<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 1, 1998
RURAL CELLULAR CORPORATION
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(Exact name of Registrant as Specified in its Charter)
MINNESOTA
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(State or other Jurisdiction of Incorporation)
0-27416 41-1693295
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(Commission File Number) (IRS Employer Identification No.)
3905 DAKOTA STREET S.W., ALEXANDRIA, MINNESOTA 56308
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(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone Number, Including Area Code (320) 762-2000
-------------------------
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Former Name or Former Address, if Changed Since Last Report
<PAGE>
Item 2. Acquisition of Assets.
Effective July 1, 1998, the Registrant completed the acquisition of the Vermont,
New Hampshire, New York and Massachusetts cellular telephone licenses,
operations and related assets of Atlantic Cellular Company L.P. and one of its
subsidiaries ("Atlantic"), an independent provider of wireless communication
services in the New England region.
Under the terms of the agreement, the Registrant acquired a contiguous,
multi-state service area of 21,000 square miles, encompassing approximately
1.1 million POPS ("population served") and 71,000 customers. The cellular
properties acquired from Atlantic include: (i) the entire state of Vermont
(RSA 1, RSA 2 and the Burlington MSA); (ii) western New Hampshire (RSA 1);
(iii) the northeastern corner of New York (RSA 2); and (iv) northwestern
Massachusetts (RSA 1). In addition, the Company has acquired Atlantic's long
distance business.
As consideration for the acquisition, the Registrant paid approximately $256
million in cash. The consideration was determined in arm's-length negotiations
among Atlantic and the Registrant and was determined to be fair and reasonable
by the Registrant's Board of Directors. The Registrant had no affiliation with
Atlantic prior to negotiations regarding the acquisition, although the two
entities did have agreements regarding service on "roaming" traffic in their
respective service areas.
The $256 million to acquire Atlantic was financed through borrowings under an
amended and restated $300 million loan agreement (the "Amended and Restated Loan
Agreement") with a group of banks headed by Toronto Dominion (Texas), Inc. and
the proceeds from the issuance of $125 million in senior subordinated debt. The
acquisition of Atlantic has been accounted for under the purchase method of
accounting.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements of Business Acquired
The Registrant intends to file the required financial statements for
Atlantic within the period provided for under Item 7(a)(4) of Form
8-K.
(b) Proforma Financial Information
The Registrant intends to file the required proforma financial
information within the period provided for under Item 7(a)(4) of Form
8-K.
(c) Exhibits
2.1 Asset Purchase Agreement among Atlantic Cellular
Company, L.P., Atlantic Cellular/New Hampshire RSA
Number One Limited Partnership and RCC Atlantic Inc.,
and the Registrant as of February 13, 1998 (filed as an
exhibit to Registrant's Report on Form 10-Q for the
quarter ended March 31, 1998 and incorporated herein by
reference)
10.1(a) Amended and Restated Loan Agreement among the
Registrant, as borrower, the financial institutions
whose names appear as lenders on the signature pages
thereof, TD Securities (USA), Inc., as arranging agent
for the lenders, and Toronto Dominion (Texas), Inc., as
administrative agent for the lenders, dated as of July
1, 1998
10.1(b) Exhibit A - Form of Amended and Restated Borrower's
Pledge Agreement
10.1(c) Exhibit E - Form of Revolving Loan Note
10.1(d) Exhibit F - Form of Amended and Restated Security
Agreement
10.1(e) Exhibit G - Form of Subsidiary Guaranty
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10.1(f) Exhibit H - Form of Subsidiary Pledge Agreement
10.1(g) Exhibit I - Form of Subsidiary Security Agreement
10.1(h) Exhibit J - Form of Term Loan Note
10.1(i) Exhibit K - Form of Incremental Facility Note
10.1(j) Exhibit Q - Form of Assignment and Assumption Agreement
*23.1 Consent of Arthur Andersen LLP
*23.2 Consent of KPMG Peat Marwick LLP
99 Press release dated July 1, 1998, announcing the
completion of the Atlantic Acquisition.
*To be filed by amendment
<PAGE>
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.
RURAL CELLULAR CORPORATION
/s/ Richard P. Ekstrand
----------------------------------------
RICHARD P. EKSTRAND
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Date: July 15, 1998
<PAGE>
EXHIBIT 10.1(a)
AMENDED AND RESTATED LOAN AGREEMENT
AMONG
RURAL CELLULAR CORPORATION, AS BORROWER;
THE FINANCIAL INSTITUTIONS WHOSE NAMES
APPEAR AS LENDERS ON THE SIGNATURE PAGES HEREOF;
TD SECURITIES (USA), INC.,
AS ARRANGING AGENT FOR THE LENDERS;
AND
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT FOR LENDERS
DATED AS OF JULY 1, 1998
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
ATLANTA, GEORGIA
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<S> <C>
ARTICLE 1 DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
ARTICLE 2 LOANS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.1 The Loans. . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.2 Manner of Borrowing and Disbursement . . . . . . . . . . . . 21
Section 2.3 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.4 Commitment Fees. . . . . . . . . . . . . . . . . . . . . . . 26
Section 2.5 Mandatory Commitment Reductions. . . . . . . . . . . . . . . 26
Section 2.6 Voluntary Commitment Reductions. . . . . . . . . . . . . . . 27
Section 2.7 Prepayments and Repayments . . . . . . . . . . . . . . . . . 28
Section 2.8 Notes; Loan Accounts . . . . . . . . . . . . . . . . . . . . 30
Section 2.9 Manner of Payment. . . . . . . . . . . . . . . . . . . . . . 31
Section 2.10 Reimbursement. . . . . . . . . . . . . . . . . . . . . . . . 32
Section 2.11 Pro Rata Treatment . . . . . . . . . . . . . . . . . . . . . 33
Section 2.12 Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . 34
Section 2.13 Lender Tax Forms . . . . . . . . . . . . . . . . . . . . . . 34
Section 2.14 Incremental Facility Advances. . . . . . . . . . . . . . . . 35
ARTICLE 3 CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 3.1 Conditions Precedent to Effectiveness of Agreement . . . . . 36
Section 3.2 Conditions Precedent to Each Advance . . . . . . . . . . . . 38
ARTICLE 4 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . 39
Section 4.1 Representations and Warranties . . . . . . . . . . . . . . . 39
Section 4.2 Survival of Representations and Warranties, etc. . . . . . . 47
ARTICLE 5 GENERAL COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 5.1 Preservation of Existence and Similar Matters. . . . . . . . 47
Section 5.2 Business; Compliance with Applicable Law . . . . . . . . . . 47
Section 5.3 Maintenance of Properties. . . . . . . . . . . . . . . . . . 48
Section 5.4 Accounting Methods and Financial Records . . . . . . . . . . 48
Section 5.5 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 5.6 Payment of Taxes and Claims. . . . . . . . . . . . . . . . . 49
Section 5.7 Compliance with ERISA. . . . . . . . . . . . . . . . . . . . 49
Section 5.8 Visits and Inspections . . . . . . . . . . . . . . . . . . . 51
Section 5.9 Payment of Indebtedness; Loans . . . . . . . . . . . . . . . 51
Section 5.10 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . 51
Section 5.11 Real Estate. . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 5.12 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 5.13 Interest Rate Hedging. . . . . . . . . . . . . . . . . . . . 53
Section 5.14 Covenants Regarding Formation of Subsidiaries and
Acquisitions; Partnership, Subsidiaries. . . . . . . . . . . 54
Section 5.15 Payment of Wages . . . . . . . . . . . . . . . . . . . . . . 54
Section 5.16 Further Assurances . . . . . . . . . . . . . . . . . . . . . 55
Section 5.17 Year 2000 Compliance . . . . . . . . . . . . . . . . . . . . 55
ARTICLE 6 INFORMATION COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . 55
Section 6.1 Quarterly Financial Statements and Information . . . . . . . 55
Section 6.2 Annual Financial Statements and Information. . . . . . . . . 56
<PAGE>
Section 6.3 Performance Certificates . . . . . . . . . . . . . . . . . . 56
Section 6.4 Copies of Other Reports. . . . . . . . . . . . . . . . . . . 57
Section 6.5 Notice of Litigation and Other Matters . . . . . . . . . . . 57
ARTICLE 7 NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 7.1 Indebtedness of the Borrower and its Subsidiaries. . . . . . 59
Section 7.2 Limitation on Liens. . . . . . . . . . . . . . . . . . . . . 60
Section 7.3 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . 60
Section 7.4 Liquidation, Merger, or Disposition of Assets. . . . . . . . 60
Section 7.5 Limitation on Guaranties . . . . . . . . . . . . . . . . . . 61
Section 7.6 Investments and Acquisitions . . . . . . . . . . . . . . . . 61
Section 7.7 Restricted Payments and Purchases. . . . . . . . . . . . . . 64
Section 7.8 Total Leverage Ratio . . . . . . . . . . . . . . . . . . . . 64
Section 7.9 Senior Leverage Ratio. . . . . . . . . . . . . . . . . . . . 65
Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt Service . . 65
Section 7.11 Annualized Operating Cash Flow to Interest Expense . . . . . 65
Section 7.12 Limitation on Capital Expenditures . . . . . . . . . . . . . 66
Section 7.13 Affiliate Transactions . . . . . . . . . . . . . . . . . . . 66
Section 7.14 Real Estate. . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 7.15 ERISA Liabilities. . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE 8 DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Section 8.1 Events of Default. . . . . . . . . . . . . . . . . . . . . . 66
Section 8.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 8.3 Payments Subsequent to Declaration of Event of Default . . . 71
ARTICLE 9 THE AGENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 9.1 Appointment and Authorization. . . . . . . . . . . . . . . . 72
Section 9.2 Interest Holders . . . . . . . . . . . . . . . . . . . . . . 72
Section 9.3 Consultation with Counsel. . . . . . . . . . . . . . . . . . 72
Section 9.4 Documents. . . . . . . . . . . . . . . . . . . . . . . . . . 72
Section 9.5 Administrative Agent and Affiliates. . . . . . . . . . . . . 72
Section 9.6 Responsibility of the Administrative Agent.. . . . . . . . . 73
Section 9.7 Collateral . . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 9.8 Action by Administrative Agent . . . . . . . . . . . . . . . 73
Section 9.9 Notice of Default or Event of Default. . . . . . . . . . . . 74
Section 9.10 Responsibility Disclaimed. . . . . . . . . . . . . . . . . . 74
Section 9.11 Indemnification. . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.12 Credit Decision. . . . . . . . . . . . . . . . . . . . . . . 75
Section 9.13 Successor Administrative Agent.. . . . . . . . . . . . . . . 76
Section 9.14 Delegation of Duties . . . . . . . . . . . . . . . . . . . . 76
Section 9.15 No Responsibilities of Arranging Agent . . . . . . . . . . . 76
ARTICLE 10 CHANGE IN CIRCUMSTANCES AFFECTING LIBOR ADVANCES . . . . . . . . . . 77
Section 10.1 LIBOR Basis Determination Inadequate or Unfair . . . . . . . 77
Section 10.2 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . 77
Section 10.3 Increased Costs. . . . . . . . . . . . . . . . . . . . . . . 78
Section 10.4 Effect On Other Advances . . . . . . . . . . . . . . . . . . 79
ARTICLE 11 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 11.1 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 11.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Section 11.3 Waivers. . . . . . . . . . . . . . . . . . . . . . . . . . . 81
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<PAGE>
Section 11.4 Set-Off. . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.5 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . 82
Section 11.6 Accounting Principles. . . . . . . . . . . . . . . . . . . . 85
Section 11.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . 85
Section 11.8 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 85
Section 11.9 Severability . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 11.10 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Section 11.11 Table of Contents and Headings . . . . . . . . . . . . . . . 86
Section 11.12 Amendment and Waiver . . . . . . . . . . . . . . . . . . . . 86
Section 11.13 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . 87
Section 11.14 Other Relationships. . . . . . . . . . . . . . . . . . . . . 87
Section 11.15 Directly or Indirectly . . . . . . . . . . . . . . . . . . . 87
Section 11.16 Reliance on and Survival of Various Provisions . . . . . . . 87
Section 11.17 Senior Debt. . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 11.18 Obligations Several. . . . . . . . . . . . . . . . . . . . . 88
Section 11.19 Confidentiality. . . . . . . . . . . . . . . . . . . . . . . 88
ARTICLE 12 WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . 88
Section 12.1 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . 88
</TABLE>
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<PAGE>
EXHIBITS
Exhibit A - Form of Borrower's Pledge Agreement
Exhibit B - Form of Certificate of Financial Condition
Exhibit C - Form of Notice of Incremental Facility Commitment
Exhibit D - Form of Request for Advance
Exhibit E - Form of Revolving Loan Note
Exhibit F - Form of Security Agreement
Exhibit G - Form of Subsidiary Guaranty
Exhibit H - Form of Subsidiary Pledge Agreement
Exhibit I - Form of Subsidiary Security Agreement
Exhibit J - Form of Term Loan Note
Exhibit K - Form of Incremental Facility Note
Exhibit L - Form of Borrower's Loan Certificate
Exhibit M Form of Subsidiary Loan Certificate
Exhibit N - Form of Opinion of FCC Counsel to the Borrower
Exhibit O - Form of Opinion of General Counsel to the Borrower
Exhibit P - Form of Performance Certificate
Exhibit Q - Form of Assignment and Assumption Agreement
SCHEDULES
Schedule 1 - Licenses
Schedule 2 - Liens Existing on the Agreement Date
Schedule 3 - Subsidiaries
Schedule 4 - Permitted Exceptions
Schedule 5 - Litigation
Schedule 6 - Affiliate Agreements
Schedule 7 - Addresses of Arranging Agent and Lenders
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<PAGE>
AMENDED AND RESTATED LOAN AGREEMENT
AMONG
RURAL CELLULAR CORPORATION, AS BORROWER;
THE FINANCIAL INSTITUTIONS WHOSE NAMES
APPEAR AS LENDERS ON THE SIGNATURE PAGES HEREOF;
TD SECURITIES (USA), INC.,
AS ARRANGING AGENT FOR THE LENDERS;
AND
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT FOR LENDERS
W I T N E S S E T H:
WHEREAS, the Borrower, The Toronto-Dominion Bank, BankBoston, N.A., St.
Paul Bank for Cooperatives, CoBank, Fleet National Bank, First National Bank of
Maryland, Societe Generale, New York Branch, Merita Bank Ltd New York Branch
(now known as Merita Bank plc) and the Administrative Agent are all parties to
that certain Loan Agreement dated as of May 1, 1997 as amended by that certain
First Amendment to Loan Agreement dated as of August 4, 1997, Second Amendment
to Loan Agreement dated as of December 30, 1997, Third Amendment to Loan
Agreement dated as of April 17, 1998, and Fourth Amendment to Loan Agreement
dated as of April 24, 1998 (collectively, the "Prior Loan Agreement"); and
WHEREAS, the Borrower has requested that the Administrative Agent and the
Lenders consent to certain amendments to the Prior Loan Agreement, as more fully
set forth in this Amended and Restated Loan Agreement; and
WHEREAS, the Administrative Agent and the Lenders have agreed to amend and
restate the Prior Loan Agreement in its entirety as set forth herein; and
WHEREAS, the Borrower acknowledges and agrees that the security interest
granted to the Administrative Agent, for itself and on behalf of the Lenders
pursuant to the Prior Loan Agreement and the Loan Documents (as defined in the
Prior Loan Agreement) executed in connection therewith shall remain outstanding
and in full force and effect in
<PAGE>
accordance with the Prior Loan Agreement and shall continue to secure the
Obligations (as defined therein); and
WHEREAS, the Borrower acknowledges and agrees that (i) the Obligations (as
defined herein) represent, among other things, the amendment, restatement,
renewal, extension, consolidation and modification of the Obligations (as
defined in the Prior Loan Agreement) arising in connection with the Prior Loan
Agreement and the other Loan Documents (as defined in the Prior Loan Agreement)
executed in connection therewith; (ii) the parties hereto intend that the Prior
Loan Agreement and the other Loan Documents (as defined in the Prior Loan
Agreement) executed in connection therewith and the collateral pledged
thereunder shall secure, without interruption or impairment of any kind, all
existing Indebtedness under the Prior Loan Agreement and the other Loan
Documents (as defined in the Prior Loan Agreement) executed in connection
therewith as so amended, restated, restructured, renewed, extended, consolidated
and modified hereunder, together with all other Obligations hereunder; (iii) all
Liens evidenced by the Prior Loan Agreement and the other Loan Documents (as
defined in the Prior Loan Agreement) executed in connection therewith are hereby
ratified, confirmed and continued; and (iv) the Loan Documents (as defined
herein) are intended to restructure, restate, renew, extend, consolidate, amend
and modify the Prior Loan Agreement and the other Loan Documents (as defined in
the Prior Loan Agreement) executed in connection therewith; and
WHEREAS, the parties hereto intend that (i) the provisions of the Prior
Loan Agreement and the other Loan Documents (as defined in the Prior Loan
Agreement) executed in connection therewith, to the extent restructured,
restated, renewed, extended, consolidated, amended and modified hereby, are
hereby superseded and replaced by the provisions hereof and of the Loan
Documents (as defined herein); and (ii) the Notes (as hereinafter defined)
amend, renew, extend, modify, replace, are substituted for and supersede in
their entirety, but do not extinguish the indebtedness arising under the
promissory notes issued pursuant to the Prior Loan Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby amend and restate the Prior Loan Agreement as follows:
ARTICLE 1
DEFINITIONS
For the purposes of this Agreement:
- 2 -
<PAGE>
"ACQUISITION" shall mean (whether by purchase, lease, exchange, issuance of
stock or other equity or debt securities, merger, reorganization or any other
method) (i) any acquisition by the Borrower or any of its Subsidiaries of any
other Person, which Person shall then become consolidated with the Borrower or
any such Subsidiary in accordance with GAAP or (ii) any acquisition by the
Borrower or any of its Subsidiaries of all or any substantial part of the assets
of any other Person.
"ADMINISTRATIVE AGENT" shall mean Toronto Dominion (Texas), Inc., in its
capacity as Administrative Agent for the Lenders or any successor Administrative
Agent appointed pursuant to Section 9.13 hereof.
"ADMINISTRATIVE AGENT'S OFFICE" shall mean the office of the Administrative
Agent located at 909 Fannin Street, Suite 1700, Houston, Texas 77010, or such
other office as may be designated pursuant to the provisions of Section 11.1
hereof.
"ADVANCE" shall mean amounts advanced by the Lenders to the Borrower
pursuant to Article 2 hereof on the occasion of any borrowing and having the
same Interest Rate Basis and Interest Period; and "Advances" shall mean more
than one Advance.
"AFFILIATE" shall mean, with respect to a Person, any other Person directly
or indirectly controlling, controlled by, or under common control with, such
first Person. For purposes of this definition, "control" when used with respect
to any Person includes, without limitation, the direct or indirect beneficial
ownership of more than ten percent (10%) of the voting securities or voting
equity of such Person or the power to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise.
"AGREEMENT" shall mean this Amended and Restated Loan Agreement, as
amended, supplemented, restated or otherwise modified from time to time.
"AGREEMENT DATE" shall mean the date as of which this Agreement is dated.
"ARRANGING AGENT" shall mean TD Securities (USA), Inc.
"ANNUALIZED OPERATING CASH FLOW" shall mean, as of any date, the Operating
Cash Flow for the twelve (12) calendar month period ending on such date.
"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.
- 3 -
<PAGE>
"APPLICABLE MARGIN" shall mean the interest rate margin applicable to Base
Rate Advances and LIBOR Advances, as the case may be, in each case determined in
accordance with Section 2.3(f) hereof.
"ATLANTIC ASSET PURCHASE AGREEMENT" shall mean that certain Asset Purchase
Agreement dated as of February 13, 1998 among Atlantic Cellular Company L.P.,
Atlantic Cellular/New Hampshire RSA Number One Limited Partnership, RCC
Atlantic, Inc., and the Borrower.
"ATLANTIC ACQUISITION" shall mean the Acquisition by the Borrower of
substantially all of the assets of Atlantic Cellular Company, L.P. and Atlantic
Cellular/New Hampshire RSA Number One Limited Partnership.
"AUTHORIZED SIGNATORY" shall mean such senior personnel of a Person as may
be duly authorized and designated in writing by such Person to execute
documents, agreements and instruments on behalf of such Person.
"BASE RATE" shall mean, at any time, a fluctuating interest rate per annum
equal to the higher of (a) the rate of interest quoted from time to time by the
Administrative Agent as its "prime rate" or "base rate" and (b) the sum of
(i) the Federal Funds Rate and (ii) one-half of one percent (1/2%). The Base
Rate is not necessarily the lowest rate of interest charged to borrowers of the
Administrative Agent.
"BASE RATE ADVANCE" shall mean an Advance which the Borrower requests to be
made as a Base Rate Advance or is reborrowed as a Base Rate Advance, in
accordance with the provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $500,000, and in an integral multiple of $100,000.
"BASE RATE BASIS" shall mean a simple interest rate equal to the sum of
(i) the Base Rate and (ii) the Applicable Margin for Base Rate Advances. The
Base Rate Basis shall be adjusted automatically as of the opening of business on
the effective date of each change in the Base Rate to account for such change,
and shall also be changed to reflect changes in the Applicable Margin.
"BORROWER" shall mean Rural Cellular Corporation, a Minnesota corporation.
"BORROWER'S PLEDGE AGREEMENT" shall mean that certain Amended and Restated
Borrower's Pledge Agreement dated as of the Agreement Date between the Borrower
and the Administrative Agent, substantially in the form of EXHIBIT A attached
hereto, pursuant to which the Borrower has pledged to the Administrative Agent,
for itself and on behalf of the
- 4 -
<PAGE>
Lenders, all of the Borrower's stock ownership or membership interests in each
of its Subsidiaries.
"BTA" shall mean any "basic trading area" as defined and modified by the
FCC for the purpose of licensing personal communications services
telecommunications systems.
"BUSINESS DAY" shall mean a day on which banks and foreign exchange markets
are open for the transaction of business required for this Agreement in Houston,
Texas, New York, New York and London, England, as relevant to the determination
to be made or the action to be taken.
"CAPITAL EXPENDITURES" shall mean, in respect of any Person, expenditures
for the purchase of assets of long-term use which would be required to be
capitalized on the balance sheet of such Person in accordance with GAAP.
"CAPITAL STOCK" shall mean, as applied to any Person, any capital stock of
such Person, regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights, calls or claims
of any character with respect thereto.
"CAPITALIZED LEASE OBLIGATION" shall mean that portion of any obligation of
a Person as lessee under a lease which at the time would be required to be
capitalized on the balance sheet of such lessee in accordance with GAAP.
"CELLULAR SYSTEM" means a cellular mobile radio telephone system
constructed and operated in an MSA or an RSA, or a PCS System constructed and
operated in a BTA and shall include a microwave system or a paging system
operated in connection with (and in the same general service area as) any of the
foregoing systems.
"CERTIFICATE OF FINANCIAL CONDITION" shall mean a certificate,
substantially in the form of EXHIBIT B attached hereto, signed by the chief
financial officer of the Borrower, together with any schedules, exhibits or
annexes appended thereto.
"COBRA" shall mean the Consolidated Omnibus Budget Reconciliation Act of
1985 and any amendments thereto.
"CODE" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"COLLATERAL" shall mean any property of any kind constituting collateral
for the Obligations under any of the Security Documents.
- 5 -
<PAGE>
"COMMITMENTS" shall mean, collectively, the Revolving Loan Commitment and
the Term Loan Commitment; and "COMMITMENT" shall mean either of the foregoing
Commitments.
"COMMITMENT RATIOS" shall mean the percentages in which the Lenders are
severally bound to fund their respective portion of Advances to the Borrower
under the Commitments, which are set forth below (together with dollar amounts)
as of the Agreement Date:
<TABLE>
<CAPTION>
Lender Approximate Dollar Amount of Approximate Dollar Amount of
------ Revolving Loan Revolving Loan Term Loan Term Loan
Commitment Ratio Commitment Commitment Ratio Commitment
---------------- ---------- ---------------- ----------
<S> <C> <C> <C> <C>
Toronto Dominion (Texas), Inc. 9.333333335% $18,666,666.65 9.333333335% $9,333,333.35
BankBoston, N.A. 7.333333333% $14,666,666.67 7.333333333% $7,333,333.33
First Union National Bank 7.333333333% $14,666,666.67 7.333333333% $7,333,333.33
Fleet National Bank 7.333333333% $14,666,666.67 7.333333333% $7,333,333.33
NationsBank, N.A. 7.333333333% $14,666,666.67 7.333333333% $7,333,333.33
PNC Bank, National Association 7.333333333% $14,666,666.67 7.333333333% $7,333,333.33
CoBank, ACB 6.000000000% $12,000,000.00 6.000000000% $6,000,000.00
First National Bank of 6.000000000% $12,000,000.00 6.000000000% $6,000,000.00
Maryland
General Electric Capital 6.000000000% $12,000,000.00 6.000000000% $6,000,000.00
Corporation
Key Corporate Capital Inc. 6.000000000% $12,000,000.00 6.000000000% $6,000,000.00
Merita Bank plc 6.000000000% $12,000,000.00 6.000000000% $6,000,000.00
Societe Generale, New York 6.000000000% $12,000,000.00 6.000000000% $6,000,000.00
Branch
State Street Bank and Trust 6.000000000% $12,000,000.00 6.000000000% $6,000,000.00
Company
St. Paul Bank for Cooperatives 6.000000000% $12,000,000.00 6.000000000% $6,000,000.00
Union Bank of California, N.A. 6.000000000% $12,000,000.00 6.000000000% $6,000,000.00
TOTAL 100% $200,000,000 100% $100,000,000.00
---- ------------ ---- ---------------
---- ------------ ---- ---------------
</TABLE>
"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.
- 6 -
<PAGE>
"COOPERATIVE LENDER" shall mean CoBank and St. Paul Bank for Cooperatives.
"DEFAULT" shall mean any Event of Default, and any of the events specified
in Section 8.1 hereof, regardless of whether there shall have occurred any
passage of time or giving of notice, or both, that would be necessary in order
to constitute such event an Event of Default.
"DEFAULT RATE" shall mean, as of any date, a simple per annum interest rate
equal to the sum of (a) the Base Rate, (b) the Applicable Margin for Base Rate
Advances (calculated using the highest Applicable Margin for Base Rate Advances
as set forth in Section 2.3(f) hereof without giving effect to the Total
Leverage Ratio then in effect), and (c) two percent (2%).
"DEPOSIT ACCOUNT" shall have the meaning ascribed thereto in Section
2.11(c) hereof.
"EBITDA" shall mean, with respect to any Person for any period, the
earnings before interest, taxes, depreciation and amortization expenses for such
period, all as determined in accordance with GAAP.
"EMPLOYEE PENSION PLAN" shall mean any Plan which is (a) maintained by the
Borrower, any of its Subsidiaries or any of its ERISA Affiliates and (b) subject
to Part 3 of Title I of ERISA.
"ENVIRONMENTAL LAWS" shall mean all applicable federal, state or local
laws, statutes, rules, regulations or ordinances, codes, common law, consent
agreements, orders, decrees, judgments or injunctions issued, promulgated,
approved or entered thereunder relating to public health, safety or the
pollution or protection of the environment, including, without limitation, those
relating to releases, discharges, emissions, spills, leaching, or disposals to
air, water, land or ground water, to the withdrawal or use of ground water, to
the use, handling or disposal of polychlorinated biphenyls, asbestos or urea
formaldehyde, to the treatment, storage, disposal or management of hazardous
substances (including, without limitation, petroleum, crude oil or any fraction
thereof, or other hydrocarbons), pollutants or contaminants, to exposure to
toxic, hazardous or other controlled, prohibited, or regulated substances,
including, without limitation, any such provisions under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. Section 9601 et seq.), or the Resource Conservation and Recovery Act of
1976, as amended (42 U.S.C. Section 6901 et seq.).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
in effect from time to time.
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<PAGE>
"ERISA AFFILIATE" shall mean any Person, including a Subsidiary or an
Affiliate of the Borrower, that is a member of any group of organizations
(within the meaning of Code Sections 414(b), (c), (m) or (o)) of which the
Borrower is a member.
"EURODOLLAR RESERVE PERCENTAGE" shall mean the percentage which is in
effect from time to time under Regulation D of the Board of Governors of the
Federal Reserve System, as such regulation may be amended from time to time
("REGULATION D"), as the maximum reserve requirement applicable with respect to
Eurocurrency Liabilities (as that term is defined in Regulation D), whether or
not any Lender has any such Eurocurrency Liabilities subject to such reserve
requirement at that time.
"EVENT OF DEFAULT" shall mean any of the events specified in Section 8.1
hereof, provided that any requirement for notice or lapse of time has been
satisfied.
"EXCESS CASH FLOW" shall mean, as of the end of any fiscal year of the
Borrower based on the audited financial statements provided under Section 6.2
hereof for such fiscal year, the remainder of (a) Operating Cash Flow for such
fiscal year, minus (b) the sum of (i) Capital Expenditures made during such
fiscal year exclusive of Investments by the Borrower in Wireless Alliance
permitted hereunder, (ii) Scheduled Loan Payments made during such period,
(iii) cash taxes paid by the Borrower and its Subsidiaries during such fiscal
year, (iv) Interest Expense during such fiscal year, (v) principal payments in
respect of Indebtedness for Money Borrowed (other than with respect to the
Loans) paid by the Borrower and its Subsidiaries during such year, (vi)
$1,000,000, and (vii) an extraordinary loss in connection with the sale of the
Borrower's ownership interest in Switch 2000.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"FCC" shall mean the Federal Communications Commission, or any other
similar or successor agency of the federal government administering the
Communications Act.
"FEDERAL FUNDS RATE" shall mean, as of any date, the weighted average of
the rates on overnight federal funds transactions with the members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three (3) federal
funds brokers of recognized standing selected by the Administrative Agent.
"GAAP" shall mean, as in effect from time to time, generally accepted
accounting principles in the United States, consistently applied.
- 8 -
<PAGE>
"GUARANTY" or "GUARANTEED," as applied to an obligation, shall mean and
include (a) a guaranty, direct or indirect, in any manner, of all or any part of
such obligation, and (b) any agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, any
reimbursement obligations as to amounts drawn down by beneficiaries of
outstanding letters of credit or capital call requirements.
"HEADQUARTER'S MORTGAGE" shall mean those certain Mortgages in favor of the
Administrative Agent (on behalf of the Lenders) and pertaining to the Borrower's
headquarter's properties located in Alexandria, Minnesota or Maine or otherwise
established or constructed in connection with the Atlantic Acquisition.
"INCREMENTAL FACILITY ADVANCE" shall mean an Advance made by any Lender
holding an Incremental Facility Commitment pursuant to Section 2.14 hereof.
"INCREMENTAL FACILITY COMMITMENT" shall mean the commitment of any Lender
or Lenders to make advances to the Borrower in accordance with Section 2.14
hereof. The Borrower may obtain Incremental Facility Commitments from more than
one Lender, which commitments shall be several obligations of each such Lender.
"INCREMENTAL FACILITY COMMITMENT RATIOS" shall mean percentages in which
the Lenders holding an Incremental Facility Commitment are severally bound to
fund their respective portions of Advances to the Borrower under the Incremental
Facility Commitment which are set forth in the Notice of Incremental Facility
Commitment.
"INCREMENTAL FACILITY LOANS" shall mean the amounts advanced by the Lenders
holding an Incremental Facility Commitment to the Borrower as Incremental
Facility Loans under the Incremental Facility Commitment, not to exceed the
amount of the Incremental Facility Commitment, and evidenced by the Incremental
Facility Notes.
"INCREMENTAL FACILITY NOTES" shall mean those certain Incremental Facility
Notes described in Section 2.14 hereof.
"INDEBTEDNESS" shall mean, with respect to any Person, and without
duplication, (a) all items, except items of shareholders' and partners' equity
or capital stock or surplus or general contingency or deferred tax reserves,
which in accordance with GAAP would be included in determining total liabilities
as shown on the liability side of a balance sheet of such Person, including,
without limitation, to the extent of the higher of the book value or fair market
value of the property or asset securing such obligation (if less than the amount
of such obligation), secured non-recourse obligations of such Person, (b) all
direct or indirect obligations of any other Person secured by any Lien to which
any property or asset owned by
- 9 -
<PAGE>
such Person is subject, but only to the extent of the higher of the fair market
value or the book value of the property or asset subject to such Lien (if less
than the amount of such obligation) if the obligation secured thereby shall not
have been assumed, (c) to the extent not otherwise included, all Capitalized
Lease Obligations of such Person and all obligations of such Person with respect
to leases constituting part of a sale and lease-back arrangement, (d) all
reimbursement obligations with respect to outstanding letters of credit, and (e)
to the extent not otherwise included, all obligations subject to Guaranties of
such Person or its Subsidiaries, and (f) all obligations of such Person under
Interest Hedge Agreements.
"INDEBTEDNESS FOR MONEY BORROWED" shall mean, with respect to any Person,
Indebtedness for money borrowed and Indebtedness represented by notes payable
and drafts accepted representing extensions of credit, all obligations evidenced
by bonds, debentures, notes or other similar instruments, all Indebtedness upon
which interest charges are customarily paid, 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 thereto in Section 5.12
hereof.
"INTEREST EXPENSE" shall mean, for any period, all cash interest expense
(including imputed interest with respect to Capitalized Lease Obligations) with
respect to any Indebtedness for Money Borrowed of the Borrower and its
Subsidiaries on a consolidated basis during such period pursuant to the terms of
such Indebtedness for Money Borrowed, together with all fees payable in respect
thereof, all as calculated in accordance with GAAP.
"INTEREST HEDGE AGREEMENTS" shall mean the obligations of any Person
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such Person
calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall include, without limitation, interest rate swaps,
caps, floors, collars and similar agreements.
"INTEREST PERIOD" shall mean (a) in connection with any Base Rate Advance,
the period beginning on the date such Advance is made and ending on the last day
of the calendar quarter in which such Advance is made; PROVIDED, HOWEVER, that
if a Base Rate Advance is made on the last day of any calendar quarter, it shall
have an Interest Period
- 10 -
<PAGE>
ending on, and its Payment Date shall be, the last day of the following calendar
quarter, and (b) in connection with any LIBOR Advance, the term of such Advance
selected by the Borrower or otherwise determined in accordance with this
Agreement. Notwithstanding the foregoing, however, (i) any applicable Interest
Period which would otherwise end on a day which is not a Business Day shall be
extended to the next succeeding Business Day unless, with respect to LIBOR
Advances only, such Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day, (ii) any
applicable Interest Period, with respect to LIBOR Advances only, which begins on
a day for which there is no numerically corresponding day in the calendar month
during which such Interest Period is to end shall (subject to clause (i) above)
end on the last day of such calendar month, and (iii) the Borrower shall not
select an Interest Period which extends beyond the Maturity Date or such earlier
date as would interfere with the Borrower's repayment obligations under
Section 2.4, 2.6 or 2.7 hereof. Interest shall be due and payable with respect
to any Advance as provided in Section 2.3 hereof.
"INTEREST RATE BASIS" shall mean the Base Rate Basis or the LIBOR Basis, as
appropriate.
"INVESTMENT" shall mean, with respect to the Borrower or any of its
Subsidiaries, (a) any loan, advance or extension of credit (other than to
customers in the ordinary course of business) by such Person to, or any Guaranty
or other contingent liability with respect to the capital stock, Indebtedness or
other obligations of, or any contributions to the capital of, any other Person,
or any ownership, purchase or other acquisition by such Person of any interest
in any capital stock, limited partnership interest, general partnership
interest, or other securities of any such other Person, other than an
Acquisition, (b) any acquisition by the Borrower or any of its Subsidiaries of
any assets relating to the wireless communications business, and (c) all
expenditures by the Borrower or any of its Subsidiaries relating to the
foregoing. "Investment" shall also include the total cost of any future
commitment or other obligation binding on any Person to make an Investment or
any subsequent Investment.
"KNOWN TO THE BORROWER" or "TO THE KNOWLEDGE OF THE BORROWER" shall mean
known by or reasonably should have been known by the executive officers of the
Borrower (which shall include, without limitation, the chief executive officer,
the chief financial officer, the general counsel, or any vice president of the
Borrower).
"LENDERS" shall mean the Persons whose names appear as "Lenders" on the
signature pages hereof and any other Person which becomes a "Lender" hereunder
after the Agreement Date; and "Lender" shall mean any one of the foregoing
Lenders.
"LIBOR" shall mean, for any Interest Period, the average (rounded upward to
the nearest one-hundredth (1/100th) of one percent (1%)) of the interest rates
per annum at which deposits in United States Dollars for such Interest Period
are offered to The Toronto-
- 11 -
<PAGE>
Dominion Bank, in the London interbank borrowing market at approximately 11:00
a.m. (London, England time), two (2) Business Days before the first day of such
Interest Period, in an amount approximately equal to the principal amount of,
and for a length of time approximately equal to the Interest Period for, the
LIBOR Advance sought by the Borrower.
"LIBOR ADVANCE" shall mean an Advance which the Borrower requests to be
made as a LIBOR Advance or which is reborrowed as a LIBOR Advance, in accordance
with the provisions of Section 2.2 hereof, and which shall be in a principal
amount of at least $1,000,000 and in an integral multiple of $1,000,000.
"LIBOR BASIS" shall mean a simple per annum interest rate equal to the sum
of (a) the quotient of (i) LIBOR divided by (ii) one (1) minus the Eurodollar
Reserve Percentage, if any, stated as a decimal, PLUS (b) the Applicable Margin
for LIBOR Advances. The LIBOR Basis shall apply to Interest Periods of one (1),
two (2), three (3), six (6) months, and, subject to availability as determined
by the Administrative Agent, nine (9) and twelve (12) months and, once
determined, shall remain unchanged during the applicable Interest Period, except
for changes to reflect adjustments in the Eurodollar Reserve Percentage and the
Applicable Margin as adjusted pursuant to Section 2.3(f) hereof. The LIBOR
Basis for any LIBOR Advance shall be adjusted as of the effective date of any
change in the Eurodollar Reserve Percentage.
"LICENSES" shall mean any cellular telephone, microwave, personal
communications or other license, authorization, certificate of compliance,
franchise, approval or permit, whether for the construction or the operation of
any Cellular System, granted or issued by the FCC and held by the Borrower or
any of its Subsidiaries, all of which are listed as of the Agreement Date on
Schedule 1 hereto.
"LIEN" shall mean, with respect to any property, any mortgage, lien,
pledge, negative pledge or other agreement not to pledge, assignment, charge,
security interest, title retention agreement, levy, execution, seizure,
attachment, garnishment or other encumbrance of any kind in respect of such
property, whether created by statute, contract, the common law or otherwise, and
whether or not choate, vested or perfected.
"LOAN DOCUMENTS" shall mean this Agreement, the Notes, the Incremental
Facility Notes, the Security Documents, all fee letters, all Requests for
Advance, all Interest Hedge Agreements between the Borrower, on the one hand,
and the Administrative Agent and the Lenders, or any of them, on the other hand,
the Notice of Incremental Facility Commitment, and all other documents and
agreements executed or delivered in connection with or contemplated by this
Agreement.
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<PAGE>
"LOANS" shall mean, collectively, the Term Loans, the Revolving Loans, and,
if applicable, the Incremental Facility Loans; and "LOAN" shall mean any one of
the foregoing Loans.
"MAJORITY LENDERS" shall mean (a) at any time that no Loans are outstanding
hereunder, Lenders the total of whose (i) Commitment Ratios and, if applicable,
Incremental Facility Commitment Ratios, equals or exceeds fifty-one percent
(51%) of the Commitment Ratios and, if applicable, Incremental Facility
Commitment Ratios of all Lenders entitled to vote hereunder, or (b) at any time
that there are Loans outstanding hereunder, Lenders the total of whose Loans
outstanding equals or exceeds fifty-one percent (51%) of the total principal
amount of the Loans then outstanding of all Lenders entitled to vote hereunder.
