terms. . . . . . . . . . . . . . . 2
Section 1.2 Interpretation . . . . . . . . . . . . . . 26
Section 1.3 Cross References . . . . . . . . . . . . . 26
ARTICLE 2 Loans . . . . . . . . . . . . . . . . . . . . . . . 27
Section 2.1 The Loans. . . . . . . . . . . . . . . . . 27
Section 2.2 Manner of Borrowing and Disbursement . . . 27
Section 2.3 Interest . . . . . . . . . . . . . . . . . 31
Section 2.4 Scheduled Commitment Reductions and
Repayment. . . . . . . . . . . . . . . . . 33
Section 2.5 Fees . . . . . . . . . . . . . . . . . . . 35
Section 2.6 Optional Prepayments; Revolving Loan
Commitment Reduction . . . . . . . . . . . 35
Section 2.7 Mandatory Prepayments. . . . . . . . . . . 36
Section 2.8 Notes; Loan Accounts . . . . . . . . . . . 38
Section 2.9 Manner of Payment. . . . . . . . . . . . . 39
Section 2.10 Reimbursement. . . . . . . . . . . . . . . 40
Section 2.11 Pro Rata Treatment . . . . . . . . . . . . 41
Section 2.12 Capital Adequacy . . . . . . . . . . . . . 41
Section 2.13 Lender Tax Forms . . . . . . . . . . . . . 42
ARTICLE 3 Conditions Precedent. . . . . . . . . . . . . . . . 42
Section 3.1 Conditions Precedent to Initial Advance
of Loans . . . . . . . . . . . . . . . . . 42
Section 3.2 Conditions Precedent to Each Advance . . . 46
ARTICLE 4 Representations and Warranties. . . . . . . . . . . 47
Section 4.1 Representations and Warranties . . . . . . 47
Section 4.2 Survival of Representations and
Warranties, etc. . . . . . . . . . . . . . 55
ARTICLE 5 General Covenants . . . . . . . . . . . . . . . . . 55
Section 5.1 Preservation of Existence and Similar
Matters. . . . . . . . . . . . . . . . . . 55
Section 5.2 Business; Compliance with Applicable
Law. . . . . . . . . . . . . . . . . . . . 55
Section 5.3 Maintenance of Properties. . . . . . . . . 56
Section 5.4 Accounting Methods and Financial
Records. . . . . . . . . . . . . . . . . . 56
Section 5.5 Insurance. . . . . . . . . . . . . . . . . 56
Section 5.6 Payment of Taxes and Claims. . . . . . . . 57
Section 5.7 Visits and Inspections . . . . . . . . . . 57
Section 5.8 Payment of Indebtedness; Loans . . . . . . 57
Section 5.9 Use of Proceeds. . . . . . . . . . . . . . 57
Section 5.10 Real Estate. . . . . . . . . . . . . . . . 58
Section 5.11 Indemnity. . . . . . . . . . . . . . . . . 58
Section 5.12 Interest Rate Hedging. . . . . . . . . . . 59
Section 5.13 Covenants Regarding Formation of
Subsidiaries; Acquisitions and
Investments; Partnership Subsidiaries. . . 59
Section 5.14 Payment of Wages . . . . . . . . . . . . . 61
ARTICLE 6 Information Covenants . . . . . . . . . . . . . . . 61
Section 6.1 Quarterly Financial Statements and
Information. . . . . . . . . . . . . . . . 61
Section 6.2 Annual Financial Statements and
Information. . . . . . . . . . . . . . . . 62
Section 6.3 Performance Certificates . . . . . . . . . 62
Section 6.4 Copies of Other Reports. . . . . . . . . . 63
Section 6.5 Notice of Litigation and Other Matters . . 64
ARTICLE 7 Negative Covenants. . . . . . . . . . . . . . . . . 65
Section 7.1 Indebtedness of the Borrower and its
Subsidiaries . . . . . . . . . . . . . . . 65
Section 7.2 Limitation on Liens. . . . . . . . . . . . 66
Section 7.3 Amendment and Waiver . . . . . . . . . . . 67
Section 7.4 Liquidation, Merger, or Disposition of
Assets . . . . . . . . . . . . . . . . . . 67
Section 7.5 Limitation on Guaranties . . . . . . . . . 68
Section 7.6 Investments and Acquisitions . . . . . . . 68
Section 7.7 Restricted Payments and Purchases. . . . . 71
Section 7.8 Interest Coverage Ratio. . . . . . . . . . 71
Section 7.9 Fixed Charge Ratio . . . . . . . . . . . . 72
Section 7.10 Leverage Ratio . . . . . . . . . . . . . . 72
Section 7.11 Pro Forma Debt Service Ratio . . . . . . . 73
Section 7.12 Capital Expenditures Test. . . . . . . . . 73
Section 7.13 Affiliate Transactions . . . . . . . . . . 73
Section 7.14 Real Estate. . . . . . . . . . . . . . . . 74
Section 7.15 ERISA Liabilities. . . . . . . . . . . . . 74
Section 7.16 Unrestricted Subsidiaries. . . . . . . . . 74
Section 7.17 The VCS Subsidiary . . . . . . . . . . . . 75
Section 7.18 Limitation on Upstream Dividends by
Subsidiaries . . . . . . . . . . . . . . . 75
ARTICLE 8 Default . . . . . . . . . . . . . . . . . . . . . . 76
Section 8.1 Events of Default. . . . . . . . . . . . . 76
Section 8.2 Remedies . . . . . . . . . . . . . . . . . 81
Section 8.3 Payments Subsequent to Declaration of
Event of Default . . . . . . . . . . . . . 83
ARTICLE 9 The Agents. . . . . . . . . . . . . . . . . . . . . 84
Section 9.1 Appointment and Authorization. . . . . . . 84
Section 9.2 Interest Holders . . . . . . . . . . . . . 84
Section 9.3 Consultation with Counsel. . . . . . . . . 84
Section 9.4 Documents. . . . . . . . . . . . . . . . . 84
Section 9.5 Agents and Affiliates. . . . . . . . . . . 85
Section 9.6 Responsibility of the Managing Agents,
the Administrative Agent and the
Collateral Agent . . . . . . . . . . . . . 85
Section 9.7 Collateral Agent . . . . . . . . . . . . . 85
Section 9.8 Action by Managing Agents, the
Administrative Agent and the Collateral
Agent. . . . . . . . . . . . . . . . . . . 85
Section 9.9 Notice of Default. . . . . . . . . . . . . 86
Section 9.10 Responsibility Disclaimed. . . . . . . . . 87
Section 9.11 Indemnification. . . . . . . . . . . . . . 87
Section 9.12 Credit Decision. . . . . . . . . . . . . . 88
Section 9.13 Successor Administrative Agent,
Documentation Agent and Collateral
Agent. . . . . . . . . . . . . . . . . . . 88
Section 9.14 Delegation of Duties . . . . . . . . . . . 89
Section 9.15 No Responsibilities of Co-Agents . . . . . 89
ARTICLE 10 Change in Circumstances Affecting Eurodollar
Advances. . . . . . . . . . . . . . . . . . . . . . 89
Section 10.1 Eurodollar Basis Determination
Inadequate . . . . . . . . . . . . . . . . 89
Section 10.2 Illegality . . . . . . . . . . . . . . . . 90
Section 10.3 Increased Costs. . . . . . . . . . . . . . 91
Section 10.4 Effect On Other Advances . . . . . . . . . 92
ARTICLE 11 Miscellaneous . . . . . . . . . . . . . . . . . . . 92
Section 11.1 Notices. . . . . . . . . . . . . . . . . . 92
Section 11.2 Expenses . . . . . . . . . . . . . . . . . 94
Section 11.3 Waivers. . . . . . . . . . . . . . . . . . 95
Section 11.4 Set-Off. . . . . . . . . . . . . . . . . . 95
Section 11.5 Assignment . . . . . . . . . . . . . . . . 96
Section 11.6 Accounting Principles. . . . . . . . . . . 98
Section 11.7 Counterparts . . . . . . . . . . . . . . . 98
Section 11.8 Governing Law. . . . . . . . . . . . . . . 98
Section 11.9 Severability . . . . . . . . . . . . . . . 99
Section 11.10 Interest . . . . . . . . . . . . . . . . . 99
Section 11.11 Table of Contents and Headings . . . . . . 99
Section 11.12 Amendment and Waiver . . . . . . . . . . .100
Section 11.13 Entire Agreement . . . . . . . . . . . . .101
Section 11.14 Other Relationships. . . . . . . . . . . .101
Section 11.15 Directly or Indirectly . . . . . . . . . .101
Section 11.16 Reliance on and Survival of Various
Provisions . . . . . . . . . . . . . . . .101
Section 11.17 Senior Debt. . . . . . . . . . . . . . . .102
Section 11.18 Obligations Several. . . . . . . . . . . .102
Section 11.19 Confidentiality. . . . . . . . . . . . . .102
ARTICLE 12 Waiver of Jury Trial. . . . . . . . . . . . . . . .103
Section 12.1 Waiver of Jury Trial . . . . . . . . . . .103
EXHIBITS
Exhibit A - Form of Assignment of Rights of Partner
Exhibit B - Form of Borrower Pledge Agreement
Exhibit C - Form of Certificate of Financial Condition
Exhibit D - Form of Term Loan Note
Exhibit E - Form of Revolving Loan Note
Exhibit F-1 - Form of Request for Advance - Initial Advance
Exhibit F-2 - Form of Request for Advance - Advances
Subsequent to the Agreement Date
Exhibit G - Form of Security Agreement
Exhibit H - Form of Subsidiary Guaranty
Exhibit I - Form of Subsidiary Pledge Agreement
Exhibit J - Form of Subsidiary Security Agreement
Exhibit K - Form of Use of Proceeds Letter
Exhibit L - Form of Borrower's Loan Certificate
Exhibit M - Form of Subsidiary Loan Certificate
Exhibit N - Form of Performance Certificate
Exhibit O - Form of Assignment and Assumption Agreement
SCHEDULES
Schedule 1 - Licenses
Schedule 2 - Liens of Record as of the Agreement Date
Schedule 3 - Subsidiaries
Schedule 4 - Litigation
Schedule 5 - Agreements with Affiliates
Schedule 6 - Investments
AMENDED AND RESTATED LOAN AGREEMENT
This Amended and Restated Loan Agreement (the "Agreement"),
made as of this 23rd day of December, 1994 by and among VANGUARD
CELLULAR SYSTEMS, INC., a North Carolina corporation (the
"Borrower"), the financial institutions party hereto as Lenders
(together with such other financial institutions as may hereafter
become Lenders hereunder, the "Lenders"), the financial
institutions party hereto as Co-Agents (the "Co-Agents"), THE
BANK OF NEW YORK and THE TORONTO-DOMINION BANK, as Managing
Agents (the "Managing Agents"), THE BANK OF NEW YORK, as
Administrative Agent (the "Administrative Agent"), THE TORONTO-
DOMINION BANK, as Documentation/Review Agent (the "Documentation
Agent") and TORONTO DOMINION (TEXAS), INC., as Collateral Agent.
WITNESSETH:
WHEREAS, prior to the date hereof, the Borrower, certain of
the Lenders and certain other lenders (collectively, the
"Original Lenders"), the Managing Agents, the Administrative
Agent and the Collateral Agent (collectively, the "Original
Agents"), entered into a Loan Agreement dated as of April 21,
1993, as amended by the First Amendment thereto dated as of
January 31, 1994, and the Second Amendment thereto dated as of
June 30, 1994, and certain other related loan and collateral
documents (collectively, the "Original Loan Agreement"), pursuant
to which the Original Lenders agreed to advance to the Borrower
certain loans in an aggregate principal amount not to exceed
$390,000,000 as set forth more specifically in the Original Loan
Agreement.
WHEREAS, the Borrower desires to modify the terms of (but
not to extinguish, novate or discharge) the total indebtedness
outstanding under the Original Loan Agreement and to amend and
restate the Original Loan Agreement to provide that the Lenders
shall hereafter extend credit to the Borrower in order to enable
it to obtain loans in an aggregate principal amount not to exceed
$675,000,000 as of the date hereof, and the Lenders are willing
to extend such loans to the Borrower pursuant to the terms and
conditions of this Agreement.
WHEREAS, the Borrower, for itself and on behalf of its
Subsidiaries (as hereinafter defined), acknowledges and agrees
that the Liens (as hereinafter defined) granted to the Original
Agents and the Original Lenders pursuant to the Original Loan
Agreement or otherwise, shall remain outstanding and in full
force and effect, in accordance with the terms of the Original
Loan Agreement, as renewed, amended, restated or supplemented
pursuant to the Loan Documents (as hereinafter defined).
WHEREAS, the Obligations (as hereinafter defined) existing
as of the date of the initial Advance (as hereafter defined)
hereunder represent the amendment, restatement, restructure,
renewal, extension, consolidation and modification of the
existing obligations of the Borrower under the Original Loan
Agreement. The rights of the Original Lenders with respect to
the obligations of the Borrower under the Original Loan Agreement
existing as of the date of the initial Advance shall be deemed to
be assigned by the Original Lenders to the Lenders on a pro rata
basis in accordance with the respective Commitment Ratios (as
hereafter defined) of the Lenders. The Borrower acknowledges and
agrees that the parties hereto intend that the Original Loan
Agreement and the collateral furnished thereunder and hereunder
shall secure, without interruption or impairment of any kind, all
existing indebtedness under the Original Loan Agreement as so
amended, restated, restructured, renewed, extended, consolidated
and modified under this Agreement, the Notes (as hereafater
defined) and the other Loan Documents (as hereinafter defined),
together with all other Obligations hereunder. The Borrower, for
itself and on behalf of its Subsidiaries, ratifies, confirms and
agrees to continue all Liens evidenced by the Original Loan
Agreement.
WHEREAS, the Loan Documents are intended to, and do hereby,
amend, restate, restructure, renew, extend, consolidate and
modify the Original Loan Agreement. The provisions of the
Original Loan Agreement are hereby superseded and replaced in
their entirety by the provisions hereof and of the other Loan
Documents. The Notes, as hereinafter defined, amend, renew,
extend, modify, replace, are substituted for and supersede in
their entirety, but do not extinguish, the promissory notes
issued pursuant to the Original Loan Agreement.
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1
Definitions
Section 1.1 Defined Terms. The following terms when used
in this Agreement shall have the following meanings:
"Acquisition" shall mean (whether by purchase, 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 other than
acquisitions of assets which constitute Investments hereunder.
"Acquisition/Investment Basket" shall mean $75,000,000.00,
as such amount may be increased as provided in Section 7.6
hereof.
"Adjusted Cash Flow" shall mean, as of any calculation date,
the difference between (a) the product of (i) the sum of Cash
Flow and Marketing Expenses for the most recently completed two
(2) fiscal quarters, multiplied by (ii) two (2); less (b)
Marketing Expenses for the most recently completed four (4)
fiscal quarters. In addition, for purposes of measuring the
Borrower's Fixed Charge Ratio pursuant to Section 7.9 hereof, for
purposes of measuring the Borrower's Leverage Ratio pursuant to
Section 7.10 hereof and for purposes of measuring the Pro Forma
Debt Service Ratio pursuant to Section 7.11 hereof, Adjusted Cash
Flow shall be further adjusted to give effect to any Acquisition,
Investment or disposition of assets by the Borrower or any of its
Subsidiaries permitted hereunder for the calculation period
during which such transaction occurs, as if such Acquisition,
Investment or disposition of assets had been consummated on the
first day of such calculation period, and assuming that the Cash
Flow allocated to the Borrower or the applicable Subsidiary with
respect to any such Acquisition or Investment was equal to the
cash flow of the seller (calculated in the same manner as Cash
Flow hereunder) generated by such Acquisition or Investment for
such period. For purposes of this definition, "calculation
period" shall mean, (x) with respect to Cash Flow, the period
consisting of the two (2) most recently completed fiscal
quarters, and (y) with respect to Marketing Expenses, the period
consisting of the four (4) most recently completed fiscal
quarters.
"Administrative Agent" shall mean The Bank of New York, in
its capacity as Administrative Agent for the Lenders.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at The Bank of New York, Agency
Function Administration, 18th Floor, One Wall Street, New York,
New York 10286, or such other office as may be designated
pursuant to the provisions of Section 11.1 of this Agreement.
"Advance" or "Advances" shall mean amounts advanced by the
Lenders to the Borrower pursuant to Article 2 hereof on the
occasion of any borrowing.
"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 twenty percent (20%) 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. Unless otherwise
specified, "Affiliate" shall mean an Affiliate of the Borrower.
"Agents" shall mean, collectively, the Managing Agents, the
Co-Agents, the Administrative Agent, the Documentation Agent and
the Collateral Agent.
"Agreement" shall mean this Agreement, as amended,
supplemented or otherwise modified from time to time.
"Agreement Date" shall mean the date as of which this
Agreement is dated.
"Allowable Cellular System" shall mean, as of any date of
determination, any Cellular System, the geographical boundaries
for which are either within, or contiguous to, or within fifty
(50) miles from, any boundary of any of the Borrower's or any of
its Subsidiaries' then existing Cellular Systems.
"Annual Capital Expenditures" shall mean, as of any
calculation date, the sum of the Capital Expenditures made by the
Borrower or its Subsidiaries during the most recently completed
four (4) fiscal quarters.
"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 Advances hereunder determined in accordance with
Section 2.3(f) hereof.
"Assignment of Rights by Partner" shall mean, collectively,
any Assignment of Rights by Partner between the Borrower, or any
Subsidiary of the Borrower which holds partnership interests in a
Subsidiary of the Borrower, on the one hand, and the Collateral
Agent, on the other hand, each substantially in the form of
Exhibit A attached hereto.
"Authorized Signatory" shall mean such senior personnel of
the Borrower or any of its Subsidiaries, as applicable, as may be
duly authorized and designated in writing by the Borrower or any
such Subsidiary, as applicable, to execute documents, agreements
and instruments on behalf of the Borrower or such Subsidiary, as
applicable.
"Borrower" shall mean Vanguard Cellular Systems, Inc., a
North Carolina corporation.
"Borrower Pledge Agreement" shall mean each Borrower Pledge
Agreement between the Borrower and the Collateral Agent, each
substantially in the form of Exhibit B attached hereto,
including, without limitation, that certain Amended and Restated
Borrower Pledge Agreement of even date herewith.
"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 London, England and New York, New
York, as relevant to the determination to be made or the action
to be taken.
"Capital Expenditures" shall mean, in respect of any Person,
expenditures for the purchase of assets of long-term use which
should be capitalized in accordance with GAAP.
"Capital Expenditures Test" shall mean, as of the end of any
fiscal year of the Borrower, the quotient of (a) Annual Capital
Expenditures, divided by (b) Ending Subscribers.
"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.
"Cash Flow" shall mean, for the Borrower and its
Subsidiaries on a consolidated basis for any fiscal period, Net
Income for such period (after eliminating any extraordinary gains
and losses, including gains and losses from the sale of assets,
and minority interests and equity in earnings (losses) of non-
consolidated entities), plus, to the extent deducted in
determining Net Income, the sum of each of the following for such
period: (i) depreciation and amortization allowances,
(ii) interest expense, (iii) income tax expense, including
reserves for deferred taxes not payable currently and (iv) all
other non-cash items.
"Cellular System" shall mean a cellular mobile radio
telephone system constructed and operated in an MSA or an RSA.
"Certificate of Financial Condition" shall mean a
certificate, substantially in the form of Exhibit C attached
hereto, signed by the chief financial officer of the Borrower,
together with any schedules, exhibits or annexes appended
thereto.
"Co-Agents" shall mean, collectively, CIBC, Inc., LTCB Trust
Company, NationsBank of North Carolina, N.A., The Bank of Nova
Scotia and The First National Bank of Boston.
"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.
"Collateral Agent" shall mean Toronto Dominion (Texas),
Inc., as collateral agent for the Administrative Agent, the
Documentation Agent, the Managing Agents, the Co-Agents and the
Lenders.
"Commitment Ratios" shall mean the percentages in which the
Lenders are severally bound to make Advances to the Borrower
under the Term Loan Commitment and the Revolving Loan Commitment,
which are set forth below (together with dollar amounts) as of
the Agreement Date:
<TABLE>
<CAPTION>
Total Amount of
Term Loan Revolving Loan Dollar Commitment
Lender Commitment Commitment Commitment Ratio
<S> <C> <C> <C> <C>
The Toronto-Dominion Bank 28,888,888.89 31,111,111.11 60,000,000 8.88888889%
The Bank of New York 26,722,222.21 28,777,777.79 55,500,000 8.22222222%
CIBC, Inc. 21,666,666.67 23,333,333.33 45,000,000 6.66666668%
LTCB Trust Company 21,666,666.67 23,333,333.33 45,000,000 6.66666668%
NationsBank of North Carolina, N.A. 21,666,666.67 23,333,333.33 45,000,000 6.66666668%
The First National Bank of Boston 17,935,185.19 19,314,814.81 37,250,000 5.51851852%
The Bank of Nova Scotia 17,935,185.19 19,314,814.81 37,250,000 5.51851852%
Barclays Bank plc 16,851,851.85 18,148,148.15 35,000,000 5.18518519%
The Bank of Montreal 12,037,037.04 12,962,962.96 25,000,000 3.70370370%
Banque Nationale de Paris 12,037,037.04 12,962,962.96 25,000,000 3.70370370%
Credit Lyonnais Cayman Island
Branch 12,037,037.04 12,962,962.96 25,000,000 3.70370370%
First National Bank of Maryland 12,037,037.04 12,962,962.96 25,000,000 3.70370370%
First Union National Bank of
North Carolina 12,037,037.04 12,962,962.96 25,000,000 3.70370370%
Fleet National Bank 12,037,037.04 12,962,962.96 25,000,000 3.70370370%
The Bank of Tokyo Trust Company 9,629,629.63 10,370,370.37 20,000,000 2.96296296%
Societe Generale 9,629,629.63 10,370,370.37 20,000,000 2.96296296%
ABN-AMRO Bank N.V. 7,222,222.22 7,777,777.78 15,000,000 2.22222222%
Bank of Hawaii 7,222,222.22 7,777,777.78 15,000,000 2.22222222%
CoreStates Bank, N.A. 7,222,222.22 7,777,777.78 15,000,000 2.22222222%
Meridian Bank 7,222,222.22 7,777,777.78 15,000,000 2.22222222%
National Westminster Bank, USA 7,222,222.22 7,777,777.78 15,000,000 2.22222222%
Royal Bank of Canada 7,222,222.22 7,777,777.78 15,000,000 2.22222222%
The Sumitomo Trust & Banking Co.,
Ltd., New York Branch 7,222,222.22 7,777,777.78 15,000,000 2.22222222%
The Bank of California, N.A. 4,814,814.81 5,185,185.19 10,000,000 1.48148148%
Shawmut Bank Connecticut, N.A. 4,814,814.81 5,185,185.19 10,000,000 1.48148148%
TOTALS $325,000,000.00 $350,000,000.00 $675,000,000.00 100%
</TABLE>
"Commitments" shall mean, collectively, the Term Loan
Commitment and the Revolving Loan Commitment.
"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.
"Core Assets" shall mean all assets of the Borrower or any
of its Subsidiaries comprising the Mid-Atlantic Supersystem
excluding those assets set forth in clause (b) of the definition
of Non-Core Assets.
"Debt Service" shall mean, for any period, the amount of all
principal paid and GAAP Interest Expense of the Borrower and its
Subsidiaries on a consolidated basis in respect of Indebtedness
for Money Borrowed (other than voluntary prepayments of principal
under the Term Loan or voluntary principal payments under the
Revolving Loans which are not required to be accompanied by an
identical reduction in the Revolving Loan Commitment).
"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 a simple per annum interest rate
equal to the sum of the otherwise applicable Interest Rate Basis
plus two percent (2%), or if no Interest Rate Basis is otherwise
applicable, a simple per annum interest rate equal to the sum of
the Prime Rate Basis plus two percent (2%).
"Documentation Agent" shall mean The Toronto-Dominion Bank
in its capacity as Documentation/Review Agent.
"Ending Subscribers" shall mean, as of any calculation date,
the aggregate number of subscribers for the cellular telephone
services of the Borrower and its Subsidiaries on a consolidated
basis as of the end of the fiscal year of the Borrower most
recently ended.
"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, or 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, (42 U.S.C. (section mark) 9601 et seq.),
as amended by the Superfund Amendments and Reauthorization Act of
1986, as amended, or the Solid Waste Disposal Act, as amended
(42 U.S.C. (section mark) 6901 et seq.).
"Equivalent Owned POPs" shall mean, for each MSA or RSA
served by any Cellular System which is owned in whole or in part,
directly or indirectly, by the Borrower or any of its
Subsidiaries, a number equal to the product of (i) the number of
POPs for each such MSA or RSA and (ii) the percentage of
ownership of the Borrower (either directly or through its
Subsidiaries) in the Cellular System serving each such MSA or
RSA.
"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
Section 414(b), 414(c), 414(m), or 414(o)) of which the Borrower
is a member.
"Eurodollar Advance" shall mean an Advance which the
Borrower requests to be made as a Eurodollar Advance or which is
reborrowed as a Eurodollar Advance, in accordance with the
provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $5,000,000.00 and in an integral
multiple of $1,000,000.00.
"Eurodollar Basis" shall mean a simple per annum interest
rate (rounded upward, if necessary, to the nearest one-hundredth
(1/100th) of one percent) equal to the sum of (a) the quotient of
(i) the Eurodollar Rate divided by (ii) one minus the Eurodollar
Reserve Percentage, stated as a decimal, plus (b) the Applicable
Margin as determined by Section 2.3(f) hereof. The Eurodollar
Basis shall apply to Interest Periods of one (1), two (2), three
(3), six (6) and, subject to availability, 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. The Borrower may elect an Interest Period of
nine (9) or twelve (12) months for a Eurodollar Advance unless
the Administrative Agent has been notified by one (1) or more
Lenders that such Lender does not have available to it funds for
its portion of the proposed Advance which are not required for
other purposes, that such funds are not available to such Lender
at a rate at or below the Eurodollar Rate for such proposed
Advance and Interest Period, or that such Lender does not agree
(in its sole discretion) to fund its portion of such Advance.
"Eurodollar Rate" shall mean, for any Interest Period, the
average of the interest rates per annum at which deposits in
United States Dollars for such Interest Period are offered to the
Managing Agents in the Eurodollar market at approximately
11:00 a.m. (New York, New York time) two (2) Business Days before
the first day of such Interest Period, in an amount approximately
equal to the principal amount of, and for a length of time
approximately equal to the Interest Period for, the Eurodollar
Advance sought by the Borrower.
"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, as the maximum
reserve 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. The Eurodollar Basis for
any Eurodollar Advance shall be adjusted as of the effective date
of any change in the Eurodollar Reserve Percentage.
"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, with respect to the Borrower
and its Subsidiaries on a consolidated basis, as of the end of
any fiscal year of the Borrower based on the audited financial
statements required to be provided to the Lenders under
Section 6.2 hereof for such year, the remainder of (a) the sum of
(i) Cash Flow for such fiscal year, plus (ii) the amount of all
cash payments of capital contributions made during such year by
minority investors in Cellular Systems majority-owned by the
Borrower or any of its Subsidiaries, minus (b) the sum of the
following items for such fiscal year: (i) Debt Service;
(ii) Capital Expenditures; (iii) income taxes paid;
(iv) voluntary prepayments of principal under the Term Loan and,
if accompanied by a permanent reduction of the Revolving Loan
Commitment, the Revolving Loans, all pursuant to Section 2.6(b)
hereof; (v) cash payments of capital contributions made by the
Borrower and its Subsidiaries to Cellular Systems in which an
Investment permitted hereunder is held; and (vi) Restricted
Payments made pursuant to Section 7.7(c) hereof.
"Facilities" shall mean the credit facilities made available
to the Borrower hereunder pursuant to the Term Loan Commitment
and the Revolving Loan Commitment.
"Fair Market Value" shall mean, with respect to any shares
of the Borrower's common stock as of the date of the consummation
of any Acquisition or Investment, the closing price for such
shares for the previous trading day, as reported by the national
stock exchange upon which such shares are traded. In the event
such closing price is unavailable, the Fair Market Value of the
Borrower's common stock shall be determined by an independent
valuation firm of recognized standing in the cellular telephone
industry selected by the Managing Agents.
"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.
"Final Maturity Date" shall mean the earlier of (a) the
later to occur of the Term Loan Maturity Date and the Revolving
Loan Maturity Date, or (b) any date on which all outstanding
Obligations shall be due (whether by acceleration or otherwise).
