<PAGE>
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
[X]
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended August 31, 1996
OR
[ ]
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
for the transition period from to
Commission file number 0-19603
CENTENNIAL CELLULAR CORP.
(Exact name of registrant as specified in its charter)
Delaware 06-1242753
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
50 Locust Avenue
New Canaan, CT 06840
(Address of principal executive offices, including zip code)
(203) 972-2000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
YES [X] NO [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practical date.
Class A Common - 16,475,116 outstanding shares as of October 4, 1996
Class B Common - 10,544,113 outstanding shares as of October 4, 1996
<PAGE>
<PAGE>
PART 1 - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CENTENNIAL CELLULAR CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Amounts in thousands)
<TABLE>
<CAPTION>
August 31, May 31,
1996 1996
------------ -----------
<S> <C> <C>
ASSETS
CURRENT ASSETS:
Cash $ 42,088 $ 67,297
Accounts receivable, less allowance for doubtful
accounts of $1,576 and $1,471, respectively 22,493 20,210
Prepaid expenses and other current assets 2,870 2,158
------------ -----------
TOTAL CURRENT ASSETS 67,451 89,665
PROPERTY, PLANT AND EQUIPMENT - net 112,267 91,417
EQUITY INVESTMENTS IN CELLULAR SYSTEMS - net 99,622 100,204
DEBT ISSUANCE COSTS, less accumulated amortization of
$2,357 and $2,081, respectively 7,462 7,738
CELLULAR TELEPHONE LICENSES, less accumulated
amortization of $176,410 and $164,786, respectively 288,577 300,206
PERSONAL COMMUNICATIONS SERVICES LICENSE 61,306 60,007
GOODWILL, less accumulated amortization of $20,483
and $19,343, respectively 132,767 133,907
OTHER ASSETS - net 13,586 2,668
------------ -----------
TOTAL $ 783,038 $ 785,812
============ ===========
</TABLE>
See notes to consolidated financial statements
<PAGE>
<PAGE>
CENTENNIAL CELLULAR CORP. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(CONTINUED)
(Amounts in thousands, except share data)
<TABLE>
<CAPTION>
August 31, May 31,
1996 1996
---------- ----------
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 5,147 $ 4,325
Accrued interest payable 10,377 2,299
Other accrued expenses 11,001 14,547
Payable to affiliate 966 956
Customers' deposits and prepayments 5,489 4,961
---------- ----------
TOTAL CURRENT LIABILITIES 32,980 27,088
LONG-TERM DEBT 350,000 350,000
DEFERRED LIABILITY 2,200 2,200
DEFERRED INCOME TAXES 54,070 56,588
PREFERRED STOCK:
Convertible redeemable preferred stock
(at aggregate liquidation value which approximates
the fair market value), par value $.01 per share,
102,187 shares authorized; issued and outstanding
102,187 shares (redemption value of $1,823.00 per share) 186,287 182,813
Second series convertible redeemable preferred stock
(at aggregate liquidation value which approximates the
fair market value), par value $.01 per share, 3,978 shares 7,252 7,117
authorized; issued and outstanding 3,978 shares
(redemption value of $1,823.00 per share)
Senior preferred stock, par value $.01 per share, dividend
rate 14%, 250,000 shares authorized, none issued - -
Additional preferred stock, par value $.01 per share, authorized
10,000,000 shares, 3,978 shares issued as second series
convertible redeemable preferred stock - -
COMMON STOCKHOLDERS' EQUITY:
Common stock par value $.01 per share:
Class A, 1 vote per share, 100,000,000 shares authorized, 165 165
issued and outstanding 16,475,116 and 16,461,858 shares,
respectively
Class B, 15 votes per share, 50,000,000 shares authorized,
issued and outstanding 10,544,113 shares 105 105
Additional paid-in capital 379,883 383,533
Accumulated deficit (225,103) (218,996)
---------- ----------
155,050 164,807
Less: Cost of 83,940 Class A common shares in treasury (1,801) (1,801)
Shareholder note receivable (3,000) (3,000)
---------- ----------
TOTAL COMMON STOCKHOLDERS' EQUITY 150,249 160,006
---------- ----------
TOTAL $ 783,038 $ 785,812
========== ==========
</TABLE>
See notes to consolidated financial statements
<PAGE>
<PAGE>
CENTENNIAL CELLULAR CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF OPERATIONS
(Amounts in thousands, except share data)
<TABLE>
<CAPTION>
Three Months Ended August 31
----------------------------
1996 1995
---------- ----------
<S> <C> <C>
REVENUES
Service revenue $ 30,857 $ 24,821
Equipment sales 766 693
Interest income 742 1,408
---------- ----------
32,365 26,922
---------- ----------
COSTS AND EXPENSES:
Cost of services 4,766 3,557
Cost of equipment sold 2,703 2,156
Selling, general and administrative 9,814 7,883
Depreciation and amortization 18,481 18,030
---------- ----------
35,764 31,626
---------- ----------
OPERATING LOSS (3,399) (4,704)
---------- ----------
INCOME FROM EQUITY INVESTMENTS 3,662 2,315
GAIN ON SALE OF ASSETS 48 4,176
INTEREST 7,041 8,302
---------- ----------
LOSS BEFORE INCOME TAX BENEFIT
AND MINORITY INTEREST (6,730) (6,515)
INCOME TAX BENEFIT (755) (3,080)
---------- ----------
LOSS BEFORE MINORITY INTEREST (5,975) (3,435)
MINORITY INTEREST IN (INCOME) LOSS OF SUBSIDIARIES (132) 17
---------- ----------
NET LOSS $ (6,107) $ (3,418)
========== ==========
DIVIDEND REQUIREMENT ON PREFERRED STOCK $ 3,610 $ 3,291
========== ==========
LOSS APPLICABLE TO COMMON SHARES $ (9,717) $ (6,709)
========== ==========
LOSS PER COMMON SHARE $ (.36) $ (.25)
========== ==========
WEIGHTED AVERAGE NUMBER OF COMMON
SHARES AND COMMON SHARE EQUIVALENTS
OUTSTANDING DURING THE PERIOD 26,932,000 26,694,000
========== ==========
</TABLE>
See notes to consolidated financial statements
<PAGE>
<PAGE>
CENTENNIAL CELLULAR CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMMON STOCKHOLDERS' EQUITY
(Amounts in thousands, except share data)
<TABLE>
<CAPTION>
Common Stock
-----------------------------------------------------------------------
Class A Class B
---------------------------- -----------------------------
Shares Dollars Shares Dollars
---------- ---------- ---------- -----------
<S> <C> <C> <C> <C>
Balance at June 1, 1995 15,741,752 $ 157 10,544,113 $ 105
Common Stock
issued in conjunction with
incentive plans 226,665 3 - -
Common stock
issued in conjuction with
acquisitions 493,441 5 - -
Vesting of stock options - - - -
Net loss - - - -
Accretion in liquidation value
of preferred stock - - - -
---------- ---------- ---------- -----------
Balance at May 31, 1996 16,461,858 165 10,544,113 105
Common Stock issued in
conjunction with incentive
plans 13,258 - - -
Net loss - - - -
Accretion in liquidation value
of preferred stock - - - -
---------- ---------- ---------- -----------
Balance at August 31, 1996 16,475,116 $ 165 10,544,113 $ 105
========== ========== ========== ===========
<CAPTION>
Additional Shareholder
Paid-In Treasury Note (Accumulated
Capital Stock Receivable Deficit) Total
---------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Balance at June 1, 1995 $ 395,735 $ (1,801) $ (3,000) $ (202,365) $ 188,831
Common Stock
issued in conjunction with
incentive plans - - - - 3
Common stock
issued in conjuction with
acquisitions 448 - - - 453
Vesting of stock options 940 - - - 940
Net loss - - - (16,631) (16,631)
Accretion in liquidation value
of preferred stock (13,590) - - - (13,590)
---------- ----------- ----------- ----------- -----------
Balance at May 31, 1996 383,533 (1,801) (3,000) (218,996) 160,006
Common Stock issued in
conjunction with incentive
plans (40) - - - (40)
Net loss - - -
(6,107) (6,107)
Accretion in liquidation value
of preferred stock (3,610) - - - (3,610)
---------- ----------- ----------- ----------- -----------
Balance at August 31, 1996 $ 379,883 $ (1,801) $ (3,000) $ (225,103) $ 150,249
========== =========== =========== =========== ===========
</TABLE>
See notes to consolidated financial statements
<PAGE>
<PAGE>
CENTENNIAL CELLULAR CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in thousands)
<TABLE>
<CAPTION>
Three Months Ended August 31,
-----------------------------
1996 1995
--------- ---------
<S> <C> <C>
OPERATING ACTIVITIES:
Cash received from subscribers and others $ 37,087 $ 28,491
Cash paid to suppliers, employees and
governmental agencies (28,888) (15,805)
Debt issuance costs - (277)
Interest paid - (11)
--------- ---------
NET CASH PROVIDED BY OPERATING ACTIVITIES 8,199 12,398
--------- ---------
INVESTING ACTIVITIES:
Capital expenditures (23,481) (6,350)
Acquisition of other assets (11,059) (217)
Acquisition, disposition and exchange of cellular telephone systems - 9,914
Acquisition of personal communications service license - (44,026)
Capital returned from equity investments 1,385 2,114
Capital contributed to equity investments (213) (91)
--------- ---------
NET CASH (USED IN) INVESTING ACTIVITIES (33,368) (38,656)
--------- ---------
FINANCING ACTIVITIES:
Issuance of Class A and B Common Stock and treasury stock purchases (40) 1
--------- ---------
NET CASH (USED IN) PROVIDED BY FINANCING ACTIVITIES (40) 1
--------- ---------
NET (DECREASE), INCREASE IN CASH (25,209) (26,257)
CASH, BEGINNING OF PERIOD 67,297 121,628
--------- ---------
CASH, END OF PERIOD $ 42,088 $ 95,371
========= =========
</TABLE>
See notes to consolidated financial statements
<PAGE>
<PAGE>
CENTENNIAL CELLULAR CORP. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(CONTINUED)
(Amounts in thousands)
<TABLE>
<CAPTION>
Three Months Ended August 31,
-----------------------------
1996 1995
-------- --------
<S> <C> <C>
RECONCILIATION OF NET LOSS TO NET CASH PROVIDED BY
OPERATING ACTIVITIES:
Net loss $ (6,107) $ (3,418)
-------- --------
Adjustments to reconcile net loss to net cash
provided by operating activities:
Depreciation and amortization 18,481 18,030
Minority interest in income (loss) of subsidiaries 132 (17)
Deferred income taxes (2,517) (3,250)
Equity in undistributed earnings of investee companies (3,662) (2,315)
Debt issuance costs paid - (277)
Gain on sale of assets - (4,176)
Other (1,077) 213
Change in assets and liabilities net of effects of
acquired, exchanged and disposed cellular telephone systems:
Accounts receivable - (increase) (2,229) (2,774)
Prepaid expenses and other current assets -
(increase) (712) (260)
Accounts payable and accrued expenses -
increase 5,362 10,313
Customer deposits and prepayments -
increase 528 329
-------- --------
Total adjustments 14,306 15,816
-------- --------
Net cash provided by operating activities $ 8,199 $ 12,398
======== ========
</TABLE>
See notes to consolidated financial statements
<PAGE>
<PAGE>
CENTENNIAL CELLULAR CORP. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(amounts in thousands except share data)
Note 1. Interim Financial Statements
In the opinion of management, the accompanying interim unaudited consolidated
financial statements contain all adjustments (consisting only of normal
recurring accruals) necessary to present fairly the consolidated financial
position of Centennial Cellular Corp. and Subsidiaries (the Company) as of
August 31, 1996 and the results of its consolidated operations and cash flows
for the three months ended August 31, 1996 and August 31, 1995. It is suggested
that the statements be read in conjunction with the consolidated financial
statements and notes thereto included in the Company's May 31, 1996 Annual
Report on Form 10-K.
Note 2. Credit Facility
On September 12 ,1996, the Company entered into a $50,000 credit facility with
Citibank, N.A. The facility terminates on March 20, 1998. Approximately $34,000
of the facility was used to fund the Benton Harbor, Michigan cellular telephone
system acquisition (see acquisitions). The remainder will be used for working
capital and general corporate purposes. The interest rate payable on borrowings
under the new credit facility are based on, at the election of the Company, (a)
"Base Rate" plus a margin of 2% or (b) "Eurodollar Rate" plus a margin of 3%.
The facility is secured by the stock of certain of the Company's subsidiaries
not otherwise subject to restrictions under its Senior Note Indentures. The
credit facility restricts the incurrence of certain additional debt of the
Company, limits the Company's ability to pay dividends and requires that certain
operating tests be met.
Note 3. Registration Statements
The Company filed a shelf registration statement with the Securities and
Exchange Commission ("SEC") for up to 8,000,000 shares of its Class A Common
Stock that may be offered from time to time in connection with acquisitions. The
registration statement became effective July 14, 1994. As of September 30, 1996,
4,239,231 shares remain available for future acquisitions.
On April 5, 1995, the Company filed a shelf registration statement with the SEC
for the issuance of $500,000 of the Company's debt securities. The debt
securities may be issued from time to time in series on terms to be specified in
one or more prospectus supplements at the time of the offering. If so specified
with respect to any particular series, the debt securities may be convertible
into shares of the Company's Class A Common Stock. As of September 30, 1996,
$400,000 remain available for issuance.
Note 4. Pro forma Information
The summary pro-forma information includes the accounts and operations of the
Company, completed acquisitions (purchased/exchanged from June 1, 1995 and
completed by August 31, 1996), in each case as if such acquisitions/exchanges
had been consummated as of the beginning of the respective period for the
combined statements of operations (amounts in thousands, except per share data
and unaudited).
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Three Months Ended August 31,
-----------------------------
1996 1995
---- ----
<S> <C> <C>
Revenues $ 33,635 $ 27,893
Net Loss (5,607) (7,105)
Loss per common share (.33) (.38)
</TABLE>
Pro forma loss per common share for the three months ended August 31, 1996 and
1995 is calculated on a fully diluted basis using the pro forma average number
of common shares outstanding during the period, including common stock
equivalents.
Note 5. Revenue Recognition
Cellular telephone service income includes service revenues and charges for
installation and connections, net of land line charges of $7,212 and $4,681 for
the three months ended August 31, 1996 and 1995, respectively.
Note 6. Loss per Common Share
Loss per common share is calculated on a fully diluted basis and includes 0 and
397,760 shares of common stock equivalents for the three month periods ended
August 31, 1996 and August 31, 1995, respectively. Loss per common share
includes a charge for the accretion in liquidation value of preferred stock.
Note 7. Supplemental Disclosure of Non-Cash Investing and Financing Activities
During the three months ended August 31, 1995, the Company reclassified $4,429
of property plant and equipment, $3,065 of goodwill, $1,259 of accounts
receivable and $690 of accounts payable to cellular telephone license as a
result of the exchange of cellular markets described at Note 8.
Note 8. Acquisitions, Exchanges, Dispositions
On June 30, 1995, the Company acquired the non-wireline cellular telephone
systems serving (a) Newtown, LaPorte, Starke, Pulaski, Jasper and White,
Indiana, (b) Kosciusko, Noble, Steuben and Lagrange, Indiana, (c) Williams,
Defiance, Henry and Paulding, Ohio and (d) Copiah, Simpson, Lawrence, Jefferson
Davis, Walthall and Marion, Mississippi, representing an aggregate of
approximately 608,100 Net Pops. The above-described systems were acquired by the
Company in exchange for the Company s non-wireline cellular telephone systems
serving the Roanoke, Virginia MSA, the Lynchburg, Virginia MSA, North Carolina
RSA #3 and Iowa RSA #5, representing an aggregate of approximately 644,000 Net
Pops. Simultaneously with the consummation of the transaction described above,
the Company sold its 72.2% interest in the non-wireline cellular telephone
system serving the Charlottesville, Virginia MSA, representing an aggregate of
approximately 94,700 Net Pops, for a cash purchase price of approximately $9,914
subject to adjustment. The Company recognized a gain of approximately $4,176 as
a result of the sale.
The Company was the successful bidder for one of two Metropolitan Trading Area
(MTA) licenses (granted June 23, 1995) to provide broadband personal
communications services in the Commonwealth of Puerto Rico and the U.S. Virgin
Islands. The licensed area represents approximately 3,623,000 Net Pops. The
amount of the final bid submitted and paid by the Company was $54,672.
On October 31, 1995, the Company acquired (i) a 94.3% interest in the
non-wireline cellular telephone system serving the Lafayette, Louisiana MSA,
representing approximately 205,700 net pops, in exchange for the Company's
non-wireline cellular telephone system serving the Jonesboro, Arkansas RSA
(comprising
<PAGE>
<PAGE>
approximately 205,00 Net Pops), the license rights and assets located in and
covering the Desoto and Red River Parishes of Louisiana 3 RSA (comprising
approximately 34,700 Net Pops), the license rights and assets located in and
covering a section of Morehouse Parish of Louisiana 2 RSA (comprising
approximately 24,100 Net Pops) and a cash payment by the Company of
approximately $5,580, subject to adjustment, and (ii) an additional 14.3%
minority interest in the Elkhart, Indiana RSA, a market in which the Company now
has a 91.4% interest and an additional 12.7% equity investment interest in the
Lake Charles, Louisiana MSA, a market in which the Company now has a 25.1%
interest, for a cash payment of approximately $2,951.
On September 12, 1996, the Company acquired for approximately $34,000 in cash,
100% of the ownership interests in the partnership owning the non-wireline
cellular telephone system serving the Benton Harbor, Michigan MSA. The Benton
Harbor market represents approximately 161,400 Net Pops.
Note 9. Commitments and Contingencies
On December 21, 1994, the Company announced that its Board of Directors
authorized the repurchase in the open market and in privately negotiated
transactions from time to time, of up to 1,000,000, shares of Class A Common
Stock, depending on prevailing market conditions. To date, no such purchases
have been made by the Company.
The Company also plans to exercise its right to acquire the minority interests
held by Century Federal in the Cass and Jackson, Michigan systems for the prices
paid by Century Federal for such minority interests in the acquisitions of such
systems ($2,000 and $1,000, respectively). Upon completion of these transaction,
the company will own 100% of these systems.
The Company entered into similar letter agreements relating to the operation of
cellular telephone systems in Elkhart, Fort Wayne and South Bend, Indiana,
Battle Creek and Kalamazoo Michigan, and Roanoke, Virginia. Under the terms of
these letter agreements, a management company assisted the Company in managing
the daily operations of these cellular telephone systems. In accordance with the
terms of the letter agreements, the Company terminated the management company
effective June 4, 1990. Under the particular letter agreements the terminated
management company is entitled to a 5% carried interest as defined in the
particular letter agreements up to and through December 31, 1996 at which time
the carried interest percentage may be put to the Company. During September
1992, all of the management companys rights pursuant to the letter agreements
were acquired by Century for a purchase price of $2,200, which has been
reflected as an adjustment to the purchase price.
On July 31, 1996 the Company filed applications to participate in an upcoming
FCC auction for broadband personal communications services frequency blocks D
and E. The Company listed Basic Trading Areas (BTAs ), the market designation
for PCS license areas, that related to its cellular operations. The Company
submitted a required refundable deposit of $11,000 in order to maintain its
bidding eligibility for the PCS licenses in which it is interested. There is no
assurance that the Company will bid in the auction process, and as to the extent
any such participation will be successful.
Note 10. Segment Information
The Company's consolidated financial statements include two distinct business
segments. The cellular telephone segment owns, operates and invests in cellular
telephone systems and a specialized mobile radio and paging business. The
Company's Puerto Rico telecommunications segment is in the construction stage
and not yet operational. Once operational the Company will provide PCS telephone
service and alternative telephone access to Puerto Rico and the U.S. Virgin
Islands.
<PAGE>
<PAGE>
Information about the Company's operations in its two business segments for the
three months ended August 31, 1996 and August 31, 1995 is as follows:
<TABLE>
<CAPTION>
Three Months Ended August 31,
-----------------------------
1996 1995
---- ----
<S> <C> <C>
Gross revenues:
Cellular telephone $ 32,365 $ 26,922
Puerto Rico telecommunications -- --
--------- ---------
$ 32,365 $ 26,922
========= =========
Operating (loss):
Cellular telephone $ (2,004) $ (4,688)
Puerto Rico telecommunications (1,395) (16)
--------- ---------
$ (3,399) $ (4,704)
========= =========
Net Loss:
Cellular telephone $ (4,494) $ (1,948)
Puerto Rico telecommunications (1,613) (1,470)
--------- ---------
$ (6,107) $ (3,418)
========= =========
Assets, at end of period:
Cellular telephone $ 697,035 $ 743,551
Puerto Rico telecommunications 86,003 57,622
--------- ---------
$ 783,038 $ 801,173
========= =========
Depreciation and amortization:
Cellular telephone $ 18,464 $ 18,014
Puerto Rico telecommunications 17 16
--------- ---------
$ 18,481 $ 18,030
========= =========
Capital expenditures:
Cellular telephone $ 14,544 $ 4,529
Puerto Rico telecommunications 8,937 1,821
--------- ---------
$ 23,481 $ 6,350
========= =========
</TABLE>
<PAGE>
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF
OPERATIONS AND FINANCIAL CONDITION
(Dollars in thousands, except subscriber, pop and share data)
Results of Operations
Three Months ended August 31, 1996 and August 31, 1995
Revenue for the three months ended August 31, 1996 was $32,365, an increase of $
5,443 or 20% over revenue of $26,922 for the three months ended August 31, 1995.
The increase in revenue was the result of growth in subscriptions to and
increased usage of cellular telephone service. Acquisitions accounted for
approximately $2,836 or 52% of the increase in revenue.
Revenue from the sale of cellular telephones to subscribers for the three months
ended August 31, 1996 increased by $73 to $766 or 10% as compared to the three
months ended August 31, 1995. The increase in such revenue was due to a larger
number of telephone units sold during the current three month period offset, in
part, by a reduction in the retail prices of cellular telephones.
Continued growth in revenue is dependent upon increased levels of cellular
subscriptions as well as maintenance of the current subscriber base. Cellular
subscribers at August 31, 1996 were approximately 140,600. During the most
recent twelve month period ended August 31, 1996, the Company's cellular
subscriber base has been affected by (i) acquisitions of cellular telephone
markets, (ii) the exchange and disposition of cellular telephone markets and
(iii) internal growth of subscribers in systems which it owned and operated at
August 31, 1995.
On a proforma basis, after giving effect to dispositions and exchanges of
cellular telephone systems at August 31, 1995, the Company's cellular
subscribers were 94,200 as compared to 140,600 at August 31, 1996, an increase
of 46,400 subscribers or 49%. The increase in subscribers after giving effect to
the exchanged and disposed markets is the result of 71,700 new activations and
11,800 subscribers from acquisitions. The increases were offset by subscriber
cancellations of 37,100. Subscriber activity during the twelve months ended
August 31, 1996 is summarized in the table below:
<TABLE>
<CAPTION>
Proforma effect of
Actual Exchanged/Disposed Markets
------ --------------------------
<S> <C> <C>
Beginning Subscribers, August 31, 1995 97,700 94,200
Activations 71,900 71,700
Cancellations (37,200) (37,100)
Acquired 11,800 11,800
Disposed/Exchanged (3,600) --
------- -------
Ending Subscribers, August 31, 1996 140,600 140,600
======= =======
</TABLE>
The Company has experienced high levels of subscriber cancellations which have
been more than offset by new subscriptions. The cancellations experienced by the
Company are primarily the result of competitive factors. There is no assurance
that the Company will maintain its historic level of subscriber growth in the
future.
<PAGE>
<PAGE>
Revenue per subscriber per month based upon an average number of subscribers for
the three months ended August 31, 1996 was $74 as compared to $76 for the three
month period ended August 31, 1995. There is no assurance that the overall
revenue per subscriber level will be maintained.
Cost of services during the three months ended August 31, 1996 was $4,766, an
increase of $1,209 or 34% from the three months ended August 31, 1995. The
reason for the increase was the variable costs associated with a larger revenue
and subscription base as well as increased cellular coverage areas resulting
from the continued expansion of the Company's network. Included in cost of
services during the three months ended August 31, 1996 were $504 of
pre-operating costs associated with the start-up of the Company's Puerto Rico
telecommunications business. The Company's Puerto Rico telecommunications
business is in the construction stage and not yet operational.
Cost of equipment sold during the three months ended August 31, 1996 was $2,703,
an increase of $547 or 25% as compared to the three months ended August 31,
1995. The primary reason for the increase was an increase in the number of
telephone units sold, offset by a decrease in the average unit cost of
telephones sold.
Selling, general and administrative expenses rose to $9,814, an increase of
$1,931 or 25% above the $7,883 for the three months ended August 31, 1995. The
increase was the result of an increase in the Company's managerial, customer
service and sales staff to accommodate the larger subscription and revenue base
and anticipated growth of its cellular telephone business. Included in selling,
general and administrative expenses during the three months ended August 31,
1996 were $449 of pre-operating costs associated with the start-up of the
Company's Puerto Rico telecommunications business.
The Company anticipates continued increases in the cost of services and selling,
general and administrative expenses as the growth of its existing cellular
telephone business continues. In addition, the Company expects that the
development of its recently acquired markets as well as its participation in the
Puerto Rico telecommunications business will contribute to an increased level of
expenses.
Depreciation and amortization for the three months ended August 31, 1996 was
$18,481, an increase of $451 or 3% over the three months ended August 31, 1995.
The increase results from acquisitions completed during fiscal 1996 as well as
capital expenditures made during fiscal 1996 in connection with the development
and network expansion of the Company's cellular telephone systems.
As a result of the factors discussed above, the operating loss for the three
months ended August 31, 1996 was $3,399, a decrease of $1,305 or 28% from the
loss of $4,704 for the three months ended August 31, 1995.
During the three months ended August 31, 1995, the Company sold its 72.2%
interest in the non-wireline cellular telephone system serving the
Charlottesville, VA MSA for a cash purchase price of approximately $9,914,
subject to adjustment. The Company recognized a gain of $4,176 as a result of
the sale (see Acquisitions, Exchanges, and Dispositions).
Interest expense was $7,041 for the three months ended August 31, 1996, a
decrease of $1,261 or 15% from the three months ended August 31, 1995. The
decline in interest expense is the result of the capitalization of $1,299 of
interest charges related to the acquisition cost of the Company's PCS license.
Gross interest costs for the three months ended August 31, 1996 and 1995 were
$8,340 and $8,302, respectively, reflecting average debt levels of $350,000 and
a weighted average interest rate of 9.5%.
After income attributable to minority interests in subsidiaries for the three
months ended August 31, 1996, a pretax loss of $6,862 was incurred, as compared
to a pretax loss of $6,498 in the three months ended August 31, 1995. The income
tax benefit of $755 for the three months ended August 31, 1996 represents an
adjust-ment to the deferred tax liability of the Company, offset by current
state and local taxes for the period. The
<PAGE>
<PAGE>
tax benefits are non-cash in nature and are attributable to the Company's
acquisitions and results of operations.
The net loss of $6,107 for the three months ended August 31, 1996 represents an
increase of $2,689 or 79% from the net loss in the three months ended August 31,
1995. The Company expects net losses to continue until such time as the cellular
telephone operations, the Puerto Rico telecommunications business and related
investments associated with the construction and development of its cellular
telephone systems and Puerto Rico telecommunications system plant generate
sufficient earnings to offset the costs described above. There can be no
assurance that the Company will generate the earnings necessary to offset the
costs described and, accordingly, there can be no assurance that profitability
will be achieved in the foreseeable future.
Liquidity and Capital Resources
The Company's cellular telephone systems, primarily serving three geographic
areas, are considered to be in the early development phase of operations. On
June 23, 1995, the Company acquired one of two Metropolitan Trading Area (MTA)
licenses to provide broadband personal communications services ("PCS") in the
Commonwealth of Puerto Rico and the U.S. Virgin Islands. The Company also
intends to construct and operate a competitive telephone access business in the
Puerto Rico marketplace. The Company requires substantial capital to operate,
construct, expand, and acquire cellular telephone systems and to build out its
recently acquired Puerto Rico telecommunications business and for debt service.
Historically, the Company has been dependent upon borrowings, the issuance of
its equity securities and operating cash flow to provide funds for such
purposes.
For the three months ended August 31, 1996, earnings were less than fixed
charges by $6,862. Fixed charges consist of interest expense and the portion of
rents deemed representative of the interest portion of leases. The amount by
which earnings were less than fixed charges reflects non-cash charges of $18,481
relating to depreciation and amortization.
As of August 31, 1996, the Company had $112,267 of property, plant and equipment
(net) placed in service. During the three months ended August 31, 1996, the
Company made capital expenditures of $23,481, primarily to continue the
construction of recently acquired cellular telephone and Puerto Rico
telecommunications systems, the expansion of the coverage areas of existing
properties and the upgrade of its cell site and call switching equipment. During
the three months ended August 31, 1996 the buildout of the Company's Puerto Rico
telecommunications network required capital expenditures of $8,937 or 38% of the
Company's total capital expenditures. The Company's future commitments for such
property and equipment include the addition of cell sites to expand coverage, as
well as enhancements to the existing infrastructure of its cellular systems.
During the twelve months ended May 31, 1997, the Company anticipates cellular
capital expenditure requirements of approximately $25,000. The Company currently
estimates that the remaining cost to build out the infrastructure of its PCS
network will be approximately $51,000 to be expended through fiscal 1998. The
Company is exploring various sources of external financing including but not
limited to bank financing, joint ventures, partnerships and placement of debt or
equity securities of the Company.
In this regard, On September 12, 1996, the Company entered into a $50,000 credit
facility with Citibank N.A. The facility terminates on March 20, 1998.
Approximately $34,000 of the facility was used to fund the Benton Harbor,
Michigan cellular telephone system acquisition (see "Acquisitions, Exchanges and
Dispositions"). The remainder will be used for working capital and general
corporate purposes. The interest rate payable on borrowings under the credit
facility is based on, at the election of the Company, (a) Base Rate plus a
margin of 2% or (b) Eurodollar Base Rate plus a margin of 3%. The facility is
secured by the pledge of stock of certain of the Company's subsidiaries not
otherwise restricted by its Senior Note Indentures. These include the
subsidiaries which operate the Puerto Rico telecommunications business, the
Benton Harbor system and is further guaranteed by certain subsidiaries bidding
its investment interests. The credit facility restricts the incurrence of
certain additional debt of the Company, limits the Company s ability to pay
dividends and requires that certain operating tests be met.
<PAGE>
<PAGE>
The Company has outstanding two classes of preferred stock which are held by
Citizens Utilities Co. (Citizens) and Century Communications Corp. ( Century ).
The preferred stock issues carry no cash dividend requirement until fiscal 1997
but accrete liquidation preference and redemption value at the rate of 7.5% per
annum, compounded quarterly, until then. Assuming no change in the number of
shares of such classes outstanding, the fully accreted liquidation preference
and redemption value of the shares held by Citizens and Century will be $186,287
and $7,252, respectively. Beginning in fiscal 1997, the holders of the preferred
stock will be entitled to receive cash dividends at the rate of 8.5% per annum.
Assuming no change in the number of shares of such classes outstanding, the
annual dividend payments, commencing in fiscal 1997, to be made in respect of
the preferred stock will be $15,834 and $616, respectively. Both classes of
preferred stock are subject to mandatory redemption in fiscal 2007. Any unpaid
dividends continue to accumulate without additional cost to the Company.
