SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) January 7, 1999
Centennial Cellular Corp.
(Exact Name of Registrant as Specified in Charter)
Delaware 0-19603 06-1158179
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
1305 Campus Parkway
Neptune, New Jersey 07753
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (732) 919-1000
50 Locust Avenue, New Canaan, Connecticut 06840
(Former Name or Former Address, if Changed Since Last Report)
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Item 1. Changes in Control of Registrant
Merger Transaction
On January 7, 1999, CCW Acquisition Corp., a company organized at the
direction of Welsh, Carson, Anderson & Stowe, merged with and into Centennial
Cellular Corp. (the "Company"). As a result of the merger, Welsh, Carson,
Anderson & Stowe VIII, L.P. ("WCAS VIII") and other private investment
partnerships and individuals affiliated with WCAS VIII, as well as certain
affiliates of Blackstone Capital Partners, L.P., Signal/Centennial Partners,
L.L.C. and Michael J. Small, Peter W. Chehayl and Edward G. Owen (collectively,
the "Equity Investors"), acquired 92.9% of the equity interests in the Company
from existing public stockholders in consideration for an equity investment of
approximately $400 million. The source of funds for the transaction was working
capital, or funds available for investment, of the Equity Investors.
Financing Transactions
In connection with the merger, the surviving corporation entered into
a senior secured credit facility with various bank lenders in the aggregate
amount of approximately $1.05 billion. Additionally, an affiliate of WCAS VIII
purchased approximately $180 million aggregate amount of unsecured subordinated
notes of the surviving corporation.
In addition, on December 14, 1998, as part of the financing necessary
to effect the merger, a corporation formed in connection with the merger, which
became a subsidiary of the surviving corporation in a merger with the Company on
January 7, 1999, issued $370 million of senior subordinated debt securities to
qualified institutional buyers under a private placement offering pursuant to
Rule 144A and Regulation S of the Securities Act of 1933, as amended.
In connection with the merger, the Company completed its tender offers
(the "Offers") and consent solicitations with respect to its 8 7/8% Senior Notes
due 2001 (the "8 7/8% Senior Notes") and the Company's 10 1/8% Senior Notes due
2005 (the "10 1/8% Senior Notes" and, together with the 8 7/8% Senior Notes, the
"Senior Notes"). As of 5 p.m., New York City time, on January 6, 1999, the
expiration date of the Offers, approximately $248.6 million of $250 million
aggregate principal amount of the 8 7/8% Senior Notes had been tendered and
approximately $99.8 million of the $100 million aggregate principal amount of
the 10 1/8% Senior Notes had been tendered. The Company has accepted for payment
all Senior Notes validly tendered and not properly withdrawn pursuant to the
Offers. Supplemental indentures to the respective Indentures governing the
Senior Notes are attached hereto as Exhibits 4.6 and 4.7.
Stock Split
The Company also declared a 3-for-1 stock split of its Class A Common
Stock, par value $.01 per share, which was effected by means of a stock
dividend. The record date for the dividend was January 8, 1999 and the payment
date was January 13, 1999.
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Item 7. Financial Statements and Exhibits
(c) Exhibits.
The following exhibits are filed as part of this Current Report on Form
8-K:
2.1 Agreement and Plan of Merger, dated as of July 2, 1998 between Centennial
Cellular Corp. and CCW Acquisition Corp. (Schedules omitted)*
2.2 Amendment, dated as of November 29, 1998, to the Agreement and Plan of
Merger, dated as of July 2, 1998, by and between Centennial Cellular Corp.
and CCW Acquisition Corp.**
3.1 Amended and Restated Certificate of Incorporation of Centennial Cellular
Corp.
3.2 Amended and Restated Bylaws of Centennial Cellular Corp.
4.1 Securities Purchase Agreement dated as of December 29, 1998 among CCW
Acquisition Corp. and the several persons named in Schedules I, II, III and
IV thereto***
4.2 Stockholders Agreement dated as of January 7, 1999 among CCW Acquisition
Corp. and the Purchasers named in Schedules I, II, III and IV thereto***
4.3 Registration Rights Agreement dated as of January 7, 1999 among CCW
Acquisition Corp. and the Purchasers named in Schedules I, II, III and IV
thereto***
4.4 Indenture dated as of December 14, 1998 between Centennial Operating Co.
LLC and Centennial Finance Corp. and The Chase Manhattan Bank
4.5 Assumption Agreement and Supplemental Indenture, dated as of January 7,
1999, to the Indenture dated as of December 14, 1998
4.6 Third Supplemental Indenture dated as of January 7, 1999 between Centennial
Cellular Corp. and Bank of Montreal Trust Company, Trustee, relating to the
8 7/8% Senior Notes due 2001 of Centennial Cellular Corp.
4.7 Fourth Supplemental Indenture dated as of January 7, 1999 between
Centennial Cellular Corp. and Bank of Montreal Trust Company, Trustee,
relating to 10 1/8% Senior Notes due 2005 of Centennial Cellular Corp.
4.8 Pledge and Escrow Agreement dated as of December 14, 1998 from Centennial
Operating Co. LLC and Centennial Finance Corp., as Pledgors, to The Chase
Manhattan Bank, as Trustee
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4.9 Registration Rights Agreement dated as of December 14, 1998 among
Centennial Cellular Operating Co. LLC, Centennial Finance Corp., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Nationsbanc Montgomery
Securities LLC, Morgan Stanley & Co. Incorporated and Chase Securities Inc.
10.1 Credit Agreement dated as of January 7, 1999 among Centennial Cellular
Operating Co. LLC, as Borrower; Centennial Wireless PCS Operations Corp.,
as PR Borrower; Centennial Cellular Corp., as a Guarantor; the other
Guarantors party thereto; each of the lenders named therein; Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as lead
arranging agent; Nationsbank, N.A., as co-arranger and administrative
agent; The Chase Manhattan Bank, as co-arranger and co-documentation agent;
The Bank Of Nova Scotia, as co-documentation agent; Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, as syndication agent;
and Morgan Stanley Senior Funding, Inc., as senior managing agent
10.2 $180,000,000 Senior Subordinated Note due 2009 of Centennial Cellular
Corp., dated as of January 7, 1999
10.3 Employment Agreement dated as of January 7, 1999 between Centennial
Cellular Corp. and Michael Small
10.4 Employment Agreement dated as of January 7, 1999 between Centennial
Cellular Corp. and Rudy J. Graf
99.1 Press Release dated as of January 7, 1999
99.2 Press Release dated as of January 7, 1999
99.3 Press Release dated as of January 8, 1999
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* Previously filed as an Exhibit to the Current Report on Form 8-K of
Centennial Cellular Corp. filed on July 16, 1998.
** Previously filed as an Exhibit to the Current Report on Form 8-K of
Centennial Cellular Corp. filed on December 7, 1998.
*** Previously filed as an Exhibit to the Statement on Schedule 13D of Welsh,
Carson, Anderson & Stowe VIII, L.P., Welsh, Carson, Anderson & Stowe VII,
L.P., WCAS Info Partners, L.P., WCAS Capital Partners III, L.P. and WCA
Management Corporation filed on January 20, 1999.
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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 hereunto duly authorized.
CENTENNIAL CELLULAR CORP.
By: /s/ Michael J. Small
Name: Michael J. Small
Title: Chief Executive Officer
Date: January 22, 1999
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EXHIBIT INDEX
Exhibit Page
No. Description No.
3.1 Amended and Restated Certificate of Incorporation of Centennial
Cellular Corp.
3.2 Amended and Restated Bylaws of Centennial Cellular Corp.
4.4 Indenture dated as of December 14, 1998 between Centennial Operating
Co. LLC and Centennial Finance Corp. and The Chase Manhattan Bank
4.5 Assumption Agreement and Supplemental Indenture, dated as of January 7,
1999, to the Indenture dated as of December 14, 1998
4.6 Third Supplemental Indenture dated as of January 7, 1999 between
Centennial Cellular Corp. and Bank of Montreal Trust Company, Trustee,
relating to the 8 7/8% Senior Notes due 2001 of Centennial Cellular
Corp.
4.7 Fourth Supplemental Indenture dated as of January 7, 1999 between
Centennial Cellular Corp. and Bank of Montreal Trust Company, Trustee,
relating to 10 1/8% Senior Notes due 2005 of Centennial Cellular Corp.
4.8 Pledge and Escrow Agreement dated as of December 14, 1998 from
Centennial Operating Co. LLC and Centennial Finance Corp., as Pledgors,
to The Chase Manhattan Bank, as Trustee
4.9 Registration Rights Agreement dated as of December 14, 1998 among
Centennial Cellular Operating Co. LLC, Centennial Finance Corp.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Nationsbanc
Montgomery Securities LLC, Morgan Stanley & Co. Incorporated and Chase
Securities Inc.