"MATERIALLY ADVERSE EFFECT" shall mean (a) any material adverse effect upon
the business, assets, liabilities, financial condition, results of operations,
properties, or business prospects of the Borrower and its Subsidiaries on a
consolidated basis, taken as a whole, or (b) a material adverse effect upon the
binding nature, validity, or enforceability of this Agreement and the Notes, or
upon the ability of the Borrower and its Subsidiaries to perform the payment
obligations or other material obligations under this Agreement or any other Loan
Document, or upon the value of the Collateral or upon the rights, benefits or
interests of the Lenders in and to the Loans or the rights of the Administrative
Agent and the Lenders in the Collateral; in either case, whether resulting from
any single act, omission, situation, status, event or undertaking, or taken
together with other such acts, omissions, situations, statuses, events or
undertakings.
"MATURITY DATE" shall mean December 29, 2006, or as the case may be, such
earlier date as payment of the Obligations shall be due (whether by
acceleration, reduction of the Commitments to zero or otherwise).
"MSA" shall mean any "metropolitan statistical area" as defined and
modified by the FCC for the purpose of licensing public cellular radio
telecommunications service systems.
"MULTIEMPLOYER PLAN" shall mean a multiemployer pension plan as defined in
Section 3(37) of ERISA to which the Borrower, any of its Subsidiaries, or any of
its ERISA Affiliates is or has been required to contribute subsequent to
September 25, 1980.
"NECESSARY AUTHORIZATIONS" shall mean all approvals and licenses from, and
all filings and registrations with, any governmental or other regulatory
authority, including, without limitation, the Licenses and all approvals,
licenses, filings and registrations under the Communications Act, necessary in
order to enable the Borrower and its Subsidiaries to own, construct, maintain,
and operate Cellular Systems and to invest in other Persons who own, construct,
maintain, and operate Cellular Systems.
- 13 -
<PAGE>
"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, the
aggregate amount of cash received for such assets (including, without
limitation, any payments received for non-competition covenants, consulting or
management fees in connection with such sale, and any portion of the amount
received evidenced by a promissory note or other evidence of Indebtedness issued
by the purchaser), net of (i) amounts reserved, if any, for taxes payable with
respect to any such sale (after application 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 sale, lease,
transfer or other disposition of assets, including, without limitation,
commissions, 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 promissory note or other evidence of Indebtedness issued by a purchaser or
non-compete agreement or covenant or otherwise for which compensation is paid
over time. Upon receipt by the Borrower or any of its Subsidiaries of
(A) amounts referred to in item (iii) of the preceding sentence, or (B) if there
shall occur any reduction in the tax reserves referred to in item (i) of the
preceding sentence resulting in a payment to the Borrower, such amounts shall
then be deemed to be "Net Proceeds."
"NOTES" shall mean, collectively, the Term Loan Notes, the Revolving Loan
Notes, and any other promissory note issued by the Borrower to evidence the Term
Loans or Revolving Loans pursuant to this Agreement, and any extensions,
renewals, or amendments to, or replacements of, the foregoing; and "NOTE" shall
mean any one of the foregoing Notes.
"NOTICE OF INCREMENTAL FACILITY COMMITMENT" shall mean the notice by the
Borrower of the Incremental Facility Commitment, which notice shall be
substantially in the form of EXHIBIT C attached hereto and shall be delivered to
the Administrative Agent and the Lenders.
"OBLIGATIONS" shall mean all payment and performance obligations of every
kind, nature and description of the Borrower, its Subsidiaries, and any other
obligors to the Lenders, the Administrative Agent, or any of them, under this
Agreement and the other Loan Documents (including, without limitation, any
interest, fees and other charges on the Loans or otherwise under the Loan
Documents that would accrue but for the filing of a bankruptcy action with
respect to the Borrower, whether or not such claim is allowed in such bankruptcy
action and including Obligations to the Lenders pursuant to Section 5.13 hereof)
as they may be amended from time to time, or as a result of making the Loans,
whether such obligations are direct or indirect, absolute or contingent, due or
not due, contractual or tortious,
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<PAGE>
liquidated or unliquidated, arising by operation of law or otherwise, now
existing or hereafter arising.
"OPERATING CASH FLOW" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis as of the end of any period, (a) Net Income
for such period (after eliminating any extraordinary gains and losses,
including, without limitation, gains and losses from the sale of assets), plus
(b) to the extent deducted in determining Net Income, the sum of the following
for such period: (i) depreciation and amortization expense, (ii) Interest
Expense, (iii) tax expense, and (iv) all other non-cash items, minus (c) the sum
of (i) non-cash credits to Net Income and (ii) EBITDA of Wireless Alliance. In
the case of an Acquisition permitted hereunder, Operating Cash Flow of the
Borrower and its Subsidiaries for the applicable test period during which such
Acquisition occurs shall be adjusted (A) to give effect to such Acquisition, as
if such Acquisition had occurred on the first day of such test period, by
excluding the Operating Cash Flow of such Acquisition during such test period
prior to the date of such Acquisition and adding to the Operating Cash Flow of
the Borrower, if positive, or subtracting from such Operating Cash Flow, if
negative, the product of (i) the actual Operating Cash Flow of such Acquisition
for that portion of such test period from the date of such Acquisition to the
last day of such period, TIMES (ii) a fraction the numerator of which is the
number of calendar days in such test period and the denominator of which is the
number of days in such test period from and including the date of such
Acquisition through the last day of such test period, and (B) by adding to the
Operating Cash Flow of the Borrower such expenses incurred by the Borrower and
its Subsidiaries as the Majority Lenders may agree relate to such Acquisition.
For purposes of calculating Operating Cash Flow in connection with an Advance
for any such Acquisition, Operating Cash Flow for the Borrower and its
Subsidiaries as of the last day of the immediately preceding calendar quarter
shall include Operating Cash Flow for the Acquisition for the same period.
"PAYMENT DATE" shall mean the last day of any Interest Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PCS SYSTEM" shall mean any broad band personal communications services
telecommunications system operating on radio spectrum in a BTA, or a License to
operate such a system.
"PERMITTED LIENS" shall mean, as applied to any Person:
(a) Any Lien in favor of the Administrative Agent given to secure the
Obligations;
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<PAGE>
(b) (i) Liens on real estate or other property for taxes,
assessments, governmental charges or levies not yet delinquent and (ii) Liens
for taxes, assessments, judgments, governmental charges or levies or claims the
non-payment of which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves have been set aside on such Person's
books, but only so long as no foreclosure, distraint, sale or similar
proceedings have been commenced with respect thereto;
(c) Liens of carriers, warehousemen, mechanics, laborers and
materialmen incurred in the ordinary course of business for sums not yet due or
being diligently contested in good faith, if reserves or appropriate provisions
shall have been made therefor;
(d) Liens incurred in the ordinary course of business in connection
with workers' compensation and unemployment insurance which are not overdue for
more than sixty (60) days;
(e) Restrictions on the transfer of the Licenses or assets of the
Borrower or its Subsidiaries imposed by any of the Licenses as presently in
effect or by the Communications Act and any regulations thereunder;
(f) Easements, rights-of-way, and other similar encumbrances on the
use of real property which do not materially interfere with the ordinary conduct
of the business of such Person or the use of such property;
(g) Liens securing Indebtedness to the extent permitted pursuant to
Sections 7.1(f) and (h) hereof;
(h) Liens reflected by Uniform Commercial Code financing statements
filed in respect of Capitalized Lease Obligations permitted pursuant to
Section 7.1(f) hereof and true leases of the Borrower or any of its
Subsidiaries; and
(i) Liens set forth on Schedule 2 attached hereto.
"PERSON" shall mean an individual, corporation, limited liability company,
association, partnership, joint venture, trust or estate, an unincorporated
organization, a government or any agency or political subdivision thereof, or
any other entity.
"PLAN" shall mean an employee benefit plan within the meaning of
Section 3(3) of ERISA or any other employee benefit plan maintained for
employees of the Borrower or any ERISA Affiliate of the Borrower, including the
Subsidiaries.
"PRO FORMA DEBT SERVICE" shall mean, with respect to the Borrower and its
Subsidiaries, for any period, the sum of (a) Pro Forma Scheduled Principal
Payments with
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<PAGE>
respect to the Revolving Loans during such period, (b) scheduled payments of
principal with respect to the Term Loans during such period, and (c) scheduled
payments on all other Indebtedness for Money Borrowed during such period.
"PRO FORMA SCHEDULED PRINCIPAL PAYMENTS" shall mean for any period (a) the
outstanding principal amount of the Revolving Loans on the date of determination
minus (b) the Revolving Loan Commitment scheduled to be available on the last
day of such period after giving effect to the reductions set forth in Section
2.5(a) hereof.
"REPORTABLE EVENT" shall mean, with respect to any Employee Pension Plan,
an event described in Section 4043(b) of ERISA.
"REQUEST FOR ADVANCE" shall mean a certificate designated as a "Request for
Advance," signed by an Authorized Signatory of the Borrower requesting an
Advance hereunder, which shall be in substantially the form of EXHIBIT D
attached hereto, and shall, among other things, (i) specify the date of the
Advance, which shall be a Business Day, the amount of the Advance, the type of
Advance (LIBOR or Base Rate), and, with respect to LIBOR Advances, the Interest
Period selected by the Borrower, (ii) state that, to the knowledge of the Person
signing such request, there shall not exist, on the date of the requested
Advance and after giving effect thereto, a Default, as of the date of such
Advance and after giving effect thereto, (iii) the Applicable Margin, and (iv)
designate the amount of the Revolving Loan Commitment and, if applicable, the
Term Loan Commitment and the Incremental Facility Commitment, being drawn.
"RESTRICTED PAYMENT" shall mean any direct or indirect distribution,
dividend or other payment to any Person (other than to the Borrower or any
majority-owned Subsidiary of the Borrower) on account of any general or limited
partnership or membership interest in, or shares of Capital Stock or other
securities of, the Borrower or any of its Subsidiaries (other than dividends
payable solely in stock of such Person and stock splits), including, without
limitation, any direct or indirect distribution, dividend or other payment to
any Person (other than to the Borrower or any Subsidiary of the Borrower) on
account of any warrants or other rights or options to acquire shares of capital
stock of the Borrower or any of its Subsidiaries.
"RESTRICTED PURCHASE" shall mean any payment (including, without
limitation, any sinking fund payment, prepayment or installment payment) on
account of the purchase, redemption or other acquisition or retirement of any
general or limited partnership or membership interest in, or shares of capital
stock or other securities of the Borrower or any of the Borrower's Subsidiaries,
including, without limitation, any warrants or other rights or options to
acquire shares of capital stock of the Borrower or any of the Borrower's
Subsidiaries or any loan, advance, release or forgiveness of Indebtedness by the
Borrower or its Subsidiaries to any partner, shareholder or Affiliate of any
such Person.
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<PAGE>
"REVOLVING LOAN COMMITMENT" shall mean the several obligations of the
Lenders to advance to the Borrower an aggregate amount of up to $200,000,000 at
any one time outstanding, in accordance with their respective Revolving Loan
Commitment Ratios as set forth in the definition of "Commitment Ratios" pursuant
to the terms hereof, and as such obligations may be reduced from time to time
pursuant to the terms hereof.
"REVOLVING LOANS" shall mean the amounts advanced by each Lender having a
Revolving Loan Commitment to the Borrower as Revolving Loans, not to exceed the
amount of the Revolving Loan Commitment, and evidenced by the Revolving Loan
Notes.
"REVOLVING LOAN NOTES" shall mean, collectively, those certain revolving
promissory notes in the aggregate original principal amount of the Revolving
Loan Commitment and one issued by the Borrower to each of the Lenders holding a
Revolving Loan Commitment, each substantially in the form of EXHIBIT E attached
hereto, and any extensions, modifications, renewals or replacements of, or
amendments to, any of the foregoing.
"RSA" shall mean any "rural service area" as defined and modified by the
FCC for the purpose of licensing public cellular radio telecommunications
service systems.
"SCHEDULED LOAN PAYMENTS" shall mean, for any period,(a) with respect to
the Revolving Loans, the excess, if any, of (i) the highest amount of the
Revolving Loans outstanding at any time during such period, over (ii) the amount
of the Revolving Loan Commitment on the last day of such period (after giving
effect to any reduction in the Revolving Loan Commitment on such date pursuant
to Section 2.5 hereof), and (b) with respect to the Term Loans, the payments
required to be made pursuant to Section 2.7(b) hereof during such period.
"SECURITY AGREEMENT" shall mean that certain Amended and Restated Security
Agreement dated as of the Agreement Date by and between the Borrower and the
Administrative Agent, for itself and on behalf of the Lenders, substantially in
the form of EXHIBIT F attached hereto.
"SECURITY DOCUMENTS" shall mean the Borrower's Pledge Agreement, the
Security Agreement, each Subsidiary Guaranty, each Subsidiary Pledge Agreement,
each Subsidiary Security Agreement, the Headquarter's Mortgage, any other
agreement or instrument providing Collateral for the Obligations whether now or
hereafter in existence, and any filings (including, without limitation,
financing statements), instruments, agreements, and documents related thereto or
to this Agreement, and providing the Administrative Agent, for the benefit of
the Lenders, with Collateral for the Obligations.
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<PAGE>
"SECURITY INTEREST" shall mean all Liens in favor of the Administrative
Agent, for the benefit of the Administrative Agent and the Lenders, created
hereunder or under any of the Security Documents to secure the Obligations.
"SENIOR LEVERAGE RATIO" shall mean, as of any date, the ratio of (a) the
principal amount of the Loans outstanding on such date to (b) Annualized
Operating Cash Flow.
"SUBORDINATED INDEBTEDNESS" shall mean Indebtedness for Money Borrowed of
the Borrower which is subordinated to the Obligations on terms and conditions
acceptable to the Majority Lenders and shall include, without limitation,
$125,000,000 (9 5/8%) Senior Subordinated Notes due 2008 (the "SUBORDINATED
NOTES") and 125,000 shares of 11 3/8% Senior Exchangeable Preferred Stock of the
Borrower (the "PREFERRED STOCK").
"SUBSIDIARY" shall mean, as applied to any Person, (a) any corporation of
which more than fifty percent (50%) of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership or limited liability company of which more than fifty percent (50%)
of the outstanding partnership or membership interests, is at the time owned
directly or indirectly by such Person, or by one or more Subsidiaries of such
Person, or by such Person and one or more Subsidiaries of such Person, or
(b) any other entity which is directly or indirectly controlled or capable of
being controlled by such Person, or by one or more Subsidiaries of such Person,
or by such Person and one or more Subsidiaries of such Person. Notwithstanding
the foregoing, Subsidiary shall not include Wireless Alliance.
"SUBSIDIARY GUARANTY" shall mean that certain Amended and Restated Master
Subsidiary Guaranty dated as of the Agreement Date in substantially the form of
EXHIBIT G attached hereto in favor of the Administrative Agent, for itself and
on behalf of the Lenders, given by each Subsidiary of the Borrower, and shall
include any similar agreements executed pursuant to Section 5.14 hereof.
"SUBSIDIARY PLEDGE AGREEMENT" shall mean that certain Amended and Restated
Master Subsidiary Pledge Agreement dated as of the Agreement Date in
substantially the form of EXHIBIT F attached hereto by and between each
Subsidiary of the Borrower having one or more of its own Subsidiaries, on the
one hand, and the Administrative Agent, for itself and on behalf of the Lenders,
on the other hand, and shall include any similar agreements executed pursuant to
Section 5.14 hereof.
"SUBSIDIARY SECURITY AGREEMENT" shall mean that certain Amended and
Restated Master Subsidiary Security Agreement dated as of the Agreement Date in
substantially the form of EXHIBIT G attached hereto by and between each of the
Borrower's Subsidiaries, on
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<PAGE>
the one hand, and the Administrative Agent, for itself and on behalf of the
Lenders, on the other hand, and shall include any similar agreements executed
pursuant to Section 5.14 hereof.
"SWITCH 2000" shall mean Switch 2000, L.L.C., a Minnesota limited liability
company.
"TERM LOAN COMMITMENT" shall mean the several obligations of the Lenders to
advance to the Borrower $100,000,000, in accordance with their respective Term
Loan Commitment Ratios pursuant to the terms hereof.
"TERM LOANS" shall mean the amounts advanced by the Lenders holding a Term
Loan Commitment to the Borrower as Term Loans and evidenced by the Term Loan
Notes.
"TERM LOAN NOTES" shall mean, collectively, those certain term promissory
notes in the aggregate original principal amount of $100,000,000, and one issued
by the Borrower to each of the Lenders having a Term Loan Commitment, each
substantially in the form of EXHIBIT J attached hereto, and any extensions,
modifications, renewals or replacements of, or amendments to, any of the
foregoing.
"TOTAL DEBT" shall mean, for the Borrower and its Subsidiaries on a
consolidated basis as of any date, the sum of (without duplication) (i) the
outstanding principal amount of the Loans, (ii) the aggregate amount of
Capitalized Lease Obligations and Indebtedness for Money Borrowed of such
Persons, and (iii) the aggregate amount of all Guarantees of Indebtedness for
Money Borrowed by such Persons.
"TOTAL LEVERAGE RATIO" shall mean, as of any date, the ratio of (a) the
Total Debt (for purposes hereof, Total Debt shall not include the principal
amount of any Indebtedness for Money Borrowed equal to the amount of any cash
balance maintained by the Borrower in a segregated deposit account which is
designated solely for repayments of such Indebtedness for Money Borrowed) of the
Borrower and its Subsidiaries on a consolidated basis on such date, to
(b) Annualized Operating Cash Flow of the Borrower and its Subsidiaries on a
consolidated basis as of the calendar quarter end being tested or the most
recently completed calendar quarter for which financial statements are required
to have been delivered pursuant to Section 6.1 or 6.2 hereof, as the case may
be.
"WIRELESS ALLIANCE" shall mean Wireless Alliance, L.L.C., a Minnesota
limited liability company.
Each definition of an agreement in this Article 1 shall include such
agreement as modified, amended or supplemented from time to time in accordance
herewith.
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<PAGE>
ARTICLE 2
LOANS
Section 2.1 THE LOANS.
(a) REVOLVING LOAN COMMITMENT. The Lenders agree, severally, in
accordance with their respective Revolving Loan 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. Subject to the terms and conditions
hereof, Advances under the Revolving Loan Commitment may be repaid and
reborrowed from time to time on a revolving basis.
(b) TERM LOAN COMMITMENT. The Lenders agree, severally, in
accordance with their respective Term Loan Commitment Ratios, and not jointly,
upon the terms and subject to the conditions of the Agreement, to lend to the
Borrower on the Agreement Date an amount not to exceed the Term Loan Commitment.
Subject to the terms and conditions hereof, Advances under the Term Loan
Commitment may be repaid and reborrowed to effect a change in the Interest Rate
Basis or Interest Periods relating thereto; provided, however, there shall be no
increase in the principal amount of the Term Loans outstanding.
Section 2.2 MANNER OF BORROWING AND DISBURSEMENT
(a) CHOICE OF INTEREST RATE, ETC. Any Advance under the Commitment
shall, at the option of the Borrower, be made as a Base Rate Advance or a LIBOR
Advance; provided, however, that at such time as there shall have occurred and
be continuing a Default hereunder, the Borrower shall not have the right to
receive a LIBOR Advance. Any notice given to the Administrative Agent in
connection with a requested Advance hereunder shall be given to the
Administrative Agent prior to 11:00 a.m. (New York, New York time) in order for
such Business Day to count toward the minimum number of Business Days required.
(b) BASE RATE ADVANCES.
(i) ADVANCES. The Borrower shall give the Administrative
Agent in the case of Base Rate Advances at least one (1) Business Day's
irrevocable prior written notice in the form of a Request for Advance, or
telephonic notice followed immediately by a Request for Advance; provided,
however, that the Borrower's failure to confirm any telephonic notice with
a Request for Advance shall not
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<PAGE>
invalidate any notice so given if acted upon by the Administrative Agent.
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. The Borrower may repay or
prepay a Base Rate Advance without regard to its Payment Date and (A) upon
at least one (1) Business Day's irrevocable prior written notice, reborrow
all or a portion of the principal amount thereof as a Base Rate Advance,
(B) upon at least three (3) Business Days' irrevocable prior written
notice, reborrow all or a portion of the principal thereof as one or more
LIBOR Advances, or (C) not reborrow all or any portion of such Base Rate
Advance. On the date indicated by the Borrower, such Base Rate Advance
shall be so repaid and, as applicable, reborrowed. The failure to give
timely notice hereunder with respect to the Payment Date of any Base Rate
Advance shall be considered a request for a Base Rate Advance.
(c) LIBOR ADVANCES.
(i) ADVANCES. Upon request, the Administrative Agent, whose
determination shall be conclusive, shall determine the available LIBOR
Bases and shall notify the Borrower of such LIBOR Bases. The Borrower
shall give the Administrative Agent in the case of LIBOR Advances at least
three (3) Business Days' irrevocable prior written notice in the form of a
Request for Advance, or telephonic notice followed immediately by a Request
for Advance; PROVIDED, HOWEVER, that the Borrower's failure to confirm any
telephonic notice with a Request for Advance shall not invalidate any
notice so given if acted upon by the Administrative Agent. 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 the Payment Date for each LIBOR Advance, the Borrower shall
give the Administrative Agent written notice specifying whether all or a
portion of such LIBOR Advance (A) is to be repaid and then reborrowed in
whole or in part as one or more LIBOR Advances, (B) is to be repaid and
then reborrowed in whole or in part as a Base Rate Advance, or (C) is to be
repaid and not reborrowed. The failure to give such notice shall preclude
the Borrower from reborrowing such Advance as a LIBOR Advance on its
Payment Date and shall be considered a request for a Base Rate Advance.
Upon such Payment Date such LIBOR 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
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<PAGE>
for such Advance, the Administrative Agent shall promptly but no later than the
close of business on the day of such notice notify each Lender (or, in the case
of an Advance under the Incremental Facility Commitment, each Lender having an
Incremental Facility Commitment) by telephone or telecopy of the contents
thereof and the amount of such Lender's portion of the Advance. Each Lender
(or, in the case of an Advance under the Incremental Facility Commitment, each
Lender having an Incremental Facility Commitment) shall, not later than
1:00 p.m. (New York, New York time) on the date of borrowing specified in such
notice, make available to the Administrative Agent at the Administrative Agent's
Office, or at such account as the Administrative Agent shall designate, the
amount of its portion of any Advance which represents an additional borrowing
hereunder in immediately available funds.
(e) DISBURSEMENT.
(i) Prior to 2:00 p.m. (New York, New York time) on the date of
an Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of the conditions set forth in Article 3 hereof, disburse the
amounts made available to the Administrative Agent by the Lenders in like
funds by (A) transferring the amounts so made available by wire transfer
pursuant to the Borrower's instructions, or (B) in the absence of such
instructions, crediting the amounts so made available to the account of the
Borrower maintained with the Administrative Agent.
(ii) Unless the Administrative Agent shall have received notice
from a Lender prior to 12:00 noon (New York, New York time) on the date of
any Advance that such Lender will not make available to the Administrative
Agent such Lender's ratable portion of such Advance, the Administrative
Agent may assume that such Lender has made or will make such portion
available to the Administrative Agent on the date of such Advance and the
Administrative Agent may in its sole discretion and in reliance upon such
assumption, make available to the Borrower on such date a corresponding
amount. If and to the extent the Lender does not make such ratable portion
available to the Administrative Agent, such Lender agrees to repay to the
Administrative Agent on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available
to the Borrower until the date such amount is repaid to the Administrative
Agent, at the Federal Funds Rate.
(iii) If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
portion of the applicable Advance for purposes of this Agreement. If such
Lender does not repay such corresponding amount immediately upon the
Administrative Agent's demand therefor, the Administrative Agent shall
notify the Borrower and the Borrower shall immediately pay such
corresponding amount to the Administrative
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<PAGE>
Agent, with interest at the Federal Funds Rate. The failure of any Lender
to fund its portion of any Advance shall not relieve any other Lender of
its obligation, if any, hereunder to fund its respective portion of the
Advance on the date of such borrowing, but no Lender shall be responsible
for any such failure of any other Lender.
(iv) In the event that, at any time when the Borrower is not in
Default and has otherwise satisfied each of the conditions in Section 3.2
hereof, a Lender for any reason fails or refuses to fund its portion of an
Advance and such failure shall continue for a period in excess of thirty
(30) days, then, until such time as such Lender has funded its portion of
such Advance (which late funding shall not absolve such Lender from any
liability it may have to the Borrower), or all other Lenders have received
payment in full from the Borrower (whether by repayment or prepayment) or
otherwise of the principal and interest due in respect of such Advance,
such non-funding Lender shall not have the right (A) to vote regarding any
issue on which voting is required or advisable under this Agreement or any
other Loan Document, and such Lender's portion of the Loans shall not be
counted as outstanding for purposes of determining "Majority Lenders"
hereunder, and (B) to receive payments of principal, interest or fees from
the Borrower, the Administrative Agent or the other Lenders in respect of
its portion of the Loans.
Section 2.3 INTEREST.
(a) ON BASE RATE ADVANCES. Interest on each Base Rate Advance shall
be computed on the basis of a year of 365/366 days for the actual number of days
elapsed and shall be payable at the Base Rate Basis for such Advance, in arrears
on the applicable Payment Date. Interest on Base Rate Advances then outstanding
shall also be due and payable on the Maturity Date.
(b) ON LIBOR ADVANCES. Interest on each LIBOR Advance shall be
computed on the basis of a 360-day year for the actual number of days elapsed
and shall be payable at the LIBOR Basis for such Advance, in arrears on the
applicable Payment Date, and, in addition, if the Interest Period for a LIBOR
Advance exceeds three (3) months, interest on such LIBOR Advance shall also be
due and payable in arrears on every three-month anniversary of the beginning of
such Interest Period. Interest on LIBOR Advances then outstanding shall also be
due and payable on the 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 LIBOR Basis, or if for any reason a determination of a LIBOR
Basis for any Advance is not timely concluded, the Base Rate Basis shall apply
to such Advance.
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<PAGE>
(d) INTEREST UPON DEFAULT. Immediately upon the occurrence of an
Event of Default hereunder, the outstanding principal balance of the Loans shall
bear interest at the Default Rate. Such interest shall be payable on demand by
the Majority Lenders and shall accrue until the earlier of (i) waiver or cure of
the applicable Event of Default, (ii) agreement by the Majority Lenders (or, if
applicable to the underlying Event of Default, the Lenders) to rescind the
charging of interest at the Default Rate, or (iii) payment in full of the
Obligations.
(e) LIBOR CONTRACTS. At no time may the number of outstanding LIBOR
Advances together with any outstanding Base Rate Advances exceed eight (8). For
the purposes of this Section 2.3(e), all outstanding Base Rate Advances shall be
deemed to be a single Base Rate Advance.
(f) APPLICABLE MARGIN. With respect to any Advance, the Applicable
Margin shall be as set forth in a certificate of the chief financial officer of
the Borrower delivered to the Administrative Agent based upon the Total Leverage
Ratio. Changes in the Applicable Margin shall be effective as of the (i) the
date of any Advance hereunder which results in a change in the Total Leverage
Ratio, and (ii) the second (2nd) Business Day after the financial statements
referred to in Section 6.1 or 6.2 hereof, as the case may be, are furnished by
the Borrower to the Administrative Agent and each Lender for the fiscal quarter
most recently ended, in each case, as follows:
<TABLE>
<CAPTION>
Total Leverage Ratio Base Rate Advance LIBOR Advance
-------------------- Applicable Margin Applicable Margin
----------------- -----------------
<S> <C> <C>
A. Greater than 8.00:1 1.250% 2.250%
B. Greater than 7.00:1, but less 1.000% 2.000%
than or equal to 8.00:1
C. Greater than 6.00:1, but less 0.750% 1.750%
than or equal to 7.00:1
D. Greater than 5.00:1, but less 0.500% 1.500%
than or equal to 6.00:1
E. Greater than 4.00:1, but less 0.250% 1.250%
than or equal to 5.00:1
F. Greater than 3.00:1, but less 0.000% 1.000%
than or equal to 4.00:1
G. Less than or equal to 3.00:1 0.000% 0.750%
</TABLE>
The Applicable Margin on the Agreement Date shall be based on the Annualized
Operating Cash Flow (with appropriate adjustment for any Acquisitions as
provided in the definition of
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<PAGE>
"Operating Cash Flow") for the Borrower with respect to March 31, 1998 and the
Total Debt as of the Agreement Date. Upon the occurrence of an Event of
Default, the Applicable Margins shall not be subject to downward adjustment and
shall automatically revert to the Applicable Margins set forth in part A of the
above table until such time as such Default is cured or waived.
Section 2.4 COMMITMENT FEES. Commencing on and at all times after
the Agreement Date, the Borrower agrees to pay to the Administrative Agent
for the account of each of the Lenders in accordance with their respective
Revolving Loan Commitment Ratios, a commitment fee on the aggregate
unborrowed balance of the Revolving Loan Commitment for each day from the
date hereof until the Maturity Date, at a rate of three-eighths of one
percent (0.375%) per annum. Such commitment fee shall be computed on the
basis of a year of 365/366 days for the actual number of days elapsed, shall
be payable quarterly in arrears on the last day of each calendar quarter, and
shall be fully earned when due and non-refundable when paid. A final payment
of any commitment fee then payable shall also be due and payable on the
Maturity Date.
Section 2.5 MANDATORY REVOLVING LOAN COMMITMENT REDUCTIONS.
(a) SCHEDULED REDUCTIONS UNDER REVOLVING LOAN COMMITMENT. Commencing
on March 31, 2001, and on the last day of each calendar quarter ending during
the periods set forth below, the Revolving Loan Commitment as of March 30, 2001
shall be automatically and permanently reduced by the percentage amount set
forth below (which reductions are in addition to those set forth in Sections
2.5(b) and (c) and 2.6 hereof):
<TABLE>
<CAPTION>
Quarterly Percentage
for Reduction of
Dates of Revolving Loan Commitment Reduction Revolving Loan Commitment
-------------------------------------------- as of March 30, 2001
--------------------
<S> <C>
March 31, 2001, June 30, 2001, September 30, 2001 and 1.875%
December 31, 2001
March 31, 2002, June 30, 2002, September 20, 2002 and 2.500%
December 31, 2002
March 31, 2003, June 30, 2003, September 20, 2003 and 3.750%
December 31, 2003
March 31, 2004, June 30, 2004, September 30, 2004 and 5.000%
December 31, 2004
March 31, 2005, June 30, 2005, September 30, 2005 and 5.000%
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Quarterly Percentage
for Reduction of
Dates of Revolving Loan Commitment Reduction Revolving Loan Commitment
-------------------------------------------- as of March 30, 2001
--------------------
<S> <C>
December 31, 2005
March 31, 2006, June 30, 2006, September 30, 2006 and 6.875%
December 31, 2006
</TABLE>
(b) REDUCTION FROM EXCESS CASH FLOW. On March 31, 2001, and on each
March 31st thereafter during the term of this Agreement, the Revolving Loan
Commitment shall be permanently reduced by an amount equal to the repayment of
Revolving Loans required under Section 2.7 (b)(iii) hereof; PROVIDED, HOWEVER,
that if there are no Revolving Loans then outstanding, the Revolving Loan
Commitment shall be reduced regardless of any repayment of the Revolving Loans,
in the amount by which the repayment required under Section 2.7(b)(iii) hereof
exceeds the Term Loans then outstanding. Reductions to the Revolving Loan
Commitment under this Section shall be applied to the reductions set forth in
Section 2.5(a) hereof in inverse order of the reduction set forth therein.
(c) REDUCTIONS FROM PERMITTED ASSET SALES. On the twelve month
anniversary of the date of receipt by the Borrower or any of its Subsidiaries of
the Net Proceeds of any asset disposition permitted pursuant to Section 7.4
hereof, the Revolving Loan Commitment shall be automatically and permanently
reduced by an amount equal to the repayment of Revolving Loans required under
Section 2.7(b)(iv) hereof; PROVIDED, HOWEVER, that if there are no Revolving
Loans then outstanding, the Revolving Loan Commitment shall be reduced
regardless of any repayment of the Revolving Loans by the amount by which the
repayment required under Section 2.7(b)(iv) hereof exceeds the Term Loans then
outstanding; PROVIDED FURTHER, HOWEVER, that there shall be no reduction of the
Revolving Loan Commitment hereunder with respect to a disposition of assets
(i) in the ordinary course of the Borrower's or its Subsidiaries' businesses,
(ii) the Net Proceeds of which do not exceed (A) $5,000,000 for any single
transaction (or series of related transactions), and (B) $15,000,000 in the
aggregate during the term hereof, (iii) in the event that Borrower delivers to
the Administrative Agent evidence that the Net Proceeds of such disposition have
been used by the Borrower or its Subsidiaries to acquire (A) an asset as a
substitute or replacement of the asset disposed of or (B) a Cellular System as
otherwise permitted hereunder, or (iv) with respect to the disposition of the
Borrower's interest in Switch 2000. Reductions to the Revolving Loan Commitment
under this Section shall be applied to the reductions set forth in Section
2.5(a) hereof in inverse order of the reductions set forth therein.
Section 2.6 VOLUNTARY COMMITMENT REDUCTIONS. The Borrower shall
have the right, at any time and from time to
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<PAGE>
time after the Agreement Date and prior to the Maturity Date, upon at least
three (3) Business Days' prior written notice to the Administrative Agent,
without premium or penalty, to cancel or reduce permanently all or a portion of
the Revolving Loan Commitment (or the Incremental Facility Commitment) on the
basis of the respective Revolving Loan Commitment Ratios (or the Incremental
Facility Commitment Ratios) of the Lenders applicable to the Revolving Loan
Commitment (or the Incremental Facility Commitment); PROVIDED, HOWEVER, that any
such partial reduction shall be made in an amount not less than $1,000,000 and
in integral multiples of not less than $1,000,000. As of the date of
cancellation or reduction set forth in such notice, the Revolving Loan
Commitment (or the Incremental Facility Commitment) shall be permanently reduced
to the amount stated in the Borrower's notice for all purposes herein, and the
Borrower shall pay to the Administrative Agent for the Lenders the amount
necessary to reduce the principal amount of the Revolving Loans (or Incremental
Facility Loans) then outstanding under the Revolving Loan Commitment (or the
Incremental Facility Commitment) to not more than the amount of the Revolving
Loan Commitment (or the Incremental Facility Commitment) as so reduced, together
with accrued interest on the amount so prepaid and commitment fees accrued
through the date of the reduction with respect to the amount reduced.
Reductions in the Revolving Loan Commitment pursuant to this Section shall be
applied pro rata to the then remaining reductions set forth in Section 2.5(a)
hereof in inverse order of the reductions set forth therein.
Section 2.7 PREPAYMENTS AND REPAYMENTS.
(a) PREPAYMENT. The principal amount of any Base Rate Advance may be
prepaid in full or ratably in part at any time, without penalty and without
regard to the Payment Date for such Advance. LIBOR Advances may be prepaid
prior to the applicable Payment Date, upon three (3) Business Days' prior
written notice, or telephonic notice followed immediately by written notice, to
the Administrative Agent; PROVIDED, HOWEVER, that the Borrower shall reimburse
the Lenders and the Administrative Agent, on demand by the applicable Lender or
the Administrative Agent, for any loss or out-of-pocket expense incurred by any
Lender or the Administrative Agent in connection with such prepayment, as set
forth in Section 2.10 hereof; PROVIDED FURTHER, HOWEVER, that Borrower's failure
to confirm any telephonic notice with a written notice, shall not invalidate any
notice so given if acted upon by the Administrative Agent. Any prepayment
hereunder shall be in amounts of not less than $500,000 and in integral
multiples of $100,000. Amounts prepaid pursuant to this Section 2.7 may be
reborrowed, subject to the terms and conditions hereof. Amounts prepaid shall
be paid together with accrued interest on the amount so prepaid and commitment
fees accrued through the date of the reduction with respect to the amount
reduced.
(b) REPAYMENTS.
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<PAGE>
(i) SCHEDULED REPAYMENTS OF THE TERM LOANS. Commencing
March 31, 2001, the principal balance of the Term Loans outstanding
on March 30, 2001 shall be repaid in consecutive quarterly installments
on the last day of each calendar quarter ending during the periods set
forth below until paid in full in such amounts as follows:
<TABLE>
<CAPTION>
Percentage of Principal
of Term Loans Outstanding
on March 30, 2001 Due on
Repayment Dates Last Day of Each Quarter
--------------- ------------------------
<S> <C>
March 31, 2001, June 30, 2001,
September 30, 2001 and December 31, 2001 1.875%
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 2.500%
March 31, 2003, June 30, 2003,
September 30, 2003 and December 31, 2003 3.750%
March 31, 2004, June 30, 2004,
September 30, 2004 and December 31, 2004 5.000%
March 31, 2005, June 30, 2005,
September 30, 2005 and December 31, 2005 5.000%
March 31, 2006, June 30, 2006,
September 30, 2006 and December 31, 2006 6.875%
</TABLE>
(ii) LOANS IN EXCESS OF REVOLVING LOAN COMMITMENT (AND/OR
INCREMENTAL FACILITY COMMITMENT). If, at any time, the amount of
the Revolving Loans (or the Incremental Facility Loans) then outstanding
shall exceed the Revolving Loan Commitment (or the Incremental Facility
Commitment), the Borrower shall, on such date and subject to Sections 2.10
and 2.11 hereof, make a repayment of the principal amount of the Revolving
Loans (or the Incremental Facility Loans) in an amount equal to such
excess, together with any accrued interest and fees with respect thereto.
(iii) EXCESS CASH FLOW. On March 31, 2001, and on each
March 31st thereafter, the Borrower shall make a repayment of the
Loans then outstanding in an amount equal to (A) fifty percent (50%) of the
Borrower's Excess Cash Flow for the immediately preceding calendar year,
MINUS (B) the amount of any
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<PAGE>
prepayments of the Term Loans made by the Borrower pursuant to Section
2.7(a) hereof during the immediately preceding calendar year. The amount
of the Excess Cash Flow required to be repaid under this Section
2.7(b)(iii) shall be applied to the Loans then outstanding on a pro rata
basis and in inverse order to the Term Loan. Accrued interest on the
principal amount of the Loans being prepaid pursuant to this
Section 2.7(b)(iii) to the date of such prepayment will be paid by the
Borrowers concurrently with such principal prepayment.
(iv) ASSET SALES. On the twelve (12) calendar month
anniversary of the date of receipt by the Borrower or any of its
Subsidiaries of the Net Proceeds of any asset sale permitted pursuant to
Section 7.4 hereof, the Borrower shall make a repayment of the Loans then
outstanding in an amount equal to such Net Proceeds; provided, however,
that the Borrower shall not be required to make a repayment hereunder with
respect to a sale of assets (i) in the ordinary course of the Borrower's or
its Subsidiary's business, (ii) the Net Proceeds of which do not exceed
(A) $5,000,000 for any single transaction (or series of related
transactions), and (B) $15,000,000 in the aggregate during the term hereof
or (iii) in the event that Borrower delivers to the Administrative Agent
evidence that the Net Proceeds of such sale have been used by the Borrower
or the Borrower's Subsidiaries to acquire a Cellular System as otherwise
permitted hereunder. The amount of the Net Proceeds required to be repaid
under this Section 2.7(b)(iv) shall be applied to the Loans then
outstanding on a pro rata basis and in inverse order to the Term Loan.
Accrued interest on the principal amount of the Loans being prepaid
pursuant to this Section 2.7(b)(iv) to the date of such prepayment will be
paid by the Borrowers concurrently with such principal prepayment.
(v) MATURITY DATE. In addition to the foregoing, a final
payment of all Obligations then outstanding shall be due and payable on the
Maturity Date.
Section 2.8 NOTES; LOAN ACCOUNTS.
(a) The Loans shall be repayable in accordance with the terms and
provisions set forth herein and shall be evidenced by the Notes (and, if
applicable, the Incremental Facility Notes). One Term Loan Note and one
Revolving Loan Note shall be payable to the order of each Lender, in accordance
with such Lender's respective Term Loan Commitment Ratio and Revolving Loan
Commitment Ratio, respectively. The Notes shall be issued by the Borrower to
the Lenders and shall be duly executed and delivered by one or more Authorized
Signatories.