In order to meet its obligations with respect to its debt and preferred stock
obligations, it is important that the Company continue to improve operating cash
flow. In order to do so, the Company's revenues must increase at a faster rate
than operating expenses. Increases in revenue will be dependent upon continuing
growth in the number of subscribers and maximizing revenue per subscriber. The
Company has continued the development of its managerial, administrative and
marketing functions, and is continuing the construction of cellular systems in
its existing and recently acquired markets in order to achieve these objectives.
There is no assurance that growth in subscribers or revenue will occur. In
addition, the Company's participation in the Puerto Rico Telecommunications
business is expected to be capital intensive, requiring additional network
buildout costs of approximately $51,000 during fiscal 1997 and 1998. Further,
due to the start-up nature of the Puerto Rico telecommunications business, the
Company expects that it will require additional cash investment to fund its
operations over the next several years. The Puerto Rico telecommunications
business is expected to be highly competitive with the two existing cellular
telephone providers as well as the other Puerto Rico telecommunications license
holders. There is no assurance that the Puerto Rico telecommunications business
will generate cash flow or reach profitability. Even if the Company's operating
cash flow increases, it is anticipated that cash generated from the Company's
cellular telephone operations and Puerto Rico telecommunications business will
not be sufficient in the next several years to cover interest, the preferred
stock dividend requirements that commence in fiscal 1997 and required capital
expenditures. The Company anticipates that shortfalls may be made up either
through debt and equity issuances or additional financing arrangements that may
be entered into by the Company.
The Company filed a shelf registration statement with the Securities and
Exchange Commission ( SEC ) for up to 8,000,000 shares of its Class A Common
Stock that may be offered from time to time in connection with acquisitions. The
registration statement became effective July 14, 1994. As of September 30, 1996,
4,239,231 shares remain available for future acquisitions.
On April 5, 1995 the Company filed a shelf registration statement with the SEC
for the issuance of $500,000 of the Company's debt securities. The debt
securities may be issued from time to time in series on terms to be specified in
one or more prospectus supplements at the time of the offering. If so specified
with respect to any particular series, the debt securities may be convertible
into shares of the Company's Class A Common Stock. As of September 30, 1996,
$400,000 remained available for issuance.
Acquisitions, Exchanges, and Dispositions
The Company's primary acquisition strategy is to acquire controlling ownership
interests in cellular systems serving markets contiguous or proximate to its
current markets. The Company's strategy of clustering its cellular operations in
contiguous and proximate geographic areas enables it to achieve operating and
cost efficiencies as well as joint advertising and marketing benefits.
Clustering also allows the Company to offer its subscribers more areas of
uninterrupted service as they travel through an area or state. In addition to
<PAGE>
<PAGE>
expanding its existing clusters, the Company may also seek to acquire interests
in cellular systems in other geographic areas. The Company may also pursue other
communications businesses related to its cellular telephone and other mobile
service operations as well as other communications businesses it determines to
be desirable. The consideration for such acquisitions may consist of shares of
Class A Common Stock, cash, assumption of liabilities or a combination thereof.
On September 12, 1996 the Company acquired for $34,000 in cash,100% of the
ownership interests in the partnership owning the non-wireline cellular
telephone system serving the Benton Harbor, Michigan MSA. The Benton Harbor,
market represents approximately 161,400 Net Pops.
On October 31, 1995, the Company acquired (i) a 94.3% interest in the
non-wireline cellular telephone system serving the Lafayette, Louisiana MSA,
representing approximately 205,700 net pops, in exchange for the Company s
non-wireline cellular telephone system serving the Jonesboro, Arkansas RSA
(comprising approximately 205,000 Net Pops), the license rights and assets
located in and covering the Desoto and Red River Parishes of Louisiana 3 RSA
(comprising approximately 34,700 Net Pops), the license rights and assets
located in and covering a section of Morehouse Parish of Louisiana 2 RSA
(comprising approximately 24,100 Net Pops) and a cash payment by the Company of
approximately $5,580, subject to adjustment, and (ii) an additional 14.3%
minority interest in the Elkhart, Indiana RSA, a market in which the Company now
has a 91.4% interest and an additional 12.7% equity investment interest in the
Lake Charles, Louisiana MSA, a market in which the Company now has a 25.1%
interest, for a cash payment of approximately $2,951.
On June 30, 1995, the Company acquired the non-wireline cellular telephone
systems serving (a) Newtown, LaPorte, Starke, Pulaski, Jasper and White,
Indiana, (b) Kosciusko, Noble, Steuben and Lagrange, Indiana, (c) Williams,
Defiance, Henry and Paulding, Ohio and (d) Copiah, Simpson, Lawrence, Jefferson
Davis, Walthall and Marion, Mississippi, representing an aggregate of
approximately 608,100 Net Pops. The above-described systems were acquired by the
Company in exchange for the Company's non-wireline cellular telephone systems
serving the Roanoke, Virginia MSA, the Lynchburg, Virginia MSA, North Carolina
RSA #3 and Iowa RSA #5, representing an aggregate of approximately 644,000 Net
Pops. Simultaneously with the consummation of the transaction described above,
the Company sold its 72.2% interest in the non-wireline cellular telephone
system serving the Charlottesville, Virginia MSA, representing an aggregate of
approximately 94,700 Net Pops, for a cash purchase price of approximately
$9,914, subject to adjustment. The Company recognized a gain of approximately
$4,176 as a result of the sale.
The Company was the successful bidder for one of two Metropolitan Trading Area
(MTA) licenses (granted June 23, 1995) to provide broadband personal
communications services in the Commonwealth of Puerto Rico and the U.S. Virgin
Islands. The licensed area represents approximately 3,623,000 Net Pops. The
amount of the final bid submitted and paid by the Company was $54,672.
Commitments and Contingencies
On December 21, 1994, the Company announced that its Board of Directors
authorized the repurchase in the open market and in privately negotiated
transactions, from time to time, of up to 1,000,000 shares of Class A Common
Stock, depending on prevailing market conditions. The Company has made no such
purchases to date.
The Company also plans to exercise its right to acquire the minority interest
held by Century Federal in the Cass and Jackson, Michigan systems from Century
Federal for the prices paid by Century Federal for such minority interests in
the acquisition of such systems ($2,000 and $1,000, respectively). Upon
completion of these transactions, the Company will own 100% of these systems.
<PAGE>
<PAGE>
The Company entered into similar letter agreements relating to the operation of
cellular telephone systems in Elkhart, Fort Wayne and South Bend, Indiana,
Battle Creek and Kalamazoo Michigan, and Roanoke, Virginia. Under the terms of
these letter agreements, a management company assisted the Company in managing
the daily operations of these cellular telephone systems. In accordance with the
terms of the letter agreements, the Company terminated the management company
effective June 4, 1990. Under the particular letter agreements the terminated
management company is entitled to a 5% carried interest as defined in the
particular letter agreements up to and through December 31, 1996 at which time
the carried interest percentage may be put to the Company. During September
1992, all of the management company's rights pursuant to the letter agreements
were acquired by Century for a purchase price of $2,200, which was reflected as
an adjustment to the purchase price.
The Company also plans to participate in the alternative access business in
Puerto Rico pursuant to FCC requirements for interstate service and pursuant to
an authorization issued to the Company in December 1994 by the Public Service
Commission of the Commonwealth of Puerto Rico for intrastate service.
On July 31, 1996 the Company filed applications to participate in an upcoming
FCC auction for broadband personal communications services frequency blocks D
and E. The Company listed Basic Trading Areas (BTAs ), the market designation
for PCS license areas, that related to its cellular operations. The Company
submitted a required refundable deposit of $11,000 in order to maintain its
bidding eligibility for the PCS licenses in which it is interested. There is no
assurance with respect to the extent any such participation will be successful.
The following tables sets forth (in thousands), for the periods indicated, the
Company's net cash used by operating activities before interest payments ( net
cash provided ), the Company's principal uses of such cash and the cash required
from financing and investing activities.
<TABLE>
<CAPTION>
Three Months Ended August 31,
----------------------------------------------------------------
1996 1995
------------------------ ------------------------
Amount % Amount %
------ - ------ -
<S> <C> <C> <C> <C>
Net cash provided by
operating activities $ 8,199 100% $ 12,398 97.8%
Interest paid (including financing costs) -- -- 277 2.2
-------- --- -------- ----
Net cash provided $ 8,199 100% $ 12,675 100.0%
======== === ======== =====
Principal uses of cash:
Interest paid (including financing costs ) $ -- --% $ 277 2.2%
Property, plant and equipment
(excluding acquisitions) 23,481 286.4 6,350 50.1
-------- --- -------- ----
Total $ 23,481 286.4% $ 6,627 52.3%
======== ===== ======== ====
Cash (required from) available for
financing and investing activities $(15,282) (186.4)% $ 6,048 47.7%
======== ====== ======== ====
</TABLE>
Although the net cash provided by operating activities for the three months
ended August 31, 1996 was not sufficient to fund the Company's expenditures for
property, plant and equipment of $23,481, funds required were available from
cash on hand. The principal source of such cash was financing activities of
prior fiscal years. The Company will continue to rely on various financing
activities to fund these requirements.
<PAGE>
<PAGE>
The following table sets forth the primary sources and uses of funds from
financing and investing activities for the periods indicated (in thousands):
<TABLE>
<CAPTION>
Three Months Ended August 31,
-----------------------------
1996 1995
---- ----
<S> <C> <C>
(Purchase) and issuance of Class A Common Shares $ (40) $ 1
Net capital returned from equity investments 1,172 2,023
-------- --------
Cash Available 1,132 2,024
Acquisition of other assets and wireless telephone system licenses (11,059) (34,329)
-------- --------
Cash required from operating activities or cash on hand $ (9,927) $(32,305)
======== ========
</TABLE>
<PAGE>
<PAGE>
PART II - OTHER INFORMATION
ITEM 5. Other Information
Benton Harbor Acquisition
On September 12, 1996 the Company acquired for $34,000 in cash, 100% of the
ownership interest in the partnership owning the non-wireline cellular telephone
system serving the Benton Harbor, Michigan MSA. The Benton Harbor, market
represents approximately 161,400 Net Pops.
New Credit Facility
On September 12 ,1996, the Company entered into a $50,000 credit facility with
Citibank, N.A. The facility terminates on March 20, 1998. Approximately $34,000
of the facility was used to fund the Benton Harbor, Michigan cellular telephone
system acquisition (see "Benton Harbor" above). The remainder will be used for
working capital and general corporate purposes. The interest rate payable on
borrowings under the credit facility is based on, at the election of the
Company, (a) "Base Rate" plus a margin of 2% or (b) "Eurodollar Rate" plus a
margin of 3%. The facility is secured by the stock of certain of the Company's
subsidiaries not otherwise subject to restrictions under its Senior Note
Indentures. The credit facility restricts the incurrence of certain additional
debt of the Company, limits the Company's ability to pay dividends and requires
that certain operating tests be met.
Extension of Management Agreement
Century Communications and the Company have entered into a Services Agreement,
dated August 30, 1991, as subsequently amended (the "Services Agreement"),
pursuant to which Century Communications through its personnel provide such
design, construction, management, operational, technical and maintenance
services to the Company as may be necessary, or as Century Communications
determines may be appropriate, for the cellular telephone, paging and related
systems owned and operated by the Company ("the Controlled Systems"). Such
services also include, but are not limited to, providing all the services
necessary for the monitoring, to the extent possible, of the activities of the
limited partnerships in which the Company has investment interests in such
manner as to protect the interests of the Company. Such services have
historically been provided by the Company by Century Communications. The Company
believes that it is in its best interest for Century Communications to continue
to provide such services until, in the judgment of the Board of Directors of the
Company, the Company has established its own executive management team capable
of providing such services. There is no annual fee paid or to be paid to Century
Communications under the Services Agreement. As consideration for the services
rendered and to be rendered under the Services Agreement, the Company issued to
Century Communications the Second Series Convertible Redeemable Preferred Stock
valued at $5,000,000.
The Services Agreement had an original term of five years to automatically
terminate earlier upon the occurrence of (i) the conversion of 25% or more (on a
cumulative basis) of the shares of Convertible Redeemable Preferred Stock
originally issued to Citizens or (ii) the determination by the Board of
Directors of the Company that the Company had established its own executive
management team to provide all the services and assume all the duties of Century
Communications under the Services Agreement. Because a majority of the Company's
Directors are affiliated with Century Communications, the Board of Directors of
The company would face a conflict of interest in determining that the Company
had established its own management team to provide all the services and assume
all the duties of Century Communications under the Services Agreement. All of
the services rendered by Century Communications under the Services Agreement are
subject to the general approval, authority, oversight and review of the Company.
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<PAGE>
The Company is obligated to reimburse Century Communications for all costs
incurred by Century Communications or its affiliates (excluding the Company and
its subsidiaries) that are directly attributable to the design, construction,
management, operation and maintenance of the Controlled Systems or to the
performance by Century Communications of its other duties under the Services
Agreement, including all fees and expenses paid to third parties and the
out-of-pocket expenses incurred by Century Communications or its affiliates
(excluding the Company and its subsidiaries) in respect of its employees who are
engaged in the performance of services for the cellular systems controlled by
the Company.
The Company has also agreed to indemnify, defend and hold harmless Century
Communications and its affiliates from any claims, costs, damages (including
consequential damages), losses or expenses (including reasonable attorney's
fees) arising out of or relating to the Services Agreement or Century
Communications' performance of its responsibilities thereunder, except where
attributable to the gross negligence or willful misconduct of Century
Communications. Any liability of Century Communications to the Company that
results from its willful misconduct or gross negligence is limited to the
aggregate amount of $5,000,000.
Effective August 30, 1996, the term of the Services Agreement was extended to
August 31, 1997, during which time Century Communications and the Company will
confer regarding the possible renewal or extension of the Services Agreement
beyond such date and will engage in good faith negotiations regarding additional
consideration to be paid to Century Communications for services rendered beyond
the expiration of the original initial term of the Services Agreement. The
parties have agreed that the amount of such additional compensation will be less
than the value of the services rendered by Century Communications.
ITEM 6. Exhibits and Report on Form 8-K
a) Exhibits
Exhibit 10.1 $50 million credit facility dated September 12,
1996, between Centennial Cellular Corp. and
Citibank N.A.
Exhibit 10.2 Agreement, dated as of August 30, 1996, between
Century Cellular Holding Corp. and Centennial
Cellular Corp.
Exhibit 11 - Statement re computation of per share earnings
Exhibit 27 - Financial data schedule (EDGAR filing document only)
b) Reports on Form 8-K
None
<PAGE>
<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.
October 11, 1996
CENTENNIAL CELLULAR CORP.
[/s/ Scott N. Schneider]
-----------------------------------
Scott N. Schneider
Senior Vice President and Treasurer
(Principal Financial Officer)
<PAGE>
<PAGE>
Exhibit 10.1
Execution Counterpart
********************************************************************************
U.S. $50,000,000
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 12, 1996
AMONG
CENTENNIAL CELLULAR CORP.
as Borrower
and
THE BANKS NAMED HEREIN
as Banks
and
CITIBANK, N.A.
as Administrative Agent
********************************************************************************
<PAGE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
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Page
<S> <C>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 21
SECTION 1.03. Accounting Terms 21
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances 21
SECTION 2.02. Making the Advances 22
SECTION 2.03. Fees 23
SECTION 2.04. Reduction of the Commitments 24
SECTION 2.05. Repayment of Advances 24
SECTION 2.06. Interest on the Advances 24
SECTION 2.07. Interest Rate Determination and Protection 25
SECTION 2.08. Voluntary Conversion of Advances 26
SECTION 2.09. Prepayments of Advances 27
SECTION 2.10. Increased Costs, Etc 28
SECTION 2.11. Illegality 29
SECTION 2.12. Payments and Computations 30
SECTION 2.13. Taxes 31
SECTION 2.14. Sharing of Payments, Etc 33
SECTION 2.15. Additional Interest on Eurodollar Rate
Advances 34
SECTION 2.16. Use of Proceeds 34
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Advances 35
SECTION 3.02. Conditions Precedent to Each Borrowing 37
SECTION 3.03. Determinations Under Section 3.01 38
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower 38
</TABLE>
-i-
<PAGE>
<PAGE>
<TABLE>
<CAPTION>
Section Page
<S> <C>
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants 46
SECTION 5.02. Negative Covenants 50
SECTION 5.03. Reporting Requirements 57
SECTION 5.04. Consolidation, Merger, Conveyance, Transfer
or Lease 60
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default 62
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action 66
SECTION 7.02. Administrative Agents' Reliance, Etc 66
SECTION 7.03. The Administrative Agents and its Affiliates 67
SECTION 7.04. Lender Credit Decision 67
SECTION 7.05. Indemnification by Lenders 68
SECTION 7.06. Successor Administrative Agent 68
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc 69
SECTION 8.02. Notices, Etc 69
SECTION 8.03. No Waiver; Remedies 70
SECTION 8.04. Costs, Expenses and Taxes 70
SECTION 8.05. Right of Set-off 71
SECTION 8.06. Binding Effect 71
SECTION 8.07. Assignments and Participations 72
SECTION 8.08. Indemnification by the Borrower 75
SECTION 8.09. Confidentiality 76
SECTION 8.10. Governing Law 76
SECTION 8.11. Execution in Counterparts 77
SECTION 8.12. WAIVER OF JURY TRIAL 77
SECTION 8.13. Submission to Jurisdiction; Waivers 77
SECTION 8.14. Acknowledgments 77
</TABLE>
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<PAGE>
<PAGE>
Schedule I - List of Applicable Lending Offices
Schedule 4.01(k) - List of Subsidiaries
Schedule 4.01(y) - List of Minority Owned Entities
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Subsidiary Guaranty
Exhibit D-2 - Form of Pledge Agreement
Exhibit E - Form of Solvency Certificate
Exhibit F - Form of Compliance Certificate
-iii-
<PAGE>
<PAGE>
CREDIT AGREEMENT
Dated as of September 12, 1996
CENTENNIAL CELLULAR CORP., a Delaware corporation (the
"Borrower"), the banks (the "Banks") listed on the signature pages hereof, and
CITIBANK, N.A. ("Citibank"), as administrative agent (the "Administrative
Agent") for the Banks hereunder, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms . As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Acquired Debt" of any specified Person means Debt of any other
Person existing at the time such other Person is merged with or into or
becomes a Subsidiary of such specified Person, including Debt incurred
in connection with, or in contemplation of, such other Person becoming a
Subsidiary of such specified Person.
"Acquisition" means the acquisition by CBHCC of partnership
interests in Masters Cellular Partnership ("MCP") pursuant to the
Acquisition Agreements, as a result of which acquisition, the Borrower
shall through CBHCC has acquired or will acquire the cellular properties
of MCP in the Benton Harbor, Michigan, MSA.
"Acquisition Agreements" means (i) the Purchase Agreement dated
as of September 12, 1996 by and among the Borrower, CBHCC, Cellular
Management, Inc. and Dean C. Lovett and (ii) each Minority Interest
Purchase Agreement referred to, and executed and delivered as
contemplated by, the aforementioned Purchase Agreement, in each of the
cases referred to in the foregoing clauses (i) and (ii) as the same
shall, subject to Section 5.02(i), be modified and supplemented and in
effect from time to time.
"Acquisition Documents" means, collectively, the Acquisition
Agreements and all other agreements and instruments (together with any
and all exhibits, annexes and schedules thereto) executed and delivered
between any of the sellers under the Acquisition Agreements, or any of
their respective Subsidiaries or Affiliates, in connection with the
Acquisition.
"Advance" means an advance by a Lender to the Borrower as part of
a Borrowing and refers to a Base Rate Advance or a
Credit Agreement
<PAGE>
<PAGE>
-2-
Eurodollar Rate Advance, each of which shall be a "Type" of Advance.
"Affiliate" means any Person directly or indirectly controlling
or controlled by or under direct or indirect common control with the
Borrower. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the
foregoing.
"Annualized Operating Cash Flow" means, for any fiscal quarter,
the Operating Cash Flow for such fiscal quarter multiplied by four.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate Advance
and such Lender's Eurodollar Lending Office in the case of a Eurodollar
Rate Advance.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit C hereto.
"Authorizations" means all applications, filings, reports,
documents, recordings and registrations with, and all validations,
exemptions, franchises, waivers, approvals, orders or authorizations,
consents, licenses, certificates and permits from, the FCC, any PUC and
any other Federal, state or local regulatory or governmental bodies and
authorities, including any subdivision thereof.
"Bank" has the meaning specified in the recital of parties to
this Agreement.
"Bankruptcy Law" means title 11, U.S. Code or any similar Federal
or state law (including any such law of the Commonwealth of Puerto Rico)
for the relief of debtors.
"Base Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time which rate per annum
shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by Citibank in
New York, New York, from time to time, as Citibank's base rate;
Credit Agreement
<PAGE>
<PAGE>
-3-
(b) the sum (adjusted to the nearest 1/16 of one percent
or, if there is no nearest 1/16 of one percent, to the next
higher 1/16 of one percent) of (i) 1/2 of one percent per annum,
plus (ii) the rate per annum obtained by dividing (A) the latest
three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of
deposit of major United States money market banks, such
three-week moving average (adjusted to the basis of a year of 365
or 366 days, as the case may be) being determined weekly on each
Monday (or, if any such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported
by certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be
suspended or terminated, on the basis of quotations for such
rates received by Citibank from three New York certificate of
deposit dealers of recognized standing selected by Citibank, by
(B) a percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by the Board
of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, but not
limited to, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities consisting of or
including (among other liabilities) three-month U.S. dollar
nonpersonal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment
rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. dollar
deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means an Advance which bears interest as
provided in Section 2.06(a)(i).
"Borrowing" means a borrowing consisting of simultaneous Advances
of the same Type made by each of the Lenders pursuant to Section 2.01.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the
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applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"Capital Stock" of any Person means any and all share, interests,
rights to purchase, warrants, options, participations or other
equivalents of or interests in the common or preferred equity (however
designated) of such Person, including, without limitation, partnership
interests.
"Capitalized Lease Obligation" means, with respect to any Person
for any period, an obligation of such Person to pay rent or other
amounts under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP; and the amount of such
obligation shall be the capitalized amount shown on the balance sheet of
such Person as determined in accordance with GAAP.
"Cash Equivalents" means (i) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of
the United States in each case maturing within one year from the date of
acquisition thereof, (ii) marketable direct obligations issued by any
state of the United States of America or any political subdivision of
any such state or any public instrumentality thereof maturing within one
year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from
either Standard & Poor's Ratings Services or Moody's Investors Service,
(iii) commercial paper maturing no more than one year from the date of
creation thereof and, at the time of acquisition, having a rating of at
least A-1 from Standard & Poor's Ratings Services or at least P-1 from
Moody's Investors Service, (iv) certificates of deposit or bankers'
acceptances maturing within one year from the date of acquisition
thereof issued by any commercial bank organized under the laws of the
United States of America or any state thereof or the District of
Columbia or any U.S. Branch of a foreign bank having at the date of
acquisition thereof combined capital and surplus of not less than
$250,000,000, (v) repurchase obligations with a term of not more than
seven days for underlying securities of the types described in clause
(i) above entered into with any bank meeting the qualifications
specified in clause (iv) above, (vi) investments in money market funds
which invest substantially all their assets in securities of the types
described in clauses (i) through (v) above, and (vii) corporate debt
obligations maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having an investment grade
rating from Standard & Poor's Ratings Services and Moody's Investors
Service.
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"CBHCC" means Centennial Benton Harbor Cellular Corp., a Wholly
Owned Restricted Subsidiary of the Borrower.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"Citibank" means Citibank, N.A., a national banking association.
"Commitment" has the meaning specified in Section 2.01.
"Consolidated" refers to the consolidation of accounts of the
Borrower with the accounts of its Subsidiaries, all in accordance with
generally accepted accounting principles, including principles of
consolidation, consistent with those applied in the preparation of the
Consolidated financial statements referred to in Section 4.01(e).
"Consolidated Net Income" means, for any fiscal period, the
consolidated net earnings or loss of the Borrower and its Restricted
Subsidiaries as the same would appear on a consolidated statement of
earnings of the Borrower for such fiscal period prepared in accordance
with GAAP, provided that (a) any extraordinary gain and loss and any
gain and loss on sales of assets outside the ordinary course of
business, in each case together with any related provision for taxes,
recognized during such period shall be excluded, (b) the results of
operations of any Person acquired in a pooling of interests transaction
for any period prior to the date of such acquisition shall be excluded,
and (c) net income attributable to any Person other than a Restricted
Subsidiary of the Borrower shall be included only to the extent of the
amount of cash dividends or distributions actually paid to the Borrower
or a Restricted Subsidiary of the Borrower during such period.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of another Type
pursuant to Section 2.07, 2.08, 2.10 or 2.11.
"CSI" means Citicorp Securities, Inc., a Delaware corporation.
"Cumulative Operating Cash Flow" means, with respect to the
Borrower and its Restricted Subsidiaries, as of any date of
determination, Operating Cash Flow from October 31, 1993 to the end of
the Borrower's most recently ended full fiscal quarter prior to such
date, taken as a single accounting period.
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"Cumulative Total Interest Expense" means, with respect to the
Borrower and its Restricted Subsidiaries, as of any date of
determination, Total Interest Expense from October 31, 1993 to the end
of the Borrower's most recently ended full fiscal quarter prior to such
date, taken as a single accounting period.
"Debt" of any Person as of any date means and includes, without
duplication, (a) all indebtedness of such Person, contingent or
otherwise in respect of borrowed money including all interest, fees and
expenses owed with respect thereto (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar
instruments, or representing the deferred and unpaid balance of the
purchase price of any property or interest therein, except any such
balance that constitutes a trade payable, if and to the extent such
indebtedness would appear as a liability upon a balance sheet of such
Person prepared on a consolidated basis in accordance with GAAP, (b) all
Capitalized Lease Obligations of such Person, (c) all Obligations of
such Person in respect of letters of credit or letter of credit
reimbursement (whether or not such items would appear on the balance
sheet of such Person), (d) all Obligations of such Person in respect of
interest rate protection and foreign currency hedging arrangements and
(e) all guarantees by such Person of items that would constitute Debt
under this definition (whether or not such items would appear on such
balance sheet). The amount of Debt of any Person at any date shall be,
without duplication, the principal amount that would be shown on a
balance sheet of such Person prepared as of such date in accordance with
GAAP and the maximum determinable liability of any contingent
Obligations referred to in clause (e) above at such date.
"Debt to Annualized Operating Cash Flow Ratio" means, as of any
date of determination, the ratio of (a) the aggregate principal amount
of all outstanding Debt of the Borrower and its Restricted Subsidiaries
as of such date on a consolidated basis, plus the aggregate liquidation
preference of all outstanding Preferred Stock of the Restricted
Subsidiaries of the Borrower as of such date on a consolidated basis
(excluding any such Preferred Stock held by the Borrower or a Wholly
Owned Restricted Subsidiary of the Borrower), plus the aggregate
liquidation preference or redemption amount of all Disqualified Stock of
the Borrower (excluding any such Disqualified Stock held by the Borrower
or a Wholly Owned Restricted Subsidiary of the Borrower) to (b)
Annualized Operating Cash Flow of the Borrower and its Restricted
Subsidiaries on a consolidated basis for the most recent full fiscal
quarter ending immediately prior to such date, determined on a pro forma
basis after giving
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effect to all acquisitions or dispositions of assets involving more than
$500,000 individually or in the aggregate made by the Borrower and its
Restricted Subsidiaries from the beginning of such quarter through such
date as if such acquisition or disposition had occurred at the beginning
of such quarter.
"Debt Issuance" means any incurrence, issuance or sale of Debt by
the Borrower or any of its Subsidiaries, other than (a) Debt hereunder,
(b) Debt of the Borrower or any of its Subsidiaries to the Borrower or
any of its Subsidiaries (but any sale or other disposition by the
Borrower or any of its Subsidiaries of any such Debt shall constitute a
"Debt Issuance" hereunder), (c) Debt under clause (vi) of the definition
of "Permitted Debt" in Section 5.02(a) and (d) Debt secured by Liens
permitted under to clause (v) or (vi) of Section 5.02(f).
"Default" means an Event of Default or an event which, with the
giving of notice or lapse of time or both, would constitute an Event of
Default.
"Disqualified Stock" means any Capital Stock which, by its terms
(or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder thereof), matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable, at the option of the holder thereof, in whole
or in part, on or prior to the earlier of the maturity date of the
Senior Notes or the date on which no Senior Notes remain outstanding.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office of
such Lender as such Lender may from time to time specify to the Borrower
and the Administrative Agent.
"Eligible Assignee" means a Person (a) (i) that is (A) a
commercial bank organized under the laws of the United States, or any
State thereof, and having total assets in excess of $500,000,000; (B) a
commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development
("OECD"), or a political subdivision of any such country, and having
total assets in excess of $500,000,000, provided that such bank is
acting through a branch or agency located in the United States or
another country which is also a member of OECD; or (C) a Lender or an
affiliate of any Lender immediately prior to an assignment and (ii)
whose long-term public senior debt securities are rated at least "BBB-"
by Standard & Poor's Ratings Services or at
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least "Baa3" by Moody's Investors Service, Inc.; or (b) that is approved
by the Borrower (whose approval shall not be unreasonably withheld), the
Administrative Agent and the Lenders.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of
non-compliance or violation, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law or any
Environmental Permit, including without limitation (a) any claim by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages pursuant to any
Environmental Law and (b) any claim by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive
relief resulting from Hazardous Materials or arising from alleged injury
or threat of injury to health, safety or the environment.
"Environmental Law" means any federal, state or local law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award relating to the environment, health, safety or Hazardous
Materials, including, without limitation, CERCLA, the Resource
Conservation and Recovery Act, the Hazardous Materials Transportation
Act, the Clean Water Act, the Toxic Substances Control Act, the Clean
Air Act, the Safe Drinking Water Act, the Atomic Energy Act, the Federal
Insecticide, Fungicide and Rodenticide Act and the Occupational Safety
and Health Act.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"Equity Issuance" means (a) any issuance or sale by the Borrower
or any of its Subsidiaries after the date hereof of (i) any of its
capital stock (other than any such capital stock issued to directors,
officers or employees of the Borrower or any of its Subsidiaries), (ii)
any warrants or options exercisable in respect of its capital stock
(other than any warrants or options issued to directors, officers or
employees of the Borrower or any of its Subsidiaries) or (iii) any other
security or instrument representing an equity interest (or the right to
obtain any equity interest) in the Borrower or any of its Subsidiaries,
or (b) the receipt by the Borrower or any of its Subsidiaries after the
date hereof of any capital contribution (whether or not evidenced by any
equity security issued by the recipient of such contribution); provided
that Equity Issuance shall not include (x) any such issuance or sale
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by any Subsidiary of the Borrower to the Borrower or any Wholly Owned
Subsidiary of the Borrower or (y) any capital contribution by the
Borrower or any Wholly Owned Subsidiary of the Borrower to any
Subsidiary of the Borrower.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person who for purposes of Title IV
of ERISA is a member of the Borrower's controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Event" with respect to any Person means (a) the occurrence
of a reportable event, within the meaning of Section 4043 of ERISA, with
respect to any Plan of such Person or any of its ERISA Affiliates unless
the 30-day notice requirement with respect to such event has been waived
by the PBGC; (b) the provision by the administrator of any Plan of such
Person or any of its ERISA Affiliates of a notice of intent to terminate
such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e)
of ERISA); (c) the cessation of operations at a facility of such Person
or any of its ERISA Affiliates in the circumstances described in Section
4062(e) of ERISA; (d) the withdrawal by such Person or any of its ERISA
Affiliates from a Multiple Employer Plan during a plan year for which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(e) the failure by such Person or any of its ERISA Affiliates to make a
payment to a Plan required under Section 302(f)(1) of ERISA; (f) the
adoption of an amendment to a Plan of such Person or any of its ERISA
Affiliates requiring the provision of security to such Plan, pursuant to
Section 307 of ERISA; or (g) the institution by the PBGC of proceedings
to terminate a Plan of such Person or any of its ERISA Affiliates,
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that could constitute
grounds for the termination of, or the appointment of a trustee to
administer, such Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar
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Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender (or, if
no such office is specified, its Domestic Lending Office), or such other
office of such Lender as such Lender may from time to time specify to
the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum at which deposits in
U.S. dollars are offered by the principal office of Citibank in London,
England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to Citibank's Eurodollar Rate
Advance comprising part of such Borrowing and for a period equal to such
Interest Period. The Eurodollar Rate for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Borrowing shall be
determined by the Administrative Agent on the basis of applicable rates
furnished to and received by the Administrative Agent from Citibank two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.07.