10.1 Credit Agreement dated as of January 7, 1999 among Centennial Cellular
Operating Co. LLC, as Borrower; Centennial Wireless PCS Operations
Corp., as PR Borrower; Centennial Cellular Corp., as a Guarantor; the
other Guarantors party thereto; each of the lenders named therein;
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as lead arranging agent; Nationsbank, N.A., as
co-arranger and administrative agent; The Chase Manhattan Bank,
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as co-arranger and co-documentation agent; The Bank Of Nova Scotia, as
co-documentation agent; Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, as syndication agent; and Morgan Stanley
Senior Funding, Inc., as senior managing agent
10.2 $180,000,000 Senior Subordinated Note due 2009 of Centennial
Cellular Corp., dated as of January 7, 1999
10.3 Employment Agreement dated as of January 7, 1999 between Centennial
Cellular Corp. and Michael Small
10.4 Employment Agreement dated as of January 7, 1999 between Centennial
Cellular Corp. and Rudy J. Graf
99.1 Press Release dated as of January 7, 1999
99.2 Press Release dated as of January 7, 1999
99.3 Press Release dated as of January 8, 1999
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AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CENTENNIAL CELLULAR CORP.
FIRST: The name of the Corporation is:
Centennial Cellular Corp.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1013 Centre Road, in the City of Wilmington, County of New
Castle. The name of the Corporation's registered agent at such address is
Corporation Service Company.
THIRD: The purposes for which the Corporation is formed are to engage
in any lawful act or activity for which corporations may be organized under the
Delaware General Corporation Law.
FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 50,000,000 shares, par value $.01 per share.
All such shares shall be of one class and shall be designated Common Stock.
FIFTH: In furtherance and not in limitation of the powers conferred by
the laws of the State of Delaware, the Board of Directors of the Corporation is
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expressly authorized and empowered to make, alter or repeal the By-laws of the
Corporation, subject to the power of the stockholders of the Corporation to
alter or repeal any By-law made by the Board of Directors.
SIXTH: The Corporation reserves the right at any time and from time to
time to amend, alter, change or repeal any provisions contained in this
Certificate of Incorporation; and other provisions authorized by the laws of the
State of Delaware at the time in force may be added or inserted, in the manner
now or hereafter prescribed by law; and all rights, preferences and privileges
of whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate of Incorporation in its present
form or as hereafter amended are granted subject to the right reserved in this
Article.
SEVENTH: (1) The Corporation shall, to the fullest extent permitted by
Section 145 of the Delaware General Corporation Law, as the same may be amended
and supplemented, indemnify any and all persons whom it shall have power to
indemnify under said section from and against any and all of the expenses,
liabilities and other matters referred to in or covered by said section, and the
indemnification provided for herein shall not be deemed exclusive of any other
rights to which those indemnified may be entitled under any By-law, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in his or her official capacity and as to action in another capacity while
holding such office, and shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
(2) No person shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
provided, however, that the foregoing shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of
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loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of the State of
Delaware or (iv) for any transaction from which the director derived an improper
personal benefit.
AMENDED AND RESTATED
BY-LAWS
OF
CENTENNIAL CELLULAR CORP.
Incorporated under the Laws of the
State of Delaware
As amended through
January 7, 1999
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TABLE OF CONTENTS
Page
ARTICLE I OFFICES.................................................1
ARTICLE II MEETINGS OF STOCKHOLDERS................................1
Section 1. Place of Meetings.......................................1
Section 2. Annual Meeting..........................................1
Section 3. Special Meetings........................................1
Section 4. Notice of Meetings......................................2
Section 5. List of Stockholders....................................2
Section 6. Quorum..................................................2
Section 7. Voting..................................................3
Section 8. Proxies.................................................3
Section 9. Action Without a Meeting................................3
ARTICLE III BOARD OF DIRECTORS......................................4
Section 1. Powers..................................................4
Section 2. Election and Term.......................................4
Section 3. Number..................................................4
Section 4. Quorum and Manner of Acting.............................4
Section 5. Organization Meeting....................................4
Section 6. Regular Meetings........................................5
Section 7. Special Meetings; Notice................................5
Section 8. Removal of Directors....................................5
Section 9. Resignations............................................5
Section 10. Vacancies...............................................5
Section 11. Committees..............................................6
Section 12. Compensation of Directors...............................6
Section 13. Action Without a Meeting................................6
Section 14. Telephonic Participation in Meetings....................7
ARTICLE IV OFFICERS................................................7
Section 1. Principal Officers......................................7
Section 2. Election and Term of Office.............................7
Section 3. Other Officers..........................................7
Section 4. Removal.................................................7
Section 5. Resignations............................................7
Section 6. Vacancies...............................................7
Section 7. Chairman of the Board...................................8
Section 8. Chief Executive Officer.................................8
Section 9. President...............................................8
Section 10. Vice President..........................................8
Section 11. Treasurer...............................................8
Section 12. Secretary...............................................9
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Page
Section 13. Salaries................................................9
ARTICLE V INDEMNIFICATION OF OFFICERS AND DIRECTORS...............9
Section 1. Right of Indemnification................................9
Section 2. Expenses................................................9
Section 3. Other Rights of Indemnification........................10
ARTICLE VI SHARES AND THEIR TRANSFER..............................11
Section 1. Certificate for Stock..................................11
Section 2. Stock Certificate Signature............................11
Section 3. Stock Ledger...........................................11
Section 4. Cancellation...........................................11
Section 5. Registrations of Transfers of Stock....................11
Section 6. Regulations............................................12
Section 7. Lost, Stolen, Destroyed or Mutilated
Certificates......................................12
Section 8. Record Dates...........................................12
ARTICLE VII MISCELLANEOUS PROVISIONS...............................12
Section 1. Corporate Seal.........................................12
Section 2. Voting of Stocks Owned by
the Corporation...................................13
Section 3. Dividends..............................................13
ARTICLE VIII AMENDMENTS.............................................13
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BY-LAWS
OF
CENTENNIAL CELLULAR CORP.
(a Delaware corporation)
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ARTICLE I
OFFICES
The registered office of the Corporation in the State of Delaware
shall be located in the City of Wilmington, County of New Castle. The
Corporation may establish or discontinue, from time to time, such other offices
within or without the State of Delaware as may be deemed proper for the conduct
of the Corporation's business.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. All meetings of stockholders shall be
held at such place or places, within or without the State of Delaware, as may
from time to time be fixed by the Board of Directors, or as shall be specified
in the respective notices, or waivers of notice, thereof.
Section 2. Annual Meeting. The annual meeting of stockholders for the
election of Directors and the transaction of other business shall be held on
such date and at such place as may be designated by the Board of Directors. At
each annual meeting the stockholders entitled to vote shall elect a Board of
Directors and may transact such other proper business as may come before the
meeting.
Section 3. Special Meetings. A special meeting of the stockholders, or
of any class thereof entitled to vote, for any purpose or purposes, may be
called at any time by the Chairman of the Board, if any, the Chief Executive
Officer or by order of the Board of Directors and shall be called by the
Secretary upon the written request of stockholders holding of record at least
50% of the outstanding shares of stock of the Corporation entitled to
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vote at such meeting. Such written request shall state the purpose or purposes
for which such meeting is to be called.
Section 4. Notice of Meetings. Except as otherwise provided by law,
written notice of each meeting of stockholders, whether annual or special,
stating the place, date and hour of the meeting shall be given not less than
twenty days or more than sixty days before the date on which the meeting is to
be held to each stockholder of record entitled to vote thereat by delivering a
notice thereof to him personally or by mailing such notice in a postage prepaid
envelope directed to him at his address as it appears on the records of the
Corporation, unless he shall have filed with the Secretary of the Corporation a
written request that notices intended for him be directed to another address, in
which case such notice shall be directed to him at the address designated in
such request. Notice shall not be required to be given to any stockholder who
shall waive such notice in writing, whether prior to or after such meeting, or
who shall attend such meeting in person or by proxy unless such attendance is
for the express purpose of objecting, at the beginning of such meeting, to the
transactions of any business because the meeting is not lawfully called or
convened. Every notice of a special meeting of the stockholders, besides the
time and place of the meeting, shall state briefly the objects or purposes
thereof.
Section 5. List of Stockholders. It shall be the duty of the Secretary
or other officer of the Corporation who shall have charge of the stock ledger to
prepare and make, at least ten days before every meeting of the stockholders, a
complete list of the stockholders entitled to vote thereat, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in his name. Such list shall be open to the examination of
any stockholder, for any purpose germane to the meeting, during ordinary
business hours, for a period of at least ten days prior to the meeting, either
at a place within the city where the meeting is to be held, which place shall be
specified in the notice of the meeting, or, if not so specified, at the place
where the meeting is to be held. The list shall be kept and produced at the time
and place of the meeting during the whole time thereof and subject to the
inspection of any stockholder who may be present. The original or duplicate
ledger shall be the only evidence as to who are the stockholders entitled to
examine such list or the books of the Corporation or to vote in person or by
proxy at such meeting.