"Fixed Charge Ratio" shall mean (a) for any calculation date
up to, and including, December 30, 1997, the ratio of (i) the sum
of (y) Adjusted Cash Flow plus (z) the unborrowed portion of the
Revolving Loan Commitment which is then available for borrowing
in accordance with Section 7.10 hereof, to (ii) Fixed Charges;
and (b) for any calculation date after December 30, 1997, the
ratio of (i) Adjusted Cash Flow to (ii) Fixed Charges.
"Fixed Charges" shall mean for the Borrower and its
Subsidiaries on a consolidated basis with respect to the most
recently completed four (4) fiscal quarters, in each case after
giving effect to any Interest Rate Hedge Agreements and
Eurodollar Advances, the sum of (a) Debt Service, plus
(b) Capital Expenditures, plus (c) income taxes paid, plus
(d) all Restricted Payments and Restricted Purchases made by the
Borrower or any of its Subsidiaries, plus (e) all cash payments
of capital contributions made by the Borrower and its
Subsidiaries to Cellular Systems in which an Investment permitted
hereunder is held, less (f) the amount of all cash payments of
capital contributions made by minority investors in Cellular
Systems majority-owned by the Borrower or any of its
Subsidiaries.
"GAAP" shall mean generally accepted accounting principles
in the United States, consistently applied.
"GAAP Interest Expense" shall mean, for any period, all
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, but excluding any such fees payable
on or prior to the Agreement Date and any amortization thereof,
all as calculated in accordance with GAAP.
"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.
"Identified Acquisitions" shall mean, the Cellular Systems
in (a) Binghamton and Elmira, New York and (b) Pennsylvania
# 8 RSA, which the Borrower or one of its Subsidiaries has agreed
to acquire as of the Agreement Date pursuant to one (1) or more
written agreements.
"Indebtedness" shall mean, with respect to any Person, and
without duplication, (a) all items, except items of 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, 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 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 and
(d) all reimbursement obligations with respect to outstanding
letters of credit.
"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, 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, and,
without duplication, Guaranties of any of the foregoing. 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 to it in
Section 5.11 hereof.
"Interest Coverage Ratio" shall mean, as of any calculation
date, the ratio of Cash Flow for the most recently ended fiscal
quarter of the Borrower to GAAP Interest Expense for such
quarter.
"Interest Period" shall mean (a) in connection with any
Prime 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 Prime
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 Eurodollar 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 Eurodollar
Advances only, 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 Eurodollar 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) no Interest Period shall extend beyond the applicable
Maturity Date or such earlier date as would interfere with the
Borrower's repayment obligations under Section 2.4 or Section 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 Prime Rate Basis, or
the Eurodollar Basis, as appropriate.
"Interest Rate Hedge Agreements" shall mean any interest
rate swap, cap, collar, floor, caption or swaption agreements, or
any similar arrangements designed to hedge the risk of variable
interest rate volatility or to reduce interest costs, arising at
any time between the Borrower, on the one hand, and any one (1)
or more of the Lenders, or any other Person (other than an
Affiliate), on the other hand, as such agreement or arrangement
may be modified, supplemented and in effect from time to time.
"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 (other
than the cellular telephone 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.
"Investment Sublimit" shall mean $35,000,000.00, as such
amount may be increased as provided in Section 7.6 hereof.
"Lenders" shall mean the financial institutions whose names
appear as "Lenders" on the signature pages hereof and any of
their permitted assigns hereunder following assignments made in
accordance with Section 11.5 hereof; and "Lender" shall mean any
one of the foregoing Lenders.
"Leverage Ratio" shall mean, as of any calculation date, the
ratio of Total Debt to Adjusted Cash Flow.
"Licenses" shall mean any mobile telephone, cellular
telephone, microwave, paging 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, the Certificate of Financial Condition, all
legal opinions or reliance letters issued by counsel to the
Borrower or any of its Subsidiaries, all fee letters (including
without limitation those referred to in Section 2.5 hereof), all
Requests for Advance, all Interest Rate Hedge Agreements between
the Borrower, on the one hand, and the Administrative Agent and
the Lenders, or any of them, on the other hand (including
Interest Rate Hedge Agreements entered into prior to the
Agreement Date), and all other documents and agreements executed
or delivered in connection with or contemplated by this
Agreement.
"Loans" shall mean, collectively, the Term Loan and the
Revolving Loans.
"Majority Lenders" shall mean (i) at any time that there are
no Loans outstanding hereunder, Lenders the total of whose
Commitment Ratios equals or exceeds sixty-six and two-thirds
percent (66-2/3%), or (ii) at any time that there are Loans
outstanding hereunder, Lenders the total of whose Loans
outstanding equals or exceeds sixty-six and two-thirds percent
(66-2/3%) of the total principal amount of the Loans then
outstanding hereunder.
"Management Group" shall mean Stuart S. Richardson,
Haynes G. Griffin, Stephen R. Leeolou and L. Richardson
Preyer, Jr.
"Managing Agents" shall mean The Bank of New York and The
Toronto-Dominion Bank, acting in their capacities as managing
agents for the Lenders.
"Marketing Expenses" shall mean, for any period, out-of-
pocket expenses incurred by the Borrower and its Subsidiaries on
a consolidated basis for promoting the sale of their cellular
telephone services and products in their service areas,
including, without limitation, losses incurred from the sale of
cellular telephones and other wireless communication devices to
businesses and consumers in the ordinary course of business, as
determined in accordance with GAAP, and calculated on a
consistent basis from period to period.
"Materially Adverse Effect" shall mean (i) 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, or (ii) a material adverse effect upon the binding nature,
validity, or enforceability of this Agreement, the Security
Documents 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 Collateral Agent and the Lenders in the Collateral;
in any 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.
"Maturity Date" shall mean (a) the Term Loan Maturity Date,
or the Revolving Loan Maturity Date, as the case may be, or
(b) such earlier date as payment of the Obligations shall be due
(whether by acceleration or otherwise).
"Mid-Atlantic Supersystem" shall mean, collectively, (a) the
Cellular Systems owned in whole or in part by the Borrower and
its Subsidiaries which are located within the Commonwealth of
Pennsylvania; Orange County, New York; Poughkeepsie, New York;
Trenton and Vineland, New Jersey; and (b) contiguous MSA's or
RSA's; provided that, for each such contiguous geographical
territory, the number of Equivalent Owned POPs equals or exceeds
fifty percent (50%) of all POPs for such territory.
"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 have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Necessary Authorizations" shall mean all approvals and
licenses from, and all filings and registrations with, any
governmental or other regulatory authority, including, without
limiting the foregoing, 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 the Borrower or any of
its Subsidiaries, or any issuance by the Borrower or any of its
Subsidiaries of any capital stock or other debt or equity
securities permitted hereunder, the aggregate amount of cash
received for such assets or securities (including, without
limitation, any payments received for non-competition covenants
and consulting or management fees and any portion of the amount
received evidenced by a seller promissory note or other evidence
of Indebtedness), net of (i) amounts reserved, if any, for taxes
payable with respect to any such transaction (after application
of any available losses, credits or other offsets),
(ii) reasonable and customary transaction costs properly
attributable to such transaction and payable by the Borrower or
any of its Subsidiaries (other than to an Affiliate) in
connection with such transaction including, without limitation,
commissions and underwriting discounts and (iii) until actually
received by the Borrower or any of its Subsidiaries, any portion
of the amount received held in escrow or evidenced by a seller
promissory note or non-compete agreement or covenant for which
compensation is paid over time. Upon receipt by the Borrower or
any of its Subsidiaries of amounts referred to in item (iii) of
the preceding sentence, such amounts shall then be deemed to be
"Net Proceeds."
"Net Proceeds Trust" shall have the meaning ascribed to such
term in Section 2.7(b)(ii) hereof.
"Non-Core Assets" shall mean the ownership interests of the
Borrower and its Subsidiaries in (a) all Cellular Systems other
than those in the Mid-Atlantic Supersystem and the Identified
Acquisitions; (b) up to ten percent (10%) of the number of
Equivalent Owned POPs as of the Agreement Date relating to the
Mid-Atlantic Supersystem and the Identified Acquisitions; and
(c) any asset other than assets comprising part of a Cellular
System.
"Note Pledge Agreement" shall mean that certain Amended and
Restated Note Pledge Agreement in favor of the Collateral Agent
for the benefit of the Lenders, given by Vanguard Cellular
Holding Corp. of even date herewith.
"Notes" shall mean, collectively, the Term Loan Notes and
the Revolving Loan Notes.
"Obligations" shall mean (i) all payment and performance
obligations of every kind, nature and description of the
Borrower, its Subsidiaries and any other obligors to the Lenders
or the Agents, or any of them, under this Agreement and the other
Loan Documents (including 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 or any of its Subsidiaries or any other such obligor,
whether or not such claim is allowed in such bankruptcy action),
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, and (ii) the
obligation to pay an amount equal to the amount of any and all
damage which the Lenders or the Agents, or any of them, may
suffer by reason of a breach by the Borrower, any of its
Subsidiaries, or any other obligor, of any obligation, covenant
or undertaking with respect to this Agreement or any other Loan
Document.
"Partnership Subsidiaries" shall mean each of the following
Subsidiaries: Harrisburg Cellular Telephone Company, a
Pennsylvania general partnership; State College Celltelco, a
District of Columbia general partnership; Williamsport Cellular
Telephone Company, a Delaware general partnership; Eastern North
Carolina Cellular Joint Venture, a Delaware joint venture; and PA
10-East Partnership, a Maryland general partnership.
"Payment Date" shall mean the last day of any Interest
Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation,
or any successor thereto.
"Permitted Asset Sale" shall mean the sale by the Borrower
or any of its Subsidiaries of all or any part of the Non-Core
Assets as permitted under Section 7.4 hereof.
"Permitted Liens" shall mean, as applied to any Person:
(a) Any Lien in favor of the Collateral Agent, for the
benefit of the Agents and the Lenders, given to secure the
Obligations;
(b) (i) Liens on real estate for real estate taxes 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 in accordance with GAAP, but only so long
as no foreclosure, distraint, sale or similar proceedings have
been commenced with respect thereto and remain unstayed for a
period of thirty (30) days after their commencement;
(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 worker's compensation and unemployment
insurance;
(e) Restrictions on the transfer of assets imposed by
any of the Licenses as presently in effect or by the
Communications Act, any state laws and any regulations
thereunder;
(f) Easements, rights-of-way, restrictions and other
similar encumbrances on the use of real property which do not
interfere with the ordinary conduct of the business of such
Person, or Liens incidental to the conduct of the business of
such Person or to the ownership of its properties which were not
incurred in connection with Indebtedness or other extensions of
credit and which do not in the aggregate materially detract from
the value of such properties or materially impair their use in
the operation of the business of such Person;
(g) Purchase money security interests, which are
perfected automatically by operation of law, only for the period
(not to exceed twenty (20) days) of automatic perfection under
the law of the applicable jurisdiction, and limited to Liens on
assets so purchased;
(h) Liens reflected by Uniform Commercial Code
financing statements filed in respect of Capitalized Lease
Obligations permitted hereunder and true leases of the Borrower
or any of its Subsidiaries;
(i) Any Liens of record which are listed as of the
Agreement Date on Schedule 2 attached hereto, which Liens secure
Indebtedness in an amount not to exceed $2,000,000.00 in the
aggregate at any time;
(j) Liens on the assets acquired with the Indebtedness
permitted under Section 7.1(h) hereof, provided that such Lien
secures only the Indebtedness incurred to purchase the asset
covered thereby; and
(k) Liens existing as of the Agreement Date but being
terminated simultaneously with the making of the initial Advances
hereunder in accordance with Section 3.1(a)(xviii) hereof.
"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 any Person or any affiliate of
such Person.
"POPs" shall mean, as of any calculation date, with respect
to any RSA or MSA, the population of such RSA or MSA as such
number is published in the most recent Donnelly Marketing Service
Population Guide.
"Prime Rate" shall mean, at any time, the higher of (a) the
average of the rates of interest adopted by each of the Managing
Agents as the reference rate for the determination of interest
rates for loans of varying maturities in United States dollars to
United States residents of varying degrees of creditworthiness
and being quoted at such time by such Managing Agent as its
"prime rate" or "prime commercial lending rate," or (b) the
Federal Funds Rate plus 1/2 of 1%. The Prime Rate is not
necessarily the lowest rate of interest charged to borrowers of
either of the Managing Agents.
"Prime Rate Advance" shall mean an Advance which the
Borrower requests to be made as a Prime Rate Advance or is
reborrowed as a Prime Rate Advance, in accordance with the
provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $2,000,000.00, and in an integral
multiple of $500,000.00.
"Prime Rate Basis" shall mean a simple interest rate equal
to the sum of (i) the Prime Rate and (ii) the Applicable Margin
as determined by Section 2.3(f) hereof. The Prime Rate Basis
shall be adjusted automatically as of the opening of business on
the effective date of each change in the Prime Rate to account
for such change, and shall also be changed to reflect adjustments
in the Applicable Margin.
"Pro Forma Debt Service" shall mean for the Borrower and its
Subsidiaries on a consolidated basis with respect to the next
succeeding complete four (4) fiscal quarter period following the
calculation date, and after giving effect to any Interest Rate
Hedge Agreements and Eurodollar Advances, the sum of the
aggregate of all cash principal, GAAP Interest Expense, fees and
other payments payable by such Persons during such period in
respect of Indebtedness for Money Borrowed, other than repayments
required under Section 2.7 hereof. For purposes of this
definition, where interest payments for the four-quarter period
immediately succeeding the calculation date are not fixed by way
of Interest Rate Hedge Agreements, Eurodollar Advances, or
otherwise for the entire period, interest shall be calculated on
such Indebtedness for Money Borrowed for periods for which
interest payments are not so fixed at the Eurodollar Basis (based
on the then current adjustment under Section 2.3(f) hereof) for a
Eurodollar Advance having an Interest Period of twelve (12)
months as determined on the date of calculation.
"Pro Forma Debt Service Ratio" shall mean, as of any
calculation date, the ratio of Adjusted Cash Flow to Pro Forma
Debt Service.
"Reportable Event" shall have the meaning set forth in
Title IV of ERISA.
"Request for Advance" shall mean a certificate designated as
a "Request for Advance," signed by an Authorized Signatory
requesting an Advance hereunder, which shall be in substantially
the form of Exhibit F-1 attached hereto with respect to the
initial Advance of the Loans, or Exhibit F-2 attached hereto with
respect to subsequent Advances, 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, the
Commitment under which the Advance is being requested and, with
respect to Eurodollar Advances, the Interest Period selected by
the Borrower, (ii) state that there shall not exist, on the date
of the requested Advance and after giving effect thereto, a
Default or an Event of Default, as of the date of such Advance
and after giving effect thereto and (iii) as to Advances which
will increase the principal amount of the Loans then outstanding,
specify the use of the proceeds of the Loans being requested.
"Restricted Payment" shall mean any direct or indirect
distribution, dividend or other payment to any Person (other than
to the Borrower or any wholly-owned Subsidiary of the Borrower)
on account of any general or limited partnership interest in, or
shares of capital stock or other securities of, the Borrower or
any of its Subsidiaries (other than stock dividends and stock
splits), including, without limitation, any warrants or other
rights or options to acquire shares of capital stock, general or
limited partnership interests or other securities of the Borrower
or any of its Subsidiaries, or any prepayment or repurchase by
the Borrower or any of its Subsidiaries of subordinated debt of
the Borrower or any of its Subsidiaries.
"Restricted Purchase" shall mean any payment on account of
the purchase, redemption, defeasance or other acquisition or
retirement of any general or limited partnership 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, general or limited partnership interests
or other securities of the Borrower or any of the Borrower's
Subsidiaries.
"Revolving Loan Commitment" shall mean the several
obligations of the Lenders to advance the sum of up to
$350,000,000.00 at any one time outstanding, in accordance with
their respective Commitment Ratios, to the Borrower pursuant to
the terms hereof, as such obligations may be reduced from time to
time pursuant to the terms hereof.
"Revolving Loans" shall mean, collectively, the amounts
advanced by the Lenders to the Borrower under the Revolving Loan
Commitment, not to exceed the amount of the Revolving Loan
Commitment, and evidenced by the Revolving Loan Notes.
"Revolving Loan Maturity Date" shall mean December 23, 2003
or such earlier date as payment of the remaining outstanding
principal amount of the Revolving Loans or of all remaining
outstanding Obligations shall be due (whether by acceleration or
otherwise).
"Revolving Loan Notes" shall mean those certain reducing,
revolving promissory notes in the aggregate original principal
amount of $350,000,000.00, one (1) issued to each of the Lenders
by the Borrower, each one substantially in the form of Exhibit E
attached hereto and any extensions, modifications, renewals or
replacements of or amendments to any of the foregoing.
"Richardson Family" shall mean the descendants of Lunsford
Richardson, Sr., their spouses, trusts, corporations in which
they have controlling interests and charitable organizations
established by such descendants.
"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.
"Security Agreement" shall mean that certain Amended and
Restated Security Agreement of even date herewith, between the
Borrower and the Collateral Agent, substantially in the form of
Exhibit G attached hereto.
"Security Documents" shall mean the Borrower Pledge
Agreement, the Subsidiary Guaranty, the Subsidiary Pledge
Agreements, the Security Agreement, the Subsidiary Security
Agreements, the Assignment of Rights by Partner, the Note Pledge
Agreement, any other agreement or instrument providing collateral
for the Obligations, whether now or hereafter in existence, and
any filings, instruments, agreements and documents related
thereto or to this Agreement and providing Collateral for any of
the Obligations.
"Security Interest" shall mean all Liens in favor of the
Collateral Agent, for the benefit of the Lenders, or in favor of
any Lender created hereunder or under any of the Security
Documents to secure the Obligations.
"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 of which more
than fifty percent (50%) of the outstanding partnership
interests, is at the time owned directly or indirectly by such
Person, or by one (1) or more Subsidiaries of such Person, or by
such Person and one (1) or more Subsidiaries of such Person, or
(b) any entity which is directly or indirectly controlled or
capable of being controlled by such Person, or by one (1) or more
Subsidiaries of such Person, or by such Person and one or more
Subsidiaries of such Person. "Subsidiaries" as used herein shall
mean the Subsidiaries of the Borrower. The Subsidiaries of the
Borrower as of the Agreement Date are set forth on Schedule 3
attached hereto, except as otherwise noted thereon. For all
purposes under this Agreement (except as otherwise set forth
herein), with respect to the Borrower, "Subsidiary" or
"Subsidiaries" shall not include any Unrestricted Subsidiary or
the VCS Subsidiary.
"Subsidiary Guaranty" shall mean each Subsidiary Guaranty in
favor of the Collateral Agent for the benefit of the Lenders,
given by a Subsidiary of the Borrower, each substantially in the
form of Exhibit H attached hereto, including, without limitation,
that certain Amended and Restated Master Subsidiary Guaranty of
even date herewith.
"Subsidiary Pledge Agreement" shall mean each Subsidiary
Pledge Agreement between a Subsidiary of the Borrower having one
(1) or more of its own Subsidiaries (other than the Partnership
Subsidiaries), on the one hand, and the Collateral Agent, on the
other hand, each substantially in the form of Exhibit I attached
hereto, including, without limitation, that certain Amended and
Restated Subsidiary Pledge Agreement of even date herewith.
"Subsidiary Security Agreement" shall mean each Subsidiary
Security Agreement between each of the Borrower's Subsidiaries
(other than the Partnership Subsidiaries), on the one hand, and
the Collateral Agent, on the other hand, each substantially in
the form of Exhibit J attached hereto, including, without
limitation, that certain Amended and Restated Master Subsidiary
Security Agreement of even date herewith.
"Term Loan" shall mean, collectively, the amounts advanced
by the Lenders to the Borrower on the Agreement Date under the
Term Loan Commitment, not to exceed the amount of the Term Loan
Commitment and evidenced by the Term Loan Notes.
"Term Loan Commitment" shall mean the several obligations of
the Lenders to advance the sum of up to $325,000,000.00 to the
Borrower on the Agreement Date, in accordance with their
respective Commitment Ratios pursuant to the terms hereof.
"Term Loan Maturity Date" shall mean December 23, 2003 or
such earlier date as payment of the remaining outstanding
principal amount of the Term Loan or of all remaining outstanding
Obligations shall be due (whether by acceleration or otherwise).
"Term Loan Notes" shall mean those certain term promissory
notes in the aggregate original principal amount of
$325,000,000.00, one (1) issued to each of the Lenders by the
Borrower, each one substantially in the form of Exhibit D
attached hereto, and any extensions, modifications, renewals or
replacements of or amendments to any of the foregoing.
"Total Debt" shall mean, for the Borrower and its
Subsidiaries on a consolidated basis as of any date, the sum
(without duplication) of (i) the outstanding principal amount of
the Loans, (ii) Indebtedness secured by a Lien permitted under
subsection (i) of the definition of "Permitted Liens," and
(iii) all other Indebtedness for Money Borrowed.
"Unrestricted Subsidiaries" shall mean any Subsidiaries (as
such term is defined in the first sentence of the definition of
"Subsidiary" herein) of the Borrower which are designated as
"Unrestricted Subsidiaries" in accordance with Section 7.16
hereof. The financial condition and operations of any
Unrestricted Subsidiary shall not be consolidated with those of
the Borrower and its Subsidiaries for financial reporting and
financial covenant purposes herein.
"Upstream Dividends" shall have the meaning set forth in
Section 7.18 hereof.
"Use of Proceeds Letter" shall mean that certain Use of
Proceeds Letter, substantially in the form of Exhibit K attached
hereto, to be delivered to the Administrative Agent and the
Lenders on the Agreement Date pursuant to Section 3.1(a)(xii)
hereof.
"VCS Subsidiary" shall mean Vanguard Cellular Services,
Inc., a Delaware corporation, which is an indirect wholly-owned
subsidiary of the Borrower, and any of its subsidiaries. The
financial condition and operations of the VCS Subsidiary shall
not be consolidated with those of the Borrower and its
Subsidiaries for financial covenant purposes herein.
Section 1.2 Interpretation. Each definition of an
agreement in this Article 1 shall, unless otherwise specified,
include such agreement as modified, amended, restated or
supplemented from time to time in accordance herewith, and except
where the context otherwise requires, the singular shall include
the plural and vice versa. Except where otherwise specifically
restricted, reference to a party to this Agreement or any other
Loan Document includes that party and its successors and assigns.
All capitalized terms used herein which are defined in Article 9
of the Uniform Commercial Code in effect in the State of New York
on the date hereof and which are not otherwise defined herein
shall have the same meanings herein as set forth therein.
Section 1.3 Cross References. Unless otherwise
specified, references in this Agreement and in each other Loan
Document to any Article or Section are references to such Article
or Section of this Agreement or such other Loan Document, as the
case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to
such clause in such Article, Section or definition.
ARTICLE 2
Loans
Section 2.1 The Loans.
(a) Term Loans. The Lenders agree, severally in
accordance with their respective Commitment Ratios and not
jointly, upon the terms and subject to the conditions of this
Agreement, to lend to the Borrower, on the Agreement Date, an
amount not to exceed, in the aggregate, the amount of the Term
Loan Commitment. Advances under the Term Loan Commitment may be
repaid and reborrowed as provided in Section 2.2(b) and
Section 2.2(c) hereof in order to effect changes in the Interest
Rate Bases applicable to the Advances thereunder, provided,
however, that there shall be no net increase in the aggregate
principal amount outstanding under the Term Loan Commitment at
any time following the making of the initial Advances of the Term
Loan on the Agreement Date.
(b) Revolving Loans. The Lenders agree, severally in
accordance with their respective Commitment Ratios 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. Advances under the Revolving Loan
Commitment may be repaid and then reborrowed as provided in
Section 2.2(b) and Section 2.2(c).
Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance under
the Term Loan Commitment or the Revolving Loan Commitment shall,
at the option of the Borrower, be made as a Prime Rate Advance or
a Eurodollar Advance; provided, however, that at such time as
there shall have occurred and be continuing a Default, and the
Administrative Agent shall have provided the Borrower with
written notice thereof, the Borrower shall not have the right to
re-borrow any Eurodollar Advances and all subsequent Advances,
whether under the Term Loan Commitment or Revolving Loan
Commitment, shall be made as Prime Rate Advances. 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) Prime Rate Advances.
(i) Advances. The Borrower shall give the
Administrative Agent in the case of Prime Rate Advances at
least two (2) 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. Upon receipt of such notice
from the Borrower, the Administrative Agent shall promptly
notify each Lender by telephone or telecopy of the contents
thereof.
(ii) Repayments and Reborrowings. Upon at least
three (3) Business Days' irrevocable prior written notice,
the Borrower may repay or prepay a Prime Rate Advance
without regard to its Payment Date and (i) reborrow all or a
portion of the principal amount thereof as one or more Prime
Rate Advances, (ii) reborrow all or a portion of the
principal thereof as one or more Eurodollar Advances, or
(iii) not reborrow all or any portion of such Prime Rate
Advance. On the date indicated by the Borrower, such Prime
Rate Advance shall be so repaid and, as applicable,
reborrowed.
(c) Eurodollar Advances.
(i) Advances. The Borrower shall give the
Administrative Agent in the case of Eurodollar 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. The Administrative Agent,
whose determination shall be conclusive, shall determine the
available Eurodollar Bases and shall notify the Borrower of
such Eurodollar Bases. The Borrower shall promptly notify
the Administrative Agent by telephone or telecopy and shall
immediately confirm any such telephonic notice in writing,
of its selection of a Eurodollar Basis and Interest Period
for such Advance. Upon receipt of such notice from the
Borrower, the Administrative Agent shall promptly notify
each Lender by telephone or telecopy of the contents
thereof.
(ii) Repayments and Reborrowings. At least three
(3) Business Days prior to each Payment Date for a
Eurodollar Advance, the Borrower shall give the
Administrative Agent written notice specifying whether all
or a portion of any Eurodollar Advance outstanding on the
Payment Date (i) is to be repaid and then reborrowed in
whole or in part as one (1) or more Eurodollar Advances,
(ii) is to be repaid and then reborrowed in whole or in part
as a Prime Rate Advance, or (iii) is to be repaid and not
reborrowed. Upon such Payment Date such Eurodollar Advance
will, subject to the provisions hereof, be so repaid and, as
applicable, reborrowed.
(d) Notification of Lenders. Upon receipt of a
Request for Advance, or a notice from the Borrower with respect
to any outstanding Advance prior to the Payment Date for such
Advance, the Administrative Agent shall promptly notify each
Lender by telephone or telecopy of the contents thereof and the
amount of such Bank's portion of such Advance. Each Lender
shall, not later than 12:00 noon (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 ratable 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, 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.
(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 such 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 plus one
percent (1%).
(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 Interest Rate
Basis applicable to the underlying Advance. The failure of
any Lender to fund its portion of any Advance shall not
relieve any other Lender of its obligation 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 no Default
then exists and the conditions precedent to borrowing in
Article 3 hereof have been satisfied, a Lender for any
reason fails or refuses to fund its portion of an Advance,
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 (whether by
repayment or prepayment) of the principal and interest due
in respect of such Advance, such non-funding Lender shall
not have the right (i) to vote regarding any issue on which
voting is required or advisable under this Agreement or any
other Loan Document calling for less than one hundred
percent (100%) Lender consent, and the amount of the Loans
of such Lender shall not be counted as outstanding for
purposes of determining "Majority Lenders" hereunder, or
(ii) to receive payments of principal, interest or fees from
the Borrower in respect of its unfunded Advances.
Section 2.3 Interest.
(a) On Prime Rate Advances. Interest on each Prime
Rate Advance shall be computed on the basis of a year of 365/366
days for the actual number of days elapsed and shall be payable
at the Prime Rate Basis for such Advance, in arrears on each
applicable Payment Date. Interest on Prime Rate Advances then
outstanding shall also be due and payable on the applicable
Maturity Date.
(b) On Eurodollar Advances. Interest on each
Eurodollar 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 Eurodollar Basis for such Advance, in arrears on the
applicable Payment Date, and, in addition, if the Interest Period
for a Eurodollar Advance exceeds three (3) months, interest on
such Eurodollar Advance shall also be due and payable in arrears
on every three-month anniversary of the beginning of such
Interest Period. Interest on Eurodollar Advances then
outstanding shall also be due and payable on the applicable
Maturity Date.
(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 Eurodollar Basis, or if
for any reason a determination of a Eurodollar Basis for any
Advance is not timely concluded, the Prime Rate Basis shall apply
to such Advance.