"Eurodollar Rate Advance" means an Advance which bears interest
as provided in Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for
each Eurodollar Rate Advance comprising part of the same Borrowing means
the reserve percentage applicable two Business Days before the first day
of such Interest Period under regulations issued from time to time by
the Board of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest
rate on Eurodollar Rate Advances is determined) having a term equal to
such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Preferred Stock" means the Borrower's Convertible
Redeemable Preferred Stock and Second Series Convertible Redeemable
Preferred Stock outstanding as of the date hereof.
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"FCC" means the Federal Communications Commission or any
successor thereto.
"FCC License" means any mobile telephone, specialized mobile
radio, personal communications service, microwave or other license,
permit, consent, certificate of compliance, franchise, approval, waiver
or authorization granted or issued by the FCC, including, without
limitation, any of the foregoing authorizing or permitting the
acquisition, construction or operation of a cellular telephone system,
mobile telephone system or personal communications system, or a local
exchange service or competitive access service.
"Federal Bankruptcy Code" means title I of the Bankruptcy Reform
Act of 1978, Pub. L. No. 95-598, 92 Stat. 2549 (1978), as amended, and
as set forth in section 101 et seq. of title 11, United States Code, and
any succeeding statute.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with 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 Federal
funds brokers of recognized standing selected by it.
"Fee Letter" means the letter agreement dated the date hereof
between the Borrower and Citibank providing for certain fees to be paid
by the Borrower to Citibank in connection with the transactions
contemplated hereby.
"Financial Officer" means, as to any Person, the chief executive
officer, the chief financial officer, the treasurer or the controller of
that Person.
"Fiscal Quarter" means the period of three calendar months ending
on the last day of May, August, November or February, as the case may
be.
"Fiscal Year" means the period from and including June 1 of any
calendar year to and including May 31 of the next succeeding calendar
year (made up of four Fiscal Quarters), and when followed by the
designation of a year shall mean such period ending on May 31 of such
year.
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"GAAP" means, as of any date, generally accepted accounting
principles in the United States as of the date hereof and not including
any interpretations or regulations that have been proposed but that have
not become effective.
"Guarantors" means each Person (other than the Administrative
Agent) that is or becomes a party to the Subsidiary Guaranty, including,
without limitation, by the execution and delivery of any Supplement to
the Subsidiary Guaranty pursuant to Section 5.01(f)(v).
"Hazardous Materials" means (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation and radon gas, (b) any
substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely
hazardous wastes," "restricted hazardous wastes," "toxic substances,"
"toxic pollutants, contaminants" or "pollutants," or words of similar
import, under any Environmental Law and (c) any other substance exposure
to which is regulated under any Environmental Law.
"Insufficiency" means, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the date
of such Advance or the date of the Conversion of any Advance into such
an Advance and ending on the last day of the period selected by the
Borrower pursuant to the provisions below and, thereafter, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be one, two or three months, in each
case as the Borrower may, upon notice received by the Administrative
Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(i) the Borrower may not select any Interest Period which
ends after the Termination Date;
(ii) Interest Periods commencing on the same date for
Advances comprising part of the same Borrowing shall be of the
same duration; and
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(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, that, if such extension would
cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day.
"Investments" of any Person means all investments by such Person
in other Persons (including Affiliates) in the forms of loans (including
guarantees), advances or capital contributions (excluding commission,
travel and similar advances to officers and employees made in the
ordinary course of business), purchases or other acquisitions for
consideration of Debt, Capital Stock or other securities and all other
items that are or would be classified as investments on a balance sheet
prepared in accordance with GAAP.
"Lenders" means the Banks listed on the signature pages hereof
and each Eligible Assignee that shall become a party hereto pursuant to
Section 8.07.
"Lien" means any lien, security interest, charge or encumbrance
of any kind (including any conditional sale or other title retention
agreement, any lease in the nature thereof, and any agreement to give
any security interest).
"Loan Documents" means this Agreement, the Notes and the Support
Documents.
"Majority Lenders" means at any time Lenders holding at least 51%
of the then aggregate unpaid principal amount of the Notes held by the
Lenders, or, if no such principal amount is then outstanding, Lenders
having at least 51% of the Commitments.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance or properties of the Borrower and its Subsidiaries taken as
a whole.
"Material Adverse Effect" means a material adverse effect on (a)
the business, condition (financial or otherwise), operations,
performance or properties of the Borrower and its Subsidiaries taken as
a whole, (b) the rights and remedies of the Administrative Agent or any
Lender under any Loan Document
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or (c) the ability of the Borrower or any of the Guarantors to perform
its obligations under any Loan Document to which it is or is to be a
party.
"Minority Owned Entity" means, collectively, each of the entities
identified on Schedule 4.01(y) hereto, as such Schedule shall from time
to time be supplemented pursuant to Section 5.03(j).
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a) (3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions, such plan being maintained pursuant to
one or more collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined
in Section 4001(a) (15) of ERISA, which (i) is maintained for employees
of the Borrower or an ERISA Affiliate and at least one Person other than
the Borrower and its ERISA Affiliates or (ii) was so maintained and in
respect of which the Borrower or an ERISA Affiliate could have liability
under Section 4064 or 4069 of ERISA in the event such plan has been or
were to be terminated.
"Net Cash Proceeds" means, with respect to any Debt Issuance or
Equity Issuance, the aggregate amount of cash received from time to time
by or on behalf of such Person in connection with such transaction after
deducting therefrom only (a) reasonable and customary brokerage
commissions, underwriting fees and discounts, legal fees, finder's fees,
rating agency fees and other similar fees and commissions and (b) the
amount of taxes payable in connection with or as a result of such
transaction, in each case to the extent, but only to the extent, that
the amounts so deducted are, at the time of receipt of such cash,
actually paid to a Person that is not an Affiliate of the Person making
such payment (other than payments made to a director of any Person in
his capacity as a member or partner of a law firm or partnership
rendering legal services to such Person; provided that the terms of such
compensation are fair and reasonable and no less favorable to such
Person than it would obtain in a comparable arm's-length transaction
with a Person not an Affiliate) and are properly attributable to such
transaction or to the asset that is the subject thereof.
"Note" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of Exhibit A
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hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Advances made by such Lender.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Obligations" means any principal, premium, interest, penalties,
fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Debt.
"Obligors" means, collectively, the Borrower and the Guarantors.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Borrower, and delivered to the Administrative Agent.
"Operating Cash Flow" means, with respect to the Borrower and its
Restricted Subsidiaries for any period, the Consolidated Net Income of
the Borrower and its Restricted Subsidiaries for such period, plus (a)
extraordinary net losses and net losses on sales of assets outside the
ordinary course of business during such period, to the extent such
losses were deducted in computing Consolidated Net Income, plus (b)
provision for taxes based on income or profits, to the extent such
provision for taxes was included in computing such Consolidated Net
Income, and any provisions for taxes utilized in computing the net
losses under clause (a) hereof, plus (c) Total Interest Expense of the
Borrower and its Restricted Subsidiaries for such period, plus (d)
depreciation, amortization and all other non-cash charges, to the extent
such depreciation, amortization and other non-cash charges were deducted
in computing such Consolidated Net Income (including amortization of
goodwill and other intangibles).
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Borrower, and who shall be acceptable to the
Administrative Agent.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Investments" means (a) any Investment in the Borrower
or in a Restricted Subsidiary; (b) any Investment in Cash Equivalents;
and (c) Investments by the Borrower or any Restricted Subsidiary in a
Person, if as a result of such Investment (i) such Person becomes a
Restricted Subsidiary or
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(ii) such Person is merged, consolidated or amalgamated with or into, or
transfers or conveys substantially all of its assets to, or is
liquidated into, the Borrower or a Restricted Subsidiary.
"Permitted Liens" means (a) any Liens existing at the date
hereof; (b) Liens incurred in the ordinary course of business; (c) any
Lien (other than in (a) or (b)) created in connection with purchase
money mortgages and Capitalized Lease Obligations, if after giving
effect to the creation of such Debt, the sum of the aggregate principal
amounts secured by such Liens does not exceed $10,000,000; and (d) any
extension, renewal or replacement of (a) through (c).
"Person" means an individual, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or
agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledge Agreement" means a Pledge Agreement, substantially in the
form of Exhibit D-1 hereto, between the Guarantor party thereto and the
Administrative Agent, as the same shall be modified and supplemented and
in effect from time to time.
"Preferred Stock", of any Person, means Capital Stock of any
class or classes (however designated) which is preferred as to the
payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of
such Person, over Capital Stock of any other class in such Person.
"PUC" means any state regulatory agency or body that exercises
jurisdiction over the rates or services or the ownership, construction
or operation of any cellular telephone system, mobile telephone system,
personal communications system, local exchange service or competitive
access service or over Persons who own, construct or operate any such
system or service, in each case by reason of the nature or type of the
business subject to regulation and not pursuant to laws and regulations
of general applicability to Persons conducting business in said state.
The term "PUC" shall include the Public Service Commission of the
Commonwealth of Puerto Rico.
"PUC Authorization" means any Authorization issued by a PUC.
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"Puerto Rico Companies" means all Subsidiaries of the Borrower
(including, without limitation the Puerto Rico Holding Company and
Lambda Communications, Inc.) that now or hereafter own any assets
(including, without limitation, PUC Authorizations granted by the Public
Service Commission of the Commonwealth of Puerto Rico or FCC Licenses to
provide media or telecommunications services in Puerto Rico), or that
have business operations, in Puerto Rico.
"Puerto Rico Holding Company" means Centennial Puerto Rico
Wireless Corp., a Delaware corporation that is a direct, Wholly Owned
Subsidiary of the Borrower that is an "Unrestricted Subsidiary" under
and as defined in the Senior Notes Indenture.
"Puerto Rico Security Documents" means, collectively, the
mortgages, assignments, security agreements and other instruments from
time to time executed by the Puerto Rico Companies to provide collateral
security for their respective obligations under the Subsidiary Guaranty
if and to the extent required to be executed and delivered by such
Guarantors pursuant to Section 5.01(f)(vi), in each case as the same
shall be modified and supplemented and in effect from time to time.
"Register" has the meaning specified in Section 8.07(c).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Restricted Investment" means any Investment other than a
Permitted Investment.
"Restricted Subsidiary" means a Subsidiary of the Borrower other
than an Unrestricted Subsidiary.
"Senior Debt" means (a) all additional Debt that is permitted
hereunder that is not by its terms subordinated to the Advances or the
Senior Notes and (b) all (including all subsequent) renewals,
extensions, amendments, refinancings, repurchases or redemptions,
modifications, replacements or refundings thereof (whether or not
coincident therewith) that are permitted hereby. Notwithstanding
anything to the contrary in the foregoing, Senior Debt shall not include
any Debt of the Borrower to any of its Restricted Subsidiaries or any
Debt incurred for the purchase of goods or materials or for services
obtained in the ordinary course of business.
"Senior Note Documents" means, collectively, the Senior Notes,
the Senior Notes Indenture and the First Supplemental Indenture and
Second Supplemental Indenture referred to in the
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definition of Senior Notes Indenture in this Section 1.01, each as the
same shall, subject to Section 5.02(i), be modified and supplemented and
in effect from time to time.
"Senior Notes Indenture" means the Indenture dated as of November
15, 1993 between the Borrower, as issuer, and Bank of Montreal Trust
Company, as trustee, as amended pursuant to a First Supplemental
Indenture dated as of November 15, 1993 and by a Second Supplemental
Indenture dated as of May 11, 1995 and as said Indenture shall, subject
to Section 5.02(i), be further modified and supplemented and in effect
from time to time.
"Senior Notes" means, collectively, the 8-1/8% Senior Notes due
2001 and the 10-1/8% Senior Notes due 2005, issued by the Borrower
pursuant to the First Supplemental Indenture and Second Supplemental
Indenture, respectively, referred to in the definition of "Senior Notes
Indenture" in this Section 1.01, and any other series of Senior Notes
issued pursuant to any supplement to the Senior Notes Indenture after
the date hereof, in each case as the same shall, subject to Section
5.02(i), be modified and supplemented and in effect from time to time.
"Single Employer Plan" means a single employer plan, as defined
in Section 4001(a) (15) of ERISA, which (i) is maintained for employees
of the Borrower or an ERISA Affiliate and no Person other than the
Borrower and its ERISA Affiliates or (ii) was so maintained and in
respect of which the Borrower or an ERISA Affiliate could have liability
under Section 4069 of ERISA in the event such plan has been or were to
be terminated.
"Solvent" means, with respect to any Person on a particular date,
that on such date (a) the fair value of the property of such Person is
not less than the total amount of its liabilities (including, without
limitation, liabilities on all claims, whether or not reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured)
of such Person, (b) the present fair salable value of the assets of such
Person is not less than the amount that will be required to pay the
probable liability of such Person on its existing debts as they become
absolute and matured, (c) such Person is able to realize upon its assets
and pay its debts and other liabilities, contingent obligations and
other commitments as they mature in the normal course of business, (d)
such Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as such debts
and liabilities mature and (e) such Person is not engaged in business or
a transaction, and is not about to engage in business or a transaction,
for which such Person's property would constitute unreasonably small
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capital after giving due consideration to the prevailing practice in
each respective industry in which such Person is engaged; it being
understood that in applying the foregoing criteria in respect of any
Person:
(i) the value of the property and assets of such
Person includes the value of its interest in its subsidiaries and
any rights to contribution (whether by equity or loan) from any
of its Affiliates, and
(ii) its ability to pay its debts and liabilities
may be measured by reference to, among other things, amounts
received or to be received in respect of any such property or
assets.
"Subsidiary" means, with respect to any Person, any corporation,
partnership or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof
ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions of such corporation,
partnership or other entity (irrespective of whether or not at the time
securities or other ownership interests of any other class or classes of
such corporation, partnership or other entity shall have or might have
voting power by reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by such Person or one or
more Subsidiaries of such Person or by such Person and one or more
Subsidiaries of such Person. Unless the context otherwise requires, each
reference herein to a Subsidiary shall mean a Subsidiary of the
Borrower.
"Subsidiary Guaranty" means a Subsidiary Guaranty, substantially
in the form of Exhibit D-1 hereto, between the Subsidiaries of the
Borrower from time to time party thereto and the Administrative Agent,
as the same shall be modified and supplemented and in effect from time
to time.
"Support Documents" means, collectively, the Subsidiary Guaranty,
the Pledge Agreements, the Puerto Rico Security Documents and all
Uniform Commercial Code financing statements (and similar registration
instruments in other jurisdictions) required by this Agreement, the
Subsidiary Guaranty, the Pledge Agreements or the Puerto Rico Security
Documents to be filed with respect to the security interests created
pursuant to the Pledge Agreements or the Puerto Rico Security Documents.
"Termination Date" means March 20, 1998 or the earlier date of
termination in whole of the Commitments pursuant to Section 2.04 or
6.01.
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"Total Interest Expense" means, for any period, the interest
expense (net of interest income) of the Borrower and its Restricted
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP, whether paid or accrued, to the extent such
expense was deducted in computing Consolidated Net Income (including
amortization of original issue discount, non-cash interest payments and
the interest component of capital leases, but excluding amortization of
debt issuance costs and exchangeable preferred stock issuance costs).
"Type" has the meaning specified in the definition of "Advance"
in this Section 1.01.
"Unrestricted Subsidiary" means (a) any Subsidiary of the
Borrower which at the time of determination shall have been designated
an Unrestricted Subsidiary by the Board of Directors, as provided below,
(b) any Subsidiary of an Unrestricted Subsidiary or (c) any Subsidiary
of the Borrower prior to the "Issue Date" (under and as defined in the
Senior Notes Indenture) for any series of Senior Notes whose primary
asset or assets are its minority equity interest in a partnership or
other entity. The Board of Directors may designate any Subsidiary of the
Borrower (including any newly acquired or newly formed Subsidiary) to be
an Unrestricted Subsidiary; provided that (x) the Subsidiary to be so
designated (i) has total assets with a fair market value at the time of
such designation of $1,000 or less or (ii) is being so designated
simultaneously with the acquisition by the Borrower of such Subsidiary
by merger or consolidation with or exchange for an Unrestricted
Subsidiary and (y) immediately after giving effect to such designation,
no Default or Event of Default shall have occurred and be continuing.
The Board of Directors may designate any Unrestricted Subsidiary to be a
Restricted Subsidiary; provided that immediately after giving effect to
such designation, no Default or Event of Default shall have occurred and
be continuing. Any such designation by the Board of Directors shall be
evidenced to the Administrative Agent by filing with the Administrative
Agent a certified copy of the resolution of the Board of Directors
giving effect to such designation and an Officers' Certificate
certifying that such designation complied with the foregoing conditions.
Schedule 4.01(k) hereto identifies which of the Subsidiaries of the
Borrower are, on the date hereof, Unrestricted Subsidiaries.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or Persons performing
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similar functions) of such Person, even though the right so to vote has
been suspended by the happening of such a contingency.
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary that is a Wholly Owned Subsidiary.
"Wholly Owned Subsidiary" means, with respect to any Person, any
corporation, partnership or other entity of which all of the equity
securities or other ownership interests (other than, in the case of a
corporation, directors' qualifying shares) are directly or indirectly
owned or controlled by such Person or one or more Wholly Owned
Subsidiaries of such Person or by such Person and one or more Wholly
Owned Subsidiaries of such Person.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods . In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding".
SECTION 1.03. Accounting Terms . All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e), as modified from
time to time by changes in accounting principles which are required by generally
accepted accounting principles in effect from time to time.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances . Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Advances to the Borrower
from time to time on any Business Day during the period from the date hereof
until the Termination Date in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Lender's name on the signature
pages hereof or, if such Lender has entered into any Assignment and Acceptance,
set forth for such Lender in the Register maintained by the Administrative Agent
pursuant to Section 8.07(c), as such amount may be reduced pursuant to Section
2.04 (such Lender's "Commitment"). Each Borrowing shall be in an aggregate
amount not less than $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and shall consist of Advances of the same Type made on the same day
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by the Lenders ratably according to their respective Commitments. Within the
limits of each Lender's Commitment, the Borrower may borrow, prepay pursuant to
Section 2.09 and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances .
(a) Each Borrowing shall be made on notice, given not later than
11:00 A.M. (New York City time) on the third (or, in the case of a Base Rate
Advance, the first) Business Day prior to the date of the proposed Borrowing, by
the Borrower to the Administrative Agent, which shall give to each Lender prompt
notice thereof by telecopier, telex or cable. Each such notice of an Borrowing
(a "Notice of Borrowing") shall be by telecopier, telex or cable, confirmed
immediately by mail or delivery in writing, in substantially the form of Exhibit
B hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type
of Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing,
and (iv) in the case of a Borrowing comprised of Eurodollar Rate Advances,
initial Interest Period for each such Advance. Each Lender shall, before 11:00
A.M. (New York City time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Administrative Agent at its
address referred to in Section 8.02, in same day funds, such Lender's ratable
portion of such Borrowing. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower at
the Administrative Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary
notwithstanding, the Borrower may not select Eurodollar Rate Advances for any
Borrowing if the aggregate amount of such Borrowing is less than $5,000,000 or
if the obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.07.
(c) Each Notice of Borrowing shall be irrevocable and binding on
the Borrower. In the case of any Borrowing which the related Notice of Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds acquired
by such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
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(d) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Administrative Agent, such
Lender and the Borrower severally agree to repay to the Administrative Agent
forthwith 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 (i) in the case
of the Borrower, the interest rate applicable at the time to Advances comprising
such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If
such Lender shall repay to the Administrative Agent such corresponding amount,
such amount so repaid shall constitute such Lender's Advance as part of such
Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance to be made by
it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Fees .
(a) Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee on the
average daily unused portion of such Lender's Commitment from the date hereof in
the case of each Bank and from the effective date specified in the Assignment
and Acceptance pursuant to which it became a Lender in the case of each other
Lender until the Termination Date at the rate of 1/2 of l% per annum, payable on
the last day of each May, August, November and February during the term of such
Lender's Commitment, commencing November 30, 1996, and on the Termination Date.
(b) Upfront Fee. The Borrower shall pay to the Administrative
Agent, for account of each Lender, on the date of the execution and delivery
hereof an upfront fee in the amount specified in the Fee Letter.
(c) Facility Fee. The Borrower shall pay to the Administrative
Agent, for its own account, on the date of the
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execution and delivery hereof and on each anniversary of such date on which any
Advances or Commitments are outstanding a facility fee in the amount specified
in the Fee Letter.
SECTION 2.04. Reduction of the Commitments .
(a) Mandatory. On each date on which a prepayment is required
under Section 2.09(b), the respective Commitments of the Lenders shall be
automatically and permanently reduced by an amount for each Lender equal to the
amount of such prepayment which is to be applied under Section 2.09(c) to
Advances owing to such Lender.
(b) Optional. The Borrower shall have the right, upon at least 5
Business Days' notice to the Administrative Agent, to terminate in whole or
permanently reduce ratably in part the unused portions of the respective
Commitments of the Lenders, provided that each partial reduction shall be in the
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof.
SECTION 2.05. Repayment of Advances . The Borrower shall repay
the principal amount of each Advance owing to each Lender in full on the
Termination Date.
SECTION 2.06. Interest on the Advances .
(a) Ordinary Interest. The Borrower shall pay interest on the
unpaid principal amount of each Advance owing to each Lender in accordance with
the Note to the order of such Lender at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at all times to
the sum of the Base Rate in effect from time to time plus 2% per annum,
payable in arrears on the last day of each May, August, November and
February during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advance. During such periods as such Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of the Eurodollar Rate
for such Interest Period for such Advance plus 3% per annum, payable in
arrears on the last day of such Interest Period and, if such Interest
Period is greater than three months, on the last day of each three-month
period during such Interest Period.
(b) Default Interest. The Borrower shall pay interest on the
unpaid principal amount of each Advance that is not paid when due
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and on the unpaid amount of all interest, fees and other amounts payable
hereunder that is not paid when due, payable on demand, at a rate per annum
equal at all times to (i) in the case of any amount of principal, the greater of
(x) 2% per annum above the rate per annum required to be paid on such Advance
immediately prior to the date on which such amount became due and (y) 2% per
annum above the rate per annum on a hypothetical Borrowing consisting of a
Eurodollar Rate Advance in a principal amount equal to the principal amount of
such defaulted Advance and having consecutive Interest Periods of three months'
duration, the first day of the initial Interest Period for such hypothetical
Eurodollar Rate Advance being deemed to occur on the first day on which such
defaulted Advance shall not have been paid when due and (ii) in the case of all
other amounts, 2% per annum above the Base Rate in effect from time to time.
SECTION 2.07. Interest Rate Determination and Protection .
(a) Citibank agrees to furnish to the Administrative Agent timely
information for the purpose of determining each Eurodollar Rate.
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.06(a)(i) or (ii), and the
applicable rate, if any, furnished by Citibank for the purpose of determining
the applicable interest rate under Section 2.06(a)(ii).
(c) If Citibank does not furnish timely information to the
Administrative Agent for determining the Eurodollar Rate for any Eurodollar Rate
Advances,
(i) the Administrative Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be determined for
such Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance, will continue
as a Base Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(d) If, with respect to any Eurodollar Rate Advances, the
Majority Lenders notify the Administrative Agent that the Eurodollar
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Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Majority Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into
a Base Rate Advance, and
(ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
(e) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Lenders and
the Borrower will be deemed to have selected, for the Interest Period
immediately succeeding the then existing Interest Period therefor, an Interest
Period for such Advance of three months' duration.
(f) On the date on which the aggregate unpaid principal amount of
Advances comprising any Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $5,000,000, such Advances shall, if they are Advances of
a Type other than Base Rate Advances, automatically Convert into Base Rate
Advances, and on and after such date the right of the Borrower to Convert such
Advances into Advances of a Type other than Base Rate Advances shall terminate;
provided, however, that, if and so long as each such Advance shall be of the
same Type and have the same Interest Period as Advances comprising another
Borrowing or other Borrowings, and the aggregate unpaid principal amount of all
such Advances shall equal or exceed $5,000,000, the Borrower shall have the
right to continue all such Advances as, or to Convert all such Advances into,
Advances of such Type having such Interest Period.
SECTION 2.08. Voluntary Conversion of Advances . The Borrower may
on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Sections 2.07, 2.10
and 2.11, Convert all Advances of one Type comprising the same Borrowing into
Advances of another Type; provided, however, that any Conversion of any
Eurodollar Rate Advances into Advances of another Type shall be made on, and
only on, the last day of an Interest Period for such
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Eurodollar Rate Advances. Each such notice of a Conversion shall, within the
restrictions specified above, specify (i) the date of such Conversion, (ii) the
Advances to be Converted, and (iii) if such Conversion is into Eurodollar Rate
Advances, the duration of the Interest Period for each such Advance.
SECTION 2.09. Prepayments of Advances .
(a) Optional. The Borrower may, upon at least three Business
Days' notice to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of the Advances comprising part
of the same Borrowing in whole or ratably in part, together with accrued
interest to the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount not less than $5,000,000 and (y) in the event of any such
prepayment of a Eurodollar Rate Advance, the Borrower shall be obligated to
reimburse the Lenders in respect thereof pursuant to Section 8.04(b).
(b) Mandatory.
(i) Debt and Equity Issuance. The Borrower shall, on each
date on which the Borrower or any Subsidiary (other than a Guarantor) receives
any Net Cash Proceeds from any Debt Issuance (other than any Borrowing) or
Equity Issuance, prepay the Advances in an aggregate principal amount equal to
such Net Cash Proceeds (or, if less, the aggregate unpaid principal amount of
all Advances), together with accrued interest to the date of such prepayment on
the principal amount prepaid and all amounts then owing under Section 8.04(b) in
respect of such prepayment.
(ii) Change of Control. In the event that the Borrower
shall be required pursuant to the provisions of the Senior Note Documents to
redeem, or make an offer to redeem or repurchase, all or any portion of the
Senior Notes as a result of a change of control then, concurrently with the
occurrence of the event giving rise to such change of control, the Borrower
shall prepay the Advances in full, and the Commitments shall be automatically
reduced to zero.
(iii) Notice. The Borrower shall give the Administrative
Agent at least five Business Days' prior written notice of each prepayment
required by this Section 2.09(b) stating the aggregate amount (or in the case of
each prepayment required pursuant to Section 2.09(b)(i), stating the approximate
aggregate amount) of such prepayment and the date on which such prepayment shall
be made; provided that failure by the Borrower to give such notice shall not
relieve the Borrower of its obligation to make such prepayment.
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(c) Application of Prepayment Proceeds. Each prepayment under
Section 2.09(b) shall be applied ratably to all Advances.
SECTION 2.10. Increased Costs, Etc .
(a) If, due to either (i) the introduction of or any change in or
in the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Advances, then, if such costs are or will be charged to
customers of such Lender generally, the Borrower shall from time to time, upon
demand by such Lender (with a copy of such demand to the Administrative Agent),
pay to the Administrative Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased costs setting forth in reasonable
detail the calculations used in determining such increased costs, submitted to
the Borrower and the Administrative Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error. Notwithstanding anything to
the contrary contained in this subsection (a), a Lender shall only be entitled
to receive reimbursement for such increased costs to the extent incurred within
90 days prior to, and at any time after, the date on which such Lender gives to
the Borrower a notice that an event has occurred as a result of which such
increased costs will arise or a notice that the Borrower is obligated to pay
increased costs, whichever first occurs.
(b) If, due to either (i) the introduction of any change in or in
the interpretation of any law or regulation occurring on or after the effective
date hereof or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force of
law) issued on or after the 90th day prior to the effective date hereof, any
Lender determines that there shall be any increase in the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender as a result of or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of this type, then,
upon demand by such Lender (with a copy of such demand to the Administrative
Agent), the Borrower shall immediately pay to the Administrative Agent for the
account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or such corporation in
the light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the existence of such
Lender's commitment to lend hereunder. A certificate as to such amounts setting
forth in reasonable detail the calculations used in determining such amounts,
submitted to the
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Borrower and the Administrative Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error. Notwithstanding anything to the
contrary contained in this subsection (b), a Lender shall only be entitled to
receive reimbursement for such additional amounts pursuant to this subsection
(b) to the extent incurred within 90 days prior to, and at any time after, the
date on which such Lender gives to the Borrower a notice that an event has
occurred as a result of which such additional amounts will arise or a notice
that the Borrower is obligated to pay such additional amounts, whichever first
occurs.
(c) Upon the occurrence and during the continuance of any Event
of Default, (i) each Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance
and (ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
(d) Any Lender claiming any additional amounts payable pursuant
to Section 2.10(a) and 2.10(b) shall, upon request from the Borrower delivered
to such Lender and the Administrative Agent specifying an Eligible Assignee
willing and able to assume and accept all such Lender's right and obligations
under this Agreement and the other Loan Documents, assign, in accordance with
the provisions of Section 8.07, all of its rights and obligations under this
Agreement and the other Loan Documents to another Lender or an Eligible Assignee
in consideration for (i) the payment by such assignee to the Lender of the
principal of, and interest on, the Note or Notes of such Lender accrued to the
date of such assignment, together with any and all other amounts owing to such
Lender under any provision of this Agreement or the other Loan Documents accrued
to the date of such assignment and (ii) the release of such Lender from any
further liability hereunder. The processing and recordation fee required under
Section 8.07(a) shall be paid by the Borrower under this Section 2.10(d).
SECTION 2.11. Illegality . Notwithstanding any other provisions
of this Agreement, if the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful, or any central
bank or other governmental authority shall assert that it is unlawful, for any
Lender or its Eurodollar Lending Office to perform its obligations hereunder to
make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, on notice thereof and demand therefor by such Lender
to the Borrower through the Administrative Agent, accompanied by an opinion of
counsel to such Lender (which counsel may be in-house counsel) with respect to
such illegality, (i) each Eurodollar Rate Advance will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of the Lenders
to make, or to
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Convert Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lender has determined
that the circumstances causing such suspension no longer exist.
SECTION 2.12. Payments and Computations .
(a) The Borrower shall make each payment hereunder and under the
Notes not later than 11:00 A.M. (New York City time) on the day when due in U.S.
dollars to the Administrative Agent at its address referred to in Section 8.02
in same day funds. The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest or
commitment fees ratably (other than amounts payable pursuant to Sections 2.10,
2.13 or 2.15) to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement; provided, however, so long as an Event of Default shall have occurred
and be continuing under Section 6.01(a) or the Advances shall have been declared
or shall become due and payable in accordance with the last paragraph of Section
6.01, then the Administrative Agent will cause to be distributed all funds
relating to the payment of principal or interest in respect of Advances received
by the Administrative Agent from the Borrower ratably to the Lenders based on
the Advances then outstanding. Upon its acceptance of an Assignment and
Acceptance and recording of the information contained therein in the Register
pursuant to Section 8.07(c), from and after the effective date specified in such
Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under any
Note held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate, Federal
Funds Rate and of commitment fees shall be made by the Administrative Agent on
the basis of a year of 365 or 366 days, as the case may be, and all computations
of interest based on the Eurodollar Rate shall be made by the Administrative
Agent, and all computations of interest pursuant to Section 2.15 shall be made
by a Lender, on the basis of a year of 360 days, in each case for the
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actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or commitment fees are payable.