(b) Each Lender may open and maintain on its books in the name of the
Borrower a loan account with respect to its portion of the Loans and interest
thereon. Each Lender which opens such a loan account shall debit such loan
account for the principal
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<PAGE>
amount of its portion of each Advance made by it and accrued interest thereon,
and shall credit such loan account for each payment on account of principal of
or interest on its Loans. The records of a Lender with respect to the loan
account maintained by it shall be prima facie evidence of its portion of the
Loans and accrued interest thereon absent manifest error, but the failure of any
Lender to make any such notations or any error or mistake in such notations
shall not affect the Borrower's repayment obligations with respect to such
Loans.
Section 2.9 MANNER OF PAYMENT.
(a) Each payment (including, without limitation, any prepayment) by
the Borrower on account of the principal of or interest on the Loans, commitment
fees and any other amount owed to the Lenders or the Administrative Agent or any
of them under this Agreement or the Notes shall be made not later than 1:00 p.m.
(New York, New York time) on the date specified for payment under this Agreement
to the Administrative Agent at the Administrative Agent's Office, for the
account of the Lenders or the Administrative Agent, as the case may be, in
lawful money of the United States of America in immediately available funds.
Any payment received by the Administrative Agent after 1:00 p.m. (New York, New
York time) shall be deemed received on the next Business Day. Receipt by the
Administrative Agent of any payment intended for any Lender or Lenders hereunder
prior to 1:00 p.m. (New York, New York time) on any Business Day shall be deemed
to constitute receipt by such Lender or Lenders on such Business Day. In the
case of a payment for the account of a Lender, the Administrative Agent will
promptly, but no later than the close of business on the date such payment is
deemed received, thereafter distribute the amount so received in like funds to
such Lender. If the Administrative Agent shall not have received any payment
from the Borrower as and when due, the Administrative Agent will promptly notify
the Lenders accordingly. In the event that the Administrative Agent shall fail
to make distribution to any Lender as required under this Section 2.9, the
Administrative Agent agrees to pay such Lender interest from the date such
payment was due until paid at the Federal Funds Rate.
(b) The Borrower agrees to pay principal, interest, fees and all
other amounts due hereunder or under the Notes or the other Loan Documents
without set-off or counterclaim or any deduction whatsoever, including
withholding taxes, excluding, (i) in the case of each Lender, the Agent and the
Administrative Agent taxes measured by its net income, and franchise taxes
imposed on it by the jurisdiction under the laws of which it is organized or any
political subdivision thereof, (ii) in the case of each Lender, taxes
(including, but not limited to, the Branch Profits Tax under Section 884 of the
Code) measured by its net income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's applicable lending office or any political
subdivision thereof and (iii) in the case of any Lender organized under the laws
of a jurisdiction outside the United States, United States federal withholding
tax payable with respect to payments by the Borrower which would not
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<PAGE>
have been imposed had such Lender, to the extent then required thereunder,
delivered to the Borrower and the Administrative Agent the forms prescribed by
Section 2.13 hereof.
(c) Prior to the declaration of an Event of Default under Section 8.2
hereof, if some but less than all amounts due from the Borrower are received by
the Administrative Agent with respect to the Obligations, the Administrative
Agent shall distribute such amounts in the following order of priority, all on a
pro rata basis to the Lenders: (i) to the payment on a pro rata basis of any
fees or expenses then due and payable to the Administrative Agent, the Lenders,
or any of them; (ii) to the payment of interest then due and payable on the
Loans; (iii) to the payment of all other amounts not otherwise referred to in
this Section 2.9(c) then due and payable to the Administrative Agent or the
Lenders, or any of them, hereunder or under the Notes or any other Loan
Document; and (iv) to the payment of principal then due and payable on the
Loans.
(d) Subject to any contrary provisions in the definition of Interest
Period, if any payment under this Agreement or any of the other Loan Documents
is specified to be made on a day which is not a Business Day, it shall be made
on the next Business Day, and such extension of time shall in such case be
included in computing interest and fees, if any, in connection with such
payment.
Section 2.10 REIMBURSEMENT.
(a) Whenever any Lender shall sustain or incur any losses or
reasonable out-of-pocket expenses in connection with (i) failure by the Borrower
to borrow any LIBOR Advance after having given notice of its intention to borrow
in accordance with Section 2.2 hereof (whether by reason of the Borrower's
election not to proceed or the non-fulfillment of any of the conditions set
forth in Article 3 hereof), or (ii) prepayment (or failure to prepay after
giving notice thereof) of any LIBOR Advance in whole or in part for any reason,
the Borrower agrees to pay to such Lender, upon such Lender's demand, an amount
sufficient to compensate such Lender for all such losses and out-of-pocket
expenses. Such Lender's good faith determination of the amount of such losses
or reasonable out-of-pocket expenses, as set forth in writing and accompanied by
calculations in reasonable detail demonstrating the basis (which need not
reflect the purchase of deposits in the relevant market bearing interest at the
rate applicable to such Advance and having a maturity identical to the Interest
Period for such Advance) for its demand, shall be presumptively correct absent
manifest error.
(b) Losses subject to reimbursement hereunder shall include, without
limiting the generality of the foregoing, lost margins, expenses incurred by any
Lender or any participant of such Lender permitted hereunder in connection with
the re-employment of funds prepaid, paid, repaid, not borrowed, or not paid, as
the case may be, and will be payable whether the Maturity Date is changed by
virtue of an amendment hereto (unless such amendment expressly waives such
payment) or as a result of acceleration of the Obligations.
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<PAGE>
Section 2.11 PRO RATA TREATMENT.
(a) ADVANCES. Each Advance from the Lenders hereunder, shall be made
pro rata on the basis of the respective Commitment Ratios (or, if applicable,
the Incremental Facility Commitment Ratios) of the Lenders.
(b) PAYMENTS. Each payment and prepayment of principal of the Loans,
and, except as provided in Section 2.2(e) and Article 10 hereof, each payment of
interest on the Loans, shall be made to the Lenders pro rata on the basis of
their respective unpaid principal amounts outstanding under the Notes
(including, if applicable, the Incremental Facility Notes) immediately prior to
such payment or prepayment. If any Lender shall obtain any payment (whether
involuntary, through the exercise of any right of set-off, or otherwise) on
account of the Loans in excess of its ratable share of the Loans under its
Commitment Ratio, such Lender shall forthwith purchase from the other Lenders
such participations in the portion of the Loans made by them as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; PROVIDED, HOWEVER, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such purchase from
each Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery. The Borrower agrees
that any Lender so purchasing a participation from another Lender pursuant to
this Section 2.11(b) may, to the fullest extent permitted by law, exercise all
its rights of payment (including, without limitation, the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation.
(c) At the election of the Borrower, amounts to be applied, pursuant
to Sections 2.7(b)(ii) or (iii) hereof, to prepayment of principal bearing
interest at the LIBOR Basis may be remitted into a specifically designated
"Deposit Account" and shall not be applied to such prepayment until the end of
the Interest Period ending after the date such payment would otherwise be
required, so as to avoid incurrence of costs required pursuant to Section 2.10
which might otherwise be incurred upon prepayment. In the event the aggregate
amount to be prepaid by reason of Section 2.7(b)(ii) or (iii) hereof exceeds the
amount of principal to be prepaid at the end of the first such Interest Period
to terminate after the relevant date of reduction, the excess shall remain in
such specifically designated Deposit Account until the end of the next Interest
Period, and so on, until the full amount required to be repaid under Section
2.7(b)(i), (ii) or (iii) hereof has been applied to the Loans. As used herein,
the aforesaid "Deposit Account" shall be an interest-bearing account maintained
with the Administrative Agent as part of the Collateral, and Borrower hereby
authorizes the Administrative Agent to apply as set forth above or, at any time
during the continuance of an Event of Default, without further authorization
from the Borrower, the balance of said Deposit Account to the prepayments
required hereunder.
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<PAGE>
Section 2.12 CAPITAL ADEQUACY. If after the date hereof, the adoption
of any Applicable Law regarding the capital adequacy of banks or bank holding
companies, or any change in Applicable Law (whether adopted before or after
the Agreement Date) or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by
such Lender (or the bank holding company of such Lender) with any directive
regarding capital adequacy (whether or not having the force of law) of any
such governmental authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on any Lender's capital as a
consequence of its obligations hereunder with respect to the Loans and the
Commitment to a level below that which it could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy immediately before such adoption,
change or compliance and assuming that such Lender's capital was fully
utilized prior to such adoption, change or compliance) by an amount
reasonably deemed by such Lender to be material, then, if such Lender
exercises its capital adequacy protection rights (if any) generally for
borrowers situated similarly to the Borrower and upon demand by such Lender,
the Borrower shall promptly pay to such Lender such additional amounts as
shall be sufficient to compensate such Lender for such reduced return,
together with interest on such amount from the fourth (4th) Business Day
after the date of demand or the Maturity Date, as applicable, until payment
in full thereof at the Default Rate. A certificate of such Lender setting
forth the amount to be paid to such Lender by the Borrower as a result of any
event referred to in this paragraph and supporting calculations in reasonable
detail shall be presumptively correct absent manifest error.
Section 2.13 LENDER TAX FORMS. On or prior to the Agreement Date, and
on or prior to the first Business Day of each calendar year thereafter, each
Lender which is organized in a jurisdiction other than the United States
shall provide each of the Administrative Agent and the Borrower with a
properly executed originals of Form 4224 or 1001 (or any successor form)
prescribed by the Internal Revenue Service or other documents satisfactory to
the Borrower and the Administrative Agent, and 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.
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<PAGE>
Section 2.14 INCREMENTAL FACILITY ADVANCES.
(a) Subject to the terms and conditions of this Agreement and to the
consent of the Majority Lenders, the Borrower may request the Incremental
Facility Commitment on any Business Day; PROVIDED, HOWEVER, that the Borrower
may not request the Incremental Facility Commitment or an Incremental Facility
Advance after the occurrence and during the continuance of a Default, including,
without limitation, any Event of Default that would result after giving effect
to any Incremental Facility Advance; and provided, further, that the Borrower
may request only one (1) Incremental Facility Commitment (although such
commitment may be from more than one Lender). The aggregate amount of the
Incremental Facility Commitment and outstanding Incremental Facility Advances
shall not exceed $125,000,000. The maturity date for the Incremental Facility
Advances shall be no earlier than twelve (12) calendar months after the Maturity
Date. The decision of any Lender to make an Incremental Facility Commitment to
the Borrower shall be at the Lender's sole discretion. The Incremental Facility
Commitment (x) may be in the form of a revolving credit facility, (y) must not
require principal repayment earlier, or in amount larger (or percentage
greater), than those set forth in, the repayment schedule for the Term Loans or
the Revolving Loans as set forth in Section 2.7(b) hereof and (z) must be
governed by this Agreement and the other Loan Documents and be on terms and
conditions no more restrictive than those set forth herein and therein.
(b) Prior to the effectiveness of the Incremental Facility
Commitment, the Borrower shall (i) deliver to the Administrative Agent and the
Lenders a Notice of Incremental Facility Commitment and (ii) provide revised
projections to the Arranging Agent, the Administrative Agent and the Lenders,
which shall be in form and substance reasonably satisfactory to the
Administrative Agent and the Arranging Agent and which shall demonstrate the
Borrower's ability to timely repay such Incremental Facility Commitment and any
Incremental Facility Advances thereunder and to comply with the covenants
contained in Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereof.
(c) No Incremental Facility Commitment shall by itself result in any
reduction of the Commitment or of the Commitment Ratio of the Lender making such
Incremental Facility Commitment.
(d) Incremental Facility Advances (i) shall bear interest at the Base
Rate Basis or the LIBOR Basis; (ii) subject to Section 2.14(a) hereof, shall be
repaid as agreed to by the Borrower and the Lender making such Incremental
Facility Advances; (iii) shall for all purposes be Loans and Obligations
hereunder and under the Loan Documents; (iv) shall be represented by an
Incremental Facility Note in substantially the form of EXHIBIT K attached
hereto; and (v) shall rank pari passu with the other Loans for purposes of
Sections 2.9 and 8.2 hereof.
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<PAGE>
(e) Incremental Facility Advances shall be requested by the Borrower
pursuant to a request (which shall be in substantially the form of a Request for
Advance) delivered in the same manner as a Request for Advance, but shall be
funded pro rata only by those Lenders holding the Incremental Facility
Commitment.
ARTICLE 3
CONDITIONS PRECEDENT
Section 3.1 CONDITIONS PRECEDENT TO EFFECTIVENESS OF AGREEMENT. The
obligation of the Lenders to undertake the Commitment and the effectiveness
of this Agreement are subject to the prior or contemporaneous fulfillment of
each of the following conditions:
(a) The Administrative Agent and the Lenders shall have received each
of the following:
(i) the loan certificate of the Borrower dated as of the
Agreement Date, in substantially the form attached hereto as EXHIBIT L,
including a certificate of incumbency with respect to each Authorized
Signatory of such Person, together with the following items: (A) a true,
complete and correct copy of the Certificate of Incorporation and By-laws
of the Borrower as in effect on the Agreement Date, (B) certificates of
good standing for the Borrower issued by the Secretary of State or similar
state official for the state of incorporation of the Borrower and for each
state in which the Borrower is required to qualify to do business, (C) a
true, complete and correct copy of the corporate resolutions of the
Borrower authorizing the Borrower to execute, deliver and perform this
Agreement and the other Loan Documents, and (D) a true, complete and
correct copy of any shareholders' agreements or voting trust agreements in
effect with respect to the stock of the Borrower;
(ii) loan certificates of each Subsidiary of the Borrower dated
as of the Agreement Date and in substantially the form of EXHIBIT M
attached hereto, including a certificate of incumbency with respect to each
Authorized Signatory of such Subsidiary, together with the following items:
(A) a true, complete and correct copy of the Certificate/Articles of
Incorporation and By-Laws of such Subsidiary as in effect on the Agreement
Date, (B) certificates of good standing for such Subsidiary issued by the
Secretary of State or similar state official for the state of incorporation
of such Subsidiary and for each state in which such Subsidiary is required
to qualify to do business, (C) a true, complete and correct copy of the
corporate resolutions of such Subsidiary authorizing such Subsidiary to
execute, deliver and perform such
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Loan Documents to which it is a party, and (D) a true, complete and correct
copy of any shareholders' agreements or voting trust agreements in effect
with respect to the Capital Stock or membership interests of such
Subsidiary;
(iii) duly executed Notes;
(iv) duly executed Security Documents;
(v) copies of insurance binders or certificates covering
the assets of the Borrower and its Subsidiaries, and otherwise meeting
the requirements of Section 5.5 hereof, together with copies of the
underlying insurance policies;
(vi) legal opinions of (A) O'Connor & Hannan, LLP, FCC
counsel to the Borrower and its Subsidiaries, and (B) Moss & Barnett,
special counsel to the Borrower and its Subsidiaries, in substantially
the forms attached hereto as EXHIBIT N and EXHIBIT O, respectively, each
as counsel to the Borrower and its Subsidiaries, addressed to each
Lender and the Administrative Agent, and dated as of the Agreement Date;
(vii) duly executed Certificate of Financial Condition
for the Borrower and its Subsidiaries on a consolidated and consolidating
basis;
(viii) any required FCC consents or other required consents to
the closing of this Agreement and the Atlantic Acquisition or to the
execution, delivery and performance of this Agreement and the other Loan
Documents, each of which shall be in form and substance satisfactory to
the Administrative Agent and the Lenders;
(ix) duly executed UCC-3 termination statements and releases
with respect to any Liens (other than Permitted Liens, if any) existing
on the properties or assets being acquired in connection with the
Atlantic Acquisition; and
(x) all such other documents as either the Administrative
Agent or any Lender may reasonably request, certified by an appropriate
governmental official or an Authorized Signatory if so requested.
(b) The Administrative Agent and the Lenders shall have received
evidence satisfactory to them that all Necessary Authorizations, including,
without limitation, all necessary consents to the closing of this Agreement,
have been obtained or made, are in
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full force and effect and are not subject to any pending or, to the knowledge of
the Borrower, threatened reversal or cancellation, and the Administrative Agent
and the Lenders shall have received a certificate of an Authorized Signatory so
stating.
(c) The Borrower shall certify to the Administrative Agent and the
Lenders that each of the representations and warranties in Article 4 hereof are
true and correct in all material respects as of the Agreement Date, that the
Borrower and its Subsidiaries are in compliance with each of the covenants in
Articles 5, 6 and 7 hereof in all material respects as of the Agreement Date,
that no Default or Event of Default then exists or is continuing, and that no
material adverse change has occurred in the financial condition, business
operations, prospects or properties of the Borrower and its Subsidiaries on a
consolidated basis as of the most recent fiscal year end and most recent fiscal
quarter end.
(d) The Borrower shall have paid to the Administrative Agent for
itself and for the account of each Lender, as applicable, the fees set forth in
those certain fee letter agreements dated the Agreement Date in favor of the
Administrative Agent and each Lender, as the case may be.
(e) The Administrative Agent and the Lenders shall have received
evidence, in form and substance satisfactory to them, that all conditions
precedent to the closing of the Atlantic Acquisition have been or will be
satisfied.
Section 3.2 CONDITIONS PRECEDENT TO EACH ADVANCE. The obligation of
the Lenders to make each Advance on or after the Agreement Date which
increases the principal amount of the Loans outstanding is subject to the
fulfillment of each of the following conditions immediately prior to or
contemporaneously with such Advance:
(a) All of the representations and warranties of the Borrower under
this Agreement and the other Loan Documents (including, without limitation, all
representations and warranties with respect to the Borrower's Subsidiaries),
which, pursuant to Section 4.2 hereof, are made at and as of the time of such
Advance, shall be true and correct at such time in all material respects, both
before and after giving effect to the application of the proceeds of such
Advance, and after giving effect to any updates to information provided to the
Lenders in accordance with the terms of such representations and warranties, and
no Default hereunder shall then exist or be caused thereby;
(b) With respect to Advances which, if funded, would increase the
aggregate principal amount of Loans outstanding hereunder, the Administrative
Agent shall have received a duly executed Request for Advance which shall
contain evidence satisfactory to the Administrative Agent that the Borrower is,
as of the date of such Advance and after giving effect thereto, in compliance
with Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereof;
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(c) Each of the Administrative Agent and the Lenders shall have
received all such other certificates, reports, statements, opinions of counsel
(if such Advance is in connection with an Acquisition) or other documents as the
Administrative Agent or any Lender may reasonably request;
(d) With respect to any Advance relating to any Acquisition or the
formation of any Subsidiary which is permitted hereunder, the Administrative
Agent and the Lenders shall have received such documents and instruments
relating to such Acquisition or formation of a new Subsidiary as are described
in Section 5.14 hereof or otherwise required herein; and
(e) No Materially Adverse Effect shall have occurred and no event
shall have occurred which, in the reasonable opinion of the Majority Lenders,
may be expected to have a Materially Adverse Effect.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 REPRESENTATIONS AND WARRANTIES. The Borrower hereby
agrees, represents and warrants, upon the Agreement Date, and at all times
thereafter as required pursuant to the terms hereof, in favor of the
Administrative Agent and each Lender that:
(a) ORGANIZATION; OWNERSHIP; POWER; QUALIFICATION. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Minnesota. The Borrower has the corporate power and authority
to own its properties and to carry on its business as now being and as proposed
hereafter to be conducted. Each Subsidiary of the Borrower is a corporation or
partnership duly organized, validly existing and in good standing under the laws
of the state of its incorporation or formation, as the case may be, and has the
corporate or partnership power, as the case may be, and authority to own its
properties and to carry on its business as now being and as proposed hereafter
to be conducted. The Borrower and each of its Subsidiaries are duly qualified,
in good standing and authorized to do business in each jurisdiction in which the
character of their respective properties or the nature of their respective
businesses requires such qualification or authorization.
(b) AUTHORIZATION; ENFORCEABILITY. The Borrower has the corporate
power and has taken all necessary corporate action to authorize it to borrow
hereunder, to execute, deliver and perform this Agreement and each of the other
Loan Documents to which it is a
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party in accordance with their respective terms, and to consummate the
transactions contemplated hereby and thereby. This Agreement has been duly
executed and delivered by the Borrower and is, and each of the other Loan
Documents to which the Borrower is a party is, a legal, valid and binding
obligation of the Borrower enforceable against the Borrower in accordance with
its terms, subject, as to enforcement of remedies, to the following
qualifications: (i) an order of specific performance and an injunction are
discretionary remedies and, in particular, may not be available where damages
are considered an adequate remedy at law; (ii) enforcement may be limited by
bankruptcy, insolvency, liquidation, reorganization, reconstruction and other
similar laws affecting enforcement of creditors' rights generally (insofar as
any such law relates to the bankruptcy, insolvency or similar event of the
Borrower); and (iii) a court, on equitable grounds, may decline to enforce
certain provisions or allow the exercise of certain remedies based upon the
facts and circumstances that may exist at the time the enforcement or exercise
is sought.
(c) SUBSIDIARIES; AUTHORIZATION; ENFORCEABILITY. The Borrower's
Subsidiaries and the Borrower's direct and indirect ownership thereof as of the
Agreement Date are as set forth on SCHEDULE 3 attached hereto, and to the extent
such Subsidiaries are corporations, the Borrower has the unrestricted right to
vote the issued and outstanding shares of the Subsidiaries shown thereon and
such shares of such Subsidiaries have been duly authorized and issued and are
fully paid and nonassessable. Each Subsidiary of the Borrower has the corporate
or partnership power and has taken all necessary corporate or partnership action
to authorize it to execute, deliver and perform each of the Loan Documents to
which it is a party in accordance with their respective terms and to consummate
the transactions contemplated by this Agreement and by such Loan Documents.
Each of the Loan Documents to which any Subsidiary of the Borrower is a party is
a legal, valid and binding obligation of such Subsidiary enforceable against
such Subsidiary in accordance with its terms, subject, as to enforcement of
remedies, to the following qualifications: (i) an order of specific performance
and an injunction are discretionary remedies and, in particular, may not be
available where damages are considered an adequate remedy at law; (ii)
enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganization, reconstruction and other similar laws affecting enforcement of
creditors' rights generally (insofar as any such law relates to the bankruptcy,
insolvency or similar event of any such Subsidiary) and (iii) a court, on
equitable grounds, may decline to enforce certain provisions or allow the
exercise of certain remedies based upon the facts and circumstances that may
exist at the time the enforcement or exercise is sought. The Borrower's
ownership interest in each of its Subsidiaries represents a direct or indirect
controlling interest of such Subsidiary for purposes of directing or causing the
direction of the management and policies of each Subsidiary.
(d) COMPLIANCE WITH OTHER LOAN DOCUMENTS AND CONTEMPLATED
TRANSACTIONS. The execution, delivery and performance, in accordance with their
respective terms, by the Borrower of this Agreement and the Notes, and by the
Borrower and its
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Subsidiaries of each of the other Loan Documents to which they are respectively
party, and the consummation of the transactions contemplated hereby and thereby,
do not and will not (i) require any consent or approval, governmental or
otherwise, not already obtained, (ii) violate any Applicable Law respecting the
Borrower or any of its Subsidiaries, (iii) conflict with, result in a breach of,
or constitute a default under the certificate or articles of incorporation or
by-laws or partnership agreements, as the case may be, as amended, of the
Borrower or any of its Subsidiaries, or under any material indenture, agreement,
or other instrument, including, without limitation, the Licenses, to which the
Borrower or any of its Subsidiaries is a party or by which any of them or their
respective properties may be bound, or (iv) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by the Borrower or any of its Subsidiaries, except for
Permitted Liens.
(e) BUSINESS. The Borrower, together with its Subsidiaries, is
engaged in the business of owning, constructing, managing, operating and
investing in Cellular Systems and other wireless communications and related
businesses.
(f) LICENSES, ETC. The Licenses have been duly issued and are in
full force and effect. The Borrower and its Subsidiaries are in compliance in
all material respects with all of the provisions thereof. The Borrower and its
Subsidiaries have secured all Necessary Authorizations and all such Necessary
Authorizations are in full force and effect. Except as set forth in SCHEDULE 4
attached hereto, neither any License nor any Necessary Authorization is the
subject of any pending or, to the best of the Borrower's or any of its
Subsidiaries' knowledge, threatened revocation.
(g) COMPLIANCE WITH LAW. The Borrower and its Subsidiaries are in
compliance with all Applicable Laws in all material respects, except where the
failure to be in compliance would not, individually or in the aggregate, have a
Materially Adverse Effect.
(h) TITLE TO ASSETS. As of the Agreement Date, the Borrower and its
Subsidiaries have good, legal and marketable title to, or a valid leasehold
interest in, all of its material assets. None of the properties or assets of
the Borrower or any of its Subsidiaries is subject to any Liens, except for
Permitted Liens. Except for financing statements evidencing Permitted Liens, no
financing statement under the Uniform Commercial Code as in effect in any
jurisdiction and no other filing which names the Borrower or any of its
Subsidiaries as debtor or which covers or purports to cover any of the assets of
the Borrower or any of its Subsidiaries is currently effective and on file in
any state or other jurisdiction, and neither the Borrower nor any of its
Subsidiaries has signed any such financing statement or filing or any security
agreement authorizing any secured party thereunder to file any such financing
statement or filing.
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(i) LITIGATION. There is no action, suit, proceeding or
investigation pending against, or, to the knowledge of the Borrower, threatened
against or in any other manner relating adversely to, the Borrower or any of its
Subsidiaries or any of their respective properties, including without limitation
the Licenses, in any court or before any arbitrator of any kind or before or by
any governmental body (including without limitation the FCC) except as set forth
on SCHEDULE 5 attached hereto (as such schedule may be updated with the consent
of the Majority Lenders from time to time). No such action, suit, proceeding or
investigation (i) calls into question the validity of this Agreement or any
other Loan Document, or (ii) individually or collectively involves the
possibility of any judgment or liability not fully covered by insurance which,
if determined adversely to the Borrower or any of its Subsidiaries, would have a
Materially Adverse Effect.
(j) TAXES. All federal, state and other tax returns of the Borrower
and each of its Subsidiaries required by law to be filed have been duly filed
and all federal, state and other taxes, including, without limitation,
withholding taxes, assessments and other governmental charges or levies required
to be paid by the Borrower or any of its Subsidiaries or imposed upon the
Borrower or any of its Subsidiaries or any of their respective properties,
income, profits or assets, which are due and payable, have been paid, except any
such taxes (i) (x) the payment of which the Borrower or any of its Subsidiaries
is diligently contesting in good faith by appropriate proceedings, (y) for which
adequate reserves have been provided on the books of the Borrower or its
Subsidiaries involved, and (z) as to which no Lien other than a Permitted Lien
has attached and no foreclosure, distraint, sale or similar proceedings have
been commenced, or (ii) which may result from audits not yet conducted. The
charges, accruals and reserves on the books of the Borrower and its Subsidiaries
in respect of taxes are, in the judgment of the Borrower, adequate.
(k) FINANCIAL STATEMENTS. The Borrower has furnished or caused to be
furnished to the Administrative Agent and the Lenders as of the Agreement Date,
audited financial statements of the Borrower and audited financial statements of
the Subsidiaries of the Borrower on a consolidated basis for the fiscal year
ended December 31, 1997, and unaudited financial statements of the Borrower and
its Subsidiaries on a consolidated basis for the fiscal quartered ended
March 31, 1998, all of which have been prepared in accordance with GAAP and
present fairly in all material respects the financial position of the Borrower
and its Subsidiaries on a consolidated and consolidating basis, as the case may
be, on and as at such dates and the results of operations for the periods then
ended. Neither the Borrower nor any of its Subsidiaries has any material
liabilities, contingent or otherwise, other than as disclosed in the financial
statements referred to in the preceding sentence or as set forth or referred to
in this Agreement, and there are no material unrealized losses of the Borrower
or any of its Subsidiaries and no material anticipated losses of the Borrower or
any of its Subsidiaries other than (i) in connection with the sale of the
Borrower's interest in Switch 2000, (ii) writeoffs of the Borrower's unamortized
costs in connection with the Prior Loan
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Agreement and (iii) those which have been previously disclosed in writing to the
Administrative Agent and the Lenders and identified as such.
(l) NO MATERIAL ADVERSE CHANGE. There has occurred no event since
December 31, 1997 which has or which could reasonably be expected to have a
Materially Adverse Effect.
(m) ERISA. The Borrower and each of its Subsidiaries and each of
their respective Plans are in material compliance with ERISA and the Code.
Neither the Borrower nor any of its ERISA Affiliates, including its
Subsidiaries, has incurred any accumulated funding deficiency with respect to
any Employee Pension Plan within the meaning of ERISA or the Code. Neither the
Borrower nor any of its Subsidiaries has made any promises of retirement or
other benefits to employees, except as set forth in the Plans, in written
agreements with such employees, or in the Borrower's employee handbook and
memoranda to employees. Neither the Borrower nor any of its ERISA Affiliates,
including its Subsidiaries, has incurred any material liability to PBGC in
connection with any such Plan; have suffered the imposition of a lien under
Section 412(m) of the Code; or have been required to provide security as a
result of any amendment to any such Plan as required by Section 401(a)(29) of
the Code. The assets of each such Plan which is subject to Title IV of ERISA
are sufficient to provide the benefits under such Plan, the payment of which
PBGC would guarantee if such Plan were terminated, and such assets are also
sufficient to provide all other "benefit liabilities" (within the meaning of
Section 4041 of ERISA) due under the Plan upon termination. No Reportable Event
which would cause a Materially Adverse Effect has occurred and is continuing
with respect to any such Plan. No such Plan or trust created thereunder, or
party in interest (as defined in Section 3(14) of ERISA), or any fiduciary (as
defined in Section 3(21) of ERISA), has engaged in a "prohibited transaction"
(as such term is defined in Section 406 of ERISA or Section 4975 of the Code)
which would subject such Plan or any other Plan of the Borrower or any of its
Subsidiaries, any trust created thereunder, or any such party in interest or
fiduciary, or any party dealing with any such Plan or any such trust, to the tax
or penalty on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code which would cause a Materially Adverse Effect. Neither
the Borrower nor any of its ERISA Affiliates, including its Subsidiaries, is or
has been obligated to make any payment to a Multiemployer Plan.
(n) COMPLIANCE WITH REGULATIONS T, U AND X. Neither the Borrower nor
any of its Subsidiaries is engaged principally or as one of its important
activities in the business of extending credit for the purpose of purchasing or
carrying, and neither the Borrower nor any of the Borrower's Subsidiaries owns
or presently intends to acquire, any "margin security" or "margin stock" as
defined in Regulations T, U, and X (12 C.F.R. Parts 220, 221 and 224) (the
"REGULATIONS") of the Board of Governors of the Federal Reserve System (herein
called "MARGIN STOCK"). None of the proceeds of the Loans will be used,
directly or indirectly, for the purpose of purchasing or carrying any margin
stock or for the
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purpose of reducing or retiring any Indebtedness which was originally incurred
to purchase or carry margin stock or for any other purpose which might
constitute this transaction a "purpose credit" within the meaning of the
Regulations. Neither the Borrower nor any of its Subsidiaries has taken, caused
or authorized to be taken, and will not take any action which might cause this
Agreement or the Notes to violate any of the Regulations or any other regulation
of the Board of Governors of the Federal Reserve System or to violate the
Securities Exchange Act of 1934, in each case as now in effect or as the same
may hereafter be in effect. If so requested by the Administrative Agent, the
Borrower will furnish the Administrative Agent with (i) a statement or
statements in conformity with the requirements of Federal Reserve Form U-1
referred to in Regulation U of said Board of Governors and (ii) other documents
evidencing its compliance with the margin regulations, reasonably requested by
the Administrative Agent. Neither the making of the Loans nor the use of
proceeds thereof will violate, or be inconsistent with, the provisions of any of
the Regulations.
(o) INVESTMENT COMPANY ACT. Neither the Borrower nor any of its
Subsidiaries is required to register under the provisions of the Investment
Company Act of 1940, as amended, and neither the entering into or performance by
the Borrower and its Subsidiaries of this Agreement and the Loan Documents nor
the issuance of the Notes violates any provision of such Act or requires any
consent, approval or authorization of, or registration with, the Securities and
Exchange Commission or any other governmental or public body or authority
pursuant to any provisions of such Act.
(p) GOVERNMENTAL REGULATION. Neither the Borrower nor any of its
Subsidiaries is required to obtain any consent, approval, authorization, permit
or license which has not already been obtained from, or effect any filing or
registration which has not already been effected with, any federal, state or
local regulatory authority in connection with the execution and delivery of this
Agreement or any other Loan Document. Neither the Borrower nor any of its
Subsidiaries is required to obtain any consent, approval, authorization, permit
or license which has not already been obtained from, or effect any filing or
registration which has not already been effected with, any federal, state or
local regulatory authority in connection with the performance, in accordance
with their respective terms, of this Agreement or any other Loan Document, other
than filing of appropriate UCC financing statements.
(q) ABSENCE OF DEFAULT, ETC. The Borrower and its Subsidiaries are
in compliance in all respects with all of the provisions of their respective
partnership agreements, Certificates or Articles of Incorporation and By-Laws,
as the case may be, and no event has occurred or failed to occur (including,
without limitation, any matter which could create a Default hereunder by
cross-default) which has not been remedied or waived, the occurrence or
non-occurrence of which constitutes, (i) a Default or (ii) a material default by
the Borrower or any of its Subsidiaries under any indenture, agreement or other
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instrument relating to Indebtedness of the Borrower or any of its Subsidiaries
in the amount of $1,000,000 or more in the aggregate, any License, or any
judgment, decree or order to which the Borrower or any of its Subsidiaries is a
party or by which the Borrower or any of its Subsidiaries or any of their
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 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 and furnished by or on behalf of the Borrower or any of its
Subsidiaries to the Administrative Agent or the Lenders were, at the time
furnished, true, complete and correct in all material respects to the extent
necessary to give the Administrative Agent and the Lenders true and accurate
knowledge of the subject matter, and all projections, consisting of a statement
of operating statistics, an income statement summary, a debt repayment schedule
and pro forma compliance calculations (the "Projections") (i) disclose all
assumptions made with respect to costs, general economic conditions, and
financial and market conditions formulating the Projections; (ii) are based on
reasonable estimates and assumptions; and (iii) reflect, as of the date
prepared, and continue to reflect, as of the date hereof, the reasonable
estimate of Borrower of the results of operations and other information
projected therein for the periods covered thereby.
(s) AGREEMENTS WITH AFFILIATES. Except for agreements or
arrangements with Affiliates wherein the Borrower or one or more of its
Subsidiaries provides services to such Affiliates for fair consideration or
which are set forth on SCHEDULE 6 attached hereto, neither the Borrower nor any
of its Subsidiaries has (i) any written agreements or binding arrangements of
any kind with any Affiliate or (ii) any management or consulting agreements of
any kind with any Affiliate.
(t) PAYMENT OF WAGES. The Borrower and each of its Subsidiaries are
in compliance with the Fair Labor Standards Act, as amended, in all material
respects, and to the knowledge of the Borrower and each of its Subsidiaries,
such Persons have paid all minimum and overtime wages required by law to be paid
to their respective employees.
(u) PRIORITY. The Security Interest is a valid and, upon filing of
appropriate UCC financing statements or taking of possession, if applicable,
perfected first priority security interest in the Collateral in favor of the
Administrative Agent, for the benefit of itself and the Lenders, securing, in
accordance with the terms of the Security Documents, the Obligations, and the
Collateral is subject to no Liens other than Permitted Liens. The Liens created
by the Security Documents are enforceable as security for the Obligations in
accordance with their terms with respect to the Collateral subject, as to
enforcement of remedies, to the following qualifications: (i) an order of
specific performance and an
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injunction are discretionary remedies and, in particular, may not be available
where damages are considered an adequate remedy at law, and (ii) enforcement may
be limited by bankruptcy, insolvency, liquidation, reorganization,
reconstruction and other similar laws affecting enforcement of creditors' rights
generally (insofar as any such law relates to the bankruptcy, insolvency or
similar event of the Borrower or any of its Subsidiaries, as the case may be).
(v) INDEBTEDNESS. Except as shown on the financial statements of the
Borrower for the fiscal year ended December 31, 1997 and the Subordinated Notes
and the Preferred Stock, neither the Borrower nor any of its Subsidiaries has
outstanding, as of the Agreement Date, and after giving effect to the initial
Advances hereunder on the Agreement Date, any Indebtedness for Money Borrowed
other than the Loans.
(w) SOLVENCY. As of the Agreement Date and after giving effect to
the transactions contemplated by the Loan Documents (i) the property of the
Borrower, at a fair valuation, will exceed its debt; (ii) the capital of the
Borrower will not be unreasonably small to conduct its business; (iii) the
Borrower will not have incurred debts, or have intended to incur debts, beyond
its ability to pay such debts as they mature; and (iv) the present fair salable
value of the assets of the Borrower will be materially greater than the amount
that will be required to pay its probable liabilities (including debts) as they
become absolute and matured. For purposes of this Section, "debt" means any
liability on a claim, and "claim" means (i) the right to payment, whether or not
such right is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, undisputed, legal, equitable, secured or unsecured, or (ii)
the right to an equitable remedy for breach of performance if such breach gives
rise to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured, unmatured, undisputed, secured
or unsecured.
(x) YEAR 2000 COMPLIANCE. The Borrower (i) has initiated a review
and assessment of all areas within its and each of its Subsidiaries' businesses
and operations (including those affected by suppliers, vendors and customers)
that could be adversely affected by the "YEAR 2000 PROBLEM" (that is, the risk
that computer applications used by the Borrower or any of its Subsidiaries (or
suppliers, vendors and customers) may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999), (ii) is developing a plan and timeline for addressing
the Year 2000 Problem on a timely basis, and (iii) will implement that plan in
accordance with that timetable. Based on the foregoing, the Borrower believes
that all computer applications (including those of its suppliers, vendors and
customers) that are material to its or any of its Subsidiaries' businesses and
operations are reasonably expected on a timely basis to be able to perform
properly date-sensitive functions for all dates before and after January 1, 2000
(that is, be "Year 2000 compliant"), except to the extent that a failure to do
so could not reasonably be expected to have a Materially Adverse Effect.
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Section 4.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
representations and warranties made under this Agreement and any other Loan
Document shall be deemed to be made, and shall be true and correct, at and as
of the Agreement Date and on the date of each Advance except to the extent
previously fulfilled in accordance with the terms hereof and to the extent
relating specifically to the Agreement Date. All representations and
warranties made under this Agreement and the other Loan Documents shall
survive, and not be waived by, the execution hereof by the Lenders and the
Administrative Agent, any investigation or inquiry by any Lender or the
Administrative Agent, or the making of any Advance under this Agreement.
ARTICLE 5
GENERAL COVENANTS
So long as any of the Obligations is outstanding and unpaid or the Lenders
have an obligation to fund Advances hereunder (whether or not the conditions to
borrowing have been or can be fulfilled), and unless the 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:
(a) preserve and maintain its existence, and its material rights,
franchises, licenses and privileges in the state of its incorporation,
including, without limiting the foregoing, the Licenses and all other Necessary
Authorizations; and
(b) qualify and remain qualified and authorized to do business in
each jurisdiction in which the character of its properties or the nature of its
business requires such qualification or authorization.
Section 5.2 BUSINESS; COMPLIANCE WITH APPLICABLE LAW. The Borrower
will, and will cause each of its Subsidiaries to, (a) engage in the business
of owning, constructing, managing, operating and investing in Cellular
Systems and other wireless communications and related businesses and no
unrelated activities, and (b) comply in all material respects with the
requirements of all Applicable Law.
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Section 5.3 MAINTENANCE OF PROPERTIES. The Borrower will, and will
cause each of its Subsidiaries to, maintain or cause to be maintained in the
ordinary course of business in good repair, working order and condition
(reasonable wear and tear excepted) all properties used in their respective
businesses (whether owned or held under lease), other than obsolete equipment
or unused assets, and from time to time make or cause to be made all needed
and appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto, except as to leased properties where the landlord is
required to make such repairs, in which event Borrower shall be under no
obligation to do so unless the particular lease permits the Borrower to do so
in the absence of the landlord complying with its obligations.