(d) Interest Upon Default. Immediately upon the
occurrence of an Event of Default, the outstanding principal
balance of the Loans shall bear interest at the Default Rate.
Such interest shall be payable on demand, and shall accrue until
the earliest of (a) waiver or cure (to the satisfaction of the
Lenders required under Section 11.12 hereof to waive) of the
applicable Default, (b) agreement by the Majority Lenders to
rescind the charging of interest at the Default Rate, or
(c) payment in full of the Obligations.
(e) Eurodollar Advance Contracts. At no time may the
number of outstanding Eurodollar Advances exceed seven (7).
(f) Applicable Margin. With respect to any Advance
under the Term Loan Commitment or the Revolving Loan Commitment,
the Applicable Margin shall be the interest rate margin
determined by the Administrative Agent based upon the Leverage
Ratio for the most recent fiscal quarter end, effective as of the
second Business Day after the financial statements referred to in
Section 6.1 or 6.2 hereof, as applicable, are required to be
furnished by the Borrower to the Administrative Agent and each
Lender for the fiscal quarter most recently ended, expressed as a
per annum rate of interest as follows:
Prime Rate Eurodollar
Advance Advance
Leverage Ratio Applicable Margin Applicable Margin
Greater than or
equal to 10.00:1 1.375% 2.625%
8.00:1 or greater but
less than 10.00:1 1.000% 2.250%
7.00:1 or greater but
less than 8.00:1 0.750% 2.000%
6.00:1 or greater but
less than 7.00:1 0.375% 1.625%
5.00:1 or greater but
less than 6.00:1 0.125% 1.375%
Less than 5.00:1 0.000% 1.125%
In the event that the Borrower fails to timely provide the
financial statements referred to above in accordance with the
terms of Section 6.1 or 6.2 hereof, as applicable, and without
prejudice to any additional rights under Section 8.2 hereof, the
Leverage Ratio shall be deemed to be greater than 10.00:1 until
the actual delivery of such statements.
Section 2.4 Scheduled Commitment Reductions and
Repayment.
(a) Term Loan. Commencing March 31, 1998 and on the
last day of each calendar quarter thereafter, principal amounts
outstanding under the Term Loan Commitment shall be repaid as set
forth below:
Percentage of Principal
Amount of Term Loan
Outstanding as of
March 30, 1998 to be
Dates of Repayment Repaid Each Quarter
March 31, 1998, June 30, 1998,
September 30, 1998 and 1.875%
December 31, 1998
March 31, 1999, June 30, 1999,
September 30, 1999 and 3.125%
December 31, 1999
March 31, 2000, June 30, 2000,
September 30, 2000 and 3.750%
December 31, 2000
March 31, 2001, June 30, 2001,
September 30, 2001 and 5.000%
December 31, 2001
March 31, 2002, June 30, 2002,
September 30, 2002 and 5.625%
December 31, 2002
March 31, 2003, June 30, 2003,
September 30, 2003 and 5.625%
December 23, 2003
Any remaining unpaid principal and interest under the Term Loan
Commitment shall be due and payable in full on the Term Loan
Maturity Date.
(b) Revolving Loan. Commencing March 31, 1998 and at
the end of each calendar quarter thereafter, the Revolving Loan
Commitment as in effect on March 30, 1998 shall be automatically
reduced by the percentages set forth below:
Quarterly Percentage
Reduction of Revolving Loan
Commitment In Effect on
Dates of Reduction March 30, 1998
March 31, 1998, June 30, 1998,
September 30, 1998 and 1.875%
December 31, 1998
March 31, 1999, June 30, 1999,
September 30, 1999 and 3.125%
December 31, 1999
March 31, 2000, June 30, 2000,
September 30, 2000 and 3.750%
December 31, 2000
March 31, 2001, June 30, 2001,
September 30, 2001 and 5.000%
December 31, 2001
March 31, 2002, June 30, 2002,
September 30, 2002 and 5.625%
December 31, 2002
March 31, 2003, June 30, 2003,
September 30, 2003 and 5.625%
December 23, 2003
The Borrower shall make a repayment of the Revolving Loans
outstanding, together with accrued interest thereon, on or before
the effective date of each reduction in the Revolving Loan
Commitment under this Section 2.4(b), such that the aggregate
principal amount of the Revolving Loans outstanding at no time
exceeds the Revolving Loan Commitment as so reduced. In
addition, any remaining unpaid principal and interest under the
Revolving Loan Commitment shall be due and payable in full on the
Revolving Loan Maturity Date.
Section 2.5 Fees. The Borrower agrees to pay to the
Lenders, including the Agents in their capacities as Lenders,
such fees as are mutually agreed upon and as are described in fee
letters dated as of the Agreement Date, one between the Borrower
and each of the Lenders. All of such fees are due and payable
and shall be paid not later than the Agreement Date. In
addition, the Borrower agrees to pay each of the Lenders, in
accordance with their respective Commitment Ratios, a commitment
fee on the aggregate unborrowed balance of the Revolving Loan
Commitment, for each day from the Agreement Date until the
Revolving Loan Maturity Date, at a rate of one-half of one
percent (1/2%) 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, commencing on December 31, 1994,
shall be fully earned when due, and shall be 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 2.6 Optional Prepayments; Revolving Loan
Commitment Reduction.
(a) Prepayment of Advances. The principal amount of
any Prime Rate Advance may be prepaid in full or in part at any
time, without penalty and without regard to the Payment Date for
such Advance, upon three (3) Business Days' prior written notice
to the Administrative Agent of such prepayment. Eurodollar
Advances may be prepaid prior to the applicable Payment Date,
upon three (3) Business Days' prior written notice to the
Administrative Agent, provided that the Borrower shall reimburse
the Lenders and the Administrative Agent, on demand, 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. Partial prepayments shall be in a
principal amount of not less than $2,000,000.00, and in an
integral multiple of $500,000.00.
(b) Prepayment of Loans. Amounts permanently prepaid
on the Loans whether by way of refinancing, prepayment of
Advances under the Term Loan, prepayment of Advances under the
Revolving Loan Commitment accompanied by a corresponding
reduction in the Revolving Loan Commitment or otherwise, shall be
applied to principal, first, to prepay the outstanding principal
amount of the Term Loan pro rata over the scheduled repayment
schedule set forth in Section 2.4(a) hereof, and, second, to
permanently reduce the Revolving Loan Commitment by the remaining
amount of such prepayment, pro rata over the Revolving Loan
Commitment reduction schedule set forth in Section 2.4(b) hereof,
and to prepay the principal amount outstanding under the
Revolving Loan Commitment to the extent necessary to prevent the
Revolving Loans outstanding from exceeding the Revolving Loan
Commitment as so reduced. Amounts applied to the Revolving Loans
shall permanently reduce the Revolving Loan Commitment in an
equal amount. Each such prepayment shall be accompanied by a
payment of all accrued but unpaid interest and fees with respect
to the amount so prepaid. A notice of prepayment shall be
irrevocable. Upon receipt of any notice of prepayment, the
Administrative Agent shall promptly notify each Lender of the
contents thereof by telephone or telecopy and of such Lender's
ratable portion of the prepayment. Any portion of the Loans
which is permanently prepaid may not be reborrowed.
(c) Revolving Loan Commitment Reduction. The Borrower
may without penalty (but subject to Section 2.10 hereof) at any
time terminate or permanently reduce all or any part of the
Revolving Loan Commitment by giving the Administrative Agent and
the Lenders at least ten (10) Business Days' prior written notice
thereof; provided, however, that any reduction shall reduce the
Revolving Loan Commitment in a principal amount of at least
$2,000,000.00 and in an integral multiple of $500,000.00. The
Borrower shall make any required repayment or prepayment of Loans
outstanding under the Revolving Loan Commitment, plus accrued
interest on such portion of the Revolving Loans and any accrued
fees in respect thereof, on or before the effective date of the
reduction of the Revolving Loan Commitment, so that the principal
amount of the Revolving Loans outstanding after such repayment or
prepayment does not exceed the Revolving Loan Commitment as so
reduced. The Borrower shall not have any right to rescind any
termination or reduction pursuant to this Section 2.6(c).
Reductions in the Revolving Loan Commitment after March 30, 1998
pursuant to this Section 2.6(c) shall be applied pro rata over
the Revolving Loan Commitment reduction schedule set forth in
Section 2.4(b) hereof.
Section 2.7 Mandatory Prepayments. In addition to the
scheduled repayments and Revolving Loan Commitment reductions
provided for in Section 2.4 hereof, the Borrower shall prepay the
Obligations as follows:
(a) Repayment From Excess Cash Flow. On or prior to
April 30, 1998 and on or prior to each April 30th thereafter
during the term of this Agreement, the Borrower shall make an
additional prepayment of the outstanding principal amount of the
Loans in an amount equal to fifty percent (50%) of the Excess
Cash Flow for the most recently ended calendar year, commencing
with the calendar year ending December 31, 1997. Amounts so
prepaid shall be applied to the Term Loan or to reduce the
Revolving Loan Commitment in the order of priority set forth in
Section 2.6(b) hereof. Accrued interest on the principal amount
of the Loans being prepaid pursuant to this Section 2.7(a) to the
date of such prepayment will be paid by the Borrower concurrently
with such principal prepayment.
(b) From Permitted Asset Sales. Except with respect
to Permitted Asset Sales having Net Proceeds of not more than
$500,000.00 with respect to any single transaction or related
series of transactions and having Net Proceeds of not more than
$5,000,000.00 in the aggregate during the term of this Agreement,
the Net Proceeds from any Permitted Asset Sale shall be applied
as follows:
(i) Except as otherwise provided in
Section 2.7(b)(ii) hereof, to permanently reduce the
outstanding principal amount of the Term Loan and to reduce
the Revolving Loan Commitment in the order of priority set
forth in Section 2.6(b) hereof. Such Net Proceeds shall be
paid by the Borrower to the Administrative Agent, for the
benefit of the Lenders, on the Business Day following the
date of such Permitted Asset Sale; or
(ii) At the Borrower's election, so long as no
Default then exists or would be caused thereby, to purchase
one or more Allowable Cellular Systems, the aggregate
purchase price of which does not exceed the sum of such Net
Proceeds plus Advances otherwise available for Acquisitions
hereunder, so long as the Borrower or one (1) of its
Subsidiaries shall have consummated the acquisition of such
Allowable Cellular System or Systems, in one (1) or more
transactions, not more than twelve (12) months following the
date of such Permitted Asset Sale, and, if the Leverage
Ratio at the time any such transaction(s) is consummated is
greater than or equal to 7.5:1, so long as the purchase
price for any such Allowable Cellular System is less than
$175.00 per POP. In the event the Borrower elects to
exercise its right under this Section 2.7(b)(ii), the
Borrower shall so notify the Administrative Agent not less
than five (5) Business Days prior to the proposed date of
the closing of the Permitted Asset Sale and shall, upon its
or any Subsidiary's receipt of any Net Proceeds with respect
to such Permitted Asset Sale, remit such Net Proceeds to the
Administrative Agent. The amount so remitted shall be used,
first, to pay the outstanding principal under the Revolving
Loans (but the amount so prepaid shall not reduce the
Revolving Loan Commitment) and second, to the extent of any
excess, to be held in trust in an interest-bearing account
with the Administrative Agent (the "Net Proceeds Trust") for
the benefit of the Borrower, to be applied to the ultimate
purchase of the Allowable Cellular System or Systems, as
hereinafter provided. Any such payment of principal under
the Revolving Loans shall be accompanied by a payment of all
accrued but unpaid interest and fees in respect of the
principal amount so paid. The Borrower or one (1) of its
Subsidiaries shall consummate such purchase(s) of the
Allowable Cellular System or Systems not more than twelve
(12) months following the applicable Permitted Asset Sale.
To the extent that the Borrower or one (1) of its
Subsidiaries shall not have consummated any such purchase(s)
as of the last day of the twelve (12) month period following
such Permitted Asset Sale (for whatever reason, including
the occurrence of a Default), or the aggregate purchase
price of all such Allowable Cellular Systems purchased
within twelve (12) months following the applicable Permitted
Asset Sale shall be less than the Net Proceeds of such
Permitted Asset Sale, any funds held in the Net Proceeds
Trust shall be applied by the Administrative Agent in the
manner set forth in Section 2.7(b)(i) hereof and, to the
extent that Net Proceeds had been used to repay outstanding
Revolving Loans, the Borrower shall cause to be reduced, in
an identical aggregate amount, the principal amount
outstanding under the Term Loan and the Revolving Loan
Commitment in the manner set forth in Section 2.7(b)(i)
hereof, whether by requesting an Advance under the Revolving
Loan Commitment or otherwise.
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. One (1) Term Loan Note and one (1) Revolving Loan
Note shall be payable to the order of each Lender for such
Facility, in accordance with their respective Commitment Ratios.
The Notes shall be issued by the Borrower to the Lenders and
shall be duly executed and delivered by one (1) or more
Authorized Signatories of the Borrower.
(b) Each Lender may open and maintain on its books in
the name of the Borrower a loan account with respect to the Loans
and interest thereon. Each Lender which opens such a loan
account shall debit such loan account for the principal amount 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 the Loans and accrued interest thereon, 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.
Section 2.9 Manner of Payment.
(a) Each payment (including 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 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.
(b) The Borrower agrees to pay principal, interest,
fees and all other amounts due hereunder, under the Notes or
under any other Loan Document without set-off or counterclaim or
any deduction whatsoever and free and clear of all taxes, levies
and withholding. If the Borrower is required by Applicable Law
to deduct any taxes from or in respect of any sum payable to any
Agent or any Lender hereunder, under any Note or under any other
Loan Document: (i) the sum payable hereunder or thereunder, as
applicable, shall be increased to the extent necessary to provide
that, after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.9(b)),
such Agent or such Lender, as applicable, receives an amount
equal to the sum it would have received had no such deductions
been made; (ii) the Borrower shall make such deductions from such
sums payable hereunder or thereunder, as applicable, and pay the
amount so deducted to the relevant taxing authority as required
by Applicable Law; and (iii) the Borrower shall provide such
Agent or such Lender, as applicable, with evidence satisfactory
to such Agent or such Lender, as applicable, that such deducted
amounts have been paid to the relevant taxing authority.
(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
Agents, 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 Agents 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 Notes.
(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 out-of-pocket expenses in connection with (i) failure
by the Borrower to borrow or reborrow any Eurodollar Advance
after having given notice of its intention to borrow or reborrow
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 of any Eurodollar 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
out-of-pocket expenses, as set forth in writing and accompanied
by calculations in reasonable detail demonstrating the basis for
its demand, shall be presumptively correct.
(b) Losses subject to reimbursement hereunder shall
include, without limiting the generality of the foregoing,
expenses incurred by any Lender or any participant of such Lender
permitted hereunder in connection with the re-employment of funds
prepaid, repaid, not borrowed, or paid, as the case may be.
Section 2.11 Pro Rata Treatment.
(a) Advances. Each Advance shall be made pro rata on
the basis of the respective Commitment Ratios of the Lenders.
(b) Payments. Each payment and prepayment of
principal of the Loans and, except as provided in Article 10
hereof, each payment of interest on the Loans, shall be made to
the Lenders pro rata on the basis of their respective unpaid
principal amounts outstanding under the applicable Facility
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 made by it 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 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 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.
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 with any directive regarding capital adequacy
(whether or not having the force of law) of any such governmental
authority, central 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 Commitments 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, 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) day after the date of demand, 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.
Section 2.13 Lender Tax Forms. On or prior to the
Agreement Date and on or prior to the first (1st) Business Day of
each calendar year thereafter, each Lender which is organized in
a jurisdiction other than the United States shall, to the extent
permissible under Applicable Law, provide the Administrative
Agent and the Borrower with two (2) 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 properly executed
Internal Revenue Service Form W-8 or W-9, as the case may be,
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.
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to Initial Advance of
Loans. The obligation of the Lenders to undertake the
Commitments and to make the initial Advances of the Loans
hereunder is subject to the prior fulfillment of each of the
following conditions:
(a) The Managing Agents or the Lenders, as
appropriate, shall have received each of the following, in form
and substance satisfactory to each of them:
(i) duly executed Notes;
(ii) duly executed Amended and Restated Borrower
Pledge Agreement, together with appropriate stock
certificates and stock powers;
(iii) duly executed Security Agreement, together
with appropriate UCC-1 financing statement forms;
(iv) duly executed Amended and Restated Master
Subsidiary Security Agreement, executed and delivered by
each Subsidiary of the Borrower (other than the Partnership
Subsidiaries), together with appropriate UCC-1 financing
statement forms;
(v) duly executed Amended and Restated
Subsidiary Pledge Agreement from each Subsidiary of the
Borrower which has a Subsidiary (other than the Partnership
Subsidiaries), together with appropriate stock certificates
and stock powers;
(vi) duly executed Amended and Restated Master
Subsidiary Guaranty executed and delivered by each
Subsidiary of the Borrower (other than the Partnership
Subsidiaries);
(vii) duly executed Amended and Restated
Assignment of Rights by Partner from the Borrower or any
Subsidiary which holds partnership interests in a
Subsidiary of the Borrower, together with appropriate UCC-1
financing statement forms;
(viii) duly executed Note Pledge Agreement,
together with appropriate notes;
(ix) 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;
(x) legal opinions of (i) Richard C. Rowlenson,
Senior Vice President and General Counsel; (ii) Schell,
Bray, Aycock, Abel & Livingston, North Carolina counsel;
(iii) Latham & Watkins, FCC counsel and New York counsel;
and (iv) Read and Laniado, New York regulatory counsel;
each as counsel to the Borrower and its Subsidiaries,
addressed to each Lender and the Managing Agents, and dated
as of the Agreement Date;
(xi) duly executed Request for Advance for the
initial Advance of the Loans;
(xii) duly executed Use of Proceeds Letter;
(xiii) duly executed Certificate of Financial
Condition for the Borrower and its Subsidiaries on a
consolidated basis, given by the chief financial officer of
the Borrower;
(xiv) audited financial statements of the Borrower
and its Subsidiaries and the VCS Subsidiary on a
consolidated basis for the fiscal year ended December 31,
1993, together with unaudited financial statements of the
Borrower and its Subsidiaries and the VCS Subsidiary on a
consolidated basis for the fiscal quarters ending March 31,
1994, June 30, 1994 and September 30, 1994;
(xv) any required FCC consents or other required
consents to the closing of this Agreement 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 Managing Agents and the
Lenders;
(xvi) the loan certificate of the Borrower, in
substantially the form attached hereto as Exhibit L,
including a certificate of incumbency with respect to each
Authorized Signatory, together with appropriate attachments
which shall include without limitation, the following
items: (A) a copy of the Certificate or Articles of
Incorporation of the Borrower, certified to be true,
complete and correct by the North Carolina Secretary of
State, (B) certificates of good standing or foreign
qualification for the Borrower issued by the Secretary of
State or similar state official for each state in which the
Borrower is required to qualify to do business, (C) a true,
complete and correct copy of the By-Laws of the Borrower,
as in effect on the Agreement Date, (D) a true, complete
and correct copy of the resolutions of the Borrower
authorizing it to execute, deliver and perform this
Agreement and the other Loan Documents and (E) a true,
complete and correct copy of any shareholders' agreements
or voting trust agreements in effect with respect to the
stock of the Borrower;
(xvii) a loan certificate from each Subsidiary of
the Borrower, in substantially the form attached hereto as
Exhibit M, including a certificate of incumbency with
respect to each officer authorized to execute Loan
Documents on behalf of such Subsidiary, together with
appropriate attachments which shall include, without
limitation, the following items, if a corporation, and the
analogous items, if a partnership which is a party to any
Loan Document, together with such items for its general
partner: (A) a copy of the Certificate or Articles of
Incorporation of such Subsidiary, certified to be true,
complete and correct by the Secretary of State from the
jurisdiction of incorporation of such Subsidiary,
(B) certificates of good standing or foreign qualification
for such Subsidiary issued by the Secretary of State or
similar state official for each state in which such
Subsidiary is incorporated or required to qualify to do
business, (C) a true, complete and correct copy of the By-
Laws of such Subsidiary, as in effect on the Agreement
Date, (D) a true, complete and correct copy of the
resolutions of such Subsidiary authorizing it to execute,
deliver and perform the Loan Documents to which it is a
party and (E) a true, complete and correct copy of any
shareholders' agreements or voting trust agreements in
effect with respect to the stock of such Subsidiary;
(xviii) pay off letters and duly executed UCC-3
releases and other forms of satisfaction terminating any
Liens (other than Permitted Liens described in clauses (a)
through (j) of the definition thereof) on the assets of the
Borrower or any of its Subsidiaries; and
(xix) all such other documents as either Managing
Agent or any Lender may reasonably request, certified by an
appropriate governmental official or an Authorized
Signatory if so requested.
(b) The Managing Agents and the Lenders shall have
received evidence satisfactory to them that all Necessary
Authorizations, including 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 threatened
reversal or cancellation and the Managing Agents and the Lenders
shall have received a certificate of an Authorized Signatory so
stating.
(c) The Managing Agents, the Lenders and Powell,
Goldstein, Frazer & Murphy, special counsel to Managing Agents,
shall have received payment of all fees due and payable on the
Agreement Date in respect of the closing of the transaction
contemplated hereby.
Section 3.2 Conditions Precedent to Each Advance. The
obligation of the Lenders to make each Advance 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 under
this Agreement (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, and under the other Loan
Documents, 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
shall then exist or be caused thereby;
(b) With respect to Advances which, if funded, would
increase the aggregate principal amount of Loans outstanding
hereunder, the Administrative Agent and the Lenders shall have
received a duly executed Request for Advance;
(c) Each of the Managing Agents and the Lenders shall
have received all such other certificates, reports, statements,
opinions of counsel or other documents as the Managing Agents or
any Lender may reasonably request;
(d) With respect to any Advance relating to any
Acquisition, Investment, or the formation of any Subsidiary which
is permitted hereunder, the Managing Agents and the Lenders shall
have received such documents and instruments relating to such
Acquisition, Investment, or formation of a new Subsidiary as are
described in Section 5.13 hereof or otherwise required herein;
and
(e) There shall have occurred no Materially Adverse
Effect and no event which, in the reasonable opinion of the
Managing Agents, 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 in favor of each 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 North
Carolina. The Borrower has the corporate power and authority to
own its properties and to carry on its business as now being and
hereafter proposed to be conducted. Each Subsidiary of the
Borrower is a corporation or partnership, as applicable, duly
organized, validly existing and in good standing under the laws
of the state of its formation and has the corporate or
partnership power (as applicable) and authority to own its
properties and to carry on its business as now being and
hereafter proposed 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 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 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).
(c) Subsidiaries: Authorization; Enforceability. The
Borrower's Subsidiaries, the VCS Subsidiary and the Unrestricted
Subsidiaries and the Borrower's direct and indirect ownership
thereof are as set forth as of the Agreement Date on Schedule 3
attached hereto and the Borrower has the unrestricted right to
vote the issued and outstanding shares of the Subsidiaries shown
thereon; such shares of such Subsidiaries and the Unrestricted
Subsidiaries have been duly authorized and issued and are fully
paid and nonassessable. Each Subsidiary of the Borrower has the
corporate power and has taken all necessary corporate 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 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 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 any such 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 Subsidiary of the Borrower, (iii) conflict
with, result in a breach of, or constitute a default under the
certificate or articles of incorporation or by-laws, as amended,
of the Borrower or of any Subsidiary of the Borrower, or under
any 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 any of 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 is a holding company for
its Subsidiaries and, together with its Subsidiaries, is
primarily engaged in the business of owning, operating and
investing in Cellular Systems and other wireless communications
and related businesses. The Unrestricted Subsidiaries are
engaged solely in the business of owning, operating and investing
in wireless communications businesses.
(f) Licenses; Necessary Authorizations. The Licenses
have been duly authorized by the grantors thereof 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. Neither any License nor any
Necessary Authorization is the subject of any pending or, to the
best of the Borrower's knowledge, threatened revocation.
(g) Compliance with Law. The Borrower and its
Subsidiaries, the VCS Subsidiary and the Unrestricted
Subsidiaries are in substantial compliance with all material
Applicable Law.
(h) Title to Assets. The Borrower has good, legal and
marketable title to, or a valid leasehold interest in, all of its
assets. Each of the Borrower's Subsidiaries has good, legal and
marketable title to, or a valid leasehold interest in, all of its
assets. None of such properties or assets 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 best of the
Borrower's knowledge, threatened against or in any other manner
relating adversely to, the Borrower, any of its Subsidiaries, the
VCS Subsidiary or any Unrestricted Subsidiary, 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 for collection suits initiated by the Borrower, any
Subsidiary of the Borrower, the VCS Subsidiary or any
Unrestricted Subsidiary with respect to any Indebtedness of any
customer of such Person to such Person of $20,000.00 or less, or
as otherwise described on Schedule 4 attached hereto as of the
Agreement Date or as subsequently disclosed to the Administrative
Agent and the Lenders pursuant to Section 6.5 hereof; and, except
as expressly set forth on Schedule 4, no such action, suit,
proceeding or investigation (i) calls into question the validity
or enforceability of this Agreement or any other Loan Document,
(ii) challenges the continued possession and use of any License
granted by the FCC, by the Borrower, its Subsidiaries, or any
Person in which the Borrower has, directly or indirectly, an
Investment, or (iii) is reasonably likely to result in an adverse
decision to the Borrower or any Subsidiary of the Borrower or the
VCS Subsidiary or any Unrestricted Subsidiary, which adverse
decision would have a Materially Adverse Effect.
(j) Taxes. All federal, state and other tax returns
of the Borrower, each of its Subsidiaries, the VCS Subsidiary and
each Unrestricted Subsidiary 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, any of its Subsidiaries, the VCS Subsidiary or any
Unrestricted Subsidiary or imposed upon the Borrower, any of its
Subsidiaries, the VCS Subsidiary or any Unrestricted Subsidiary
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, any of its
Subsidiaries, the VCS Subsidiary or any Unrestricted Subsidiary
is diligently contesting in good faith by appropriate
proceedings, (y) for which adequate reserves have been provided
on the books of the Borrower or the Subsidiary of the Borrower or
the VCS Subsidiary or Unrestricted Subsidiary involved in
accordance with GAAP 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, each of its Subsidiaries,
the VCS Subsidiary and of each Unrestricted Subsidiary 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 Managing Agents and the Lenders
a Form 10-K for the Borrower and its Subsidiaries on a
consolidated basis for the fiscal year ended December 31, 1993, a
Form 10-Q for the quarter ended September 30, 1994 and audited
financial statements for the fiscal year ended December 31, 1993,
all of which, together with other financial statements furnished
to the Lenders subsequent to the Agreement Date are, to the best
knowledge of the Borrower, complete and correct in all material
respects and present fairly in accordance with GAAP the financial
condition of the Borrower and its Subsidiaries on a consolidated
basis on and as at such dates and the results of operations for
the periods then ended (subject, in the case of unaudited
financial statements, to normal year-end adjustments). 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 anticipated losses of the Borrower or any of
its Subsidiaries other than those which have been previously
disclosed in writing to the Administrative Agent and the Lenders
and identified as such.
(l) No Adverse Change. Since December 31, 1993, there
has occurred no event which has had or which could have a
Materially Adverse Effect.
(m) ERISA. The Borrower and each Subsidiary of the
Borrower and each of their respective Plans are in compliance
with ERISA and the Code and neither the Borrower nor any of its
Subsidiaries has incurred any accumulated funding deficiency with
respect to any such Plan within the meaning of ERISA or the
Code. The Borrower, each of its Subsidiaries, and each other
ERISA Affiliate have complied with all requirements of
Section 4980B of the Code and Sections 601 through 609 of ERISA.
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 Subsidiaries
has incurred any material liability to PBGC in connection with
any such Plan. 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" (as defined in Section 4041 of
ERISA) due under the Plan upon termination. No Reportable Event
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. Neither the
Borrower nor any of its Subsidiaries is a participant in or is
obligated to make any payment to a Multiemployer Plan. Neither
the Borrower nor any of its Subsidiaries (1) has had either a
complete withdrawal or a partial withdrawal under Section 4201
et. seq. of ERISA from a Multiemployer Plan which had "unfunded
vested benefits" within the meaning of Section 4211 of ERISA or
(2) has ever received a notice and demand from the plan sponsor
of a Multiemployer Plan under Section 4219(b)(1) of ERISA. For
purposes of this Section 4.1(m), the term "Subsidiaries" shall
include the VCS Subsidiary and the Unrestricted Subsidiaries.
(n) Compliance with Regulations G, T, U and X.