Each determination by the Administrative Agent (or, in the case of Section 2.15
by a Lender) of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Lender on such
due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes .
(a) Any and all payments by the Borrower hereunder or under the
Notes shall be made, in accordance with Section 2.12, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Lender and the Administrative Agent, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Lender or the Administrative Agent (as the case may
be) is organized or any political subdivision thereof and, in the case of each
Lender, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Lender's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities being hereinafter referred to as "Taxes").
If the Borrower shall be
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required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender or the Administrative Agent, (i) the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.13) such Lender or the Administrative Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.13) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
This indemnification shall be made within 30 days from the date such Lender or
the Administrative Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent, at its address referred to in
Section 8.02, the original or a certified copy of a receipt evidencing payment
thereof. If no Taxes are payable in respect of any payment hereunder or under
the Notes, the Borrower will furnish to the Administrative Agent, at such
address, a certificate from each appropriate taxing authority, or an opinion of
counsel acceptable to the Administrative Agent, in either case stating that such
payment is exempt from or not subject to Taxes.
(e) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement in the case of each initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter if requested in writing by
the Borrower (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower with Internal Revenue Service form 1001 or 4224, as
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appropriate, or any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax treaty
to which the United States is a party which reduces the rate of withholding tax
on payments of interest or certifying that the income receivable pursuant to
this Agreement is effectively connected with the conduct of a trade or business
in the United States. If the form provided by a Lender at the time such Lender
first becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be
considered excluded from "Taxes" as defined in Section 2.13(a).
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.13(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.13(a) with
respect to Taxes imposed by the United States; provided, however, should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
(g) Notwithstanding any contrary provisions of this Agreement, in
the event that a Lender that originally provided such form as may be required
under Section 2.13(e) thereafter ceases to qualify for complete exemption from
United States withholding tax, such Lender may assign its interest under this
Agreement to any assignee and such assignee shall be entitled to the same
benefits under this Section 2.13 as the assignor provided that the rate of
United States withholding tax applicable to such assignee shall not exceed the
rate then applicable to the assignor.
(h) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in this Section 2.13 shall survive the payment in full of principal and interest
hereunder and under the Notes.
SECTION 2.14. Sharing of Payments, Etc . If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Advances made by it (other
than pursuant to Section 2.10, 2.13 or 2.15) in excess of its ratable share of
payments on account of the Advances obtained by all the Lenders, such Lender
shall forthwith purchase from the other Lenders such participations in the
Advances made by them as shall be necessary to cause such purchasing Lender to
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share the excess payment ratably with each of them; provided, however, 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
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 2.14 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
SECTION 2.15. Additional Interest on Eurodollar Rate Advances .
The Borrower shall pay to each Lender, so long as such Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal
amount of each Eurodollar Rate Advance of such Lender, from the date of such
Advance until such principal amount is paid in full, at an interest rate per
annum equal at all times to the remainder obtained by subtracting (i) the
Eurodollar Rate for such Interest Period for such Advance from (ii) the rate
obtained by dividing such Eurodollar Rate by a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage of such Lender for such Interest Period,
payable on each date on which interest is payable on such Advance. Such
additional interest shall be determined by such Lender and notified to the
Borrower through the Administrative Agent.
SECTION 2.16. Use of Proceeds . The proceeds of each Advance
shall be used by the Borrower to finance the Acquisition and for general
corporate purposes (including to finance the working capital requirements of the
Borrower and its Subsidiaries).
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ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Advances . The
obligation of each Lender to make its initial Advance is subject to the
following conditions precedent:
(a) The Administrative Agent shall have received the Notes
payable to the order of each of the Lenders, respectively, duly executed
by the Borrower.
(b) The Lenders shall be reasonably satisfied with the
organizational and legal structure and capitalization of the Borrower
and each Subsidiary, including the terms and conditions of the charter,
bylaws, partnership agreement and other organizational documents, and
each class of capital stock or other equity interest, of the Borrower
and each Subsidiary and of each agreement or instrument relating to such
structure or capitalization and the amount, parties, terms and
conditions of the existing Debt of the Borrower and each such
Subsidiary.
(c) The Borrower shall have paid all accrued fees and expenses of
the Administrative Agent and CSI (including the accrued fees and
disbursements of counsel to the Administrative Agent and CSI).
(d) The Administrative Agent shall have received on or before the
day of the initial Borrowing the following, each dated the date hereof
(unless otherwise specified) in form and substance satisfactory to the
Administrative Agent and in sufficient copies for each Lender:
(i) With respect to each Obligor that is a
corporation, (A) a copy of the certificate or articles of
incorporation, as amended, of such Obligor, certified by the
Secretary of State or other appropriate official of the
jurisdiction of its organization as of a date reasonably near the
initial Borrowing; (B) a certificate of the Secretary of the
Borrower certifying (I) that attached thereto is a true and
complete copy of the bylaws of each Obligor as in effect on the
date of such certificate and as in effect at all times since a
date prior to the date of the resolutions described in item (II)
below, (II) that attached thereto is a true and complete copy of
the resolutions adopted by the Board of Directors of each Obligor
authorizing the execution, delivery and performance of such of
the Loan Documents to which such Obligor is a party, and each
other document or instrument which is to be
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delivered by it in connection with this Agreement after the date
hereof and (in the case of the Borrower) authorizing the
Borrowings hereunder, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect,
(III) that the certificate or articles of incorporation of the
Obligors have not been amended since the date of the last
amendment thereto shown on the certificate furnished pursuant to
clause (A) above and (IV) as to the incumbency and specimen
signature of each of the officers of each Obligor executing the
Loan Documents to which such Obligor is to be a party, or any
other document or instrument delivered in connection therewith;
and (C) all documents evidencing other necessary corporate action
and governmental and third party consents and approvals, if any,
reasonably requested by any Lender through the Administrative
Agent.
(ii) With respect to each Obligor that is a
partnership or other entity (other than a corporation), copies of
the partnership agreement and other organizational document,
together with such proof of authority, as shall be equivalent to
those delivered pursuant to the foregoing clause (i) and as shall
have been reasonably requested by the Administrative Agent or any
Lender through the Administrative Agent.
(iii) The Subsidiary Guaranty duly executed and
delivered by each Subsidiary of the Borrower that is a Puerto
Rico Company or that owns any equity interest in a Minority Owned
Entity.
(iv) A certificate of the Chief Financial Officer
of the Borrower, in substantially the form of Exhibit E,
attesting to the Solvency of the Borrower and the Borrower and
its Subsidiaries taken as whole after giving effect to the
transactions contemplated hereby.
(v) A favorable opinion of Leavy Rosensweig &
Hyman, special New York counsel for the Borrower, in form and
substance satisfactory to the Administrative Agent (and the
Borrower hereby instructs such counsel to deliver such opinion to
the Lenders and the Administrative Agent).
(vi) A favorable opinion of Edwin Quinones, special
Puerto Rico counsel for the Borrower, in form and substance
satisfactory to the Administrative Agent (and the Borrower hereby
instructs such counsel to deliver such opinion to the Lenders and
the Administrative Agent).
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(vii) A favorable opinion of Fleischman & Walsh,
special communications counsel for the Borrower, in form and
substance satisfactory to the Administrative Agent(and the
Borrower hereby instructs such counsel to deliver such opinion to
the Lenders and the Administrative Agent).
(viii) A favorable opinion of Milbank, Tweed,
Hadley & McCloy, counsel for the Administrative Agent, in form
and substance satisfactory to the Administrative Agent.
(e) The Acquisition shall have been (or shall be simultaneously)
consummated in accordance with the terms of the Acquisition Agreements,
including the schedules and exhibits thereto (except for any
modifications, supplements or waivers thereof, or written consents or
determinations made by any of the parties thereto, each of which shall
be reasonably satisfactory to the Majority Lenders), and the
Administrative Agent shall have received a certificate of a senior
officer of the Borrower to such effect and to the effect that attached
thereto are true and complete copies of the documents delivered in
connection with the closing thereunder (to the extent that the
Administrative Agent shall have requested the same), together with (in
the case of each legal opinion delivered to the Borrower pursuant
thereto) a letter from each Person delivering such opinion authorizing
reliance thereon by the Administrative Agent and the Lenders.
SECTION 3.02. Conditions Precedent to Each Borrowing . The
obligation of each Lender to make an Advance on the occasion of each Borrowing
(including the initial Borrowing) shall be subject to the further conditions
precedent that on the date of such Borrowing (a) the following statements shall
be true (and each of the giving of the applicable Notice of Borrowing and the
acceptance by the Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Borrowing
such statements are true):
(i) The representations and warranties contained in
Section 4.01 and in each other Loan Document are correct on and as of
the date of such Borrowing, before and after giving effect to such
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date,
(ii) No Default has occurred and is continuing, or would
result from such Borrowing or from the application of the proceeds
therefrom, and
(iii) The ratio referred to in Section 11.10, inserted
into the Senior Notes Indenture pursuant to the First
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Supplemental Indenture and Second Supplemental Indenture referred to in
the definition of "Senior Notes Indenture" in Section 1.01, shall be
less than 8.50 to 1;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender through the Administrative Agent may
reasonably request.
SECTION 3.03. Determinations Under Section 3.01 . For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Administrative Agent responsible for the transactions contemplated by the
Loan Documents shall have received notice from such Lender prior to the initial
Borrowing specifying its objection thereto and such Lender shall not have made
available to the Administrative Agent such Lender's ratable portion of such
Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower .
The Borrower represents and warrants as follows:
(a) The Borrower (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases
property or in which the conduct of its business requires it to so
qualify or be licensed except where the failure to so qualify or be
licensed would not have a Material Adverse Effect and (iii) has all
requisite corporate power and authority to own or lease and operate its
properties and to carry on its business as now conducted and as proposed
to be conducted. All of the outstanding capital stock of the Borrower
has been validly issued, is fully paid and non-assessable.
(b) The execution, delivery and performance by the Obligors of
this Agreement, the Notes and the other Loan Documents and each other
document to which it is or is to be a party, and the consummation of the
other transactions contemplated hereby, are within the corporate or
other powers of the Obligors, have been duly authorized by all necessary
corporate or other action, and do not (i) contravene the
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charter, bylaws, partnership agreement or other organizational document
of the Borrower or any of its Subsidiaries, (ii) violate any law, rule,
regulation (including, without limitation, Regulation X of the Board of
Governors of the Federal Reserve System), order, writ, judgment,
injunction, decree, determination or award, (iii) conflict with or
result in the breach of, or constitute a default under, any contract,
loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting the Borrower or any of its
Subsidiaries or any of its properties, or (iv) except as otherwise
required by the Pledge Agreements or the Puerto Rico Security Documents,
result in or require the creation or imposition of any Lien upon or with
respect to any of the properties of the Borrower or any of its
Subsidiaries. None of the Borrower nor any of its Subsidiaries is in
violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which is reasonably likely
to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
(including, without limitation, the FCC or any PUC) is required for the
due execution, delivery and performance by the Obligors of any of the
Loan Documents, or any Borrowing hereunder or for the ownership or
control by the Borrower of all Subsidiaries or for the ownership or
control by any Subsidiary of any other Subsidiary or Minority Owned
Entity owned or controlled by it, except for (i) filings and recordings
in respect of the Liens created pursuant to the Pledge Agreements or the
Puerto Rico Security Documents, (ii) the approval by the Public Service
Commission of the Commonwealth of Puerto Rico for the granting of Liens
on stock of or other ownership interests in any Puerto Rico Company that
holds PUC Authorizations issued by said Commission or for the granting
of Liens on such PUC Authorizations and (iii) the authorizations,
approvals and consents contemplated by the Acquisition Agreements, each
of which will be duly issued or obtained prior to the date on which the
Acquisition shall be consummated and each of which shall be in full
force and effect on such date.
(d) This Agreement is and the Notes and each other Loan Document
to which the Borrower is a party when delivered hereunder will be,
legal, valid and binding obligations of the Borrower enforceable against
the Borrower in accordance with their respective terms, subject, in the
case of enforceability, (i) to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors'
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rights generally and (ii) to the effect of general principles of equity,
including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing (regardless of whether considered in a
proceeding in equity or at law). Each of the Support Documents when
delivered hereunder will be the legal, valid and binding obligations of
each Guarantor party thereto, enforceable against such Guarantor in
accordance with their respective terms, subject, in the case of
enforceability, (i) to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally and (ii) to the effect of general principles
of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
considered in a proceeding in equity or at law).
(e) The Consolidated and consolidating balance sheet of the
Borrower and its Subsidiaries as at May 31, 1996, and the related
Consolidated and consolidating statements of income and cash flows of
the Borrower and its Subsidiaries for the fiscal year then ended, copies
of which have been furnished to each Lender, fairly present the
Consolidated and consolidating financial condition of the Borrower and
its Subsidiaries as at such date and the Consolidated and consolidating
results of operations of the Borrower and its Subsidiaries for the
fiscal year ended on such date, all in accordance with generally
accepted accounting principles consistently applied, and since May 31,
1996, there has been no Material Adverse Change. The Borrower has
heretofore delivered to each Lender true and complete copies of the most
recent audited and unaudited financial statements of the Minority Owned
Entities supplied to it; to the best knowledge of the Borrower all such
financial statements are complete and correct in all material respects.
(f) The Consolidated and consolidating forecasted statements of
income and cash flows of the Borrower and its Subsidiaries for each
Fiscal Year ending May 31, 1997 through May 31, 2005, copies of which
have been furnished to each Lender, were prepared in good faith on the
basis of the assumptions stated therein, which assumptions were
reasonable in light of conditions existing at the time of delivery of
such forecasts, and represented, at the time of delivery, the Borrower's
best estimate of its future financial performance.
(g) No information, exhibit, report, document, certificate or
written statement, including this Agreement, furnished in writing to any
Lender by or on behalf of the Borrower or any Subsidiary to the
Administrative Agent or any Lender in connection with the negotiation of
the Loan Documents or pursuant to the terms of the Loan Documents
contained as of the
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date so furnished any untrue statement of a material fact or omitted as
of the date so furnished to state a material fact necessary to make the
statements contained therein, in light of the circumstances under which
such information, exhibit, report or other written information is or is
to be used, not misleading, nor did such information, exhibits, reports,
documents, certificates and statements, taken as a whole, contain any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements contained therein not
misleading. There is no fact known to the Borrower or officers of the
Borrower which the Borrower has not disclosed to the Lenders in writing
which in the reasonable judgment of the Borrower and such officers would
have a Material Adverse Effect.
(h) There is no pending or threatened action or proceeding
against the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator, which, if adversely determined, is
reasonably likely to have a Material Adverse Effect.
(i) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock.
(j) Following application of the proceeds of each Advance, not
more than 25 percent of the value of the assets (either of the Borrower
only or of the Borrower and its Subsidiaries on a Consolidated basis)
subject to the provisions of Section 5.02(f), 5.02(g) or 5.02(h) or
subject to any restriction contained in any agreement or instrument
between the Borrower and any Lender or any affiliate of any Lender
relating to Debt will be Margin Stock.
(k) Set forth on Schedule 4.01(k) hereto, and, after the date
hereof, set forth on the most recent schedule delivered pursuant to
Section 5.03(i), is a complete and accurate list of all Subsidiaries of
the Borrower, showing as of the date hereof or thereof (as to each such
Subsidiary) the jurisdiction of its organization, whether such
Subsidiary is a corporation, partnership or other entity, the number,
and class or type, of ownership interest issued by such Subsidiary (and,
in the case of a corporation, the shares of each class of capital stock
authorized and the number of such shares outstanding), on the date
hereof, and the percentage of the outstanding ownership interest of each
such class or type owned (directly or indirectly) by the Borrower and
the number of shares or other
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ownership interest covered by all outstanding options, warrants, rights
of conversion or purchase and similar rights at the date hereof. Said
Schedule 4.01(k) also identifies whether such Subsidiary is a Restricted
or Unrestricted Subsidiary.
Each such Subsidiary (i) is a corporation, partnership or other
entity duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, (ii) is duly qualified and
in good standing in each other jurisdiction in which it owns or leases
property or in which the conduct of its business requires it to so
qualify or be licensed except where the failure to so qualify or be
licensed would not have a Material Adverse Effect and (iii) has all
requisite power and authority to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted. The outstanding capital stock of all Wholly Owned
Subsidiaries that is a corporation has been validly issued, is fully
paid and non-assessable, and the ownership interests in all Subsidiaries
held by the Borrower and its Subsidiaries is free and clear of all
Liens, except those permitted by Sections 5.02(e) and (f).
(l) The operations and properties of the Borrower and each of its
Subsidiaries comply in all material respects with all Environmental
Laws, all necessary Environmental Permits have been obtained and are in
effect for the operations and properties of the Borrower and its
Subsidiaries, the Borrower and its Subsidiaries are in compliance in all
material respects with all such Environmental Permits, and no
circumstances exist that could (i) form the basis of an Environmental
Action against the Borrower, any of its Subsidiaries or any of their
properties that could have a Material Adverse Effect or (ii) cause any
such property to be subject to any restrictions on ownership, occupancy,
use or transferability under any Environmental Law.
(m) None of the properties of the Borrower or any of its
Subsidiaries is listed or proposed for listing on the National
Priorities List under CERCLA or on the Comprehensive Environmental
Response, Compensation and Liability Information System maintained by
the Environmental Protection Agency or any analogous state list of sites
requiring investigation or cleanup or is adjacent to any such property,
and no underground storage tanks, as such term is defined in 42 U.S.C.
ss. 6991, are located on any property of the Borrower or any of its
Subsidiaries or, to the best of its knowledge, on any adjoining
property.
(n) Neither the Borrower nor any of its Subsidiaries is an
"investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment
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company," as such terms are defined in the Investment Company Act of
1940, as amended. Neither the making of any Advances, nor the
application of the proceeds or repayment thereof by the Borrower, nor
the consummation of the other transactions contemplated hereby, will
violate any provision of such Act or any rule, regulation or order of
the Securities and Exchange Commission thereunder.
(o) The Borrower is, individually and together with its
Subsidiaries, Solvent.
(p) As of the date hereof and as of the date of the initial
Borrowing, there exist no credit agreements, indentures, purchase
agreements, obligations in respect of letters of credit, guarantees or
other instruments presently in effect (including, but not limited to,
Capital Lease Obligations and Debt owed by the Borrower to Affiliates)
providing for, evidencing, securing or otherwise relating to any Debt of
the Borrower or any of its Subsidiaries other than Debt under the Loan
Documents and the Senior Notes Indenture.
(q) There are no Liens of any nature whatsoever on any properties
of the Borrower nor any Subsidiary other than (i) those permitted by
Section 5.02(e) or 5.02(f) and (ii) nonconsensual Liens which could not,
individually or in the aggregate, have a Material Adverse Effect.
(r) None of the Borrower or any Subsidiary is a party to any
indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter, corporate restriction, or
restriction set forth in its respective partnership agreement or other
organizational document, which is reasonably likely to have a Material
Adverse Effect.
(s) (i) The Borrower and each Subsidiary have filed all tax
returns (Federal, State and local) required to be filed, and paid all
taxes shown thereon to be due, including interest and penalties, or
provided adequate reserves for payment thereof, and (ii) the Borrower
and each Subsidiary have timely filed all reports and applications
required by the FCC or any PUC, in each case except such filings the
failure of which to file is not, individually or in the aggregate,
reasonably likely to have a Material Adverse Effect.
(t) The Borrower and each Subsidiary is in compliance with the
requirements of all applicable laws, rules, regulations, orders and
licensing requirements of all governmental authorities the violation of
which could have a Material Adverse Effect; and none of the Borrower or
any Subsidiary is the
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subject of any outstanding citation, order or investigation by the FCC
or any PUC which could have a Material Adverse Effect, and no such
citation, order or investigation, to the knowledge of the Borrower or
any Subsidiary, is contemplated by the FCC or any PUC.
(u) Neither the Borrower nor any ERISA Affiliate has either a
Multiemployer Plan or a Plan, other than a Multiemployer Plan or a Plan
to which the Majority Lenders have given their consent after the date
hereof.
(v) All of the material properties, equipment and systems owned,
leased or managed by the Borrower and its Subsidiaries are, and (to the
best knowledge of the Borrower) all such property, equipment and systems
to be acquired or added in connection with any contemplated system
expansion or construction will be, in good repair, working order and
condition and are and will be in compliance with all terms and
conditions of the FCC Licenses and all PUC Authorizations and all
standards or rules imposed by the FCC or any PUC, or as imposed under
any agreements with telephone companies and customers, except for any
such non-compliance that could not result in a Material Adverse Effect.
(w) Each of the Borrower and its Subsidiaries has obtained all
material FCC Licenses or PUC Authorizations required for the conduct of
its business and operations as currently conducted.
All FCC Licenses and PUC Authorizations held by the Borrower and
its Subsidiaries are valid and in full force and effect without
conditions except for such conditions as are generally applicable to
holders of FCC Licenses and such PUC Authorizations. No event has
occurred and is continuing which could (i) result in the imposition of a
material forfeiture or the revocation, termination or adverse
modification of any FCC License or PUC Authorization or (ii) materially
and adversely affect any rights of the Borrower or any of its
Subsidiaries thereunder; the Borrower has no reason to believe and has
no knowledge that the FCC Licenses or PUC Authorizations presently held
by the Borrower or any of its Subsidiaries will not be renewed in the
ordinary course; and each of the Borrower and its Subsidiaries has
sufficient time, materials, equipment, contract rights and other
required resources to complete, in a timely fashion and in full,
construction of the cellular telephone systems, mobile telephone systems
or personal communications systems, or the local exchange services or
competitive access services, to be owned and operated by it in
compliance with all applicable technical standards and construction
requirements and deadlines. The current ownership and operation by each
of the
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Borrower and its Subsidiaries of its cellular telephone systems, mobile
telephone systems, personal communications systems, local exchange
services and competitive access services, as the case may be, complies
with the Communications Act of 1934, as amended, and all Rules,
Regulations and Policies of the FCC, any PUC or any other governmental
authority, except for such non-compliance that could not result in a
Material Adverse Effect.
(x) The Borrower has heretofore delivered to each Bank a true and
complete copy of each Acquisition Agreement as in effect on the date
hereof (including, any modifications or supplements thereto and any
instruments or "side letters" relating thereto) and of the Senior Notes
Indenture (including the First Supplemental Indenture and Second
Supplemental Indenture referred to in the definition of such term in
Section 1.01). Each of the Guarantors is an "Unrestricted Subsidiary"
under and as defined in the Senior Notes Indenture.
(y) Set forth on Schedule 4.01(y) hereto, and, after the date
hereof, set forth on the most recent schedule delivered pursuant to
Section 5.03(j), is a complete and accurate list of all entities (other
than Subsidiaries) in which the Borrower or any of its Subsidiaries owns
an interest, showing as of the date hereof or thereof (as to each such
entity) the legal and beneficial owner of such interest, the
jurisdiction of its organization, whether such entity is a corporation,
partnership or other entity, the number, and class or type, of ownership
interest issued by such entity (and, in the case of a corporation, the
shares of each class of capital stock authorized and the number of such
shares outstanding), on the date hereof, and the percentage of the
outstanding ownership interest of each such class or type owned
(directly or indirectly) by the Borrower or any of its Subsidiaries and
the number of shares or other ownership interest covered by all
outstanding options, warrants, rights of conversion or purchase and
similar rights at the date hereof. All such ownership interests are held
by the Borrower and its Subsidiaries free and clear of all Liens, except
those permitted by Section 5.02(f).
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants . So long as any Advance or
any other amount hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower covenants and agrees that, unless the
Majority Lenders shall otherwise consent in writing:
(a) Existence. Subject to Sections 5.02(g) and 5.04, the Borrower
will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries.
(b) Payment of Taxes and Other Claims. The Borrower will, and
will cause each Subsidiary to, pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Borrower
or any Subsidiary or upon the income, profits or property of the
Borrower or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, would by law become a lien upon
the property of the Borrower or any Subsidiary; provided, however, that
neither the Borrower nor any Subsidiary shall be required to pay or
discharge or cause to be paid or discharged any such tax, assessment,
charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
(c) Maintenance of Properties; Regulatory Compliance. The
Borrower will cause all its properties used or useful in the conduct of
its business to be maintained and kept in reasonably good condition,
repair and working order and supplied with all necessary equipment and
will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the
Borrower may be necessary so that the business carried on in connection
therewith may be properly conducted at all times; provided, however,
that nothing in this Section shall prevent the Borrower from
discontinuing the operation or maintenance of any of its properties if
such discontinuance is, in the judgment of the Borrower, desirable in
the conduct of its business and not disadvantageous in any material
respect to the Lenders.
The Borrower will, and will cause each of its Subsidiaries to,
take such action from time to time as shall be necessary to comply with
all laws, rules, regulations and orders of any
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governmental authority (including the FCC and any PUC), except where the
failure to do so, individually or in the aggregate, could not reasonably
be expected to result in a Material Adverse Effect.
(d) Further Assurances. From time to time whenever reasonably
demanded by the Administrative Agent, the Borrower will make, execute
and deliver or cause to be made, executed and delivered any and all such
further and other instruments and assurances as may be reasonably
necessary or proper to carry out the intention or facilitate the
performance of the terms of this Agreement and the other Loan Documents.
(e) Puerto Rico Companies as Unrestricted Subsidiaries. The
Borrower will cause all Puerto Rico Companies to be "Unrestricted
Subsidiaries" under and as defined in the Senior Notes Indenture at all
times.
(f) Additional Post-Closing Covenants.
(i) Not later than 45 days (in the case of FCC Licenses) or 90
days (in the case of PUC Authorizations) after the date hereof, and at
all times thereafter, the Borrower will (x) cause all FCC Licenses and
PUC Authorizations (including any thereof acquired after the date
hereof), relating to the operations of the Puerto Rico Companies, to be
held in the name of two direct Subsidiaries (one for the FCC Licenses
and one for the PUC Authorizations) of the Puerto Rico Holding Company
satisfying the conditions of this paragraph (f) (each such Subsidiary of
the Puerto Rico Holding Company, a "License Subsidiary"), (y) cause all
assets and contract rights (including any thereof acquired after the
date hereof), other than FCC Licenses and PUC Authorizations, relating
to the operations of the Puerto Rico Companies, to be held in the name
of one or more Subsidiaries of the Puerto Rico Holding Company (each
such Subsidiary of the Puerto Rico Holding Company, an "Operating
Subsidiary") and (z) will cause each such License Subsidiary and the
related Operating Subsidiary to execute and deliver a license management
agreement in form and substance satisfactory to the Majority Lenders
pursuant to which such Operating Subsidiary will agree to manage, on
behalf of such License Subsidiary, the FCC Licenses and PUC
Authorizations held by such License Subsidiary.
(ii) The Borrower will not permit any License Subsidiary to become
directly or indirectly obligated in respect of any Debt (other than (x)
Debt under the Support Documents and (y) in the case of a License
Subsidiary that owns all of the capital stock of an Operating
Subsidiary, Debt owing to the Puerto Rico Holding Company the proceeds
of which are lent by such License
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Subsidiary to such Operating Subsidiary) or to engage in any line or
lines of business activity or to hold any property other than (i) FCC
Licenses and PUC Authorizations, as expressly contemplated by the
respective license management agreement to which such License Subsidiary
is a party, (ii) capital stock of an Operating Subsidiary, (iii) other
property not having an aggregate fair market value in excess of $10,000
at any one time and (iv) in the case of a License Subsidiary that owns
all of the capital stock of an Operating Subsidiary, Debt owing by such
Operating Subsidiary.
(iii) The Borrower will not permit any Operating Subsidiary to become
directly or indirectly obligated in respect of any Debt other than (x)
Debt under the Support Documents, (y) Debt owing to the Guarantor that
owns all of the capital stock of such Operating Subsidiary and (z) other
Debt not exceeding $500,000 in aggregate principal amount at any one
time outstanding.
(iv) The Borrower will not permit the Puerto Rico Holding Company to
become directly or indirectly obligated in respect of any Debt (other
than (x) Debt under the Support Documents and (y) Debt owing to the
Borrower) or to engage in any line or lines of business activity or to
hold any property or contract rights other than (i) capital stock of,
and Debt owing by, Operating Subsidiaries and License Subsidiaries and
(ii) other property not having an aggregate fair market value in excess
of $10,000 at any one time.
(v) Not later than 30 days after the date hereof, the Borrower,
and from time to time thereafter upon the request of the Administrative
Agent, the Borrower shall furnish to the Administrative Agent a list in
reasonable detail of all equipment, fixed assets, real property, leases,
contracts and other property and rights owned or held by each Operating
Subsidiary and, promptly (and in no event more than 10 Business Days)
after the Administrative Agent shall request the same, any Operating
Subsidiary to execute and deliver, and to cause each of its Subsidiaries
to execute and deliver, to the Administrative Agent such mortgages,
assignments, security agreements and other instruments from time to time
in such form as shall be requested by the Administrative Agent in order
to create Liens in substantially all of the property and rights of such
Operating Subsidiary in accordance with the applicable requirements of
the law of the Commonwealth of Puerto Rico.
(vi) Upon the creation or acquisition of any Puerto Rico Company
after the date hereof, the Borrower shall cause such Puerto Rico Company
to become a Guarantor by causing such Puerto
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Rico Company to execute and deliver an instrument substantially in the
form of Annex 1 to the Subsidiary Guaranty and shall cause any other
Puerto Rico Company that owns capital stock or other equity interests in
such Puerto Rico Company to pledge such capital stock or other equity
interests to the Administrative Agent for the benefit of the Lenders to
secure the payment of such owner's obligations under the Subsidiary
Guaranty by executing and delivering a Pledge Agreement.
(vii) In connection with the execution and delivery by any Puerto
Rico Company of any Puerto Rico Security Documents, any Puerto Rico
Company becoming a Guarantor or the execution and delivery by any Puerto
Rico Company of a Pledge Agreement, the Borrower shall cause to be
delivered to the Administrative Agent such corporate documents, legal
opinions, governmental and third party consents and other supporting
documentation as the Administrative Agent may reasonably request.
(g) Holders of Minority Equity Interests. The Borrower will not
permit any Guarantor that holds any Minority Equity Interests to become
directly or indirectly obligated in respect of any Debt (other than Debt
under the Support Documents) or to engage in any line or lines of
business activity or to hold any property or contract rights other than
(i) Minority Equity Interests and (ii) other property not having an
aggregate fair market value in excess of $10,000 at any one time.
(h) Benton Harbor.
(i) Not later than 30 days after the date hereof, and at all
times thereafter, the Borrower will (x) cause all FCC Licenses and PUC
Authorizations (including any thereof acquired after the date hereof),
and all assets and contract rights, relating to the operations of the
cellular properties acquired by CBHCC in the Acquisition to be held by a
Person (the "Benton Harbor Operating Company") that is a direct, Wholly
Owned Unrestricted Subsidiary of a direct, Wholly Owned Unrestricted
Subsidiary (the "Benton Harbor Holding Company") of the Borrower.
(ii) The Borrower will not permit the Benton Harbor Operating
Company to become directly or indirectly obligated in respect of any
Debt other than (x) Debt under the Support Documents, (y) Debt owing to
the Benton Harbor Holding Company and (z) other Debt not exceeding
$500,000 in aggregate principal amount at any one time outstanding.