Section 5.4 ACCOUNTING METHODS AND FINANCIAL RECORDS. The Borrower
will, and will cause each of its Subsidiaries on a consolidated and
consolidating basis to, maintain a system of accounting established and
administered in accordance with GAAP, keep adequate records and books of
account in which complete entries will be made in accordance with GAAP and
reflecting all transactions required to be reflected by GAAP and keep
accurate and complete records of their respective properties and assets. The
Borrower and each of its Subsidiaries will maintain a fiscal year ending on
December 31st.
Section 5.5 INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to:
(a) Maintain insurance, including, without limitation, business
interruption coverage and public liability coverage insurance from responsible
companies in such amounts and against such risks to the Borrower and each of its
Subsidiaries as is standard for similarly situated companies engaged in the
cellular telephone and wireless communications industry.
(b) Keep their respective assets insured by insurers on terms and in
a manner reasonably acceptable to the Administrative Agent against loss or
damage by fire, flood, theft, burglary, loss in transit, explosions and hazards
insured against by extended coverage, in amounts which are prudent for the
cellular telephone and wireless communications industry and reasonably
satisfactory to the Administrative Agent, all premiums thereon to be paid by the
Borrower and its Subsidiaries.
(c) Require that each insurance policy provide for at least thirty
(30) days' prior written notice to the Administrative Agent of any termination
of or proposed cancellation or nonrenewal of such policy, and name the
Administrative Agent as additional named lender loss payee and, as appropriate,
additional insured, to the extent of the Obligations.
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Section 5.6 PAYMENT OF TAXES AND CLAIMS. The Borrower will, and will
cause each of its Subsidiaries to, pay and discharge all taxes, including,
without limitation, withholding taxes, assessments and governmental charges
or levies required to be paid by them or imposed upon them or their income or
profits or upon any properties belonging to them, prior to the date on which
penalties attach thereto, and all lawful claims for labor, materials and
supplies which, if unpaid, might become a Lien or charge upon any of their
properties; except that no such tax, assessment, charge, levy or claim need
be paid which is being diligently contested in good faith by appropriate
proceedings and for which adequate reserves shall have been set aside on the
appropriate books, but only so long as such tax, assessment, charge, levy or
claim does not become a Lien or charge other than a Permitted Lien and no
foreclosure, distraint, sale or similar proceedings shall have been
commenced. The Borrower will, and will cause each of its Subsidiaries to,
timely file all information returns required by federal, state or local tax
authorities.
Section 5.7 COMPLIANCE WITH ERISA.
(a) The Borrower will, and will cause its Subsidiaries to, make all
contributions to any Employee Pension Plan when such contributions are due and
not incur any "accumulated funding deficiency" within the meaning of Section
412(a) of the Code, whether or not waived, and will otherwise comply with the
requirements of the Code and ERISA with respect to the operation of all Plans,
except to the extent that the failure to so comply could not have a Materially
Adverse Effect.
(b) The Borrower will, and will cause its Subsidiaries to, comply in
all respects with the requirements of COBRA with respect to any Plans subject to
the requirements thereof, except to the extent that the failure to so comply
could not have a Materially Adverse Effect.
(c) The Borrower will furnish to the Administrative Agent (i)
within thirty (30) days after any officer of the Borrower obtains knowledge
that a "prohibited transaction" (within the meaning of Section 406 of ERISA
or Section 4975 of the Code) has occurred with respect to any Plan of the
Borrower or its ERISA Affiliates, including its Subsidiaries, that any
Reportable Event has occurred with respect to any Employee Pension Plan or
that PBGC has instituted or will institute proceedings under Title IV of
ERISA to terminate any Employee Pension Plan or to appoint a trustee to
administer any Employee Pension Plan, a statement setting forth the details
as to such prohibited transaction, Reportable Event or termination or
appointment proceedings and the action which it (or any other Employee
Pension Plan sponsor if other than the Borrower) proposes to take with
respect thereto, together with a copy of the notice of such Reportable Event
given to PBGC if a copy of such notice is available to the Borrower, any of
its Subsidiaries or any of its ERISA Affiliates, (ii) promptly after receipt
thereof, a copy of any notice the Borrower, any of its Subsidiaries or
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any of its ERISA Affiliates or the sponsor of any Plan receives from PBGC, or
the Internal Revenue Service or the Department of Labor which sets forth or
proposes any action or determination with respect to such Plan, (iii)
promptly after the filing thereof, any annual report required to be filed
pursuant to ERISA in connection with each Employee Pension Plan subject to
Title IV of ERISA maintained by the Borrower or any of its ERISA Affiliates,
including the Subsidiaries, and (iv) promptly upon the Administrative Agent's
request therefor, such additional information concerning any such Plan as may
be reasonably requested by the Administrative Agent.
(d) The Borrower will promptly notify the Administrative Agent of any
excise taxes which have been assessed or which the Borrower, any of its
Subsidiaries or any of its ERISA Affiliates has reason to believe may be
assessed against the Borrower, any of its Subsidiaries or any of its ERISA
Affiliates by the Internal Revenue Service or the Department of Labor with
respect to any Plan of the Borrower or its ERISA Affiliates, including its
Subsidiaries.
(e) Within the time required for notice to the PBGC under Section
302(f)(4)(A) of ERISA or Section 412(m)(4) of the Code, as the case may be, the
Borrower will notify the Administrative Agent of any lien arising under Section
302(f) of ERISA or Section 412(m) of the Code in favor of any Plan of the
Borrower or its ERISA Affiliates, including its Subsidiaries.
(f) The Borrower will not, and will not permit any of its
Subsidiaries or any of its ERISA Affiliates to take any of the following actions
or permit any of the following events to occur if such action or event together
with all other such actions or events would subject the Borrower, any of its
Subsidiaries, or any of its ERISA Affiliates to any tax, penalty, or other
liabilities which could have a Materially Adverse Effect:
(1) engage in any transaction in connection with which the Borrower,
any of its Subsidiaries or any ERISA Affiliate could be subject to either a
civil penalty assessed pursuant to Section 502(i) of ERISA or a tax imposed
by Section 4975 of the Code;
(2) terminate any Employee Pension Plan in a manner, or take any
other action, which could result in any liability of the Borrower, any of
its Subsidiaries or any ERISA Affiliate to the PBGC;
(3) fail to make full payment when due of all amounts which, under
the provisions of any Employee Pension Plan, the Borrower, any of its
Subsidiaries or any ERISA Affiliate is required to pay as contributions
thereto, or permit to exist any accumulated funding deficiency within the
meaning of Section 412(a) of the Code, whether or not waived, with respect
to any Employee Pension Plan;
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(4) permit the present value of all benefit liabilities under all
Employee Pension Plans which are subject to Title IV of ERISA to exceed the
present value of the assets of such Plans allocable to such benefit
liabilities (within the meaning of Section 4041 of ERISA), except as may be
permitted under actuarial funding standards adopted in accordance with
Section 412 of the Code; or
(5) requires the provision of security in favor of any Plan
maintained by the Borrower or its ERISA Affiliates, including its
Subsidiaries under Section 401(a)(29) of the Code.
Section 5.8 VISITS AND INSPECTIONS. The Borrower will, and will cause
each of its Subsidiaries to, permit representatives of the Administrative
Agent and any of the Lenders, upon reasonable notice, to (i) visit and
inspect the properties of the Borrower or any of its Subsidiaries during
business hours, (ii) inspect and make extracts from and copies of their
respective books and records, and (iii) discuss with their respective
principal officers their respective businesses, assets, liabilities,
financial positions, results of operations and business prospects. The
Borrower will, and will cause each of its Subsidiaries to, also permit
representatives of the Administrative Agent and any of the Lenders to discuss
with their respective accountants the Borrower's and its Subsidiaries'
businesses, assets, liabilities, financial positions, results of operations
and business prospects.
Section 5.9 PAYMENT OF INDEBTEDNESS; LOANS. Subject to any
provisions herein or in any other Loan Document, the Borrower will, and will
cause each of its Subsidiaries to, pay any and all of their respective
Indebtedness when and as it becomes due or to the extent of trade payables of
such Persons otherwise in accordance with ordinary business practices
customary for the wireless communications industry, other than amounts
diligently disputed in good faith and for which adequate reserves have been
set aside in accordance with GAAP.
Section 5.10 USE OF PROCEEDS. The Borrower will use the aggregate
proceeds of all Advances under the Loans directly or indirectly:
(a) to fund Capital Expenditures;
(b) for working capital needs and other corporate purposes of the
Borrower and its Subsidiaries (including, without limitation, the fees and
expenses incurred in connection with the execution and delivery of this
Agreement) which do not otherwise conflict with this Section 5.10;
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(c) to fund the Atlantic Acquisition in an aggregate amount not to
exceed $145,000,000 on substantially the terms and conditions set forth in the
Atlantic Asset Purchase Agreement and the fees and expenses incurred by the
Borrower in connection with the Atlantic Acquisition; and
(d) to fund Acquisitions as permitted under Section 7.6(e) hereof.
No proceeds of Advances hereunder shall be used for the purchase or carrying or
the extension of credit for the purpose of purchasing or carrying, any margin
stock within the meaning of the Regulations.
Section 5.11 REAL ESTATE. Subject to Section 7.14 hereof, the
Borrower will, and will cause its Subsidiaries to, grant a mortgage to the
Administrative Agent securing the Obligations or such amount thereof as is
equal to the fair market value of such real estate, in form and substance
reasonably satisfactory to the Administrative Agent, covering (a) any parcel
of real estate not subject to a Permitted Lien described in clause (i) of the
definition thereof or covered by the Headquarter's Mortgage having a fair
market value, exclusive of equipment acquired by the Borrower or any of its
Subsidiaries after the Agreement Date, the value of which exceeds $2,000,000
individually, and (b) all parcels of real estate owned by the Borrower and
its Subsidiaries not subject to a Permitted Lien described in clause (i) of
the definition thereof or covered by the Headquarter's Mortgage at such time
as the aggregate fair market value of all such real estate equals or exceeds
$7,500,000. The Borrower will, and will cause its Subsidiaries to, deliver
to the Administrative Agent all documentation, including, without limitation,
opinions of counsel and policies of title insurance, which in the reasonable
opinion of the Administrative Agent are appropriate with each such grant,
including any phase I environmental audit requested by the Majority Lenders.
The Borrower and the Lenders hereby agree that although the Headquarter's
Mortgage will not be recorded on the Agreement Date the Administrative Agent
may, at the direction of the Majority Lenders after the occurrence and during
the continuance of an Event of Default, cause the Headquarter's Mortgage to
be recorded in the appropriate jurisdiction and further agree that upon
becoming aware of any change in the recording tax in the State of Minnesota
such that the recording costs for the Headquarter's Mortgage do not exceed
$10,000, the Administrative Agent shall promptly cause the Headquarter's
Mortgage to be recorded in the appropriate jurisdiction. The Borrower agrees
to take any action including, without limitation, the execution and delivery
of any additional mortgage documents or amendments thereto as may be
necessary to permit the actions set forth in the preceding sentence. Any
recording taxes or fees paid by the Administrative Agent in connection with
the Headquarter's Mortgage shall be expenses hereunder and shall be subject
to reimbursement under Sections 9.11 and 11.2 hereof.
Section 5.12 INDEMNITY. The Borrower agrees to indemnify and hold
harmless each Lender and the Administrative Agent, and each of their
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respective affiliates, employees, representatives, shareholders, officers and
directors (any of the foregoing shall be an "Indemnitee") from and against any
and all claims, liabilities, losses, damages, actions, reasonable attorneys'
fees and expenses (as such fees and expenses are incurred) and demands by any
party, including, without limitation, the costs of investigating and defending
such claims, whether or not the Borrower, any of its Subsidiaries or the Person
seeking indemnification is the prevailing party (a) resulting from any breach or
alleged breach by the Borrower or any of its Subsidiaries of any representation
or warranty made hereunder or under any other Loan Document; or (b) otherwise
arising out of (i) the Commitment or otherwise under this Agreement, any Loan
Document or any transaction contemplated hereby or thereby, including, without
limitation, the use of the proceeds of Loans hereunder in any fashion by the
Borrower or the performance of their respective obligations under the Loan
Documents by the Borrower or any of its Subsidiaries, (ii) allegations of any
participation by the Lenders or the Administrative Agent, or any of them, in the
affairs of the Borrower or any of its Subsidiaries, or allegations that any of
them has any joint liability with the Borrower or any of its Subsidiaries
arising out of the Commitment or otherwise under this Agreement or any Loan
Document (or the rights of such Person arising thereunder); (iii) any claims
against the Lenders or the Administrative Agent, or any of them, by any
shareholder or other investor in or lender to the Borrower or any Subsidiary of
the Borrower, by any brokers or finders or investment advisers or investment
bankers retained by the Borrower or by any other third party, arising out of the
Commitment or otherwise under this Agreement; or (c) in connection with taxes
(not including federal or state income taxes or other taxes based solely upon
the revenues of such Persons), fees, and other charges payable in connection
with the Loans, or the execution, delivery, and enforcement of this Agreement,
the Security Documents, the other Loan Documents, any amendments thereto or
waivers of any of the provisions thereof; unless the Person seeking
indemnification hereunder is determined in such case to have acted with gross
negligence or willful misconduct, in any case, by a final, non-appealable
judicial order. The obligations of the Borrower under this Section 5.12 are in
addition to, and shall not otherwise limit, any liabilities which the Borrower
might otherwise have in connection with any warranties or similar obligations of
the Borrower in any other Loan Document.
Section 5.13 INTEREST RATE HEDGING. Within ninety (90) days of the
Agreement Date and forty-five (45) days after each Advance, the Borrower
shall enter into (and shall at all times thereafter maintain) one or more
Interest Hedge Agreements with respect to the Borrower's interest obligations
on not less than fifty percent (50%) of the principal amount of the Loans
outstanding from time to time. Such Interest Hedge Agreements shall provide
interest rate protection in conformity with International Swap Dealers
Association standards and for an average period of at least three (3) years
from the date of such Interest Hedge Agreements or, if earlier, until the
Maturity Date on terms reasonably acceptable to the Administrative Agent,
such terms to include consideration of the creditworthiness of the other
party to the proposed Interest Hedge Agreement. All Obligations of the
Borrower to either Administrative Agent or any of the
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Lenders pursuant to any Interest Hedge Agreement and all Liens granted to secure
such Obligations shall rank PARI PASSU with all other Obligations and Liens
securing such other Obligations up to the then effective amount of the
Commitments; and any Interest Hedge Agreement between the Borrower and any other
Person shall be unsecured.
Section 5.14 COVENANTS REGARDING FORMATION OF SUBSIDIARIES AND
ACQUISITIONS; PARTNERSHIP, SUBSIDIARIES. At the time of (i) any Acquisition
permitted hereunder or (ii) the formation of any new Subsidiary of the
Borrower or any of its Subsidiaries which is permitted under this Agreement,
the Borrower will, and will cause its Subsidiaries, as appropriate, to (a)
provide to the Administrative Agent an executed Subsidiary Security Agreement
for such new Subsidiary, in substantially the form of EXHIBIT I attached
hereto, together with appropriate UCC-1 financing statements, as well as an
executed Subsidiary Guaranty for such new Subsidiary, in substantially the
form of EXHIBIT G attached hereto, which shall constitute both Security
Documents and Loan Documents for purposes of this Agreement, as well as a
loan certificate for such new Subsidiary, substantially in the form of
EXHIBIT M attached hereto, together with appropriate attachments; (b) pledge
to the Administrative Agent all of the stock or partnership interests (or
other instruments or securities evidencing ownership) of such Subsidiary or
Person which is acquired or formed, beneficially owned by the Borrower or any
of the Borrower's Subsidiaries, as the case may be, as additional Collateral
for the Obligations to be held by the Administrative Agent in accordance with
the terms of the Borrower's Pledge Agreement, an existing Subsidiary Pledge
Agreement, or a new Subsidiary Pledge Agreement in substantially the form of
EXHIBIT H attached hereto, and execute and deliver to the Administrative
Agent all such documentation for such pledge as, in the reasonable opinion of
the Administrative Agent, is appropriate; and (c) provide revised financial
projections for the remainder of the fiscal year and for each subsequent year
until the Maturity Date which reflect such Acquisition or formation,
certified by the chief financial officer of the Borrower, together with a
statement by such Person that, to the knowledge of the Borrower, no Default
exists or would be caused by such Acquisition or formation, and all other
documentation, including one or more opinions of counsel, reasonably
satisfactory to the Administrative Agent which in its reasonable opinion is
appropriate with respect to such Acquisition or the formation of such
Subsidiary. Any document, agreement or instrument executed or issued
pursuant to this Section 5.14 shall be a "Loan Document" for purposes of this
Agreement.
Section 5.15 PAYMENT OF WAGES. The Borrower will, and will cause each
of its Subsidiaries to, at all times comply in all material respects with the
requirements of the Fair Labor Standards Act, as amended, including, without
limitation, the provisions of such Act relating to the payment of minimum and
overtime wages as the same may become due from time to time.
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Section 5.16 FURTHER ASSURANCES. The Borrower will promptly cure, or
cause to be cured, defects in the creation and issuance of any of the Notes
and the execution and delivery of the Loan Documents (including, without
limitation, this Agreement), resulting from any acts or failure to act by the
Borrower or any of the Borrower's Subsidiaries or any employee or officer
thereof. The Borrower at its expense will promptly execute and deliver to
the Administrative Agent and the Lenders, or cause to be executed and
delivered to the Administrative Agent and the Lenders, all such other and
further documents, agreements, and instruments in compliance with or
accomplishment of the covenants and agreements of the Borrower in the Loan
Documents, including this Agreement, or to correct any omissions in the Loan
Documents, or more fully to state the obligations set out herein or in any of
the Loan Documents, or to obtain any consents, all as may be necessary or
appropriate in connection therewith and as may be reasonably requested.
Section 5.17 YEAR 2000 COMPLIANCE. The Borrower will, and will cause
each of its Subsidiaries to, promptly notify the Administrative Agent and the
Lenders in the event the Borrower or any of its Subsidiaries discovers or
determines that any computer application (including those of its suppliers,
vendors and customers) that is material to the Borrower's or any of its
Subsidiaries' businesses and operations will not be Year 2000 compliant,
except to the extent that such failure could not reasonably be expected to
have a Materially Adverse Effect.
ARTICLE 6
INFORMATION COVENANTS
So long as any of the Obligations is outstanding and unpaid or the Lenders
have an obligation to fund Advances hereunder (whether or not the conditions to
borrowing have been or can be fulfilled) and unless the Majority Lenders shall
otherwise consent in writing, the Borrower will furnish or cause to be furnished
to each Lender and the Administrative Agent, at their respective offices:
Section 6.1 QUARTERLY FINANCIAL STATEMENTS AND INFORMATION. Within
forty-five (45) days after the last day of each of the first three (3)
quarters of each fiscal year of the Borrower, commencing with the quarter
ending June 30, 1998, the balance sheets of the Borrower on a consolidated
and consolidating basis with its Subsidiaries as at the end of such quarter
and as of the end of the preceding fiscal year, and the related statements of
operations and the related statements of cash flows of the Borrower on a
consolidated and consolidating basis with its Subsidiaries for such quarter
and for the elapsed portion of the year ended with the last day of such
quarter, which shall set forth in comparative form such figures as at the end
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of and for such quarter and appropriate prior period and shall be certified by
the chief financial officer of the Borrower to have been prepared in accordance
with GAAP and to present fairly in all material respects the financial position
of the Borrower on a consolidated and consolidating basis with its Subsidiaries
as at the end of such period and the results of operations for such period, and
for the elapsed portion of the year ended with the last day of such period,
subject only to normal year-end and audit adjustments.
Section 6.2 ANNUAL FINANCIAL STATEMENTS AND INFORMATION. Within one
hundred twenty (120) days after the end of each fiscal year of the Borrower,
the audited consolidated balance sheet of the Borrower and its Subsidiaries
as of the end of such fiscal year and the related audited consolidated and
unaudited consolidating statements of operations for such fiscal year and for
the previous fiscal year, the related audited consolidated statements of cash
flow and stockholders' equity for such fiscal year and for the previous
fiscal year, which shall be accompanied by an opinion, which opinion shall be
in scope and substance reasonably satisfactory to the Administrative Agent,
of independent certified public accountants of recognized national standing
acceptable to the Administrative Agent, together with a statement of such
accountants that in connection with their audit, nothing came to their
attention that caused them to believe that the Borrower was not in compliance
with the terms, covenants, provisions or conditions of Articles 7 and 8
hereof insofar as they relate to accounting matters.
Section 6.3 PERFORMANCE CERTIFICATES. At the time the financial
statements are furnished pursuant to Sections 6.1 and 6.2, a certificate of
the president or chief financial officer of the Borrower as to its financial
performance, in substantially the form attached hereto as EXHIBIT P:
(a) setting forth as and at the end of such quarterly period or
fiscal year, as the case may be, the arithmetical calculations required to
establish (i) any adjustment to the Applicable Margins, as provided for in
Section 2.3(f) hereof, and (ii) whether or not the Borrower was in compliance
with the requirements of Sections 7.8, 7.9, 7.10, 7.11 and 7.12 hereof;
(b) setting forth on a consolidated basis for the Borrower and its
Subsidiaries for each such fiscal quarter (i) the number of subscribers at the
beginning of the quarter, (ii) the number of gross new subscribers added and
deactivated subscribers lost during the quarter, and (iii) the number of
subscribers at the end of the quarter; and
(c) stating that, to the best of his or her knowledge, no Default has
occurred as at the end of such quarterly period or year, as the case may be, or,
if a Default has occurred, disclosing each such Default and its nature, when it
occurred, whether it is continuing and the steps being taken by the Borrower
with respect to such Default.
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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, documents or further information regarding
the business, assets, liabilities, financial position, projections, results of
operations or business prospects of the Borrower or any of its Subsidiaries, as
the Administrative Agent or any Lender may reasonably request.
(d) Annually, within ninety (90) days of the last day of each fiscal
year of the Borrower, certificates of insurance indicating that the requirements
of Section 5.5 hereof remain satisfied for such fiscal year, together with
copies of any new or replacement insurance policies obtained during such year.
(e) Prior to January 31st of each year, the annual budget for the
Borrower and the Borrower's Subsidiaries, including, without limitation,
forecasts of the income statement, the balance sheet and a cash flow statement
for such year, on a quarter by quarter basis.
(f) Promptly after the sending thereof, copies of all statements,
reports and other information which the Borrower or any of its Subsidiaries
sends to security holders of the Borrower generally or files with the Securities
and Exchange Commission or any national securities exchange.
Section 6.5 NOTICE OF LITIGATION AND OTHER MATTERS. Notice specifying
the nature and status of any of the following events, promptly, but in any
event not later than fifteen (15) days (or, in the case of Section 6.5(d)
hereof, ten (10) days) after the occurrence of any of the following events
becomes known to the Borrower or any of its Subsidiaries:
(a) the commencement of all proceedings and investigations by or
before any governmental body and all actions and proceedings in any court or
before any arbitrator against, or to the extent known to the Borrower or any of
its Subsidiaries, in any other way
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relating materially adversely to the Borrower or any of its Subsidiaries, or any
of their respective properties, assets or businesses or any License;
(b) any material adverse change with respect to the business, assets,
liabilities, financial position, results of operations or business prospects of
the Borrower or any of its Subsidiaries other than changes in the ordinary
course of business which have not had and would not reasonably be expected to
have a Materially Adverse Effect and other changes in the industry in which
either the Borrower or any of its Subsidiaries operate which would not
reasonably be expected to have a Materially Adverse Effect;
(c) any material adverse amendment or change to the financial
projections or annual budget provided to the Lenders by the Borrower;
(d) any Default or the occurrence or non-occurrence of any event (i)
which constitutes, or which with the passage of time or giving of notice or both
would constitute a default by the Borrower or any of its Subsidiaries under any
material agreement other than this Agreement and the other Loan Documents to
which the Borrower or any of its Subsidiaries is party or by which any of their
respective properties may be bound, or (ii) which could have a Materially
Adverse Effect, giving in each case a detailed description thereof and
specifying the action proposed to be taken with respect thereto;
(e) the occurrence of any Reportable Event or a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) with respect to any Plan of the Borrower or any of its Subsidiaries or
the institution or threatened institution by PBGC of proceedings under ERISA to
terminate or to partially terminate any such Plan or the commencement or
threatened commencement of any litigation regarding any such Plan or naming it
or the trustee of any such Plan with respect to such Plan or any action taken by
the Borrower, any Subsidiary of the Borrower or any ERISA Affiliate of the
Borrower to withdraw or partially withdraw from any Plan or to terminate any
Plan; and
(f) the occurrence of any event subsequent to the Agreement Date
which, if such event had occurred prior to the Agreement Date, would have
constituted an exception to the representation and warranty in Section 4.1(m)
hereof.
ARTICLE 7
NEGATIVE COVENANTS
So long as any of the Obligations is outstanding and unpaid or the Lenders
have an obligation to fund Advances hereunder (whether or not the conditions to
borrowing have
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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:
(a) the Obligations;
(b) operating accounts payable, accrued expenses and customer advance
payments and accrued Plan contributions incurred in the ordinary course of
business;
(c) Indebtedness secured by Permitted Liens;
(d) obligations under Interest Hedge Agreements with respect to the
Loans;
(e) Indebtedness of the Borrower, or of any of its Subsidiaries to
the Borrower or any other Subsidiary, so long as the corresponding debt
instruments are pledged to the Administrative Agent as security for the
Obligations and Indebtedness expressly permitted pursuant to Section 7.5 hereof;
(f) other Indebtedness which does not exceed $5,000,000 in the
aggregate at any one time outstanding; PROVIDED, HOWEVER, that such additional
Indebtedness is (i) purchase money Indebtedness of the Borrower or any of its
Subsidiaries that is incurred or assumed to finance part or all of (but not more
than) the purchase price of a tangible asset in which neither the Borrower nor
such Subsidiary had at any time prior to such purchase any interest other than a
security interest or an interest as lessee under an operating lease, or (ii)
Capitalized Lease Obligations;
(g) the Incremental Facility; PROVIDED, HOWEVER, that prior to and at
all times after giving effect to (i) each advance under the Incremental Facility
and (ii) Indebtedness permitted under Section 7.1(h) hereof, the Borrower and
its Subsidiaries shall be in compliance with all covenants contained in Articles
5, 6 and 7 hereof;
(h) (i) other secured Indebtedness of the Borrower which does not
exceed $5,000,000 in the aggregate at any one time outstanding, and/or (ii)
other unsecured Indebtedness of the Borrower which does not exceed $5,000,000 in
the aggregate at any one time outstanding; PROVIDED, HOWEVER, that the sum of
(1) the aggregate amount of secured Indebtedness permitted pursuant to this
Section 7.1(h), PLUS (2) the aggregate amount of unsecured Indebtedness
permitted pursuant to this Section 7.1(h) shall not exceed $5,000,000
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in the aggregate at any one time outstanding, on terms and conditions reasonably
satisfactory to the Administrative Agent;
(i) (i) Subordinated Indebtedness (including, without limitation, the
Subordinated Notes) in an aggregate principal amount not to exceed $200,000,000,
and (ii) paid-in-kind preferred equity (including, without limitation, Preferred
Stock) in an aggregate amount not to exceed $150,000,000 in original issue
amount, in each case, on terms and conditions satisfactory to the Majority
Lenders; and
(j) obligations under switch user agreements with Switch 2000.
Section 7.2 LIMITATION ON LIENS. The Borrower shall not, and shall
not permit any of its Subsidiaries to, create, assume, incur or permit to
exist or to be created, assumed, incurred or permitted to exist, directly or
indirectly, any Lien on any of its properties or assets, whether now owned or
hereafter acquired, except for Permitted Liens.
Section 7.3 AMENDMENT AND WAIVER. The Borrower shall not, and shall
not permit any of its Subsidiaries to, without the consent of the Majority
Lenders, enter into any amendment of, or agree to or accept or consent to any
waiver of any of the material provisions of, as applicable, (a) its articles
or certificate of incorporation or partnership agreement, (b) its by-laws or
membership agreement, (c) the membership agreement of Wireless Alliance (d)
the Subordinated Notes or (e) the Preferred Stock (or the related indenture).
Section 7.4 LIQUIDATION, MERGER, OR DISPOSITION OF ASSETS.
(a) DISPOSITION OF ASSETS. The Borrower shall not, and shall not
permit any of its Subsidiaries to, at any time sell, lease, abandon, or
otherwise dispose of any assets (other than assets disposed of in the ordinary
course of business) without the prior written consent of the Lenders; PROVIDED,
HOWEVER, that the prior written consent of the Lenders shall not be required for
(i) the transfer of assets (including, without limitation, cash or cash
equivalents) among the Borrower and its Subsidiaries (excluding Wireless
Alliance) or for the transfer of assets (including, without limitation, cash or
cash equivalents, but excluding the Licenses) between or among Subsidiaries
(excluding Wireless Alliance) of the Borrower, (ii) any issuance of equity
interest in the Borrower for the purposes described in Section 7.6(c) and (h)
hereof, or (iii) dispositions of assets the proceeds of which are applied
pursuant to Section 2.5(c) hereof (PROVIDED, HOWEVER, that, with respect to such
sales under Section 2.5(c)(iii), the Borrower provides to the Administrative
Agent and the Lenders on the date of such sale a certificate reflecting
compliance with the terms and provisions of Sections
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7.8, 7.9, 7.10, 7.11 and 7.12 hereof both before and after giving effect to such
sale or transfer).
(b) LIQUIDATION OR MERGER. The Borrower shall not, and shall not
permit any of its Subsidiaries to, at any time liquidate or dissolve itself (or
suffer any liquidation or dissolution) or otherwise wind up, or enter into any
merger, other than (i) a merger or consolidation among the Borrower and one or
more Subsidiaries; PROVIDED, HOWEVER, that the Borrower is the surviving
corporation, or (ii) a merger between or among two or more Subsidiaries, or
(iii) in connection with an Acquisition permitted hereunder effected by a merger
in which the Borrower or, in a merger in which the Borrower is not a party, a
Subsidiary of the Borrower is the surviving corporation.
Section 7.5 LIMITATION ON GUARANTIES. The Borrower shall not, and
shall not permit any of its Subsidiaries to, at any time Guaranty, assume, be
obligated with respect to, or permit to be outstanding any Guaranty of, any
obligation of any other Person other than (a) a guaranty by endorsement of
negotiable instruments for collection in the ordinary course of business,
(b) obligations under agreements of the Borrower or any of its Subsidiaries
entered into in connection with leases of real property or the acquisition of
services, supplies and equipment in the ordinary course of business of the
Borrower or any of its Subsidiaries, (c) Guaranties of Indebtedness incurred
as permitted pursuant to Section 7.1 hereof, (d) as may be contained in any
Loan Document, including, without limitation, the Subsidiary Guaranty, or (e)
in its capacity as a general partner in any of its Subsidiaries.
Section 7.6 INVESTMENTS AND ACQUISITIONS. The Borrower shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly, make
any loan or advance, or otherwise acquire for consideration evidences of
Indebtedness, capital stock or other securities of any Person or other assets
or property (other than assets or property in the ordinary course of
business), or make any Acquisition or Investment; PROVIDED, HOWEVER, that:
(a) The Borrower or any of its Subsidiaries may, directly or through
a brokerage account, (i) purchase marketable, direct obligations of the United
States of America, its agencies and instrumentalities maturing within three
hundred sixty-five (365) days of the date of purchase, (ii) purchase commercial
paper, money-market funds and business savings accounts issued by corporations,
each of which shall have a combined net worth of at least $100,000,000 and each
of which conducts a substantial part of its business in the United States of
America, maturing within two hundred seventy (270) days from the date of the
original issue thereof, and rated "P-2" or better by Moody's Investors Service,
Inc. or "A-2" or better by Standard and Poor's Ratings Group, a division of
McGraw-Hill, Inc., and (iii) purchase repurchase agreements, bankers'
acceptances, and certificates of deposit maturing within three hundred
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
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deposits of which are insured by the Federal Deposit Insurance Corporation or
the Federal Savings and Loan Insurance Corporation and having capital, surplus
and undivided profits totaling more than $100,000,000 and rated "A" or better by
Moody's Investors Service, Inc. or Standard and Poor's Ratings Group, a division
of McGraw-Hill, Inc.;
(b) Except that so long as no Default then exists or would be caused
thereby, and subject to compliance with Section 5.14 hereof, the Borrower or any
of its Subsidiaries may complete the following Acquisitions: (i) the Atlantic
Acquisition; and (ii) any Acquisition (including reasonable and customary costs
and expenses related to such Acquisition) of not less than fifty and one
one-hundredth percent (50.01%) of the ownership interest (after giving effect to
any ownership interest acquired on or prior to the date of such Acquisition as
permitted hereunder) in Cellular Systems, or the right to construct a Cellular
System (including, without limitation, associated construction costs), in an RSA
or an MSA or a BTA (in the case of a PCS System) which is primarily within the
same geographic area as or contiguous to a Cellular System then owned by the
Borrower or any of its Subsidiaries; PROVIDED, HOWEVER, that the Acquisitions
completed under this clause (ii) shall not exceed $30,000,000 in the aggregate;
(c) Except that so long as no Default then exists or would be caused
thereby, the Borrower may use the cash proceeds of any issuance of equity
interest in the Borrower (to the extent permitted hereunder), for the
acquisition (including reasonable and customary costs and expenses related to
such Acquisition) of not less than fifty and one one-hundredth percent (50.01%)
of the ownership interest in Cellular Systems, or the right to construct a
Cellular System (including without limitation, associated construction costs),
in an RSA or an MSA or a BTA (in the case of a PCS System) which is primarily
within the same geographic area as or contiguous to a Cellular System then owned
by the Borrower or any of its Subsidiaries, Capital Expenditures and general
working capital purposes without the consent of the Lenders; PROVIDED, HOWEVER,
that (i) the Borrower shall not enter into any binding agreement with respect to
an Acquisition with such proceeds unless (A) the Borrower shall have received
sufficient funds to make such Acquisition or (B) such agreement shall contain a
commercially reasonable liquidated damages provision; (ii) prior to entering
into any binding agreement with respect to such Acquisition, the Borrower shall
deliver to the Administrative Agent and the Lenders a certificate reflecting pro
forma projections and compliance with the terms and conditions of this Agreement
from the date of such Acquisition through the Maturity Date after giving effect
to such Acquisition and using reasonable assumptions in the opinion of the
Majority Lenders; (iii) contemporaneously with the completion of the
Acquisition, the Borrower shall grant to the Administrative Agent a first
priority Lien upon any assets (including, without limitation, capital stock and
partnership interests) acquired in connection with such Acquisition to the same
extent as required hereunder for existing Subsidiaries of the Borrower; and (iv)
if a binding agreement for such Acquisition is not executed within twelve (12)
months from the date of receipt of the proceeds of the issuance of such equity
interest in the Borrower or such Indebtedness, as the
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case may be, or such Acquisition is not concluded within eighteen (18) months
from the date of receipt of the proceeds of the issuance of equity or
Indebtedness, as the case may be, the consent of the Majority Lenders shall be
required for such Acquisition. The Borrower agrees to grant to the
Administrative Agent (for itself and on behalf of the Lenders) a security
interest in the proceeds of the issuance of such equity interest in the Borrower
or such Indebtedness, as the case may be, until such time as such proceeds are
used in connection with an Acquisition;
(d) Except so long as no Default then exists or would be caused
thereby, subject to compliance with Section 5.14 hereof, the Borrower may issue
equity interests in the Borrower in exchange for ownership interests in any
Person operating a Cellular System; PROVIDED, HOWEVER, that to the extent that
the Borrower has acquired less than or equal to fifty percent (50%) of the total
ownership interests in such Person, no such acquired ownership interest subjects
the Borrower to any obligation to fund additional capital or otherwise make any
investment (in cash or otherwise) in such Person;
(e) Except so long as no Default then exists or would be caused
thereby, after the Agreement Date, the Borrower or any of its Subsidiaries may
make Investments in Wireless Alliance in an aggregate amount not to exceed
$50,000,000 (which amount shall include, without limitation, any Investment in
Wireless Alliance made prior to the Agreement Date, but exclude Acquisitions
made pursuant to Section 7.6(b) hereof and Investments made pursuant to Section
7.6(f) hereof); PROVIDED, HOWEVER, that (i) in the case of any equity
investment, any equity interests received in connection with such Investment are
pledged as Collateral for the Obligations and (ii) in the case of any loan or
extension of Indebtedness, such loan is evidenced by a promissory note which is
assigned as Collateral for the Obligations; and PROVIDED FURTHER, HOWEVER, that
(x) after giving effect to such Acquisition there shall occur no Default or
Event of Default, and (y) the Borrower shall have made all repayments required
under Section 2.7(b) hereof.
(f) Except so long as no Default then exists or would be caused
thereby, after the Agreement Date, the Borrower (or any of its Subsidiaries) may
make Investments in an amount not to exceed $50,000,000 in the aggregate (which
shall not include Acquisitions made pursuant to Section 7.6(b) hereof and
Investments made pursuant to Section 7.6(e) hereof in Cellular Systems, or the
right to construct a Cellular System (including, without limitation, associated
construction costs), in an RSA or an MSA or a BTA (in the case of a PCS System)
which is primarily within the same geographic area as or contiguous to a
Cellular System then owned by the Borrower or any of its Subsidiaries; PROVIDED,
HOWEVER, that (x) after giving effect to such Acquisition there shall occur no
Default or Event of Default, and (y) the Borrower shall have made all Repayments
required under Section 2.7(b) hereof.
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(g) Such other Investments or Acquisitions as may be approved in
writing by the Majority Lenders; and
(h) During such time as any Cooperative Lender shall be a Lender, the
Borrower may purchase such non-voting equity interests in such Cooperative
Lender represented by participation certificates of such Cooperative Lender as
such Cooperative Lender may from time to time require in accordance with such
Cooperative Lender's bylaws and "Loan-Based Capital Plan." Each Cooperative
Lender shall have a statutory first Lien on the equity in such Cooperative
Lender to secure all obligations of the Borrower to such Cooperative Lender, and
such Lien shall be deemed to constitute a "Permitted Lien" hereunder. No
Cooperative Lender shall be obligated to set off or otherwise apply such
equities to the Borrower's obligations to the Cooperative Lender.
Section 7.7 RESTRICTED PAYMENTS AND PURCHASES. The Borrower shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly,
declare or make any Restricted Payment or Restricted Purchase; PROVIDED,
HOWEVER, that so long as no Default hereunder then exists or would be caused
thereby, (a) and so long as a Subsidiary of the Borrower is not obligated on
any Indebtedness to the Borrower or any of its Subsidiaries, such Subsidiary
may make distributions to (i) any partner or shareholder of such Subsidiary
holding a minority position with respect to such Subsidiary, so long as such
Subsidiary makes a contemporaneous pro rata distribution to the Borrower or
any of its Subsidiaries, and such partner or shareholder is not an Affiliate
of the Borrower, (ii) the Borrower or any of its Subsidiaries, and (b) the
Borrower or any of its Subsidiaries may make payments or distributions to any
Person for the purpose of satisfying scheduled interest payments, when such
payments are due and payable, on any Subordinated Indebtedness and
paid-in-kind preferred equity permitted hereunder in accordance with any
subordination provisions thereunder.