Section 6. Quorum. At each meeting of the stockholders, the holders
of record of a majority of the issued and outstanding stock of the Corporation
entitled to vote at such meeting, present in person or by proxy, shall
constitute a quorum for the transaction of business, except where otherwise
provided by law, the Articles of Incorporation or these By-laws. In the
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absence of a quorum, any officer entitled to preside at, or act as Secretary of,
such meeting shall have the power to adjourn the meeting from time to time until
a quorum shall be constituted.
Section 7. Voting. Every stockholder of record who is entitled to vote
shall at every meeting of the stockholders be entitled to one vote for each
share of stock held by him on the record date; except, however, that shares of
its own stock belonging to the Corporation or to another corporation, if a
majority of the shares entitled to vote in the election of directors of such
other corporation is held by the Corporation, shall neither be entitled to vote
nor counted for quorum purposes. Nothing in this Section shall be construed as
limiting the right of the Corporation to vote its own stock held by it in a
fiduciary capacity. At all meetings of the stockholders, a quorum being present,
all matters shall be decided by majority vote of the shares of stock entitled to
vote held by stockholders present in person or by proxy, except as otherwise
required by law or the Articles of Incorporation. Unless demanded by a
stockholder of the Corporation present in person or by proxy at any meeting of
the stockholders and entitled to vote thereat or so directed by the chairman of
the meeting or required by law, the vote thereat on any question need not be by
written ballot. On a vote by written ballot, each ballot shall be signed by the
stockholder voting, or in his name by his proxy, if there be such proxy, and
shall state the number of shares voted by him and the number of votes to which
each share is entitled.
Section 8. Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent to corporate action in writing without a
meeting may authorize another person or persons to act for him by proxy. A proxy
acting for any stockholder shall be duly appointed by an instrument in writing
subscribed by such stockholder. No proxy shall be valid after the expiration of
three years from the date thereof unless the proxy provides for a longer period
and conforms with applicable law.
Section 9. Action Without a Meeting. Any action required to be taken
at any annual or special meeting of stockholders or any action which may be
taken at any annual or special meeting of stockholders may be taken without a
meeting, without prior notice and without a vote, if a consent in writing
setting forth the action so taken shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
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ARTICLE III
BOARD OF DIRECTORS
Section 1. Powers. The business and affairs of the Corporation shall
be managed under the direction of the Board of Directors.
Section 2. Election and Term. Except as otherwise provided by law,
Directors shall be elected at the annual meeting of stockholders and shall hold
office until the next annual meeting of stockholders and until their successors
are elected and qualify, or until they sooner die, resign or are removed. At
each annual meeting of stockholders, at which a quorum is present, the persons
receiving a plurality of the votes cast shall be the Directors. Acceptance of
the office of Director may be expressed orally or in writing, and attendance at
the organization meeting shall constitute such acceptance.
Section 3. Number. The number of Directors shall be such number as
determined from time to time by the Board of Directors, but shall be not less
than three (3) nor more than nine (9), and initially shall be nine (9).
Section 4. Quorum and Manner of Acting. Unless otherwise provided by
law, the presence of a majority of the whole Board of Directors shall be
necessary to constitute a quorum for the transaction of business. In the absence
of a quorum, a majority of the Directors present may adjourn the meeting from
time to time until a quorum shall be present. Notice of any adjourned meeting
need not be given. At all meetings of Directors, a quorum being present, all
matters shall be decided by the affirmative vote of a majority of the Directors
present, except as otherwise required by law. The Board of Directors may hold
its meetings at such place or places within or without the State of Delaware as
the Board of Directors may from time to time determine or as shall be specified
in the respective notices, or waivers of notice, thereof.
Section 5. Organization Meeting. Immediately after each annual meeting
of stockholders for the election of Directors the Board of Directors shall meet
at the place of the annual meeting of stockholders for the purpose of
organization, the election of officers and the transaction of other business.
Notice of such meeting need not be given. If such meeting is held at any other
time or place, notice thereof must be given as hereinafter provided for special
meetings of the Board of Directors, subject to the execution of a waiver of the
notice thereof signed by, or the attendance at such meeting of, all Directors
who may not have received such notice.
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Section 6. Regular Meetings. Regular meetings of the Board of
Directors may be held at such place, within or without the State of Delaware, as
shall from time to time be determined by the Board of Directors. After there has
been such determination, and notice thereof has been once given to each member
of the Board of Directors as hereinafter provided for special meetings, regular
meetings may be held without further notice being given.
Section 7. Special Meetings; Notice. Special meetings of the Board of
Directors shall be held whenever called by the Chairman of the Board, if any,
the Chief Executive Officer or by any three Directors. Notice of each such
meeting shall be mailed to each Director, addressed to him at his residence or
usual place of business, at least five days before the date on which the meeting
is to be held, or shall be sent to him at such place by telegraph, cable, radio
or wireless, or be delivered personally or by telephone, not later than the day
before the day on which such meeting is to be held. Each such notice shall state
the time and place of the meeting and, as may be required, the purposes thereof.
Notice of any meeting of the Board of Directors need not be given to any
Director if he shall sign a written waiver thereof either before or after the
time stated therein for such meeting, or if he shall be present at the meeting.
Unless limited by law, the Articles of Incorporation, these By-laws or the terms
of the notice thereof, any and all business may be transacted at any meeting
without the notice thereof having specifically identified the matters to be
acted upon.
Section 8. Removal of Directors. Any Director or the entire Board of
Directors may be removed, with or without cause, at any time, by action of the
holders of record of the majority of the issued and outstanding stock of the
Corporation (a) present in person or by proxy at a meeting of holders of such
stock and entitled to vote thereon or (b) by a consent in writing in the manner
contemplated in Section 9 of Article II, and the vacancy or vacancies in the
Board of Directors caused by any such removal may be filled by action of such a
majority at such meeting or at any subsequent meeting or by consent.
Section 9. Resignations. Any Director of the Corporation may resign
at any time by giving written notice to the Chairman of the Board, if any, the
Board, the Chief Executive Officer or the Secretary of the Corporation. The
resignation of any Director shall take effect upon receipt of notice thereof or
at such later time as shall be specified in such notice; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
Section 10. Vacancies. Any newly created directorships and vacancies
occurring in the Board by reason of death, resignation, retirement,
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disqualification or removal, with or without cause, may be filled (i) by the
action of a majority of the directors then in office, though less than a quorum,
or by a sole remaining director, or (ii) by the action of the holders of record
of the majority of the issued and outstanding stock of the Corporation (a)
present in person or by proxy at a meeting of holders of such stock and entitled
to vote thereon or (b) by a consent in writing in the manner contemplated in
Section 9 of Article II. The Director so chosen, whether selected to fill a
vacancy or elected to a new directorship, shall hold office until the next
meeting of stockholders at which the election of Directors is in the regular
order of business, and until his successor has been elected and qualifies, or
until he sooner dies, resigns or is removed.
Section 11. Committees. The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate one or more
committees, each committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or they constitute a quorum, may unanimously appoint
another member of the Board of Directors to act at the meeting in the place of
any absent or disqualified member. Any committee, to the extent allowed by law
and provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation. Each committee shall
keep regular minutes and report to the Board of Directors when required.
Section 12. Compensation of Directors. Directors, as such, shall not
receive any stated salary for their services, but, by resolution of the Board of
Directors, a specific sum fixed by the Board plus expenses may be allowed for
attendance at each regular or special meeting of the Board or any committee
thereof, provided, however, that nothing herein contained shall be construed to
preclude any Director from serving the Corporation or any parent or subsidiary
corporation thereof in any other capacity and receiving compensation therefor.
Section 13. Action Without a Meeting. Any action required or permitted
to be taken at any meeting of the Board of Directors may be taken without a
meeting if a written consent thereto is signed by all members of the Board, and
such written consent is filed with the minutes or proceedings of the Board.
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Section 14. Telephonic Participation in Meetings. Members of the Board
of Directors may participate in a meeting of the Board by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation shall
constitute presence in person at such meeting.
ARTICLE IV
OFFICERS
Section 1. Principal Officers. The Board of Directors shall elect a
Chief Executive Officer, a President, a Secretary and a Treasurer, and may in
addition elect one or more Vice Presidents and such other officers as it deems
fit; the Chief Executive Officer, the President, the Secretary, the Treasurer,
and the Vice Presidents (if any) being the principal officers of the
Corporation. One person may hold, and perform the duties of, any two or more of
said offices.
Section 2. Election and Term of Office. The principal officers of the
Corporation shall be elected annually by the Board of Directors at the
organization meeting thereof. Each such officer shall hold office until his
successor shall have been elected and shall qualify, or until his earlier death,
resignation or removal.
Section 3. Other Officers. In addition, the Board of Directors may
elect such other officers as they deem fit. Any such other officers chosen by
the Board of Directors shall be subordinate officers and shall hold office for
such period, have such authority and perform such duties as the Board of
Directors or the Chief Executive Officer from time to time determine.
Section 4. Removal. Any officer may be removed, either with or without
cause, at any time, by resolution adopted by the Board of Directors at any
regular meeting of the Board, or at any special meeting of the Board called for
that purpose, at which a quorum is present.