(iii) The Borrower will not permit the Benton Harbor Holding Company
to become directly or indirectly obligated in respect of
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any Debt (other than (x) Debt owing to the Borrower and (y) Debt under
the Support Documents) or to engage in any line or lines of business
activity or to hold any property or contract rights other than (i)
capital stock of, and Debt owing by, the Benton Harbor Operating Company
and (ii) other property not having an aggregate fair market value in
excess of $10,000 at any one time.
(iv) The Borrower shall cause the Benton Harbor Holding Company and
the Benton Harbor Operating Company to become Guarantors (if not already
Guarantors) by causing them to execute and deliver an instrument
substantially in the form of Annex 1 to the Subsidiary Guaranty and
shall cause the Benton Harbor Holding Company to pledge all of the
capital stock of the Benton Harbor Operating Company to the
Administrative Agent for the benefit of the Lenders to secure the
payment of the Benton Harbor Holding Company's obligations under the
Subsidiary Guaranty by executing and delivering a Pledge Agreement.
(v) In connection with the Benton Harbor Holding Company and the
Benton Harbor Operating Company becoming a Guarantor or the execution
and delivery by the Benton Harbor Holding Company of a Pledge Agreement,
the Borrower shall cause to be delivered to the Administrative Agent
such corporate documents, legal opinions, governmental and third party
consents and other supporting documentation as the Administrative Agent
may reasonably request.
SECTION 5.02. Negative Covenants . So long as any Advance or any
other amount hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower covenants and agrees that, unless the
Majority Lenders shall otherwise consent in writing:
(a) Limitation on Debt and Preferred Stock. The Borrower shall
not, and shall not permit any Restricted Subsidiary to, create, incur or
assume, or directly or indirectly guarantee or in any other manner
become directly or indirectly liable for any Debt (including Acquired
Debt) after the date hereof, or issue any Preferred Stock after the date
hereof, except that the Borrower may (i) issue Preferred Stock that is
not Disqualified Stock at any time and (ii) incur Debt or issue
Disqualified Stock so long as the Debt to Annualized Operating Cash Flow
of the Borrower and its Restricted Subsidiaries at the time of
incurrence of such Debt or issuance of such Disqualified Stock, after
giving pro forma effect thereto, is 8.5 to 1 or less, provided that (x)
any such Debt of the Borrower that is not Senior Debt shall have an
average life to maturity no shorter than the remaining average life to
maturity of the Senior Notes and such Debt shall not have any principal
payments due before the maturity of the Senior Notes and (y) upon
receipt by the
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Borrower or any Subsidiary of the proceeds of such Debt or Preferred
Stock, the Borrower will prepay the Advances hereunder to the extent
required pursuant to Section 2.09(b)(i).
The foregoing limitations shall not apply to the following
(collectively, "Permitted Debt"):
(i) Debt owed by the Borrower to any Wholly Owned
Restricted Subsidiary provided that any such Debt is subordinated
to the Advances and the Senior Notes;
(ii) Debt under the Senior Notes;
(iii) other Debt existing at the date of the Senior
Notes Indenture;
(iv) other Debt incurred after the date of the
Senior Notes Indenture by the Borrower not to exceed at any time
$40,000,000 less the sum of (A) the aggregate principal amount of
all Debt incurred by Restricted Subsidiaries plus (B) the
aggregate liquidation preference of Disqualified Stock issued by
Restricted Subsidiaries pursuant to clause (v) of this paragraph,
provided that, upon receipt by the Borrower or any Restricted
Subsidiary of the proceeds of such Debt, the Borrower will prepay
the Advances hereunder to the extent required pursuant to Section
2.09(b)(i);
(v) Debt incurred and Preferred Stock issued by
Restricted Subsidiaries, so long as the sum of (A) the aggregate
principal amount of all Debt of Restricted Subsidiaries plus (B)
the aggregate liquidation preference of all outstanding Preferred
Stock issued by Restricted Subsidiaries shall not exceed at any
time $10,000,000, provided that, upon receipt by the Borrower or
any Restricted Subsidiary of the proceeds of such Debt or
Preferred Stock, the Borrower will prepay the Advances hereunder
to the extent required pursuant to Section 2.09(b)(i); and
(vi) Debt in respect of any interest rate
protection or hedging arrangements entered into by the Borrower
to fix the floating interest rate or float the fixed interest
rate of any Debt permitted hereunder,
provided that "Permitted Debt" shall not include any Debt incurred to
exchange, refinance or refund any of the foregoing Debt (or the
exchange, refinancing or refunding of any other Debt of the Borrower or
any of its Subsidiaries).
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(b) Limitations on Restricted Payments. The Borrower shall not,
and shall not permit any Subsidiary to, directly or indirectly, (A)
declare or pay any dividend on, or make any distribution in respect of
(other than dividends and distributions payable exclusively in Capital
Stock, other than Disqualified Stock), or purchase, redeem or retire for
value any Capital Stock of the Borrower or any Restricted Subsidiary
(except Capital Stock held by the Borrower or a Wholly Owned Restricted
Subsidiary), other than in exchange for the Borrower's own Capital Stock
(other than Disqualified Stock), (B) make any principal payment on, or
redeem, repurchase, defease or otherwise acquire or retire for value,
more than one year prior to a scheduled principal payment or maturity,
Debt of the Borrower that is expressly subordinated in right of payment
to the Advances or the Senior Notes or (C) make any Restricted
Investments (such payments or any other actions described in (A), (B)
and (C) collectively "Restricted Payments"), unless (i) at the time of
and immediately after giving effect to the proposed Restricted Payment,
no Default or Event of Default shall have occurred and be continuing,
(ii) the proposed Restricted Payment is an Investment in a Guarantor and
(iii) at the time of and immediately after giving effect to the proposed
Restricted Payment, the aggregate amount of all Restricted Payments
declared or made after October 31, 1993 shall not exceed, at the date of
determination, an amount equal to Cumulative Operating Cash Flow from
October 31, 1993 to the end of the most recently ended Fiscal Quarter,
taken as a single accounting period, less 1.2 times Cumulative Total
Interest Expense from October 31, 1993 to the end of the most recently
ended Fiscal Quarter, taken as a single accounting period.
The foregoing provisions shall not prevent (i) the payment of any
dividend within 60 days after the date of its declaration if at the date
of declaration such payment would be permitted by such provisions; (ii)
any transaction with an officer or director of the Borrower entered into
in the ordinary course of business (including compensation or employee
benefit arrangements with any such person); (iii) payments made on
shares of Existing Preferred Stock in accordance with its terms as in
effect on the date hereof; (iv) the making of Permitted Investments or
(v) the making of Investments in Guarantors not otherwise permitted by
the foregoing provisions in an amount up to $25,000,000, such amount
increased by the sum of (A) an amount equal to the value received by the
Borrower from the issuance or sale by the Borrower (other than to a
Restricted Subsidiary) after October 31, 1993 of Capital Stock (other
than Capital Stock issued after the date hereof for cash or sold after
the date hereof for cash and other than Disqualified Stock) (the value
received if other than cash, as determined by
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the Board of Directors of the Borrower, whose determination shall be
conclusive and evidenced by a Board Resolution except that if such
issuance or sale is made in Capital Stock of the Borrower for which
there is an active public trading market, the value of such issuance or
sale shall be the market value of such Capital Stock at the date of
issuance), plus (B) dividends or distributions from Unrestricted
Subsidiaries to the extent not included in Operating Cash Flow, less (C)
the amount of payments made pursuant to clause (iii) of this paragraph.
(c) Limitations on Transactions with Affiliates. The Borrower
shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, enter into or cause to exist any transaction or series of
related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Affiliate
unless (A) such transaction or series of transactions is on terms that
are no less favorable to the Borrower or such Restricted Subsidiary, as
the case may be, than would be available in a comparable transaction
with an unrelated third party and (B) the Borrower delivers to the
Administrative Agent with respect to a transaction or series of
transactions involving aggregate payments in excess of $10,000,000 an
Officers' Certificate certifying that such transaction or series of
transactions complies with clause (A) above and either (i) such
transaction or series of transactions is approved by a majority of the
disinterested members of the Board of Directors of the Borrower or (ii)
such transaction or series of transactions is approved by a majority of
the entire Board of Directors and the Borrower has delivered to the
Administrative Agent an opinion that such transaction or series of
transactions is fair to the Borrower or such Restricted Subsidiary from
a financial point of view issued by an investment banking firm of
national standing. Notwithstanding the foregoing, the foregoing
provisions shall not apply to (w) any transaction with an officer or
director of the Borrower entered into in the ordinary course of business
(including compensation or employee benefit arrangements with any such
person), (x) any transaction entered into by the Borrower or one of its
Restricted Subsidiaries with a Restricted Subsidiary of the Borrower,
(y) transactions in existence or approved by the Board of Directors of
the Borrower on or prior to the date hereof or (D) Restricted Payments
permitted under subsection (b) above and any Permitted Investments.
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(d) Limitations on Dividend Restrictions Affecting Subsidiaries.
The Borrower shall not, and shall not permit any Restricted Subsidiary
to, create or otherwise cause or suffer to exist or become effective or
enter into any agreement with any Person that would cause any consensual
encumbrance or restriction of any kind (except for Permitted Debt) on
the ability of any Restricted Subsidiary to (A) pay dividends or make
any other distribution on its Capital Stock, (B) pay any Debt owed to
the Borrower or any Restricted Subsidiary, (C) make loans or advances to
the Borrower or any Restricted Subsidiaries or (D) transfer any of its
property or assets to the Borrower or any Restricted Subsidiary, other
than such encumbrances or restrictions (i) existing as of the date
hereof, (ii) created in connection with any permitted refinancing,
refunding or replacement of any Debt; provided, however, that the
encumbrances or restrictions contained in the agreements governing any
such refinancing, replacement or refunding of Debt shall be no more
restrictive than the encumbrances or restrictions set forth in the
agreements governing the Debt being refinanced as in effect immediately
prior to such refinancing (except that an encumbrance or restriction
that is not more restrictive than those set forth in subsection (b)
above with respect to any Restricted Subsidiary shall in any event be
permitted hereunder) or (iii) created pursuant to an asset sale
agreement, stock sale agreement or similar instrument pursuant to which
any sale of assets permitted hereunder is to be consummated, so long as
such restrictions shall be effective only for the period from the
execution and delivery of such agreement or instrument through a
termination date not later than 180 days after the satisfaction of all
closing conditions in such agreement or instrument.
(e) Limitations on Liens Securing Debt. The Borrower shall not,
and shall not permit any of its Subsidiaries (other than Guarantors) to,
directly or indirectly, create, incur or assume any Liens (other than
Permitted Liens) of any kind against or upon any of its property or
assets, or any proceeds therefrom, to secure Debt (including any of the
Senior Notes) unless contemporaneously therewith effective provision is
made to secure the Advances and the Senior Notes equally and ratably
with such Debt with a Lien on the same assets securing such Debt and,
for so long as such Debt is a subordinated obligation, the Lien securing
such Debt shall be subordinated and junior to the Lien securing the
Advances and the Senior Notes with the same or lesser relative priority
as such subordinated obligation shall have with respect to the Advances
and the Senior Notes.
(f) Negative Pledge. The Borrower shall not permit any Guarantor
to create, incur, assume or suffer to exist any Lien
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on or with respect to any of its properties, whether personal or real,
and whether tangible or intangible, now owned or hereafter acquired, or
permit any Guarantor to sign or file, under the Uniform Commercial Code
of any jurisdiction, a financing statement that names such Guarantor as
debtor, or permit any Guarantor to sign any security agreement
authorizing any secured party thereunder to file any such financing
statement, or permit any Guarantor to assign any right to receive income
constituting any such collateral, excluding, however, from the operation
of the foregoing restrictions, Liens:
(i) for taxes, assessments or governmental charges
or levies on property of a Guarantor if the same shall not at the
time be delinquent or thereafter can be paid without penalty, or
are being contested in good faith and by appropriate proceedings
and for which adequate reserves have been established;
(ii) imposed by law, such as carrier's,
warehouseman's and mechanic's liens and other similar liens
arising in the ordinary course of business;
(iii) arising out of pledges or deposits under
worker's compensation laws or similar legislation, arising in the
ordinary course of business;
(iv) constituting easements, rights of way and
other encumbrances on title to real property that do not render
title to the property encumbered thereby unmarketable or
materially adversely affect the use of such property for its
present purposes;
(v) arising in connection with Capital Lease
Obligations and encumbering only the assets covered by such
Capital Lease Obligations;
(vi) constituting purchase money Liens on or in
property acquired or held by a Guarantor in the ordinary course
of business to secure the purchase price of such property or to
secure Debt incurred solely for the purpose of financing the
acquisition of such property, or Liens existing on such property
at the time of its acquisition; provided that the Debt secured
thereby does not exceed the purchase price thereof; or
(vii) limitations on transfer and rights of first refusal
with respect to the Minority Equity Interests contained in the
respective partnership agreements creating
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the Persons in which the Minority Equity Interests are held.
provided, however, the aggregate principal amount of the Debt secured by
the Liens referred to in clauses (v) and (vi) shall not exceed $100,000
at any one time outstanding.
(g) Mergers, Etc. The Borrower shall not permit any of it
Subsidiaries to merge or consolidate with or into, or sell, assign,
lease or otherwise dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to, any Person except that, subject to
Sections 5.01(f) and 5.04, (i) any Wholly Owned Subsidiary may merge or
consolidate with or into, or dispose of assets to, or acquire assets of,
any Wholly Owned Subsidiary and (ii) any Subsidiary may merge into, or
dispose of assets to, the Borrower, provided in each case that,
immediately prior to and after giving effect to such transaction, no
Default shall have occurred or be continuing and in the case of any such
merger to which the Borrower is a party, the Borrower is the surviving
entity.
(h) Sales Etc. of Assets. The Borrower shall not sell, assign,
lease, transfer or otherwise dispose of, or permit any Subsidiary to
sell, assign, lease, transfer or otherwise dispose of, any of its
assets, including (without limitation) substantially all assets
constituting the business of a division, branch or other unit operation,
except (i) for sales of assets in the ordinary course of its business,
(ii) in a transaction authorized by subsection (g) of this Section 5.02
and (iii) for other sales (including dispositions of obsolete equipment
no longer needed in the conduct of the Borrower's or such Restricted
Subsidiary's business), so long as the aggregate Net Cash Proceeds
(under and as defined in the Senior Notes Indenture) received in
connection with all such sales shall not require any prepayment or
redemption of Senior Notes under the Senior Notes Indenture.
In addition, the Borrower shall not permit any Guarantor to sell,
assign, lease, transfer or otherwise dispose of, any of its assets
except (i) for sales of assets in the ordinary course of its business
and (ii) and dispositions of obsolete equipment no longer needed in the
conduct of the Borrower's or such Restricted Subsidiary's business in an
aggregate amount up to but not exceeding $100,000 during any fiscal
year.
(i) Modifications of Certain Documents. The Borrower shall not
consent to any modification, supplement or waiver of any of the Senior
Note Documents or the Acquisition Agreements,
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without in any such case (i) giving the Administrative Agent not less
than ten Business Days' prior notice thereof and (ii) if such
modification, supplement or waiver is material, obtaining the prior
consent of the Administrative Agent (with the approval of the Majority
Banks).
(j) Prepayment of Senior Notes. The Borrower will not, nor will
it permit any of its Subsidiaries to, purchase, redeem, retire or
otherwise acquire for value, or set apart any money for a sinking,
defeasance or other analogous fund for the purchase, redemption,
retirement or other acquisition of, or make any voluntary payment or
prepayment of the principal of or interest on, or any other amount owing
in respect of, any of the Senior Notes, except for payments of principal
and interest required to be made in respect of the Senior Notes in
accordance with the terms thereof as in effect on the date hereof (or as
originally in effect, in the case of any Senior Notes issued after the
date hereof).
(k) Debt of Guarantors. Except as expressly permitted by Section
4.01(f) or 4.01(h), the Borrower shall not permit any Guarantor to
create, incur, assume, suffer to exist, or directly or indirectly
guarantee or in any other manner be or become liable for any Debt.
SECTION 5.03. Reporting Requirements . So long as any amount
hereunder shall remain unpaid or any Lender shall have any Commitment hereunder,
the Borrower will, unless the Majority Lenders shall otherwise consent in
writing, furnish to the Administrative Agent for distribution to the Lenders:
(a) as soon as possible and in any event within five Business
Days after the occurrence of each Default continuing on the date of such
statement, a statement of a Financial Officer of the Borrower setting
forth details of such Default and the action which the Borrower has
taken or proposes to take with respect thereto;
(b) as soon as available and in any event within 60 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year
of the Borrower, Consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as of the end of such quarter and the
related Consolidated and consolidating statements of operations,
statements of retained earnings and statements of cash flows of such
Persons for such quarter and for the period commencing at the end of the
previous Fiscal Year and ending with the end of such quarter, all in
reasonable detail and duly certified (subject to normal year-end audit
adjustments) by a Financial Officer of the Borrower as
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having been prepared in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the
financial statements referred to in Section 4.01(e);
(c) as soon as available and in any event within 90 days after
the end of each Fiscal Year of the Borrower, a copy of the annual audit
report for such year for the Borrower and its Subsidiaries, including
therein Consolidated and consolidating balance sheets of such Persons in
each case as at the end of such Fiscal Year and the related Consolidated
and consolidating statements of operations, statements of retained
earnings and statements of cash flows of such Persons for such Fiscal
Year, which Consolidated financial statements of the Borrower and its
Subsidiaries shall have been duly certified by Deloitte & Touche or
other independent certified public accountants of recognized standing
reasonably acceptable to the Majority Lenders which certificate shall be
accompanied by a statement of such accounting firm to the Administrative
Agent stating that in the course of the regular audit of the business of
the Borrower and its Subsidiaries, which audit was conducted by such
accounting firm in accordance with generally accepted auditing
standards, nothing came to their attention that caused them to believe
the Borrower was not in compliance with Section 5.01(a), insofar as such
Section relates to accounting matters, and which other financial
statements shall have been duly certified by a Financial Officer of the
Borrower as having been prepared in accordance with generally accepted
accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(e);
(d) promptly after the commencement thereof, notice of all
actions, suits and proceedings of the type described in Section 4.01(h)
before any court or governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, and notice of an adverse
development in any such action, suit or proceeding (including any such
action, suit or proceeding in existence on the date hereof);
(e) promptly after the sending or filing thereof, copies of all
proxy statements, financial statements and reports which the Borrower or
any Subsidiary sends to its stockholders, and copies of all regular,
periodic and special reports, and all registration statements, which the
Borrower or any Subsidiary files with the Securities and Exchange
Commission or any governmental authority which may be substituted
therefor, with any national securities exchange or with the FCC or any
governmental authority which has issued a PUC Authorization to the
Borrower or any Subsidiary;
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(f) as soon as available and in any event within 90 days after
the end of each fiscal year, an updated 10-year forecast of the Borrower
and its Subsidiaries (in format and detail consistent with the forecast
delivered pursuant to Section 4.01(f));
(g) promptly after the filing or receiving thereof, copies of all
reports and notices which the Borrower or any Subsidiary files under
ERISA with the Pension Benefit Guaranty Corporation or the U.S.
Department of Labor or which the Borrower or any Subsidiary receives
from such Corporation or Department;
(h) as soon as available and in any event within 45 days after
the end of each quarterly fiscal period of each fiscal year of the
Borrower, a report identifying any FCC License or PUC Authorization that
has been lost, surrendered or canceled during such period, and within 10
Business Days of the receipt of the Borrower or any of its Subsidiaries
of notice that any FCC License or PUC Authorization has been lost or
canceled, copies of any such notice accompanied by a report describing
the measures undertaken by the Borrower or any of its Subsidiaries to
prevent such loss or cancellation (and the anticipated impact, if any,
that such loss or cancellation will have upon the business of the
Borrower and its Subsidiaries);
(i) within 15 days after any change occurs with respect to any
information regarding any Subsidiary contained in the most recent
schedule furnished under this Section 5.03(i) or, if no such schedule
has been furnished, in Schedule 4.01(k), a schedule, in substantially
the form of Schedule 4.01(k), setting forth as of the date such schedule
is furnished the information described in the first sentence of Section
4.01(k);
(j) within 15 days after any change occurs with respect to any
information regarding the Borrower or any of its Subsidiaries contained
in the most recent schedule furnished under this Section 5.03(j) or, if
no such schedule has been furnished, in Schedule 4.01(y), a schedule, in
substantially the form of Schedule 4.01(y), setting forth as of the date
such schedule is furnished the information described in the first
sentence of Section 4.01(y);
(k) as soon as available and in any event within 60 days after
the end of each Fiscal Quarter of each Fiscal Year of the Borrower, a
certificate of a Financial Officer of the Borrower substantially in the
form of Exhibit I hereto as to the compliance by the Borrower with
paragraphs (a) and (b) of Section 5.02 as at the end of such Fiscal
Quarter and setting forth the number of subscribers to the cellular,
mobile
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telephone and personal communications, competitive access and local
exchange systems and services provided by the Borrower and its
Subsidiaries (broken out on a Subsidiary-by-Subsidiary basis), and all
capital calls by, and distributions from, Minority Owned Entities during
such Fiscal Quarter;
(l) promptly upon the Borrower's obtaining knowledge thereof,
notice of any issuance of a, or change in the, rating of any of the
Borrower's long term Debt (including the Senior Notes);
(m) the receipt of any notice from the FCC or any PUC of the
imposition of any forfeiture against the Borrower or any of its
Subsidiaries or the designation of a hearing or the initiation of any
proceeding which could result in the expiration without renewal,
termination, revocation, suspension, modification or impairment of any
FCC License or PUC Authorization now or hereafter held by the Borrower
or any of its Subsidiaries, to the extent that such expiration,
termination, revocation, suspension, modification or impairment could
have a Material Adverse Effect;
(n) the enactment or promulgation after the date hereof of any
Federal, state or local statute, regulation or ordinance or judicial or
administrative decision or order (or, to the extent the Borrower has
knowledge thereof, any such proposed statute, regulation, ordinance,
decision or order, whether by the introduction of legislation or the
commencement of rulemaking or similar proceedings or otherwise)
affecting or relating to the operation of the business of the Borrower
or any of its Subsidiaries (including, without limitation, any statutes,
regulations, decisions or orders affecting the cellular telephone,
mobile radio telephone, personal communication, local exchange or
competitive access service industries generally and not directed against
the Borrower and its Subsidiaries specifically) which has been issued or
adopted (or which has been proposed) and which could reasonably be
expected to have a Material Adverse Effect; and
(m) such other information respecting the business or properties
or the condition or operations, financial or otherwise, of the Borrower
or any Subsidiary, as the Administrative Agent or any Lender may from
time to time reasonably request.
SECTION 5.04. Consolidation, Merger, Conveyance, Transfer or
Lease . Except as required by Section 5.01(f) hereof, the Borrower shall not,
and shall not permit any other Obligor to, consolidate with or merge into any
other corporation or other entity or convey,
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transfer or lease its properties and assets substantially as an entirety to any
Person, unless (other than the case of any Guarantor):
(a) in case the Borrower shall consolidate with or merge into
another corporation or other entity or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, the
entity formed by such consolidation or into which the Borrower is merged
or the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Borrower substantially as an entirety
(i) shall be a corporation organized and existing under the laws of the
United State of America, any State thereof or the District of Columbia,
(ii) shall expressly assume, by an agreement supplemental hereto,
executed and delivered to the Administrative Agent, in form satisfactory
to the Administrative Agent, the due and punctual payment of the
principal of and interest on the Advances and the performance of every
covenant of this Agreement and the other Loan Documents on the part of
the Borrower to be performed or observed and (iii) shall deliver to the
Administrative Agent such proof of existence and corporate action and
such opinions of counsel as shall be consistent with those delivered
hereunder pursuant to Section 3.01(d) in connection with the initial
Advances hereunder, and covering such other matters as the
Administrative Agent shall reasonably request; and
(b) the Borrower has delivered to the Administrative Agent an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental agreement is required in connection with such transaction,
such supplemental agreement comply with this Section 5.04 and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
Upon any consolidation by the Borrower with or merger by the
Borrower into any other corporation or other entity or any conveyance, transfer
or lease of the properties and assets of the Borrower substantially as an
entirety in accordance with the foregoing provisions of this Section 5.04, the
successor entity formed by such consolidation or into which the Borrower is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Borrower
under this Agreement and the other Loan Documents with the same effect as if
such successor entity had been named as the Borrower herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Agreement and the other Loan Documents.
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ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default . If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall (i) fail to pay or prepay any principal
of, or interest on, any Advance when the same becomes due and payable or
(ii) fail to pay any other amount hereunder when the same becomes due
and payable and, in the case of this clause (ii), such failure shall
continue unremedied for five or more days; or
(b) Any representation or warranty made or deemed made by any
Obligor in or in connection with any Loan Document shall prove to have
been incorrect in any material respect when made; or
(c) The Borrower fails to observe, perform or comply with any of
its agreements or covenants pursuant to Section 5.02(g), 5.02(h) or
5.04; or
(d) The Borrower fails to observe, perform or comply with any of
its agreements or covenants pursuant to Section 5.02 (other than
paragraphs (g) and (h) thereof), and such default or breach continues
for a period of 30 days after there has been given, by registered or
certified mail, to the Borrower by the Administrative Agent or to the
Borrower and the Administrative Agent by any Lender a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) Any Obligor fails to observe, perform or comply with any of
its other agreements or covenants in, or provision of, this Agreement or
any other Loan Document, and such default or breach continues for a
period of 30 days after there has been given, by registered or certified
mail, to the Borrower by the Administrative Agent or to the Borrower and
the Administrative Agent by any Lender specifying such default or breach
and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(f) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt (but excluding Debt
evidenced by the Notes) of the Borrower or such Subsidiary (as the case
may be), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall
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continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt, and the aggregate amount
of all such Debt with respect to which any such failure shall have
occurred and be continuing shall equal or exceed $10,000,000 (such Debt
in such aggregate amount being referred to herein as "Material Debt");
or any other event shall occur or condition shall exist under any
agreement or instrument relating to any Material Debt and shall continue
after the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such event or condition is to
accelerate, or to permit the acceleration of, the maturity of such
Material Debt; or any such Material Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), redeemed, purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Material Debt shall be required
to be made, in each case prior to the stated maturity thereof; or
(g) Any final judgment or judgments, in an amount of $10,000,000
or more, in the aggregate, are entered by a court or courts of competent
jurisdiction against the Borrower or any of its Subsidiaries and such
judgment or judgments remain undischarged for a period (during which
execution shall not be effectively stayed) of 60 days, provided that the
aggregate of all such undischarged judgments equal or exceeds
$10,000,000; or
(h) The Borrower or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or
(i) Any proceeding shall be instituted by or against the Borrower
or any of its Subsidiaries seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its
debts under any Bankruptcy Law, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and,
in the case of any such proceeding instituted against it (but not
instituted or consented to by it), either such proceeding shall remain
undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part
of its property) shall occur; or the Borrower or any of its Subsidiaries
shall take any corporate action to authorize any of the actions set
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forth above in this paragraph (i) or the foregoing paragraph (h); or
(j) Any material provision of any Loan Document shall for any
reason cease to be binding on or enforceable against the respective
Obligor party thereto; or
(k) There shall occur in the reasonable judgment of the Majority
Lenders any Material Adverse Change; or
(l) Any ERISA Event shall have occurred with respect to a Plan
and the sum of the Insufficiency of such Plan and the Insufficiency of
any and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or, in the case of a Plan with respect to which
an ERISA Event described in clause (iii) through (vi) of the definition
of ERISA Event shall have occurred and then exist, the liability related
thereto) is equal to or greater than $10,000,000; or
(m) The Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount which, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Borrower and its ERISA Affiliates as Withdrawal Liability, exceeds
$5,000,000 or requires payments exceeding $10,000,000 per annum; or
(n) The Borrower or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV
of ERISA, if as a result of such reorganization or termination the
aggregate annual contributions of the Borrower and its ERISA Affiliates
to all Multiemployer Plans which are then in reorganization or being
terminated have been or will be increased over the amounts contributed
to such Multiemployer Plans for the respective plan year of each such
Multiemployer Plan immediately preceding the plan year in which the
reorganization or termination occurs by an amount exceeding $10,000,000;
or
(o) The Borrower or any Subsidiary shall suffer the cancellation,
non-renewal or adverse modification of any one or more FCC Licenses or
PUC Authorizations that, in the aggregate, in the judgment of the
Majority Lenders, are reasonably likely to result in a Material Adverse
Effect and the same shall continue uncured for a period of 45 or more
days after notice thereof to the Borrower by the Majority Lenders; or
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(p) The Liens created by the Pledge Agreements and the Puerto
Rico Security Documents shall at any time not constitute a valid and
perfected Lien on the collateral intended to be covered thereby (to the
extent perfection by filing, registration, recordation or possession is
required herein or therein) in favor of the Administrative Agent, free
and clear of all other Liens (other than Liens permitted under Section
5.02(e) or 5.02(f) hereof or under the respective Pledge Agreements or
Puerto Rico Security Documents), or, except for expiration in accordance
with its terms, any of the Support Documents shall for whatever reason
be terminated or cease to be in full force and effect, or the
enforceability thereof shall be contested by any Obligor; or
(q) Any Change of Control (under and as defined in the Senior
Notes Indenture as in effect on the date hereof) shall occur and be
continuing, or Century Communications Corp. and Citizens Utilities
Company (or Subsidiaries of either of the foregoing) shall cease to hold
in the aggregate at least 51% of the Voting Stock of the Borrower;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the obligation of each Lender to make Advances to be terminated,
whereupon the same shall forthwith terminate, and (ii) shall at the request, or
may with the consent, of the Majority Lenders, by notice to the Borrower,
declare the Advances, all interest thereon and all other amounts payable under
this Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Advances, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, in the event of an Event of Default referred to in paragraph
(h) or (i) of this Section 6.01, (A) the obligation of each Lender to make
Advances shall automatically be terminated and (B) the Notes, all such interest
and all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
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ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action . Each Lender hereby
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof,
together with such powers as are reasonably incidental thereto. As to any
matters not expressly provided for by this Agreement or any other Loan Document
(including, without limitation, enforcement or collection of the Notes), the
Administrative Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Majority Lenders, and such instructions shall be binding upon all Lenders;
provided, however, that the Administrative Agent shall not be required to take
any action which exposes the Administrative Agent to personal liability or which
is contrary to any Loan Document or applicable law. The Administrative Agent
agrees to give each Lender prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agents' Reliance, Etc . None of the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (i) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender which is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(ii) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (iii) makes
no warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with any Loan Document or for any financial
projection or other information furnished by the Borrower before or after the
execution of this Agreement; (iv) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions of any Loan Document on the part of the Borrower or any other Person
or to inspect the property (including the books and records) of the Borrower;
(v) shall not be responsible
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to any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or priority of any lien
or security interest created or purported to be created under or in connection
with any Loan Document or any other instrument or document furnished pursuant
hereto; and (vi) shall incur no liability under or in respect of any Loan
Document by acting upon any notice, consent, certificate or other instrument or
writing (which may be by telecopier, telegram, cable or telex) believed by it to
be genuine and signed or sent by the proper party or parties.
SECTION 7.03. The Administrative Agents and its Affiliates . With
respect to its Commitment and the Advances made by it and the Notes issued to
it, the Administrative Agent, in its capacity as a Lender hereunder, shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not an Agent; and the term "Lender" or
"Lenders" shall, unless otherwise expressly indicated, include the
Administrative Agent in its individual capacity. The Administrative Agents and
its affiliates may accept deposits from, lend money to, act as trustee under
indentures of, and generally engage in any kind of business with, the Borrower,
any of its Subsidiaries and any Person who may do business with or own
securities of the Borrower or any such Subsidiary, all as if the Administrative
Agent was not the Administrative Agent and without any duty to account therefor
to the Lenders.