Section 7.8 TOTAL LEVERAGE RATIO. (a) As of the end of any calendar
quarter, and (b) at the time of any Advance hereunder (after giving effect to
such Advance), the Borrower shall not permit its Total Leverage Ratio to
exceed the ratios set forth below during the periods indicated:
<TABLE>
<CAPTION>
Period Total Leverage Ratio
------ --------------------
<S> <C>
Agreement Date through 8.75:1
March 31, 1999
April 1, 1999 through 8.50:1
September 30, 1999
October 1, 1999 through 8.00:1
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March 31, 2000
April 1, 2000 and thereafter 7.00:1
</TABLE>
Section 7.9 SENIOR LEVERAGE RATIO. (a) As of the end of any calendar
quarter, and (b) at the time of any Advance hereunder (after giving effect to
such Advance), the Borrower shall not permit its Senior Leverage Ratio to
exceed the ratios set forth below during the periods indicated:
<TABLE>
<CAPTION>
Period Senior Leverage Ratio
------ ----------------------
<S> <C>
Agreement Date through 6.50:1
March 31, 1999
April 1, 1999 through 6.00:1
September 30, 1999
October 1, 1999 through 5.50:1
March 31, 2000
April 1, 2000 and thereafter 4.50:1
</TABLE>
Section 7.10 ANNUALIZED OPERATING CASH FLOW TO PRO FORMA DEBT SERVICE.
(a) As of the end of any calendar quarter, and (b) at the time of any
Advance hereunder (after giving effect to such Advance), the Borrower shall
not permit the ratio of (i) its Annualized Operating Cash Flow (as of the
calendar quarter end being tested, or as of the most recently completed
calendar quarter for which financial statements are required to have been
delivered pursuant to Section 6.1 or 6.2 hereof, as the case may be) to (ii)
the sum of (1) its Pro Forma Debt Service for the four (4) calendar quarters
immediately following the calculation date and (2) Interest Expense for the
four (4) calendars immediately preceding the calculation date, to be less
than 1.20 to 1.00.
Section 7.11 ANNUALIZED OPERATING CASH FLOW TO INTEREST EXPENSE. (a)
As of the end of any calendar quarter, and (b) at the time of any Advance
hereunder (after giving effect to such Advance), the Borrower shall not
permit the ratio of (i) its Annualized Operating Cash Flow (as of the
calendar quarter end being tested, or as of the most recently completed
calendar quarter for which financial statements are required to have been
delivered pursuant to Section 6.1 or 6.2 hereof, as the case may be) to (ii)
its Interest Expense for the same period of time to be less than (1) for the
period from the earlier of (A) the date of the first calendar quarter
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ending after the Agreement Date and (B) September 30, 1998, through June 30,
2000, 1.5 to 1.00, and (2) at all times thereafter 2.00 to 1.00.
Section 7.12 LIMITATION ON CAPITAL EXPENDITURES. The Borrower, on a
consolidating basis with its Subsidiaries, shall not permit its Capital
Expenditures (other than Capital Expenditures of Wireless Alliance) to exceed
$30,000,000 in the aggregate in any fiscal year during the term hereof.
Section 7.13 AFFILIATE TRANSACTIONS. Except as specifically provided
herein and as may be described on SCHEDULE 6 attached hereto, the Borrower
shall not, and shall not permit any of its Subsidiaries to, at any time
engage in any transaction with an Affiliate, or make an assignment or other
transfer of any of its properties or assets to any Affiliate, on terms less
advantageous to the Borrower or such Subsidiary than would be the case if
such transaction had been effected with a non-Affiliate.
Section 7.14 REAL ESTATE. The Borrower shall not, and shall cause
each of its Subsidiaries not to, purchase real estate; PROVIDED, HOWEVER,
that subject to Section 5.11 hereof, the Borrower and each of its
Subsidiaries may purchase real estate solely for use in the business of the
Borrower and its Subsidiaries.
Section 7.15 ERISA LIABILITIES. The Borrower shall not, and shall
cause each of its ERISA Affiliates not to, (i) permit the assets of any of
their respective Employee Pension Plans to be less than the amount necessary
to provide all accrued benefits under such Plans, or (ii) enter into any
Multiemployer Plan.
ARTICLE 8
DEFAULT
Section 8.1 EVENTS OF DEFAULT. Each of the following shall
constitute an Event of Default, whatever the reason for such event and
whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment or order of any court or any order, rule or
regulation of any governmental or non-governmental body:
(a) Any representation or warranty made under this Agreement or any
other Loan Document shall prove incorrect or misleading in any material respect
when made or deemed to be made pursuant to Section 4.2 hereof;
(b) The Borrower shall default in the payment of: (i) any interest
under any of the Notes (or Incremental Facility Notes) or fees or other amounts
payable to the Lenders
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and the Administrative Agent under any of the Loan Documents, or any of them,
when due, and such Default shall not be cured by payment in full within five (5)
Business Days from the due date; or (ii) any principal under any of the Notes
(or Incremental Facility Notes) when due;
(c) The Borrower shall default (i) in the performance or observance
of any agreement or covenant contained in Sections 5.2(a), 5.10, 6.5, 7.1, 7.2
(if the event causing such default is consensual in nature), 7.4, 7.5, 7.6, 7.7,
7.8, 7.9, 7.10, 7.11 and 7.12 hereof; or (ii) in providing any financial
statement or report under Article 6 hereof, and, with respect to this clause
(ii) only, such Default shall not be cured by delivery thereof within a period
of fifteen (15) days from the later of (x) occurrence of such Default and
(y) the date on which such Default became known to the Borrower;
(d) The Borrower shall default in the performance or observance of
any other agreement or covenant contained in this Agreement not specifically
referred to elsewhere in this Section 8.1, and such default shall not be cured
within a period of thirty (30) days from the later of (i) occurrence of such
default and (ii) the date on which such default became known to the Borrower;
(e) There shall occur any default in the performance or observance of
any agreement or covenant or breach of any representation or warranty contained
in any of the Loan Documents (other than this Agreement or as otherwise provided
in this Section 8.1) by the Borrower, any of its Subsidiaries, or any other
obligor thereunder, which shall not be cured within a period of thirty (30) days
from the later of (i) occurrence of such default and (ii) the date on which such
default became known to the Borrower;
(f) There shall be entered and remain unstayed a decree or order for
relief in respect of the Borrower or any of its Subsidiaries under Title 11 of
the United States Code, as now constituted or hereafter amended, or any other
applicable Federal or state bankruptcy law or other similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
official of the Borrower or any of its Subsidiaries, or of any substantial part
of their respective properties, or ordering the winding-up or liquidation of the
affairs of the Borrower or any of its Subsidiaries; or an involuntary petition
shall be filed against the Borrower or any of its Subsidiaries and a temporary
stay entered, and (i) such petition and stay shall not be diligently contested,
or (ii) any such petition and stay shall continue undismissed for a period of
sixty (60) consecutive days;
(g) The Borrower or any of its Subsidiaries shall file a petition,
answer or consent seeking relief under Title 11 of the United States Code, as
now constituted or hereafter amended, or any other applicable Federal or state
bankruptcy law or other similar law, or the Borrower or any of its Subsidiaries
shall consent to the institution of proceedings thereunder or to the filing of
any such petition or to the appointment or taking of possession
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of a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Borrower or any of its Subsidiaries or of any
substantial part of their respective properties, or the Borrower or any of its
Subsidiaries shall fail generally to pay their respective debts as they become
due or shall be adjudicated insolvent; the Borrower shall suspend or discontinue
its business; the Borrower or any of its Subsidiaries shall have concealed,
removed any of its property with the intent to hinder or defraud its creditors
or shall have made a fraudulent or preferential transfer under any applicable
fraudulent conveyance or bankruptcy law, or the Borrower or any of its
Subsidiaries shall take any action in furtherance of any such action;
(h) A judgment not covered by insurance or indemnification, where the
indemnifying party has agreed to indemnify and is financially able to do so,
shall be entered by any court against the Borrower or any of its Subsidiaries
for the payment of money which exceeds singly or in the aggregate with other
such judgments, $1,000,000, or a warrant of attachment or execution or similar
process shall be issued or levied against property of the Borrower or any of its
Subsidiaries which, together with all other such property of the Borrower or any
of its Subsidiaries subject to other such process, exceeds in value $1,000,000
in the aggregate, and if, within thirty (30) days after the entry, issue or levy
thereof, such judgment, warrant or process shall not have been paid or
discharged or stayed pending appeal or removed to bond, or if, after the
expiration of any such stay, such judgment, warrant or process shall not have
been paid or discharged or removed to bond;
(i) (i) There shall be at any time any "accumulated funding
deficiency," as defined in ERISA or in Section 412 of the Code, with respect to
any Plan maintained by the Borrower or any of its Subsidiaries or any ERISA
Affiliate, or to which the Borrower or any of its Subsidiaries or any ERISA
Affiliate has any liabilities, or any trust created thereunder; or a trustee
shall be appointed by a United States District Court to administer any such
Plan; or (ii) PBGC shall institute proceedings to terminate any such Plan; or
(iii) the Borrower or any of its Subsidiaries or any ERISA Affiliate shall incur
any liability to PBGC in connection with the termination of any such Plan; or
(iv) any Plan or trust created under any Plan of the Borrower or any of its
Subsidiaries or any ERISA Affiliate shall engage in a "prohibited transaction"
(as such term is defined in Section 406 of ERISA or Section 4975 of the Code)
which would subject any such Plan, any trust created thereunder, any trustee or
administrator thereof, or any party dealing with any such Plan or trust to the
tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code which has or could be reasonably likely to have a
Materially Adverse Effect and which is not cured to the reasonable satisfaction
of the Majority Lenders within thirty (30) days from the later of (A) the
occurrence of such event or (B) the date on which such event became known to the
Borrower; or (v) the Borrower or any of its Subsidiaries or any ERISA Affiliate
shall adopt or otherwise contribute to a Multiemployer Plan.
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(j) Any event not referred to elsewhere in this Section 8.1 shall
occur which has a Materially Adverse Effect and such event shall not be cured
within a period of thirty (30) days from the later of (i) occurrence of such
event and (ii) the date on which such event became known to the Borrower or any
of its Subsidiaries;
(k) There shall occur (i) any acceleration of the maturity of any
Indebtedness of the Borrower or any of its Subsidiaries in an aggregate
principal amount exceeding $1,000,000, or, as a result of a failure to comply
with the terms thereof, such Indebtedness shall otherwise become due and
payable; (ii) any event or condition the occurrence of which would permit such
acceleration of such Indebtedness, or which, as a result of a failure to comply
with the terms thereof, would make such Indebtedness otherwise due and payable,
and which event or condition has not been cured within any applicable cure
period or waived in writing prior to any declaration of an Event of Default or
acceleration of the Loans hereunder; or (iii) any material default under any
Interest Hedge Agreement which would permit the obligation of the Borrower to
make payments to the counterparty thereunder to be then due and payable;
(l) The FCC shall deliver to the Borrower or any of its Subsidiaries
an order to show cause why an order of revocation should not be issued based
upon any alleged attribution of alien ownership (within the meaning of 47 U.S.C.
Section 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;
(m) One or more Licenses shall be terminated or revoked or
substantially adversely modified such that the Borrower and its Subsidiaries are
no longer able to operate the related Cellular System or Systems or portions
thereof and retain the revenue received therefrom or any such License shall fail
to be renewed at the stated expiration thereof such that the Borrower and its
Subsidiaries are no longer able to operate the related Cellular System or
Systems or portions thereof and retain the revenue received therefrom, and the
overall effect of such termination, revocation or failure to renew would be to
reduce Operating Cash Flow (determined as at the last day of the most recently
ended fiscal year of the Borrower) by ten percent (10%) or more;
(n) Any "person" or "group" (within the meaning of Sections 13(d)(3)
and 14(d)(2) of the Exchange Act or any successor provision to either of the
foregoing, including any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act) is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of fifty percent (50%) or more
of the voting or economic Capital Stock of the Borrower;
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(o) Any Loan Document or any material provision thereof, shall at any
time and for any reason be declared by a court of competent jurisdiction to be
null and void, or a proceeding shall be commenced by the Borrower or any of its
Subsidiaries or by any governmental authority having jurisdiction over the
Borrower or any of its Subsidiaries seeking to establish the invalidity or
unenforceability thereof (exclusive of questions of interpretation of any
provision thereof), or the Borrower or any of its Subsidiaries shall deny that
it has any liability or obligation for the payment of principal or interest
purported to be created under any Loan Document; or
(p) Any Security Document shall for any reason, fail or cease (except
by reason of lapse of time) to create a valid and perfected and first-priority
Lien on or Security Interest in any portion of the Collateral purported to be
covered thereby.
Section 8.2 REMEDIES.
(a) If an Event of Default specified in Section 8.1 (other than an
Event of Default under Section 8.1(f) or (g) hereof) shall have occurred and
shall be continuing, the Administrative Agent, at the request of the Majority
Lenders subject to Section 9.8(a) hereof, shall (i) terminate the Commitment and
the Incremental Facility Commitment, and/or (ii) declare the principal of and
interest on the Loans and the Notes and the Incremental Facility Notes, and all
other amounts owed to the Lenders and the Administrative Agent under this
Agreement, the Notes and the Incremental Facility Notes, and any other Loan
Documents to be forthwith due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby expressly waived, anything
in this Agreement, the Notes and the Incremental Facility Notes, or any other
Loan Document to the contrary notwithstanding, and the Commitment and the
Incremental Facility Commitment shall thereupon forthwith terminate.
(b) Upon the occurrence and continuance of an Event of Default
specified in Section 8.1(f) or (g) hereof, all principal, interest and other
amounts due hereunder and under the Notes and the Incremental Facility Notes,
and all other Obligations, shall thereupon and concurrently therewith become due
and payable and the Commitment and the Incremental Facility Commitment shall
forthwith terminate and the principal amount of the Loans outstanding hereunder
shall bear interest at the Default Rate, all without any action by the
Administrative Agent, the Lenders, or the 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 and, if applicable, the
Incremental Facility Notes as provided in subsection (a) or (b) of this Section
8.2, above, the
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Administrative Agent and the Lenders shall have all of the post-default rights
granted to them, or any of them, as applicable under the Loan Documents and
under Applicable Law.
(d) Upon acceleration of the Notes and the Incremental Facility
Notes, as provided in subsection (a) or (b) of this Section 8.2, the
Administrative Agent, upon request of the 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 of its Subsidiaries may have thereto or
the right to have a bond or other security posted by the Administrative Agent on
behalf of the Lenders, in connection therewith. The rights of the
Administrative Agent under this Section 8.2(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.
(e) The rights and remedies of the Administrative Agent and the
Lenders hereunder shall be cumulative, and not exclusive.
Section 8.3 PAYMENTS SUBSEQUENT TO DECLARATION OF EVENT OF
DEFAULT. Subsequent to the acceleration of the Loans under Section 8.2
hereof, payments and prepayments under this Agreement made to any of the
Administrative Agent and the Lenders or otherwise received by any of such
Persons (from realization on Collateral for the Obligations or otherwise)
shall be paid over to the Administrative Agent (if necessary) and distributed
by the Administrative Agent as follows: FIRST, to the reasonable costs and
expenses, if any, incurred by the Lenders or the Administrative Agent in
connection with the collection of such payment or prepayment, including,
without limitation, any reasonable costs incurred by any of them in
connection with the sale or disposition of any Collateral for the Obligations
and all amounts under Section 11.2(b) and (c) hereof; SECOND, to the Lenders
and the Administrative Agent for any fees hereunder or under any of the other
Loan Documents then due and payable; THIRD, to the Lenders pro rata on the
basis of their respective unpaid principal amounts (except as provided in
Section 2.2(e) hereof), to the payment of any unpaid interest which may have
accrued on the Obligations; FOURTH, to the Lenders pro rata until all Loans
and, if applicable, the Incremental Facility Loans, have been paid in full
(and, for purposes of this clause, obligations under Interest Hedge
Agreements with the Lenders or any of them shall be paid on a pro rata basis
with the Loans and, if applicable, the Incremental Facility Loans); FIFTH, to
the Lenders pro rata on the basis of their respective unpaid amounts, to the
payment of any other unpaid Obligations; and SIXTH, to the Borrower or as
otherwise required by law.
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ARTICLE 9
THE AGENTS
Section 9.1 APPOINTMENT AND AUTHORIZATION. Each Lender hereby
irrevocably appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its portion of the Loans and in its Note
irrevocably to appoint and authorize the Administrative Agent to take such
actions as its agents on its behalf and to exercise such powers hereunder and
under the other Loan Documents as are delegated by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto. Neither the
Administrative Agent nor any of its directors, officers, employees or agents,
shall be liable for any action taken or omitted to be taken by it hereunder or
in connection herewith, except for its own gross negligence or willful
misconduct as determined by a final, non-appealable judicial order of a court of
competent jurisdiction.
Section 9.2 INTEREST HOLDERS. The Administrative Agent may treat each
Lender, or the Person designated in the last notice filed with the
Administrative Agent, as the holder of all of the interests of such Lender in
its portion of the Loans and in its Note until written notice of transfer,
signed by such Lender (or the Person designated in the last notice filed with
the Administrative Agent) and by the Person designated in such written notice of
transfer, in form and substance satisfactory to the Administrative Agent, shall
have been filed with the Administrative Agent.
Section 9.3 CONSULTATION WITH COUNSEL. The Administrative Agent may
consult with Powell, Goldstein, Frazer & Murphy LLP, Atlanta, Georgia, special
counsel to the Administrative Agent, or with other legal counsel selected by
them and shall not be liable for any action taken or suffered by them in good
faith in consultation with the Majority Lenders and in reasonable reliance on
such consultations.
Section 9.4 DOCUMENTS. The Administrative Agent shall be under no duty
to examine, inquire into, or pass upon the validity, effectiveness or
genuineness of this Agreement, any Note, any other Loan Document, or any
instrument, document or communication furnished pursuant hereto or in connection
herewith, and the Administrative Agent shall be entitled to assume that they are
valid, effective and genuine, have been signed or sent by the proper parties and
are what they purport to be.
Section 9.5 ADMINISTRATIVE AGENT AND AFFILIATES. With respect to the
Commitment, the Incremental Facility Commitment, and the Loans, the
Administrative Agent shall have the same rights and powers hereunder as any
other Lender, and the Administrative Agents and Affiliates of the Administrative
Agent may accept deposits from, lend money to and generally engage in any
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kind of business with the Borrower, any of its Subsidiaries or any Affiliates
of, or Persons doing business with, the Borrower, as if they were not affiliated
with the Administrative Agent and without any obligation to account therefor.
The foregoing sentence shall apply with equal force to the Administrative Agent.
Section 9.6 RESPONSIBILITY OF THE ADMINISTRATIVE AGENT. The duties and
obligations of the Administrative Agent under this Agreement are only those
expressly set forth in this Agreement. The Administrative Agent shall be
entitled to assume that no Default or Event of Default has occurred and is
continuing unless it has actual knowledge, or has been notified in writing by
the Borrower, of such fact, or has been notified by a Lender in writing that
such Lender considers that a Default or an Event of Default has occurred and is
continuing, and such Lender shall specify in detail the nature thereof in
writing. The Administrative Agent shall not be liable hereunder for any action
taken or omitted to be taken except for its own gross negligence or willful
misconduct as determined by a final, non-appealable judicial order of a court of
competent jurisdiction. The Administrative Agent shall provide each Lender with
copies of such documents received from the Borrower as such Lender may
reasonably request.
Section 9.7 COLLATERAL. The Administrative Agent is hereby authorized
to act on behalf of the Lenders, in its own capacity and through other agents
and sub-agents appointed by it, under the Security Documents; PROVIDED, HOWEVER,
that the Administrative Agent shall not agree to the release of any Collateral,
or any property encumbered by any mortgage, pledge or security interest, except
in compliance with Section 11.12 hereof.
Section 9.8 ACTION BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to use its discretion
with respect to exercising or refraining from exercising any rights which may be
vested in 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, unless the Administrative Agent shall have been instructed
by the Majority Lenders to exercise or refrain from exercising such rights or to
take or refrain from taking such action; PROVIDED, HOWEVER, that the
Administrative Agent shall not exercise any rights under Section 8.2(a) hereof
without the request of the Majority Lenders (or, where expressly required, all
the Lenders) unless time is of the essence, in which case, such action can be
taken at the request of the Administrative Agent. The Administrative Agent
shall incur no liability under or in respect of this Agreement with respect to
anything which it may do or refrain from doing in the reasonable exercise of its
judgment or which may seem to it to be necessary or desirable
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in the circumstances, except for its gross negligence or willful misconduct as
determined by a final, nonappealable judicial order of a court having
jurisdiction over the subject matter.
(b) The Administrative Agent shall not be liable to the Lenders or to
any Lender or the Borrower or any of the Borrower's Subsidiaries in acting or
refraining from acting under this Agreement or any other Loan Document in
accordance with the instructions of the Majority Lenders (or, where expressly
required, all the Lenders), and any action taken or failure to act pursuant to
such instructions shall be binding on all Lenders. The Administrative Agent
shall not be obligated to take any action which is contrary to law or which
would in such Person's reasonable opinion subject such Person to liability.
Section 9.9 NOTICE OF DEFAULT OR EVENT OF DEFAULT. In the event that
the Administrative Agent or any Lender shall acquire actual knowledge, or shall
have been notified, of any Default or Event of Default, the Administrative Agent
or such Lender shall promptly notify the Lenders and the Administrative Agent,
as applicable (PROVIDED, HOWEVER, that failure to give such notice shall not
result in any liability on the part of such Lender or Administrative Agent), and
the Administrative Agent shall take such action and assert such rights under
this Agreement and the other Loan Documents as the Majority Lenders shall
request in writing, and the Administrative Agent shall not be subject to any
liability by reason of their acting pursuant to any such request. If the
Majority Lenders shall fail to request the Administrative Agent to take action
or to assert rights under this Agreement or any other Loan Documents in respect
of any Default or Event of Default within ten (10) days after their receipt of
the notice of any Default or Event of Default from the Administrative Agent or
any Lender, or shall request inconsistent action with respect to such Default or
Event of Default, the Administrative Agent may, but shall not be required to,
take such action and assert such rights (other than rights under Article 8
hereof) as it deems in its discretion to be advisable for the protection of the
Lenders, except that, if the Majority Lenders have instructed the Administrative
Agent not to take such action or assert such right, in no event shall the
Administrative Agent act contrary to such instructions unless time is of the
essence.
Section 9.10 RESPONSIBILITY DISCLAIMED. The Administrative Agent shall
not be under any liability or responsibility whatsoever as Administrative Agent:
(a) To the Borrower or any other Person as a consequence of any
failure or delay in performance by or any breach by, any Lender or Lenders of
any of its or their obligations under this Agreement;
(b) To any Lender or Lenders, as a consequence of any failure or
delay in performance by, or any breach by, (i) the Borrower of any of its
obligations under this
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Agreement or the Notes or any other Loan Document, or (ii) any Subsidiary of the
Borrower or any other obligor under any other Loan Document;
(c) To any Lender or Lenders, for any statements, representations or
warranties in this Agreement, or any other document contemplated by this
Agreement or any information provided pursuant to this Agreement, any other Loan
Document, or any other document contemplated by this Agreement, or for the
validity, effectiveness, enforceability or sufficiency of this Agreement, the
Notes, any other Loan Document, or any other document contemplated by this
Agreement; or
(d) To any Person for any act or omission other than that arising
from gross negligence or willful misconduct of the Administrative Agent as
determined by a final, non-appealable judicial order of a court of competent
jurisdiction.
Section 9.11 INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower) pro rata
according to their respective Commitment Ratios and Incremental Facility
Commitment Ratios, from and against any and all liabilities, obligations, losses
(other than the loss of principal and interest hereunder in the event of a
bankruptcy or out-of-court "work-out" of the Loans), damages, penalties,
actions, judgments, suits, costs, expenses (including, without limitation, fees
and expenses of experts, agents, consultants and counsel), or disbursements of
any kind or nature whatsoever which may be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement or any other Loan Document or any action taken or omitted by the
Administrative Agent under this Agreement, any other Loan Document, or any other
document contemplated by this Agreement, except that no Lender shall be liable
to the Administrative Agent for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements resulting from the gross negligence or willful misconduct of the
Administrative Agent as determined by a final, non-appealable judicial order of
a court having jurisdiction over the subject matter.
Section 9.12 CREDIT DECISION. Each Lender represents and warrants to
each other and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement and to make
its portion of the Loans it has independently taken whatever steps it considers
necessary to evaluate the financial condition and affairs of the Borrower and
that it has made an independent credit judgment, and that it has not relied upon
the Administrative Agent or information provided by the Administrative Agent
(other than information provided to the Administrative Agent by the Borrower and
forwarded by the Administrative Agent to the Lenders); and
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(b) So long as any portion of the Loans remains outstanding or such
Lender has an obligation to make its portion of Advances hereunder, it will
continue to make its own independent evaluation of the financial condition and
affairs of the Borrower.
Section 9.13 SUCCESSOR ADMINISTRATIVE AGENT. Subject to the appointment
and acceptance of a successor Administrative Agent as provided below, the
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower and may be removed at any time for cause by the
Majority Lenders. Upon any such resignation or removal, the Majority Lenders
shall have the right to appoint a successor Administrative Agent which
appointment shall, prior to an Event of Default, be subject to the consent of
the Borrower, acting reasonably. If (a) no successor Administrative Agent shall
have been so appointed by the Majority Lenders or (b) if appointed, no successor
Administrative Agent shall have accepted such appointment within thirty (30)
days after the retiring Administrative Agent gave notice of resignation or the
Majority Lenders removed the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be any Lender or a commercial bank organized
under the laws of the United States of America or any political subdivision
thereof which has combined capital and reserves in excess of $250,000,000, which
appointment shall, prior to an Event of Default, be subject to the consent of
the Borrower, acting reasonably. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges, duties and obligations of the retiring
Administrative Agent and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder and under the other Loan Documents.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent the provisions of this Article shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as the Administrative Agent.
Section 9.14 DELEGATION OF DUTIES. The Administrative Agent may execute
any of its duties under the Loan Documents by or through agents or attorneys
selected by it using reasonable care, and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.
Section 9.15 NO RESPONSIBILITIES OF ARRANGING AGENT. The Arranging Agent
shall have no responsibilities hereunder or under any of the other Loan
Documents in its capacities as Arranging Agent.
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ARTICLE 10
CHANGE IN CIRCUMSTANCES
AFFECTING LIBOR ADVANCES
Section 10.1 LIBOR BASIS DETERMINATION INADEQUATE OR UNFAIR. If with
respect to any proposed LIBOR Advance for any Interest Period, the
Administrative Agent determines after consultation with the Lenders that
deposits in dollars (in the applicable amount) are not being offered to each of
the Lenders in the relevant market for such Interest Period, the Administrative
Agent shall forthwith give notice thereof to the Borrower and the Lenders,
whereupon until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such situation no longer exist, the obligations of
any affected Lender to make its portion of such type of LIBOR Advances shall be
suspended.
Section 10.2 ILLEGALITY. If after the date hereof, the adoption of any
Applicable Law, or any change in any Applicable Law (whether adopted before or
after the Agreement Date), or any change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
with any directive (whether or not having the force of law) of any such
authority, central bank or comparable agency, shall make it unlawful or
impossible for any Lender to make, maintain or fund its portion of LIBOR
Advances, such Lender shall so notify the Administrative Agent, and the
Administrative Agent shall forthwith give notice thereof to the other Lenders
and the Borrower. Before giving any notice to the Administrative Agent pursuant
to this Section 10.2, such Lender shall designate a different lending office if
such designation will avoid the need for giving such notice and will not, in the
sole judgment of such Lender, be otherwise materially disadvantageous to such
Lender. Upon receipt of such notice, notwithstanding anything contained in
Article 2 hereof, the Borrower shall repay in full the then outstanding
principal amount of such Lender's portion of each affected LIBOR Advance,
together with accrued interest thereon, on either (a) the last day of the then
current Interest Period applicable to such affected LIBOR Advances if such
Lender may lawfully continue to maintain and fund its portion of such LIBOR
Advance to such day or (b) immediately if such Lender may not lawfully continue
to fund and maintain its portion of such affected LIBOR Advances to such day.
Concurrently with repaying such portion of each affected LIBOR Advance, the
Borrower may borrow a Base Rate Advance from such Lender, and such Lender shall
make such Advance, if so requested, in an amount such that the outstanding
principal amount of the affected Note held by such Lender shall equal the
outstanding principal amount of such Note or Notes immediately prior to such
repayment.
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Section 10.3 INCREASED COSTS.
(a) If after the date hereof, the adoption of any Applicable Law, or
any change in any Applicable Law (whether adopted before or after the Agreement
Date), or any interpretation or change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof or compliance by any Lender
with any directive (whether or not having the force of law) of any such
authority, central bank or comparable agency:
(1) shall subject any Lender to any tax, duty or other charge
with respect to its obligation to make its portion of LIBOR Advances, or
its portion of existing Advances, or shall change the basis of taxation of
payments to any Lender of the principal of or interest on its portion of
LIBOR Advances or in respect of any other amounts due under this Agreement,
in respect of its portion of LIBOR Advances or its obligation to make its
portion of LIBOR Advances (except for changes in the rate or method of
calculation of tax on the overall net income of such Lender); or
(2) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System, but excluding any included in an applicable
Eurodollar Reserve Percentage), special deposit, capital adequacy,
assessment or other requirement or condition against assets of, deposits
with or for the account of, or commitments or credit extended by, any
Lender or shall impose on any Lender or the London interbank borrowing
market any other condition affecting its obligation to make its portion of
such LIBOR Advances or its portion of existing Advances;
and the result of any of the foregoing is to increase the cost to such Lender of
making or maintaining any of its portion of LIBOR Advances, or to reduce the
amount of any sum received or receivable by such Lender under this Agreement or
under its Note with respect thereto, then, if such Lender exercises comparable
rights (if any) for borrowers situated similarly to the Borrower, within ten
(10) days after demand by such Lender, the Borrower agrees to pay to such Lender
such additional amount or amounts as will compensate such Lender for such
increased costs. Each Lender will promptly notify the Borrower and the
Administrative Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Lender to compensation pursuant to this
Section 10.3 and will designate a different lending office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the sole judgment of such Lender made in good faith, be otherwise
disadvantageous to such Lender.
(b) Any Lender claiming compensation under this Section 10.3 shall
provide the Borrower with a written certificate setting forth the additional
amount or amounts
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to be paid to it hereunder and calculations therefor in reasonable detail. Such
certificate shall be presumptively correct absent manifest error. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods. If any Lender demands compensation under this Section
10.3, the Borrower may at any time, upon at least five (5) Business Days' prior
notice to such Lender, prepay in full such Lender's portion of the then
outstanding LIBOR Advances, together with accrued interest thereon to the date
of prepayment, along with any reimbursement required under Section 2.10 hereof.
Concurrently with prepaying such portion of LIBOR Advances the Borrower may
borrow a Base Rate Advance, or a LIBOR Advance not so affected, from such
Lender, and such Lender shall, if so requested, make such Advance in an amount
such that the outstanding principal amount of the affected Note or Notes held by
such Lender shall equal the outstanding principal amount of such Note or Notes
immediately prior to such prepayment.
Section 10.4 EFFECT ON OTHER ADVANCES. If notice has been given pursuant
to Section 10.1, 10.2 or 10.3 hereof suspending the obligation of any Lender to
make its portion of any type of LIBOR Advance, or requiring such Lender's
portion of LIBOR Advances to be repaid or prepaid, then, unless and until such
Lender notifies the Borrower that the circumstances giving rise to such
repayment no longer apply, all amounts which would otherwise be made by such
Lender as its portion of LIBOR Advances shall, unless otherwise notified by the
Borrower, be made instead as Base Rate Advances. Any Base Rate Advance for this
purpose shall not be counted in the number of Advances permitted under
Section 2.3(e) hereof.
ARTICLE 11
MISCELLANEOUS
Section 11.1 NOTICES.
(a) Except as otherwise expressly provided herein, all notices and
other communications under this Agreement and the other Loan Documents (unless
otherwise specifically stated therein) shall be in writing and shall be deemed
to have been given three (3) Business Days after deposit in the mail, designated
as certified mail, return receipt requested, postage-prepaid, or one (1)
Business Day after being entrusted to a reputable commercial overnight delivery
service for next day delivery, or when sent on a Business Day prior to 5:00 p.m.
(New York, New York time) by telecopy addressed to the party to which such
notice is directed at its address determined as provided in this Section 11.1.
All notices and other communications under this Agreement shall be given to the
parties hereto at the following addresses:
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(1) If to the Borrower, to it at:
Rural Cellular Corporation
3905 Dakota Street, S.W.
Alexandria, Minnesota 56308
Attn: Wesley Schultz,
Vice President
Finance and CFO
Telecopy No.: (320) 808-2102
with a copy to:
Moss & Barnett
4800 Norwest Center
90 South Seventh Street
Minneapolis, Minnesota 55402-4129
Attn: James A. Rubenstein, Esq.
Telecopy No.: (612) 339-6686
(2) If to the Administrative Agent, to it at:
Toronto Dominion (Texas), Inc.
c/o The Toronto-Dominion Bank
909 Fannin Street, Suite 900
Houston, Texas 77010
Attn: Manager, Agency
Telecopy No.: (713) 951-9921
with a copy to:
Powell, Goldstein, Frazer & Murphy LLP
Sixteenth Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attn: Douglas S. Gosden, Esq.
Telecopy No.: (404) 572-6999
(3) If to the Lenders, to them at the addresses set forth on SCHEDULE 7
attached hereto.
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Copies shall be provided to persons other than parties hereto only in the case
of notices under Article 8 hereof and the failure to provide such copies shall
not affect the validity of the notice given to the primary recipient.
(b) Any party hereto may change the address to which notices shall be
directed under this Section 11.1 by giving ten (10) days' written notice of such
change to the other parties.
Section 11.2 EXPENSES. The Borrower will promptly pay, or reimburse:
(a) all reasonable out-of-pocket expenses of the Administrative Agent
in connection with the preparation, negotiation, execution and delivery of this
Agreement and the other Loan Documents, and the transactions contemplated
hereunder and thereunder and the making of the initial Advance hereunder
(whether or not such Advance is made), including, without limitation, the
reasonable fees and disbursements of Powell, Goldstein, Frazer & Murphy LLP,
special counsel for the Administrative Agent, in an amount not to exceed $50,000
(unless otherwise agreed to by the Borrower and the Arranging Agent);
(b) all reasonable out-of-pocket expenses of the Administrative Agent
in connection with the restructuring and "work out" of the transactions
contemplated in this Agreement or the other Loan Documents, and the preparation,
negotiation, execution and delivery of any waiver, amendment or consent by the
Administrative Agent and the Lenders, or any of them, relating to this Agreement
or the other Loan Documents, including, but not limited to, the reasonable fees
and disbursements of any experts, agents or consultants and, prior to the
occurrence and continuance of an Event of Default, of a single law firm acting
as special counsel for the Administrative Agent and the Lenders, and during the
occurrence and continuance of an Event of Default a law firm for Administrative
Agent and a single law firm for the Lenders; and
(c) all out-of-pocket costs and expenses of the Administrative Agent
and the Lenders of enforcement under this Agreement or the other Loan Documents
and all out-of-pocket costs and expenses of collection if an Event of Default
occurs in the payment of the Notes, which in each case shall include reasonable
fees and out-of-pocket expenses of counsel for the Administrative Agent and the
Lenders.
Section 11.3 WAIVERS. The rights and remedies of the Administrative
Agent and the Lenders under this Agreement and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies which they would
otherwise have. No failure or delay by the Administrative Agent, the Majority
Lenders, or the Lenders, or any of them, in exercising any right, shall operate
as a waiver of such right. The Administrative Agent and the Lenders expressly
reserve the right to require strict compliance
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with the terms of this Agreement in connection with any future funding of a
Request for Advance. In the event the Lenders decide to fund a Request for
Advance at a time when the Borrower is not in strict compliance with the terms
of this Agreement, such decision by the Lenders shall not be deemed to
constitute an undertaking by the Lenders to fund any further Request for Advance
or preclude the Lenders or the Administrative Agent from exercising any rights
available under the Loan Documents or at law or equity. Any waiver or
indulgence granted by the Administrative Agent, the Lenders, or the Majority
Lenders, shall not constitute a modification of this Agreement or any other Loan
Document, except to the extent expressly provided in such waiver or indulgence,
or constitute a course of dealing at variance with the terms of this Agreement
or any other Loan Document such as to require further notice of their intent to
require strict adherence to the terms of this Agreement or any other Loan
Document in the future.
Section 11.4 SET-OFF. In addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and during the continuation thereof, the
Administrative Agent and each of the Lenders are hereby authorized by the
Borrower at any time or from time to time, without notice to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and to apply any and all deposits (general or special, time or
demand, including, without limitation, Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured) and any other Indebtedness
at any time held or owing by any Lender or the Administrative Agent to or for
the credit or the account of the Borrower or any of its Subsidiaries, against
and on account of the obligations and liabilities of the Borrower to the Lenders
and the Administrative Agent, including, but not limited to, all Obligations and
any other claims of any nature or description arising out of or connected with
this Agreement, the Notes or any other Loan Document, irrespective of whether
(a) any Lender or the Administrative Agent shall have made any demand hereunder
or (b) any Lender or the Administrative Agent shall have declared the principal
of and interest on the Loans and other amounts due hereunder to be due and
payable as permitted by Section 8.2 hereof and although such obligations and
liabilities or any of them shall be contingent or unmatured. Upon direction by
the Administrative Agent with the consent of the Lenders, each Lender holding
deposits of the Borrower or any of its Subsidiaries shall exercise its set-off
rights as so directed; and, within one (1) Business Day following any such
setoff, the Administrative Agent shall give notice thereof to the Borrower.
Section 11.5 ASSIGNMENT.
(a) The Borrower may not assign or transfer any of its rights or
obligations hereunder, under the Notes, the Incremental Facility Notes or under
any other Loan Document without the prior written consent of each Lender.
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(b) Each Lender may sell (i) assignments of any amount of its
interest hereunder to any Lender, or (ii) assignments or participations of one
hundred percent (100%) (or, with the consent of the Borrower, a smaller
percentage) of its interest hereunder to (A) one or more wholly-owned Affiliates
of the parent company of such Lender (PROVIDED, HOWEVER, that, if such Affiliate
is not a financial institution, such Lender shall be obligated to repurchase
such assignment if such Affiliate is unable to honor its obligations hereunder),
or (B) any Federal Reserve Bank as collateral security pursuant to Regulation A
of the Board of Governors of the Federal Reserve System and any Operating
Circular issued by such Federal Reserve Bank (no assignment under this clause
(ii)(B) shall relieve such Lender from its obligations hereunder).
(c) Each of the Lenders may at any time enter into assignment
agreements or participations with one or more other banks or other Persons
pursuant to which each Lender may assign or participate its interest under this
Agreement and the other Loan Documents, including, its interest in any
particular Advance or portion thereof; PROVIDED, HOWEVER, that (1) all
assignments (other than assignments described in clause (b) hereof) shall be in
minimum principal amounts of the lesser of (X) $5,000,000, and (Y) the amount of
such Lender's Commitment or Incremental Facility Commitment (in a single
assignment only), and (2) all assignments (other than assignments described in
clause (b) hereof) and participations hereunder shall be subject to the
following additional terms and conditions:
(1) No assignment (except assignments permitted in Section
11.5(b) hereof) shall be sold without the prior consent of the
Administrative Agent and prior to the occurrence and continuation of an
Event of Default, the consent of the Borrower, which consents shall not be
unreasonably withheld;
(2) Any Person purchasing a participation or an assignment of
any portion of the Loans from any Lender shall be required to represent and
warrant that its purchase shall not constitute a "prohibited transaction"
(as defined in Section 4.1(m) hereof);
(3) The Borrower, the Lenders, and the Administrative Agent
agree that assignments permitted hereunder (including the assignment of any
Advance or portion thereof) may be made with all voting rights, and shall
be made pursuant to an Assignment and Assumption Agreement substantially in
the form of EXHIBIT Q attached hereto. An administrative fee of $3,500
shall be payable to the Administrative Agent by the assigning Lender at the
time of any assignment under Section 11.5(b) hereof;
(4) No participation agreement shall confer any rights under
this Agreement or any other Loan Document to any purchaser thereof, or
relieve any issuing Lender from any of its obligations under this
Agreement, and all actions
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hereunder shall be conducted as if no such participation had been granted;
PROVIDED, HOWEVER, that any participation agreement may confer on the
participant the right to approve or disapprove decreases in the interest
rate, increases in the principal amount of the Loans participated in by
such participant, decreases in fees, extensions of the Maturity Date or
other principal payment date for the Loans or of the scheduled reduction of
the Commitment and releases of Collateral;
(5) Each Lender agrees to provide the Administrative Agent and
the Borrower with prompt written notice of any issuance of participations
in or assignments of its interests hereunder;
(6) No assignment, participation or other transfer of any rights
hereunder or under the Notes shall be effected that would result in any
interest requiring registration under the Securities Act of 1933, as
amended, or qualification under any state securities law;
(7) No such assignment may be made to any bank or other
financial institution (x) with respect to which a receiver or conservator
(including, without limitation, the Federal Deposit Insurance Corporation,
the Resolution Trust Company or the Office of Thrift Supervision) has been
appointed or (y) that is not "adequately capitalized" (as such term is
defined in Section 131(b)(1)(B) of the Federal Deposit Insurance
Corporation Improvement Act as in effect on the Agreement Date); and
(8) If applicable, each Lender shall, and shall cause each of
its assignees to, provide to the Administrative Agent on or prior to the
effective date of any assignment an appropriate Internal Revenue Service
form as required by Applicable Law supporting such Lender's or assignee's
position that no withholding by the Borrower or the Administrative Agent
for U.S. income tax payable by such Lender or assignee in respect of
amounts received by it hereunder is required. For purposes of this
Agreement, an appropriate Internal Revenue Service form shall mean Form
1001 (Ownership Exemption or Reduced Rate Certificate of the U.S.