Section 5. Resignations. Any officer may resign at any time by giving
written notice to the Chief Executive Officer, the Secretary or the Board of
Directors. Any such resignation shall take effect upon receipt of such notice or
at any later time specified therein; and, unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective.
Section 6. Vacancies. A vacancy in any office may be filled for the
unexpired portion of the term in the manner prescribed in these By-laws for
7
<PAGE>
election or appointment to such office for such term.
Section 7. Chairman of the Board. The Chairman of the Board of
Directors, if one has been elected, shall preside if present at all meetings of
the Board of Directors, and he shall have and perform such other duties as from
time to time may be assigned to him by the Board of Directors.
Section 8. Chief Executive Officer. The Chief Executive Officer shall
have the general powers and duties of supervision and management usually vested
in the office of a chief executive officer of a corporation. He shall preside at
all meetings of the stockholders if present thereat, and at all meetings of the
Board of Directors, and shall have general supervision, direction and control of
the operations and business activities of the Corporation through his control
and supervision of the President of the Corporation. Except as the Board of
Directors shall authorize the execution thereof in some other manner, he shall
execute bonds, mortgages, and other contracts on behalf of the Corporation, and
shall cause the seal to be affixed to any instrument requiring it and when so
affixed the seal shall be attested by the signature of the Secretary or the
Treasurer.
Section 9. President. The President shall be the chief operating
officer of the Corporation and shall have the general powers and duties of
supervision and management of a chief operating officer of a corporation. The
President shall supervise and be responsible for the operations and
administration of the business activities of the Company subject to the
direction and control of the Chief Executive Officer and shall have such other
powers and shall perform such duties as shall be assigned to him by the Chief
Executive Officer or the Board of Directors.
Section 10. Vice President. Each Vice President, if any have been
elected, shall have such powers and shall perform such duties as shall be
assigned to him by the Chief Executive Officer or the Board of Directors.
Section 11. Treasurer. The Treasurer shall have charge and custody of,
and be responsible for, all funds and securities of the Corporation. He shall
exhibit at all reasonable times his books of account and records to any of the
Directors of the Corporation upon application during business hours at the
office of the Corporation where such books and records shall be kept; when
requested by the Board of Directors, he shall render a statement of the
condition of the finances of the Corporation at any meeting of the Board or at
the annual meeting of stockholders; he shall receive, and give receipt for,
moneys due and payable to the Corporation from any source whatsoever; in
8
<PAGE>
general, he shall perform all the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned to him by the Chief
Executive Officer or the Board of Directors. The Treasurer shall give such bond,
if any, for the faithful discharge of his duties as the Board of Directors may
require.
Section 12. Secretary. The Secretary, if present, shall act as
secretary at all meetings of the Board of Directors and of the stockholders and
keep the minutes thereof in a book or books to be provided for that purpose; he
shall see that all notices required to be given by the Corporation are duly
given and served; he shall have charge of the stock records of the Corporation;
he shall see that all reports, statements and other documents required by law
are properly kept and filed; and in general he shall perform all the duties
incident to the office of Secretary and such other duties as from time to time
may be assigned to him by the Chief Executive Officer or the Board of Directors.
Section 13. Salaries. The salaries of the principal officers shall be
fixed from time to time by the Board of Directors or, if one has been
established, the Compensation Committee of the Board of Directors, and the
salaries of any other officers may be fixed by the Chief Executive Officer.
ARTICLE V
INDEMNIFICATION OF OFFICERS AND DIRECTORS
Section 1. Right of Indemnification. Every person now or hereafter
serving as a Director or officer of the Corporation and every such Director or
officer serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall be indemnified by the Corporation in accordance with
and to the fullest extent permitted by law for the defense of, or in connection
with, any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative.
Section 2. Expenses. Expenses (including attorneys' fees) incurred in
defending a civil, criminal, administrative, or investigative action, suit or
proceeding shall be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such Director or officer to repay such amount if it shall ultimately
be determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article V.
9
<PAGE>
Section 3. Other Rights of Indemnification. The right of
indemnification herein provided shall not be deemed exclusive of any other
rights to which any such Director or officer may now or hereafter be entitled
under any provision of the Corporation's Certificate of Incorporation or any
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be a Director or officer and shall inure to the benefit of the heirs, executors
and administrators of such person.
ARTICLE VI
SHARES AND THEIR TRANSFER
Section 1. Certificate for Stock. Every stockholder of the Corporation
shall be entitled to a certificate or certificates, to be in such form as the
Board of Directors shall prescribe, certifying the number of shares of the
capital stock of the Corporation owned by him. No certificate shall be issued
for partly paid shares.
Section 2. Stock Certificate Signature. The certificates for such
stock shall be numbered in the order in which they shall be issued and shall be
signed by the Chief Executive Officer, the President or any Vice President and
by the Secretary or an Assistant Secretary or the Treasurer of the Corporation,
and its seal shall be affixed thereto. If such certificate is countersigned (1)
by a transfer agent other than the Corporation or its employee, or, (2) by a
registrar other than the Corporation or its employee, the signatures of such
officers of the Corporation may be facsimiles. In case any officer of the
Corporation who has signed, or whose facsimile signature has been placed upon,
any such certificate shall have ceased to be such officer before such
certificate is issued, it may be issued by the Corporation with the same effect
as if he were such officer at the date of issue.
Section 3. Stock Ledger. A record shall be kept by the Secretary or by
any other officer, employee or agent designated by the Board of Directors of
the name of each person, firm or corporation holding capital stock of the
Corporation, the number of shares represented by, and the respective dates of,
each certificate for such capital stock, and in case of cancellation of any
such certificate, the respective dates of cancellation.
Section 4. Cancellation. Every certificate surrendered to the
Corporation for exchange or registration of transfer shall be canceled, and no
new certificate or certificates shall be issued in exchange for any existing
certificate until such existing certificate shall have been so canceled, except,
subject to Section 7 of this Article VI, in cases provided for by applicable
law.
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<PAGE>
Section 5. Registrations of Transfers of Stock. Registrations of
transfers of shares of the capital stock of the Corporation shall be made on the
books of the Corporation by the registered holder thereof, or by his attorney
thereunto authorized by power of attorney duly executed and filed with the
Secretary of the Corporation or with a transfer clerk or a transfer agent
appointed as in Section 6 of this Article VI provided, and on surrender of the
certificate or certificates for such shares properly endorsed and the payment of
all taxes thereon. The person in whose name shares of stock stand on the books
of the Corporation shall be deemed the owner thereof for all purposes as regards
the Corporation, provided, however, that whenever any transfer of shares shall
be made for collateral security, and not absolutely, it shall be so expressed in
the entry of the transfer if, when the certificates are presented to the
Corporation for transfer, both the transferor and the transferee request the
Corporation to do so.
Section 6. Regulations. The Board of Directors may make such rules and
regulations as it may deem expedient, not inconsistent with the Articles of
Incorporation or these By-laws, concerning the issue, transfer and registration
of certificates for shares of the stock of the Corporation. It may appoint, or
authorize any principal officer or officers to appoint, one or more transfer
clerks or one or more transfer agents and one or more registrars, and may
require all certificates of stock to bear the signature or signatures of any of
them.
Section 7. Lost, Stolen, Destroyed or Mutilated Certificates. Before
any certificates for stock of the Corporation shall be issued in exchange for
certificates which shall become mutilated or shall be lost, stolen or destroyed,
proper evidence of such loss, theft, mutilation or destruction shall be procured
for the Board of Directors, if it so requires.
Section 8. Record Dates. For the purpose of determining the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a date as a
record date for any such determination of stockholders. Such record date shall
not be more than sixty or less than twenty days before the date of such meeting,
or more than sixty days prior to any other action.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 1. Corporate Seal. The Board of Directors shall provide a
corporate seal, which shall be in such form as the Board of Directors may
decide. The Secretary shall be the custodian of the seal. The Board of Directors
may authorize a duplicate seal to be kept and used by any other officer.
Section 2. Voting of Stocks Owned by the Corporation. The Board of
Directors may authorize any person on behalf of the Corporation to attend, vote
and grant proxies to be used at any meeting of stockholders of any corporation
(except the Corporation) in which the Corporation may hold stock.
Section 3. Dividends. Subject to the provisions of the Articles of
Incorporation, the Board of Directors may, out of funds legally available
therefor, at any regular or special meeting declare dividends upon the capital
stock of the Corporation as and when they deem expedient. Before declaring any
dividend there may be set apart out of any funds of the Corporation available
for dividends such sum or sums as the Directors from time to time in their
discretion deem proper for working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
Board of Directors shall deem conducive to the interests of the Corporation.
ARTICLE VIII
AMENDMENTS
These By-laws of the Corporation may be altered, amended or repealed
by the Board of Directors at any regular or special meeting of the Board of
Directors or by the affirmative vote of the holders of record of a majority of
the issued and outstanding stock of the Corporation (i) present in person or by
proxy at a meeting of holders of such stock and entitled to vote thereon or (ii)
by a consent in writing in the manner contemplated in Section 9 of Article II,
provided, however, that notice of the proposed alteration, amendment or repeal
is contained in the notice of such meeting. By-laws, whether made or altered by
the stockholders or by the Board of Directors, shall be subject to alteration or
repeal by the stockholders as in this Article VIII above provided.