SECTION 7.04. Lender Credit Decision .
(a) Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
(b) Without limiting the foregoing, each Lender acknowledges that
the Administrative Agent is not responsible for the forecasts and projections
received from time to time by such Lender whether or not such forecasts or
projections were prepared by the Borrower, any other Obligor, the Administrative
Agent or any other party or based on information provided by any such party. The
Administrative Agent makes no representation or warranty whatsoever as to the
truth, accuracy or content of the information contained therein.
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SECTION 7.05. Indemnification by Lenders . The Lenders agree to
indemnify the Administrative Agent (to the extent not reimbursed by the
Borrower), ratably according to the respective principal amounts of the Notes
then owing to each of them (or if no Notes are at the time outstanding or if any
Notes are held by persons which are not Lenders ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses 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 or any action taken or omitted by
the Administrative Agent under this Agreement; provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from gross negligence or willful misconduct on the part of the Administrative
Agent. Without limitation of the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any other Loan Document, or in
connection with any refinancing or restructuring of the credit arrangements
provided pursuant to the Loan Documents, including, without limitation, in the
nature of a workout or of any insolvency or bankruptcy proceedings to the extent
that the Administrative Agent is not reimbursed for such expenses by the
Borrower.
SECTION 7.06. Successor Administrative Agent . 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 with or without cause by the
Majority Lenders. Upon any such resignation or removal, the Majority Lenders
shall have the right to appoint a successor Administrative Agent so long as all
of the long-term public senior debt securities of such successor Administrative
Agent are rated at least "BBB-" by Standard & Poor's Corporation or "Baa3" by
Moody's Investors Service, Inc. at the time of its acceptance of appointment as
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Majority Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Majority Lenders' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Lenders, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States of America or of
any State thereof, having a combined capital and surplus of at least $50,000,000
and all of whose long-
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term public senior debt securities are rated at least "BBB-" by Standard &
Poor's Corporation or at least "Baa3" by Moody's Investors Service, Inc. 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
and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc . No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, no amendment, waiver or consent shall,
unless in writing and signed by all the Lenders, do any of the following: (a)
waive any of the conditions specified in Article III, (b) increase the
Commitments of the Lenders or subject the Lenders to any additional obligations,
(c) reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of Lenders, which shall be
required for the Lenders or any of them to take any action hereunder or (f)
amend this Section 8.01; and provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement or any Note.
SECTION 8.02. Notices, Etc . All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its address at c/o Century
Communications Corp., 50 Locust Avenue, New Canaan, Connecticut 06840,
Attention: Treasurer, with a copy to David Z. Rosensweig, Esq., Leavy Rosensweig
& Hyman,
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11 East 44th Street, New York, New York 10017; if to any Bank, at its Domestic
Lending Office specified opposite its name on Schedule I hereto; if to any other
Lender, at its Domestic Lending Office specified in the Assignment and
Acceptance pursuant to which it became a Lender; and if to the Administrative
Agent, at its address at 399 Park Avenue, New York, New York 10043, Attention:
Global Media and Communications; or, as to each party, at such other address as
shall be designated by such party in a written notice to the other parties. All
such notices and communications shall be effective when received by the
addressee thereof.
SECTION 8.03. No Waiver; Remedies . No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs, Expenses and Taxes .
(a) The Borrower agrees to pay on demand all reasonable costs and
expenses in connection with the preparation, execution, delivery, administration
(other than routine administrative expenses), modification and amendment of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Administrative Agent with respect thereto and with respect to
advising the Administrative Agent as to its rights and responsibilities under
this Agreement. The Borrower further agrees to pay on demand all costs and
expenses, if any (including, without limitation, reasonable counsel fees and
expenses) of the Administrative Agent and each of the Lenders, in connection
with the enforcement (whether through negotiations, legal proceedings or
otherwise and whether or not resulting in a settlement of any claim, proceeding
or case) of, or legal advice in respect of rights and responsibilities under,
this Agreement, the Notes and the other documents to be delivered hereunder or
in connection with the refinancing or restructuring of the credit arrangements
provided pursuant to the Loan Documents, including, without limitation, in the
nature of a workout or insolvency or bankruptcy proceedings, including, without
limitation, reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 8.04(a).
(b) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender other than on the last day of the Interest Period for such Advance, as a
result of a payment or Conversion pursuant to
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Section 2.07(f) or 2.11, acceleration of the maturity of the Notes pursuant to
Section 6.01 or for any other reason, the Borrower shall, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses which it may
reasonably incur as a result of such payment or Conversion, including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to fund or
maintain such Advance. A certificate as to such amounts, submitted to the
Borrower and the Administrative Agent by such Lender, shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 8.05. Right of Set-off . Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
any Note held by such Lender, whether or not such Lender shall have made any
demand under this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Lender under this Section 8.05 are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which such
Lender may have.
SECTION 8.06. Binding Effect . This Agreement shall become
effective when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have been notified
by each Lender that such Lender has executed it and thereafter shall be binding
upon and inure to the benefit of the Borrower, the Administrative Agent and each
Lender and their respective successors and assigns, except that the Borrower
shall not have the right to assign its rights hereunder or any interest herein
without the prior written consent of the Lenders.
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SECTION 8.07. Assignments and Participations .
(a) Each Lender may and, if demanded by the Borrower (following a
demand by the Lender pursuant to Section 2.10(a) and 2.10(b)) upon at least 5
Business Days' notice to such Lender and the Administrative Agent, shall assign
to one or more banks or other entities all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment and the Note or Notes held by it); provided, however,
(i) each such assignment shall be of a constant, and not a varying, percentage
of all rights and obligations under this Agreement, (ii) except in the case of
assignments to affiliates or other Lenders, the amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $5,000,000 and shall be an integral multiple of
$1,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv)
each such assignment made as a result of a demand by the Borrower shall be
arranged by the Borrower after consultation with the Administrative Agent and
shall be either an assignment of all of the rights and obligations of the
assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other
such assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrower unless and until
such Lender shall have received one or more payments from either the Borrower or
one or more Eligible Assignees in an aggregate amount at least equal to the
aggregate outstanding principal amount of the Advances owing to such Lender,
together with accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this Agreement and
(vi) the parties to each such assignment shall execute and deliver to the
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $2,500. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least 5 days
after the execution and delivery thereof to the Administrative Agent, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
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portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument or document furnished
pursuant to any Loan Document; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under this Agreement or any other instrument
or document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Lender or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under any Loan Document; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under any Loan Document as are delegated to them by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of any Loan Document are required to
be performed by it as a Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment of, and principal amount of the
Advances owing to, each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Administrative Agent and the Lenders may
treat each Person whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
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(d) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the
Administrative Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in the Register
and (iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note or Notes a new Note to the order of such Eligible Assignee in an amount
equal to the Commitment assumed by it pursuant to such Assignment and Acceptance
and, if the assigning Lender has retained a Commitment hereunder, a new Note to
the order of the assigning Lender in an amount equal to the Commitment retained
by it hereunder. Such new Note or Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Note or
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A hereto.
(e) Each Lender may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment and the Advances owing to it); provided, however, (i) such Lender's
obligations under this Agreement (including, without limitation, its Commitment
to the Borrower hereunder and the Advances owing to it and the Note or Notes
held by it) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (iv) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of any Loan Document, or any consent to any departure by
any Loan Party therefrom, except to the extent that such amendment, waiver or
consent would reduce the principal of, or interest on, the Advances or any fees
or other amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower, its Subsidiaries or any
Minority Owned Entity furnished to
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such Lender by or on behalf of the Borrower; provided that, prior to any such
disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any confidential information
relating to the Borrower received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 8.08. Indemnification by the Borrower . The Borrower
agrees to indemnify and hold harmless the Administrative Agent, each Lender and
CSI and each of their respective affiliates, and each oftheir respective
officers, directors, employees, agents, advisors, representatives, and
controlling persons (each, an "Indemnified Party") from and against any and all
claims, damages, liabilities, obligations, losses, penalties, actions,
judgments, suits, costs, expenses and disbursements (including, without
limitation, fees and disbursements of counsel and reasonable allocated costs of
in-house counsel) of any kind or nature whatsoever which may be imposed on,
incurred by or asserted against any Indemnified Party in connection with or
arising out of, or in connection with the preparation of a defense of, (a) any
investigation, litigation, or proceeding related to any acquisition or proposed
acquisition by the Borrower, or by any Subsidiary or Affiliate of the Borrower,
of all or any portion of the stock or substantially all the assets of any Person
or (b) any other investigation, litigation or proceeding involving the Borrower
or any of its Affiliates, in each case whether or not such investigation,
litigation or proceeding is brought by the Borrower or any of its Affiliates or
any of their directors, shareholders or creditors or an Indemnified Party is
otherwise a party thereto, except to the extent that such claim, damage,
liability, obligation, loss, penalty, action, judgment, suit, cost, expense or
disbursement is found in a final judgment by a court of competent jurisdiction
to have resulted from (i) the gross negligence or willful misconduct of such
Indemnified Party or such Indemnified Party's affiliates, or (ii) if such
Indemnified Party is the Administrative Agent, a Lender, CSI or any of their
respective affiliates, the gross negligence or willful misconduct of such
Indemnified Party's officers, directors, employees, agents, advisors,
representatives and controlling persons or (iii) if such Indemnified Party is an
officer, director, employee, agent, advisor, representative or controlling
person of another Indemnified Party, the gross negligence or willful misconduct
of such other Indemnified Party.
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SECTION 8.09. Confidentiality . In connection with the
negotiation and administration of this Agreement and the other Loan Documents,
the Borrower has furnished and will from time to time furnish to the
Administrative Agent and the Lenders (each, a "Recipient") written information
which is identified to the Recipient in writing when delivered as confidential
(such information, other than any such information which (i) was publicly
available, or otherwise known to the Recipient, at the time of disclosure, (ii)
subsequently becomes publicly available other than through any act or omission
by the Recipient or (iii) otherwise subsequently becomes known to the Recipient
other than through a Person whom the Recipient knows to be acting in violation
of his or its obligations to the Borrower, being hereinafter referred to as
"Confidential Information"). The Recipient will treat confidentially any
Confidential Information in accordance with such procedures as the Recipient
applies generally to information of that nature. It is understood, however, that
the foregoing will not restrict the Recipient's ability to freely exchange such
Confidential Information with (i) directors, employees, auditors, accountants or
counsel of such Recipient or its affiliates and (ii) current or prospective
assignees of and participants in the Recipient's position herein, but in the
case of prospective assignees of and participants in the Recipient's position
herein, the Recipient's ability to so exchange Confidential Information shall be
conditioned upon any such prospective assignee's or participant's entering into
an understanding as to confidentiality similar to this provision. It is further
understood that the foregoing will not prohibit the disclosure of any or all
Confidential Information if and to the extent that such disclosure may be
required (i) by a regulatory agency or otherwise in connection with an
examination of the Recipient's records by appropriate authorities, (ii) pursuant
to court order, subpoena or other legal process or in connection with any
pending or threatened litigation, (iii) pursuant to any order, regulation or
ruling applicable to such Recipient or at the express direction of any other
authorized governmental agency, (iv) as may be required or appropriate in any
report, statement or testimony submitted to any municipal, state or Federal
regulatory body having or claiming to have jurisdiction over such Recipient or
to the Federal Reserve Board or the FDIC or similar organizations (whether in
the United States or elsewhere) or their successors, (v) otherwise as required
by law, or (vi) in order to protect its interests or its rights or remedies
hereunder or under the other Loan Documents; in the event of any required
disclosure under clause (ii), (iii), (iv) or (v) above, the Recipient agrees to
use reasonable efforts to inform the Borrower as promptly as practicable.
SECTION 8.10. Governing Law . This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the State of New
York.
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SECTION 8.11. Execution in Counterparts . This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 8.12. WAIVER OF JURY TRIAL . EACH OF THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT.
SECTION 8.13. Submission to Jurisdiction; Waivers . The Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail return receipt requested (or any substantially similar
form of mail), postage prepaid, to the Borrower at its address set forth
in Section 8.02 or at such other address of which the Administrative
Agent shall have been notified pursuant thereto with a copy to Leavy
Rosensweig & Hyman, 11 East 44th Street, New York, New York 10017,
Attention David Z. Rosensweig, Esq.; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
Credit Agreement
<PAGE>
<PAGE>
-78-
SECTION 8.14. Acknowledgments . The Borrower hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the Notes and the other Loan
Documents;
(b) none of the Administrative Agents or Lenders has any
fiduciary relationship to the Borrower, and the relationship between the
Administrative Agent and Lenders, on one hand, and Borrower, on the
other hand, is solely that of debtor and creditor; and
(c) no joint venture exists among the Borrower and the Lenders.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BORROWER
CENTENNIAL CELLULAR CORP.
By: /s/ Scott N. Schneider
________________________________
Title: Senior Vice President
Treasurer
Chief Financial Officer
Credit Agreement
<PAGE>
<PAGE>
-79-
ADMINISTRATIVE AGENT
CITIBANK, N.A.,
as Administrative Agent
By: /s/ Mary S. Thomas
________________________________
Title: Attorney-In-Fact
BANKS
Commitment
- ----------
$50,000,000 CITIBANK, N.A.
By: /s/ Mary S. Thomas
________________________________
Title: Attorney-In-Fact
Credit Agreement
<PAGE>
<PAGE>
Schedule I
<TABLE>
<CAPTION>
Lender Domestic Lending Office
- ------ -----------------------
<S> <C>
Citibank, N.A. Citibank, N.A.
399 Park Avenue
New York, New York 10043
</TABLE>
<PAGE>
<PAGE>
SCHEDULE 4.01(k) and (y)
to the
Credit Agreement
<TABLE>
<CAPTION>
State of Par Value of Capital Shares Shares
Name of Company Organization Stock Authorized Outstanding
- ------------------------------------- ------------- ---------------------- ---------- -----------
<S> <C> <C> <C> <C>
I. DIRECT SUBSIDIARIES OF CENTENNIAL CORP. ('BORROWER')
Owned 100% by Borrower
Century Roanoke Cellular Corp. Delaware common par value $1.00 1000 1000
Century Roanoke Cellular Corp. Virginia common par value $1.00 5000 5000
Century Elkhart Cellular Corp.
("Century Elkhart") Delaware common par value $1.00 1000 1000
Century Michiana Cellular Corp.
("Century Michiana") Delaware common par value $1.00 1000 1000
Century South Bend Cellular Corp.
("South Bend") Delaware common par value $1.00 1000 1000
Century Charlottesville Cellular
Corp. Virginia common par value $1.00 1000 100
Century Charlottesville Cellular
Corp. Delaware common par value $1.00 1000 100
Century Lynchburg Cellular Corp. Delaware common par value $1.00 1000 100
Century Lynchburg Cellular Corp. Virginia common par value $1.00 5000 100
Century Rural Cellular Corp. Delaware common par value $1.00 1000 100
Century Montgomery Cellular Corp. Delaware common par value $1.00 1000 100
<CAPTION>
Outstanding
Entity Type Restricted Options,
Corporation ("c") Subsidiary ("r") Warrants, Rights
Certificate Partnership ("p") Unrestricted of Conversion,
Name of Company Number(s) Joint Venture ("j") Subsidiary ("u") etc. Liens*
- ------------------------------------- ---------- ------------------- ---------------- ----------------
<S> <C> <C> <C> <C>
1. DIRECT SUBSIDIARIES OF CENTENNIAL CORP. ('BORROWER')
Owned 100% by Borrower
Century Roanoke Cellular Corp. 1 c r None
Century Roanoke Cellular Corp. 1 c r None
Century Elkhart Cellular Corp.
("Century Elkhart") 1 c r None
Century Michiana Cellular Corp.
("Century Michiana") 1 c r None
Century South Bend Cellular Corp.
("South Bend") 1 c r None
Century Charlottesville Cellular
Corp. 1 c r None
Century Charlottesville Cellular
Corp. 1 c r None
Century Lynchburg Cellular Corp. 1 c r None
Century Lynchburg Cellular Corp. 1 c r None
Century Rural Cellular Corp. 1 c r None
Century Montgomery Cellular Corp. 1 c r None
</TABLE>
* For borrowed funds.
-1-
<PAGE>
<PAGE>
SCHEDULE 4.01(k) and (y)
to the
Credit Agreement
<TABLE>
<CAPTION>
State of Par Value of Capital Shares Shares
Name of Company Organization Stock Authorized Outstanding
- ------------------------------------- ------------ ---------------------- ---------- -----------
<S> <C> <C> <C> <C>
Century Beaumont Cellular Corp.
("Century Beaumont") Delaware common par value $1.00 1000 100
Century Yuma Cellular Corp. Delaware common par value $1.00 1000 100
Century Cellular Realty Corp. Delaware common par value $1.00 1000 100
Century Yuma Paging Corp. Delaware no par value 200 10
El Centro Cellular Corp. ("El Centro
Cellular") Delaware common par value $1.00 1000 100
Century Indiana Cellular Corp. Delaware common par value $1.00 1000 100
Centennial Cellular Telephone Company
of Coconino ("Coconino") Delaware common par value $10.00 100 100
Centennial Cellular Telephone Company
of Del Norte ("Del Norte") Delaware common par value $10.00 100 100
Centennial Cellular Telephone Company
of Modoc ("Modoc") Delaware common par value $10.00 100 100
Centennial Cellular Telephone Company
Lawrence ("Lawrence") Delaware common par value $10.00 100 100
Centennial Cellular Telephone Company
of Sacramento Valley ("Sacramento") Delaware common par value $10.00 100 100
<CAPTION>
Outstanding
Entity Type Restricted Options,
Corporation ("c") Subsidiary ("r") Warrants, Rights
Certificate Partnership ("p") Unrestricted of Conversion,
Name of Company Number(s) Joint Venture ("j") Subsidiary ("u") etc. Liens*
- ------------------------------------- ---------- ------------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Century Beaumont Cellular Corp.
("Century Beaumont") 1 c r None
Century Yuma Cellular Corp. 1 c r None
Century Cellular Realty Corp. 1 c r None
Century Yuma Paging Corp. 1 c r None
El Centro Cellular Corp. ("El Centro
Cellular") 1 c r None
Century Indiana Cellular Corp. 1 c r None
Centennial Cellular Telephone Company
of Coconino ("Coconino") 3 c u None
Centennial Cellular Telephone Company
of Del Norte ("Del Norte") 3 c u None
Centennial Cellular Telephone Company
of Modoc ("Modoc") 3 c u None
Centennial Cellular Telephone Company
Lawrence ("Lawrence") 3 c u None
Centennial Cellular Telephone Company
of Sacramento Valley ("Sacramento") 3 c u None
</TABLE>
* For borrowed funds.
-2-
<PAGE>
<PAGE>
SCHEDULE 4.01(k) and (y)
to the
Credit Agreement
<TABLE>
<CAPTION>
State of Par Value of Capital Shares Shares
Name of Company Organization Stock Authorized Outstanding
- ------------------------------------- ------------ ---------------------- ---------- -----------
<S> <C> <C> <C> <C>
Centennial Cellular Telephone Company
of San Francisco("San Francisco") Delaware common par value $10.00 100 100
Lambda PCS Corp. Nevada common par value $1.00 100 100
Centennial Lake Charles Cellular
Corp. ("Lake Charles") Delaware common par value $1.00 1000 100
Lambda Communications, Incorporated Puerto Rico common par value $100 1000 10
Centennial Puerto Rico Wireless
Corporation Delaware common par value $1.00 1000 100
Alexandria Cellular Corp. Delaware common par value $1.00 3000 3000
Iberia Cellular Telephone Company Washington common par value $ .01 50000 1000
Centennial Morehouse Cellular Corp. Delaware common par value $1.00 1000 100
Centennial Beauregard Cellular Corp. Delaware common par value $1.00 1000 100
Centennial Michigan RSA 6 Cellular
Corp. Delaware common par value $1.00 1000 100
Centennial Michigan RSA 7 Cellular
Corp. Delaware common par value $1.00 1000 100
Centennial Microwave Corp. Delaware common par value $1.00 1000 100
Century Michigan Cellular Corp. Delaware common par value $1.00 1000 100
<CAPTION>
Outstanding
Entity Type Restricted Options,
Corporation ("c") Subsidiary ("r") Warrants, Rights
Certificate Partnership ("p") Unrestricted of Conversion,
Name of Company Number(s) Joint Venture ("j") Subsidiary ("u") etc. Liens*
- ------------------------------------- ---------- ------------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Centennial Cellular Telephone Company
of San Francisco("San Francisco") 3 c u None
Lambda PCS Corp. 1 c u None
Centennial Lake Charles Cellular
Corp. ("Lake Charles") 1 c u None
Lambda Communications, Incorporated 1 c u None
Centennial Puerto Rico Wireless
Corporation 1 c u None
Alexandria Cellular Corp. 2 c r None
Iberia Cellular Telephone Company 4 c r None
Centennial Morehouse Cellular Corp. 1 c r None
Centennial Beauregard Cellular Corp. 1 c r None
Centennial Michigan RSA 6 Cellular
Corp. 1 c r None
Centennial Michigan RSA 7 Cellular
Corp. 1 c r None
Centennial Microwave Corp. 1 c r None
Century Michigan Cellular Corp. 1 c r None
</TABLE>
* For borrowed funds.
-3-
<PAGE>
<PAGE>
SCHEDULE 4.01(k) and (y)
to the
Credit Agreement
<TABLE>
<CAPTION>
State of Par Value of Capital Shares Shares
Name of Company Organization Stock Authorized Outstanding
- ------------------------------------- ------------ ---------------------- ---------- -----------
<S> <C> <C> <C> <C>
Centennial Jackson Cellular Corp. Delaware common par value $1.00 1000 100
Century Asia Pacific Cellular Holding
Corp. Delaware NO STOCK ISSUED
Centennial Benton Harbor Cellular
Corp. Delaware common par value $1.00 1000 100
Lambda Realty Corp. Delaware common par value $1.00 1000 100
Centennial Randolph Cellular Corp. Delaware common par value $1.00 1000 100
Mega-Comm, Inc. Delaware common par value $1.00 1000 100
Centennial Clinton Cellular Corp. Delaware common par value $1.00 1000 100
Centennial Ashe Cellular Corp. Delaware common par value $1.00 1000 100
Centennial Lafayette Cellular Corp. Lousiana common par value $1.00 50,000 200
Centennial Hammond Cellular Corp. Delaware common par value $1.00 1000 100
Centennial Louisiana Holding Corp.
("LA Holding") Delaware common par value $1.00 1000 100
<CAPTION>
Outstanding
Entity Type Restricted Options,
Corporation ("c") Subsidiary ("r") Warrants, Rights
Certificate Partnership ("p") Unrestricted of Conversion,
Name of Company Number(s) Joint Venture ("j") Subsidiary ("u") etc. Liens*
- ------------------------------------- ---------- ------------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Centennial Jackson Cellular Corp. 1 c r None
Century Asia Pacific Cellular Holding
Corp. c N/A None
Centennial Benton Harbor Cellular
Corp. 1 c u None
Lambda Realty Corp. 1 c r None
Centennial Randolph Cellular Corp. 1 c r None
Mega-Comm, Inc. 12 c r None
Centennial Clinton Cellular Corp. 1 c r None
Centennial Ashe Cellular Corp. 1 c r None
Centennial Lafayette Cellular Corp. 2 c r None
Centennial Hammond Cellular Corp. 1 c r None
Centennial Louisiana Holding Corp.
("LA Holding") 1 c r None
</TABLE>
* For borrowed funds.
-4-
<PAGE>
<PAGE>
SCHEDULE 4.01(k) and (y)
to the
Credit Agreement
<TABLE>
<CAPTION>
State of Par Value of Capital Shares Shares
Name of Company Organization Stock Authorized Outstanding
- ------------------------------------- ------------ ---------------------- ---------- -----------
<S> <C> <C> <C> <C>
II. SECOND TIER SUBSIDIARIES OF THE BORROWER
Owned 100% by Century Michiana
Michiana Metronet, Inc. Indiana common par value $1.00 1000 100
Owned 100% by South Bend
South Bend Metronet, Inc. Indiana common par value $1.00 1000 100
Owned 100% by Century Elkhart
Elkhart Metronet, Inc. Indiana common par value $1.00 1000 100
Owned 100% by Century Beaumont
Bauce Communications, Inc. Oregon common par value $1.00 10,000 675.68
Owned 100% by Centennial Clinton
Cellular Corp., Century Roanoke
Cellular Corp. (VA), Century Roanoke
Cellular Corp. (DE), Century
Lynchburg Cellular Corp. (VA),
Century Lynchburg Cellular Corp.
(DE), and Centennial Ashe Cellular
Corp.
Centennial Tri-State Operating
Partnership Delaware N/A N/A N/A
Owned 100% by El Centro Cellular
Century El Centro Cellular Corp. California no par value 7500 10
<CAPTION>
Outstanding
Entity Type Restricted Options,
Corporation ("c") Subsidiary ("r") Warrants, Rights
Certificate Partnership ("p") Unrestricted of Conversion,
Name of Company Number(s) Joint Venture ("j") Subsidiary ("u") etc. Liens*
- ------------------------------------- ---------- ------------------- ---------------- ----------------
<S> <C> <C> <C> <C>
II. SECOND TIER SUBSIDIARIES OF THE BORROWER
Owned 100% by Century Michiana
Michiana Metronet, Inc. 2 c r None
Owned 100% by South Bend
South Bend Metronet, Inc. 2 c r None
Owned 100% by Century Elkhart
Elkhart Metronet, Inc. 2 c r None
Owned 100% by Century Beaumont
Bauce Communications, Inc. 5 c r None
Owned 100% by Centennial Clinton
Cellular Corp., Century Roanoke
Cellular Corp. (VA), Century Roanoke
Cellular Corp. (DE), Century
Lynchburg Cellular Corp. (VA),
Century Lynchburg Cellular Corp.
(DE), and Centennial Ashe Cellular
Corp.
Centennial Tri-State Operating
Partnership N/A p r None
Owned 100% by El Centro Cellular
Century El Centro Cellular Corp. 2 c r None
</TABLE>
* For borrowed funds.
-5-
<PAGE>
<PAGE>
SCHEDULE 4.01(k) and (y)
to the
Credit Agreement
<TABLE>
<CAPTION>
State of Par Value of Capital Shares Shares
Name of Company Organization Stock Authorized Outstanding
- ------------------------------------- ------------ ---------------------- ---------- -----------
<S> <C> <C> <C> <C>
92.8% of shares owned by Alexandria
Cellular Corp.
Alexandria Cellular License Corp. Delaware no par value 10,000 10,000
Owned 100% by LA Holding Centennial
Centennial Claibourne Cellular
Corp. Delaware common par value $1.00 1000 100
Owned 100% by LA Holding
Centennial Caldwell Cellular Corp. Delaware common par value $1.00 1000 100
Owned 100% by LA Holding
Centennial DeSoto Cellular Corp. Delaware common par value $1.00 1000 100
Owned 100% by Centennial Lafayette
Cellular Corp.
Lafayette Communications, Inc. Delaware common par value $1.00 150,000 200
Owned 100% by Century Yuma Paging
Corp.
Hendrix Electronics, Inc. California no par value 2500 1147
III. THIRD TIER SUBSIDIARIES OF THE BORROWER
Owned 100% by BCI
Bauce Communications of Beaumont,
Inc. Oregon common par value $1.00 10,000 1000
<CAPTION>
Outstanding
Entity Type Restricted Options,
Corporation ("c") Subsidiary ("r") Warrants, Rights
Certificate Partnership ("p") Unrestricted of Conversion,
Name of Company Number(s) Joint Venture ("j") Subsidiary ("u") etc. Liens*
- ------------------------------------- ---------- ------------------- ---------------- ----------------
<S> <C> <C> <C> <C>
92.8% of shares owned by Alexandria
Cellular Corp.
Alexandria Cellular License Corp. c r None
Owned 100% by LA Holding Centennial
Centennial Claibourne Cellular
Corp. 1 c u None
Owned 100% by LA Holding
Centennial Caldwell Cellular Corp. 1 c r None
Owned 100% by LA Holding
Centennial DeSoto Cellular Corp. 1 c r None
Owned 100% by Centennial Lafayette
Cellular Corp.
Lafayette Communications, Inc. 1 c r None
Owned 100% by Century Yuma Paging
Corp.
Hendrix Electronics, Inc. 18 c r None
III. THIRD TIER SUBSIDIARIES OF THE BORROWER
Owned 100% by BCI
Bauce Communications of Beaumont,
Inc. 1 c r None
</TABLE>
* For borrowed funds.
-6-
<PAGE>
<PAGE>
SCHEDULE 4.01(k) and (y)
to the
Credit Agreement
<TABLE>
<CAPTION>
State of Par Value of Capital Shares Shares
Name of Company Organization Stock Authorized Outstanding
- ------------------------------------- ------------ ---------------------- ---------- -----------
<S> <C> <C> <C> <C>
Owned 100% by Hendrix Electronics,
Inc.
Hendrix Radio Communications, Inc. California no par value 2500 350
94.3% owned by Lafayette
Communications, Inc.
Lafayette Cellular Telephone
Company Delaware N/A N/A N/A
Owned 91.4% by Elkhart Metronet, Inc.
Elkhart Cellular Telephone Company District of Columbia N/A N/A N/A
IV. MINORITY INTERESTS OF THE BORROWER
Owned 6.9% by Coconino
Coconino, Arizona RSA Limited
Partnership Arizona N/A N/A N/A
Owned 21.3% by Del Norte
Cal-One, Cellular L.P. California N/A N/A N/A
Owned 25% by Modoc
Modoc RSA Limited Partnership California N/A N/A N/A
Owned 14.29% by Lawrence
Pennsylvania RSA No. 6(II) Limited
Partnership Delaware N/A N/A N/A
<CAPTION>
Outstanding
Entity Type Restricted Options,
Corporation ("c") Subsidiary ("r") Warrants, Rights
Certificate Partnership ("p") Unrestricted of Conversion,
Name of Company Number(s) Joint Venture ("j") Subsidiary ("u") etc. Liens*
- ------------------------------------- ---------- ------------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Owned 100% by Hendrix Electronics,
Inc.
Hendrix Radio Communications, Inc. 1 c r None
94.3% owned by Lafayette
Communications, Inc.
Lafayette Cellular Telephone
Company N/A p r None
Owned 91.4% by Elkhart Metronet, Inc.
De facto
partnership
governed
by joint
Elkhart Cellular Telephone Company N/A agreement r None
IV. MINORITY INTERESTS OF THE BORROWER
Owned 6.9% by Coconino
Coconino, Arizona RSA Limited
Partnership N/A p N/A None
Owned 21.3% by Del Norte
Cal-One, Cellular L.P. N/A p N/A None
Owned 25% by Modoc
Modoc RSA Limited Partnership N/A p N/A None
Owned 14.29% by Lawrence
Pennsylvania RSA No. 6(II) Limited
Partnership N/A p N/A None
</TABLE>
* For borrowed funds.