Department of Treasury), or Form 4224 (Exemption from Withholding of Tax on
Income Effectively Connected with the Conduct of a Trade or Business in the
United States), or any successor or related forms adopted by the relevant
U.S. taxing authorities.
(d) Except as specifically set forth in Section 11.5(b) and (c)
hereof, nothing in this Agreement or the Notes, expressed or implied, is
intended to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy or other claim
under this Agreement or the Notes.
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(e) In the case of any participation, all amounts payable by the
Borrower under the Loan Documents shall be calculated and made in the manner and
to the parties hereto as if no such participation had been sold.
(f) The provisions of this Section 11.5 shall not apply to any
purchase of participations among the Lenders pursuant to Section 2.11 hereof.
Section 11.6 ACCOUNTING PRINCIPLES. All references in this Agreement to
GAAP shall be to such principles as in effect from time to time. All accounting
terms used herein without definition shall be used as defined under GAAP. The
Borrower shall deliver to the Lenders at the same time as the delivery of any
quarterly or annual financial statements required pursuant to Section 6.1 or 6.2
hereof, as applicable, (a) a description in reasonable detail of any material
variation between the application of GAAP employed in the preparation of such
statements and the application of GAAP employed in the preparation of the next
preceding quarterly or annual financial statements, as applicable, and (b)
reasonable estimates of the differences between such statements arising as a
consequence thereof. If, within thirty (30) days after the delivery of the
quarterly or annual financial statements referred to in the immediately
preceding sentence, the Majority Lenders shall object in writing to the
Borrower's determining compliance hereunder on such basis, (1) calculations for
the purposes of determining compliance hereunder shall be made on a basis
consistent with those used in the preparation of the latest financial statements
as to which such objection shall not have been made, or (2) if requested by the
Borrower, the Majority Lenders will negotiate in good faith to amend the
covenants herein to give effect to the changes in GAAP in a manner consistent
with this Agreement.
Section 11.7 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
Section 11.8 GOVERNING LAW. This Agreement and the Notes shall be
construed in accordance with and governed by the internal laws of the State
of New York applicable to agreements made and to be performed in the State of
New York. If any action or proceeding shall be brought by the Administrative
Agent or any Lender hereunder or under any other Loan Document in order to
enforce any right or remedy under this Agreement or under any Note or any
other Loan Document, the Borrower hereby consents and will, and the Borrower
will cause each Subsidiary to, submit to the jurisdiction of any state or
federal court of competent 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
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<PAGE>
address given in Section 11.1 hereof and that personal service of process shall
not be required. Nothing herein shall be construed to prohibit service of
process by any other method permitted by law, or the bringing of any suit,
action or proceeding in any other jurisdiction. The Borrower agrees that final
judgment in such suit, action or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on the judgment or in any other
manner provided by Applicable Law.
Section 11.9 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 11.10 INTEREST.
(a) In no event shall the amount of interest due or payable hereunder
or under the Notes exceed the maximum rate of interest allowed by Applicable
Law, and in the event any such payment is inadvertently made by the Borrower or
inadvertently received by the Administrative Agent or any Lender, then such
excess sum shall be credited as a payment of principal, unless the Borrower
shall notify the Administrative Agent or such Lender, in writing, that it elects
to have such excess sum returned forthwith. It is the express intent hereof
that the Borrower not pay and the Administrative Agent and the Lenders not
receive, directly or indirectly in any manner whatsoever, interest in excess of
that which may legally be paid by the Borrower under Applicable Law.
(b) Notwithstanding the use by the Lenders of the Base Rate and LIBOR
as reference rates for the determination of interest on the Loans, the Lenders
shall be under no obligation to obtain funds from any particular source in order
to charge interest to the Borrower at interest rates related to such reference
rates.
Section 11.11 TABLE OF CONTENTS AND HEADINGS. The Table of Contents and
the headings of the various subdivisions used in this Agreement are for
convenience only and shall not in any way modify or amend any of the terms or
provisions hereof, nor be used in connection with the interpretation of any
provision hereof.
Section 11.12 AMENDMENT AND WAIVER. Neither this Agreement nor any Loan
Document nor any term hereof or thereof may be amended orally, nor may any
provision hereof or thereof be waived orally but only by an instrument in
writing signed by or at the direction of 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 any Lender's portion of the Commitment, (b) any delay or
extension in the terms of
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<PAGE>
repayment of the Loans provided in Section 2.5 or 2.7 hereof, (c) any reduction
in principal, interest or fees due hereunder or postponement of the payment
thereof without a corresponding payment of such principal, interest or fee
amount by the Borrower, (d) any release of any portion of the Collateral for the
Loans, (e) any waiver of any Default due to the failure by the Borrower to pay
any sum due to any of the Lenders hereunder, (f) any release of any 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), (g) any amendment to the pro
rata treatment of the Lenders set forth in Section 2.11 hereof, or (h) any
amendment of this Section 11.12, of the definition of Majority Lenders, or of
any Section herein to the extent that such Section requires action by 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 the Administrative Agent, in its capacity as
such, may be made only by an instrument in writing signed by such affected
Person and by each of the Lenders.
Section 11.13 ENTIRE AGREEMENT. Except as otherwise expressly provided
herein, this Agreement and the other documents described or contemplated herein
will embody the entire agreement and understanding among the parties hereto and
thereto and supersede all prior agreements and understandings relating to the
subject matter hereof and thereof.
Section 11.14 OTHER RELATIONSHIPS. No relationship created hereunder or
under any other Loan Document shall in any way affect the ability of the
Administrative Agent and each Lender to enter into or maintain business
relationships with the Borrower or any of its Affiliates beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 11.15 DIRECTLY OR INDIRECTLY. If any provision in this Agreement
refers to any action taken or to be taken by any Person, or which such Person is
prohibited from taking, such provision shall be applicable whether such action
is taken directly or indirectly by such Person, whether or not expressly
specified in such provision.
Section 11.16 RELIANCE ON AND SURVIVAL OF VARIOUS PROVISIONS. All
covenants, agreements, statements, representations and warranties made herein or
in any certificate delivered pursuant hereto (i) shall be deemed to have been
relied upon by the Administrative Agent and each of the Lenders notwithstanding
any investigation heretofore or hereafter made by them, and (ii) shall survive
the execution and delivery of the Notes and shall continue in full force and
effect so long as any Note is outstanding and unpaid. Any right to
indemnification
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<PAGE>
hereunder, including, without limitation, rights pursuant to Sections 2.10,
2.12, 5.12, 10.3 and 11.2 hereof, shall survive the termination of this
Agreement and the payment and performance of all Obligations.
Section 11.17 SENIOR DEBT. The Obligations are secured by the Security
Documents and is intended by the parties hereto to be in parity with the
Interest Hedge Agreements and senior in right of payment to all other
Indebtedness of the Borrower.
Section 11.18 OBLIGATIONS SEVERAL. The obligations of the Administrative
Agent and each of the Lenders hereunder are several, not joint.
Section 11.19 CONFIDENTIALITY. All information furnished to the
Administrative Agent or the Lenders concerning the Borrower and its Subsidiaries
is presumed to be non-public proprietary or confidential unless otherwise
identified by the Person furnishing the information. The Lenders and the
Administrative Agent shall hold all non-public, proprietary or confidential
information obtained pursuant to the requirements of this Agreement in
accordance with their customary procedures for handling confidential information
of this nature and in accordance with safe and sound 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 so long
as any such recipient is advised of the non-public, proprietary or confidential
nature of the information and of the Lender's obligations under this Section.
Unless specifically requested by the Borrower, no Lender shall be obligated or
required to return any materials furnished to it by the Borrower. The foregoing
provisions shall not apply to a Lender with respect to information that (i) is
or becomes generally available to the public (other than through such Lender),
or (ii) is already in the possession of such Lender on a nonconfidential basis.
ARTICLE 12
WAIVER OF JURY TRIAL
Section 12.1 WAIVER OF JURY TRIAL. THE BORROWER, FOR ITSELF AND ON
BEHALF OF EACH OF ITS SUBSIDIARIES, AND
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<PAGE>
THE ADMINISTRATIVE AGENT AND EACH OF THE LENDERS, HEREBY AGREE TO WAIVE AND
HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR
PROCEEDING OF ANY TYPE IN WHICH THE BORROWER, ANY OF THE BORROWER'S
SUBSIDIARIES, ANY OF THE LENDERS, THE ADMINISTRATIVE AGENT, OR ANY OF THEIR
RESPECTIVE SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS
ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT, ANY OF THE NOTES OR THE
OTHER LOAN DOCUMENTS AND THE RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION
12.1. EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES ANY
RIGHTS IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS
SECTION, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS
AGREEMENT (i) CERTIFIES THAT NEITHER ANY REPRESENTATIVE, AGENT OR ATTORNEY OF
THE ADMINISTRATIVE AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE ADMINISTRATIVE AGENT OR ANY LENDER WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. THE
PROVISIONS OF THIS SECTION HAVE BEEN FULLY DISCLOSED BY AND TO THE PARTIES AND
THE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY
AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS
SECTION WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: RURAL CELLULAR CORPORATION
By: //Wesley E. Schultz//
---------------------------------
Its: Vice President Finance & CFO
---------------------------------
ADMINISTRATIVE AGENT
AND LENDERS: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent and a Lender
By: //Diane Bailey//
---------------------------------
Its: Vice President
---------------------------------
BANKBOSTON, N.A., as a Lender
By: //Jeffrey A. Wellington//
---------------------------------
Its: Director
---------------------------------
FIRST UNION NATIONAL BANK, as a Lender
By: //Bruce Loftin//
---------------------------------
Its: Senior Vice President
---------------------------------
<PAGE>
FLEET NATIONAL BANK, as a Lender
By: //Chris Swindell//
---------------------------------
Its: Vice President
---------------------------------
NATIONSBANK, N.A., as a Lender
By: //Roselyn Reed//
---------------------------------
Its: Vice President
---------------------------------
PNC BANK, NATIONAL ASSOCIATION, as a
Lender
By: //John T. Wilden//
---------------------------------
Its: Vice President
---------------------------------
COBANK, ACB, as a Lender
By: //Fred Matthes//
---------------------------------
Its: Vice President
---------------------------------
FIRST NATIONAL BANK OF MARYLAND, as a
Lender
By: //W. Blake Hampson//
---------------------------------
Its: Vice President
---------------------------------
<PAGE>
GENERAL ELECTRIC CAPITAL CORPORATION, as a
Lender
By: //Molly S. Fergusson//
----------------------------------
Its: Manager, Operations
----------------------------------
KEY CORPORATE CAPITAL INC., as a Lender
By: //Kenneth J. Keeler//
----------------------------------
Its: Vice President & Portfolio Manager
----------------------------------
MERITA BANK PLC, as a Lender
By: //Charles S. Lansdown//
----------------------------------
Its: Vice President
----------------------------------
By: //Andrew J. Ragusa//
----------------------------------
Its: Assistant Vice President
----------------------------------
SOCIETE GENERALE, NEW YORK BRANCH, as a
Lender
By: //John Sadik-Khan//
----------------------------------
Its: Managing Director
----------------------------------
<PAGE>
STATE STREET BANK AND TRUST COMPANY, as a
Lender
By: //James C. Gregg//
---------------------------------
Its: Vice President
---------------------------------
ST. PAUL BANK FOR COOPERATIVES, as a
Lender
By: //Marvin Lando//
---------------------------------
Its: Senior Vice President
---------------------------------
UNION BANK OF CALIFORNIA, N.A., as a
Lender
By: //J. Kevin Sampson//
---------------------------------
Its: Senior Vice President
---------------------------------
<PAGE>
SCHEDULE 7
ADDRESSES OF ADMINISTRATIVE AGENT, ARRANGING AGENT AND LENDERS
ARRANGING AGENT:
TD SECURITIES (USA), INC.
31 West 52nd Street
New York, NY 10019-6101
Attn: Anne Crooks
Telecopy No.: (212) 262-1928
ADMINISTRATIVE AGENT AND A LENDER:
TORONTO DOMINION (TEXAS), INC.
909 Fannin Street
Suite 1700
Houston, Texas 77010
Attn: Kimberly Burleson/Diane Bailey
Telecopy No.: (713) 951-9921
LENDERS:
BANKBOSTON, N.A.
100 Federal Street
Boston, Massachusetts 02106
Attn: Kay Campbell
Telecopy No.: (617) 434-2473
FIRST UNION NATIONAL BANK
One First Union Center
Charlotte, North Carolina 28288-0735
Attn: Gordon Wallace
Telecopy No.: (704) 374-4092
FLEET NATIONAL BANK
MA/OF/D03D
One Federal Street
Boston, Massachusetts 02110
Attn: Chris Swindell
<PAGE>
Telecopy No.: (617) 346-4345
NATIONSBANK, N.A.
901 Main Street
64th Floor
Attn: Roselyn Reed
Telecopy No.: (214) 508-9390
PNC BANK, NATIONAL ASSOCIATION
1600 Market Street
21st Floor
Philadelphia, Pennsylvania 19103
Attn: John Wilden
Telecopy No.: (215) 585-6680
COBANK, ACB
5500 South Quebec Street
Englewood, Colorado 80111
Attn: Fred Matthes
Telecopy No.: (303) 224-2578
FIRST NATIONAL BANK OF MARYLAND
25 South Charles Street
18th Floor, Mail Code 101-511
Baltimore, Maryland 21201
Attn: Blake Hampson
Telecopy No.: (410) 244-4920
GENERAL ELECTRIC CAPITAL CORPORATION
120 Long Ridge Road
3rd Floor
Stamford, Connecticut 06927
Attn.: Pete Foley
Telecopy No.: (203) 961-5140
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<PAGE>
KEY CORPORATE CAPITAL INC.
127 Public Square
Cleveland, Ohio 44114-1306
Attn: Tim Willard
Telecopy No.: (216) 689-4666
MERITA BANK PLC
437 Madison Avenue
New York, New York 10022
Attn: Andrew Ragusa
Telecopy No.: (212) 318-8318
SOCIETE GENERALE, NEW YORK BRANCH
1221 Avenue of the Americas
New York, New York 10020
Attn: John Sadik-Khan
Telecopy No.: (212) 278-6240
STATE STREET BANK AND TRUST COMPANY
255 Franklin Street
Boston, Massachusetts 02101
Attn: Jim Gregg
Telecopy No.: (617) 664-3708
ST. PAUL BANK FOR COOPERATIVES
375 Jackson Street
St. Paul, Minnesota 55101
Attn: Roger Opp
Telecopy No.: (612) 282-8201
UNION BANK OF CALIFORNIA, N.A.
445 South Figueroa Street
15th Floor
Los Angeles, California 90071
Attn: Kevin Sampson
Telecopy No.: (213) 236-5747
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<PAGE>
EXHIBIT 10.1(b)
EXHIBIT A
FORM OF AMENDED AND RESTATED BORROWER'S PLEDGE AGREEMENT
THIS AMENDED AND RESTATED BORROWER'S PLEDGE AGREEMENT (the "Agreement"),
entered into as of the 1st day of July, 1998, by and between RURAL CELLULAR
CORPORATION, a Minnesota corporation (the "Borrower"), and TORONTO DOMINION
(TEXAS), INC., as administrative agent (the "Administrative Agent") for the
Lenders (defined in the Loan Agreement defined below) and the Arranging Agent
(defined in the Loan Agreement defined below),
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Arranging Agent, and the
Administrative Agent are all parties to that certain Amended and Restated Loan
Agreement dated as of even date herewith (as the same may be amended, modified,
restated, and supplemented from time to time, the "Loan Agreement"); and
WHEREAS, as a condition precedent to the effectiveness of the Loan
Agreement, the Borrower is required to execute and deliver this Agreement, which
amends and restates in its entirety that certain Borrower's Pledge Agreement
dated as of May 1, 1997 by and between the Borrower and the Administrative
Agent; and
WHEREAS, to secure the payment and performance of, among other things, all
Obligations (defined in the Loan Agreement) of the Borrower under the Loan
Agreement and the promissory notes issued by the Borrower to the Lenders
thereunder, the Borrower and the Administrative Agent (for itself and on behalf
of the Lenders and the Arranging Agent) have agreed that the shares of capital
stock (the "Stock") owned by the Borrower in each of the Subsidiaries of the
Borrower listed on SCHEDULE 1 attached hereto, shall be pledged by the Borrower
to the Administrative Agent (for itself and on behalf of the Lenders and the
Arranging Agent);
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement to the extent not
otherwise defined or limited herein, and further agree as follows:
1. WARRANTY. The Borrower hereby represents and warrants to the
Administrative Agent and the Lenders that, except for the security interest
created hereby,
<PAGE>
the Borrower owns the Stock, which constitutes the percentage of the issued and
outstanding stock of the Subsidiaries as set forth on SCHEDULE 1 attached
hereto, free and clear of all Liens, that the Stock is duly issued, fully paid
and non-assessable, and that the Borrower has the unencumbered right to pledge
the Stock. In addition, the Borrower represents and covenants as follows:
(1) the Stock represents all of the Borrower's shares of capital stock in any
Subsidiary of the Borrower; (2) upon possession of the Stock by the
Administrative Agent, the Administrative Agent shall have a valid and perfected
first priority security interest in the Stock, securing the payment of the
Obligations; and (3) except as noted on SCHEDULE 2 attached hereto, the Stock
represents all of the outstanding shares of stock issued by any direct
Subsidiary of the Borrower.
2. SECURITY INTEREST. The Borrower hereby unconditionally grants and
assigns to the Administrative Agent, for itself and on behalf of the Lenders and
their respective successors and assigns, to secure the Obligations, a continuing
security interest in and security title to the Stock and any other shares of
capital stock of any Subsidiary of the Borrower obtained in the future, and in
each case, all certificates representing such shares, all rights, options,
warrant, stock or other securities, or other property which may hereafter be
received, receivable, or distributed in respect of the Stock, together with all
proceeds of the foregoing, including, without limitation, all dividends, cash,
notes, securities, or other property from time to time acquired, receivable or
otherwise distributed in respect of, or in exchange for, the foregoing, all of
which shall constitute "Stock" hereunder. The Borrower has delivered to and
deposited with the Administrative Agent all of its right, title, and interest in
and to the Stock, together with certificates representing the Stock, and undated
stock powers endorsed in blank, as security for the Obligations; it being the
intention of the parties hereto that beneficial ownership of the Stock,
including, without limitation, all voting, consensual and dividend rights, shall
remain in the Borrower until the occurrence of an Event of Default and until the
Administrative Agent shall notify the Borrower of the Administrative Agent's
exercise of voting and dividend rights to the Stock pursuant to Section 9
hereof.
3. ADDITIONAL SHARES. In the event that, during the term of this
Agreement:
(a) any stock dividend, stock split, reclassification,
readjustment, or other change is declared or made in the capital structure
of any directly owned Subsidiary, or any new stock is issued by such
Subsidiary, or any new directly owned Subsidiary is formed or acquired, all
new, substituted, and additional shares, or other securities, shall be
issued to the Borrower and shall be promptly delivered to the
Administrative Agent, together with undated stock powers endorsed in blank
by the Borrower, and shall thereupon constitute Stock to be held by the
Administrative Agent under the terms of this Agreement; and
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<PAGE>
(b) any subscriptions, warrants, or any other rights or options
shall be issued in connection with the Stock, all new stock or other
securities acquired through such subscriptions, warrants, rights, or
options by the Borrower shall be promptly delivered to the Administrative
Agent, together with undated stock powers endorsed in blank, and shall
thereupon constitute Stock to be held by the Administrative Agent under the
terms of this Agreement.
1. DEFAULT. In the event of the occurrence of an Event of Default
and so long as any such Event of Default is continuing subject to Section 13
hereof, the Administrative Agent may sell or otherwise dispose of the Stock at a
public or private sale or make other commercially reasonable disposition of the
Stock or any portion thereof after ten (10) days' notice to the Borrower, and
the Administrative Agent and the Lenders or any of them, may purchase the Stock
or any portion thereof at any public sale. The proceeds of the public or
private sale or other disposition shall be applied first to the costs of the
Administrative Agent incurred in connection with the sale, expressly including,
without limitation, any costs under Section 7 hereof, and then to the
Obligations as provided in the Loan Agreement. In the event the proceeds of the
sale or other disposition of the Stock are insufficient to satisfy the
Obligations, the Borrower shall remain liable for any such deficiency. The
Borrower waives the rights of equity of redemption, appraisal, notice of
acceptance, presentment, demand, and marshalling, to the extent applicable.
2. ADDITIONAL RIGHTS OF SECURED PARTY. In addition to its rights
and privileges under this Agreement, the Administrative Agent, on behalf of
itself and the Lenders, shall have all the rights, powers and privileges of a
secured party under the Uniform Commercial Code as in effect in any applicable
jurisdiction and other Applicable Law.
3. RETURN OF STOCK TO THE BORROWER. Upon payment in full of all
principal and interest on the Notes, full performance by the Borrower of all
covenants, undertakings and obligations under the Loan Agreement, the Notes, and
the other Loan Documents, and satisfaction in full of any other Obligations,
other than the Obligations which survive the termination of the Loan Agreement
as provided in Section 11.16 of the Loan Agreement, and after such time as the
Lenders shall have no obligation to make any further Advances to the Borrower,
this Agreement shall terminate and the Administrative Agent shall return the
remaining Stock and all rights received by the Administrative Agent as a result
of its possessory interest in the Stock to the Borrower.
4. DISPOSITION OF STOCK BY ADMINISTRATIVE AGENT. The Stock is not
registered or qualified under the various federal or state securities laws of
the United States, and disposition thereof after default may be restricted to
one or more private (instead of public) sales. The Borrower understands that
upon such disposition, the Administrative Agent may approach only a restricted
number of potential purchasers and further understands that a sale under such
circumstances may yield a lower price for the Stock than if the Stock
- 3 -
<PAGE>
were registered and qualified pursuant to federal and state securities laws and
sold on the open market. The Borrower, therefore, agrees that:
(a) if the Administrative Agent shall, pursuant to the terms of
this Agreement, sell or cause the Stock or any portion thereof to be sold
at a private sale, the Administrative Agent shall have the right to rely
upon the advice and opinion of any national brokerage or investment firm
having recognized expertise and experience in connection with shares of
cellular mobile radio telephone companies (but shall not be obligated to
seek such advice and the failure to do so shall not be considered in
determining the commercial reasonableness of such action) as to the best
manner in which to expose the Stock for sale and as to the best price
reasonably obtainable at the private sale thereof; and
(b) that such reliance shall be conclusive evidence that the
Administrative Agent has handled such disposition in a commercially
reasonable manner.
1. BORROWER'S OBLIGATIONS ABSOLUTE. The obligations of the Borrower
under this Agreement shall be direct and immediate and not conditional or
contingent upon the pursuit of any remedies against the Borrower or any other
Person, nor against other security or liens available to the Administrative
Agent or any Lender. The Borrower hereby waives any right to require that an
action be brought against any other Person or to require that resort be had to
any other security or to any balance of any deposit account or credit on the
books of the Administrative Agent or any of the Lenders in favor of any other
Person prior to the exercise of remedies hereunder, or to require action
hereunder prior to resort by the Administrative Agent to any other security or
collateral for the Notes and the other Obligations. No amendment, modification,
waiver, 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 Administrative Agent, or any of them, nor
additional advances made by the Lenders and the Administrative Agent, or any of
them, to the Borrower, nor the taking of further security, nor the retaking or
re-delivery or release of the Collateral to the Borrower or any other collateral
or guaranty by the Lenders and the Administrative Agent, or any of them, nor any
lack of validity or enforceability of any Loan Document or any term thereof, nor
any other act of the Lenders and the Administrative Agent, or any of them, shall
release the Borrower from any Obligation, except a release or discharge executed
in writing by the Administrative Agent in accordance with the Loan Agreement
with respect to such Obligation or upon full payment and satisfaction of all
Obligations. Neither the Administrative Agent nor any Lender 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
Administrative Agent in accordance with the Loan Agreement and then only to the
extent therein set forth. A waiver by the Lenders and the Administrative Agent,
or any of them, of any right or remedy on any
- 4 -
<PAGE>
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.
2. VOTING RIGHTS.
(a) For so long as the Notes or any other Obligations remain
unpaid, after and during the continuation of an Event of Default, but
subject to the provisions of Section 13 hereof, (i) the Administrative
Agent may, upon ten (10) days' prior written notice to the Borrower of its
intention to do so, exercise all voting rights, and all other ownership or
consensual rights of the Stock, but under no circumstances is the
Administrative Agent obligated by the terms of this Agreement to exercise
such rights, and (ii) the Borrower hereby appoints the Administrative
Agent, which appointment shall be effective on the tenth (10th) day
following the giving of notice by the Administrative Agent as provided in
the foregoing Section 9(a)(i), the Borrower's true and lawful
attorney-in-fact and IRREVOCABLE PROXY to vote the Stock in any manner the
Administrative Agent deems advisable for or against all matters submitted
or which may be submitted to a vote of shareholders. The power-of-attorney
granted hereby is coupled with an interest and shall be irrevocable.
(b) For so long as the Borrower shall have the right to vote the
Stock, the Borrower covenants and agrees that it will not, without the
prior written consent of the Administrative Agent, vote or take any
consensual action with respect to the Stock which would constitute an Event
of Default.
1. NOTICES. All notices and other communications required or
permitted hereunder shall be in writing, and shall be given in the manner and at
the addresses set forth in Section 11.1 of the Loan Agreement.
2. BINDING AGREEMENT. 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 between the parties with respect to the matters addressed
herein and may not be modified except by a writing executed by the
Administrative Agent and the Borrower and delivered by the Administrative Agent
to the Borrower.
3. SEVERABILITY. If any paragraph or part thereof 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.
- 5 -
<PAGE>
4. FCC COMPLIANCE. Notwithstanding anything herein which may be
construed to the contrary, no action shall be taken by the Administrative Agent
which may require the consent or approval of the FCC, and the proxy granted in
Section 9(a) hereof shall not become effective, unless and until all
requirements of the Communications Act requiring the consent to or approval of
such action by the FCC have been satisfied. The Borrower covenants that,
following and during the continuation of an Event of Default, upon request of
the Administrative Agent, it will cause to be filed such applications and take
such other action as may be requested by the Administrative Agent to obtain
consent or approval of the FCC to any action contemplated by this Agreement and
to give effect to the security interest of the Administrative 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 Communications Act.
5. COUNTERPARTS. This Agreement may be executed in multiple
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.
6. ADMINISTRATIVE AGENT. Each reference herein to any right granted
to, benefit conferred upon or power exercisable by the "Administrative Agent"
shall be a reference to the Administrative Agent for the benefit of all the
Lenders, and each action taken or right exercised hereunder shall be deemed to
have been so taken or exercised by the Administrative Agent for the benefit of
and on behalf of the Administrative Agent and all the Lenders.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
- 6 -
<PAGE>
IN WITNESS WHEREOF, the undersigned parties hereto have executed this
Agreement by and through their duly authorized officers, as of the day and year
first above written.
BORROWER: RURAL CELLULAR CORPORATION, a
Minnesota corporation
By:
------------------------
Title:
---------------------
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By:
------------------------
Title:
---------------------
SCHEDULES
Schedule 1 - Shares Pledged Pursuant to Pledge Agreement
Schedule 2 - Outstanding Shares of Stock
<PAGE>
EXHIBIT 10.1(c)
EXHIBIT E
FORM OF REVOLVING LOAN NOTE
$_________________ As of July 1, 1998
FOR VALUE RECEIVED, the undersigned, RURAL CELLULAR CORPORATION, a
Minnesota corporation (the "Borrower"), promises to pay to the order of
_________________________ (hereinafter, together with its successors and
assigns, called the "Lender"), at the office of Toronto Dominion (Texas), Inc.
in Houston, Texas or such other place as the Lender may designate in writing to
the Borrower, the principal sum of ______________________________ AND __/100s
DOLLARS ($______________) in United States funds, or, if less, so much thereof
as may from time to time be advanced by the Lender to the Borrower hereunder,
PLUS interest as hereinafter provided. Such Advances may be endorsed from time
to time on the grid attached hereto, but the failure to make such notations
shall not affect the validity of the Borrower's obligation to repay unpaid
principal and interest hereunder.
All capitalized terms used herein shall have the meanings ascribed to them
in that certain Amended and Restated Loan Agreement dated as of even date
herewith (as amended, modified, restated, and supplemented from time to time,
the "Loan Agreement") by and among the Borrower, the financial institutions
parties thereto (together with their successors and assigns, the "Lenders"), TD
Securities (USA), Inc., as arranging agent (the "Arranging Agent"), and Toronto
Dominion (Texas), Inc., as administrative agent (the "Administrative Agent") for
the Lenders and the Arranging Agent, except to the extent such capitalized terms
are otherwise defined or limited herein.
All principal amounts and other amounts then outstanding hereunder shall be
due and payable as set forth in the Loan Agreement with a final payment of all
amounts due and payable on the Maturity Date, or such earlier date as payments
of the Revolving Loans shall be due, whether by acceleration or otherwise. The
Borrower shall also repay principal outstanding hereunder from time to time as
provided by Sections 2.5 and 2.7 of the Loan Agreement.
The Borrower shall be entitled to borrow, re-pay and re-borrow funds
hereunder pursuant to the Revolving Loan Commitment and subject to the terms and
conditions of the Loan Agreement. Prepayment of the principal amount of any
Revolving Loan may be made only as provided in the Loan Agreement.
<PAGE>
The Borrower hereby promises to pay interest on the unpaid principal amount
hereof as provided in Article 2 of the Loan Agreement. Interest under this
Revolving Loan Note shall also be due and payable when this Revolving Loan Note
shall become due (whether at maturity, by reason of acceleration or otherwise).
Overdue principal and, to the extent permitted by Applicable Law, overdue
interest, shall bear interest at the Default Rate as provided in the Loan
Agreement.
In no event shall the amount of interest due or payable hereunder 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 Lender, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the Lender in writing that it elects to have
such excess sum returned forthwith. It is the express intent of the parties
hereto that the Borrower not pay and the Lender 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.
All parties now or hereafter liable with respect to this Note, whether the
Borrower, any guarantor, endorser, or any other Person, hereby waive presentment
for payment, demand, notice of non-payment or dishonor, protest and notice of
protest.
No delay or omission on the part of the Lender or any holder hereof in
exercising its rights under this Revolving Loan Note, or delay or omission on
the part of the Arranging Agent, the Administrative Agent, the Majority Lenders
or the Lenders, collectively, or any of them, in exercising its or their rights
under the Loan Agreement or under any other Loan Document, or course of conduct
relating thereto, shall operate as a waiver of such rights or any other right of
the Lender or any holder hereof, nor shall any waiver by the Arranging Agent,
the Administrative Agent, the Majority Lenders or the Lenders collectively, or
any of them, or any holder hereof, of any such right or rights on any one
occasion be deemed a bar to, or waiver of, the same right or rights on any
future occasion.
The Borrower promises to pay all reasonable costs of collection, including,
without limitation, reasonable attorneys' fees, should this Revolving Loan Note
be collected by or through an attorney-at-law or under advice therefrom.
Time is of the essence of this Revolving Loan Note.
This Revolving Loan Note evidences the Lender's portion of the Loans under,
and is entitled to the benefits and subject to the terms of, the Loan Agreement,
which contains provisions with respect to the acceleration of the maturity of
this Revolving Loan Note upon the happening of certain stated events, and
provisions for prepayment. This Revolving Loan Note is secured by and is also
entitled to the benefits of the Security Documents and any other agreement or
instrument providing collateral for the Revolving Loans, whether now or
<PAGE>
hereafter in existence, and any filings, instruments, agreements, and documents
related thereto and providing collateral for the Revolving Loans.
THIS REVOLVING LOAN NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the duly authorized signatory of the Borrower, as
Authorized Signatory, has executed this Revolving Loan Note as of the day and
year first above written.
RURAL CELLULAR CORPORATION, a Minnesota
corporation
By:
-------------------------------------
Title:
----------------------------------
<PAGE>
ADVANCES
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Amount of Type of Amount of Principal Notation
Date Advance Advance Paid or Prepaid Made By
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</TABLE>
<PAGE>
EXHIBIT 10.1(d)
EXHIBIT F
FORM OF AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT dated as of the 1st day of
July, 1998 (the "Agreement") by and between RURAL CELLULAR CORPORATION, a
Minnesota corporation (the "Borrower"), and TORONTO DOMINION (TEXAS), INC., as
administrative agent (the "Administrative Agent") for the Lenders (as defined in
the Loan Agreement defined below) and the Arranging Agent (as defined in the
Loan Agreement defined below),
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Arranging Agent, and the
Administrative Agent are all parties to that certain Amended and Restated Loan
Agreement dated as of even date herewith (as amended, modified, restated, and
supplemented from time to time, the "Loan Agreement"); and
WHEREAS, as a condition precedent to the effectiveness of the Loan
Agreement, the Borrower is required to execute and deliver this Agreement, which
amends and restates in its entirety that certain Security Agreement dated as of
May 1, 1997 by and between the Borrower and the Administrative Agent;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement to the extent not
otherwise defined or limited herein, and further agree as follows:
As security for the Obligations, the Borrower hereby unconditionally grants
and assigns to the Administrative Agent (for itself and on behalf of the Lenders
and the Arranging Agent) a continuing security interest in and security title to
(hereinafter referred to as the "Security Interest") 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:
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
<PAGE>
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 and
related wireless communications services and cellular telephone and related
equipment 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 of the Borrower 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, without limitation, 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 (the "Equipment");
CONTRACTS AND LEASES
All assignable (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
SCHEDULE 1 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 SCHEDULE 2 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");
- 2 -
<PAGE>
MEMBERSHIP INTERESTS
All membership rights, privileges and interests of the Borrower in any
Person, including, without limitation, (a) the right to receive distributions at
any time or from time to time in cash or other property, (b) the right to any
specific property of such Person, if any, and (c) all of the Borrower's right to
participate in the management of such Person (collectively, the "Membership
Interests"); PROVIDED, HOWEVER, that Collateral hereunder shall not include the
Membership Interests in Cellular 2000, Inc. or Switch 2000;
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 SCHEDULE 3 attached hereto (the
"Licenses");
DEPOSIT ACCOUNT
The Deposit Account under Section 2.11(c) of the Loan Agreement and all
certificates and instruments if any, from time to time representing the Deposit
Account together with all investments, notes, and cash from time to time therein
or arising therefrom and all interest, dividends, cash, and other property from
time to time arising therefrom (hereinafter the "Deposit Account");
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 (the "Miscellaneous Items"); and
PROCEEDS
All 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 (including,
- 3 -
<PAGE>
without limitation, the proceeds from the sale 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, together with
all proceeds of any such proceeds (the "Proceeds").
The Inventory, Accounts, Equipment, Contracts, Other Contracts, Leases,
Intangibles, Membership Interests, Licenses, Deposit Account, 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 the Obligations (as defined in the Loan Agreement).
1. FURTHER ASSURANCES. The Borrower hereby authorizes the Administrative
Agent to file such financing statements and such other documents as the
Administrative Agent may deem necessary or desirable to protect or perfect the
interest of the Lenders and the Administrative Agent in the Collateral, and the
Borrower further irrevocably appoints the Administrative Agent as the Borrower's
attorney-in-fact, with a power of attorney to execute on behalf of the Borrower
such Uniform Commercial Code (the "UCC") financing statement forms as the
Administrative Agent may from time to time 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, the Borrower
agrees to do, execute and deliver or cause to be done, executed and delivered
all such further acts, documents and things as the Administrative Agent may
reasonably require for the purpose of perfecting or protecting the rights of the
Lenders and the Administrative Agent hereunder or otherwise giving effect to
this Agreement, all promptly upon request therefor. The Borrower hereby agrees
that upon establishment of the Deposit Account, the Borrower shall execute such
additional security documents in connection therewith as the Administrative
Agent may request which documents shall, among other things, provide that the
Administrative Agent shall have dominion and control over the Deposit Account.
2. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
to the Lenders and the Administrative Agent that:
(a) SCHEDULE 1, 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 Administrative Agent upon the request of the
Administrative Agent;
- 4 -
<PAGE>
(b) SCHEDULE 2, 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 the Borrower is party in effect on the date hereof, and
the Borrower will furnish copies thereof to the Lenders and the
Administrative Agent upon the request of the Administrative Agent; and
(c) SCHEDULE 3, attached hereto and incorporated herein by this
reference, sets forth a complete and accurate list of the Licenses in
effect on the date hereof.
3. REPRESENTATIONS AND WARRANTIES CONCERNING COLLATERAL. The Borrower
further represents and warrants that (a) the Security Interest in the Collateral
granted hereunder shall constitute at all times a valid first priority security
interest (subject only to Permitted Liens), vested in the Administrative Agent,
in and upon the Collateral, free of any Liens except for Permitted Liens, (b)
the location of the Inventory and Equipment is as set forth in SCHEDULE 4
hereto, and (c) none of the Accounts are represented by promissory notes or
other instruments. 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.
4. LOCATION OF BOOKS AND RECORDS. 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 Administrative 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 Administrative Agent, in
writing making reference to this Section 4 hereof, 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 or of its chief executive office.
5. COLLATERAL NOT FIXTURES. 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.
6. COVENANTS REGARDING COLLATERAL. 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
- 5 -
<PAGE>
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 Administrative Agent may, but shall in no event be
obligated to, upon prior written notice to the Borrower, insure any of the
Collateral in such form and amount as the Administrative Agent may deem
necessary or desirable if the Borrower fails to obtain insurance as required by
the Loan Agreement, and that the Administrative 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 Administrative Agent,
with interest at the Default Rate, and such amounts shall be deemed to be a part
of the Obligations secured by the Collateral under the terms of this Agreement.
7. COVENANTS REGARDING CONTRACTS, OTHER CONTRACTS AND LEASES. 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 Administrative Agent of any claim of
material 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
Administrative 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 prior to any Event of Default and that these rights shall
not be exercised by the Administrative Agent prior to an Event of Default.
8. REMEDIES. Upon the occurrence and during the continuation of an Event
of Default the Lenders, the Administrative Agent 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 UCC of the State of New York
and any other applicable jurisdiction, and all other rights and remedies
available to the Lenders and the Administrative Agent, or any of them, at law or
in equity. 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
Section 19 hereof at least ten (10) days prior to such disposition. The
Administrative 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 right 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 Administrative Agent or any other Person in connection therewith.