Neither the Borrower nor any Subsidiary of the Borrower nor any
Unrestricted Subsidiary is engaged principally in or has as one
of its important activities the business of purchasing or
carrying, or extending credit for the purpose of purchasing or
carrying, any margin stock within the meaning of Regulations G,
T, U and X of the Board of Governors of the Federal Reserve
System; nor will any proceeds of the Loans be used for such
purpose, other than Investments permitted hereunder in Geotek
Communications, Inc., a Delaware corporation, which shall be
made, if at all, in compliance with the provisions of such
Regulations G, T, U and X. Not more than twenty-five percent
(25%) (or such greater percentage as provided in the exclusions
from the definition of "indirectly secured" contained in such
Regulations G, T, U and X in effect at the time of the making of
such Advance) of the value of the assets of the Borrower and its
Subsidiaries is derived from assets constituting margin stock.
(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 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. 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.
(q) Absence of Default, Etc. The Borrower and its
Subsidiaries are in compliance in all respects with all of the
provisions of their respective Certificates or Articles of
Incorporation, By-Laws and Partnership Agreements, and no event
has occurred or failed to occur (including, without limitation,
any matter which could create a Default by cross-default) which
has not been remedied or waived, the occurrence or non-occurrence
of which constitutes, or with the passage of time or giving of
notice or both would constitute, (i) an Event of 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 $1,000,000.00 or more, 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 respective properties may be
bound or affected. Neither the Borrower nor any of its
Subsidiaries is a party to or bound by any contract or agreement
continuing after the Agreement Date, or is bound by any
Applicable Law, that could have a Materially Adverse Effect or
result in the loss of any License issued by the FCC.
(r) Accuracy and Completeness of Information. All
information, reports, prospectuses and other papers and data
relating to the Borrower or any of its Subsidiaries, any
Unrestricted Subsidiary or the VCS Subsidiary and furnished by or
on behalf of the Borrower or any of its Subsidiaries, any
Unrestricted Subsidiary or the VCS Subsidiary to the Managing
Agents or the Lenders were, at the time furnished, true, complete
and correct in all material respects to the extent necessary to
give the Managing Agents and the Lenders true and accurate
knowledge of the subject matter. No fact or situation is
currently known to the Borrower which has had or which could
reasonably be expected to have a Materially Adverse Effect.
(s) Agreements with Affiliates and Management
Agreements. Except as set forth as of the Agreement Date on
Schedule 5 attached hereto, and 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, neither the Borrower nor any of its Subsidiaries
has (i) any written agreements or binding arrangements of any
kind with any Affiliate (other than the Borrower or any of its
Subsidiaries) or (ii) any management or consulting agreements of
any kind with any Affiliate (other than the Borrower or any of
its Subsidiaries), other than employment agreements.
(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 the Borrower and each
of its Subsidiaries have paid all minimum and overtime wages
required by law to be paid to their respective employees.
(u) Priority. Except for Liens existing as of the
Agreement Date but being terminated simultaneously with the
making of the initial Advances hereunder in accordance with
Section 3.1(a)(xviii) hereof, the Security Interest is a valid
and perfected first priority security interest in the Collateral
in favor of the Collateral Agent, for the benefit of itself and
the Lenders, securing, in accordance with the terms of the
Security Documents, the outstanding 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 outstanding 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 unaudited
financial statements of the Borrower for the fiscal quarter ended
September 30, 1994, and except for the initial Advances
hereunder, neither the Borrower nor any of its Subsidiaries has
outstanding, as of the Agreement Date, any Indebtedness for Money
Borrowed.
(w) Investments. All Investments of the Borrower and
its Subsidiaries are shown as of the Agreement Date on Schedule 6
attached hereto.
Section 4.2 Survival of Representations and Warranties,
etc. All representations and warranties made under this
Agreement 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 relating specifically to an earlier
date or time period. All representations and warranties made
under this Agreement shall survive, and not be waived by, the
execution hereof by the Lenders and the Agents, any investigation
or inquiry by any Lender or any 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 Borrower shall have the right to borrow hereunder (whether
or not the conditions to borrowing have been or can be
fulfilled), and unless the Majority 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:
(i) preserve and maintain its existence, rights,
franchises, licenses and privileges in the state of its
incorporation, including, without limiting the foregoing,
the Licenses and all other Necessary Authorizations; and
(ii) 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.
Section 5.2 Business; Compliance with Applicable Law. The
Borrower will, and will cause each of its Subsidiaries to,
(a) engage primarily in the business of owning, operating and
investing in Cellular Systems and other wireless communications
and related businesses and (b) comply with the requirements of
all Applicable Law. The Borrower will cause each Unrestricted
Subsidiary to (a) engage solely in the business of owning,
operating and investing in wireless communication businesses, and
(b) comply in all material respects with the requirements of all
Applicable Law. The Borrower will cause the VCS Subsidiary to
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.
Section 5.4 Accounting Methods and Financial Records. The
Borrower will, and will cause each of its Subsidiaries on a
consolidated basis with the Borrower to, and will cause the
Unrestricted Subsidiaries separately 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 its Subsidiaries will maintain a fiscal year
ending on December 31.
Section 5.5 Insurance. The Borrower will, and will cause
each of its Subsidiaries and the Unrestricted Subsidiaries to:
(a) Maintain insurance including, but not limited to,
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 and the
Unrestricted Subsidiaries as is prudent and reasonably acceptable
to the Managing Agents (including, without limitation, larceny,
embezzlement, or other criminal misappropriation insurance).
(b) Keep their respective assets insured by insurers
on terms and in a manner reasonably acceptable to the Managing
Agents against loss or damage by fire, 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 Managing Agents, all premiums thereon to be paid by the
Borrower and its Subsidiaries and the Unrestricted Subsidiaries.
(c) Require that each insurance policy relating to the
Borrower or any of its Subsidiaries provide for at least thirty
(30) days' prior written notice to the Collateral Agent of any
termination of or proposed cancellation or nonrenewal of such
policy, and name the Collateral Agent as additional named loss
payee and 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, the VCS Subsidiary
and each Unrestricted Subsidiary to, pay and discharge all taxes,
including, without limitation, withholding taxes, 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 in accordance with GAAP, 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, the VCS Subsidiary and each Unrestricted Subsidiary
to, timely file all information returns required by federal,
state or local tax authorities.
Section 5.7 Visits and Inspections. The Borrower will, and
will cause each of its Subsidiaries to, permit representatives of
any of the Agents and any of the Lenders, upon 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 condition,
results of operations and business prospects. The Borrower and
each of its Subsidiaries will also permit representatives of any
of the Agents and any of the Lenders to discuss with their
respective auditors their respective businesses, assets,
liabilities, financial condition, results of operations and
business prospects.
Section 5.8 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,
other than (i) amounts diligently disputed in good faith and for
which adequate reserves have been set aside in accordance with
GAAP and (ii) trade payables, which shall be paid in a manner
consistent with past practice.
Section 5.9 Use of Proceeds. The Borrower will use the
aggregate proceeds of all Advances under the Loans (i) to
refinance existing Indebtedness for Money Borrowed, (ii) to fund
Capital Expenditures, (iii) to acquire Allowable Cellular Systems
and to make Investments as permitted hereunder and (iv) for
working capital and other general corporate purposes. No
proceeds of Advances hereunder shall be used for the purpose of
purchasing or carrying or extending credit for the purpose of
purchasing or carrying any margin stock within the meaning of
Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System other than Investments in Geotek
Communications, Inc., a Delaware corporation permitted hereunder,
which shall be made, if at all, in compliance with the provisions
of such Regulations G, T, U and X.
Section 5.10 Real Estate. Subject to Section 7.14 hereof,
the Borrower will, and will cause its Subsidiaries to, grant a
mortgage securing the Obligations to the Collateral Agent, in
form and substance reasonably satisfactory to the Managing
Agents, covering any parcel of real estate having a fair market
value, exclusive of equipment, in excess of $1,000,000.00
acquired by the Borrower or any of its Subsidiaries after the
Agreement Date. The Borrower will, and will cause its
Subsidiaries to, deliver to the Collateral Agent all
documentation, including opinions of counsel and policies of
title insurance, which in the reasonable opinion of the Managing
Agents are appropriate with respect to each such grant, including
any Phase I environmental audit requested by the Lenders.
Section 5.11 Indemnity. The Borrower, for itself and on
behalf of each of its Subsidiaries agrees, jointly and severally,
to indemnify and hold harmless each Lender and each Agent, and
each of their respective affiliates, employees, representatives,
officers and directors (any of the foregoing shall be an
"Indemnitee") from and against any and all claims, liabilities,
obligations, losses, damages, penalties, actions, attorneys' fees
and expenses (as such fees and expenses are incurred), and other
expenses (including fees and expenses of experts, agents and
consultants) and demands by any party, including the costs of
investigating and defending such claims, whether or not the
Borrower, any Subsidiary or the Person seeking indemnification is
the prevailing party (a) resulting from any breach or alleged
breach by the Borrower or any Subsidiary of the Borrower of any
representation or warranty made hereunder or under any other Loan
Document; or (b) arising out of (i) the Commitments or otherwise
under this Agreement or under any other Loan Document, including
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
Agents, or any of them, in the affairs of the Borrower or any of
its Subsidiaries, any Unrestricted Subsidiary or the VCS
Subsidiary, or allegations that any of them has any joint
liability with the Borrower or any of its Subsidiaries, any
Unrestricted Subsidiary or the VCS Subsidiary for any reason,
(iii) any claims against the Lenders or the Agents, 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
Commitments or otherwise under this Agreement; or (c) in
connection with taxes, 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 and any amendments thereto or waivers of any of
the provisions thereof; except to the extent that the Person
seeking indemnification hereunder is determined in such case to
have acted in breach hereof (in such a manner as to give rise to
the claims, liabilities, obligations, losses, damages, penalties,
actions, attorneys' fees and expenses and other expenses and
demands for which indemnification is being sought) or with gross
negligence or willful misconduct, in any case, by a final, non-
appealable judicial order of a court of competent jurisdiction.
The obligations of the Borrower and the Subsidiaries under this
Section 5.11 are in addition to, and shall not otherwise limit,
any liabilities which the Borrower or any Subsidiary might
otherwise have in connection with any warranties or similar
obligations of the Borrower in any other agreement or instrument
or for any other reason.
Section 5.12 Interest Rate Hedging. Within ninety (90)
days of the Agreement Date, and within forty-five (45) days after
the last day of each fiscal quarter thereafter, the Borrower
shall have entered into, and shall maintain during the term of
this Agreement, one or more Interest Rate Hedge Agreements which
result in the fixing of a limit on the Borrower's interest
obligations on an aggregate principal amount of not less than
fifty percent (50%) of the principal amount of Total Debt. Such
Interest Rate Hedge Agreements shall provide interest rate
protection on terms reasonably acceptable to the Managing Agents,
such terms to include consideration of the creditworthiness of
the other party to the proposed Interest Rate Hedge Agreement.
All obligations of the Borrower to any of the Agents or any of
the Lenders pursuant to any Interest Rate Hedge Agreement shall
rank pari passu with all other Obligations.
Section 5.13 Covenants Regarding Formation of Subsidiaries;
Acquisitions and Investments; Partnership Subsidiaries. At the
time of any Acquisition or Investment permitted hereunder, or 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) in the case of the formation or Acquisition of a new
Subsidiary, provide to the Collateral Agent an executed
Subsidiary Security Agreement for such new Subsidiary, in
substantially the form of Exhibit J 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 H 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 M
attached hereto, together with appropriate attachments; (b) in
the case of any Acquisition or Investment (other than (i)
Investments in Geotek Communications, Inc. permitted hereunder
and (ii) Investments having a fair market value as of the date
any such Investment is made of not more than $250,000.00 with
respect to any single Investment and an aggregate fair market
value for all such Investments (determined as of the date each
such Investment is made) of not more than $2,500,000.00 during
the term of this Agreement) or the formation of any new
Subsidiary, pledge to the Collateral Agent all of the stock or
partnership interests (or other instruments or securities
evidencing ownership) of any such Subsidiary or Person which is
acquired or formed, legally or beneficially owned by the Borrower
or any of the Borrower's Subsidiaries, as the case may be, and
any promissory note evidencing any Investment made as a loan or
advance to any Person, as additional Collateral for the
Obligations to be held by the Collateral Agent in accordance with
the terms of an extant Borrower Pledge Agreement, an extant
Subsidiary Pledge Agreement, or a new Borrower Pledge Agreement
or Subsidiary Pledge Agreement in substantially the forms of
Exhibits B and I, respectively, attached hereto, or an Assignment
of Rights by Partner in substantially the form attached hereto as
Exhibit A, or a Note Pledge Agreement substantially in the form
of the Note Pledge Agreement, and execute and deliver to the
Collateral Agent all such documentation for such pledge as, in
the reasonable opinion of the Managing Agents, is appropriate;
and (c) in any case, provide all other documentation, including
one or more opinions of counsel satisfactory to the Managing
Agents which in their reasonable opinion is appropriate with
respect to such Acquisition, Investment or the formation of such
Subsidiary. In addition, at such time as any Partnership
Subsidiary becomes wholly-owned by the Borrower, whether directly
or through one or more of its Subsidiaries, such Partnership
Subsidiary shall be treated as an Acquisition of a new Subsidiary
pursuant to this Section 5.13 unless, by merger or by operation
of law, its assets and liabilities are assumed by a Subsidiary
which is not a Partnership Subsidiary, and which Subsidiary has
already executed a Subsidiary Guaranty and a Subsidiary Security
Agreement and whose ownership interests are already pledged to
the Collateral Agent as Collateral for the Obligations pursuant
to an extant Borrower Pledge Agreement, an extant Subsidiary
Pledge Agreement or an Assignment of Rights by Partner. The
Borrower further agrees that, within forty-five (45) days after
the Agreement Date, it shall cause the applicable Subsidiary to
pledge to the Collateral Agent the Investments marked with an
asterisk on Schedule 6 attached hereto pursuant to Security
Documents in form and substance reasonably satisfactory to the
Managing Agents. Any document, agreement or instrument executed
or issued pursuant to this Section 5.13 shall be a "Loan
Document" and/or "Security Document," as applicable, for purposes
of this Agreement.
Section 5.14 Payment of Wages. The Borrower and each of
its Subsidiaries shall 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.
ARTICLE 6
Information Covenants
So long as any of the Obligations is outstanding and unpaid
or the Borrower has a right to borrow hereunder (whether or not
the conditions to borrowing have been or can be fulfilled) and
unless the Majority Lenders shall otherwise consent in writing,
the Borrower will furnish or cause to be furnished to each Lender
and each Managing 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, (a) for the Borrower and its Subsidiaries and the VCS
Subsidiary on a consolidated basis, a balance sheet as at the end
of such quarter and as of the end of the preceding fiscal year,
and the related statements of operations for such quarter and the
elapsed portion of the year ended with the last day of such
quarter and the related statements of cash flows for the elapsed
portion of the year ended with the last day of such quarter, and
(b) for each Unrestricted Subsidiary, a balance sheet as at the
end of such quarter and as of the end of the preceding fiscal
year, and the related statements of cash flows for the elapsed
portion of the year ended with the last day of such quarter, each
of which shall set forth in comparative form such figures as at
the end of and for such quarter and appropriate prior period, to
the extent set forth in the Borrower's Form 10-Q as filed with
the Securities and Exchange Commission for such quarter, and
shall be certified by the chief financial officer of the
Borrower, to be, in his or her opinion, complete and correct in
all material respects and to present fairly, in accordance with
GAAP, the financial condition of the Borrower on a consolidated
basis with its Subsidiaries and the VCS Subsidiary, and each
Unrestricted Subsidiary, as applicable, 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 adjustments.
Section 6.2 Annual Financial Statements and Information.
Within ninety (90) days after the end of each fiscal year of the
Borrower, (a) for the Borrower and its Subsidiaries and the VCS
Subsidiary on a consolidated basis an audited balance sheet, as
of the end of such fiscal year and the related audited statements
of operations for such fiscal year and for the previous two (2)
fiscal years, the related audited statements of changes in
shareholders' equity for such fiscal year and for the previous
two (2) fiscal years, and related audited statements of cash
flows of such fiscal year and for the previous two (2) fiscal
years, and (b) for the Unrestricted Subsidiaries individually, or
on a consolidated basis with each other, an audited balance sheet
as of the end of such fiscal year and the related audited
statements of operations for such fiscal year and for the
previous two (2) fiscal years, if available, the related audited
statements of changes in shareholders' equity for such fiscal
year and for the previous two (2) fiscal years, if available, and
the related audited cash flows for such fiscal year and for the
previous two (2) fiscal years, if available, each of which shall
be accompanied by an unqualified opinion of Arthur Andersen & Co.
or other independent certified public accountants of recognized
national standing acceptable to the Managing Agents, together
with a statement of such accountants that in connection with
their audit, nothing came to their attention that caused them to
believe that a Default has occurred with respect to 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 N:
(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 interest rate
adjustment, as provided for in Section 2.3(f) and (ii) whether or
not the Borrower was in compliance with the requirements of
Sections 5.12, 7.7, 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 cellular telephone subscribers at the beginning
of the quarter, (ii) the number of gross new cellular telephone
subscribers added and deactivated cellular telephone subscribers
lost during the quarter and (iii) the number of cellular
telephone 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, 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, opinions of counsel
prepared for the Agents and the Lenders, or any of them,
documents or further information regarding the business, assets,
liabilities, financial condition, projections, results of
operations or business prospects of the Borrower or any of its
Subsidiaries, any Unrestricted Subsidiary or the VCS Subsidiary,
as any Agent or any Lender may reasonably request.
(d) Annually, a certificate of insurance indicating
that the requirements of Section 5.5 hereof remain satisfied for
such fiscal year.
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 ten (10) days after any
officer of the Borrower becomes aware of the occurrence of any of
the following events:
(i) 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 in which the recovery sought against the Borrower
or any of its Subsidiaries is greater than or equal to
$100,000.00, or which, to the extent known to the Borrower,
in any other way relate materially adversely to the
Borrower, any Subsidiary of the Borrower, any Unrestricted
Subsidiary, the VCS Subsidiary, or any of their respective
properties, assets or businesses or any License;
(ii) any material adverse change with respect to
the business, assets, liabilities, financial condition,
results of operations or business prospects of the Borrower
or any Subsidiary of the Borrower or any Unrestricted
Subsidiary other than changes in the ordinary course of
business which have not had and could not have a Materially
Adverse Effect;
(iii) any material amendment or change to the
financial projections provided to the Lenders by the
Borrower prior to the Agreement Date;
(iv) any Default or the occurrence or non-
occurrence of any event (A) which constitutes, or which with
the passage of time or giving of notice or both would
constitute a default by the Borrower or any Subsidiary of
the Borrower under any material agreement other than this
Agreement to which the Borrower or any Subsidiary of the
Borrower is party or by which any of their respective
properties may be bound, or (B) which could have a
Materially Adverse Effect, giving in each case the details
thereof and specifying the action proposed to be taken with
respect thereto;
(v) 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; and
(vi) 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) of this
Agreement.
ARTICLE 7
Negative Covenants
So long as any of the Obligations is outstanding and unpaid
or the Borrower has a right to borrow from the Lenders hereunder
(whether or not the conditions to borrowing have been or can be
fulfilled) and unless the Majority 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 and so long as no Default then exists or
would be caused thereby:
(a) The Obligations;
(b) Current accounts payable, accrued expenses and
customer advance payments incurred in the ordinary course of
business;
(c) Capitalized Lease Obligations in an amount for the
Borrower on a consolidated basis with its Subsidiaries not in
excess, together with the Indebtedness permitted under
subsections (e) and (h) of this Section 7.1, of $10,000,000.00 in
the aggregate at any one time outstanding;
(d) Unsecured Indebtedness for Money Borrowed which is
subject to terms and conditions acceptable to and agreed to in
writing by the Majority Lenders, and which is subordinated to the
prior payment and performance in full of the Obligations pursuant
to terms and conditions acceptable to and agreed to in writing by
the Majority Lenders;
(e) Indebtedness secured by Permitted Liens, provided
that the aggregate amount of Capitalized Lease Obligations
secured or deemed to be secured by such Permitted Liens does not
exceed the threshold for Capital Lease Obligations set forth in
Section 7.1(c) above, and so long as such Indebtedness secured by
Permitted Liens, when added to all Indebtedness permitted under
subsections (c) and (h) of this Section 7.1, does not exceed
$10,000,000.00 in the aggregate;
(f) Obligations under Interest Rate Hedge Agreements
required pursuant to Section 5.12 hereof;
(g) Indebtedness of the Borrower or any of its
Subsidiaries to the Borrower or any other Subsidiary and
Indebtedness expressly permitted under Section 7.5 and Section
7.17 hereof; and
(h) Other Indebtedness which, together with the
Capitalized Lease Obligations and other Indebtedness referred to
in subsections (c) and (e) above, does not exceed $10,000,000.00
in the aggregate at any one time outstanding; provided such
additional Indebtedness is either (a) purchase money Indebtedness
of the Borrower or any of its Subsidiaries that, within thirty
(30) days of such purchase, 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 (b) Indebtedness to finance the purchase of subscriber
equipment, such as cellular mobile telephones, cellular portable
telephones, speakers, mounting hardware, subscriber test
equipment and similar equipment purchased by the Borrower or a
Subsidiary in the ordinary course of business of such Person, to
the extent that the subscriber equipment financed thereby (x) has
been sold to customers of the Borrower or any Subsidiary and
(y) the sales price thereof to any such customer has been
financed by the Borrower or such Subsidiary.
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, enter into any
amendment of, or agree to or accept or consent to any waiver of
any of the material provisions of its articles or certificate of
incorporation, by-laws or partnership agreement, as appropriate,
which amendment or waiver is adverse to the interests of the
Lenders, or any amendment of any document relating to any
subordinated debt of the Borrower or any of its Subsidiaries.
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 Core Assets
without the prior written consent of the Majority Lenders. The
Borrower shall not, and shall not permit any of its Subsidiaries
to, sell, lease, abandon, transfer, assign, swap, or otherwise
dispose of any Non-Core Asset (other than obsolete or immaterial
Non-Core Assets disposed of in the ordinary course of business)
unless:
(i) the Net Proceeds therefrom are applied as
provided in Section 2.7(b) hereof;
(ii) the aggregate number of Equivalent Owned POPs
corresponding to all Permitted Asset Sales does not exceed
(A) fifteen percent (15%) during any fiscal year of the
Borrower or (B) thirty percent (30%) in the aggregate during
the term of this Agreement of the total number of Equivalent
Owned POPs existing as of the Agreement Date, after giving
effect to the proposed disposition of such Non-Core Asset,
but excluding exchanges of assets permitted under Section
2.7(b)(ii) hereof; and
(iii) no Default then exists or would be caused
thereby.
(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 (so long as no Default then exists or would be caused
thereby) (i) a merger among the Borrower and one or more of its
Subsidiaries, provided the Borrower is the surviving corporation,
or (ii) a merger between or among two (2) or more Subsidiaries of
the Borrower, or (iii) an Acquisition permitted hereunder
effected by a merger in which the Borrower or 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, or
(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, or (c) as may be contained in any Loan Document
including, without limitation, any Subsidiary Guaranty.
Section 7.6 Investments and Acquisitions. The Borrower
shall not, and shall not permit any of its Subsidiaries to, make
any loan or advance, or make any Investment or otherwise acquire
for consideration evidences of Indebtedness, capital stock or
other securities of any Person, or make any Acquisition, except
that so long as no Default then exists or would be caused
thereby:
(a) The Borrower and 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 issued by corporations, each of which shall have a combined
net worth of at least $100,000,000.00 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 and (iii) purchase repurchase
agreements, bankers' acceptances, and certificates of deposit
maturing within three hundred 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
$100,000,000.00 and rated "A" or better by Moody's Investors
Service, Inc. or Standard and Poor's Ratings Group;
(b) The Borrower and its Subsidiaries may make
Acquisitions of Allowable Cellular Systems as permitted by
Section 2.7(b)(ii) hereof;
(c) The Borrower may make the Identified Acquisitions
for an aggregate purchase price not to exceed $115,000,000.00
(regardless of whether any such Identified Acquisitions are
consummated before, on or after the Agreement Date), which
purchase price shall be paid in cash or in common stock issued by
the Borrower as permitted hereunder; provided, that a minimum of
$40,000,000.00 of the purchase price for such Identified
Acquisitions shall be paid with common stock issued by the
Borrower, calculated by reference to the Fair Market Value of the
common stock of the Borrower given as consideration for such
Identified Acquisitions, regardless of whether any such
Identified Acquisitions are consummated before, on or after the
Agreement Date;
(d) In addition to any other Acquisitions or
Investments made under Section 7.6(a), 7.6(b), 7.6(c) or 7.6(e)
hereof, the Borrower and its Subsidiaries may make Investments in
assets or ventures involving cellular telephone and other
wireless communications businesses (other than Allowable Cellular
Systems) and/or acquire Allowable Cellular Systems in exchange
for cash or common stock issued by the Borrower, provided that
(i) if the Leverage Ratio is greater than or equal to 7.5:1 at
the time any such Acquisition is consummated, the equivalent cash
purchase price for such Allowable Cellular System is less than
$175.00 per POP; (ii) the aggregate purchase price for all such
Investments and Acquisitions during the term of this Agreement
does not exceed the Acquisition/Investment Basket; (iii) the
aggregate purchase price for all Investments during the term of
this Agreement does not exceed the Investment Sublimit; and
(iv) the Borrower complies with Section 7.6(f) below. The
Acquisition/Investment Basket and the Investment Sublimit may be
increased by the aggregate amount of (A) any common stock issued
by the Borrower as permitted hereunder and given as consideration
for any Acquisition or Investment (other than in respect of the
Identified Acquisitions), plus (B) the Net Proceeds of any public
or private offering of common stock of the Borrower as permitted
hereunder; provided, however, that (1) the Acquisition/Investment
Basket shall not be increased to more than $150,000,000.00 and
(2) the Investment Sublimit shall not be increased to more than
$50,000,000.00. The value of any common stock issued by the
Borrower given as consideration for any Investment or Acquisition
by the Borrower or any of its Subsidiaries shall be deemed to be
the Fair Market Value of such stock.
(e) In addition to any other Investments made under
Sections 7.6(a), 7.6(b), 7.6(c) or 7.6(d) hereof, the Borrower
and its Subsidiaries may make Investments in ventures involving
cellular telephone and other wireless communications businesses
(other than Allowable Cellular Systems) at any time, pursuant to
capital calls by Persons in which the Borrower or one of its
Subsidiaries has an Investment permitted hereunder, so long as
the difference between (i) the aggregate amount of all capital
contributions made by the Borrower or any Subsidiary during the
term of this Agreement pursuant to any such capital call by any
Person of which the Borrower and the Subsidiaries own, in the
aggregate, less than or equal to fifty percent (50%) of the
issued and outstanding ownership interests, minus (ii) the
aggregate amount of all capital contributions received during the
term of this Agreement from Persons other than the Borrower or
any Subsidiary in respect of capital calls by any other Person of
which the Borrower and the Subsidiaries own, in the aggregate,
more than fifty percent (50%) of the issued and outstanding
ownership interests, does not exceed $5,000,000.00 at any time
(independent of any other limitation on Investments hereunder).
(f) No Acquisition or Investment under Section 7.6(b)
through (e) hereof shall be permitted unless: (i) the Borrower
shall have demonstrated to the Agents and the Lenders in writing
the Borrower's pro forma compliance with Sections 7.8, 7.9, 7.10,
7.11 and 7.12 hereof, after giving effect to such Acquisition or
Investment, and shall have certified to the Managing Agents and
the Lenders that such Acquisition or Investment shall not have a
Materially Adverse Effect, (ii) with respect to any Acquisition
or Investment of more than $2,000,000.00, the Borrower shall
provide the Lenders, not less than thirty (30) days with respect
to Acquisitions or ten (10) days with respect to Investments,
prior to the proposed closing thereof, all material information
pertaining to such Acquisition or Investment and a certificate
signed by the chief financial officer of the Borrower, certifying
the Borrower's pro forma compliance with the covenants listed in
(i) hereof, together with any calculations necessary to
demonstrate such compliance and (iii) the Borrower shall certify
to the Lenders in writing that it owns a majority interest in all
Allowable Cellular Systems acquired as permitted hereunder, after
giving effect to such Acquisition or Investment.