12
================================================================================
CENTENNIAL CELLULAR OPERATING CO. LLC
and
CENTENNIAL FINANCE CORP.
Issuers,
and
THE CHASE MANHATTAN BANK
Trustee
---------------------------
INDENTURE
Dated as of December 14, 1998
$370,000,000 10 3/4% Senior Subordinated Notes due 2008
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
SECTION 1.2. Incorporation by Reference of TIA.
SECTION 1.3. Rules of Construction.
ARTICLE II THE SECURITIES
SECTION 2.1. Form and Dating.
SECTION 2.2. Execution and Authentication.
SECTION 2.3. Registrar and Paying Agent.
SECTION 2.4. Paying Agent to Hold Assets in Trust.
SECTION 2.5. Securityholder Lists.
SECTION 2.6. [INTENTIONALLY OMITTED].
SECTION 2.7. Replacement Securities.
SECTION 2.8. Outstanding Securities.
SECTION 2.9. Treasury Securities.
SECTION 2.10. Temporary Securities.
SECTION 2.11. Cancellation.
SECTION 2.12. Defaulted Interest.
SECTION 2.13. Registration, Registration of Transfer and Exchange.
SECTION 2.14. Book Entry Provisions for Global Securities.
SECTION 2.15. Special Transfer and Exchange Provisions.
SECTION 2.16. CUSIP Numbers.
ARTICLE III REDEMPTION
SECTION 3.1. Rights of Redemption.
SECTION 3.2. Notices to Trustee.
SECTION 3.3. Selection of Securities to Be Redeemed.
SECTION 3.4. Notice of Redemption.
SECTION 3.5. Effect of Notice of Redemption.
SECTION 3.6. Deposit of Redemption Price.
SECTION 3.7. Securities Redeemed in Part.
SECTION 3.8. Special Mandatory Redemption.
ARTICLE IV COVENANTS
SECTION 4.1. Payment of Securities.
SECTION 4.2. Maintenance of Office or Agency.
SECTION 4.3. Limitation on Restricted Payments.
SECTION 4.4. Corporate Existence.
<PAGE>
SECTION 4.5. Payment of Taxes and Other Claims.
SECTION 4.6. Maintenance of Properties and Insurance.
SECTION 4.7. Compliance Certificate; Notice of Default.
SECTION 4.8. Provision of Financial Statements.
SECTION 4.9. [INTENTIONALLY OMITTED].
SECTION 4.10. Limitation on Transactions with Related Persons.
SECTION 4.11. Limitation on Incurrence of Additional Indebtedness.
SECTION 4.12. Limitation on Restricting Subsidiary Dividends.
SECTION 4.13. Limitation on Liens.
SECTION 4.14. Limitation on Asset Sales and Sales of Subsidiary Stock.
SECTION 4.15. Waiver of Stay, Extension or Usury Laws.
SECTION 4.16. Limitation on Senior Subordinated Indebtedness.
SECTION 4.17. Limitation on Unrestricted Subsidiaries.
SECTION 4.18. Limitation on Lines of Business.
SECTION 4.19. Limitation on Issuances of Guarantees.
SECTION 4.20. Limitation on Activities Prior to the Merger.
SECTION 4.21. Transfer of Stock to the Company.
SECTION 4.22. Amendments to Mezzanine Financing.
SECTION 4.23. Waiver of Compliance With Certain Covenants.
ARTICLE V SUCCESSOR CORPORATION
SECTION 5.1. Limitation on Merger, Sale or Consolidation.
SECTION 5.2. Successor Corporation Substituted.
ARTICLE VI EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. Events of Default.
SECTION 6.2. Acceleration of Maturity Date; Rescission and Annulment.
SECTION 6.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
SECTION 6.4. Trustee May File Proofs of Claim.
SECTION 6.5. Trustee May Enforce Claims Without Possession of Securities.
SECTION 6.6. Priorities.
SECTION 6.7. Limitation on Suits.
SECTION 6.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
SECTION 6.9. Rights and Remedies Cumulative.
SECTION 6.10. Delay or Omission Not Waiver.
SECTION 6.11. Control by Holders.
SECTION 6.12. Waiver of Past Default.
SECTION 6.13. Undertaking for Costs.
SECTION 6.14. Restoration of Rights and Remedies.
ARTICLE VII TRUSTEE
SECTION 7.1. Duties of Trustee.
SECTION 7.2. Rights of Trustee.
SECTION 7.3. Individual Rights of Trustee.
<PAGE>
SECTION 7.4. Trustee's Disclaimer.
SECTION 7.5. Notice of Default.
SECTION 7.6. Reports by Trustee to Holders.
SECTION 7.7. Compensation and Indemnity.
SECTION 7.8. Replacement of Trustee.
SECTION 7.9. Successor Trustee by Merger, Etc.
SECTION 7.10. Eligibility; Disqualification.
SECTION 7.11. Preferential Collection of Claims against the Issuers.
SECTION 7.12. Wire Transfers and Investments.
ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance.
SECTION 8.2. Legal Defeasance and Discharge.
SECTION 8.3. Covenant Defeasance.
SECTION 8.4. Conditions to Legal or Covenant Defeasance.
<PAGE>
SECTION 8.5. Deposited U.S. Legal Tender and Government Securities to be
Held in Trust; Other Miscellaneous Provisions.
SECTION 8.6. Repayment to the Issuers.
SECTION 8.7. Reinstatement.
ARTICLE IX AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Supplemental Indentures Without Consent of Holders.
SECTION 9.2. Amendments, Supplemental Indentures and Waivers with Consent
of Holders.
SECTION 9.3. Compliance with TIA.
SECTION 9.4. Revocation and Effect of Consents.
SECTION 9.5. Notation on or Exchange of Securities.
SECTION 9.6. Trustee to Sign Amendments, Etc.
ARTICLE X
SECTION 10.1. Security.
ARTICLE XI RIGHT TO REQUIRE REPURCHASE
SECTION 11.1. Repurchase of Securities at Option of the Holder Upon a
Change of Control.
ARTICLE XII SUBORDINATION OF SECURITIES
SECTION 12.1. Securities Subordinate to Senior Indebtedness.
SECTION 12.2. Payment over of Proceeds upon Dissolution, etc.
<PAGE>
SECTION 12.3. Suspension of Payment When Designated Senior Indebtedness in
Default.
SECTION 12.4. Payment Permitted If No Default.
SECTION 12.5. Subrogation to Rights of Holders of Senior Indebtedness.
SECTION 12.6. Provisions Solely to Define Relative Rights.
SECTION 12.7. Trustee to Effectuate Subordination.
SECTION 12.8. No Waiver of Subordination Provisions.
SECTION 12.9. Distribution or Notice to Representative.
SECTION 12.10. Notice to Trustee.
SECTION 12.11. Reliance on Judicial Order or Certificate of Liquidating
Agent.
SECTION 12.12. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
SECTION 12.13. Article Applicable to Paying Agents.
SECTION 12.14. No Suspension of Remedies.
SECTION 12.15. Trust Moneys Not Subordinated.
SECTION 12.16. Trustee Not Fiduciary for Holders of Senior Indebtedness.
SECTION 12.17. Applicability of Article to Finance Corp..
ARTICLE XIII MISCELLANEOUS
SECTION 13.1. TIA Controls.
SECTION 13.2. Notices.
SECTION 13.3. Communications by Holders with Other Holders.
SECTION 13.4. Certificate and Opinion as to Conditions Precedent.
SECTION 13.5. Statements Required in Certificate or Opinion.
SECTION 13.6. Rules by Trustee, Paying Agent, Registrar.
SECTION 13.7. Legal Holidays.
SECTION 13.8. Governing Law.
SECTION 13.9. No Adverse Interpretation of Other Agreements.
SECTION 13.10. No Recourse against Others.
SECTION 13.11. Successors.
SECTION 13.12. Duplicate Originals.
SECTION 13.13. Severability.
SECTION 13.14. Table of Contents, Headings, Etc.
SECTION 13.15. Qualification of Indenture.
SECTION 13.16. Registration Rights.
ARTICLE XIV SATISFACTION AND DISCHARGE
Section 14.1. Satisfaction and Discharge of Indenture.
Section 14.2. Application of Trust Money.
SIGNATURES
EXHIBIT A - FORM OF SECURITY A-1
EXHIBIT B - REGULATION S CERTIFICATE B-1
EXHIBIT C - RESTRICTED SECURITIES CERTIFICATE C-1
EXHIBIT D - UNRESTRICTED SECURITIES CERTIFICATE D-1
EXHIBIT E - TELEPHONE NUMBER(S) FOR CALL-BACKS E-1
EXHIBIT F - INTERCOMPANY NOTE F-1
EXHIBIT G - ASSUMPTION AGREEMENT AND SUPPLEMENTAL
INDENTURE NO. 1 TO THE INDENTURE G-1
<PAGE>
CROSS-REFERENCE TABLE
TIA Section Indenture Section
310 (a)(1).............................................. 7.10
(a)(2).............................................. 7.10
(a)(3).............................................. N.A.