-7-
<PAGE>
<PAGE>
SCHEDULE 4.01(k) and (y)
to the
Credit Agreement
<TABLE>
<CAPTION>
State of Par Value of Capital Shares Shares
Name of Company Organization Stock Authorized Outstanding
- ------------------------------------- ------------ ---------------------- ---------- -----------
<S> <C> <C> <C> <C>
Owned 14.29% by Lawrence
Pennsylvania RSA No. 6(I)
Settlement Group Pennsylvania N/A N/A N/A
Owned 23.472% by Sacramento
Sacramento Valley Limited
Partnership California N/A N/A N/A
Owned 2.90% by San Francisco
GTE Mobilnet of California Limited
Partnership California N/A N/A N/A
Owned 25.1% by Lake Charles
District of
Lake Charles Celtelco Columbia N/A N/A N/A
<CAPTION>
Outstanding
Entity Type Restricted Options,
Corporation ("c") Subsidiary ("r") Warrants, Rights
Certificate Partnership ("p") Unrestricted of Conversion,
Name of Company Number(s) Joint Venture ("j") Subsidiary ("u") etc. Liens*
- ------------------------------------- ---------- ------------------- ---------------- ----------------
<S> <C> <C> <C> <C>
Owned 14.29% by Lawrence
Pennsylvania RSA No. 6(I)
Settlement Group N/A p N/A None
Owned 23.472% by Sacramento
Sacramento Valley Limited
Partnership N/A p N/A None
Owned 2.90% by San Francisco
GTE Mobilnet of California Limited
Partnership N/A p N/A None
Owned 25.1% by Lake Charles
Lake Charles Celtelco N/A p N/A None
</TABLE>
* For borrowed funds.
-8-
<PAGE>
<PAGE>
EXHIBIT A
[Form of Note]
PROMISSORY NOTE
U.S.$_____________________ Dated: September __, 1996
FOR VALUE RECEIVED, the undersigned, CENTENNIAL CELLULAR CORP., a
Delaware corporation (the "Borrower"), HEREBY PROMISES TO PAY to the order of
_____________ (the "Lender") for the account of its Applicable Lending Office
(as defined in the Credit Agreement referred to below) the principal sum of each
Advance (as defined below) owing to the Lender by the Borrower pursuant to the
Credit Agreement (as defined below) in such installments, at such times and in
such manner as are specified in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, N.A., as Administrative Agent, at 399 Park
Avenue, New York, New York 10043, in same day funds. Each Advance made by the
Lender to the Borrower pursuant to the Credit Agreement, and all payments made
on account of principal thereof, shall be recorded by the Lender and, prior to
any transfer hereof, endorsed on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and is
entitled to the benefits of, the Credit Agreement dated as of September 12, 1996
(the "Credit Agreement") among the Borrower, the Lender and certain other banks
parties thereto, and Citibank, N.A., as Administrative Agent for the Lender and
such other banks. The Credit Agreement, among other things, (i) provides for the
making of advances (the "Advances") by the Lender to the Borrower from time to
time in an aggregate amount not to exceed at any time outstanding the U.S.
dollar amount first above mentioned, the indebtedness of the Borrower resulting
from each such Advance being evidenced by this Promissory Note, and (ii)
contains provisions for acceleration of the maturity hereof upon the happening
of certain stated events and also for prepayments on account of principal hereof
prior to the maturity hereof upon the terms and conditions therein specified.
Note
<PAGE>
<PAGE>
-2-
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver of
such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United States.
CENTENNIAL CELLULAR CORP.
By
__________________________________
Title:
Note
<PAGE>
<PAGE>
ADVANCES AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
=========================================================================================
Amount of
Principal Paid or Unpaid Principal Notation
Date Amount of Advance Prepaid Balance Made by
=========================================================================================
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------
=========================================================================================
</TABLE>
Note
<PAGE>
<PAGE>
EXHIBIT B
[Form of Notice of Borrowing]
NOTICE OF BORROWING
Citibank N.A., as Administrative Agent
for the Lenders parties
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: Media Department
Gentlemen:
The undersigned, Centennial Cellular Corp., refers to the Credit
Agreement, dated as of September 12, 1996 (the "Credit Agreement", the terms
defined therein being used herein as therein defined), among the undersigned,
certain Lenders parties thereto, and Citibank, N.A., as Administrative Agent for
said Lenders, and hereby gives you notice, irrevocably, pursuant to Section 2.02
of the Credit Agreement that the undersigned hereby requests a Borrowing under
the Credit Agreement, and in that connection sets forth below the information
relating to such Borrowing (the "Proposed Borrowing") as required by Section
2.02(a) of the Credit Agreement:
(i) The Business Day of the Proposed Borrowing is
_________________, 19__.
(ii) The Type of Advances comprising the Proposed
Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Borrowing is
$_____________.
(iv) The Interest Period for each [Eurodollar Rate
Advance] made as part of the Proposed Borrowing is [____ days]
[____ month[s]].
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Borrowing:
(A) the representations and warranties contained in Section 4.01
and in each other Loan Document are correct, before and after giving
effect to the Proposed Borrowing and
Notice of Borrowing
<PAGE>
<PAGE>
-2-
to the application of the proceeds therefrom, as though made on and as
of such date; and
(B) no event has occurred and is continuing, or would result from
such Proposed Borrowing or from the application of the proceeds
therefrom, which constitutes an Event of Default or would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both.
Very truly yours,
CENTENNIAL CELLULAR CORP.
By
____________________________
Title:
Notice of Borrowing
<PAGE>
<PAGE>
EXHIBIT C
Assignment and Acceptance
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Dated ________________, 19__
Reference is made to the Credit Agreement dated as of September
12, 1996 (the "Credit Agreement") among Centennial Cellular Corp., a Delaware
corporation (the "Borrower"), the Lenders (as defined in the Credit Agreement),
and Citibank, N.A., as Administrative Agent for the Lenders (the "Administrative
Agent"). Terms defined in the Credit Agreement are used herein with the same
meaning.
________________ ("Assignor") and ____________________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, that interest in and to
all of the Assignor's rights and obligations under the Credit Agreement and the
other Loan Documents as of the date hereof which represents the percentage
interest specified on Schedule 1 of all outstanding rights and obligations under
the Credit Agreement, including, without limitation, such interest in the
Assignor's Commitment and the Advances owing to the Assignor held by the
Assignor. After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of the Advances owing to the Assignee will be as set
forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that as of the date
hereof its Commitment and the aggregate outstanding principal amount of Advances
owing to it (after giving effect to any other assignments thereof made prior to
the date hereof, whether or not such assignments have become effective, but
without giving effect to any other assignments thereof also made on the date
hereof) is in the dollar amounts specified as the Assignor's Commitment and the
aggregate outstanding principal amount of Advances owing to the Assignor on
Schedule I hereto, respectively; (ii) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (iii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with any Loan
Document or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Loan Document or any other instrument or document
furnished pursuant thereto; (iv) makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrower or any
of
Assignment and Acceptance
<PAGE>
<PAGE>
-2-
its Subsidiaries or the performance or observance by any Obligor of any of its
respective obligations under any Loan Document or any other instrument or
document furnished pursuant thereto; and (v) attaches the Note or Notes held by
the Assignor and requests that the Administrative Agent exchange such Note or
Notes for a new Note or Notes payable to the order of the Assignee in an amount
equal to the Commitments assumed by the Assignee pursuant hereto or new Notes
payable to the order of the Assignee in an amount equal to the Commitments
assumed by the Assignee pursuant hereto and the Assignor in an amount equal to
the Commitments retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1.
3. The Assignee (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements referred to
in Section 4.01 thereof and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Administrative Agent, the Assignor or any other Lender
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under any Loan Document; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under each Loan Document as are delegated
to the Administrative Agent by the terms thereof, together with such powers as
are reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of any Loan Document
are required to be performed by it as a Lender; [and] (vi) specifies as its
Domestic Lending Office (and address for notices) and Eurodollar Lending Office
the offices set forth beneath its name on the signature pages hereof [and (vii)
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying as to the Assignee's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to the Assignee under the Credit Agreement or such other documents as
are necessary to indicate that all such payments are subject to such rates at a
rate reduced by an applicable tax treaty].*
4. Following the execution of this Assignment and Acceptance by
the Assignor and the Assignee, it will be delivered to the Administrative Agent
for acceptance and recording by the
- ----------
* If the Assignee is organized under the laws of a jurisdiction outside
the United States.
Assignment and Acceptance
<PAGE>
<PAGE>
-3-
Administrative Agent. The effective date of this Assignment and Acceptance shall
be the date of acceptance thereof by the Administrative Agent, unless otherwise
specified on Schedule 1 hereto (the "Effective Date").
5. Upon such acceptance and recording by the Administrative
Agent, as of the Effective Date, (i) the Assignee shall, in addition to the
rights and obligations under the Credit Agreement and the other Loan Documents
held by it immediately prior to the Effective Date, have the rights and
obligations under the Credit Agreement and the other Loan Documents that have
been assigned to it pursuant to this Assignment and Acceptance (including, in
the case of an Assignee who was not a party to the Credit Agreement immediately
prior to the Effective Date, being a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, having the rights and
obligations of a Lender thereunder) and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement and the other Loan
Documents.
6. Upon such acceptance and recording by the Administrative
Agent, from and after the Effective Date, the Administrative Agent shall make
all payments under the Credit Agreement and the Notes in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest and fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement and the Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
8. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed by their respective officers thereunto
duly authorized, as of the date first above written, such execution being made
on Schedule 1 hereto.
Assignment and Acceptance
<PAGE>
<PAGE>
Schedule 1
to
Assignment and Acceptance
Dated ________________, 19__
<TABLE>
<S> <C>
Section 1.
Percentage Interest: _____%
Section 2.
Assignor's Commitment: $_________
Aggregate Outstanding Principal
Amount of Note owing to the Assignor: $_________
Assignee's Commitment: $_________
Aggregate Outstanding Principal
Amount of Note owing to the Assignee: $_________
Section 3.
Effective Date*: __________, 19__
</TABLE>
[NAME OF ASSIGNOR]
By:
______________________________________
Title:
[NAME OF ASSIGNEE]
By:
______________________________________
Title:
Domestic Lending Office (and
address for notices):
[Address]
Eurodollar Lending Office:
[Address]
Accepted this ____ day of _________, 19__
Citibank, N.A.
By:
_______________________________
Title:
- ----------
* This date should be no earlier than the date of acceptance by the
Managing Agent.
Assignment and Acceptance
<PAGE>
<PAGE>
EXHIBIT D-1
[Form of Subsidiary Guaranty]
SUBSIDIARY GUARANTY
SUBSIDIARY GUARANTY dated as of September 12, 1996 between each
of the entities identified under the caption "GUARANTORS" on the signature pages
hereto (each individually, a "Guarantor" and, collectively, together with any
entity that may become a "Guarantor" hereunder pursuant to the provisions of
Section 3.12, the "Guarantors"); and CITIBANK, N.A., as administrative agent for
the lenders or other financial institutions or entities party, as lenders, to
the Credit Agreement referred to below (in such capacity, together with its
successors in such capacity, the "Administrative Agent").
Centennial Cellular Corp., a Delaware corporation (the
"Borrower"), certain lenders and the Administrative Agent are parties to a
Credit Agreement dated as of September 12, 1996 (as modified and supplemented
and in effect from time to time, the "Credit Agreement"), providing, subject to
the terms and conditions thereof, for loans to be made by said lenders to the
Borrower in an aggregate principal amount not exceeding $50,000,000.
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each Guarantor has
agreed to guarantee the Guaranteed Obligations (as hereinafter defined).
Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are
used herein as defined therein. In addition, as used herein:
"Guaranteed Obligations" shall have the meaning ascribed thereto
in Section 2.01.
Section 2. The Guarantee.
2.01 The Guarantee. The Guarantors hereby jointly and severally
guarantee to each Lender and the Administrative Agent and their respective
successors and assigns the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) of the principal of and interest on the
Advances made by the Lenders to, and the Note held by each Lender of, the
Borrower and all other amounts from time to time owing to the Lenders or the
Administrative Agent by the Borrower under the
Subsidiary Guaranty
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Credit Agreement and under the Notes, in each case strictly in accordance with
the terms thereof (such obligations being herein collectively called the
"Guaranteed Obligations"). The Guarantors hereby further jointly and severally
agree that if the Borrower shall fail to pay in full when due (whether at stated
maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the
Guarantors will promptly pay the same, without any demand or notice whatsoever,
and that in the case of any extension of time of payment or renewal of any of
the Guaranteed Obligations, the same will be promptly paid in full when due
(whether at extended maturity, by acceleration or otherwise) in accordance with
the terms of such extension or renewal.
2.02 Obligations Unconditional. The obligations of the Guarantors
under Section 2.01 are absolute and unconditional, joint and several,
irrespective of the value, genuineness, validity, regularity or enforceability
of the Credit Agreement, the Notes or any other agreement or instrument referred
to herein or therein, or any substitution, release or exchange of any other
guarantee of or security for any of the Guaranteed Obligations, and, to the
fullest extent permitted by applicable law, irrespective of any other
circumstance whatsoever that might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor, it being the intent of this
Section 2.02 that the obligations of the Guarantors hereunder shall be absolute
and unconditional, joint and several, under any and all circumstances. Without
limiting the generality of the foregoing, it is agreed that the occurrence of
any one or more of the following shall not alter or impair the liability of the
Guarantors hereunder which shall remain absolute and unconditional as described
above:
(i) at any time or from time to time, without notice to
the Guarantors, the time for any performance of or compliance with any
of the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of
the Credit Agreement or the Notes or any other agreement or instrument
referred to herein or therein shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations
shall be accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right under the
Credit Agreement or the Notes or any other agreement or instrument
referred to herein or therein shall be waived or any other guarantee of
any of the Guaranteed Obligations or any security therefor
Subsidiary Guaranty
<PAGE>
<PAGE>
-3-
shall be released or exchanged in whole or in part or otherwise dealt
with; or
(iv) any lien or security interest granted to, or in favor
of, the Administrative Agent or any Lender or Lenders as security for
any of the Guaranteed Obligations shall fail to be perfected.
The Guarantors hereby expressly waive diligence, presentment, demand of payment,
protest and all notices whatsoever, and any requirement that the Administrative
Agent or any Lender exhaust any right, power or remedy or proceed against the
Borrower under the Credit Agreement or the Notes or any other agreement or
instrument referred to herein or therein, or against any other Person under any
other guarantee of, or security for, any of the Guaranteed Obligations.
2.03 Reinstatement. The obligations of the Guarantors under this
Section 2 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of the Borrower in respect of the Guaranteed
Obligations is rescinded or must be otherwise restored by any holder of any of
the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, and the Guarantors jointly and severally agree
that they will indemnify the Administrative Agent and each Lender on demand for
all reasonable costs and expenses (including, without limitation, fees of
counsel) incurred by the Administrative Agent or such Lender in connection with
such rescission or restoration, including any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
2.04 Subrogation. Each Guarantor hereby waives all rights of
subrogation or contribution, whether arising by contract or operation of law
(including, without limitation, any such right arising under the Federal
Bankruptcy Code) or otherwise by reason of any payment by it pursuant to the
provisions of this Section 2 and further agrees with the Borrower for the
benefit of each of its creditors (including, without limitation, each Lender and
the Administrative Agent) that any such payment by it shall constitute a
contribution of capital by such Guarantor to the Borrower (or an investment in
the equity capital of the Borrower by such Guarantor).
2.05 Remedies. The Guarantors jointly and severally agree that,
as between the Guarantors and the Lenders, the obligations of the Borrower under
the Credit Agreement and the Notes may be declared to be forthwith due and
payable as provided in Section 6.01 of the Credit Agreement (and shall be deemed
to
Subsidiary Guaranty
<PAGE>
<PAGE>
-4-
have become automatically due and payable in the circumstances provided in said
Section 6.01) for purposes of Section 2.01 notwithstanding any stay, injunction
or other prohibition preventing such declaration (or such obligations from
becoming automatically due and payable) as against the Borrower and that, in the
event of such declaration (or such obligations being deemed to have become
automatically due and payable), such obligations (whether or not due and payable
by the Borrower) shall forthwith become due and payable by the Guarantors for
purposes of said Section 2.01.
2.06 Instrument for the Payment of Money. Each Guarantor hereby
acknowledges that the guarantee in this Section 2 constitutes an instrument for
the payment of money, and consents and agrees that any Lender or the
Administrative Agent, at its sole option, in the event of a dispute by such
Guarantor in the payment of any moneys due hereunder, shall have the right to
bring motion-action under New York CPLR Section 3213.
2.07 Continuing Guarantee. The guarantee in this Section 2 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
2.08 Rights of Contribution. The Guarantors hereby agree, as
between themselves, that if any Guarantor shall become an Excess Funding
Guarantor (as defined below) by reason of the payment by such Guarantor of any
Guaranteed Obligations, each other Guarantor shall, on demand of such Excess
Funding Guarantor (but subject to the next sentence), pay to such Excess Funding
Guarantor an amount equal to such Guarantor's Pro Rata Share (as defined below
and determined, for this purpose, without reference to the Properties, debts and
liabilities of such Excess Funding Guarantor) of the Excess Payment (as defined
below) in respect of such Guaranteed Obligations. The payment obligation of a
Guarantor to any Excess Funding Guarantor under this Section 2.08 shall be
subordinate and subject in right of payment to the prior payment in full of the
obligations of such Guarantor under the other provisions of this Section 2 and
such Excess Funding Guarantor shall not exercise any right or remedy with
respect to such excess until payment and satisfaction in full of all of such
obligations.
For purposes of this Section 2.08, (i) "Excess Funding Guarantor"
means, in respect of any Guaranteed Obligations, a Guarantor that has paid an
amount in excess of its Pro Rata Share of such Guaranteed Obligations, (ii)
"Excess Payment" means, in respect of any Guaranteed Obligations, the amount
paid by an Excess Funding Guarantor in excess of its Pro Rata Share of such
Guaranteed Obligations and (iii) "Pro Rata Share" means, for any Guarantor, the
ratio (expressed as a percentage) of (x) the
Subsidiary Guaranty
<PAGE>
<PAGE>
-5-
amount by which the aggregate fair saleable value of all Properties of such
Guarantor (excluding any shares of stock of any other Guarantor) exceeds the
amount of all the debts and liabilities of such Guarantor (including contingent,
subordinated, unmatured and unliquidated liabilities, but excluding the
obligations of such Guarantor hereunder and any obligations of any other
Guarantor that have been Guaranteed by such Guarantor) to (y) the amount by
which the aggregate fair saleable value of all Properties of all of the
Guarantors exceeds the amount of all the debts and liabilities (including
contingent, subordinated, unmatured and unliquidated liabilities, but excluding
the obligations of the Guarantors hereunder) of all of the Guarantors,
determined (A) with respect to any Guarantor that is a party hereto on the date
hereof, as of the date hereof, and (B) with respect to any other Guarantor, as
of the date such Guarantor becomes a Guarantor hereunder.
2.09 General Limitation on Guarantee Obligations. In any action
or proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Guarantor under Section 2.01
would otherwise, taking into account the provisions of Section 2.08, be held or
determined to be void, invalid or unenforceable, or subordinated to the claims
of any other creditors, on account of the amount of its liability under said
Section 2.01, then, notwithstanding any other provision hereof to the contrary,
the amount of such liability shall, without any further action by such
Guarantor, the Administrative Agent, the Lenders or any other Person, be
automatically limited and reduced to the highest amount that is valid and
enforceable and not subordinated to the claims of other creditors as determined
in such action or proceeding.
Section 3. Miscellaneous.
3.01 No Waiver. No failure on the part of the Administrative
Agent or any Lender to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Administrative
Agent or any Lender of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
3.02 Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at the "Address for Notices" specified beneath its name on the
signature pages hereof or, as to any
Subsidiary Guaranty
<PAGE>
<PAGE>
-6-
party, at such other address as shall be designated by such party in a notice to
each other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when received.
3.03 Expenses. The Guarantors jointly and severally agree to
reimburse each of the Lenders and the Administrative Agent for all reasonable
costs and expenses of the Lenders and the Administrative Agent (including,
without limitation, the reasonable fees and expenses of legal counsel) in
connection with (i) any Event of Default and any enforcement or collection
proceeding resulting therefrom, including, without limitation, all manner of
participation in or other involvement with (x) bankruptcy, insolvency,
receivership, foreclosure, winding up or liquidation proceedings, (y) judicial
or regulatory proceedings and (z) workout, restructuring or other negotiations
or proceedings (whether or not the workout, restructuring or transaction
contemplated thereby is consummated) and (ii) the enforcement of this Section
3.03.
3.04 Amendments, Etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by each
Guarantor and the Administrative Agent (with the consent of the Majority Lenders
under the Credit Agreement). Any such amendment or waiver shall be binding upon
the Administrative Agent and each Lender, each holder of any of the Secured
Obligations and each Guarantor.
3.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of each
Guarantor, the Administrative Agent, the Lenders and each holder of any of the
Guaranteed Obligations (provided, however, that no Guarantor shall assign or
transfer its rights hereunder without the prior written consent of the
Administrative Agent).
3.06 Captions. The captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
3.07 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
3.08 Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with,
Subsidiary Guaranty
<PAGE>
<PAGE>
-7-
the law of the State of New York. Each Guarantor hereby further irrevocably and
unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any of the other Support
Documents to which it is a party, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail return receipt requested (or any substantially similar
form of mail), postage prepaid, to such Guarantor at its address set
forth herein or at such other address of which the Administrative Agent
shall have been notified pursuant thereto with a copy to Leavy
Rosensweig & Hyman, 11 East 44th Street, New York, New York 10017,
Attention David Z. Rosensweig, Esq.; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
3.09 Waiver of Jury Trial. EACH OF THE GUARANTORS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
3.10 Agents and Attorneys-in-Fact. The Administrative Agent may
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
3.11 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall
Subsidiary Guaranty
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-8-
remain in full force and effect in such jurisdiction and shall be liberally
construed in favor of the Administrative Agent and the Lenders in order to carry
out the intentions of the parties hereto as nearly as may be possible and (ii)
the invalidity or unenforceability of any provision hereof in any jurisdiction
shall not affect the validity or enforceability of such provision in any other
jurisdiction.
3.12 Additional Guarantors. As contemplated by Sections
5.01(f)(vi) and 5.01(h)(iv) of the Credit Agreement, in the event that the
Borrower shall form or acquire the Benton Harbor Holding Company, the Benton
Harbor Operating Company or any new Puerto Rico Company after the date hereof,
the Borrower will cause the Benton Harbor Holding Company, the Benton Harbor
Operating Company or such new Puerto Rico Company, as the case may be, to
execute and deliver to the Administrative Agent a Supplement to this Agreement
in the form of Annex 1 hereto (and, thereby, to become a party to this
Agreement, as a "Guarantor" hereunder). Accordingly, upon the execution and
delivery of any such Supplement by the Benton Harbor Holding Company, the Benton
Harbor Operating Company or any such new Puerto Rico Company, the Benton Harbor
Holding Company, the Benton Harbor Operating Company or such new Puerto Rico
Company, as the case may be, shall automatically and immediately, and without
any further action on the part of any Person, become a "Guarantor" under and for
all purposes of this Agreement.
Subsidiary Guaranty
<PAGE>
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IN WITNESS WHEREOF, the parties hereto have caused this
Subsidiary Guaranty to be duly executed and delivered as of the day and year
first above written.
GUARANTORS
[NAME OF GUARANTOR]
By ________________________
Title:
Address for Notices:
[NAME OF GUARANTOR]
By ________________________
Title:
Address for Notices:
[NAME OF GUARANTOR]
By ________________________
Title:
Address for Notices:
Subsidiary Guaranty
<PAGE>
<PAGE>
-10-
CITIBANK, N.A.,
as Administrative Agent
By ________________________
Title:
Address for Notices:
399 Park Avenue
New York, New York 10043
Attention: Global Media and
Communications
Telephone No.:
Telecopy No.:
Subsidiary Guaranty
<PAGE>
<PAGE>
ANNEX 1
[Form of Supplement to Subsidiary Guaranty]
SUPPLEMENT TO SUBSIDIARY GUARANTY
SUPPLEMENT TO SUBSIDIARY GUARANTY dated as of ____________, 199__
by [NAME OF GUARANTOR], a ___________ (the "Guarantor") in favor of CITIBANK,
N.A., as administrative agent for the lenders or other financial institutions or
entities party, as lenders, to the Credit Agreement referred to below (in such
capacity, together with its successors in such capacity, the "Administrative
Agent").
Centennial Cellular Corp., a Delaware corporation (the
"Borrower"), certain lenders and the Administrative Agent are parties to a
Credit Agreement dated as of September 12, 1996 (as modified and supplemented
and in effect from time to time, the "Credit Agreement"), providing, subject to
the terms and conditions thereof, for loans to be made by said lenders to the
Company in an aggregate principal amount not exceeding $50,000,000.
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder, and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the Guarantor has
agreed to become a party to the Subsidiary Guaranty executed and delivered
pursuant to the Credit Agreement as a "Guarantor" thereunder.
Accordingly, the parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Subsidiary Guaranty
are used herein as defined therein.
Section 2. Supplement to Subsidiary Guaranty. Effective upon the
execution and delivery hereof, the Guarantor hereby agrees that it shall become
a "Guarantor" under the Subsidiary Guaranty with all of the rights and
obligations of a Guarantor thereunder. Without limiting the generality of the
foregoing, the Guarantor hereby:
(i) jointly and severally with the other Guarantors party
to the Subsidiary Guaranty guarantees to each Lender and the
Administrative Agent and their respective successors and assigns the
prompt payment in full when due (whether at stated maturity, by
acceleration or otherwise) of all Guaranteed Obligations in the same
manner and to the same extent as is provided in Section 2 of the
Subsidiary Guaranty; and
Annex 1 to Subsidiary Guaranty
<PAGE>
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(ii) submits to the jurisdiction of the courts, and waives
jury trial, as provided in Sections 3.08 and 3.09, respectively, of the
Subsidiary Guaranty.
Section 3. Miscellaneous. The Guarantor hereby authorizes the
Administrative Agent to attach a counterpart of this Supplement to the
Subsidiary Guaranty. The captions and section headings appearing herein are
included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Supplement. This Supplement may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument and any of the parties hereto may execute
this Supplement by signing any such counterpart. This Supplement shall be
governed by and construed in accordance with the law of the State of New York.
Except as supplemented hereby, the Subsidiary Guaranty shall remain unchanged
and in full force and effect.
IN WITNESS WHEREOF, the Guarantor has caused this Supplement to
Subsidiary Guaranty to be duly executed and delivered as of the day and year
first above written.
[NAME OF GUARANTOR]
By ________________________
Title:
Accepted and agreed:
CITIBANK, N.A.,
as Administrative Agent
By ________________________
Title:
Annex 1 to Subsidiary Guaranty
<PAGE>
<PAGE>
EXHIBIT D-2
[Form of Pledge Agreement]
PLEDGE AGREEMENT
PLEDGE AGREEMENT dated as of ____________________ between the
entity identified under the caption "PLEDGOR" on the signature pages hereto (the
"Pledgor"); and CITIBANK, N.A., as administrative agent for the lenders or other
financial institutions or entities party, as lenders, to the Credit Agreement
referred to below (in such capacity, together with its successors in such
capacity, the "Administrative Agent").
Centennial Cellular Corp., a Delaware corporation (the
"Borrower"), certain lenders and the Administrative Agent are parties to a
Credit Agreement dated as of September 12, 1996 (as modified and supplemented
and in effect from time to time, the "Credit Agreement"), providing, subject to
the terms and conditions thereof, for loans to be made by said lenders to the
Borrower in an aggregate principal amount not exceeding $50,000,000.
To induce said lenders to enter into the Credit Agreement and to
extend credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Pledgor has become
a party to the Subsidiary Guaranty dated as of September 12, 1996 (the
"Subsidiary Guaranty") between the Guarantors referred to therein (including the
Pledgor) and the Administrative Agent, pursuant to which the Pledgor has
guaranteed the obligations of the Borrower under the Credit Agreement and the
Notes referred to therein, and has agreed to enter into this Pledge Agreement,
pursuant to which the Pledgor is pledging all of the equity interests owned by
it in any Puerto Rico Company (as defined in the Credit Agreement) to secure
payment of all Secured Obligations (as hereinafter defined). Accordingly, the
parties hereto agree as follows:
Section 1. Definitions. Terms defined in the Credit Agreement are
used herein as defined therein. In addition, as used herein:
"Collateral" shall have the meaning ascribed thereto in Section
3.
"Equity Collateral" means, collectively, the Collateral described
in clauses (a) through (c) of Section 3 and the proceeds of and to any
such property and, to the extent related to any such property or such
proceeds, all books, correspondence, credit files, records, invoices and
other papers.
Pledge Agreement
<PAGE>
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-2-
"Issuers" means, collectively, (a) the respective corporations,
partnerships or other entities identified on Annex 1 hereto under the
caption "Issuer" and (b) any other entity that shall at any time either
be a Puerto Rico Company.
"Pledged Equity" shall have the meaning ascribed thereto in
Section 3(a).
"Secured Obligations" means, collectively, (a) all obligations of
the Pledgor to the Lenders and the Administrative Agent under the
Subsidiary Guaranty and (b) all other obligations of the Pledgor to the
Lenders and the Administrative Agent hereunder.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect from time to time in the State of New York.
Section 2. Representations and Warranties. The Pledgor represents
and warrants to the Lenders and the Administrative Agent that:
(a) The Pledgor is the sole beneficial owner of the Collateral in
which it purports to grant a security interest pursuant to Section 3 and
no Lien exists or will exist upon such Collateral at any time (and no
right or option to acquire the same exists in favor of any other
Person), except for the pledge and security interest in favor of the
Administrative Agent for the benefit of the Lenders created or provided
for herein, which pledge and security interest constitute a first
priority perfected pledge and security interest in and to all of such
Collateral.
(b) The Pledged Equity represented by the certificates identified
in Annex 1 hereto is, and all other Pledged Equity in which the Pledgor
shall hereafter grant a security interest pursuant to Section 3 will be,
duly authorized, validly existing, fully paid and non-assessable and
none of such Pledged Equity is or will be subject to any contractual
restriction, or any restriction under the charter, by-laws, partnership
agreement or other organizational document of the respective Issuer of
such Pledged Equity, upon the transfer of such Pledged Equity (except
for any such restriction contained herein).
(c) The Pledged Equity represented by the certificates identified
in Annex 1 hereto constitutes all of the issued
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and outstanding shares of capital stock of any class of the Issuers
beneficially owned by the Pledgor on the date hereof (whether or not
registered in the name of the Pledgor) and said Annex 1 correctly
identifies, as at the date hereof, the respective Issuers of such
Pledged Equity and (in the case of any corporate Issuer) the respective
class and par value of the shares comprising such Pledged Stock and the
respective number of shares (and registered owners thereof) represented
by each such certificate.
Section 3. Collateral. As collateral security for the prompt
payment in full when due (whether at stated maturity, by acceleration or
otherwise) of the Secured Obligations, the Pledgor hereby pledges and grants to
the Administrative Agent, for the benefit of the Lenders as hereinafter
provided, a security interest in all of the Pledgor's right, title and interest
in the following property, whether now owned by the Pledgor or hereafter
acquired and whether now existing or hereafter coming into existence (all being
collectively referred to herein as "Collateral"):
(a) all shares of capital stock, or partnership and other
ownership interest, of the Issuers represented by the certificates
identified in Annex 1 hereto under the name of the Pledgor and all other
shares of capital stock, or partnership or other ownership interest, of
whatever class or character of the Issuers, now or hereafter owned by
the Pledgor, in each case together with the certificates evidencing the
same (collectively, the "Pledged Equity");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Equity, or representing a distribution or
return of capital upon or in respect of the Pledged Equity, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Equity or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Equity;
(c) without affecting the obligations of the Pledgor under any
provision prohibiting such action hereunder, in the event of any
consolidation or merger in which an Issuer is not the surviving entity,
all ownership interest of each class or type of the successor entity
(unless such successor entity is the Pledgor itself) formed by or
resulting from such consolidation or merger (the Pledged Equity,
together with all other certificates, shares, securities, properties
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-4-
or moneys as may from time to time be pledged hereunder pursuant to
clause (a) or (b) above and this clause (c) being herein collectively
called the "Equity Collateral");
(d) all proceeds, products, offspring, accessions, rents,
profits, income, benefits, substitutions and replacements of and to any
of the property of the Pledgor described in the preceding clauses of
this Section 3 (including, without limitation, any proceeds of insurance
thereon and all causes of action, claims and warranties now or hereafter
held by the Pledgor in respect of any of the items listed above) and, to
the extent related to any property described in said clauses or such
proceeds, products and accessions, all books, correspondence, credit
files, records, invoices and other papers, including without limitation
all tapes, cards, computer runs and other papers and documents in the
possession or under the control of the Pledgor or any computer bureau or
service company from time to time acting for the Pledgor.