Any Investment, the proceeds of which shall be used,
directly or indirectly, for the purchase of personal
communication services assets or interests in personal
communication services ventures, shall be made in or paid to an
Unrestricted Subsidiary (i) to the extent that the acquisition of
any such personal communication services asset has been or will
be financed by, or any such personal communication services
venture has or will obtain financing from, directly or
indirectly, any governmental entity, which financing, in either
case, is secured, directly or indirectly, by a Lien on any
License or any other assets of such venture or other Person
making such acquisition, or which financing constitutes any type
of conditional sales arrangement, or (ii) to the extent that any
such Investment in personal communication services assets or
ventures does not constitute an integral part of the then-
existing cellular telephone operations of the Borrower and its
Subsidiaries as determined by the Borrower and the Managing
Agents collectively.
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, except that so long as no Default then
exists or would be caused thereby, (a) on April 30, 1998 and on
each April 30th thereafter, up to twenty-five percent (25%) of
Excess Cash Flow for the preceding fiscal year of the Borrower
may be used by the Borrower to pay dividends to its shareholders,
provided that the Borrower shall provide the Lenders with a
certificate, signed by the chief financial officer of the
Borrower, demonstrating pro forma compliance with the terms of
this Section 7.7, after giving effect to such dividend payments;
(b) the Borrower may make loans to employees, so long as (i) the
outstanding amount of such payments or loans does not exceed
$200,000.00 in the aggregate at any time and (ii) no such loans
to an employee are permitted to remain unreimbursed or unpaid by
any such employee for more than two (2) years; and (c) the
Borrower may make distributions to any partner of any Partnership
Subsidiary, which partner holds a minority position with respect
to such Partnership Subsidiary, as required by the applicable
Partnership Subsidiary's partnership agreement, subject to the
limitations set forth in Section 7.6(e) hereof and so long as
such partner is not an Affiliate.
Section 7.8 Interest Coverage Ratio. The Borrower shall
not at any time permit the Interest Coverage Ratio to be less
than the ratios set forth below during the periods indicated:
Period Ratio
Agreement Date through
December 30, 1995 1.15:1
December 31, 1995 through
December 30, 1996 1.25:1
December 31, 1996 through
December 30, 1998 1.50:1
December 31, 1998 and
thereafter 2.00:1
Section 7.9 Fixed Charge Ratio. The Borrower shall not at
any time permit the Fixed Charge Ratio to be less than 1.05:1.
Section 7.10 Leverage Ratio. The Borrower shall not at any
time permit the Leverage Ratio to exceed the ratios set forth
below during the periods indicated:
Period Ratio
Agreement Date through
June 29, 1995 10.25:1
June 30, 1995 through
September 29, 1995 9.75:1
September 30, 1995 through
March 30, 1996 8.25:1
March 31, 1996 through
June 29, 1996 8.00:1
June 30, 1996 through
September 29, 1996 7.25:1
September 30, 1996 through
June 29, 1997 6.00:1
June 30, 1997 through
December 30, 1997 5.50:1
December 31, 1997 through
June 29, 1999 5.00:1
June 30, 1999 and
thereafter 4.00:1
Section 7.11 Pro Forma Debt Service Ratio. The Borrower
shall not at any time permit the Pro Forma Debt Service Ratio to
be less than the ratios set forth below during the periods
indicated:
Period Ratio
Agreement Date through 1.00:1
September 29, 1995
September 30, 1995 and
thereafter 1.15:1
Section 7.12 Capital Expenditures Test. The Borrower shall
not permit the Capital Expenditures Test to exceed the following
as of the end of fiscal years indicated:
Capital
Period Expenditure Test
At December 31, 1994 $350.00
At December 31, 1995, $450.00
At December 31, 1996 $250.00
At December 31, 1997 $125.00
At Each Year-End
Thereafter $100.00
Section 7.13 Affiliate Transactions. Except as specifically
provided herein (including, without limitation, Section 7.7
hereof) 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.
Section 7.14 Real Estate. The Borrower and its Subsidiaries
may, in the aggregate, purchase up to $5,000,000.00 of real
estate during the term of this Agreement, provided that such real
estate is acquired in conjunction with an Acquisition permitted
under Section 7.6 hereof or otherwise for use in the cellular
telephone business of the Borrower or any of its Subsidiaries.
Neither the Borrower nor any of its Subsidiaries shall purchase
or become obligated to purchase any other real estate.
Section 7.15 ERISA Liabilities. The Borrower shall not, and
shall not permit any of its Subsidiaries to, (i) permit the
assets of any of their respective Plans to be less than the
amount necessary to provide all accrued benefits under such
Plans, or (ii) enter into any Multiemployer Plan.
Section 7.16 Unrestricted Subsidiaries. From time to time
the Borrower may form or otherwise acquire one or more additional
Unrestricted Subsidiaries, provided that the Borrower provides
the Managing Agents with notice of its intent to form or acquire
an Unrestricted Subsidiary making reference to this Section 7.16,
together with the following information with respect to each such
Unrestricted Subsidiary, not less than ten (10) days prior to
such formation or acquisition: (a) the name and state of
incorporation or formation of such Unrestricted Subsidiary, (b)
the intended purpose for and business to be conducted by such
Unrestricted Subsidiary, (c) the amount and nature of any
investment to be made in such Unrestricted Subsidiary by the
Borrower or any of its Subsidiaries, and (d) such additional
information as the Managing Agents may reasonably require with
respect thereto. The Borrower shall not permit any Unrestricted
Subsidiary to: (x) create, assume, incur or otherwise become or
remain obligated in respect of or permit to be outstanding any
Indebtedness, other than (1) Indebtedness in favor of
governmental entities the proceeds of which are or will be used
for the purchase of personal communication services assets or
interests in personal communication services ventures, (2)
Indebtedness arising in respect of intercompany loans and
advances among the Unrestricted Subsidiaries, or (3) Indebtedness
arising in respect of Investments permitted hereby; or (y)
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 Liens in favor of governmental
entities securing Indebtedness of the type described in clause
(x) above. In addition, the Borrower shall not and shall not
permit any of its Subsidiaries or any Unrestricted Subsidiary to:
(i) pledge or permit the pledge of the capital stock or other
ownership interests of any Unrestricted Subsidiary to any Person
(other than to the Collateral Agent as additional Collateral for
the Obligations); (ii) make any loan or advance to, or Guaranty
any obligations of, any Unrestricted Subsidiary or otherwise
acquire for consideration evidences of Indebtedness, capital
stock or other securities of any Unrestricted Subsidiary, other
than Investments permitted by Section 7.6 hereof and other than
intercompany loans and advances among the Unrestricted
Subsidiaries; or (iii) transfer any assets to any Unrestricted
Subsidiary. The Borrower shall not permit the net worth of any
Unrestricted Subsidiary, after giving effect to all contingent
liabilities and as otherwise determined in accordance with GAAP,
to be less than zero at any time.
Section 7.17 The VCS Subsidiary. The Borrower shall not
permit the VCS Subsidiary to incur Indebtedness or to create
Liens on its assets; nor shall the Borrower pledge or permit the
pledge of the stock of the VCS Subsidiary to any Person (other
than to the Collateral Agent as additional Collateral for the
Obligations); nor shall the Borrower or any of its Subsidiaries
lend or invest any funds in or transfer any assets to the VCS
Subsidiary or Guaranty any obligations of the VCS Subsidiary.
The Borrower shall not permit the net worth of the VCS
Subsidiary, after giving effect to all contingent liabilities and
as otherwise determined in accordance with GAAP, to be less than
zero at any time. The Borrower and its Subsidiaries may borrow
and repay up to $5,000,000 from the VCS Subsidiary on a short-
term basis, provided, however, that (i) the rate of any interest
payable to the VCS Subsidiary in respect of such Indebtedness
shall not exceed the blended rate payable on the Loans, (ii) no
repayment of such Indebtedness or payment of any interest thereon
shall be made at such time as there exists any Default, or at
such time as any Default would be caused thereby and (iii) the
VCS Subsidiary has entered into a subordination agreement in form
and substance reasonably satisfactory to the Majority Lenders.
Section 7.18 Limitation on Upstream Dividends by
Subsidiaries. The Borrower shall not permit any Subsidiary to
enter into or agree, or otherwise become subject, to any
agreement, contract or other arrangement with any Person pursuant
to the terms of which (a) such Subsidiary is or would be
prohibited from declaring or paying any cash dividends or
distributions on any class of its stock or any partnership
interests owned directly or indirectly by the Borrower or from
making any other distribution on account of any class of any such
stock or any such partnership interests (herein referred to as
"Upstream Dividends") or (b) the declaration or payment of
Upstream Dividends by a Subsidiary to the Borrower or to another
Subsidiary, on an annual or cumulative basis, is or would be
otherwise limited or restricted.
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 or deemed to
be 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 fees or other amounts
payable to the Lenders and the Administrative Agent (except as
provided in clause (b)(ii) below), or any of them, when due, and
such Default shall not be cured by payment in full within three
(3) Business Days from the due date; or (ii) any principal under
any of the Notes when due (including, without limitation,
pursuant to Section 2.7 hereof);
(c) The Borrower shall default (i) in the performance
or observance of any agreement or covenant contained in
Section 5.9, Section 6.5, or Article 7 hereof; (ii) in the
performance or observance of any other negative covenant
contained in any of the Loan Documents; or (iii) in providing any
financial statement or report under Article 6, and, with respect
to this clause (iii) only, such default shall not be cured by
delivery thereof within a period of fifteen (15) days from the
occurrence of such default;
(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 occurrence of such default;
(e) There shall occur any default in the performance
or observance of any agreement or covenant contained in any of
the Loan Documents (other than this Agreement or as otherwise
provided in this Section 8.1) by the Borrower, any of its
Subsidiaries, or any other obligor thereunder, which shall not be
cured within a period of thirty (30) days from the occurrence of
such default;
(f) There shall be entered and remain unstayed a
decree or order for relief in respect of the Borrower or any of
the Borrower's 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 the Borrower's 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 the
Borrower's Subsidiaries; or an involuntary petition shall be
filed against the Borrower or any of the Borrower's 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 thirty (30)
consecutive days;
(g) The Borrower or any of the Borrower's 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
the Borrower's Subsidiaries shall consent to the institution of
proceedings thereunder or to the filing of any such petition or
to the appointment of or taking of possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Borrower or any of the Borrower's
Subsidiaries or of any substantial part of their respective
properties, or the Borrower or any of the Borrower's Subsidiaries
shall fail generally or admit in writing their inability to pay
their respective debts as they become due, or the Borrower or any
of the Borrower's Subsidiaries shall take any action in
furtherance of any such action;
(h) A judgment not covered by insurance shall be
entered by any court against the Borrower or any of the
Borrower's Subsidiaries for the payment of money which exceeds
singly or in the aggregate with other such judgments,
$5,000,000.00, or a warrant of attachment or execution or similar
process shall be issued or levied against property of the
Borrower or any of the Borrower's Subsidiaries which, together
with all other such property of the Borrower or any of the
Borrower's Subsidiaries subject to other such process, exceeds in
value $5,000,000.00 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 if, after the expiration of any such
stay, such judgment, warrant or process shall not have been paid
or discharged;
(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 to which the Borrower or any of its
Subsidiaries 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 PBGC shall
institute proceedings to terminate any such Plan; or the Borrower
or any of its Subsidiaries shall incur any liability to PBGC in
connection with the termination of any such Plan; or any Plan or
trust created under any Plan of the Borrower or any of its
Subsidiaries 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;
(j) Any event shall occur which has a Materially
Adverse Effect;
(k) There shall occur (i) any acceleration of the
maturity, or any failure to pay at final maturity, of any
Indebtedness of the Borrower or any of the Borrower's
Subsidiaries in an aggregate principal amount exceeding
$1,000,000.00; (ii) any event of default which would permit such
acceleration of such Indebtedness and which event of default 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 Rate Hedge Agreement having a notional
principal amount of $1,000,000.00 or more;
(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.
(Section Mark) 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 Majority 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; or
(m) One or more Licenses shall be terminated or
revoked such that the Borrower and its Subsidiaries are no longer
able to operate the related Cellular System or Systems or portion
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 portion thereof
and retain the revenue received therefrom, and the overall effect
of such termination, revocation or failure to renew would be to
reduce annual Cash Flow (determined as at the last day of the
most recently ended fiscal year of the Borrower) by five percent
(5%) or more;
(n) Any Loan Document which is a contract or any Note
or the Subsidiary Guaranty, 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 the Borrower's
Subsidiaries, or by any governmental authority having
jurisdiction over the Borrower or any of the Borrower's
Subsidiaries, seeking to establish the invalidity or
unenforceability thereof (exclusive of questions of
interpretation of any provision thereof), or the Borrower or any
of the Borrower's 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;
(o) 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;
(p) The Richardson Family shall at any time own
directly less than that amount of voting stock of the Borrower
necessary to give them the power to exercise voting rights with
respect to at least twenty percent (20%) of the total votes of
all shareholders of the Borrower on a fully-diluted basis;
(q) The Richardson Family and the directors and
executive officers of the Borrower holding such positions as of
the Agreement Date shall at any time own less than that amount of
the voting stock of the Borrower necessary to give them the power
to exercise voting rights with respect to at least twenty-five
percent (25%) of the total votes of all shareholders of the
Borrower on a fully-diluted basis;
(r) Any two (2) members of the Management Group shall
at any time for any period of six (6) consecutive months cease to
be active in the direct management and the operations of the
Borrower; or
(s) The New York Public Service Commission shall, for
any reason, fail on or prior to August 31, 1995 to grant its
written consent to any of the following: (i) the Guaranty by
each Subsidiary subject to its jurisdiction of the full amount of
the Obligations hereunder pursuant to the Amended and Restated
Master Subsidiary Guaranty of even date herewith referred to in
Section 3.1 hereof, which Guaranty shall continue in full force
and effect until indefeasible payment and performance, in full,
of the Obligations and termination of the Commitments; (ii) the
grant by each such Subsidiary to the Collateral Agent of a Lien
on substantially all of its assets pursuant to the Amended and
Restated Master Subsidiary Security Agreement of even date
herewith referred to in Section 3.1 hereof, which Lien shall
secure the obligations of such Subsidiary arising under the
Amended and Restated Master Subsidiary Guaranty described in
subsection 8.1(s)(i) hereof for the period described in such
subsection; and (iii) the pledge by each owner of equity
interests in each such Subsidiary (which owner is an Affiliate of
the Borrower) of all equity interests in each such Subsidiary
pursuant to the applicable pledge agreements entered into as of
the Agreement Date and referred to in Section 3.1 hereof, which
pledge shall secure the obligations of such parent company
arising under the Amended and Restated Master Subsidiary Guaranty
described in subsection 8.1(s)(i) hereof for the period described
in such subsection.
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
Section 8.1(g) hereof) shall have occurred and shall be
continuing, the Collateral Agent, at the request of the Majority
Lenders, shall formally declare that an Event of Default has
occurred, and (i) terminate the Commitments and (ii) declare the
principal of and interest on the Loans and the Notes and all
other Obligations owed to the Lenders and the Agents under this
Agreement and the other Loan Documents to be forthwith due and
payable without presentment, demand, protest or notice of any
kind, all of which are hereby expressly waived, anything in this
Agreement or in the other Loan Documents to the contrary
notwithstanding, and the Commitments shall thereupon forthwith
terminate.
(b) Upon the occurrence and continuance of an Event of
Default specified in Section 8.1(f) or Section 8.1(g) hereof, all
principal, interest and other amounts due hereunder and under the
Notes, and all other Obligations, shall thereupon and
concurrently therewith become due and payable and the Commitments
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 Agents or the Lenders or the
Majority 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.
(c) Upon acceleration of the Notes, as provided in
subsection (a) or (b) of this Section 8.2, above, the Agents 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, as provided in
subsection (a) or (b) of this Section 8.2, the Collateral Agent
shall have the right (but not the obligation) upon the request of
each of the Lenders to operate the Cellular Systems of the
Borrower and its Subsidiaries in accordance with the terms of the
Licenses and pursuant to the terms and subject to any limitations
contained in the Security Documents and, within guidelines
established by the Majority Lenders, to make any and all payments
and expenditures necessary or desirable in connection therewith,
including, without limitation, payment of wages as required under
the Fair Labor Standards Act, as amended, and of any necessary
withholding taxes to state or federal authorities. In the event
the Majority Lenders fail to agree upon the guidelines referred
to in the preceding sentence within six (6) Business Days after
the Collateral Agent has begun to operate any Cellular System,
the Collateral Agent may, after giving three (3) days' prior
written notice to the Lenders of its intention to do so, make
such payments and expenditures as it deems reasonable and
advisable in its sole discretion to maintain the normal day-to-
day operation of such Cellular Systems. Such payments and
expenditures in excess of receipts shall constitute Advances
under the Revolving Loan Commitment, not in excess of the
available amount of the Revolving Loan Commitment. Advances made
pursuant to this Section 8.2(d) shall bear interest as provided
in Section 2.3(d) and shall be payable on demand. The making of
one (1) or more Advances under this Section 8.2(d) shall not
create any obligation on the part of the Lenders to make any
additional Advances hereunder. No exercise by the Collateral
Agent of the rights granted to it under this Section 8.2(d) shall
constitute a waiver of any other rights and remedies granted to
the Agents and the Lenders, or any of them, under this Agreement,
the other Loan Documents or at law. The Borrower hereby
irrevocably appoints the Collateral Agent, as agent for the
Lenders, the true and lawful attorney of the Borrower, in its
name and stead and on its behalf, to execute, receipt for or
otherwise act in connection with any and all contracts,
instruments or other documents in connection with the completion
and operation of the Cellular Systems in the exercise of the
Collateral Agent's and the Lenders' rights under this
Section 8.2(d). Such power of attorney is coupled with an
interest and is irrevocable. The rights of the Collateral 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) Upon acceleration of the Notes, as provided in
subsection (a) or (b) of this Section 8.2, the Collateral Agent,
upon request of the Majority 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 Subsidiary may have thereto or the right to have a bond or
other security posted by the Collateral Agent on behalf of the
Lenders, in connection therewith. The rights of the Collateral
Agent under this Section 8.2(e) 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.
(f) The rights and remedies of the Agents and the
Lenders hereunder shall be cumulative and not exclusive.
Section 8.3 Payments Subsequent to Declaration of Event of
Default. Subsequent to the acceleration of the Loans under
Section 8.2 hereof, payments and prepayments under this Agreement
made to any of the Agents 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 Collateral
Agent's, the Documentation Agent's, the Administrative Agent's
and the Managing Agents' reasonable costs and expenses, if any,
incurred 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; second, to the
Lenders for any fees hereunder or under any of the other Loan
Documents then due and payable; third, to damages incurred by any
Agent or any Lender by reason of any breach hereof or of any
other Loan Document; fourth, 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; fifth, to the Lenders
pro rata on the basis of their respective unpaid principal
amounts until all Advances have been paid in full (and, for
purposes of this clause, obligations under Interest Rate Hedge
Agreements with the Lenders or any of them shall be deemed to be
Advances and shall be paid on a pro rata basis with the
Advances); sixth, to the Agents and the Lenders pro rata on the
basis of their respective unpaid amounts, to the payment of any
other unpaid Obligations; and seventh, upon satisfaction in full
of all Obligations, to the Borrower or as otherwise required by
law.
ARTICLE 9
The Agents
Section 9.1 Appointment and Authorization. Each Lender
hereby irrevocably appoints and authorizes, and any transferee of
any of its interest in its Loans and in its Notes shall be deemed
to have irrevocably appointed and authorized, the Administrative
Agent, the Documentation Agent, the Managing Agents and the
Collateral Agent to take such actions as its agents on its behalf
and to exercise such powers hereunder as are delegated by the
terms hereof, together with such powers as are reasonably
incidental thereto. Neither the Collateral Agent, the
Administrative Agent, the Documentation Agent, any Managing Agent
nor any Co-Agent, nor any of their respective directors,
officers, employees or agents, shall be liable for any action
taken or omitted to be taken by it or them hereunder or in
connection herewith, except for its or their own gross negligence
or willful misconduct.
Section 9.2 Interest Holders. The Agents 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 Loans and in its Notes 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 F\2 Consultation with Counsel. The Managing
Agents, the Collateral Agent, the Documentation Agent and the
Administrative Agent may consult with Powell, Goldstein, Frazer &
Murphy, Atlanta, Georgia, special counsel to the Managing Agents,
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 Majority Lenders and in reasonable reliance
on such consultations.
Section 9.4 Documents. The Managing Agents, the Collateral
Agent, the Documentation Agent and 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 thereto or in
connection herewith or therewith, and the Managing Agents, the
Collateral Agent, the Documentation Agent 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 Agents and Affiliates. With respect to the
Commitments and the Loans, the Agents shall have the same rights
and powers hereunder as any other Lender and the Agents and
Affiliates of the Agents 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 Agents and without any obligation to account therefor.
Section 9.6 Responsibility of the Managing Agents, the
Administrative Agent and the Collateral Agent. The duties and
obligations of the Managing Agents, the Administrative Agent and
the Collateral Agent under this Agreement are only those
expressly set forth in this Agreement. Each Managing Agent, the
Administrative Agent and the Collateral Agent shall be entitled
to assume that no Default has occurred and is continuing unless
it has actual knowledge, or has been notified by the Borrower, of
such fact, or has been notified by a Lender in writing that such
Lender considers that a Default has occurred and is continuing
and such Lender shall specify in detail the nature thereof in
writing. Each Managing Agent, the Administrative Agent and the
Collateral Agent shall not be liable hereunder for any action
taken or omitted to be taken except for its own gross negligence
or willful misconduct. 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 Agent. The Collateral 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 that the Collateral 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 Managing Agents, the Administrative
Agent and the Collateral Agent.
(a) The Managing Agents, the Administrative Agent and
the Collateral Agent shall be entitled to use their discretion
with respect to exercising or refraining from exercising any
rights which may be vested in them or any of them by, and with
respect to taking or refraining from taking any action or actions
which they may be able to take under or in respect of, this
Agreement or any other Loan Document, unless the Administrative
Agent, either Managing Agent or the Collateral Agent shall have
been instructed by the Majority Lenders or all Lenders, as
applicable, to exercise or refrain from exercising such rights or
to take or refrain from taking such action; provided that the
Collateral Agent shall not exercise any rights under Section
8.2(a) of this Agreement without the request of the Majority
Lenders. Each Managing Agent, the Administrative Agent and the
Collateral Agent shall incur no liability under or in respect of
this Agreement or any other Loan Document 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, or conduct in breach of this
Agreement as determined by a final, non-appealable judicial order
of a court having jurisdiction over the subject matter.
(b) Each Managing Agent, the Administrative Agent and
the Collateral Agent shall not be liable to the Lenders or to any
Lender in acting or refraining from acting under this Agreement
in accordance with the instructions of the Majority Lenders or
all Lenders, as applicable, and any action taken or failure to
act pursuant to such instructions shall be binding on all
Lenders.
Section 9.9 Notice of Default. In the event that any Agent
or any Lender shall acquire actual knowledge, or shall have been
notified, of any Default, such Agent or such Lender shall
promptly notify the Lenders and the other Agents, as applicable,
and the Collateral Agent shall take such action and assert such
rights under this Agreement as the Majority Lenders or all
Lenders, as applicable, shall request in writing, and the
Collateral Agent shall not be subject to any liability by reason
of its acting pursuant to any such request. If the Majority
Lenders or all Lenders, as applicable, shall fail to request the
Collateral Agent to take action or to assert rights under this
Agreement in respect of any Default within ten (10) days after
their receipt of the notice of any Default from the
Administrative Agent or any Lender, or shall request inconsistent
action with respect to such Default, the Collateral 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 Majority Lenders have instructed the
Collateral Agent not to take such action or assert such right, in
no event shall the Collateral Agent act contrary to such
instructions.
Section 9.10 Responsibility Disclaimed. The Agents shall
not be under any liability or responsibility whatsoever as
Agents:
(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; or
(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.
Section 9.11 Indemnification. The Lenders agree to
indemnify each of the Agents other than the Co-Agents (to the
extent not reimbursed by the Borrower) pro rata according to
their respective Commitment Ratios in effect at the time
indemnification is sought, 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 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 any of the Agents
(other than the Co-Agents) in any way relating to or arising out
of this Agreement, any other Loan Document, or any other document
contemplated by this Agreement or any action taken or omitted by
such Agent under this Agreement, any other Loan Document, or any
other document contemplated by this Agreement, except that no
Lender shall be liable to any 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 such 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 Agents that:
(a) In making its decision to enter into this
Agreement and to make its Advances it has independently taken
whatever steps it considers necessary to evaluate the financial
condition and affairs of the Borrower and its Subsidiaries and
Affiliates and that it has made an independent credit judgment,
and that it has not relied upon the Agents or information
provided by the Agents (other than information provided to the
Agents by the Borrower and forwarded by the Agents to the
Lenders); and
(b) So long as any portion of the Loans remains
outstanding, it will continue to make its own independent
evaluation of the financial condition and affairs of the Borrower
and its Subsidiaries and Affiliates.
Section 9.13 Successor Administrative Agent, Documentation
Agent and Collateral Agent. Subject to the appointment and
acceptance of a successor Administrative Agent, Documentation
Agent, Managing Agent, or Collateral Agent as provided below, the
Administrative Agent, the Documentation Agent, the Managing
Agents, and the Collateral 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 Majority Lenders. Upon any
such resignation or removal, the Majority Lenders shall have the
right to appoint a successor Administrative Agent, Documentation
Agent, Managing Agent or Collateral Agent, as applicable. If no
such successor Administrative Agent, Documentation Agent,
Managing Agent or Collateral Agent shall have been so appointed
by the Majority Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Administrative
Agent's, Documentation Agent's, Managing Agent's or Collateral
Agent's giving of notice of resignation or the Majority Lenders'
removal of the retiring Administrative Agent, Documentation
Agent, Managing Agent or Collateral Agent, then the retiring
Administrative Agent, Collateral Agent, Managing Agent or
Documentation Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, Collateral Agent, Managing Agent
or Documentation 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 $250,000,000.00. Upon the acceptance of
any appointment as Administrative Agent, Documentation Agent,
Managing Agent or Collateral Agent hereunder by a successor
Administrative Agent, Documentation Agent, Managing Agent or
Collateral Agent, such successor Administrative Agent,
Documentation Agent, Managing Agent or Collateral Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges, duties and obligations of the retiring
Administrative Agent, Documentation Agent, Managing Agent or
Collateral Agent and the retiring Administrative Agent,
Documentation Agent, Managing Agent or Collateral Agent shall be
discharged from its duties and obligations hereunder and under
the other Loan Documents. After any retiring Administrative
Agent's, Documentation Agent's, Managing Agent's or Collateral
Agent's resignation or removal hereunder as Administrative Agent,
Documentation Agent, Managing Agent or Collateral 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, Documentation
Agent, Managing Agent or Collateral Agent.
Section 9.14 Delegation of Duties. Each 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 Co-Agents. The Co-
Agents shall have no responsibilities hereunder or under any of
the other Loan Documents in their capacities as Co-Agents.
ARTICLE 10
Change in Circumstances
Affecting Eurodollar Advances
Section 10.1 Eurodollar Basis Determination Inadequate. If
with respect to any proposed Eurodollar 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
Eurodollar 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 Eurodollar 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 each affected Eurodollar Advance
of such Lender, together with accrued interest thereon and any
reimbursement required under Section 2.10 hereof, on either
(a) the last day of the then current Interest Period applicable
to such affected Eurodollar Advances if such Lender may lawfully
continue to maintain and fund such Eurodollar Advances to such
day or (b) immediately if such Lender may not lawfully continue
to fund and maintain such affected Eurodollar Advances to such
day. Concurrently with repaying each affected Eurodollar Advance
of such Lender, notwithstanding anything contained in Article 2
or Article 3 hereof, the Borrower shall borrow a Prime Rate
Advance from such Lender, and such Lender shall 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 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
Eurodollar Advances, or its Eurodollar Advances, or shall
change the basis of taxation of payments to any Lender of
the principal of or interest on its Eurodollar Advances or
in respect of any other amounts due under this Agreement, in
respect of its Eurodollar Advances or its obligation to make
Eurodollar 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 Eurodollar market any other
condition affecting its obligation to make such Eurodollar
Advances or its Eurodollar Advances;
and the result of any of the foregoing is to increase the cost to
such Lender of making or maintaining any such Eurodollar
Advances, or to reduce the amount of any sum received or
receivable by such Lender under this Agreement or under any of
its Notes with respect thereto, then, on a date within five (5)
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 or reduction. 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.