(a)(4).............................................. N.A.
(a)(5).............................................. 7.10
(b)................................................. 7.8; 7.10
(c)................................................. N.A.
311 (a)................................................. 7.11
(b)................................................. 7.11
(c)................................................. N.A.
312 (a)................................................. 2.5
<PAGE>
(b)................................................. 13.3
(c)................................................. 13.3
313 (a)................................................. 7.6
(b)(1).............................................. 7.6
(b)(2).............................................. 7.6
(c)................................................. 7.6; 13.2
(d)................................................. 7.6
314 (a)................................................. 4.8; 13.2
(b)................................................. N.A.
(c)(1).............................................. 2.2; 7.2; 13.4
(c)(2).............................................. 7.2; 13.4
(c)(3).............................................. N.A.
(d)................................................. N.A.
(e)................................................. 13.5
<PAGE>
(f)................................................. N.A.
315 (a)................................................. 7.1(b)
(b)................................................. 7.5; 7.6; 13.2
(c)................................................. 7.1(a)
(d)................................................. 2.8; 6.11; 7.1(b)(c)
(e)................................................. 6.13
316 (a) (last sentence)................................. 2.9
(a)(1)(A) 6.11
(a)(1)(B) 6.12
(a)(2) N.A.
(b) 6.12; 6.8; 6.7
317 (a)(1).............................................. 6.3
(a)(2).............................................. 6.4
(b)................................................. 2.4
<PAGE>
318 (a)................................................. 13.1
N.A. means not applicable.
1. Note: This Cross-Reference Table shall not, for any purpose, be deemed
to be a part of the Indenture.
<PAGE>
INDENTURE, dated as of December 14, 1998, by and among Centennial
Cellular Operating Co. LLC, a Delaware limited liability company (the
"Company"), Centennial Finance Corp., a Delaware corporation ("Finance Corp."
and together with the Company, the "Issuers") and The Chase Manhattan Bank (the
"Trustee").
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the Issuers' 10
3/4% Series A Senior Subordinated Notes due 2008 (the "Series A Securities" or
the "Initial Securities"), and the 10 3/4% Series B Senior Subordinated Notes
due 2008 (the "Series B Securities" and, together with the Series A Securities,
the "Securities"), which may be exchanged for the 10 3/4% Series A Senior
Subordinated Notes due 2008:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Acceleration Notice" shall have the meaning specified in Section 6.2.
"Acquired Indebtedness" means Indebtedness of a person (i) existing at
the time such person becomes a Restricted Subsidiary or (ii) assumed in
connection with the acquisition of assets from such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary or such acquisition, as the case may be.
Acquired Indebtedness shall be deemed to be incurred on the date of the related
acquisition of assets from any Person or the date the Acquired Person becomes a
Restricted Subsidiary, as the case may be.
"Acquired Person" shall have the meaning as set forth in the
definition of "Permitted Investment."
"Additional Escrow Amount" means cash in the amount of approximately
$25 million, which is placed in the Escrow and Pledge Account with the net
proceeds realized from the sale of the Securities.
"Affiliate" means, with respect to any specified Person, (i) any other
Person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, such specified Person or (ii) any officer,
director, or controlling stockholder of such other Person. For purposes of this
definition, the term "control" means (a) the power to direct the management and
policies of a Person, directly or through one or more intermediaries, whether
through the ownership of voting securities, by contract, or otherwise, or (b)
without limiting the foregoing, the beneficial ownership of 10% or more of the
voting power of the voting common equity of such Person (on a fully diluted
basis) or of warrants or other rights to acquire such equity (whether or not
presently exercisable).
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<PAGE>
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Agent Bank" means Merrill Lynch Capital Corporation in its capacity
as administrative agent under the Credit Facility and any future or successor or
replacement administrative agent under the Credit Facility.
"Annual Operating Cash Flow" on any date means, with respect to any
Person, the Operating Cash Flow for the Reference Period.
"Annual Operating Cash Flow Ratio" on any date (the "Transaction
Date") means, with respect to any Person and its Restricted Subsidiaries, the
ratio of (i) consolidated Indebtedness of such Person and its Restricted
Subsidiaries on the Transaction Date (after giving pro forma effect to the
Incurrence of such Indebtedness) (and without duplication of any Indebtedness
that may be the obligation of such Person and/or one or more of its
Subsidiaries) divided by (ii) the aggregate amount of Annual Operating Cash Flow
of such Person (determined on a pro forma basis after giving effect to all
Investments in and acquisitions or dispositions of any company or any business
or any assets out of the ordinary course of business, whether by merger, stock
purchase or sale or asset purchase or sale, made by such Person and its
Subsidiaries from the beginning of the Reference Period through the Transaction
Date as if such Investment, acquisition or disposition had occurred at the
beginning of such Reference Period); provided that, for purposes of such
computation, in calculating Annual Operating Cash Flow and consolidated
Indebtedness, (a) the transaction giving rise to the need to calculate the
Annual Operating Cash Flow Ratio will be assumed to have occurred (on a pro
forma basis) on the first day of the Reference Period; (b) the incurrence of any
Indebtedness during the Reference Period or subsequent thereto and on or prior
to the Transaction Date (and the application of the proceeds therefrom to the
extent used to retire Indebtedness or to acquire businesses) will be assumed to
have occurred (on a pro forma basis) on the first day of such Reference Period;
(c) Consolidated Interest Expense attributable to any Indebtedness (whether
existing or being incurred) bearing a floating interest rate shall be computed
as if the rate in effect on the Transaction Date had been the applicable rate
for the entire period; and (d) all members of the consolidated group of such
Person on the Transaction Date that were acquired during the Reference Period
shall be deemed to be members of the consolidated group of such Person for the
entire Reference Period. When the foregoing definition is used in connection
with the Company and its Restricted Subsidiaries, references to a Person and its
Subsidiaries in the foregoing definition shall be deemed to refer to the Company
and its Restricted Subsidiaries. Any such pro forma calculation may include
adjustments for the pro forma effect of (a) any cost savings accounted for on an
annualized basis as a result of an acquisition by the Company or a Restricted
Subsidiary which, in the good faith judgment of the Company (as determined by a
resolution of the Board of Directors of the Company), will be eliminated or
2
<PAGE>
realized within one year after the date of such transaction (provided that any
such cost savings are calculated in accordance with Regulation S-X under the
Securities Act (or any successor regulation)) or (b) any direct quantifiable
savings from the conversion of roaming expense which the Company will obtain
within one year of the transaction in the good faith judgment of the Board of
Directors of the Company from the acquisition of a third party which prior to
such acquisition had a contact with the Company or any Restricted Subsidiary for
roaming services.
"Applicable Premium" means, with respect to a Security at any
redemption date, the excess of (A) the present value at such time of (1) the
redemption price of such Security at December 15, 2003 (such redemption price
being described in Article III), plus (2) all required interest payments
(excluding accrued but unpaid interest) due on such Security through December
15, 2003, computed using a discount rate equal to the Treasury Rate plus 50
basis points, over (B) the then outstanding principal amount of such Security.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, Euroclear and Cedel,
in each case to the extent applicable to such transaction and as in effect at
the time of such transfer or transaction.
"Asset Sale" shall have the meaning specified in Section 4.14.
"Asset Sale Offer" shall have the meaning specified in Section 4.14.
"Asset Sale Offer Amount" shall have the meaning specified in Section
4.14.
"Asset Sale Offer Period" shall have the meaning specified in Section
4.14.
"Asset Sale Offer Price" shall have the meaning specified in Section
4.14.
"Asset Sale Purchase Date" shall have the meaning specified in Section
4.14.
"Assumption Agreement" shall have the meaning as set forth in Section
5.1.
"Bankruptcy Law" means Title 11, United States Bankruptcy Code of
1978, as amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
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"Blackstone" means Blackstone Capital Partners III Merchant Banking
Fund L.P. and affiliates of the foregoing that are directly or indirectly
controlling or controlled by Blackstone or under direct or indirect common
control with Blackstone.
"Board of Directors" means (i) with respect to a limited liability
company, the board of managers of limited liability company or other body
fulfilling the function of a board of directors of a corporation, and (ii) with
respect to a corporation, the board of directors or any duly authorized
committee of such board of directors.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"Business Day" means a day that is not a Legal Holiday.
"Capitalized Lease Obligations" means obligations under a lease that
are required to be capitalized for financial reporting purposes in accordance
with GAAP, and the amount of Indebtedness represented by such obligations shall
be the capitalized amount of such obligations, as determined in accordance with
GAAP.