Section 4. Further Assurances; Remedies. In furtherance of the
grant of the pledge and security interest pursuant to Section 3, the Pledgor
hereby agrees with each Lender and the Administrative Agent as follows:
4.01 Delivery and Other Perfection. The Pledgor shall:
(a) if any of the shares, securities, moneys or property required
to be pledged by the Pledgor under clauses (a), (b) and (c) of Section 3
are received by the Pledgor, forthwith either (x) transfer and deliver
to the Administrative Agent such shares or securities so received by the
Pledgor (together with the certificates for any such shares and
securities duly endorsed in blank or accompanied by undated stock powers
duly executed in blank), all of which thereafter shall be held by the
Administrative Agent, pursuant to the terms of this Agreement, as part
of the Collateral or (y) take such other action as the Administrative
Agent shall deem necessary or appropriate to duly record the Lien
created hereunder in such shares, securities, moneys or property in said
clauses (a), (b) and (c);
(b) give, execute, deliver, file and/or record any financing
statement, notice, instrument, document, agreement or other papers that
may be necessary or desirable (in the judgment of the Administrative
Agent) to create, preserve,
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perfect or validate the security interest granted pursuant hereto or to
enable the Administrative Agent to exercise and enforce its rights
hereunder with respect to such pledge and security interest, including,
without limitation, if so requested by the Administrative Agent after an
Event of Default has occurred and is continuing causing any or all of
the Equity Collateral to be transferred of record into the name of the
Administrative Agent or its nominee (and the Administrative Agent agrees
that if any Equity Collateral is transferred into its name or the name
of its nominee, the Administrative Agent will thereafter promptly give
to the respective Pledgor copies of any notices and communications
received by it with respect to the Equity Collateral pledged by the
Pledgor hereunder);
(c) keep full and accurate books and records relating to the
Collateral, and stamp or otherwise mark such books and records in such
manner as the Administrative Agent may reasonably require in order to
reflect the security interests granted by this Agreement; and
(d) permit representatives of the Administrative Agent, upon
reasonable notice, at any time during normal business hours to inspect
and make abstracts from its books and records pertaining to the
Collateral, and permit representatives of the Administrative Agent to be
present at the Pledgor's place of business to receive copies of all
communications and remittances relating to the Collateral, and forward
copies of any notices or communications received by the Pledgor with
respect to the Collateral, all in such manner as the Administrative
Agent may require.
4.02 Other Financing Statements and Liens. Without the prior
written consent of the Administrative Agent (granted with the authorization of
the Majority Lenders under the Credit Agreement), the Pledgor shall not file or
suffer to be on file, or authorize or permit to be filed or to be on file, in
any jurisdiction, any financing statement or like instrument with respect to the
Collateral in which the Administrative Agent is not named as the sole secured
party for the benefit of the Lenders.
4.03 Preservation of Rights. The Administrative Agent shall not
be required to take steps necessary to preserve any rights against prior parties
to any of the Collateral.
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4.04 Special Provisions Relating to Equity Collateral.
(a) The Pledgor will cause the Equity Collateral consisting of
shares of stock in any corporate Issuer to constitute at all times 100% of the
total number of shares of each class of capital stock of such Issuer then
outstanding.
(b) So long as no Event of Default shall have occurred and be
continuing, the Pledgor shall have the right to exercise all voting, consensual
and other powers of ownership pertaining to the Equity Collateral for all
purposes not inconsistent with the terms of this Agreement, the Credit
Agreement, the Notes or any other instrument or agreement referred to herein or
therein, provided that the Pledgor agrees that it will not vote the Equity
Collateral in any manner that is inconsistent with the terms of this Agreement,
the Credit Agreement, the Notes or any such other instrument or agreement; and
the Administrative Agent shall execute and deliver to the Pledgors or cause to
be executed and delivered to the Pledgors all such proxies, powers of attorney,
dividend and other orders, and all such instruments, without recourse, as the
Pledgors may reasonably request for the purpose of enabling the Pledgors to
exercise the rights and powers that they are entitled to exercise pursuant to
this Section 4.04(b).
(c) Unless and until an Event of Default has occurred and is
continuing, the Pledgor shall be entitled to receive and retain any dividends
and distributions on the Equity Collateral paid in cash out of earned surplus.
(d) If any Event of Default shall have occurred, then so long as
such Event of Default shall continue, and whether or not the Administrative
Agent or any Lender exercises any available right to declare any Secured
Obligation due and payable or seeks or pursues any other relief or remedy
available to it under applicable law or under this Agreement, the Credit
Agreement, the Notes or any other agreement relating to such Secured Obligation,
all dividends and other distributions on the Equity Collateral shall be paid
directly to the Administrative Agent and retained by it as part of the Equity
Collateral, subject to the terms of this Agreement, and, if the Administrative
Agent shall so request in writing, the Pledgor agrees to execute and deliver to
the Administrative Agent appropriate additional dividend, distribution and other
orders and documents to that end, provided that if such Event of Default is
cured, any such dividend or distribution theretofore paid to the Administrative
Agent shall, upon request of the Pledgor (except to the extent theretofore
applied to the Secured Obligations), be returned by the Administrative Agent to
the Pledgor.
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4.05 Events of Default, Etc. During the period during which an
Event of Default shall have occurred and be continuing:
(a) the Administrative Agent shall have all of the rights and
remedies with respect to the Collateral of a secured party under the
Uniform Commercial Code (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such
additional rights and remedies to which a secured party is entitled
under the laws in effect in any jurisdiction where any rights and
remedies hereunder may be asserted, including, without limitation, the
right, to the maximum extent permitted by law, to exercise all voting,
consensual and other powers of ownership pertaining to the Collateral as
if the Administrative Agent were the sole and absolute owner thereof
(and the Pledgor agrees to take all such action as may be appropriate to
give effect to such right);
(b) the Administrative Agent in its discretion may, in its name
or in the name of the Pledgors or otherwise, demand, sue for, collect or
receive any money or property at any time payable or receivable on
account of or in exchange for any of the Collateral, but shall be under
no obligation to do so; and
(c) the Administrative Agent may, upon ten business days' prior
written notice to the Pledgors of the time and place, with respect to
the Collateral or any part thereof that shall then be or shall
thereafter come into the possession, custody or control of the
Administrative Agent, the Lenders or any of their respective agents,
sell, lease, assign or otherwise dispose of all or any part of such
Collateral, at such place or places as the Administrative Agent deems
best, and for cash or for credit or for future delivery (without thereby
assuming any credit risk), at public or private sale, without demand of
performance or notice of intention to effect any such disposition or of
the time or place thereof (except such notice as is required above or by
applicable statute and cannot be waived), and the Administrative Agent
or any Lender or anyone else may be the purchaser, lessee, assignee or
recipient of any or all of the Collateral so disposed of at any public
sale (or, to the extent permitted by law, at any private sale) and
thereafter hold the same absolutely, free from any claim or right of
whatsoever kind, including any right or equity of redemption (statutory
or otherwise), of the Pledgors, any such demand, notice and right or
equity being hereby expressly waived and released. The Administrative
Agent may, without notice or publication, adjourn any public or
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private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale may
be made at any time or place to which the sale may be so adjourned.
The Pledgor recognizes that, by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws, the Administrative Agent may be compelled, with respect to any
sale of all or any part of the Collateral, to limit purchasers to those who will
agree, among other things, to acquire the Collateral for their own account, for
investment and not with a view to the distribution or resale thereof. The
Pledgor acknowledges that any such private sales may be at prices and on terms
less favorable to the Administrative Agent than those obtainable through a
public sale without such restrictions, and, notwithstanding such circumstances,
agree that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Administrative Agent shall have no
obligation to engage in public sales and no obligation to delay the sale of any
Collateral for the period of time necessary to permit the respective Issuer or
issuer thereof to register it for public sale.
4.06 Deficiency. If the proceeds of sale, collection or other
realization of or upon the Collateral pursuant to Section 7.05 are insufficient
to cover the costs and expenses of such realization and the payment in full of
the Secured Obligations, the Pledgor shall remain liable for any deficiency.
4.07 Removals, Etc. Without at least 30 days' prior written
notice to the Administrative Agent, the Pledgor shall not (i) maintain any of
its books and records with respect to the Collateral at any office or maintain
its principal place of business at any place other than at the address indicated
beneath its signature hereto or (ii) change its name, or the name under which it
does business, from the name shown on the signature pages hereto.
4.08 Private Sale. The Administrative Agent and the Lenders shall
incur no liability as a result of the sale of the Collateral, or any part
thereof, at any private sale pursuant to Section 4.05 conducted in a
commercially reasonable manner. The Pledgor hereby waives any claims against the
Administrative Agent or any Lender arising by reason of the fact that the price
at which the Collateral may have been sold at such a private sale was less than
the price that might have been obtained at a public sale or was less than the
aggregate amount of the Secured Obligations, even if the Administrative Agent
accepts the first
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-9-
offer received and does not offer the Collateral to more than one offeree.
4.09 Application of Proceeds. Except as otherwise herein
expressly provided, the proceeds of any collection, sale or other realization of
all or any part of the Collateral pursuant hereto shall be applied by the
Administrative Agent:
First, to the payment of the costs and expenses of such
collection, sale or other realization, including reasonable
out-of-pocket costs and expenses of the Administrative Agent and the
fees and expenses of its agents and counsel, and all expenses incurred
and advances made by the Administrative Agent in connection therewith;
Next, to the payment in full of the Secured Obligations, in each
case equally and ratably in accordance with the respective amounts
thereof then due and owing or as the Lenders holding the same may
otherwise agree; and
Finally, to the payment to the Pledgor, or their respective
successors or assigns, or as a court of competent jurisdiction may
direct, of any surplus then remaining.
As used in this Section 4, "proceeds" of Collateral means cash,
securities and other property realized in respect of, and distributions in kind
of, Collateral, including any thereof received under any reorganization,
liquidation or adjustment of debt of the Pledgors or any issuer of or obligor on
any of the Collateral.
4.10 Attorney-in-Fact. Without limiting any rights or powers
granted by this Agreement to the Administrative Agent while no Event of Default
has occurred and is continuing, upon the occurrence and during the continuance
of any Event of Default the Administrative Agent is hereby appointed the
attorney-in-fact of the Pledgor for the purpose of carrying out the provisions
of this Section 4 and taking any action and executing any instruments that the
Administrative Agent may deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and coupled with an
interest. Without limiting the generality of the foregoing, so long as the
Administrative Agent shall be entitled under this Section 4 to make collections
in respect of the Collateral, the Administrative Agent shall have the right and
power to receive, endorse and collect all checks made payable to the order of
the Pledgor representing any dividend, payment or other distribution in respect
of the Collateral or any part thereof and to give full discharge for the same.
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4.11 Perfection. Prior to or concurrently with the execution and
delivery of this Agreement, the Pledgor shall (i) file such financing statements
and other documents in such offices as the Administrative Agent may request to
perfect the security interests granted by Section 3 of this Agreement and (ii)
deliver to the Administrative Agent all certificates identified in Annex 1
hereto, accompanied by undated stock powers duly executed in blank.
4.12 Termination. When all Secured Obligations shall have been
paid in full and the Commitments of the Lenders under the Credit Agreement shall
have expired or been terminated, this Agreement shall terminate, and the
Administrative Agent shall forthwith cause to be assigned, transferred and
delivered, against receipt but without any recourse, warranty or representation
whatsoever, any remaining Collateral and money received in respect thereof, to
or on the order of the respective Pledgor. The Administrative Agent shall also
execute and deliver to the respective Pledgor upon such termination such Uniform
Commercial Code termination statements and such other documentation as shall be
reasonably requested by the Pledgor to effect the termination and release of the
Liens on the Collateral.
4.13 Further Assurances. The Pledgor agrees that, from time to
time upon the written request of the Administrative Agent, the Pledgor will
execute and deliver such further documents and do such other acts and things as
the Administrative Agent may reasonably request in order fully to effect the
purposes of this Agreement.
Section 5. Miscellaneous.
5.01 No Waiver. No failure on the part of the Administrative
Agent or any Lender to exercise, and no course of dealing with respect to, and
no delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Administrative
Agent or any Lender of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
5.02 Notices. All notices, requests, consents and demands
hereunder shall be in writing and telecopied or delivered to the intended
recipient at the "Address for Notices" specified beneath its name on the
signature pages hereof or, as to any party, at such other address as shall be
designated by such party
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in a notice to each other party. Except as otherwise provided in this Agreement,
all such communications shall be deemed to have been duly given when received.
5.03 Expenses. The Pledgor agrees to reimburse each of the
Lenders and the Administrative Agent for all reasonable costs and expenses of
the Lenders and the Administrative Agent (including, without limitation, the
reasonable fees and expenses of legal counsel) in connection with (i) any Event
of Default and any enforcement or collection proceeding resulting therefrom,
including, without limitation, all manner of participation in or other
involvement with (w) performance by the Administrative Agent of any obligations
of the Pledgor in respect of the Collateral that the Pledgor has failed or
refused to perform, (x) bankruptcy, insolvency, receivership, foreclosure,
winding up or liquidation proceedings, or any actual or attempted sale, or any
exchange, enforcement, collection, compromise or settlement in respect of any of
the Collateral, and for the care of the Collateral and defending or asserting
rights and claims of the Administrative Agent in respect thereof, by litigation
or otherwise, including expenses of insurance, (y) judicial or regulatory
proceedings and (z) workout, restructuring or other negotiations or proceedings
(whether or not the workout, restructuring or transaction contemplated thereby
is consummated) and (ii) the enforcement of this Section 5.03, and all such
costs and expenses shall be Secured Obligations entitled to the benefits of the
collateral security provided pursuant to Section 3.
5.04 Amendments, Etc. The terms of this Agreement may be waived,
altered or amended only by an instrument in writing duly executed by the Pledgor
and the Administrative Agent (with the consent of the Majority Lenders under the
Credit Agreement). Any such amendment or waiver shall be binding upon the
Administrative Agent and each Lender, each holder of any of the Secured
Obligations and the Pledgor.
5.05 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of the
Pledgor, the Administrative Agent, the Lenders and each holder of any of the
Secured Obligations (provided, however, that the Pledgor shall not assign or
transfer its rights hereunder without the prior written consent of the
Administrative Agent).
5.06 Captions. The captions and section headings appearing herein
are included solely for convenience of reference and are not intended to affect
the interpretation of any provision of this Agreement.
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5.07 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
5.08 Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the law of the State of
New York. The Pledgor hereby further irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement or any of the other Security
Documents to which it is a party, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general
jurisdiction of the Courts of the State of New York, the courts of the
United States of America for the Southern District of New York, and
appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail return receipt requested (or any substantially similar
form of mail), postage prepaid, to the Pledgor at its address set forth
herein or at such other address of which the Administrative Agent shall
have been notified pursuant thereto with a copy to Leavy Rosensweig &
Hyman, 11 East 44th Street, New York, New York 10017, Attention David Z.
Rosensweig, Esq.; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction.
5.09 Waiver of Jury Trial. THE PLEDGORS, THE ADMINISTRATIVE AGENT
AND THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
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5.10 Certain Regulatory Requirements. Any provision contained
herein to the contrary notwithstanding, no action shall be taken hereunder by
the Administrative Agent or any Lender with respect to any item of Collateral
unless and until all applicable requirements (if any) of the FCC under the
Federal Communications Act of 1934, as amended, and the respective rules and
regulations thereunder and thereof, as well as any other federal, state or local
laws, rules and regulations of other regulatory or governmental bodies
applicable to or having jurisdiction over the Pledgor (or any entity under the
control of the Pledgor), including any PUC with respect to any PUC
Authorizations, have been satisfied with respect to such action and there have
been obtained such consents, approvals and authorizations (if any) as may be
required to be obtained from the FCC, any PUC and any other governmental
authority under the terms of any license or similar operating right held by the
Pledgor (or any entity under the control of the Pledgor). It is the intention of
the parties hereto that the Liens in favor of the Administrative Agent on the
Collateral shall in all relevant aspects be subject to and governed by said
statutes, rules and regulations and that nothing in this Agreement shall be
construed to diminish the control exercised by the Pledgor except in accordance
with the provisions of such statutory requirements, rules and regulations. The
Pledgor agrees that upon request from time to time by the Administrative Agent
it will use its best efforts to obtain any governmental, regulatory or third
party consents, approvals or authorizations referred to in this Section 5.10.
5.11 Agents and Attorneys-in-Fact. The Administrative Agent may
employ agents and attorneys-in-fact in connection herewith and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith.
5.12 Severability. If any provision hereof is invalid and
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Administrative
Agent and the Lenders in order to carry out the intentions of the parties hereto
as nearly as may be possible and (ii) the invalidity or unenforceability of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered as of the day and year first above
written.
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PLEDGOR
[NAME OF PLEDGOR]
By ________________________
Title:
Address for Notices:
ADMINISTRATIVE AGENT
CITIBANK, N.A.,
as Administrative Agent
By ________________________
Title:
Address for Notices:
399 Park Avenue
New York, New York 10043
Attention: Global Media and
Communications
Telephone No.:
Telecopy No.:
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ANNEX 1
PLEDGED EQUITY
[See Section 2(b) and (c)]
<TABLE>
<CAPTION>
Certificate Registered
Issuer Nos. Owner Number of Shares
- ------ ----------- ---------- ----------------
<S> <C> <C> <C>
[Issuer #1] _______ ________ _____ shares of
[common/preferred]
stock, [no] par
value [$________]
[Issuer #2] _______ ________ _____ shares of
[common/preferred]
stock, [no] par
value [$________]
[Issuer #3] _______ ________ _____ shares of
[common/preferred]
stock, [no] par
value [$________]
</TABLE>
Annex 1 to Pledge Agreement
<PAGE>
<PAGE>
EXHIBIT E
[Form of Solvency Certificate]
Centennial Cellular Corp.
Certificate of Chief Financial Officer
I, Scott Schneider, hereby certify that I am the chief financial
officer, of Centennial Cellular Corp., a Delaware corporation (the "Borrower"),
and that I am familiar with its properties, business and assets and am
authorized to execute this certificate on behalf of the Borrower pursuant to
Section 3.01 of the Credit Agreement, dated as of September 12, 1996 (the
"Credit Agreement"), among the Borrower, certain Lenders (the "Lenders"), and
Citibank, N.A., as Administrative Agent for the Lenders (the "Administrative
Agent") under the Credit Agreement. Capitalized terms used herein that are
defined in the Credit Agreement are used herein as therein defined.
I do hereby further certify that I have carefully reviewed the
Credit Agreement, the other Loan Documents and the contents of this Certificate
and, in connection herewith, have made such investigation and inquiries as I
have deemed necessary and prudent therefor. I further certify that the financial
information and assumptions which underlie and form the basis for the
representations made in this Certificate were reasonable when made and were made
in good faith and continue to be reasonable as of the date hereof. The Borrower
understands that the Administrative Agent and the Lenders are relying on the
truth and accuracy of this Certificate in connection with the transactions
contemplated by the Loan Documents.
I hereby further certify that:
1. As of the date hereof, after giving effect to the transactions
contemplated by the Credit Agreement and the other Loan Documents, the fair
value of any and all property of each of the Borrower and the Borrower and its
Subsidiaries taken as a whole is greater than the total amount of liabilities,
including contingent, subordinated, absolute, fixed, matured or unmatured and
liquidated or unliquidated liabilities, of the Borrower and the Borrower and its
Subsidiaries taken as a whole, respectively.
2. As of the date hereof, after giving effect to the transactions
contemplated by the Credit Agreement and the other Loan Documents, the present
fair salable value of the assets of each of the Borrower and the Borrower and
its Subsidiaries taken as a whole is not less than the amount that will be
required to pay the probable liability of each of the Borrower and the
Solvency Certificate
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Borrower and its Subsidiaries taken as a whole, respectively, on its existing
debts as they become absolute and matured.
3. As of the date hereof, after giving effect to the transactions
contemplated by the Credit Agreement and the other Loan Documents, each of the
Borrower and the Borrower and its Subsidiaries taken as a whole does not intend
to incur, and does not believe that it will incur, debts and other liabilities,
contingent obligations and other commitments that would be beyond its ability to
pay as such debts, liabilities, obligations and commitments mature.
4. As of the date hereof, after giving effect to the transactions
contemplated by the Credit Agreement and the other Loan Documents, neither the
Borrower nor the Borrower and its Subsidiaries taken as a whole is engaged in a
business or a transaction, or is about to engage in a business or a transaction,
for which its property would constitute unreasonably small capital.
5. The Borrower does not intend, in consummating the transactions
contemplated by the Loan Documents, to hinder, delay or defraud either present
or future creditors or any other Person to which the Borrower is or will become,
on or after the date hereof, indebted.
6. In reaching the conclusions set forth in this Certificate, the
Borrower has considered:
(a) the initial capitalization of the Borrower;
(b) the cash and other current assets of the Borrower and its
Subsidiaries, which are reflected in the Consolidated and consolidating
pro forma balance sheet of the Borrower and its Subsidiaries as at May
31, 1996 referred to in Section 4.01(e) of the Credit Agreement and in
the Consolidated and consolidating forecasted statements of income and
cash flows of the Borrower and its Subsidiaries referred to in clause
(g) below;
(c) the experience of management of the Borrower and its
Subsidiaries in acquiring, operating and disposing of wireless
communications systems;
(d) all contingent liabilities of the Borrower and its
Subsidiaries, including, without limitation, claims arising out of
pending or, to the best knowledge of the undersigned, threatened
litigation against the Borrower and its Subsidiaries, and in so doing,
the Borrower has computed the
Solvency Certificate
<PAGE>
<PAGE>
-3-
amount of such liabilities at the amount which, in light of all the
facts and circumstances existing on the date hereof, represents the
amount that can reasonably be expected to become an actual or matured
liability (the "Contingent Liabilities");
(e) the amortization requirements of the Credit Agreement and the
anticipated interest payable on the Advances under the Credit Agreement;
(f) Consolidated and consolidating forecasted statements of
income and cash flows of the Borrower and its Subsidiaries for each
Fiscal Year ending on or before May 31, 2005 referred to in Section
4.01(f) of the Credit Agreement;
(g) all obligations and liabilities of the Borrower and its
Subsidiaries, whether matured or unmatured, liquidated or unliquidated,
disputed or undisputed, secured or unsecured, subordinated. absolute,
fixed or contingent, including, among other things, claims arising out
of pending or, to the best knowledge of the undersigned, threatened
litigation against the Borrower and its Subsidiaries (other than
contingent liabilities) in each case computed at the amount which, in
light of all the facts and circumstances existing on the date hereof,
represents the amount that can reasonably be expected to become an
actual or matured liability;
(i) the customary terms of trade payables of the Borrower and its
Subsidiaries;
(j) the amount of the credit extended by and to customers of the
Borrower and its Subsidiaries; and
(k) the level of capital customarily maintained by the Borrower,
its Subsidiaries and other entities engaged in the same or similar
business as the business of the Borrower and its Subsidiaries.
Solvency Certificate
<PAGE>
<PAGE>
-4-
IN WITNESS WHEREOF, the Borrower has executed this certificate
this September ___, 1996.
CENTENNIAL CELLULAR CORP.
By:
___________________________
Title:
Solvency Certificate
<PAGE>
<PAGE>
EXHIBIT F
[Form of Certificate of Compliance]
Fiscal quarter ended
________________, 19__ (the "Test Quarter")
This Certificate is delivered pursuant to Section 5.03(k) of the Credit
Agreement dated as of September 12, 1996 (the "Credit Agreement") among
CENTENNIAL CELLULAR CORP. (the "Borrower"); the Lenders party thereto and
CITIBANK, N.A., as Administrative Agent. Terms used herein and defined in the
Credit Agreement shall have their respective defined meanings when used herein.
This certificate should be completed in accordance with the requirements of the
applicable provisions of the Credit Agreement.
I. SECTION 5: COVENANTS
A. SECTION 5.02(A): LIMITATION ON DEBT AND PREFERRED STOCK
<TABLE>
<CAPTION>
Date of Issuance of
Debt (Other than Ratio of Debt to
Permitted Debt) Annualized Operating Cash
During Test Quarter Amount Flow on Date of Issuance*
---------------------------------------------------------------------
<S> <C> <C>
</TABLE>
-------------------
*May not exceed 8.5 to 1.0
B. SECTION 5.02(B): LIMITATIONS ON RESTRICTED PAYMENTS
<TABLE>
<S> <C>
1. Restricted Payments made during Test
Quarter in Guarantors $________
2. Amount of such Restricted Payments
permitted by second paragraph of
Section 5.02(b) $________
3. Line (1) minus Line (2) $________**
4. Cumulative Operating Cash Flow from
October 31, 1993 through end of Fiscal
Quarter immediately preceding Test
Quarter $________
</TABLE>
Compliance Certificate
<PAGE>
<PAGE>
-2-
<TABLE>
<S> <C>
5. Cumulative Total Interest Expense from
October 31, 1993 through end of Fiscal
Quarter immediately preceding Test
Quarter $________
6. Line (5) multiplied by 1.2 $________
7. Line (4) minus Line (6) $________
</TABLE>
-------------------
** May not exceed amount on Line 7
Compliance Certificate
<PAGE>
<PAGE>
-3-
II. SECTION 5.03(K): REPORTING REQUIREMENTS
A. SUBSCRIBERS
<TABLE>
<CAPTION>
===============================================================================================
Name of Borrower or Cellular (New in PCS (New in Test Competitive Access &
Subsidiary Test Quarter/Total) Quarter/Total) Local Exchange (New
in Test
Quarter/Total)
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
===============================================================================================
</TABLE>
B. CAPITAL CALLS AND DISTRIBUTIONS FROM MINORITY OWNED ENTITIES IN TEST
QUARTER
<TABLE>
<CAPTION>
================================================================================
Minority Owned Capital Calls Distributions
Entity
- --------------------------------------------------------------------------------
<S> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
================================================================================
</TABLE>
I, _______________________, a Senior Officer, acting for and on
behalf of the Borrower, certify that the foregoing information is true and
correct and that, on and as of the last day of the Test Quarter, no Default
occurred or was continuing [other than ________].
_______________________________
[Senior Officer]
Dated: ____________, 19__
Compliance Certificate
<PAGE>
<PAGE>
Exhibit 10.2
AGREEMENT
AGREEMENT, dated as of the 30th day of August, 1996, by and between
Century Cellular Holding Corp., a New York corporation ("Century Holding"),
having its principal offices at 50 Locust Avenue, New Canaan, Connecticut 06840,
and Centennial Cellular Corp., a Delaware corporation formerly known as Century
Cellular Corp. ("Centennial"), having its principal offices at 50 Locust Avenue,
New Canaan, Connecticut 06840.
R E C I T A L S
A. Century Holding and Centennial have entered into that certain
Services Agreement, dated as of August 30, 1991, as Amended and Restated as of
September 27, 1991 (the "Services Agreement").
B. In accordance with Section 7.1 of the Services Agreement, the Term
thereof expires on August 30, 1996, and the parties are currently conferring
regarding the possible renewal of the Services Agreement on mutually acceptable
terms and conditions, and while doing so desire to extend the Term of the
Services Agreement for an interim period without modifying at this time any of
the other terms or conditions of the Services Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in the Services Agreement, and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
1. All defined terms used herein and not otherwise defined shall have
the meaning ascribed thereto in the Services Agreement.
2. Section 7.1 of the Services Agreement is hereby amended to provide
that the Term shall expire on August 31, 1997 (the "Interim Additional Term"),
unless earlier terminated in the manner set forth in Section 7.2 thereof. The
parties hereto agree to continue to confer regarding the possible renewal of the
Services Agreement beyond August 31, 1997 on mutually acceptable terms and
conditions. The parties further agree that in the event the Services Agreement
is renewed beyond the Interim Additional Term, any consideration to be paid to
Century Holding shall include consideration for services rendered hereunder
during the Interim Additional Term. In the event the Services Agreement is not
renewed beyond the Interim Additional Term, the parties agree to negotiate in
good faith regarding consideration to be paid to Century Holding for services
rendered hereunder during the Interim Additional Term, which consideration shall
not be less than the value of the services rendered to Centennial by the
employees of Century Holding.
3. Except as modified hereby, the Services Agreement shall remain
unchanged and in full force and effect.
<PAGE>
<PAGE>
IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
hereinabove indicated.
CENTURY CELLULAR HOLDING CORP.
By: /s/ Scott N. Schneider
________________________
Name: Scott N. Schneider
Title: Senior Vice President
CENTENNIAL CELLULAR CORP.
By: /s/ David Z. Rosensweig
________________________
Name: David Z. Rosensweig,
Title: Secretary
<PAGE>
<PAGE>
CENTENNIAL CELLULAR CORP. AND SUBSIDIARIES
EXHIBIT TO FORM 10-Q
For the Three Months Ended August 31, 1996
COMPUTATION OF LOSS PER COMMON SHARE
(Amounts in thousands, except per share data)
<TABLE>
<CAPTION>
Three Months Ended
-------------------------------
August 31, August 31,
1996 1995
------------ ------------
(Unaudited)
<S> <C> <C>
Primary fully diluted:
Net Loss $ (6,107) $ (3,418)
Accretion in liquidation value of preferred stock (3,610) (3,291)
------------ ------------
Loss applicable to common shares $ (9,717) $ (6,709)
Average number of common shares and common
share equivalents outstanding
Average number of common shares
outstanding during this period 26,932,000 26,296,240
Add common share equivalents - Options
to purchase common shares - net 379,264 513,760
------------ ------------
Average number of common shares and common
share equivalents outstanding 27,311,264 (A) 26,810,000 (A)
============ ============
Loss per common share $ (.36)(A) $ (.25)(A)
============ ============
</TABLE>
(A) In accordance with Accounting Principles Board Opinion No. 15, the
inclusioin of common share equiv computation of earnings per share need
not be considered if the reduction of earnings per share is or the
effect is anti-dilutive. Therefore, loss per common share equivalents
as shown on the Conso Statements of Operations for the periods
presented do not include certain common share equivalents is
anti-dilutive. However, the consolidated financial statements for the
three month periods ended and August 31, 1995 do include the effect, on
a retroactive basis of 0 and 397,760, respectively, o shares issued
prior to the Company's initial offering.
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> MAY-31-1997
<PERIOD-END> AUG-31-1996
<CASH> 42,088
<SECURITIES> 0
<RECEIVABLES> 22,493
<ALLOWANCES> 1,576
<INVENTORY> 0
<CURRENT-ASSETS> 67,451
<PP&E> 112,267
<DEPRECIATION> 28,052
<TOTAL-ASSETS> 783,038
<CURRENT-LIABILITIES> 32,980
<BONDS> 350,000
<COMMON> 270
0
193,539
<OTHER-SE> 149,979
<TOTAL-LIABILITY-AND-EQUITY> 783,038
<SALES> 31,623
<TOTAL-REVENUES> 32,365
<CGS> 7,469
<TOTAL-COSTS> 35,764
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 7,041
<INCOME-PRETAX> (6,730)
<INCOME-TAX> (755)
<INCOME-CONTINUING> (5,975)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (6,107)
<EPS-PRIMARY> (.36)
<EPS-DILUTED> 0
</TABLE>