ATL 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. In
determining such amount, such Lender may use 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 the then outstanding affected Eurodollar
Advances of such Lender, together with accrued interest thereon
to the date of prepayment, along with any reimbursement required
under Section 2.10 hereof. Concurrently with prepaying such
Eurodollar Advances the Borrower shall borrow a Prime Rate
Advance, or a Eurodollar Advance not so affected, from such
Lender, and such Lender shall 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 suspending the
obligation of any Lender to make any Eurodollar Advance, or
requiring Eurodollar Advances of any Lender 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 Advances which would otherwise be made by such Lender
as the type of Eurodollar Advances affected shall, at the option
of the Borrower, be made instead as Prime Rate Advances.
ARTICLE 11
Miscellaneous
Section 11.1 Notices.
(a) All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been
given three (3) days after deposit in the mail, designated as
certified mail, return receipt requested, post-prepaid, or one
(1) day after being entrusted to a reputable commercial overnight
delivery service, or when sent 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:
(i) If to the Borrower, to it at:
Stephen Holcombe, Senior Vice
President and Chief Financial
Officer
Vanguard Cellular Systems, Inc.
2002 Pisgah Church Road, Suite 300
Greensboro, NC 27455-3314
with a copy to:
Vanguard Cellular Systems, Inc.
2002 Pisgah Church Rd., Suite 300
Greensboro, NC 27455-3314
Attn: Mr. Richard C. Rowlenson
Senior Vice President and
General Counsel
(ii) If to the Administrative Agent, to
it at:
The Bank of New York
One Wall Street, 16th Floor
New York, New York 10286
Attn: James W. Whitaker
Assistant Vice President
with a copy to the Administrative Agent's Office,
to the attention of Ms. Patricia Clancy.
PT\AT If to the Documentation Agent, to it at:
The Toronto-Dominion Bank
USA Division
31 West 52nd Street
New York, NY 10019-6101
Attn: Assistant General Manager
Communications Finance
with a copy to:
Toronto Dominion (Texas), Inc.
c/o The Toronto-Dominion Bank
909 Fannin, Suite 900
Houston, Texas 77010
Attn: Martha L. Gariepy
(iv) If to the Collateral Agent, to it at:
Toronto Dominion (Texas), Inc.
c/o The Toronto-Dominion Bank
909 Fannin, Suite 900
Houston, Texas 77010
Attn: Martha L. Gariepy
(v) If to the Managing Agents, the Co-Agents and the
Lenders, to them at the addresses set forth beside
their names on the signature pages hereof.
Copies shall be provided to persons other than parties hereto
only in the case of notices under Article 8 hereof.
(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
Managing Agents, the Collateral Agent, the Documentation Agent
and 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, but not limited
to, the reasonable fees and disbursements of Powell, Goldstein,
Frazer & Murphy, special counsel for the Managing Agents;
(b) all out-of-pocket expenses of the Managing Agents,
the Collateral Agent, the Documentation Agent and the
Administrative Agent in connection with the administration of the
transactions contemplated in this Agreement and the other Loan
Documents, the restructuring and "work out" of such transactions,
and the preparation, negotiation, execution and delivery of any
waiver, amendment or consent by the Agents and the Lenders
relating to this Agreement and/or the other Loan Documents,
including, but not limited to, the reasonable fees and
disbursements of any experts, agents or consultants and of
special counsel for the Managing Agents; and
(c) all out-of-pocket costs and expenses of obtaining
performance under this Agreement and the other Loan Documents and
all out-of-pocket costs and expenses of collection if an Event of
Default occurs, which in each case shall include reasonable fees
and out-of-pocket expenses of special counsel for the Managing
Agents.
Section 11.3 Waivers. The rights and remedies of the
Agents 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 Agents, the Majority Lenders or the Lenders, or any of them,
in exercising any right shall operate as a waiver of such right.
The Agents 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 an Advance. In the
event the Lenders decide to fund a request for an 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 requests for Advances or preclude the Lenders or the
Agents from exercising any rights available under the Loan
Documents or at law or equity. Any waiver or indulgence granted
by the Agents, the Lenders or the Majority Lenders, or any of
them, shall not constitute a modification of this Agreement,
except to the extent expressly provided in such waiver or
indulgence, or constitute a course of dealing at variance with
the terms of the Agreement such as to require further notice of
their intent to require strict adherence to the terms of this
Agreement 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 a Default
and during the continuation thereof, each of the Agents 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, but not limited
to, 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 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 Agents, 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 Agent shall have made any demand hereunder or (b) any
Lender or 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 Collateral Agent with the
consent of the Majority Lenders each Lender holding deposits of
the Borrower or any of its Subsidiaries shall exercise its
set-off rights as so directed.
Section 11.5 Assignment.
(a) The Borrower may not assign or transfer any of its
rights or obligations hereunder or under any other Loan Document
without the prior written consent of each of the Lenders.
(b) Each Lender may enter freely into participation
agreements with respect to or otherwise grant participations in
the Loans and the Commitments to one or more banks or other
lenders or financial institutions; provided, however, that (i)
such Lender's obligations hereunder shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) the
participant shall not be entitled by the benefit of its
participation to vote or otherwise take action under this
Agreement or any other Loan Document, except with respect to
items (a), (b), (c), (d), (e), (f) and (g) of Section 11.12
hereof, (iv) the Borrower shall continue to deal solely and
directly with such Lender in connection with such Lender's rights
and obligations hereunder and (v) each such participation shall
be in a minimum principal amount of $5,000,000.00. In addition,
each Lender (x) may also sell or assign up to one hundred percent
(100%) of its rights hereunder and under the other Loan Documents
to any of its Affiliates or any Federal Reserve Bank without
limitation and (y) sell or assign up to one hundred percent
(100%) of its rights and obligations hereunder and under the
other Loan Documents on an assignment basis; provided, that, with
respect to assignments pursuant to clause (y), (A) such
assignment is to another Lender, or the Borrower (if no Event of
Default has occurred and is continuing) and (in any case) the
Administrative Agent have given their prior written consent to
the identity of any proposed assignee of a Lender hereunder,
which consent shall not be unreasonably delayed or withheld,
(B) each assignment to any assignee shall consist of an
assignment of a pro rata portion of each Commitment and the Loans
thereunder, (C) the assignee assumes a pro rata share of the
assignor Lender's obligations hereunder determined by the
percentage of the Commitments assigned, for the period from the
date of the assignment through the Maturity Date and (D) each
such assignment shall be in a principal amount of not less than
the lesser of the entire amount of such Lender's interest
hereunder, or $10,000,000.00 (except that assignments from one
Lender to another shall have no minimum amount). Each Lender who
sells or assigns a portion of its Loans pursuant hereto shall pay
to the Administrative Agent an assignment fee of $2,500.00 with
respect to each assignment, such fee to be paid to the
Administrative Agent not later than the effective date of the
assignment of the Loans relating thereto. Each Lender agrees to
provide the Administrative Agent and the Borrower with written
notice of the assignment of all or part of its rights hereunder,
and the Administrative Agent shall keep a record of all such
assignments in order to be able to calculate the Commitment
Ratios of the Lenders as of any time. All assignments by any of
the Lenders of any interests hereunder shall be made pursuant to
an Assignment and Assumption Agreement substantially in the form
attached hereto as Exhibit O. Each Lender may provide any
proposed participant or assignee with confidential information
provided to such Lender regarding the Borrower and its
Subsidiaries on a confidential basis, and such participant or
assignee shall agree to maintain such confidentiality. Further,
each permitted assignee of any portion of the Loans shall be
entitled to the benefits of Sections 2.10 and 2.12 and Article 10
hereof and all other provisions hereof and of the other Loan
Documents as a 'Lender' hereunder. Upon any assignment of the
Loans and the Commitments, the Commitment Ratios of the Lenders
shall be deemed to be amended to give effect thereto.
(c) Except as specifically set forth in
Section 11.5(b) 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.
(d) The provisions of this Section 11.5 shall not
apply to any purchase of participations among the Lenders
pursuant to Section 2.11 hereof.
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. All references
to the financial statements of the Borrower and to Cash Flow,
Total Debt, Fixed Charges, Pro Forma Debt Service, and other such
terms shall be deemed to refer to such items of the Borrower and
its Subsidiaries, on a fully consolidated basis.
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 NEW YORK. IF ANY ACTION OR
PROCEEDING SHALL BE BROUGHT BY ANY AGENT OR ANY LENDER HEREUNDER
IN ORDER TO ENFORCE ANY RIGHT OR REMEDY UNDER THIS AGREEMENT OR
UNDER 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
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. THE BORROWER, FOR
ITSELF AND ON BEHALF OF ITS SUBSIDIARIES, HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
Section 11.9 Severability. Any provision of this Agreement
which is prohibited or unenforceable 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
Prime Rate and the Eurodollar Rate 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 T\ATL 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 term hereof may be amended orally, nor may any provision
hereof be waived orally but only by an instrument in writing
signed by the Majority Lenders and, in the case of an amendment,
by the Borrower, except that in the event of (a) any increase in
the amount of either Commitment, (b) any delay or extension in
the terms of repayment of the Loans or the reduction of the
Revolving Loan Commitment provided in Section 2.4 hereof, (c) any
reduction in principal, interest or fees due hereunder or
postponement of the payment thereof or any reduction in or
postponement of any scheduled reduction in the Revolving Loan
Commitment (other than, in any such case, as provided in
Section 2.7 hereof), (d) any release of any portion of the
Collateral for the Loans, other than in connection with any
Permitted Asset Sale or other sale of assets permitted hereby
(which release shall require no further approval by the Lenders),
(e) any amendment to, consent to a deviation from, or waiver of
the provisions of, this Agreement which has the effect of
permitting the Borrower or any of its Subsidiaries to incur
secured Indebtedness other than as set forth in Sections 7.1 and
7.2 of this Agreement as of the Agreement Date, (f) any waiver of
any Default due to the failure by the Borrower to pay any sum due
to any of the Lenders hereunder, (g) any release of any Guaranty
of all 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), or (h) any amendment of this
Section 11.12, or of the definition of Majority Lenders or of any
portion of Section 2.10, 2.12, or 5.11 or Article 10 as they
relate to the relative priority of payment among the Obligations
or any provision which by its terms specifically requires the
consent, approval or satisfaction of all Lenders, 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 any 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. No term or provision of any Security Document may be
amended or waived orally, but only by an instrument in writing
signed by the Collateral Agent with the direction of the Majority
Banks and, in the case of an amendment, by such of the Borrower
and its Subsidiaries as are party thereto; provided, that the
written consent of all of the Lenders shall be required with
respect to any amendment to or waiver of the provisions of any
Security Document which would have the effect of (i) releasing
any portion of the Collateral for the Loans, other than in
connection with any Permitted Asset Sale or other sale of assets
permitted hereunder (which shall require no further approval by
the Lenders) or (ii) releasing any Guaranty of all 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).
The Agents and the Lenders hereby instruct and authorize the
Collateral Agent to enter into the amended and restated Security
Documents (and all other Loan Documents) referred to in Section
3.1 hereof as of the Agreement Date and any other Security
Documents required to be entered into by the Borrower or any of
its Subsidiaries hereunder.
Section 11.13 Entire Agreement. Except as otherwise
expressly provided herein, this Agreement and the other documents
described or contemplated herein 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 each 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, represen-
tations and warranties made herein or in any certificate
delivered pursuant hereto (i) shall be deemed to have been relied
upon by each of the Agents and 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. Notwithstanding anything herein which
may be construed to the contrary (including, without limitation,
Article 5 hereof), any right to indemnification hereunder,
including, without limitation, rights pursuant to Sections 2.10,
2.12, 5.11, 10.3 and 11.2 hereof, shall survive the termination
of this Agreement and the payment and performance of all other
Obligations.
Section 11.17 Senior Debt. The Indebtedness of the
Borrower evidenced by the Notes is secured by the Security
Documents and is intended by the parties hereto to be in parity
with the Interest Rate Hedge Agreements and senior in right of
payment to all other Indebtedness of the Borrower.
Section 11.18 Obligations Several. The obligations of each
of the Agents and the Lenders hereunder are several, not joint.
Section 11.19 Confidentiality. The Lenders shall hold all
non-public, proprietary or confidential information (which has
been identified as such by the Borrower) 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 banking practices; however,
the Lenders may make disclosure of any such information to their
examiners, Affiliates, outside auditors, counsel, consultants,
appraisers and other professional advisors 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 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
or involving any Lender. In no event shall any Lender be
obligated or required to return any materials furnished to it by
the Borrower. 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), (ii) is already in the possession of such Lender on a
nonconfidential basis, or (iii) comes into the possession of such
Lender in a manner not involving a breach of a duty of
confidentiality owing to the Borrower.
ARTICLE 12
Waiver of Jury Trial
Section 12.1 Waiver of Jury Trial. THE BORROWER, FOR
ITSELF AND ON BEHALF OF ITS SUBSIDIARIES, THE UNRESTRICTED
SUBSIDIARIES AND THE VCS SUBSIDIARY, AND EACH OF THE AGENTS AND
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 OR ANY UNRESTRICTED SUBSIDIARIES, ANY OF THE
LENDERS, THE AGENTS, OR ANY OF THEIR RESPECTIVE SUCCESSORS OR
ASSIGNS IS A PARTY, AS TO ALL MATTERS 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused it to be executed under seal by their duly
authorized officers, all as of the day and year first above
written.
VANGUARD CELLULAR SYSTEMS, INC.,
a North Carolina corporation
By:
Stephen L. Holcombe
Senior Vice President
[CORPORATE SEAL]
Attest:
Richard C. Rowlenson
Assistant Secretary
THE BANK OF NEW YORK, as Administrative
Agent, Managing Agent and Lender
By:
James W. Whitaker
Assistant Vice President
THE TORONTO-DOMINION BANK, as Documentation
Agent, Managing Agent and Lender
By:
Name:
Title:
TORONTO DOMINION (TEXAS), INC., as
Collateral Agent
By:
Name:
Title:
CIBC, INC., as Co-Agent and Lender
By:
Harold Birk
Vice President
Address:
425 Lexington Avenue
New York, NY 10017
LTCB TRUST COMPANY, as Co-Agent and Lender
By:
Name:
Title:
Address:
165 Broadway
49th Floor
New York, NY 10006
Attention: Business Administration
Department
With a copy to:
The Long-Term Credit Bank of Japan, Limited
Atlanta Representative Office
245 Peachtree Center Avenue, N.E.
Suite 2801, Marquis One Tower
Atlanta, GA 30303
NATIONSBANK OF NORTH CAROLINA, N.A., as
Co-Agent and Lender
By:
Jennifer L. Olson
Vice President
Address:
901 Main Street
64th Floor
Dallas, TX 75202
THE BANK OF NOVA SCOTIA, as Co-Agent and
Lender
By:
Vincent J. Fitzgerald, Jr.
Authorized Signatory
Address:
One Liberty Plaza
26th Floor
New York, NY 10006
THE FIRST NATIONAL BANK OF BOSTON, as
Co-Agent and Lender
By:
Mary E. Meduski
Vice President
Address:
100 Federal Street
Mail Stop: 01-08-08
Boston, MA 02110
ABN AMRO BANK N.V., as Lender
By:
Name:
Title:
By:
Name:
Title:
Address:
Patrick A. Thom
ABN AMRO Bank, N.V.
Atlanta Agency
1 Ravinia Drive, Suite 1200
Atlanta, GA 30346
Phone: (404) 396-0066
Facsimile: (404) 395-9188
With a copy to:
William H. Welch
Group Vice President
Communications Group
135 South LaSalle Street
Chicago, IL 60674-9135
Phone: (312) 904-2323
Facsimile: (312) 750-6217
THE BANK OF CALIFORNIA, N.A., as Lender
By:
Stephen Smith
Vice President
Address:
400 California Street
17th Floor
San Francisco, CA 94104
BANK OF HAWAII, as Lender
By:
Elizabeth O. MacLean
Vice President
Address:
130 Merchant Street
20th Floor
Honolulu, HI 96813
BANK OF MONTREAL, as Lender
By:
Name:
Title:
Address:
430 Park Avenue
New York, NY 10022
THE BANK OF TOKYO TRUST COMPANY, as Lender
By:
Charles S. Poer
Vice President and Manager
Address:
1251 Avenue of the Americas
12th Floor
New York, NY 10116
BANQUE NATIONALE DE PARIS, as Lender
By:
Name:
Title:
By:
Name:
Title:
Address:
499 Park Avenue
7th Floor
New York, NY 10022
BARCLAYS BANK PLC, as Lender
By:
Name:
Title:
Address:
388 Market Street
Suite 1700
San Francisco, CA 94111
CORESTATES BANK, N.A., as Lender
By:
Chris Kalmbach
Assistant Vice President
Address:
1500 Market Street, Centre Square West
FC 1-3-18-8
Philadelphia, PA 19101-7618
CREDIT LYONNAIS CAYMAN ISLAND BRANCH, as
Lender
By:
James E. Morris
Authorized Signature
Address:
1301 Avenue of the Americas
18th Floor
New York, NY 10019
Attn: Mr. James E. Morris
THE FIRST NATIONAL BANK OF MARYLAND, as
Lender
By:
Timothy A. Knabe
Vice President
Address:
25 South Charles Street
18th Floor
Baltimore, MD 21201
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, as Lender
By:
Lloyd R. Sams
Vice President
Address:
One First Union Center
TW-19
Charlotte, NC 28288-0735
FLEET NATIONAL BANK, as Lender
By:
Paula H. Lang
Vice President
Address:
111 Westminster Street
Providence, RI 02903
MERIDIAN BANK, as Lender
By:
Indu Madan
Assistant Vice President
Address:
One Liberty Place
Suite 3600
1650 Market Street
Philadelphia, PA 19103
NATIONAL WESTMINSTER BANK USA, as Lender
By:
Jeff Hoff
Vice President
Address:
175 Water Street
28th Floor
New York, NY 10038
ROYAL BANK OF CANADA, as Lender
By:
John Page
Senior Manager
Address:
Financial Square
New York, NY 10005-3531
Attn: Mr. John Page
SHAWMUT BANK CONNECTICUT, N.A., as Lender
By:
Name:
Title:
Address:
777 Main Street
MSN 397
Hartford, CT 06115
SOCIETE GENERALE, as Lender
By:
Name:
Title:
Address:
1221 Avenue of the Americas
New York, NY 10020
Phone: (212) 278-6873
Facsimile: (212) 278-6240
THE SUMITOMO TRUST & BANKING CO., LTD., NEW
YORK BRANCH, as Lender
By:
Name:
Title:
Address:
527 Madison Avenue
New York, NY 10022
AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (this
"Agreement"), made as of the 23rd day of December, 1994 by
Vanguard Cellular Systems, Inc., a North Carolina corporation
(the "Borrower") in favor of Toronto Dominion (Texas), Inc., as
collateral agent for itself and on behalf of the Agents and the
Lenders described below (the "Collateral Agent"),
W I T N E S S E T H
WHEREAS, prior to the date hereof, the Borrower, certain of
the Lenders (as defined below) and certain other lenders
(collectively, the "Original Lenders") and certain of the Agents,
as defined below (collectively, the "Original Agents"), entered
into a Loan Agreement dated as of April 21, 1993, as amended by
First Amendment thereto dated as of January 31, 1994, and Second
Amendment thereto dated as of June 30, 1994 (as amended, the
"Original Loan Agreement"), pursuant to which the Original
Lenders agreed to lend to the Borrower amounts not exceeding
$390,000,000 in the aggregate;
WHEREAS, in order to secure the the Borrower's obligations
to the Original Lenders under the Original Loan Agreement, the
Borrower entered into a Security Agreement dated as of April 21,
1993 (the "Original Security Agreement"), in favor of the
Collateral Agent for the benefit of the Original Lenders;
WHEREAS, the Borrower, the Collateral Agent, CIBC, Inc.,
LTCB Trust Company, NationsBank of North Carolina, N.A., The Bank
of Nova Scotia and The First National Bank of Boston, as co-
agents (collectively, the "Co-Agents"), The Bank of New York, as
administrative agent (the "Administrative Agent"), The Toronto-
Dominion Bank, as documentation/review agent (the "Documentation
Agent"), The Bank of New York and The Toronto-Dominion Bank, as
managing agents (the "Managing Agents" and, collectively with the
Co-Agents, the Administrative Agent, the Documentation Agent and
the Collateral Agent, the "Agents"), and the Lenders signatory
thereto (together with any other financial institution which
subsequently becomes a `Lender' under the Loan Agreement, as such
term is defined therein, the "Lenders") have agreed to amend and
restate in its entirety the Original Loan Agreement pursuant to
the terms and conditions of the Amended and Restated Loan
Agreement dated as of December 23, 1994 (as amended, modified or
supplemented from time to time, the "Loan Agreement");
WHEREAS, pursuant to the Loan Agreement the Lenders have
agreed as of the Agreement Date to lend to the Borrower amounts
not exceeding $675,000,000 in the aggregate (the "Loans");
WHEREAS, the Borrower desires to amend, restate,
restructure, renew, extend, consolidate and modify the Original
Security Agreement as set forth herein;
WHEREAS, this Agreement is intended to, and does hereby,
amend, restate, restructure, renew, extend, consolidate,
supplement and modify the Original Security Agreement and the
provisions of the Original Security Agreement are hereby
superseded and replaced by the provisions hereof; and
WHEREAS, the Borrower acknowledges and agrees that the
parties hereto intend that the Original Security Agreement and
the collateral furnished thereunder and hereunder shall secure,
without interruption or impairment of any kind, all existing
indebtedness under the Original Loan Agreement as so amended,
restated, restructured, renewed, extended, consolidated,
supplemented and modified under the Loan Agreement, the Notes and
the other Loan Documents, together with all other Obligations
hereunder and the Borrower ratifies, confirms and agrees to
continue all Liens evidenced by the Original Security Agreement;
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Borrower hereby
unconditionally grants and assigns to the Collateral Agent a
continuing security interest in and security title to
(hereinafter referred to as the "Security Interest"), except as
expressly stated herein, all of its property and assets and all
additions thereto and replacements thereof, and all other
property whether now owned or hereafter created, acquired or
reacquired by the Borrower, including, without limitation:
Inventory
All of the Borrower's inventory and supplies of whatsoever
nature and kind and wheresoever situated, including, without
limitation, raw materials, components, work in process, finished
goods, goods in transit and packing and shipping materials,
accretions and accessions thereto, trust receipts and similar
documents covering the same products (the "Inventory");
Accounts
All right to payment for goods sold or leased or for
services rendered, expressly including, without limitation, the
provision of cellular telephone services and cellular telephone
sales and leasing, whether or not earned by performance,
including, without limiting the generality of the foregoing, all
agreements with and sums due from customers and other Persons,
and all books and records recording, evidencing or relating to
such rights or any part thereof (the "Accounts");
Equipment
All machinery, equipment and supplies (installed and
uninstalled) not included in Inventory above, including motor
vehicles and accretions and accessions thereto; and expressly
including, without limitation of the foregoing, towers, antennas
and equipment located at mobile telephone switching office
facilities; any distribution systems and all components thereof,
including but not limited to hardware, cables, fiber optic
cables, switches, CODECs, computer equipment, amplifiers and
associated devices; and any other equipment used in connection
with the Borrower's business or otherwise owned by the Borrower
(the "Equipment");
Contracts and Leases
All (a) construction contracts, subscriber contracts,
customer service agreements, management agreements, rights of
way, easements, pole attachment agreements, transmission capacity
agreements, public utility contracts and other agreements to
which the Borrower is a party, whether now existing or hereafter
arising, including without limitation those listed on Exhibit A
hereto (the "Contracts"); (b) lease agreements for personal
property to which the Borrower is a party, whether now existing
or hereafter arising including without limitation those listed on
Exhibit B hereto (the "Leases"); and (c) other contracts and
contractual rights, remedies or provisions now existing or
hereafter arising in favor of the Borrower (the "Other
Contracts");
General Intangibles
All general intangibles including personal property not
included above, such as, without limitation, all goodwill,
trademarks, trademark applications, trade names, trade secrets,
industrial designs, other industrial or intellectual property or
rights therein, whether under license or otherwise, claims for
tax refunds and tax refund amounts (the "Intangibles");
Licenses
To the extent permitted by Applicable Law and subject to
Sections 22 and 24 hereof, all franchises, Licenses, permits and
operating rights authorizing or relating to the Borrower's rights
to operate and maintain a cellular telecommunications or similar
business including, without limitation, the Licenses, all as more
particularly described on Exhibit C attached hereto (the
"Licenses");
Furniture and Fixtures
All furniture and fixtures in which the Borrower has an
interest (the "Furniture and Fixtures");
Miscellaneous Items
All goods, chattel paper, documents, instruments, supplies,
choses in action, claims, money, deposits, certificates of
deposit, stock or share certificates, and licenses and other
rights in intellectual property not included above, but expressly
excluding any capital stock or share certificates of Geotek
Communications, Inc., to the extent that such capital stock or
share certificates constitute "margin stock" within the meaning
of Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System (the "Miscellaneous Items"); and
Proceeds
All products and proceeds of any of the above, and all
proceeds of any loss of, damage to or destruction of the above,
whether insured or not insured, and all other proceeds of any
sale, lease or other disposition of any property or interest
therein referred to above, or of any franchise, license, permit
or operating right issued by the FCC or any other governmental or
regulatory body or agency, whether or not constituting a License,
including, without limitation, the proceeds of the sale or other
disposition of any License, together with all proceeds of any
policies of insurance covering any or all of the above, the
proceeds of any award in condemnation with respect to any of the
property of the Borrower, any rebates or refunds, whether for
taxes or otherwise, and together with all proceeds of any such
proceeds (the "Proceeds").
The Inventory, Accounts, Equipment, Contracts, Other
Contracts, Leases, Intangibles, Licenses, Furniture and Fixtures,
Miscellaneous Items and Proceeds, as described above, are
hereinafter collectively referred to as the "Collateral."
This Agreement and the Security Interest secure the payment
and performance of all obligations of the Borrower to the Lenders
and the Agents, or any of them, under the Loan Agreement, the
Notes and every other Loan Document to which the Borrower is
party and any extensions, renewals or amendments thereto, and all
other Obligations (as defined in the Loan Agreement) however
created, acquired, arising or evidenced, whether direct or
indirect, absolute or contingent, now or hereafter existing, or
due or to become due (all of the foregoing obligations being
hereinafter collectively referred to as the "Obligations").
TO HAVE AND TO HOLD UNTO the Collateral Agent, for the
benefit of itself and on behalf of the Agents and the Lenders,
their successors and assigns forever, upon and subject to the
following terms and conditions:
1. For purposes of this Agreement, capitalized terms used
herein, and not otherwise defined herein, shall have the meanings
ascribed thereto in the Loan Agreement.
2. The Borrower hereby authorizes the Collateral Agent to
file such financing statements and such other documents as the
Collateral Agent may deem necessary or desirable to protect or
perfect the interest of the Lenders and the Agents in the
Collateral, and the Borrower further irrevocably appoints the
Collateral Agent as the Borrower's attorney-in-fact, with a power
of attorney to execute on behalf of the Borrower such UCC
financing statement forms as the Collateral Agent may from time
to time deem reasonably necessary or desirable to protect or
perfect such interest in the Collateral. Such power of attorney
is coupled with an interest and shall be irrevocable. In
addition, the Borrower agrees to make, execute, deliver or cause
to be done, executed and delivered all such further acts,
documents and things as the Collateral Agent may reasonably
require for the purpose of perfecting or protecting the rights of
the Lenders and the Agents hereunder or otherwise giving effect
to this Agreement, all promptly upon request therefor.
3. The Borrower represents and warrants to the Lenders and
the Agents that:
(a) the execution of this Agreement and the
fulfillment of the terms hereof will not result in a breach
of any of the terms or provisions of, or constitute a
default under, the Borrower's Articles of Incorporation or
By-Laws as presently in effect, or any order, rule or
regulation applicable to the Borrower of any court or of any
Federal or state regulatory body or administrative agency or
other governmental body having jurisdiction over the
Borrower, or result in the termination or cancellation or
breach of any indenture, mortgage, deed of trust, deed to
secure debt, lease or other agreement or instrument to which
the Borrower is party or by which it is bound or affected;
(b) the Borrower has taken all necessary corporate
action to authorize the execution and delivery of this
Agreement, and this Agreement, when executed and delivered,
will be the valid and binding obligation of the Borrower
enforceable in accordance with its terms, subject only to
the following qualifications:
(i) certain equitable remedies are discretionary
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) enforcement as to the Licenses is limited by
FCC rules and regulations restricting the transfer of
such Licenses.