"Capital Stock" means, with respect to any Person, any capital stock
of such Person and shares, interests, participations or other ownership
interests (however designated) of any Person and any rights (other than debt
securities convertible into capital stock), warrants and options to purchase any
of the foregoing, including (without limitation) each class of common stock and
preferred stock of such Person if such Person is a corporation, each general and
limited partnership interest of such Person if such Person is a partnership and
all membership or other interests if such Person is a limited-liability company,
and any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distribution of assets of, the
issuing Person.
"Cash Equivalents" means (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) in each case maturing within
one year after the date of acquisition, (ii) time deposits and certificates of
deposit and commercial paper issued by the parent corporation of any domestic
commercial bank of recognized standing having capital and surplus in excess of
$500 million and commercial paper issued by others rated at least A-2 or the
equivalent thereof by Standard & Poor's Ratings Group or at least P-2 or the
equivalent thereof by Moody's Investors Service, Inc. and in each case maturing
within one year after the date of acquisition and (iii) investments in money
market funds substantially all of whose assets comprise securities of the types
described in clauses (i) and (ii) above.
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"Cash from Minority Cellular Investment Interests" means any
dividends, distributions, interest payments or other periodic payments of cash
(collectively a "cash distribution") received directly or indirectly by the
Company from its Minority Cellular Investment Interests; provided, however, that
"Cash from Minority Cellular Investment Interests" shall not include any
proceeds received directly by the Company from the liquidation, sale, merger,
consolidation, transfer or other disposition (collectively, a "sale") of any
Minority Cellular Investment Interest, except that Cash from Minority Cellular
Investment Interests shall include in every fiscal year ending after the sale of
any Minority Cellular Investment Interest an amount equal to the cash
distributions received directly or indirectly by the Company from such Minority
Cellular Investment Interest during the twelve months prior to such sale if
either (a) the proceeds of such sale are used to permanently reduce the amount
of Indebtedness which may be borrowed under the Credit Facility in accordance
with clause (i) of the third paragraph of Section 4.11 or (b) at the time of any
Restricted Payment being made pursuant to clause (ix) of the second paragraph of
Section 4.3, the Issuer would be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Annual Operating Cash Flow Ratio provision set
forth in the second paragraph of Section 4.11 assuming that the Issuer was the
obligor of additional Indebtedness in a principal amount equal to the net
after-tax proceeds received from such sale.
"Centennial" means Centennial Cellular Corp., a corporation organized
under the laws of Delaware until a successor Person shall have become such
pursuant to the applicable provisions hereof, and thereafter "Centennial" shall
mean such successor Person.
"Centennial de Puerto Rico" means a direct or indirect Restricted
Subsidiary of the Company which controls the Company's Puerto Rico operations.
"Change of Control" means the occurrence of any of the following
events: (i) Centennial or the Company consolidates with or merges with or into
any Person or sells, assigns, conveys, transfers, leases or otherwise disposes
of all or substantially all of its assets to any Person, or any Person
consolidates with or merges into or with Centennial or the Company, in any such
event pursuant to a transaction in which the outstanding Voting Stock of
Centennial or the Company is converted into or exchanged for cash, securities or
other property, other than any such transaction where (A) the outstanding Voting
Stock of Centennial or the Company is changed into or exchanged for (x) Voting
Stock of the surviving corporation which is not Disqualified Capital Stock or
(y) cash, securities and other property (other than Capital Stock of the
surviving corporation) in an amount which could be paid by Centennial or the
Company as a Restricted Payment as described under Section 4.3 (and such amount
shall be treated as a Restricted Payment subject to the provisions in Section
4.3 and (B) immediately after such transaction, no "person" or "group," other
than Permitted Holders, is the beneficial owner (as such term is used in Rule
13d-3 and 13d-5 promulgated pursuant to the Exchange Act), directly or
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indirectly, more than 50% of the total outstanding Voting Stock of the surviving
corporation, (ii) any "person" or "group" (as such terms are used for purposes
of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable),
other than Permitted Holders, is or becomes the "beneficial owner" (as such term
is used in Rule 13d-3 and 13d-5 promulgated pursuant to the Exchange Act),
directly or indirectly, of Voting Stock representing more than 50% of the voting
power of the Voting Stock of Centennial or the Company then outstanding normally
entitled to vote in elections of directors, or (iii) during any period of 12
consecutive months, individuals who at the beginning of any such 12-month period
constituted the Board of Directors of Centennial or the Company (together with
any new directors whose election to such board or whose nomination for election
by the shareholders of Centennial or the Company was designated by the Permitted
Holders or approved by a vote of a majority of the directors then still in
office who were either directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute at least a majority of the Board of Directors of Centennial
or the Company then in office. Each of (i) through (iii) of this definition
shall also be deemed to apply to any Restricted Subsidiary of Centennial which
directly or indirectly controls the Company. The consummation of the
transactions contemplated by the Merger, and the merger of Finance Corp. with
and into Centennial, shall not be deemed a Change of Control.
"Change of Control Offer" shall have the meaning specified in Section
11.1.
"Change of Control Offer Period" shall have the meaning specified in
Section 11.1.
"Change of Control Purchase Date" shall have the meaning specified in
Section 11.1.
"Change of Control Purchase Price" shall have the meaning specified in
Section 11.1.
"Closing Price" on any Trading Day with respect to the per share price
of any shares of Capital Stock means the last reported sale price regular way
or, in case no such reported sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in either case on the New
York Stock Exchange or, if such shares of Capital Stock are not listed or
admitted to trading on such exchange, on the principal national securities
exchange on which such shares are listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, on the Nasdaq
National Market or, if such shares are not listed or admitted to trading on any
national securities exchange or quoted on Nasdaq National Market but the company
is a Foreign Company (as defined in Rule 3b-4(b) under the Exchange Act) and the
principal securities exchange on which such shares are listed or admitted to
trading is a Designated Offshore Securities Market (as defined in Rule 902(a)
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under the Securities Act), the average of the reported closing bid and asked
prices regular way on such principal exchange, or, if such shares are not listed
or admitted to trading on any national securities exchange or quoted on the
Nasdaq National Market and the Company and principal securities exchange do not
meet such requirements, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
is selected from time to time by the Company for that purpose and is reasonably
acceptable to the Trustee.
"Company Order" or "Company Request" means a written request or order
signed in the name of the Issuers by, in the case of each Issuer, any one of its
respective Chairman of the Board, its President, its Chief Executive Officer,
its Chief Financial Officer or a Vice President (regardless of Vice Presidential
designation), and any one of its respective Treasurer, or its Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker, having a maturity comparable to
the first Redemption Date of the Securities, that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of a comparable maturity to the first
Redemption Date of the Securities. "Independent Investment Banker" means one of
the Reference Treasury Dealers appointed by the Trustee after consultation with
the Company.
"Comparable Treasury Price" means, with respect to any Redemption
Date, (A) the average of the Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (B) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations. "Reference
Treasury Dealer Quotations" means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average, as determined by the Trustee, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to the Trustee
by such Reference Treasury Dealer at 3:30 p.m., New York time, on the third
business day preceding such Redemption Date.
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"Consolidated Interest Expense" of any Person means, for any period,
the aggregate amount (without duplication and determined in each case in
accordance with GAAP) of (a) interest expensed or capitalized, paid, accrued, or
scheduled to be paid or accrued (including, in accordance with the following
sentence, interest attributable to the Capitalized Lease Obligations) of such
Person and its consolidated Restricted Subsidiaries during such period,
including (i) original issue discount and non-cash interest payments or accruals
on any Indebtedness, (ii) the interest portion of all deferred payment
obligations, and (iii) all commissions, discounts and other fees and charges
owed with respect to bankers' acceptances and letters of credit financings and
currency and Interest Rate Protection Obligations and Currency Hedging
Agreements and excluding the amortization of deferred financing fees, in each
case to the extent attributable to such period and (b) the amount of cash
dividends accrued or payable by such Person or any of its consolidated
Restricted Subsidiaries in respect of preferred stock (other than by Restricted
Subsidiaries of such Person to such Person or such Person's Restricted
Subsidiaries). For purposes of this definition, (x) interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP and (y) interest expense
attributable to any Indebtedness represented by the guaranty by such Person or a
Subsidiary of such Person of an obligation of another Person shall be deemed to
be the interest expense attributable to the Indebtedness guaranteed to the
extent not otherwise included and whether or not paid by such Person or
Subsidiary. When the foregoing definition is used in connection with the Company
and its Restricted Subsidiaries, references to a Person and its Subsidiaries in
the foregoing definition shall be deemed to refer to the Company and its
Restricted Subsidiaries.