The
- 6 -
<PAGE>
Borrower agrees, after the occurrence and during the continuation of an Event of
Default, to take any actions that the Administrative Agent may reasonably
request in order to enable the Administrative Agent to obtain and enjoy the full
rights and benefits granted to the Administrative 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 which are then required by law for
or in connection with any action or transaction contemplated by this Agreement
or Article 9 of the UCC as in effect in any applicable jurisdiction, and, at the
Administrative Agent's request, prepare, sign and file with the FCC 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 rules for approval of any sale or
transfer of the Licenses in connection with the Administrative Agent's exercise
of remedies under this Agreement. The Administrative 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 Administrative
Agent, all as permitted by Applicable Law. All amounts realized or collected
through the exercise of remedies hereunder shall be applied to the Obligations
as provided in the Loan Agreement.
9. NOTIFICATION OF ACCOUNT DEBTORS. Upon the occurrence and during the
continuation of an Event of Default, the Administrative Agent may notify the
account debtors that all payments with respect to Accounts are to be paid
directly to the Administrative Agent and any amount thereafter paid to the
Borrower shall be received in trust by the Borrower for the benefit of the
Administrative Agent and segregated from other funds of the Borrower and paid
over to the Administrative Agent in the form received (together with any
necessary endorsements).
10. REMEDIES OF ADMINISTRATIVE AGENT. Upon the occurrence and during the
continuation of an Event of Default, the Administrative 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 Administrative Agent its attorney-in-fact, with
power of substitution, to take such action, execute such documents, and perform
such work as the Administrative Agent may deem appropriate in exercise of the
rights and remedies granted the Lenders and the Administrative Agent, 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
- 7 -
<PAGE>
of the Contracts, Other Contracts or Leases. The power of attorney granted
herein is coupled with an interest and shall be irrevocable.
11. ADDITIONAL REMEDIES. Upon the occurrence and during the continuation
of an Event of 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 Administrative 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
Administrative 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 date of payment of such costs or
expenses by the Administrative Agent at the Default Rate. Neither the
Administrative Agent nor any Lenders 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, the Borrower agrees to
indemnify and hold harmless the Administrative Agent and each Lender 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 the Administrative Agent or any
Lender under any of the terms of this Agreement or under the Contracts, the
Other Contracts or the Leases.
12. ADMINISTRATIVE AGENT MAY COLLECT ACCOUNTS. The Borrower hereby
further appoints the Administrative 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 Administrative Agent, 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 Administrative
Agent. The Borrower further authorizes the Administrative Agent, effective upon
the occurrence and during the continuation of an Event of 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 Administrative Agent's attorneys' fees) of
retaking, keeping, storing, and selling the Collateral, the Administrative 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 Administrative Agent to enforce its rights
hereunder, or to realize upon any of the Collateral, the Borrower shall pay to
the Administrative Agent the amount of the
- 8 -
<PAGE>
Administrative 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. Upon the occurrence and during the continuation of an Event
of Default, the Borrower shall segregate all proceeds of any Collateral from
other assets of the Borrower.
13. INDEMNIFICATION. The Borrower shall indemnify and hold harmless the
Administrative Agent, each Lender, 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 the
Administrative Agent, each Lender, 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.
14. REMEDIES CUMULATIVE. The Borrower agrees that the rights of the
Lenders and the Administrative Agent, 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, the Administrative Agent and the
Borrower or any Subsidiary of the Borrower and the other obligors thereunder, or
any of them, shall be cumulative, and that the Administrative Agent and each
Lender 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
Administrative Agent shall in no event be under any obligation to resort to any
Collateral secured hereby prior to exercising any other rights that the Lenders
and the Administrative Agent, or any of them, may have against the Borrower or
any Subsidiary of the Borrower or any of their respective properties, nor shall
the Lenders and the Administrative Agent, or any of them, be obliged to resort
to any other collateral or security for the Obligations, other than the
Collateral, prior to any exercise of the Administrative Agent's rights against
the Borrower and its property hereunder.
15. OBLIGATIONS COMMERCIAL IN NATURE. The Borrower hereby acknowledges
that the Obligations arose out of a commercial transaction, and agrees that if
an Event of Default shall occur, the Administrative 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 Administrative Agent, or any of them, prior to
seizure by the Administrative Agent or any of its transferees, assigns or
successors in interest, of the Collateral or any portion thereof.
16. AMENDMENTS AND WAIVERS. No amendment, modification, waiver, 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 Administrative Agent, or any of
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<PAGE>
them, nor additional advances made by the Lenders and the Administrative Agent,
or any of them, to the Borrower, nor the taking of further security, nor the
retaking or re-delivery or release of the Collateral to the Borrower or any
other collateral or guaranty by the Lenders and the Administrative Agent, or any
of them, nor any lack of validity or enforceability of any Loan Document or any
term thereof nor any other act of the Lenders and the Administrative Agent, or
any of them, shall release the Borrower from any Obligation, except a release or
discharge executed in writing by the Administrative Agent in accordance with the
Loan Agreement with respect to such Obligation or upon full payment and
satisfaction of all Obligations and termination of the Commitment. Neither the
Administrative Agent nor any Lender 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 Administrative
Agent or any Lender, as the case may be, in accordance with the Loan Agreement
and then only to the extent therein set forth. A waiver by the Lenders and the
Administrative Agent, 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. ASSIGNMENT. The Borrower hereby agrees that this Agreement or the
rights hereunder may, in the discretion of the Lenders and the Administrative
Agent or any of them, 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 or the Administrative
Agent, the terms "Lenders" and "Administrative Agent" wherever used herein shall
be deemed, as applicable, to refer to and include any such assignee.
18. SUCCESSORS AND ASSIGNS. This Agreement shall apply to and bind the
respective successors and permitted assigns of the Borrower and inure to the
benefit of the successors and permitted assigns of the Lenders and the
Administrative Agent.
19. NOTICES. 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. GOVERNING LAW. 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 Administrative Agent
with respect to the matters addressed herein and may not be modified except by a
writing executed by the Administrative Agent and delivered to the Borrower.
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<PAGE>
21. SEVERABILITY. 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. FCC CONSENT. Notwithstanding anything herein which may be construed
to the contrary, no action shall be taken by the Administrative Agent with
respect to the Licenses issued by the FCC unless and until all requirements of
Applicable Law, including, without limitation, any required approval under the
Communications Act, including without limitation the provision for ten (10)
days' notice to the FCC required by 47 C.F.R. Section 22.917(e), requiring the
consent to, or approval of, such action by the FCC or any governmental or other
authority, have been satisfied. The Borrower covenants that upon request of the
Administrative Agent it will cause to be filed such applications and take such
other action as may be requested by the Administrative Agent to obtain the
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 Administrative 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 Communications Act.
23. 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.
24. CHANGES IN APPLICABLE LAW. The parties acknowledge their intent that,
upon the occurrence and during the continuation of an Event of Default, the
Administrative 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 UCC 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 Administrative Agent's rights of access to,
or use or sale of, the Collateral, or the procedures necessary to enable the
Administrative Agent to obtain such rights of access, use or sale, the
Administrative Agent and the Borrower shall amend this Agreement in such manner
as the Administrative Agent shall reasonably request in order to provide the
Administrative Agent such rights to the greatest extent possible consistent with
Applicable Law and governmental policy.
25. ADMINISTRATIVE AGENT. Each reference herein to any right granted to,
benefit conferred upon or power exercisable by the "Administrative Agent" shall
be a reference to
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<PAGE>
the Administrative Agent for the benefit of all the Lenders, and each action
taken or right exercised hereunder shall be deemed to have been so taken or
exercised by the Administrative Agent for the benefit of and on behalf of all
the Lenders.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<PAGE>
IN WITNESS WHEREOF, the undersigned have hereunto set their hands by and
through their duly authorized representatives, as of the day and year first
written above.
BORROWER: RURAL CELLULAR CORPORATION, a Minnesota
corporation
By:
------------------------------------
Title:
---------------------------
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By:
------------------------------------
Title:
----------------------------
SCHEDULES
Schedule 1 - Contracts
Schedule 2 - Leases
Schedule 3 - Licenses
Schedule 4 - List and Location of Inventory and Equipment
<PAGE>
EXHIBIT 10.1 (e)
EXHIBIT G
FORM OF SUBSIDIARY GUARANTY
[NAME OF SUBSIDIARY]
THIS SUBSIDIARY GUARANTY (the "Guaranty") is made as of the ____ day of
________, _____, by [NAME OF SUBSIDIARY], a ____________________ (the
"Guarantor"), in favor of TORONTO DOMINION (TEXAS), INC., as administrative
agent (the "Administrative Agent"), for the itself, Lenders (as defined in the
Loan Agreement defined below) and the Arranging Agent (as defined in the Loan
Agreement defined below).
W I T N E S S E T H:
WHEREAS, RURAL CELLULAR CORPORATION, a Minnesota corporation (the
"Borrower"), the Lenders, the Arranging Agent, and the Administrative Agent are
all parties to that certain Amended and Restated Loan Agreement dated as of
July 1, 1998 (as amended, modified, restated, and supplemented from time to
time, the "Loan Agreement"); and
WHEREAS, pursuant to the terms of the Loan Agreement, the Guarantor is
required to execute and deliver this Guaranty; and
WHEREAS, the Guarantor is a Subsidiary (as such term is defined in the Loan
Agreement) of the Borrower; and
WHEREAS, the Borrower and the Guarantor are mutually dependent on each
other in the conduct of their respective businesses as an integrated operation,
and the Guarantor will benefit from the Borrower's obtaining of financing needed
from time to time for the successful operation of the businesses and maintenance
of the properties of the Borrower and the Guarantor; and
WHEREAS, the Guarantor has determined that its execution, delivery and
performance of this Guaranty directly benefit, and are within the corporate
purposes and in the best interests of, the Guarantor; and
WHEREAS, in connection with the extension of the Loans by the Lenders, the
Guarantor has agreed to execute this Guaranty guaranteeing the payment and
performance by the Borrower of its obligations and covenants under the Notes,
the Incremental Facility Notes, the Loan Agreement and the other Loan Documents
(the Loan Agreement, the Notes, the Incremental Facility Notes, and the other
Loan Documents, as executed on the date
<PAGE>
hereof and as they may be amended, modified or extended from time to time being
hereinafter referred to as the "Guaranteed Agreements"); and
WHEREAS, capitalized terms used herein and not otherwise defined shall be
used as defined in the Loan Agreement;
NOW, THEREFORE, in consideration of the above premises, Ten Dollars
($10.00) in hand paid and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor hereby
unconditionally guarantees to the Lenders and the Administrative Agent full and
prompt payment and performance when due whether at maturity, by acceleration or
otherwise of all Obligations. Each Obligation shall rank PARI PASSU with each
other Obligation.
The Guarantor hereby further agrees, for the benefit of the Lenders and the
Administrative Agent, that:
1. OBLIGATIONS SEVERAL. Regardless of whether any proposed guarantor or
any other Person or Persons is, are or shall become in any other way responsible
to the Lenders and the Administrative Agent, or any of them, for or in respect
of the Obligations or any part thereof, and regardless of whether or not any
Person or Persons now or hereafter responsible to the Lenders and the
Administrative Agent, or any of them, for the Obligations or any part thereof,
whether under this Guaranty or otherwise, shall cease to be so liable, the
Guarantor hereby declares and agrees that this Guaranty is and shall continue to
be a several obligation, shall be a continuing guaranty and shall be operative
and binding, and that the Guarantor shall have no right of subrogation with
respect to this Guaranty unless and until each Obligation has been irrevocably
paid in full.
2. GUARANTY FINAL. Upon the execution and delivery of this Guaranty to
the Administrative Agent, this Guaranty shall be deemed to be finally executed
and delivered by the Guarantor and shall not be subject to or affected by any
promise or condition affecting or limiting the Guarantor's liability (other than
as expressly set forth in Section 22 hereof), and no statement, representation,
agreement or promise on the part of the Borrower, the Lenders, the
Administrative Agent, or any of them, or any officer, employee or agent thereof,
unless contained herein forms any part of this Guaranty or has induced the
making hereof or shall be deemed in any way to affect the Guarantor's liability
hereunder.
3. AMENDMENT AND WAIVER. No alteration or waiver of this Guaranty or of
any of its terms, provisions or conditions shall be binding upon the parties
against whom enforcement is sought unless made in writing and signed by an
authorized officer of such party.
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<PAGE>
4. DEALINGS WITH BORROWER. The Lenders and the Administrative Agent, or
any of them, may, from time to time, without exonerating or releasing the
Guarantor in any way under this Guaranty, (i) take such further or other
security or securities for the Obligations or any part thereof as the Lenders
and the Administrative Agent, or any of them, may deem proper, consistent with
the Loan Agreement, or (ii) release, discharge, abandon, or otherwise deal with
or fail to deal with any guarantor of the Obligations or any security or
securities therefor or any part thereof now or hereafter held by the Lenders and
the Administrative Agent, or any of them, or (iii) consistent with the Loan
Agreement, amend, modify, extend, accelerate, or waive in any manner any of the
provisions, terms, or conditions of the Guaranteed Agreements, all as the
Lenders and the Administrative Agent, or any of them, may consider expedient or
appropriate in their sole discretion. Without limiting the generality of the
foregoing, or of Section 5 hereof, it is understood that the Lenders and the
Administrative Agent, or any of them, may, without exonerating or releasing the
Guarantor, give up, or modify or abstain from perfecting or taking advantage of
any security for the Obligations and accept or make any compositions or
arrangements, and realize upon any security for the Obligations when, and in
such manner, as the Lenders and the Administrative Agent, or any of them, may
deem expedient, consistent with the Loan Agreement, all without notice to the
Guarantor.
5. GUARANTY UNCONDITIONAL. The Guarantor acknowledges and agrees that no
change in the nature or terms of the Obligations or any of the Guaranteed
Agreements, or other agreements, instruments or contracts evidencing, related to
or attendant with the Obligations (including any novation), nor any
determination of lack of enforceability thereof, shall discharge all or any part
of the liabilities and obligations of the Guarantor pursuant to this Guaranty;
it being the purpose and intent of the Guarantor, the Lenders and the
Administrative Agent that the covenants, agreements, and all liabilities and
obligations of the Guarantor hereunder are absolute, unconditional, and
irrevocable under any and all circumstances. Without limiting the generality of
the foregoing, the Guarantor agrees that until each and every one of the
covenants and agreements of this Guaranty is fully performed, the Guarantor's
undertakings hereunder shall not be released, in whole or in part, by any action
or thing which might, but for this paragraph of this Guaranty, be deemed a legal
or equitable discharge of a surety or guarantor, or by reason of any waiver,
omission of the Lenders and the Administrative Agent, or any of them, or their
failure to proceed promptly or otherwise, or by reason of any action taken or
omitted by the Lenders and the Administrative Agent, or any of them, whether or
not such action or failure to act varies or increases the risk of, or affects
the rights or remedies of, the Guarantor or by reason of any further dealings
between the Borrower, the Lenders and the Administrative Agent, or any of them,
or any other guarantor or surety, and the Guarantor hereby expressly waives and
surrenders any defense to its liability hereunder, or any right of counterclaim
or offset of any nature or description which it may have or which may exist
based upon, and shall be deemed to have consented to, any of the foregoing acts,
omissions, things, agreements or waivers.
3
<PAGE>
6. SET-OFF. The Lenders and the Administrative Agent, or any of them,
may, without demand or notice of any kind upon or to the Guarantor, at any time
or from time to time when any amount shall be due and payable hereunder by the
Guarantor, if the Borrower shall not have timely paid its Obligations, set off
and appropriate any property, balances, credit accounts, or moneys of the
Guarantor in the possession of the Lenders and the Administrative Agent, or any
of them, or under the control of any of them for any purpose, which property,
balances, credit accounts, or moneys shall thereupon be turned over and remitted
to the Administrative Agent, to be held and applied to the Obligations by the
Administrative Agent in accordance with the Loan Agreement, and the Guarantor
hereby grants to the Lenders and the Administrative Agent, a security interest
in all such property. The Administrative Agent shall give written notice to the
Borrower of the exercise of any of the foregoing rights within one (1) Business
Day following the exercise thereof.
7. MAXIMUM GUARANTEED AMOUNT. The creation or existence from time to
time of Obligations in excess of the amount committed to or outstanding on the
date of this Guaranty is hereby authorized by the Guarantor, without notice to
the Guarantor, and shall in no way impair or affect this Guaranty or the rights
of the Lenders and the Administrative Agent, or any of them, herein. It is the
intention of the Guarantor, the Lenders and the Administrative Agent, that the
Guarantor's obligations hereunder shall be in, but not in excess of, the Maximum
Guaranteed Amount. The "Maximum Guaranteed Amount" shall mean the greater of
(a) the amount of economic benefit received (directly or indirectly) by the
Guarantor pursuant to the Loan Agreement and the other Loan Documents, and
(b) the maximum amount which could be paid out by the Guarantor without
rendering this Guaranty void or voidable under Applicable Law, including,
without limitation, (i) Title 11 of the United States Code, as amended, and
(ii) applicable state law regarding fraudulent conveyances.
8. BANKRUPTCY. Upon the bankruptcy or winding up or other distribution
of assets of the Borrower or any Subsidiary of the Borrower (other than the
Guarantor) or of any surety or guarantor for the Obligations, the rights of the
Lenders and the Administrative Agent, or any of them, against the Guarantor
shall not be affected or impaired by the omission of the Lenders and the
Administrative Agent, or any of them, to prove its or their claim, as
appropriate, or to prove its or their full claim, as appropriate, and the
Lenders and the Administrative Agent may prove such claims as they see fit and
may refrain from proving any claim and in their respective discretion they may
value as they see fit or refrain from valuing any security held by the Lenders
and the Administrative Agent, or any of them, without in any way releasing,
reducing or otherwise affecting the liability to the Lenders and the
Administrative Agent of the Guarantor.
9. APPLICATION OF PAYMENTS. Any amount received by the Lenders and the
Administrative Agent, or any of them, from whatsoever source and applied toward
the
4
<PAGE>
payment of the Obligations shall be applied in such order of application as is
set forth in the Loan Agreement.
10. WAIVERS BY GUARANTOR. The Guarantor hereby expressly waives:
(a) notice of acceptance of this Guaranty, (b) notice of the existence or
creation of all or any of the Obligations, (c) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever, (d) all diligence in
collection or protection of or realization upon the Obligations or any part
thereof, any obligation hereunder, or any security for any of the foregoing and
(e) all rights of subrogation, indemnification, contribution, and reimbursement
against the Borrower, all rights to enforce any remedy the Lenders and the
Administrative Agent, or any of them, may have against the Borrower and any
benefit of, or right to participate in, any collateral or security now or
hereinafter held by the Lenders and the Administrative Agent, or any of them, in
respect of the Obligations, until irrevocable payment in full of the
Obligations. Any money received by the Guarantor in violation of this Section
shall be held in trust by the Guarantor for the benefit of the Lenders and the
Administrative Agent. If a claim is ever made upon the Lenders and the
Administrative Agent, or any of them, for the repayment or recovery of any
amount or amounts received by any of them in payment of any of the Obligations
and such Person repays all or part of such amount by reason of (a) any judgment,
decree, or order of any court or administrative body having jurisdiction over
such Person or any of its property, or (b) any good faith settlement or
compromise of any such claim effected by such Person with any such claimant,
including the Borrower, then in such event the Guarantor agrees that any such
judgment, decree, order, settlement, or compromise shall be binding upon the
Guarantor, notwithstanding any revocation hereof or the cancellation of any
promissory note or other instrument evidencing any of the Obligations, and the
Guarantor shall be and remain obligated to such Person hereunder for the amount
so repaid or recovered to the same extent as if such amount had never originally
been received by such Person.
11. ASSIGNMENT BY LENDERS OR ADMINISTRATIVE AGENT. To the extent
permitted under the Loan Agreement, the Lenders and the Administrative Agent may
each, and without notice of any kind, sell, assign, or transfer all or any of
the Obligations, and in such event each and every immediate and successive
assignee, transferee, or holder of all or any of the Obligations, shall have the
right to enforce this Guaranty, by suit or otherwise, for the benefit of such
assignee, transferee or holder as fully as if such assignee, transferee, or
holder were herein by name specifically given such rights, powers and benefits.
12. REMEDIES CUMULATIVE. No delay by the Lenders and the Administrative
Agent, or any of them, in the exercise of any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by the Lenders and the
Administrative Agent, or any of them, of any right or remedy shall preclude
other or further exercise thereof or the exercise of any other right or remedy.
No action by the Lenders and the Administrative Agent, or any of them, permitted
hereunder shall in any way impair or affect this Guaranty.
5
<PAGE>
For the purpose of this Guaranty, the Obligations shall include, without
limitation, all Obligations of the Borrower to the Lenders and the
Administrative Agent, notwithstanding any right or power of any third party,
individually or in the name of the Borrower or any other Person, to assert any
claim or defense as to the invalidity or unenforceability of any such
Obligation, and no such claim or defense shall impair or affect the obligations
of the Guarantor hereunder.
13. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon the
Guarantor, its successors and assigns and inure to the benefit of the successors
and assigns of the Lenders and the Administrative Agent. The Guarantor shall
not assign its rights or obligations under this Guaranty without the consent of
the Administrative Agent and all the Lenders, nor shall the Guarantor amend this
Guaranty, without the consent of the Majority Lenders.
14. MISCELLANEOUS. This is a Guaranty of payment and not of collection.
In the event of a demand upon the Guarantor under this Guaranty, the Guarantor
shall be held and bound to the Lenders and the Administrative Agent directly as
debtor in respect of the payment of the amounts hereby guaranteed. All
reasonable costs and expenses, including attorneys' fees and expenses, incurred
by the Lenders and the Administrative Agent, or any of them, in obtaining
performance of or collecting payments due under this Guaranty shall be deemed
part of the Obligations guaranteed hereby. Any notice or demand which the
Lenders and the Administrative Agent, or any of them, may wish to give shall be
served upon the Guarantor in the fashion prescribed for notices in Section 11.1
of the Loan Agreement in care of the Borrower at the address for the Borrower
set forth in or otherwise provided pursuant to Section 11.1 of the Loan
Agreement, and the notice so sent shall be deemed to be served as set forth in
Section 11.1 of the Loan Agreement.
15. LOANS BENEFIT GUARANTOR. The Guarantor expressly represents and
acknowledges that any financial accommodations by the Lenders and the
Administrative Agent, or any of them, to the Borrower, including, without
limitation, the extension of the Loans, are and will be of direct interest,
benefit and advantage to the Guarantor.
16. SOLVENCY. The Guarantor expressly represents and warrants that as of
the date hereof and after giving effect to the transactions contemplated by the
Loan Documents (i) the property of the Guarantor, at a fair valuation, will
exceed its debt; (ii) the capital of the Guarantor will not be unreasonably
small to conduct its business; (iii) the Guarantor will not have incurred debts,
or have intended to incur debts, beyond its ability to pay such debts as they
mature; and (iv) the present fair salable value of the assets of the Guarantor
will be materially greater than the amount that will be required to pay its
probable liabilities (including debts) as they become absolute and matured. For
purposes of this Section 16 hereof, "debt" means any liability on a claim, and
"claim" means (a) the right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent,
6
<PAGE>
matured, unmatured, undisputed, legal, equitable, secured or unsecured, or
(b) the right to an equitable remedy for breach of performance if such breach
gives rise to a right to payment, whether or not such right to an equitable
remedy is reduced to judgment, fixed, contingent, matured, unmatured,
undisputed, secured or unsecured.
17. VISITS AND INSPECTIONS. The Guarantor covenants and agrees that so
long as any amount is owing on account of Obligations or otherwise pursuant to
this Guaranty, the Guarantor shall permit representatives of the Lenders and the
Administrative Agent, or any of them, to visit and inspect properties of the
Guarantor during normal business hours after reasonable notice, inspect the
Guarantor's books and records and discuss with the principal officers of the
Guarantor its businesses, assets, liabilities, financial positions, results of
operations and business prospects.
18. GOVERNING LAW. This Guaranty shall be construed in accordance with
and governed by the internal laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
19. JURISDICTION AND VENUE. If any action or proceeding shall be brought
by the Administrative Agent in order to enforce any right or remedy under this
Guaranty, the Guarantor hereby consents 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 Guaranty. The Guarantor
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, as set forth in or otherwise provided pursuant to Section 11.1 of the
Loan Agreement, 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 Guarantor 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.
20. WAIVER OF JURY TRIAL. The Guarantor waives any right to a trial by
jury in any proceeding arising out of this Guaranty.
21. TIME OF THE ESSENCE. Time is of the essence with regard to the
Guarantor's performance of its obligations hereunder.
22. ADMINISTRATIVE AGENT. Each reference herein to any right granted to,
benefit conferred upon or power exercisable by the "Administrative Agent" shall
be a reference to the Administrative Agent for the benefit of itself and all the
Lenders, and each action taken or right exercised hereunder shall be deemed to
have been so taken or exercised by the Administrative Agent for the benefit of
and on behalf of itself and all the Lenders.
7
<PAGE>
23. RATIFICATIONS. The Guarantor hereby ratifies and affirms each
representation, warranty, covenant and other agreement made on its behalf by the
Borrower in the Loan Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
8
<PAGE>
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
by its Authorized Signatory as of the date first above written.
[NAME OF SUBSIDIARY], a ________________
By:
------------------------------------
Title:
----------------------------
1
<PAGE>
EXHIBIT 10.1(f)
EXHIBIT H
FORM OF SUBSIDIARY PLEDGE AGREEMENT
[NAME OF SUBSIDIARY]
THIS SUBSIDIARY PLEDGE AGREEMENT (the "Agreement") is entered into as of
the ___ day of ________, _____, by and between [NAME OF SUBSIDIARY], a
__________________ (the "Pledgor"), and TORONTO DOMINION (TEXAS), INC., as
administrative agent (the "Administrative Agent"), for itself, the Lenders (as
defined in the Loan Agreement defined below) and the Arranging Agent (as defined
in the Loan Agreement defined below).
W I T N E S S E T H:
WHEREAS, RURAL CELLULAR CORPORATION, a Minnesota corporation (the
"Borrower"), the Lenders, the Arranging Agent, and the Administrative Agent are
all parties to that certain Amended and Restated Loan Agreement dated as of even
date herewith (as amended, modified, restated, and supplemented from time to
time, the "Loan Agreement"); and
WHEREAS, pursuant to the terms of the Loan Agreement, the Pledgor is
required to execute and deliver this Agreement; and
WHEREAS, the Pledgor is a Subsidiary of the Borrower and is engaged in the
business of owning and operating Cellular Systems (as defined in the Loan
Agreement) as an integrated operation with the Borrower and its other
Subsidiaries (as defined in the Loan Agreement); and
WHEREAS, the Pledgor has determined that its execution, delivery, and
performance of this Agreement directly benefit, and are within the corporate
purposes and in the best interests of the Pledgor; and
WHEREAS, to secure the payment and performance of, among other things, the
obligations of the Pledgor arising from that certain Subsidiary Guaranty of even
date herewith (the "Subsidiary Guaranty"), the Pledgor and the Administrative
Agent (for itself and on behalf of the Lenders and the Arranging Agent) have
agreed that the shares of capital stock (the "Stock") owned by the Pledgor in
each of the Subsidiaries of the Pledgor listed on SCHEDULE 1 attached hereto
(the "Subsidiaries") shall be pledged by the Pledgor to the
<PAGE>
Administrative Agent (for itself and on behalf of the Lenders and the Arranging
Agent) to secure the Obligations (as defined below);
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement to the extent not
otherwise defined or limited herein, and further agree as follows:
1. WARRANTY. The Pledgor hereby represents and warrants to the
Administrative Agent and the Lenders that, except for the security interest
created hereby, the Pledgor owns the Stock, which constitutes the percentage of
the issued and outstanding stock of the Subsidiaries as set forth on SCHEDULE 1
attached hereto, free and clear of all Liens, that the Stock is duly issued,
fully paid and non-assessable, and that the Pledgor has the unencumbered right
to pledge the Stock. In addition, Pledgor represents and covenants as follows:
(1) the Stock represents all of the Pledgor's shares of capital stock in any
Subsidiary; (2) upon possession of the Stock by the Administrative Agent, the
Administrative Agent shall have a valid and perfected first priority security
interest in the Stock, securing the payment of the Obligations; and (3) except
as noted on SCHEDULE 2 attached hereto, the Stock represents all the outstanding
shares of stock issued by any Subsidiary of the Pledgor.
2. SECURITY INTEREST. The Pledgor hereby unconditionally grants and
assigns to the Administrative Agent, for itself and on behalf of the Lenders,
and their respective successors and assigns, a continuing security interest in
and security title to the Stock and any other shares of capital stock of any
Subsidiary of the Pledgor obtained in the future, and in each case, all
certificates representing such shares, all rights, options, warrants, stock or
other securities, or other property which may hereafter be received, receivable,
or distributed in respect of the Stock, together with all proceeds of the
foregoing, including, without limitation, all dividends, cash, notes, securities
or other property from time to time acquired, receivable or otherwise
distributed in respect of, or in exchange for, the foregoing, all of which shall
constitute "Stock" hereunder. The Pledgor has delivered to and deposited with
the Administrative Agent herewith all of its right, title, and interest in and
to the Stock, together with certificates representing the Stock, and undated
stock powers endorsed in blank, as security for the payment and performance of
all of the obligations of the Pledgor and any other obligor to the
Administrative Agent, the Lenders, or any of them, under this Agreement and the
Subsidiary Guaranty and any extensions, renewals or amendments of any of the
foregoing, however created, acquired, arising or evidenced, whether direct or
indirect, absolute or contingent, now or hereafter existing, or due or to become
due (the "Obligations"); it being the intention of the parties hereto that
beneficial ownership of the Stock, including, without limitation, all voting,
consensual and dividend rights, shall remain in the Pledgor until the occurrence
of an Event of Default and until the Administrative Agent
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shall notify the Pledgor of the Administrative Agent's exercise of voting and
dividend rights to the Stock pursuant to Section 9 hereof.
3. ADDITIONAL SHARES. In the event that, during the term of this
Agreement:
(a) any stock dividend, stock split, reclassification, readjustment,
or other change is declared or made in the capital structure of any
Subsidiary, or any new stock is issued by such Subsidiary, all new,
substituted, and additional shares, or other securities, shall be issued to
the Pledgor and shall be promptly delivered to the Administrative Agent,
together with undated stock powers endorsed in blank by the Pledgor, and
shall thereupon constitute Stock to be held by the Administrative Agent
under the terms of this Agreement; and
(b) any subscriptions, warrants, or any other rights or options shall
be issued in connection with the Stock, all new stock, or other securities
acquired through such subscriptions, warrants, rights or options by the
Pledgor shall be promptly delivered to the Administrative Agent, together
with undated Stock powers endorsed in blank, and shall thereupon constitute
Stock to be held by the Administrative Agent under the terms of this
Agreement.
4. DEFAULT. In the event of the occurrence of an Event of Default and so
long as any such Event of Default is continuing, subject to Section 13 hereof,
the Administrative Agent may sell or otherwise dispose of the Stock at a public
or private sale or make other commercially reasonable disposition of the Stock
or any portion thereof after ten (10) days' notice to the Pledgor, the
Administrative Agent and the Lenders, or any of them, may purchase the Stock or
any portion thereof at any public sale. The proceeds of the public or private
sale or other disposition shall be applied first to the costs of the
Administrative Agent incurred in connection with the sale, expressly including,
without limitation, any costs under Section 7 hereof, and then as provided in
the Loan Agreement. In the event the proceeds of the sale or other disposition
of the Stock are insufficient to satisfy the Obligations, the Pledgor shall
remain liable for any such deficiency. The Pledgor waives the rights of equity
of redemption, appraisal, notice of acceptance, presentment, demand, and
marshalling, to the extent applicable.
5. ADDITIONAL RIGHTS OF SECURED PARTY. In addition to its rights and
privileges under this Agreement, the Administrative Agent, on behalf of itself
and the Lenders, shall have all the rights, powers and privileges of a secured
party under the Uniform Commercial Code as in effect in any applicable
jurisdiction and other Applicable Law.
6. RETURN OF STOCK TO THE PLEDGOR. Upon payment in full of all principal
and interest on the Notes, full performance by the Borrower of all covenants,
undertakings and obligations under the Loan Agreement and the other Loan
Documents, and satisfaction in full
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<PAGE>
of any other Obligations, other than the Obligations which survive the
termination of the Loan Agreement as provided in Section 11.16 of the Loan
Agreement, and after such time as the Lenders shall have no obligation to make
any further Advances to the Borrower, this Agreement shall terminate and the
Administrative Agent shall return the remaining Stock and all rights received by
the Administrative Agent as a result of its possessory interest in the Stock to
the Pledgor.
7. DISPOSITION OF STOCK BY ADMINISTRATIVE AGENT. The Stock is not
registered or qualified under the various federal or state securities laws of
the United States and disposition thereof after an Event of Default may be
restricted to one or more private (instead of public) sales in view of the lack
of such registration. The Pledgor understands that upon such disposition, the
Administrative Agent may approach only a restricted number of potential
purchasers and further understands that a sale under such circumstances may
yield a lower price for the Stock than if the Stock were registered and
qualified pursuant to federal and state securities laws and sold on the open
market. The Pledgor, therefore, agrees that:
(a) if the Administrative Agent shall, pursuant to the terms of this
Agreement, sell or cause the Stock or any portion thereof to be sold at a
private sale, the Administrative Agent shall have the right to rely upon
the advice and opinion of any national brokerage or investment firm having
recognized expertise and experience in connection with shares of cellular
mobile radio telephone (but shall not be obligated to seek such advice and
the failure to do so shall not be considered in determining the commercial
reasonableness of such action) as to the best manner in which to expose the
Stock for sale and as to the best price reasonably obtainable at the
private sale thereof; and
(b) that such reliance shall be conclusive evidence that the
Administrative Agent has handled such disposition in a commercially
reasonable manner.
9. PLEDGOR'S OBLIGATIONS ABSOLUTE. The obligations of the Pledgor under
this Agreement shall be direct and immediate and not conditional or contingent
upon the pursuit of any remedies against the Borrower or any other Person, nor
against other security or liens available to the Administrative Agent or any
Lender. The Pledgor hereby waives any right to require that an action be
brought against any other Person or to require that resort be had to any
security or to any balance of any deposit account or credit on the books of the
Administrative Agent or any of the Lenders in favor of any other Person prior to
the exercise of remedies hereunder, or to require action hereunder prior to
resort by the Administrative Agent to any other security or collateral for the
Obligations. No amendment, modification, waiver, 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 Pledgor or any other obligor to the Lenders and the
Administrative
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Agent, or any of them, nor additional advances made by the Lenders and the
Administrative Agent, or any of them, to the Borrower, nor the taking of further
security, nor the retaking or re-delivery or release of the Collateral to the
Borrower or any other person or any other collateral or guaranty by the Lenders
and the Administrative Agent, or any of them, nor any lack of validity or
enforceability of any Loan Document or any term thereof, nor any other act of
the Lenders and the Administrative Agent, or any of them, shall release the
Pledgor from any Obligation, except a release or discharge executed in writing
by the Administrative Agent in accordance with the Loan Agreement with respect
to such Obligation or upon full payment and satisfaction of all Obligations.
Neither the Administrative Agent nor any Lender 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
Administrative Agent in accordance with the Loan Agreement and then only to the
extent therein set forth. A waiver by the Lenders and the Administrative Agent,
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.
10. VOTING RIGHTS.
(a) For so long as any Obligations remain unpaid, after and during
the continuation of an Event of Default, but subject to the provisions of
Section 13 hereof, (i) the Administrative Agent may, upon ten (10) days'
prior written notice to the Pledgor of its intention to do so, exercise all
voting rights, and all other ownership or consensual rights of the Stock,
but under no circumstances is the Administrative Agent obligated by the
terms of this Agreement to exercise such rights, and (ii) the Pledgor
hereby appoints the Administrative Agent, which appointment shall be
effective on the tenth (10th) day following the giving of notice by the
Administrative Agent as provided in the foregoing Section 9(a)(i), the
Pledgor's true and lawful attorney-in-fact and IRREVOCABLE PROXY to vote
the Stock in any manner the Administrative Agent deems advisable for or
against all matters submitted or which may be submitted to a vote of
shareholders. The power-of-attorney granted hereby is coupled with an
interest and shall be irrevocable.
(b) For so long as the Pledgor shall have the right to vote the
Stock, the Pledgor covenants and agrees that it will not, without the prior
written consent of the Administrative Agent, vote or take any consensual
action with respect to the Stock which would constitute an Event of
Default.
11. NOTICES. All notices and other communications required or permitted
hereunder shall be in writing, and shall be given in the fashion set forth in
Section 11.1 of the Loan Agreement, and with respect to the Pledgor, at the
address for the Borrower set forth in or otherwise provided pursuant to Section
11.1 of the Loan Agreement.
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12. BINDING AGREEMENT. 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 between the parties with respect to the matters addressed
herein and may not be modified except by a writing executed by the
Administrative Agent and the Pledgor and delivered by the Administrative Agent
to the Pledgor.
13. SEVERABILITY. If any paragraph or part thereof 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.
14. FCC COMPLIANCE. Notwithstanding anything herein which may be
construed to the contrary, no action shall be taken by the Administrative Agent
which may require the consent or approval of the FCC, and the proxy granted in
Section 9(a) hereof shall not become effective, unless and until all
requirements of the Communications Act, requiring the consent to or approval of
such action by the FCC have been satisfied. The Pledgor covenants that,
following and during the continuance of an Event of Default, upon request of the
Administrative Agent, it will cause to be filed such applications and take such
other action as may be requested by the Administrative Agent to obtain consent
or approval of the FCC to any action contemplated by this Agreement and to give
effect to the security interest of the Administrative 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 Communications Act.
15. COUNTERPARTS. This Agreement may be executed in multiple
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.
16. ADMINISTRATIVE AGENT. Each reference herein to any right granted to,
benefit conferred upon or power exercisable by the "Administrative Agent" shall
be a reference to the Administrative Agent for the benefit of all the Lenders,
and each action taken or right exercised hereunder shall be deemed to have been
so taken or exercised by the Administrative Agent for the benefit of and on
behalf of all the Lenders.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned parties hereto have executed this
Agreement by and through their duly authorized officers, as of the day and year
first above written.
PLEDGOR: [NAME OF SUBSIDIARY], a __________
-----------------------------------
By:
------------------------------
Title:
-----------------------------
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By:
-------------------------------
Title:
----------------------------
Schedule 1 - Shares Pledged Pursuant to Pledge Agreement
Schedule 2 - Outstanding Shares of Stock
<PAGE>
EXHIBIT 10.1(g)
EXHIBIT I
FORM OF SUBSIDIARY SECURITY AGREEMENT
[NAME OF SUBSIDIARY]
THIS SUBSIDIARY SECURITY AGREEMENT (the "Agreement") dated as of the ____
day of ________, _____ is made by and between [NAME OF SUBSIDIARY], a
________________________ (the "Subsidiary"), and TORONTO DOMINION (TEXAS), INC.,
as administrative agent (the "Administrative Agent"), for itself, the Lenders
(as defined in the Loan Agreement defined below) and the Arranging Agent (as
defined in the Loan Agreement defined below).