(c) Exhibit A attached hereto and incorporated herein
by this reference sets forth a complete and accurate list of
the Contracts in effect on the date hereof which provide for
aggregate payments over the life of each such Contract in
excess of $250,000 or which are otherwise material to the
Borrower, and the Borrower will furnish copies thereof to
the Lenders and the Agents upon the request of the
Collateral Agent; and
(d) Exhibit B attached hereto and incorporated herein
by this reference sets forth a complete and accurate list of
all Leases providing for aggregate payments over the life of
any single Lease in excess of $100,000, to which the
Borrower is party in effect on the date hereof, and the
Borrower will furnish copies thereof to the Lenders and the
Agents upon the request of the Collateral Agent.
4. The Borrower further represents and warrants that the
Security Interest in the Collateral granted hereunder shall
constitute at all times a valid and perfected first priority
security interest (subject only to Permitted Liens), vested in
the Collateral Agent in and upon the Collateral, free of any
Liens except for Permitted Liens. The Borrower shall take or
cause to be taken such acts and actions as shall be necessary or
appropriate to assure that the Security Interest in the
Collateral shall not become subordinate or junior to the security
interests, liens or claims of any other Person, and that the
Collateral shall not otherwise be or become subject to any Lien,
except for Permitted Liens.
5. The Borrower further represents and warrants that it
now keeps all of its records concerning its Accounts, Contracts,
Leases, Other Contracts and Intangibles at its chief executive
office, which is the address set forth with respect to the
Borrower in Section 11.1 of the Loan Agreement. The Borrower
covenants and agrees that it shall not keep any of such records
at any other address, unless written notice thereof is given to
the Collateral Agent at least thirty (30) days prior to the
creation of any new address for the keeping of such records. The
Borrower further agrees that it shall promptly advise the
Collateral Agent, in writing making reference to this Section 5
of this Agreement, of the opening of any material new place of
business the closing of any existing material place of business,
or any change in the location of the place where it keeps the
Collateral.
6. The parties intend that, to the extent permitted by
Applicable Law, the Collateral shall remain personal property
irrespective of the manner of its attachment or affixation to
realty.
7. Any and all injury to, or loss or destruction of, the
Collateral shall be at the Borrower's risk, and shall not release
the Borrower from its obligations hereunder. The Borrower agrees
not to sell, transfer, assign, dispose of, mortgage, grant a
security interest in or encumber any of the Collateral except as
permitted under the Loan Agreement. The Borrower agrees to
maintain in force such insurance with respect to the Collateral
as is required under the Loan Agreement. The Borrower agrees to
pay all required taxes, liens and assessments upon the
Collateral, its use or operation, as required under the Loan
Agreement. The Borrower further agrees that the Collateral Agent
may, but shall in no event be obligated to, insure any of the
Collateral in such form and amount as the Collateral Agent may
deem necessary or desirable if the Borrower fails to obtain
insurance as required by the Loan Agreement, and that the
Collateral Agent may pay or discharge any taxes or Liens (which
are not Permitted Liens) on any of the Collateral, and the
Borrower agrees to pay any such sum so expended by the Collateral
Agent, with interest at the Default Rate, and such interest shall
be deemed to be a part of the Obligations secured by the
Collateral under the terms of this Agreement.
8. The Borrower shall (i) fulfill, perform and observe
each and every material condition and covenant contained in any
of the Contracts, the Other Contracts or the Leases, (ii) give
prompt notice to the Collateral Agent of any claim of default
under any Contract, Other Contract or Lease given to the Borrower
or by the Borrower, (iii) at the sole cost and expense of the
Borrower, enforce the performance and observance of each and
every material covenant and condition of the Contracts, the Other
Contracts and the Leases and (iv) appear in and defend any action
growing out of or in any manner connected with any Contract,
Other Contract or Lease. The rights and interests granted to the
Collateral Agent hereunder include all of the Borrower's rights
and title (i) to modify the Contracts, the Other Contracts and
the Leases, (ii) to terminate the Contracts, the Other Contracts
and the Leases and (iii) to waive or release the performance or
observance of any obligation or condition of the Contracts, the
Other Contracts and the Leases; provided, however, that the
Borrower shall have the right to exercise these rights in a
fashion consistent with this Agreement and the Loan Agreement
prior to any Default (as defined below), and that these rights
shall not be exercised by the Collateral Agent prior to a Default
(as defined below).
9. Upon the occurrence and during the continuation of an
Event of Default (hereinafter, a "Default"), the Lenders and the
Agents shall have such rights and remedies as are set forth in
the Loan Agreement and herein; all the rights, powers and
privileges of a secured party under the Uniform Commercial Code
of the State of New York and any other applicable jurisdiction;
and all other rights and remedies available to the Lenders and
the Agents, or any of them, at law or in equity, including,
without limitation, the right to sell or dispose of the
Collateral in accordance with Applicable Law. The Borrower
covenants and agrees that any notification of intended
disposition of any Collateral, if such notice is required by law,
shall be deemed reasonably and properly given if given in the
manner provided for in paragraph 19 hereof at least ten (10) days
prior to such disposition. The Collateral Agent shall have the
right to the appointment of a receiver for the properties and
assets of the Borrower, and the Borrower hereby consents to such
rights and to such appointment and hereby waives any objection
the Borrower may have thereto and hereby waives the right to have
a bond or other security posted by the Collateral Agent or any
other Person in connection therewith. The Borrower agrees, after
the occurrence of a Default, to take any actions that the
Collateral Agent may reasonably request in order to enable the
Collateral Agent to obtain and enjoy the full rights and benefits
granted to the Collateral Agent under this Agreement and the
other Loan Documents. Without limiting the generality of the
foregoing, the Borrower shall, at the Borrower's cost and
expense, use its best efforts to assist in obtaining all
approvals of the FCC or the State of New York Public Service
Commission, as applicable, which are then required by law for or
in connection with any action or transaction contemplated by this
Agreement or Article 9 of the Uniform Commercial Code as in
effect in any applicable jurisdiction, and, at the Collateral
Agent's request, prepare, sign and file with the FCC or the State
of New York Public Service Commission, as applicable, the
assignor's or transferor's portion of any application or
applications for consent to the assignment of the Licenses or
transfer of control thereof necessary or appropriate under the
FCC's or the State of New York Public Service Commission's, as
applicable, rules for approval of any sale or transfer of the
Collateral Agent's remedies under this Agreement. The Collateral
Agent shall have the right, in connection with the issuance of
any order for relief in a bankruptcy proceeding to petition the
bankruptcy court for the transfer of control or assignment of the
Licenses to a receiver, trustee, transferee, or similar official
or to any purchaser of the Collateral pursuant to any public or
private sale, foreclosure or other exercise of remedies available
to the Collateral Agent, all as permitted by Applicable Law. All
amounts realized or collected through the exercise of remedies
hereunder shall be applied as provided in the Loan Agreement.
10. Upon the occurrence of a Default, the Collateral Agent
or its designee, may proceed to perform any and all of the
obligations of the Borrower contained in any of the Contracts,
Other Contracts or Leases and exercise any and all rights of the
Borrower therein contained as fully as the Borrower itself could.
The Borrower hereby appoints the Collateral Agent its
attorney-in-fact, with power of substitution, to take such
action, execute such documents, and perform such work, as the
Collateral Agent may deem appropriate in exercise of the rights
and remedies granted the Lenders and the Agents, or any of them,
herein or in any other Loan Document. The powers herein granted
shall include, but not be limited to, powers to: (i) sue on the
Contracts, the Other Contracts or the Leases; (ii) seek all
governmental approvals (other than FCC approvals) required for
the operation of the business of the Borrower; (iii) modify or
terminate the Contracts, the Other Contracts and the Leases; and
(iv) waive or release the performance or observance of any
obligation under any of the Contracts, Other Contracts or Leases.
The power of attorney granted herein is coupled with an interest
and shall be irrevocable.
11. Upon the occurrence of a Default, should the Borrower
fail to perform or observe any covenant or comply with any
condition contained in any of the Contracts, the Other Contracts
or the Leases, then the Collateral Agent may, but without
obligation to do so and without releasing the Borrower from its
obligation to do so, perform such covenant or condition and, to
the extent that the Collateral Agent shall incur any costs or pay
any expenses in connection therewith, including any reasonable
costs or expenses of litigation associated therewith, such costs,
expenses or payments shall be included in the Obligations secured
hereby and shall bear interest from the payment of such costs or
expenses by the Collateral Agent at the Default Rate. None of
the Lenders or the Agents shall be obliged to perform or
discharge any obligation of the Borrower under any of the
Contracts, the Other Contracts or the Leases, and, except as may
result from the gross negligence or willful misconduct of the
Person seeking indemnification as determined by a final order of
a court of competent jurisdiction, the Borrower agrees to
indemnify and hold harmless each Lender and each Agent against
any and all liability, loss or damage which any such Person may
incur under any of the Contracts, the Other Contracts or the
Leases or under or by reason of this Agreement, and any and all
claims and demands whatsoever which may be asserted against the
Borrower by reason of an act of any Lender or any Agent under any
of the terms of this Agreement or under the Contracts, the Other
Contracts or the Leases.
12. The Borrower hereby further appoints the Collateral
Agent as its attorney-in-fact, with power of substitution, with
authority to collect all Accounts, to endorse the name of the
Borrower on any note, acceptance, check, draft, money order or
other evidence of debt or of payment which constitutes a portion
of the Collateral and which may come into the possession of the
Lenders and the Agents, or any of them, and generally to do such
other things and acts in the name of the Borrower with respect to
the Collateral as are necessary or appropriate to protect or
enforce the rights hereunder of the Lenders and the Agents. The
Borrower further authorizes the Collateral Agent, effective upon
the occurrence of a Default, to compromise and settle or to sell,
assign or transfer or to ask, collect, receive or issue any and
all claims possessed by the Borrower which constitute a portion
of the Collateral, all in the name of the Borrower. After
deducting all reasonable expenses and charges (including the
Collateral Agent's attorneys' fees) of retaking, keeping, storing
and selling the Collateral, the Collateral Agent may apply the
proceeds in payment of any of the Obligations in the order of
application set forth in the Loan Agreement. The power of
attorney granted herein is coupled with an interest and shall be
irrevocable. The Borrower agrees that if steps are taken by the
Collateral Agent to enforce its rights hereunder, or to realize
upon any of the Collateral, the Borrower shall pay to the
Collateral Agent the amount of the Collateral Agent's costs,
including attorneys' fees, and the Borrower's obligation to pay
such amounts shall be deemed to be a part of the Obligations
secured hereunder.
13. The Borrower shall indemnify and hold harmless each
Lender and each Agent and any other Person acting hereunder for
all losses, costs, damages, fees and expenses whatsoever
associated with the exercise of the powers of attorney granted
herein and shall release each Lender and each Agent and any other
Person acting hereunder from all liability whatsoever for the
exercise of the foregoing powers of attorney and all actions
taken pursuant thereto, except, in either event, in the case of
gross negligence or willful misconduct by the Person seeking
indemnification as determined by a final order of a court of
competent jurisdiction.
14. The Borrower agrees that the rights of the Lenders and
the Agents, or any of them, under this Agreement, the Loan
Agreement, any other Loan Document, or any other contract or
agreement now or hereafter in existence among the Lenders and the
Agents and the Borrower or any Subsidiary of the Borrower and any
other obligors thereunder, or any of them, shall be cumulative,
and that each Lender and each Agent may from time to time
exercise such rights and such remedies as such Person or Persons
may have thereunder and under the laws of the United States or
any state, as applicable, in the manner and at the time that such
Person or Persons in its or their sole discretion desire, subject
to the terms of such agreements. The Borrower further expressly
agrees that the Lenders and the Agents shall in no event be under
any obligation to resort to any Collateral prior to exercising
any other rights that the Lenders and the Agents, or any of them,
may have against the Borrower or any Subsidiary of the Borrower
or any other obligor or any of their respective properties, nor
shall the Lenders and the Agents be obliged to resort to any
other collateral or security for the Obligations, other than the
Collateral, prior to any exercise of rights against the Borrower
and its property hereunder.
15. The Borrower hereby acknowledges that the Obligations
arose out of a commercial transaction, and agrees that if a
Default shall occur, the Collateral Agent shall have the right to
immediate possession without notice or a hearing, and hereby
knowingly and intelligently waives any and all rights it may have
to any notice and posting of a bond by the Lenders and the
Agents, or any of them, prior to seizure by the Collateral Agent
or any of its transferees, assigns or successors in interest, of
the Collateral or any portion thereof.
16. No transfer or renewal, extension, assignment or
termination of this Agreement or of the Loan Agreement or of any
other Loan Document, or of any instrument or document executed
and delivered by the Borrower or any other obligor to the Lenders
and the Agents, or any of them, nor additional advances made by
the Lenders and the Agents, or any of them, to the Borrower, nor
the taking of further security, nor the retaking or re-delivery
of the Collateral to the Borrower by the Lenders and the Agents,
or any of them, nor any other act of the Lenders and the Agents,
or any of them, shall release the Borrower from any Obligation,
except a release or discharge executed in writing by the
Collateral Agent in accordance with the Loan Agreement with
respect to such Obligation or upon full payment, performance and
satisfaction of all Obligations and termination of the
Commitments. None of the Lenders or the Agents shall by any act,
delay, omission or otherwise, be deemed to have waived any of its
or their rights or remedies hereunder, unless such waiver is in
writing and signed by the Collateral Agent in accordance with the
Loan Agreement and then only to the extent therein set forth. A
waiver by the Lenders and the Agents, or any of them, of any
right or remedy on any occasion shall not be construed as a bar
to the exercise of any such right or remedy which any such Person
would otherwise have had on any other occasion.
17. Neither this Agreement nor any of the Borrower's rights
or obligations hereunder may be assigned by the Borrower to any
other Person. The Borrower agrees that this Agreement or the
rights hereunder may in the discretion of the Lenders and the
Agents, as applicable, be assigned in whole or in part in
connection with any assignment of the Loan Agreement or the
Indebtedness evidenced thereby, as permitted thereunder. In the
event this Agreement or the rights hereunder are so assigned by
any of the Lenders, the Co-Agents, the Agents, the Managing
Agents, the Administrative Agent, the Documentation Agent and the
Collateral Agent, the terms "Lenders", "Co-Agents", "Agents",
"Managing Agents", "Administrative Agent", "Documentation Agent"
or "Collateral Agent" wherever used herein shall be deemed, as
applicable, to refer to and include any such assignee.
18. The Collateral Agent is hereby authorized to date this
Agreement as of the date signed by the Borrower. This Agreement
shall apply to and bind the respective successors and assigns of
the Borrower and inure to the benefit of the successors and
permitted assigns of the Lenders and the Agents.
19. All notices and other communications required or
permitted hereunder shall be in writing and shall be given in the
manner prescribed in Section 11.1 of the Loan Agreement.
20. THE PROVISIONS OF THIS AGREEMENT SHALL BE CONSTRUED AND
INTERPRETED, AND ALL RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO
DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE
STATE OF NEW YORK. THIS AGREEMENT, TOGETHER WITH ALL DOCUMENTS
REFERRED TO HEREIN, CONSTITUTES THE ENTIRE AGREEMENT AMONG THE
BORROWER, THE LENDERS AND THE AGENTS WITH RESPECT TO THE MATTERS
ADDRESSED HEREIN, AND MAY NOT BE MODIFIED EXCEPT BY A WRITING
EXECUTED BY THE COLLATERAL AGENT AND THE BORROWER AND DELIVERED
BY THE COLLATERAL AGENT TO THE BORROWER IN ACCORDANCE WITH THE
LOAN AGREEMENT.
21. If any paragraph or part thereof of this Agreement
shall for any reason be held or adjudged to be invalid, illegal
or unenforceable by any court of competent jurisdiction, such
paragraph or part thereof so adjudicated invalid, illegal or
unenforceable shall be deemed separate, distinct and independent,
and the remainder of this Agreement shall remain in full force
and effect and shall not be affected by such holding or
adjudication.
22. Notwithstanding anything herein which may be construed
to the contrary, no action shall be taken by the Collateral Agent
with respect to the Licenses issued by the FCC or any
governmental or other authority unless and until all requirements
of Applicable Law requiring notice to, or consent or approval of
such action by, the FCC or any governmental or other authority,
have been satisfied, including, without limitation, any required
approval of the FCC under the Federal Communications Act of 1934
as amended, and any applicable rules and regulations thereunder,
including, without limitation, the provision for ten (10) days'
notice to the FCC and to the Borrower of any such action to the
extent required by 47 C.F.R. (Section Mark) 22.917(e). The Borrower covenants
that upon request of the Collateral Agent it will cause to be
filed such applications and take such other action as may be
requested by the Collateral Agent to obtain consent or approval
of the FCC or any governmental or other authority which has
granted any License to the Borrower to any action contemplated by
this Agreement and to give effect to the Security Interest of the
Collateral Agent, including, without limitation, the execution of
an application for consent by the FCC to an assignment or
transfer involving a change in ownership or control pursuant to
the provisions of the Federal Communications Act of 1934 as
amended.
23. 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.
24. The parties acknowledge their intent that, upon the
occurrence of a Default, the Collateral Agent shall receive, to
the fullest extent permitted by Applicable Law and governmental
policy (including, without limitation, the rules, regulations and
policies of the FCC), all rights necessary or desirable to
obtain, use or sell the Collateral, and to exercise all remedies
available to it under this Agreement, the Uniform Commercial Code
as in effect in any applicable jurisdiction, or other Applicable
Law. The parties further acknowledge and agree that, in the
event of changes in law or governmental policy occurring
subsequent to the date hereof, that affect in any manner the
Collateral Agent's rights of access to, or use or sale of, the
Collateral, or the procedures necessary to enable the Collateral
Agent to obtain such rights of access, use or sale, the
Collateral Agent and the Borrower shall amend this Agreement in
such manner as the Collateral Agent shall reasonably request, in
order to provide the Collateral Agent such rights to the greatest
extent possible consistent with Applicable Law and governmental
policy.
25. Each reference herein to any right granted to, benefit
conferred upon or power exercisable by the "Collateral Agent"
shall be a reference to the Collateral Agent for the benefit of
all the Lenders and the Agents, and each action taken or right
exercised hereunder shall be deemed to have been so taken or
exercised by the Collateral Agent for the benefit of and on
behalf of all the Lenders and the Agents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands and affixed their seals, by and through their duly
authorized representatives, as of the day and year first written
above.
BORROWER: VANGUARD CELLULAR SYSTEMS, INC.,
a North Carolina corporation
By:
Stephen L. Holcombe
Senior Vice President
[CORPORATE SEAL]
Attest:
Richard C. Rowlenson
Assistant Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[SIGNATURES FOR AMENDED AND RESTATED
SECURITY AGREEMENT CONTINUED]
COLLATERAL AGENT: TORONTO DOMINION (TEXAS), INC.
By:
Title:
Exhibit A - Contracts
Exhibit B - Leases
Exhibit C - Licenses
EXHIBIT A TO SECURITY AGREEMENT
CONTRACTS
EXHIBIT B TO SECURITY AGREEMENT
LEASES
EXHIBIT C TO SECURITY AGREEMENT
LICENSES
AMENDED AND RESTATED
MASTER SUBSIDIARY SECURITY AGREEMENT
THIS AMENDED AND RESTATED MASTER SECURITY AGREEMENT (this
"Agreement"), made as of the 23rd day of December, 1994 by
Altoona CellTelCo, a District of Columbia general partnership;
Atlantic Cellular Telephone Corp., a North Carolina corporation;
Binghamton CellTelCo, a District of Columbia general partnership;
Binghamton Cellular Telephone Corp., a North Carolina
corporation; Cellular Directory Corporation, a North Carolina
corporation; Crowley Cellular Telecommunications Binghamton,
Inc., a Delaware corporation ("Crowley Cellular"); Hagerstown
Cellular Telephone Corp., a North Carolina corporation; Long
Distance One, Inc., a North Carolina corporation; Orange County
Cellular Telephone Corp., a North Carolina corporation;
Pennsylvania Cellular Telephone Corp., a North Carolina
corporation; Piscataqua Cellular Telephone Corp., a North
Carolina corporation; PLMRS Narrowband Corp., a North Carolina
corporation; Teleflex Information Systems, Inc., a North Carolina
corporation; Vanguard Acquisition Corp., a North Carolina
corporation; Vanguard Cellular Corp., a North Carolina
corporation; Vanguard Cellular Holding Corp., a Delaware
corporation; Vanguard Cellular Operating Corp., a Delaware
corporation; Vanguard Cellular Systems of South Carolina, Inc., a
North Carolina corporation; Vanguard India, Inc., a Delaware
corporation; Vanguard International Telecommunications, Inc., a
North Carolina corporation; Vanguard Israel, Inc., a North
Carolina corporation; Vanguard Uruguay Corp., a North Carolina
corporation; Warren and Lewis, Ltd., a Virginia corporation; West
Virginia Cellular Telephone Corp., a West Virginia corporation;
and Western Florida Cellular Telephone Corp., a North Carolina
corporation (each a "Subsidiary" and, collectively, the
"Subsidiaries) in favor of Toronto Dominion (Texas), Inc., as
collateral agent for itself and on behalf of the Agents and the
Lenders described below (the "Collateral Agent"),
W I T N E S S E T H
WHEREAS, prior to the date hereof, Vanguard Cellular
Systems, Inc., a North Carolina corporation (the "Borrower"),
certain of the Lenders (as defined below) and certain other
lenders (collectively, the "Original Lenders") and certain of the
Agents, as defined below (collectively, the "Original Agents"),
entered into a Loan Agreement dated as of April 21, 1993, as
amended by First Amendment thereto dated as of January 31, 1994,
and Second Amendment thereto dated as of June 30, 1994 (as
amended, the "Original Loan Agreement"), pursuant to which the
Original Lenders agreed to lend to the Borrower amounts not
exceeding $390,000,000 in the aggregate;
WHEREAS, in order to secure the the Borrower's obligations
to the Original Lenders under the Original Loan Agreement,
certain of the Guarantors entered into a Master Subsidiary
Security Agreement dated as of April 21, 1993 (the "Master
Security Agreement") and Crowley Cellular entered into a
Subsidiary Security Agreement dated as of December 14, 1994 (the
"Crowley Security Agreement" and, together with the Master
Security Agreement, the "Original Security Agreements"), each in
favor of the Collateral Agent for the benefit of the Original
Lenders;
WHEREAS, the Borrower, the Collateral Agent, CIBC, Inc.,
LTCB Trust Company, NationsBank of North Carolina, N.A., The Bank
of Nova Scotia and The First National Bank of Boston, as co-
agents (collectively, the "Co-Agents"), The Bank of New York, as
administrative agent (the "Administrative Agent"), The Toronto-
Dominion Bank, as documentation/review agent (the "Documentation
Agent"), The Bank of New York and The Toronto-Dominion Bank, as
managing agents (the "Managing Agents" and, collectively with the
Co-Agents, the Administrative Agent, the Documentation Agent and
the Collateral Agent, the "Agents"), and the Lenders signatory
thereto (together with any other financial institution which
subsequently becomes a `Lender' under the Loan Agreement, as such
term is defined therein, the "Lenders") have agreed to amend and
restate in its entirety the Original Loan Agreement pursuant to
the terms and conditions of the Amended and Restated Loan
Agreement dated as of December 23, 1994 (as amended, modified or
supplemented from time to time, the "Loan Agreement");
WHEREAS, pursuant to the Loan Agreement the Lenders have
agreed as of the Agreement Date to lend to the Borrower amounts
not exceeding $675,000,000 in the aggregate (the "Loans");
WHEREAS, the Subsidiaries desire to amend, restate,
restructure, renew, extend, consolidate and modify the Original
Security Agreements as set forth herein;
WHEREAS, this Agreement is intended to, and does hereby,
amend, restate, restructure, renew, extend, consolidate,
supplement and modify the Original Security Agreements and the
provisions of the Original Security Agreements are hereby
superseded and replaced in their entireties by the provisions
hereof; and
WHEREAS, the Subsidiaries acknowledge and agree that the
parties hereto intend that the Original Security Agreements and
the collateral furnished thereunder and hereunder shall secure,
without interruption or impairment of any kind, to the extent
provided in the Master Subsidiary Guaranty (as hereinafter
defined) all existing indebtedness under the Original Loan
Agreement as so amended, restated, restructured, renewed,
extended, consolidated, supplemented and modified under the Loan
Agreement, the Notes and the other Loan Documents, together with
all other Obligations hereunder and the Subsidiaries, ratify,
confirm and agree to continue all Liens evidenced by the Original
Security Agreements;
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, each of the Subsidiaries, as a
direct or indirect Subsidiary of the Borrower, hereby
unconditionally grants and assigns to the Collateral Agent a
continuing security interest in and security title to
(hereinafter referred to as the "Security Interest"), except as
expressly stated herein, all of its property and assets and all
additions thereto and replacements thereof, and all other
property whether now owned or hereafter created, acquired or
reacquired by such Subsidiary, including, without limitation:
Inventory
All of such Subsidiary's inventory and supplies of
whatsoever nature and kind and wheresoever situated, including,
without limitation, raw materials, components, work in process,
finished goods, goods in transit and packing and shipping
materials, accretions and accessions thereto, trust receipts and
similar documents covering the same products (the "Inventory");
Accounts
All right to payment for goods sold or leased or for
services rendered, expressly including, without limitation, the
provision of cellular telephone services and cellular telephone
sales and leasing, whether or not earned by performance,
including, without limiting the generality of the foregoing, all
agreements with and sums due from customers and other Persons,
and all books and records recording, evidencing or relating to
such rights or any part thereof (the "Accounts");
Equipment
All machinery, equipment and supplies (installed and
uninstalled) not included in Inventory above, including motor
vehicles and accretions and accessions thereto; and expressly
including, without limitation of the foregoing, towers, antennas
and equipment located at mobile telephone switching office
facilities; any distribution systems and all components thereof,
including but not limited to hardware, cables, fiber optic
cables, switches, CODECs, computer equipment, amplifiers and
associated devices; and any other equipment used in connection
with such Subsidiary's business or otherwise owned by such
Subsidiary (the "Equipment");
Contracts and Leases
All (a) construction contracts, subscriber contracts,
customer service agreements, management agreements, rights of
way, easements, pole attachment agreements, transmission capacity
agreements, public utility contracts and other agreements to
which such Subsidiary is a party, whether now existing or
hereafter arising, including without limitation those listed on
Exhibit A hereto (the "Contracts"); (b) lease agreements for
personal property to which such Subsidiary is a party, whether
now existing or hereafter arising, including without limitation
those listed on Exhibit B hereto (the "Leases"); and (c) other
contracts and contractual rights, remedies or provisions now
existing or hereafter arising in favor of such Subsidiary (the
"Other Contracts");
General Intangibles
All general intangibles including personal property not
included above, such as, without limitation, all goodwill,
trademarks, trademark applications, trade names, trade secrets,
industrial designs, other industrial or intellectual property or
rights therein, whether under license or otherwise, claims for
tax refunds and tax refund amounts (the "Intangibles");
Licenses
To the extent permitted by Applicable Law and subject to
Sections 22 and 24 hereof, all franchises, Licenses, permits and
operating rights authorizing or relating to such Subsidiary's
rights to operate and maintain a cellular telecommunications or
similar business including, without limitation, the Licenses, all
as more particularly described on Exhibit C attached hereto (the
"Licenses");
Furniture and Fixtures
All furniture and fixtures in which such Subsidiary has an
interest (the "Furniture and Fixtures");
Miscellaneous Items
All goods, chattel paper, documents, instruments, supplies,
choses in action, claims, money, deposits, certificates of
deposit, stock or share certificates, and licenses and other
rights in intellectual property not included above, but expressly
excluding any capital stock or share certificates of Geotek
Communications, Inc., to the extent that such capital stock or
share certificates constitute "margin stock" within the meaning
of Regulations G, T, U and X of the Board of Governors of the
Federal Reserve System (the "Miscellaneous Items"); and
Proceeds
All products and proceeds of any of the above, and all
proceeds of any loss of, damage to or destruction of the above,
whether insured or not insured, and all other proceeds of any
sale, lease or other disposition of any property or interest
therein referred to above, or of any franchise, license, permit
or operating right issued by the FCC or any other governmental or
regulatory body or agency, whether or not constituting a License,
including, without limitation, the proceeds of the sale or other
disposition of any License, together with all proceeds of any
policies of insurance covering any or all of the above, the
proceeds of any award in condemnation with respect to any of the
property of such Subsidiary, any rebates or refunds, whether for
taxes or otherwise, and together with all proceeds of any such
proceeds (the "Proceeds").
The Inventory, Accounts, Equipment, Contracts, Other
Contracts, Leases, Intangibles, Licenses, Furniture and Fixtures,
Miscellaneous Items and Proceeds, as described above, are
hereinafter collectively referred to as the "Collateral."
This Agreement and the Security Interest secure payment and
performance of all obligations of each Subsidiary to the Lenders
and the Agents, or any of them, under the Amended and Restated
Master Subsidiary Guaranty dated as of December 23, 1994 (as the
same may be amended, modified or supplemented from time to time,
the "Master Subsidiary Guaranty") given by the Subsidiaries for
the benefit of the Agents and the Lenders and the other Loan
Documents entered into by the Subsidiaries, and any extensions,
renewals or amendments thereto, however created, acquired,
arising or evidenced, whether direct or indirect, absolute or
contingent, now or hereafter existing, or due or to become due
(all of the foregoing obligations being hereinafter collectively
referred to as the "Obligations"); provided, however, that should
the New York Public Service Commission (the "NY Commission")
fail, for any reason, to grant its written consent to the grant
by each Subsidiary subject to its jurisdiction to the Collateral
Agent of a Lien on substantially all of its assets, which Lien
shall secure the obligations of such Subsidiary under the Master
Subsidiary Guaranty until indefeasible payment and performance,
in full, of the Obligations and termination of the Commitments
(as described in Section 8.1(s)(ii) of the Loan Agreement) prior
to the date which is 364 days following the Agreement Date, this
Agreement shall cease to be valid or operative with respect to
any Subsidiary subject to the jurisdiction of the NY Commission
for which such written consent has not been obtained.
Nothwithstanding the foregoing, with respect to any Subsidiary
subject to the jurisdiction of the NY Commission for which
written consent of the NY Commission was previously obtained for
the grant by such Subsidiary to the Collateral Agent of a Lien on
substantially all of its assets to secure the obligations of such
Subsidiary under the applicable Original Guaranty (as defined in
the Master Subsidiary Guaranty) as in effect immediately prior to
the Agreement Date, this Agreement shall continue to be valid and
operative with respect to the Security Interest (as defined in
the Original Security Agreements) granted under and pursuant to
the Original Security Agreements for which written consent was
previously obtained, which Security Interest shall secure, to the
extent provided in the applicable Original Guaranty as in effect
immediately prior to the Agreement Date, the maximum amount of
Obligations which could have existed at any time under the
Original Loan Agreement as in effect immediately prior to the
Agreement Date.
TO HAVE AND TO HOLD UNTO the Collateral Agent, for the
benefit of itself and on behalf of the Agents and the Lenders,
their successors and assigns forever, upon and subject to the
following terms and conditions:
1. For purposes of this Agreement capitalized terms used
herein, and not otherwise defined herein, shall have the meanings
ascribed thereto in the Loan Agreement.
2. Each Subsidiary hereby authorizes the Collateral Agent
to file such financing statements and such other documents as the
Collateral Agent may deem necessary or desirable to protect or
perfect the interest of the Lenders and the Agents in the
Collateral, and each Subsidiary further irrevocably appoints the
Collateral Agent as such Subsidiary's attorney-in-fact, with a
power of attorney to execute on behalf of such Subsidiary such
UCC financing statement forms as the Collateral Agent may from
time to time reasonably deem necessary or desirable to protect or
perfect such interest in the Collateral. Such power of attorney
is coupled with an interest and shall be irrevocable. In
addition, each Subsidiary agrees to make, execute, deliver or
cause to be done, executed and delivered all such further acts,
documents and things as the Collateral Agent may reasonably
require for the purpose of perfecting or protecting the rights of
the Lenders and the Agents hereunder or otherwise giving effect
to this Agreement, all promptly upon request therefor.
3. Each Subsidiary represents and warrants to the Lenders
and the Agents that:
(a) the execution of this Agreement and the
fulfillment of the terms hereof will not result in a breach
of any of the terms or provisions of, or constitute a
default under, such Subsidiary's Articles of Incorporation,
Certificate of Partnership, By-Laws or Partnership
Agreement, as applicable, as presently in effect, or any
order, rule or regulation applicable to such Subsidiary of
any court or of any Federal or state regulatory body or
administrative agency or other governmental body having
jurisdiction over such Subsidiary, or result in the
termination or cancellation or breach of any indenture,
mortgage, deed of trust, deed to secure debt, lease or other
agreement or instrument to which such Subsidiary is a party
or by which it is bound or affected;
(b) such Subsidiary has taken all necessary corporate
or partnership action, as applicable to authorize the
execution and delivery of this Agreement, and this
Agreement, when executed and delivered, will be the valid
and binding obligation of such Subsidiary enforceable in
accordance with its terms, subject only to the following
qualifications:
(i) certain equitable remedies are discretionary
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 such Subsidiary), and
(iii) enforcement as to the Licenses is limited by
FCC rules and regulations restricting the transfer of
such Licenses.
(c) Exhibit A attached hereto and incorporated herein
by this reference sets forth a complete and accurate list of
the Contracts in effect on the date hereof which provide for
aggregate payments over the life of each such Contract in
excess of $100,000 or which are otherwise material to such
Subsidiary, and such Subsidiary will furnish copies thereof
to the Lenders and the Agents upon the request of the
Collateral Agent; and
(d) Exhibit B attached hereto and incorporated herein
by this reference sets forth a complete and accurate list of
all Leases providing for aggregate payments over the life of
any single Lease in excess of $250,000, to which such
Subsidiary is a party in effect on the date hereof, and such
Subsidiary will furnish copies thereof to the Lenders and
the Agents upon the request of the Collateral Agent.
4. Each Subsidiary further represents and warrants that
the Security Interest in the Collateral granted hereunder shall
constitute at all times a valid and perfected first priority
security interest (subject only to Permitted Liens), vested in
the Collateral Agent in and upon the Collateral, free of any
Liens except for Permitted Liens. Each Subsidiary shall take or
cause to be taken such acts and actions as shall be necessary or
appropriate to assure that the Security Interest in the
Collateral shall not become subordinate or junior to the security
interests, liens or claims of any other Person, and that the
Collateral shall not otherwise be or become subject to any Lien,
except for Permitted Liens.
5. Each Subsidiary further represents and warrants that it
now keeps all of its records concerning its Accounts, Contracts,
Leases, Other Contracts and Intangibles at its chief executive
office, which is as follows:
2002 Pisgah Church Road
Greensboro, North Carolina 27455-3314
Each Subsidiary covenants and agrees that it shall not keep any
of such records at any other address, unless written notice
thereof is given to the Collateral Agent at least thirty (30)
days prior to the creation of any new address for the keeping of
such records. Each Subsidiary further agrees that it shall
promptly advise the Collateral Agent, in writing making reference
to this Section 5 of this Agreement, of the opening of any
material new place of business, the closing of any existing
material place of business, or any change in the location of the
place where it keeps the Collateral.
6. The parties intend that, to the extent permitted by
Applicable Law, the Collateral shall remain personal property
irrespective of the manner of its attachment or affixation to
realty.
7. Any and all injury to, or loss or destruction of, the
Collateral shall be at the Subsidiaries' risk, and shall not
release any Subsidiary from its obligations hereunder. Each
Subsidiary agrees not to sell, transfer, assign, dispose of,
mortgage, grant a security interest in or encumber any of the
Collateral except as permitted under the Loan Agreement. Each
Subsidiary agrees to maintain in force such insurance with
respect to the Collateral as is required under the Loan
Agreement. Each Subsidiary agrees to pay all required taxes,
liens and assessments upon the Collateral, its use or operation,
as required under the Loan Agreement. Each Subsidiary further
agrees that the Collateral Agent may, but shall in no event be
obligated to, insure any of the Collateral in such form and
amount as the Collateral Agent may deem necessary or desirable if
any Subsidiary fails to obtain insurance as required by the Loan
Agreement, and that the Collateral Agent may pay or discharge any
taxes or Liens (which are not Permitted Liens) on any of the
Collateral, and each Subsidiary agrees to pay any such sum so
expended by the Collateral Agent, with interest at the Default
Rate, and such interest shall be deemed to be a part of the
Obligations secured by the Collateral under the terms of this
Agreement.
8. Each Subsidiary shall (i) fulfill, perform and observe
each and every material condition and covenant contained in any
of the Contracts, the Other Contracts or the Leases, (ii) give
prompt notice to the Collateral Agent of any claim of default
under any Contract, Other Contract or Lease given to such
Subsidiary or by such Subsidiary, (iii) at the sole cost and
expense of such Subsidiary, enforce the performance and
observance of each and every material covenant and condition of
the Contracts, the Other Contracts and the Leases and (iv) appear
in and defend any action growing out of or in any manner
connected with any Contract, Other Contract or Lease. The rights
and interests granted to the Collateral Agent hereunder include
all of the Subsidiaries' rights and title (i) to modify the
Contracts, the Other Contracts and the Leases, (ii) to terminate
the Contracts, the Other Contracts and the Leases and (iii) to
waive or release the performance or observance of any obligation
or condition of the Contracts, the Other Contracts and the
Leases; provided, however, that the Subsidiaries shall have the
right to exercise these rights in a fashion consistent with this
Agreement and the Loan Agreement prior to any Default (as defined
below), and that these rights shall not be exercised by the
Collateral Agent prior to a Default (as defined below).
9. Upon the occurrence and during the continuation of an
Event of Default (hereinafter, a "Default"), the Lenders and the
Agents shall have such rights and remedies as are set forth in
the Loan Agreement and herein; all the rights, powers and
privileges of a secured party under the Uniform Commercial Code
of the State of New York and any other applicable jurisdiction;
and all other rights and remedies available to the Lenders and
the Agents, or any of them, at law or in equity, including,
without limitation, the right to sell or dispose of the
Collateral in accordance with Applicable Law. Each Subsidiary
covenants and agrees that any notification of intended
disposition of any Collateral, if such notice is required by law,
shall be deemed reasonably and properly given if given in the
manner provided for in paragraph 19 hereof at least ten (10) days
prior to such disposition. The Collateral Agent shall have the
right to the appointment of a receiver for the properties and
assets of each Subsidiary, and each Subsidiary hereby consents to
such rights and to such appointment and hereby waives any
objection such Subsidiary may have thereto and hereby waives the
right to have a bond or other security posted by the Collateral
Agent or any other Person in connection therewith. Each
Subsidiary agrees, after the occurrence of a Default, to take any
actions that the Collateral Agent may reasonably request in order
to enable the Collateral Agent to obtain and enjoy the full
rights and benefits granted to the Collateral Agent under this
Agreement and the other Loan Documents. Without limiting the
generality of the foregoing, each Subsidiary shall, at such
Subsidiary's cost and expense, use its best efforts to assist in
obtaining all approvals of the FCC or the New York Public Service
Commission, as applicable, which are then required by law for or
in connection with any action or transaction contemplated by this
Agreement or Article 9 of the Uniform Commercial Code as in
effect in any applicable jurisdiction, and, at the Collateral
Agent's request, prepare, sign and file with the FCC or the New
York Public Service Commission, as applicable, the assignor's or
transferor's portion of any application or applications for
consent to the assignment of the Licenses or transfer of control
thereof necessary or appropriate under the FCC's or the New York
Public Service Commission's, as applicable, rules for approval of
any sale or transfer of the Collateral Agent's remedies under
this Agreement. The Collateral Agent shall have the right, in
connection with the issuance of any order for relief in a
bankruptcy proceeding to petition the bankruptcy court for the
transfer of control or assignment of the Licenses to a receiver,
trustee, transferee, or similar official or to any purchaser of
the Collateral pursuant to any public or private sale,
foreclosure or other exercise of remedies available to the
Collateral Agent, all as permitted by Applicable Law. All
amounts realized or collected through the exercise of remedies
hereunder shall be applied as provided in the Loan Agreement.
10. Upon the occurrence of a Default, the Collateral Agent
or its designee, may proceed to perform any and all of the
obligations of any Subsidiary contained in any of the Contracts,
Other Contracts or Leases and exercise any and all rights of any
Subsidiary therein contained as fully as such Subsidiary itself
could. Each Subsidiary hereby appoints the Collateral Agent its
attorney-in-fact, with power of substitution, to take such
action, execute such documents, and perform such work, as the
Collateral Agent may deem appropriate in exercise of the rights
and remedies granted the Lenders and the Agents, or any of them,
herein or in any other Loan Document. The powers herein granted
shall include, but not be limited to, powers to: (i) sue on the
Contracts, the Other Contracts or the Leases; (ii) seek all
governmental approvals (other than FCC approvals) required for
the operation of the business of any Subsidiary; (iii) modify or
terminate the Contracts, the Other Contracts and the Leases; and
(iv) waive or release the performance or observance of any
obligation under any of the Contracts, Other Contracts or Leases.
The power of attorney granted herein is coupled with an interest
and shall be irrevocable.
11. Upon the occurrence of a Default, should any Subsidiary
fail to perform or observe any covenant or comply with any
condition contained in any of the Contracts, the Other Contracts
or the Leases, then the Collateral Agent may, but without
obligation to do so and without releasing such Subsidiary from
its obligation to do so, perform such covenant or condition and,
to the extent that the Collateral Agent shall incur any costs or
pay any expenses in connection therewith, including any
reasonable costs or expenses of litigation associated therewith,
such costs, expenses or payments shall be included in the
Obligations secured hereby and shall bear interest from the
payment of such costs or expenses by the Collateral Agent at the
Default Rate. None of the Lenders or the Agents shall be obliged
to perform or discharge any obligation of any Subsidiary under
any of the Contracts, the Other Contracts or the Leases, and,
except as may result from the gross negligence or willful
misconduct of the Person seeking indemnification as determined by
a final order of a court of competent jurisdiction, each
Subsidiary agrees to indemnify and hold harmless each Lender and
each Agent against any and all liability, loss or damage which
any such Person may incur under any of the Contracts, the Other
Contracts or the Leases or under or by reason of this Agreement,
and any and all claims and demands whatsoever which may be
asserted against each Subsidiary by reason of an act of any
Lender or any Agent under any of the terms of this Agreement or
under the Contracts, the Other Contracts or the Leases.
12. Each Subsidiary hereby further appoints the Collateral
Agent as its attorney-in-fact, with power of substitution, with
authority to collect all Accounts, to endorse the name of such
Subsidiary on any note, acceptance, check, draft, money order or
other evidence of debt or of payment which constitutes a portion
of the Collateral and which may come into the possession of the
Lenders and the Agents, or any of them, and generally to do such
other things and acts in the name of such Subsidiary with respect
to the Collateral as are necessary or appropriate to protect or
enforce the rights hereunder of the Lenders and the Agents. Each
Subsidiary further authorizes the Collateral Agent, effective
upon the occurrence of a Default, to compromise and settle or to
sell, assign or transfer or to ask, collect, receive or issue any
and all claims possessed by any Subsidiary which constitute a
portion of the Collateral, all in the name of such Subsidiary.
After deducting all reasonable expenses and charges (including
the Collateral Agent's attorneys' fees) of retaking, keeping,
storing and selling the Collateral, the Collateral Agent may
apply the proceeds in payment of any of the Obligations in the
order of application set forth in the Loan Agreement. The power
of attorney granted herein is coupled with an interest and shall
be irrevocable. Each Subsidiary agrees that if steps are taken
by the Collateral Agent to enforce its rights hereunder, or to
realize upon any of the Collateral, such Subsidiary shall pay to
the Collateral Agent the amount of the Collateral Agent's costs,
including attorneys' fees, and each Subsidiary's obligation to
pay such amounts shall be deemed to be a part of the Obligations
secured hereunder.
13. Each Subsidiary shall indemnify and hold harmless each
Lender and each Agent and any other Person acting hereunder for
all losses, costs, damages, fees and expenses whatsoever
associated with the exercise of the powers of attorney granted
herein and shall release each Lender and each Agent and any other
Person acting hereunder from all liability whatsoever for the
exercise of the foregoing powers of attorney and all actions
taken pursuant thereto, except, in either event, in the case of
gross negligence or willful misconduct by the Person seeking
indemnification as determined by a final order of a court of
competent jurisdiction.
14. Each Subsidiary agrees that the rights of the Lenders
and the Agents, or any of them, under this Agreement, the Loan
Agreement, any other Loan Document, or any other contract or
agreement now or hereafter in existence among the Lenders and the
Agents and any Subsidiary and any other obligors thereunder, or
any of them, shall be cumulative, and that each Lender and each
Agent may from time to time exercise such rights and such
remedies as such Person or Persons may have thereunder and under
the laws of the United States or any state, as applicable, in the
manner and at the time that such Person or Persons in its or
their sole discretion desire, subject to the terms of such
agreements. Each Subsidiary further expressly agrees that the
Lenders and the Agents shall in no event be under any obligation
to resort to any Collateral prior to exercising any other rights
that the Lenders and the Agents, or any of them, may have against
the Borrower, such Subsidiary or any other obligor or its
respective property, nor shall the Lenders and the Agents be
obliged to resort to any other collateral or security for the
Obligations, other than the Collateral, prior to any exercise of
rights against such Subsidiary and its property hereunder.
15. Each Subsidiary hereby acknowledges that the
Obligations arose out of a commercial transaction, and agrees
that if a Default shall occur, the Collateral Agent shall have
the right to immediate possession without notice or a hearing,
and hereby knowingly and intelligently waives any and all rights
it may have to any notice and posting of a bond by the Lenders
and the Agents, or any of them, prior to seizure by the
Collateral Agent or any of its transferees, assigns or successors
in interest, of the Collateral or any portion thereof.
16. No transfer or renewal, extension, assignment or
termination of this Agreement or of the Loan Agreement or of any
other Loan Document, or of any instrument or document executed
and delivered by any Subsidiary or any other obligor to the
Lenders and the Agents, or any of them, nor additional advances
made by the Lenders and the Agents, or any of them, to the
Borrower, nor the taking of further security, nor the retaking or
re-delivery of the Collateral to any Subsidiary by the Lenders
and the Agents, or any of them, nor any other act of the Lenders
and the Agents, or any of them, shall release any Subsidiary from
any Obligation, except a release or discharge executed in writing
by the Collateral Agent in accordance with the Loan Agreement
with respect to such Obligation or upon full payment, performance
and satisfaction of all Obligations and termination of the
Commitments. None of the Lenders or the Agents shall by any act,
delay, omission or otherwise, be deemed to have waived any of its
or their rights or remedies hereunder, unless such waiver is in
writing and signed by the Collateral Agent in accordance with the
Loan Agreement and then only to the extent therein set forth. A
waiver by the Lenders and the Agents, or any of them, of any
right or remedy on any occasion shall not be construed as a bar
to the exercise of any such right or remedy which any such Person
would otherwise have had on any other occasion.
17. Neither this Agreement nor any of the Subsidiaries'
rights or obligations hereunder may be assigned by any Subsidiary
to any other Person. Each Subsidiary agrees that this Agreement
or the rights hereunder may in the discretion of the Lenders and
the Agents, as applicable, be assigned in whole or in part in
connection with any assignment of the Loan Agreement or the
Indebtedness evidenced thereby, as permitted thereunder. In the
event this Agreement or the rights hereunder are so assigned by
any of the Lenders, the Co-Agents, the Agents, the Managing
Agents, the Administrative Agent, the Documentation Agent and the
Collateral Agent, the terms "Lenders", "Co-Agents", "Agents,"
"Managing Agents", "Administrative Agent", "Documentation Agent"
or "Collateral Agent" wherever used herein shall be deemed, as
applicable, to refer to and include any such assignee.
18. The Collateral Agent is hereby authorized to date this
Agreement as of the date signed by the Subsidiaries. This
Agreement shall apply to and bind the respective successors and
permitted assigns of each Subsidiary and inure to the benefit of
the successors and permitted assigns of the Lenders and the
Agents.
19. All notices and other communications required or
permitted hereunder shall be in writing and shall be given in a
fashion prescribed in Section 11.1 of the Loan Agreement with
respect to the Lenders and the Agents, and in the fashion
prescribed in Section 11.1 of the Loan Agreement with respect to
each Subsidiary to the last known address of each Subsidiary.
20. THE PROVISIONS OF THIS AGREEMENT SHALL BE CONSTRUED AND
INTERPRETED, AND ALL RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO
DETERMINED, IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE
STATE OF NEW YORK. THIS AGREEMENT, TOGETHER WITH ALL DOCUMENTS
REFERRED TO HEREIN, CONSTITUTES THE ENTIRE AGREEMENT AMONG THE
SUBSIDIARIES, THE LENDERS AND THE AGENTS WITH RESPECT TO THE
MATTERS ADDRESSED HEREIN, AND MAY NOT BE MODIFIED EXCEPT BY A
WRITING EXECUTED BY THE COLLATERAL AGENT AND THE BORROWER AND
DELIVERED BY THE COLLATERAL AGENT TO EACH SUBSIDIARY IN
ACCORDANCE WITH THE LOAN AGREEMENT.
21. If any paragraph or part thereof of this Agreement
shall for any reason be held or adjudged to be invalid, illegal
or unenforceable by any court of competent jurisdiction, such
paragraph or part thereof so adjudicated invalid, illegal or
unenforceable shall be deemed separate, distinct and independent,
and the remainder of this Agreement shall remain in full force
and effect and shall not be affected by such holding or
adjudication.
22. Notwithstanding anything herein which may be construed
to the contrary, no action shall be taken by the Collateral Agent
with respect to the Licenses issued by the FCC or any
governmental or other authority unless and until all requirements
of Applicable Law requiring notice to, or consent or approval of
such action by the FCC or any governmental or other authority,
have been satisfied, including, without limitation, any required
approval of the FCC under the Federal Communications Act of 1934
as amended, and any applicable rules and regulations thereunder,
including, without limitation, the provision for ten (10) days'
notice to the FCC or the Borrower of any such action to the
extent required by 47 C.F.R. (Section Mark) 22.917(e). Each Subsidiary
covenants that upon request of the Collateral Agent it will cause
to be filed such applications and take such other action as may
be requested by the Collateral Agent to obtain consent or
approval of the FCC or any governmental or other authority which
has granted any License to such Subsidiary to any action
contemplated by this Agreement and to give effect to the Security
Interest of the Collateral Agent, including, without limitation,
the execution of an application for consent by the FCC to an
assignment or transfer involving a change in ownership or control
pursuant to the provisions of the Federal Communications Act of
1934 as amended.
\RE 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.
24. The parties acknowledge their intent that, upon the
occurrence of a Default, the Collateral Agent shall receive, to
the fullest extent permitted by Applicable Law and governmental
policy (including, without limitation, the rules, regulations and
policies of the FCC), all rights necessary or desirable to
obtain, use or sell the Collateral, and to exercise all remedies
available to it under this Agreement, the Uniform Commercial Code
as in effect in any applicable jurisdiction, or other Applicable
Law. The parties further acknowledge and agree that, in the
event of changes in law or governmental policy occurring
subsequent to the date hereof, that affect in any manner the
Collateral Agent's rights of access to, or use or sale of, the
Collateral, or the procedures necessary to enable the Collateral
Agent to obtain such rights of access, use or sale, the
Collateral Agent and the Subsidiaries shall amend this Agreement
in such manner as the Collateral Agent shall reasonably request,
in order to provide the Collateral Agent such rights to the
greatest extent possible consistent with Applicable Law and
governmental policy.
25. Each reference herein to any right granted to, benefit
conferred upon or power exercisable by the "Collateral Agent"
shall be a reference to the Collateral Agent for the benefit of
all the Lenders and the Agents, and each action taken or right
exercised hereunder shall be deemed to have been so taken or
exercised by the Collateral Agent for the benefit of and on
behalf of all the Lenders and the Agents.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands and affixed their seals, by and through their duly
authorized representatives, as of the day and year first written
above.
SUBSIDIARIES: ATLANTIC CELLULAR TELEPHONE CORP., a
North Carolina corporation; BINGHAMTON
CELLULAR TELEPHONE CORP., a North
Carolina corporation; CELLULAR DIRECTORY
CORPORATION, a North Carolina
corporation; CROWLEY CELLULAR
TELECOMMUNICATIONS BINGHAMTON, INC., a
Delaware corporation; HAGERSTOWN
CELLULAR TELEPHONE CORP., a North
Carolina corporation; LONG DISTANCE ONE,
INC., a North Carolina corporation;
ORANGE COUNTY CELLULAR TELEPHONE CORP.,
a North Carolina corporation;
PENNSYLVANIA CELLULAR TELEPHONE CORP., a
North Carolina corporation; PISCATAQUA
CELLULAR TELEPHONE CORP., a North
Carolina corporation; PLMRS NARROWBAND
CORP., a North Carolina corporation;
TELEFLEX INFORMATION SYSTEMS, INC., a
North Carolina corporation; VANGUARD
ACQUISITION CORP., a North Carolina
corporation; VANGUARD CELLULAR CORP., a
North Carolina corporation; VANGUARD
CELLULAR HOLDING CORP., a Delaware
corporation; VANGUARD CELLULAR OPERATING
CORP., a Delaware corporation; VANGUARD
CELLULAR SYSTEMS OF SOUTH CAROLINA,
INC., a North Carolina corporation;
VANGUARD INDIA, INC., a Delaware
corporation; VANGUARD INTERNATIONAL
TELECOMMUNICATIONS, INC., a North
Carolina corporation; VANGUARD ISRAEL,
INC., a North Carolina corporation;
VANGUARD URUGUAY CORP., a North Carolina
corporation; WARREN AND LEWIS, LTD., a
Virginia corporation; WEST VIRGINIA
CELLULAR TELEPHONE CORP., a West
Virginia corporation.; and WESTERN
FLORIDA CELLULAR TELEPHONE CORP., a
North Carolina corporation
By:
Stephen L. Holcombe
[CORPORATE SEALS Vice President
ON ATTACHED PAGE]
Attest:
Richard C. Rowlenson
Assistant Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[SIGNATURES FOR AMENDED AND RESTATED
MASTER SUBSIDIARY SECURITY AGREEMENT]
ALTOONA CELLTELCO, a District of
Columbia general partnership
By: LONG DISTANCE ONE, INC., a North
Carolina corporation, its General
Partner
By:
Stephen L. Holcombe
Vice President
[CORPORATE SEAL]
Attest:
Richard C. Rowlenson
Assistant Secretary
BINGHAMTON CELLTELCO, a District of
Columbia general partnership
By: CROWLEY CELLULAR TELECOMMUNICATIONS
BINGHAMTON, INC., a Delaware
corporation, its General Partner
By:
Stephen L. Holcombe
Vice President
[CORPORATE SEAL]
Attest:
Richard C. Rowlenson
Assistant Secretary
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
[SIGNATURES FOR AMENDED AND RESTATED
MASTER SUBSIDIARY SECURITY AGREEMENT]
COLLATERAL AGENT: TORONTO DOMINION (TEXAS), INC.
By:
Title:
Exhibit A - Contracts
Exhibit B - Leases
Exhibit C - Licenses
EXHIBIT A TO SUBSIDIARY SECURITY AGREEMENT
CONTRACTS
EXHIBIT B TO SUBSIDIARY SECURITY AGREEMENT
LEASES
EXHIBIT C TO SUBSIDIARY SECURITY AGREEMENT
LICENSES
[CORPORATE SEALS FOR AMENDED AND RESTATED
MASTER SUBSIDIARY SECURITY AGREEMENT]
ATLANTIC CELLULAR TELEPHONE CORP.
BINGHAMTON CELLULAR TELEPHONE
CORP.
CELLULAR DIRECTORY CORPORATION
CROWLEY CELLULAR
TELECOMMUNICATIONS BINGHAMTON,
INC.
HAGERSTOWN CELLULAR TELEPHONE
CORP.
LONG DISTANCE ONE, INC.
ORANGE COUNTY CELLULAR TELEPHONE
CORP.
PENNSYLVANIA CELLULAR TELEPHONE
CORP.
PISCATAQUA CELLULAR TELEPHONE
CORP.
PLMRS NARROWBAND CORP.
TELEFLEX INFORMATION SYSTEMS,INC.
VANGUARD ACQUISITION CORP.
VANGUARD CELLULAR CORP.
VANGUARD CELLULAR HOLDING CORP.
VANGUARD CELLULAR OPERATING CORP.
VANGUARD CELLULAR SYSTEMS OF SOUTH
CAROLINA, INC.
VANGUARD INDIA, INC.
VANGUARD INTERNATIONAL
TELECOMMUNICATIONS, INC.
VANGUARD ISRAEL, INC.
VANGUARD URUGUAY CORP.
WARREN AND LEWIS, LTD.
WEST VIRGINIA CELLULAR TELEPHONE CORP.
WESTERN FLORIDA CELLULAR TELEPHONE
CORP.