W I T N E S S E T H:
WHEREAS, RURAL CELLULAR CORPORATION, a Minnesota corporation (the
"Borrower"), the Lenders, the Arranging Agent, and the Administrative Agent are
all parties to that certain Amended and Restated Loan Agreement dated as of even
date herewith (as amended, modified, restated, and supplemented from time to
time, the "Loan Agreement"); and
WHEREAS, pursuant to the terms and conditions of the Loan Agreement, the
Subsidiary is required to execute and deliver this Agreement; and
WHEREAS, the Subsidiary is engaged in the business of owning and operating
Cellular Systems (as defined in the Loan Agreement) as an integrated operation
with the Borrower and its other Subsidiaries (as defined in the Loan Agreement);
and
WHEREAS, the Subsidiary has determined that its execution, delivery and
performance of this Agreement directly benefit, and are within the corporate
purposes and in the best interests of the Subsidiary;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that capitalized terms used herein shall
have the meanings ascribed to them in the Loan Agreement to the extent not
otherwise defined or limited herein, and further agree as follows:
The Subsidiary, as a direct Subsidiary of the Borrower, hereby
unconditionally grants and assigns to the Administrative Agent (for itself and
on behalf of the Lenders and the
<PAGE>
Arranging Agent) a continuing security interest in and security title to
(hereinafter referred to as the "Security Interest") 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
Subsidiary, including:
INVENTORY
All of the 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 the Subsidiary's business (the "Equipment");
CONTRACTS AND LEASES
All assignable (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 Subsidiary is a party, whether now
existing or hereafter arising, including, without limitation, those listed on
SCHEDULE 1 hereto (the "Contracts"); (b) lease agreements for personal property
to which the Subsidiary is a party, whether now existing or hereafter arising,
including, without limitation, those listed on SCHEDULE 2 hereto (the "Leases");
and (c) other
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contracts and contractual rights, remedies or provisions now existing or
hereafter arising in favor of the 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");
MEMBERSHIP INTERESTS
All membership rights, privileges and interests of the Borrower in any
Person, including, without limitation, (a) the right to receive distributions at
any time or from time to time in cash or other property, (b) the right to any
specific property of such Person, if any, and (c) all of the Borrower's right to
participate in the management of such Person (collectively, the "MEMBERSHIP
INTERESTS");
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 Subsidiary's rights to operate and maintain a cellular
telecommunications or similar business, including, without limitation, the
Licenses, all as more particularly described on SCHEDULE 3 attached hereto (the
"Licenses");
FURNITURE AND FIXTURES
All furniture and fixtures in which the Subsidiary has an interest (the
"Furniture and Fixtures");
DEPOSIT ACCOUNT
The Deposit Account under Section 2.11(c) of the Loan Agreement and all
certificates and instruments, if any, from time to time representing the Deposit
Account together with all investments, notes, and cash, from time to time
therein or arising therefrom and all interest, dividends, cash, and other
property from time to time arising therefrom (hereinafter the "Deposit
Account");
MISCELLANEOUS ITEMS
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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 (the "Miscellaneous Items"); and
PROCEEDS
All 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, including, without limitation, the proceeds of the
sale 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 Subsidiary, any rebates or refunds,
whether for taxes or otherwise, together with all proceeds of any such proceeds
(the "Proceeds").
The Inventory, Accounts, Equipment, Contracts, Other Contracts, Leases,
Intangibles, Membership Interests, Licenses, Furniture and Fixtures, Deposit
Account, 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 the Subsidiary to the Lenders and the Administrative Agent,
or any of them, under that certain Subsidiary Guaranty of even date given by the
Subsidiary for the benefit of the Lenders and the Administrative Agent, 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").
1. FURTHER ASSURANCES. The Subsidiary hereby authorizes the
Administrative Agent to file such financing statements and such other documents
as the Administrative Agent may deem necessary or desirable to protect or
perfect the interest of the Lenders and the Administrative Agent in the
Collateral, and the Subsidiary further irrevocably appoints the Administrative
Agent as its attorney-in-fact, with a power of attorney to execute on behalf of
the Subsidiary such UCC financing statement forms as the Administrative 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, the Subsidiary agrees to do,
execute and deliver or cause to be done, executed and delivered all such further
acts, documents and things as the Administrative Agent may reasonably require
for the purpose of perfecting or protecting the rights of the Lenders and the
Administrative Agent hereunder or otherwise giving effect to this Agreement, all
promptly upon request therefor.
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2. REPRESENTATIONS AND WARRANTIES. The Subsidiary represents and
warrants to the Lenders and the Administrative Agent 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 Subsidiary's Articles of Incorporation or
By-Laws as currently in effect, or any order, rule or regulation applicable
to the Subsidiary of any court or of any federal or state regulatory body
or administrative agency or other governmental body having jurisdiction
over the 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 the Subsidiary is a party or by
which it is bound or affected;
(b) the Subsidiary 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 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 the
Subsidiary), and
(iii) enforcement as to the Licenses is limited by FCC rules and
regulations restricting the transfer of such Licenses.
(c) SCHEDULE 1 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 Subsidiary, and the Subsidiary will furnish copies thereof
to the Lenders and the Administrative Agent upon the request of the
Administrative Agent;
(d) SCHEDULE 2 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 the Subsidiary is a party in effect on the date hereof,
and the Subsidiary will furnish copies thereof to the
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Lenders and the Administrative Agent upon the request of the Administrative
Agent; and
(e) SCHEDULE 3 attached hereto and incorporated herein by this
reference sets forth a complete and accurate list of the Licenses in effect
on the date hereof.
3. REPRESENTATIONS AND WARRANTIES CONCERNING COLLATERAL. The Subsidiary
further represents and warrants that (a) the Security Interest in the Collateral
granted hereunder shall constitute at all times a valid first priority security
interest (subject only to Permitted Liens), vested in the Administrative Agent,
in and upon the Collateral, free of any Liens except for Permitted Liens,
(b) the location of the Inventory and the Equipment is as set forth on SCHEDULE
4 hereto, and (c) none of the Accounts are represented by promissory notes or
other instruments. The 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.
4. LOCATION OF BOOKS AND RECORDS. The 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, except as listed on SCHEDULE 4 hereto. The 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 Administrative Agent at least thirty (30)
days prior to the creation of any new address for the keeping of such records.
The Subsidiary further agrees that it shall promptly advise the Administrative
Agent, in writing making reference to this Section 4 hereof, 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 or of its chief executive officer.
5. COLLATERAL NOT FIXTURES. 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.
6. COVENANTS REGARDING COLLATERAL. Any and all injury to, or loss or
destruction of, the Collateral shall be at the Subsidiary's risk, and shall not
release the Subsidiary from its obligations hereunder. The 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. The Subsidiary agrees to maintain in force such insurance with
respect to the Collateral as is required under the Loan Agreement. The
Subsidiary agrees to pay all required taxes, liens, and assessments upon the
Collateral, its use or operation, as required under the Loan Agreement. The
Subsidiary further agrees that the Administrative Agent may, but shall in no
event be obligated to, insure any of the Collateral in such form and amount as
the Administrative Agent may deem necessary or desirable if the Subsidiary
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<PAGE>
fails to obtain insurance as required by the Loan Agreement, and that the
Administrative Agent may pay or discharge any taxes or Liens (which are not
Permitted Liens) on any of the Collateral, and the Subsidiary agrees to pay any
such sum so expended by the Administrative Agent, with interest at the Default
Rate, and such amounts shall be deemed to be a part of the Obligations secured
by the Collateral under the terms of this Agreement.
7. COVENANTS REGARDING CONTRACTS, OTHER CONTRACTS AND LEASES. The
Subsidiary shall (a) fulfill, perform and observe each and every material
condition and covenant contained in any of the Contracts, the Other Contracts or
the Leases, (b) give prompt notice to the Administrative Agent of any claim of
material default under any Contract, Other Contract or Lease given to the
Subsidiary or by the Subsidiary, (c) at the sole cost and expense of the
Subsidiary, enforce the performance and observance of each and every material
covenant and condition of the Contracts, the Other Contracts and the Leases to
which it is a party, and (d) appear in and defend any action growing out of or
in any manner connected with any Contract, Other Contract or Lease to which it
is a party. The rights and interests granted to the Administrative Agent
hereunder include all of the Subsidiary'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 Subsidiary shall
have the right to exercise these rights in a fashion consistent with this
Agreement prior to any Event of Default and that these rights shall not be
exercised by the Administrative Agent prior to an Event of Default.
8. REMEDIES. Upon the occurrence and during the continuation of an Event
of Default, the Lenders and the Administrative Agent shall have such rights and
remedies as are set forth in the Loan Agreement, the other Loan Documents 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
Administrative Agent, or any of them, at law or in equity. The 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 Section 19 hereof at least
ten (10) days prior to such disposition. The Administrative Agent shall have
the right to the appointment of a receiver for the properties and assets of the
Subsidiary, and the Subsidiary hereby consents to such rights and to such
appointment and hereby waives any objection it may have thereto and hereby
waives the right to have a bond or other security posted by the Administrative
Agent or any other Person in connection therewith. The Subsidiary agrees, after
the occurrence of an Event of Default, to take any actions that the
Administrative Agent may reasonably request in order to enable the
Administrative Agent to obtain and enjoy the full rights and benefits granted to
the Administrative Agent under this Agreement and the other Loan Documents.
Without limiting the generality of the foregoing, the Subsidiary shall, at the
Subsidiary's cost and expense, use its best efforts to assist in obtaining all
approvals of the FCC which are then
7
<PAGE>
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 Administrative Agent's request,
prepare, sign and file with the FCC 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 rules for
approval of any sale or transfer of the Administrative Agent's remedies under
this Agreement. The Administrative 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 Administrative Agent, all as
permitted by Applicable Law. All amounts realized or collected through the
exercise of remedies hereunder shall be applied to the Obligations as provided
in the Loan Agreement.
9. NOTIFICATION OF ACCOUNT DEBTORS. Upon the occurrence and during the
continuation of an Event of Default, the Administrative Agent may notify the
account debtors that all payments with respect to Accounts are to be paid
directly to the Administrative Agent and any amount thereafter paid to the
Subsidiary shall be received in trust by the Subsidiary for the benefit of the
Administrative Agent and segregated from other funds of the Subsidiary and paid
over to the Administrative Agent in the form received (together with any
necessary endorsements).
10. REMEDIES OF ADMINISTRATIVE AGENT. Upon the occurrence of an Event of
Default and during the continuation thereof, the Administrative Agent or its
designee may proceed to perform any and all of the obligations of the Subsidiary
contained in any of the Contracts, Other Contracts or Leases and exercise any
and all rights of the Subsidiary therein contained as fully as the Subsidiary
itself could. The Subsidiary hereby appoints the Administrative Agent its
attorney-in-fact, with power of substitution, to take such action, execute such
documents, and perform such work as the Administrative Agent may deem
appropriate in exercise of the rights and remedies granted the Lenders and the
Administrative Agent, or any of them, herein or in any other Loan Document. The
powers herein granted shall include, but not be limited to, powers to: (a) sue
on the Contracts, the Other Contracts or the Leases; (b) seek all governmental
approvals (other than FCC approvals) required for the operation of the business
of the Subsidiary; (c) modify or terminate the Contracts, the Other Contracts
and the Leases; and (d) 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. ADDITIONAL REMEDIES. Upon the occurrence of an Event of Default and
during the continuation thereof, should the 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 Administrative Agent may,
but without obligation to do so and without
8
<PAGE>
releasing the Subsidiary from its obligation to do so, perform such covenant or
condition and, to the extent that the Administrative 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 Administrative Agent at the Default
Rate. Neither the Administrative Agent nor any Lender shall be obliged to
perform or discharge any obligation of the 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,
the Subsidiary agrees to indemnify and hold the Administrative Agent and each
Lender harmless 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 Subsidiary by reason of an act of
the Administrative Agent or any Lender under any of the terms of this Agreement
or under the Contracts, the Other Contracts or the Leases.
12. ADMINISTRATIVE AGENT MAY COLLECT ACCOUNTS. The Subsidiary hereby
further appoints the Administrative Agent as its attorney-in-fact, with power of
substitution, with authority to collect all Accounts, to endorse the name of the
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 Administrative Agent, or any
of them, and generally to do such other things and acts in the name of the
Subsidiary with respect to the Collateral as are necessary or appropriate to
protect or enforce the rights hereunder of the Lenders and the Administrative
Agent. The Subsidiary further authorizes the Administrative Agent, effective
upon the occurrence of an Event of Default and during the continuation thereof,
to compromise and settle or to sell, assign or transfer or to ask, collect,
receive or issue any and all claims possessed by the Subsidiary which constitute
a portion of the Collateral, all in the name of the Subsidiary. After deducting
all reasonable expenses and charges (including the Administrative Agent's
attorneys' fees) of retaking, keeping, storing, and selling the Collateral, the
Administrative 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 Subsidiary agrees that a failure to so notify the Administrative Agent shall
be a waiver and bar to any subsequent claim for any such property. The
Subsidiary agrees that if steps are taken by the Administrative Agent to enforce
its rights hereunder, or to realize upon any of the Collateral, the Subsidiary
shall pay to the Administrative Agent the amount of the Administrative Agent's
costs, including attorneys' fees, and the Subsidiary's obligation to pay such
amounts shall be deemed to be a part of the Obligations secured hereunder. Upon
the occurrence and during the continuation of an Event of Default, the
Subsidiary shall segregate all proceeds of any Collateral from other assets of
the Subsidiary.
9
<PAGE>
13. INDEMNIFICATION. The Subsidiary shall indemnify and hold harmless the
Administrative Agent, each Lender, 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 the
Administrative Agent, each Lender, 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.
14. REMEDIES CUMULATIVE. The Subsidiary agrees that the rights of the
Lenders and the Administrative Agent, 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, the Administrative Agent, the
Subsidiary and the other obligors thereunder, or any of them, shall be
cumulative, and that the Administrative Agent and each Lender 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 Subsidiary
further expressly agrees that the Lenders and the Administrative Agent shall in
no event be under any obligation to resort to any Collateral secured hereby
prior to exercising any other rights that the Lenders and the Administrative
Agent, or any of them, may have against the Subsidiary or its property, nor
shall the Lenders and the Administrative Agent be obliged to resort to any other
collateral or security for the Obligations, other than the Collateral, prior to
any exercise of the Administrative Agent's rights against the Subsidiary and its
property hereunder.
15. OBLIGATIONS COMMERCIAL IN NATURE. The Subsidiary hereby acknowledges
that the Obligations arose out of a commercial transaction, and agrees that if
an Event of Default shall occur and be continuing, the Administrative 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 Administrative Agent, or any
of them, prior to seizure by the Administrative Agent or any of its transferees,
assigns or successors in interest of the Collateral or any portion thereof.
16. AMENDMENTS AND WAIVERS. No amendment, modification, waiver, 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 Subsidiary or any other obligor to the Lenders and
the Administrative Agent, or any of them, nor additional advances made by the
Lenders and the Administrative Agent, or any of them, to the Borrower, nor the
taking of further security, nor the retaking or re-delivery or release of the
Collateral to the Subsidiary by the Lenders and the Administrative Agent, or any
of them, nor any lack of validity or enforceability of any Loan Document or any
term thereof, nor any other act of the Lenders and the Administrative Agent, or
any of them, shall release the Subsidiary from any Obligation, except a release
or discharge executed in writing
10
<PAGE>
by the Administrative Agent in accordance with the Loan Agreement with respect
to such Obligation or upon full payment and satisfaction of all Obligations and
termination of the Commitment. Neither the Administrative Agent nor any Lender
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 Administrative Agent or any Lender, as the case may be, in
accordance with the Loan Agreement and then only to the extent therein set
forth. A waiver by the Lenders and the Administrative Agent, 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. ASSIGNMENT. The Subsidiary agrees that this Agreement or the rights
hereunder may in the discretion of the Lenders and the Administrative Agent, or
any of them, 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 or the Administrative Agent, the terms
"Lenders" and "Administrative Agent" wherever used herein shall be deemed, as
applicable, to refer to and include any such assignee.
18. SUCCESSORS AND ASSIGNS. This Agreement shall apply to and bind the
respective successors and permitted assigns of the Subsidiary and inure to the
benefit of the successors and permitted assigns of the Lenders and the
Administrative Agent.
19. NOTICES. 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
Administrative Agent, and in the fashion prescribed in Section 11.1 of the Loan
Agreement with respect to the Subsidiary to the address of the Borrower set
forth in or otherwise provided pursuant to the Loan Agreement.
20. GOVERNING LAW. 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 Subsidiary, the Lenders and the Administrative Agent
with respect to the matters addressed herein and may not be modified except by a
writing executed by the Administrative Agent and delivered to the Subsidiaries.
21. SEVERABILITY. 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
11
<PAGE>
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. FCC CONSENT. Notwithstanding anything herein which may be construed
to the contrary, no action shall be taken by the Administrative Agent with
respect to the Licenses issued by the FCC unless and until all requirements of
Applicable Law, including, without limitation, any required approval under the
Communications Act, including, without limitation, the provision for ten (10)
days notice to the FCC required by 47 C.F.R. Section 22.917(e), requiring the
consent to or approval of such action by the FCC or any governmental or other
authority, have been satisfied. The Subsidiary covenants that upon request of
the Administrative Agent it will cause to be filed such applications and take
such other action as may be requested by the Administrative Agent to obtain the
consent or approval of the FCC or any governmental or other authority which has
granted any License to the Subsidiary to any action contemplated by this
Agreement and to give effect to the Security Interest of the Administrative
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 Communications Act.
23. 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.
24. CHANGES IN APPLICABLE LAW. The parties acknowledge their intent that,
upon the occurrence of an Event of Default and during the continuance thereof,
the Administrative 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
Administrative Agent's rights of access to, or use or sale of, the Collateral,
or the procedures necessary to enable the Administrative Agent to obtain such
rights of access, use or sale, the Administrative Agent and the Subsidiary shall
amend this Agreement in such manner as the Administrative Agent shall reasonably
request in order to provide the Administrative Agent such rights to the greatest
extent possible consistent with Applicable Law and governmental policy.
25. ADMINISTRATIVE AGENT. Each reference herein to any right granted to,
benefit conferred upon or power exercisable by the "Administrative Agent" shall
be a reference to the Administrative Agent for the benefit of all the Lenders,
and each action taken or right exercised hereunder shall be deemed to have been
so taken or exercised by the Administrative Agent for the benefit of and on
behalf of all the Lenders.
12
<PAGE>
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13
<PAGE>
IN WITNESS WHEREOF, the undersigned have hereunto set their hands, by and
through their duly authorized representatives, as of the day and year first
written above.
SUBSIDIARY: [NAME OF SUBSIDIARY], a ____________
By:
---------------------------------
Title:
------------------------
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC.
By:
---------------------------------
Title:
-------------------------
SCHEDULES
Schedule 1 - Contracts
Schedule 2 - Leases
Schedule 3 - Licenses
Schedule 4 - List and Location of Inventory and Equipment
1
<PAGE>
EXHIBIT 10.1(h)
EXHIBIT J
FORM OF TERM LOAN NOTE
$________________ As of July 1, 1998
FOR VALUE RECEIVED, the undersigned, RURAL CELLULAR CORPORATION, a
Minnesota corporation (the "Borrower"), promises to pay to the order of
________________________________________ (hereinafter, together with its
successors and assigns, called the "Lender"), at the office of Toronto Dominion
(Texas), Inc. in Houston, Texas or such other place as the Lender may designate
in writing to the Borrower, the principal sum of
__________________________________________________ AND _____ /100s DOLLARS
($______________) in United States funds, PLUS interest as hereinafter provided.
Such Advances may be endorsed from time to time on the grid attached hereto, but
the failure to make such notations shall not affect the validity of the
Borrower's obligation to repay unpaid principal and interest hereunder.
All capitalized terms used herein shall have the meanings ascribed to them
in that certain Amended and Restated Loan Agreement dated as of even date
herewith (as amended, modified, restated, and supplemented from time to time,
the "Loan Agreement") by and among the Borrower, the financial institutions
parties thereto (together with their successors and assigns, the "Lenders"), TD
Securities (USA), Inc., as arranging agent (the "Arranging Agent"), and Toronto
Dominion (Texas), Inc., as administrative agent (the "Administrative Agent") for
the Lenders and the Arranging Agent, except to the extent such capitalized terms
are otherwise defined or limited herein.
All principal amounts and other amounts then outstanding hereunder shall be
due and payable on the Maturity Date, or such earlier date as payments of the
Term Loans shall be due, whether by acceleration or otherwise. The Borrower
shall also repay principal outstanding hereunder from time to time as provided
by Sections 2.5 and 2.7 of the Loan Agreement.
The Borrower shall be entitled to borrow, re-pay and reborrow the portion
of the Term Loan hereunder pursuant to the terms and conditions of the Loan
Agreement; PROVIDED, HOWEVER, that on and following the making of the initial
Advance under the Term Loan Commitment there shall be no increase in the
aggregate principal amount outstanding hereunder. Prepayment of the principal
amount of any Term Loan may be made only as provided in the Loan Agreement.
The Borrower hereby promises to pay interest on the unpaid principal amount
hereof as provided in Article 2 of the Loan Agreement. Interest under this Note
shall also be due
<PAGE>
and payable when this Note shall become due (whether at maturity, by reason of
acceleration or otherwise). Overdue principal and, to the extent permitted by
Applicable Law, overdue interest, shall bear interest at the Default Rate as
provided in the Loan Agreement.
In no event shall the amount of interest due or payable hereunder 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 Lender, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the 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 Lender 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.
All parties now or hereafter liable with respect to this Term Loan Note,
whether the Borrower, any guarantor, endorser, or any other Person or entity,
hereby waive presentment for payment, demand, notice of non-payment or dishonor,
protest and notice of protest.
No delay or omission on the part of the Lender or any holder hereof in
exercising its rights under this Term Loan Note, or delay or omission on the
part of the Arranging Agent, the Administrative Agent, the Majority Lenders or
the Lenders collectively, or any of them, in exercising its or their rights
under the Loan Agreement or under any other Loan Document, or course of conduct
relating thereto, shall operate as a waiver of such rights or any other right of
the Lender or any holder hereof, nor shall any waiver by the Arranging Agent,
the Administrative Agent, the Majority Lenders or the Lenders collectively, or
any of them, or any holder hereof, of any such right or rights on any one
occasion be deemed a bar to, or waiver of, the same right or rights on any
future occasion.
The Borrower promises to pay all reasonable costs of collection, including,
without limitation, reasonable attorneys' fees, should this Term Loan Note be
collected by or through an attorney-at-law or under advice therefrom.
Time is of the essence of this Term Loan Note.
This Term Loan Note evidences the Lender's portion of the Term Loans under,
and is entitled to the benefits and subject to the terms of, the Loan Agreement,
which contains provisions with respect to the acceleration of the maturity of
this Term Loan Note upon the happening of certain stated events, and provisions
for prepayment. This Term Loan Note is secured by and is also entitled to the
benefits of the Security Documents and any other agreement or instrument
providing collateral for the Term Loans, whether now or hereafter in existence,
and any filings, instruments, agreements, and documents related thereto and
providing collateral for the Term Loans.
2
<PAGE>
THIS TERM LOAN NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE>
IN WITNESS WHEREOF, the duly authorized signatory of the Borrower, as
Authorized Signatory, has executed this Term Loan Note as of the day and year
first above written.
RURAL CELLULAR CORPORATION, a Minnesota
corporation
By:
-----------------------------------
Title:
---------------------------
4
<PAGE>
ADVANCES
<TABLE>
<CAPTION>
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Amount of Type of Amount of Principal Notation
Date Advance Advance Paid or Prepaid Made By
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<S> <C> <C> <C> <C>
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</TABLE>
5
<PAGE>
EXHIBIT 10.1(i)
EXHIBIT K
FORM OF INCREMENTAL FACILITY NOTE
$___________________ As of _____, ____
FOR VALUE RECEIVED, the undersigned, RURAL CELLULAR CORPORATION, a
Minnesota corporation (the "Borrower"), promises to pay to the order of
________________________ (hereinafter, together with its successors and assigns,
called the "Lender"), at the office of Toronto Dominion (Texas), Inc. in
Houston, Texas or such other place as the Lender may designate in writing to the
Borrower, the principal sum of ____________________________________________ AND
___/100s DOLLARS ($__________________) of United States funds, or, if less, so
much thereof as may from time to time be advanced by the Lender to the Borrower
hereunder, PLUS interest as hereinafter provided. Such Incremental Facility
Advances may be endorsed from time to time on the grid attached hereto, but the
failure to make such notations shall not affect the validity of the Borrower's
obligation to repay unpaid principal and interest hereunder.
All capitalized terms used herein shall have the meanings ascribed to them
in that certain Amended and Restated Loan Agreement dated as of July 1, 1998 (as
amended, modified, restated, and supplemented from time to time, the "Loan
Agreement") by and among the Borrower, the financial institutions parties
thereto (together with their successors and assigns, the "Lenders"), TD
Securities (USA), Inc., as arranging agent (the "Arranging Agent"), and Toronto
Dominion (Texas), Inc., as administrative agent (the "Administrative Agent") for
the Lenders and the Arranging Agent, except to the extent such capitalized terms
are otherwise defined or limited herein.
All principal amounts and other Obligations then outstanding hereunder
shall be due and payable on the Incremental Facility Maturity Date (as defined
in the Notice of Incremental Facility Commitment), or such earlier date as
payments of the Incremental Facility Loans shall be due, whether by acceleration
or otherwise.
The Borrower shall be entitled to borrow, re-pay and re-borrow funds
hereunder pursuant to the Incremental Facility Commitment and subject to the
terms and conditions of the Loan Agreement. Prepayment of the principal amount
of any Incremental Facility Advances may be made only as provided in the Loan
Agreement.
The Borrower hereby promises to pay interest on the unpaid principal amount
hereof as provided in Article 2 of the Loan Agreement. Interest under this
Incremental Facility Note shall also be due and payable when this Incremental
Facility Note shall become due
<PAGE>
(whether at maturity, by reason of acceleration or otherwise). Overdue
principal and, to the extent permitted by Applicable Law, overdue interest,
shall bear interest at the Default Rate as provided in the Loan Agreement.
In no event shall the amount of interest due or payable hereunder 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 Lender, then such excess sum shall be credited as a payment of principal,
unless the Borrower shall notify the 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 Lender 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.
All parties now or hereafter liable with respect to this Incremental
Facility Note, whether the Borrower, any guarantor, endorser, or any other
Person or entity, hereby waive presentment for payment, demand, notice of
non-payment or dishonor, protest and notice of protest.
No delay or omission on the part of the Lender or any holder hereof in
exercising its rights under this Incremental Facility Note, or delay or omission
on the part of the Arranging Agent, the Administrative Agent, the Majority
Lenders or the Lenders collectively, or any of them, in exercising its or their
rights under the Loan Agreement or under any other Loan Document, or course of
conduct relating thereto, shall operate as a waiver of such rights or any other
right of the Lender or any holder hereof, nor shall any waiver by the Arranging
Agent, the Administrative Agent, the Majority Lenders or the Lenders
collectively, or any of them, or any holder hereof, of any such right or rights
on any one occasion be deemed a bar to, or waiver of, the same right or rights
on any future occasion.
The Borrower promises to pay all reasonable costs of collection, including
attorneys' fees, should this Incremental Facility Note be collected by or
through an attorney-at-law or under advice therefrom.
Time is of the essence of this Incremental Facility Note.
This Incremental Facility Note evidences the Lender's portion of the
Incremental Facility Advances under, and is entitled to the benefits and subject
to the terms of, the Loan Agreement and the Notice of Incremental Facility
Commitment, which contains provisions with respect to the acceleration of the
maturity of this Incremental Facility Note upon the happening of certain stated
events, and provisions for prepayment. This Incremental Facility Note is
secured by and is also entitled to the benefits of the Security Documents and
any other agreement or instrument providing collateral for the Incremental
Facility Advances, whether now or hereafter in existence, and any filings,
instruments, agreements, and documents related thereto and providing collateral
for the Incremental Facility Advances.
2
<PAGE>
THIS INCREMENTAL FACILITY NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE>
IN WITNESS WHEREOF, the duly authorized signatory of the Borrower, as
Authorized Signatory, has executed this Incremental Facility Note as of the day
and year first above written.
RURAL CELLULAR CORPORATION, a Minnesota
corporation
By:
-----------------------------------
Title:
---------------------------------
4
<PAGE>
INCREMENTAL FACILITY ADVANCES
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------
AMOUNT OF INCREMENTAL TYPE OF INCREMENTAL AMOUNT OF PRINCIPAL NOTATION
DATE FACILITY ADVANCE FACILITY ADVANCE PAID OR PREPAID MADE BY
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
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- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
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5
<PAGE>
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</TABLE>
6
<PAGE>
EXHIBIT 10.1(j)
EXHIBIT Q
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement is made and entered into as of
____________, ____, by and between ____________________________________ (the
"Assignor"), and _______________________________________ (the "Assignee").
RECITALS
A. RURAL CELLULAR CORPORATION, a Minnesota corporation (the "Borrower"),
the Assignor and certain other financial institutions (together with any other
person which becomes a 'Lender' under the Loan Agreement, as such term is
hereinafter defined, the "Lenders"), TD Securities (USA), Inc., as arranging
agent (the "Arranging Agent"), and Toronto Dominion (Texas), Inc., as
administrative agent (the "Administrative Agent") for the Lenders and the
Arranging Agent, are parties to a certain Amended and Restated Loan Agreement
dated as of July 1, 1998 (as amended, modified, restated, and supplemented from
time to time, the "Loan Agreement"). Pursuant to the Loan Agreement, the
Lenders have agreed to extend credit to the Borrower under the Commitment, of
which the Assignor's portion of the Commitment is the amount specified in Item 1
of SCHEDULE 1 hereto (the "Assignor's Commitment"). The principal amount of
outstanding Loans made by the Assignor to the Borrower pursuant to the
Assignor's Commitment is specified in Item 2 of SCHEDULE 1 hereto (the
"Assignor's Loans"). All capitalized terms not otherwise defined herein are
used as defined in the Loan Agreement.
B. The Assignor wishes to sell and assign to the Assignee, and the
Assignee wishes to purchase and assume from the Assignor, (i) the portion of the
Assignor's Commitment specified in Item 3 of SCHEDULE 1 hereto which is
equivalent to the percentage of Assignor's Commitment specified in Item 4 of
SCHEDULE 1 ("Assigned Commitment"), and (ii) the portion of the Assignor's Loans
under the Commitment specified in Item 5 of SCHEDULE 1 hereto (the "Assigned
Loans").
The parties agree as follows:
1. ASSIGNMENT. Subject to the terms and conditions set forth herein, the
Assignor hereby sells and assigns to the Assignee, and the Assignee purchases
and assumes from the Assignor, without recourse to the Assignor, on the date set
forth above (the "Assignment Date") (a) all right, title, and interest of the
Assignor to the Assigned Loans and (b) all obligations of the Assignor under the
Loan Agreement with respect to the Assigned Commitment. As full consideration
for the sale of the Assigned Loans and the Assigned
<PAGE>
Commitment, the Assignee shall pay to the Assignor on the Assignment Date such
amount as shall have been agreed to between the Assignor and the Assignee (the
"Purchase Price").
2. CONSENTS AND UNDERTAKING. The Administrative Agent [and the Borrower]
hereby consent[s] to the assignment made herein, and the Borrower undertakes
within five (5) Business Days from the Assignment Date to provide new Notes to
the Administrative Agent, for the benefit of the Assignee and the Assignor, as
appropriate to reflect the portion of the Commitment held by each of the
Assignee and the Assignor after giving effect to the assignment contemplated by
this Agreement. The Assignor agrees on the Business Day following receipt by
the Administrative Agent of the new Note, to return its superseded Note to the
Administrative Agent, which shall thereupon transmit the new Notes to the
Assignor and the Assignee and the superseded Note to the Borrower for
cancellation.
3. REPRESENTATIONS AND WARRANTIES. Each of the Assignor and the Assignee
represents and warrants to the other, to the Administrative Agent and to the
Borrower (a) that (i) it has full power and legal right to execute and deliver
this Agreement and to perform the provisions of this Agreement; (ii) the
execution, delivery, and performance of this Agreement have been authorized by
all necessary action, corporate or otherwise, on its part and do not violate any
provisions of its charter or by-laws or any contractual obligations or
requirement of law binding on it; and (iii) this Agreement constitutes its
legal, valid, and binding obligation, enforceable against it in accordance with
its terms subject, as to enforcement of remedies, to the following
qualifications: (A) 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 (B) 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
Assignee or the Assignor, as the case may be), and (b) that its purchase of the
Assigned Loans and the Assigned Commitment does not constitute a "prohibited
transaction" as defined in Section 4.1(m) of the Loan Agreement. The Assignor
hereby further represents and warrants to the Assignee that it is the legal and
beneficial owner of its Assigned Loans and Assigned Loan Commitment, and that
the Assignor has the unencumbered right to make the assignments set forth
herein, free and clear of all Liens and adverse claims.
4. CONDITION PRECEDENT. The obligations of the Assignor and the Assignee
hereunder shall be subject to the fulfillment of the condition that (i) the
Assignor shall have received payment in full of the Purchase Price and (ii) the
Assignor and the Assignee shall have complied with other applicable provisions
of Section 11.5(c) of the Loan Agreement.
5. NOTICE OF ASSIGNMENT. The Assignor hereby gives notice of the
assignment and assumption of the Assigned Loans and the Assigned Commitment to
the Administrative Agent and hereby instructs the Borrower to make payments with
respect to the Assigned Loans and the Assigned Commitment directly to the
Administrative Agent for
<PAGE>
the benefit of the Assignee as provided in the Loan Agreement; PROVIDED,
HOWEVER, that the Borrower and the Administrative Agent shall be entitled to
continue to deal solely and directly with the Assignor in connection with the
interests so assigned until (i) the Administrative Agent shall have received a
copy of this Assignment and Assumption Agreement duly executed by the Assignor,
the Assignee, and the Borrower, and shall have received the assignment fee
described in Section 11.5(c)(iii) of the Loan Agreement, and (ii) the Assignor
shall have delivered to the Administrative Agent its Note. From and after the
date (the "Effective Date") on which the Administrative Agent shall notify the
Borrower, the Assignee and the Assignor that (i) and (ii) have occurred and all
consents (if any) required have been given, the Assignee shall be deemed to be a
party to the Loan Agreement and, to the extent that rights and obligations
thereunder shall have been assigned to Assignee as provided herein, shall have
the rights and obligations of a Lender under the Loan Agreement. After the
Effective Date, and with respect to all such amounts accrued from the Assignment
Date, (a) all interest, principal, fees, and other amounts that would otherwise
be payable to the Assignor in respect of the Assigned Loans and the Assigned
Commitment shall be paid to the Assignee, (b) if the Assignor receives any
payment on account of the Assigned Loans or the Assigned Commitment that is
payable to the Assignee, the Assignor shall promptly deliver such payment to the
Assignee, and (c) if the Assignee receives any payment in respect of Obligations
of the Borrower accrued prior to the Effective Date, then Assignee shall pay
over the same to Assignor. The Assignee agrees to deliver to the Borrower and
the Administrative Agent on or before the Effective Date such Internal Revenue
Service forms as may be required to establish that the Assignee is entitled to
receive payments under the Loan Agreement without deduction or withholding of
tax.
6. INDEPENDENT INVESTIGATION. The Assignee acknowledges that it is
purchasing the Assigned Loans and the Assigned Commitment from the Assignor
without recourse and, except as provided in Section 3(a) hereof, without
representation or warranty. The Assignee further acknowledges that it has made
its own independent investigation and credit evaluation of the Borrower in
connection with its purchase of the Assigned Loans and the Assigned Commitment
and has received copies of all Loan Documents that it has requested. Except for
the representations or warranties set forth in Section 3(a), the Assignee
acknowledges that it is not relying on any representation or warranty of the
Assignor, expressed or implied, including without limitation, any representation
or warranty relating to the legality, validity, genuineness, enforceability,
collectibility, interest rate, repayment schedule, or accrual status of the
Assigned Loans or the Assigned Commitment, the legality, validity, genuineness,
or enforceability of the Loan Agreement, the Notes, or any other Loan Document
referred to in or delivered pursuant to the Loan Agreement, or the financial
condition or creditworthiness of the Borrower. The Assignor has not acted and
will not be acting as either the representative, agent or trustee of the
Assignee with respect to matters arising out of or relating to the Loan
Agreement or this Agreement. From and after the Effective Date, the Assignor
shall have no rights or obligations with respect to the Assigned Loans or the
Assigned Commitment.
<PAGE>
7. METHOD OF PAYMENT. All payments to be made by the Assignor or the
Assignee party hereunder shall be in funds available at the place of payment on
the same day and shall be made by wire transfer to the account designated by the
party to receive payment.
8. INTEGRATION. This Agreement shall supersede any prior agreement or
understanding between the parties (other than the Loan Agreement or other Loan
Documents) as to the subject matter hereof.
9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and shall be
binding upon the parties, their successors and assigns.
10. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York applicable to
contracts made and to be performed in New York.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the Assignor and Assignee have executed and delivered
this Agreement as of the date first above written.
[ASSIGNOR]
By:
-------------------------------------
Title:
----------------------------------
[ASSIGNEE]
By:
-------------------------------------
Title:
----------------------------------
<PAGE>
Agreed and Accepted:
RURAL CELLULAR CORPORATION,
a Minnesota corporation
By:
-------------------------------------
Title:
---------------------------------
Acknowledged:
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
By:
------------------------------------
Title :
--------------------------------
<PAGE>
SCHEDULE 1
TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
Amended and Restated Loan Agreement,
dated as of July 1, 1998
Item 1. Assignor's Commitment: $
----------
Item 2. Assignor's Loans Outstanding
(a) Base Rate Advances $
----------
(b) LIBOR Advances $
----------
Item 3. Amount of Assigned Commitment $
----------
Item 4 Percentage of Commitment Assigned %
----------
Item 5. Amount of Assigned Loans $
----------
(a) Base Rate Advances $
----------
(b) LIBOR Advances $
----------
Item 6. Lending Office of Assignee
and Address for Notices --------------------------
under Loan Agreement
--------------------------
--------------------------
--------------------------
<PAGE>
NOTES TO SCHEDULE 1
1. Insert the dollar amount of Assignor's portion of the Commitment prior
to assignment.
2. Insert the total amount of outstanding Loans of Assignor, showing a
breakdown by type. Description of the type of Loan should conform to the
description in the Loan Agreement.
3. Insert the dollar amount of the Assignor's Commitment, including
outstanding Loans, being assigned.
4. Assigned Commitment as of a percentage of total Commitment of all
Lenders.
5. Insert the total amount of outstanding Loans of Assignor being
assigned to Assignee. Description of the type of Loans should be consistent
with Item 2.
6. Insert the name and address of the lending office of the Assignee.
<PAGE>
EXHIBIT 99
RURAL CELLULAR CORPORATION
COMPLETES ACQUISITION OF NEW ENGLAND PROPERTIES
THE COMPANY'S TOTAL MANAGED POPS INCREASE TO 3 MILLION
JULY 1, 1998--ALEXANDRIA, MN--Rural Cellular Corporation (Nasdaq/NMS: RCCC)
today announced it has received regulatory approvals for and completed the
acquisition of the Vermont, New Hampshire, New York and Massachusetts cellular
telephone licenses, operations and related assets of Atlantic Cellular, Inc., an
independent provider of wireless communication services in the New England
region.
This multi-state cellular operation will be independently managed as a wholly
owned subsidiary of Rural Cellular Corporation, with operational headquarters
near Burlington, Vermont. The contiguous service area of 21,000 square miles,
encompassing approximately 1.1 million POPs (population served), brings the
Company's total managed POPs to 3 million. In addition, the 73,000 cellular
customers in the Atlantic Cellular service area will increase the Company's
customer base to approximately 192,000.
The cellular properties acquired from Atlantic Cellular include: the entire
state of Vermont (RSA 1, RSA 2) and the Burlington (MSA); western New Hampshire
(RSA 1); the northeastern corner of New York (RSA 2); and northwestern
Massachusetts (RSA 1), as well as its long-distance business.
The cellular systems acquired are clustered within short drive times to New
York, Boston, Montreal, Albany, Hartford and Providence, which have a combined
Metropolitan Service Area population of more than 31 million. More than 10
million tourists visit these New England markets each year.
In February 1998 RCC also announced entering into a definitive agreement to
purchase the outstanding stock of Western Maine Cellular, Inc. Pending
regulatory approval, the acquisition is expected to close August 1, 1998.
Rural Cellular Corporation provides wireless communication services through its
ownership, operation and management of cellular, paging and Personal
Communication Service systems. These systems are concentrated in the Upper
Midwest and New England regions of the United States.
Statements about the Company's pending acquisition of Western Maine Cellular,
Inc are forward-looking and therefore involve certain risks and uncertainties.
####
CONTACTS: Wesley Schultz (CFO) (320) 762.2000
Ann Skinner (Corporate Communications) (320) 808.2104
World Wide Web address: http://www.rccwireless.com