"Consolidated Net Income" of any Person, for any period, means the net
income (or loss) of such Person and its consolidated Restricted Subsidiaries for
such period, determined (on a consolidated basis) in accordance with GAAP,
adjusted to exclude (only to the extent included in computing such net income
(or loss) and without duplication) (i) all extraordinary gains or losses and all
gains and losses from the sales or other dispositions of assets out of the
ordinary course of business (net of taxes, fees and expenses relating to the
transaction giving rise thereto) for such period, (ii) the net income, if
positive, of any Person, that is not a Subsidiary in which such Person or any of
its Subsidiaries has an interest (other than a Minority Cellular Investment
Interest), except to the extent of the amount of dividends or distributions
actually paid to such Person or a Subsidiary of such Person, (iii) except as
provided in the definition of "Annual Operating Cash Flow Ratio," the net income
(or loss) of any Subsidiary acquired in a pooling of interests transaction for
any period prior to the date of such acquisition, (iv) for purposes of Section
4.3, the net income, if positive, of any Restricted Subsidiary of such Person
that is not a Guarantor to the extent that the declaration or payment of
dividends or similar
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distributions is not at the time permitted by operation of the terms of its
charter or any agreement or instrument applicable to such Subsidiary except to
the extent of the amount of dividends or distributions actually paid to such
Person or a Subsidiary of such Person, (v) any gain or loss, net of taxes,
realized upon the termination of any employee benefit plan, (vi) any restoration
to net income of any contingency reserve, except to the extent provision for
such reserve was made out of income accrued at any time following the date of
this Indenture, (vii) any net gain or loss arising from the acquisition of any
securities or extinguishment of any Indebtedness of such Person, (viii) the
cumulative effect of a change in accounting principles, (ix) the amount of any
nonrecurring charges or income of the Company or any Restricted Subsidiary
(including any one-time costs incurred in connection with acquisitions after the
Issue Date) certified as non-recurring in an Officer's Certificate and deducted
or included in such period in computing Consolidated Net Income and (x) any net
income, if positive, resulting from the Company's Minority Cellular Investment
Interests. When the foregoing definition is used in connection with the Company
and its Restricted Subsidiaries, references to a Person and its Subsidiaries in
the foregoing definition shall be deemed to refer to the Company and its
Restricted Subsidiaries.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which address as of the date hereof is located at 450 West 33rd Street, 15th
Floor, New York, New York 10001.
"Covenant Defeasance" shall have the meaning specified in Section 8.3.
"Credit Facility" means, that certain Credit Facility to be entered
into among the Company, Centennial de Puerto Rico, the guarantors, Merrill Lynch
Capital Corporation and the other financial institutions party thereto, as such
agreement may be, in one or more agreements with one or more lending groups,
amended, renewed, extended, substituted, refinanced, restructured, replaced,
supplemented or otherwise modified, in whole or in part, from time to time
(including, without limitation, any successive renewals, extensions,
substitutions, refinancings, restructurings, replacements, supplementations or
other modifications of the foregoing, including those that increase the amount
available thereunder in accordance with the terms of this Indenture).
"Currency Hedging Agreements" means one or more of the following
agreements which shall be entered into by one or more financial institutions:
foreign exchange contracts, currency swap agreements or other similar agreements
or arrangements designed to protect against the fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
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"Default" means any event or condition that is, or after notice or
passage of time or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in Section 2.12.
"Definitive Securities" means Securities that are in the form of
Security attached hereto as Exhibit A that do not include the information called
for by footnotes 1 and 3 thereof.
"Depositary" means, with respect to the Securities issuable or issued
in whole or in part in global form, the person specified in Section 2.3 as the
Depositary with respect to the Securities, until a successor shall have been
appointed and become such pursuant to the applicable provision of this
Indenture, and, thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Indebtedness" means (i) all Senior Indebtedness
under the Credit Facility and (ii) any other Senior Indebtedness which at the
time of determination has an aggregate principal amount outstanding of at least
$25 million and which is specifically designated in the instrument evidencing
such Senior Indebtedness or the agreement under which such Senior Indebtedness
arises as "Designated Senior Indebtedness" by the Company.
"Disinterested Director" means, with respect to any transaction or
series of related transactions, a member of the Board of Directors of the
Company who does not have any material direct or indirect financial interest in
or with respect to such transaction or series of related transactions.
"Disqualified Capital Stock" means, with respect to any Person,
Capital Stock of such Person that, by its terms or by the terms of any security
into which it is convertible, exercisable or exchangeable, is, or upon the
happening of any event or the passage of time would be, required to be redeemed
or repurchased (including at the option of the holder thereof) by such Person or
any of its Subsidiaries, in whole or in part, on or prior to the Stated Maturity
of the Securities; provided that (a) Capital Stock will not be deemed to be
Disqualified Capital Stock if it may only be so redeemed or repurchased solely
in consideration of Qualified Capital Stock of the Company and (b) any Capital
Stock that would not constitute Disqualified Capital Stock but for provisions
thereof giving holders thereof the right to require such Person to repurchase or
redeem such Capital Stock upon the occurrence of an "asset sale" or "change of
control" occurring prior to the Stated Maturity of the Securities shall not
constitute Disqualified Capital Stock if the "asset sale" or "change of control"
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provisions applicable to such Capital Stock are no more favorable to the holders
of such Capital Stock than the provisions contained in Sections 4.14 and 11.1
hereof and such Capital Stock specifically provides that such Person will not
repurchase or redeem any such stock pursuant to such provision prior to the
Company's repurchase of such Securities as are required to be repurchased
pursuant to the provisions contained in Sections 4.14 and 11.1 hereof.
"Eligible Institution" means a commercial banking institution that has
combined capital and surplus of not less than $500 million or its equivalent in
foreign currency, whose debt is rated "A" or higher (or the equivalent rating or
higher) according to Moody's Investors Service, Inc., Standard & Poor's Ratings
Group or Duff & Phelps Credit Rating Co. (or such similar equivalent rating by
at least one "nationally recognized statistical rating organization" (as defined
in Rule 436 under the Securities Act)) respectively, at the time as of which any
investment or rollover therein is made.
"Equity Contribution" means the equity contribution by Welsh, Carson,
Anderson & Stowe VIII, L.P., Blackstone Capital Partners, L.P., WCAS Capital
Partners III, L.P and certain other investors to Centennial in connection with
the financing of the Merger.
"Escrow Draw Date" shall have the meaning specified in Section 3.8.
"Event of Default" shall have the meaning specified in Section 6.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Exchange Offer Registration Statement" means the registration
statement under the Securities Act contemplated by Section 2.1 of the
Registration Rights Agreement.
"Exchange Securities" means the 10 3/4% Series B Senior Subordinated
Notes due 2008 to be issued pursuant to this Indenture in connection with the
offer to exchange Exchange Securities for the Initial Securities that may be
made by the Company pursuant to the Registration Rights Agreement.
"Excluded Cash Contributions" shall have the meaning specified in
Section 4.11.
"Excluded Contributions" means the net cash proceeds received by the
Company after the Issue Date from (a) contributions to its common equity capital
and (b) the sale (other than to a Subsidiary or to any Company or Subsidiary
management equity plan or stock option plan or any other management or employee
benefit plan or agreement) of Capital Stock (other than Disqualified Capital
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Stock) of the Company, in each case designated as Excluded Contributions
pursuant to an Officer's Certificate executed by an officer of the Company, the
cash proceeds of which are excluded from the calculation set forth in the first
paragraph of Section 4.3 and which may not also be designated Excluded Cash
Contributions.
"Extension Condition" shall have the meaning specified in Section 3.8.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy.
"Final Put Date" shall have the meaning specified in Section 4.14.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board ("FASB") or, if FASB ceases to exist,
any successor thereto; provided, however, that for purposes of determining
compliance with covenants in this Indenture other than those relating to
financial statement delivery, "GAAP" means such generally accepted accounting
principles as in effect as of the Issue Date.
"Global Security" means a Security that contains the paragraph
referred to in footnote 1 and the additional schedule referred to in footnote 3
to the form of Security attached hereto as Exhibit A.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which obligations
or guarantee the full faith and credit of the United States is pledged and which
have a remaining weighted average life to maturity of not more than one year
from the date of Investment therein.
"Guarantee" means the guarantee by a Guarantor of Finance Corp's and
the Company's Indenture Obligations.
"Guarantor" means any Restricted Subsidiary of the Company which
becomes a guarantor of the Company's Indenture Obligations.
"Holder" or "Securityholder" means a Person in whose name a Security
is registered. The Holder of a Security will be treated as the owner of such
Security for all purposes.
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"Incur" shall have the meaning specified in Section 4.11.
"Indebtedness" of any Person means, without duplication, (a) all
liabilities and obligations, contingent or otherwise, of such Person, (i) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (ii) evidenced
by bonds, notes, debentures or similar instruments, (iii) representing the
balance deferred and unpaid of the purchase price of any property or services
except (other than accounts payable or other obligations to trade creditors
which have remained unpaid for greater than 90 days past their original due date
or to financial institutions, which obligations are not being contested in good
faith and for which appropriate reserves have been established) those incurred
in the ordinary course of its business that would constitute ordinarily a trade
payable to trade creditors, (iv) evidenced by bankers' acceptances or similar
instruments issued or accepted by banks, (v) for the payment of money relating
to a Capitalized Lease Obligation, or (vi) evidenced by a letter of credit or a
reimbursement obligation of such Person with respect to any letter of credit;
(b) all obligations of such Person under Interest Rate Protection Obligations or
Currency Hedging Agreements; (c) all liabilities of others of the kind described
in the preceding clauses (a) or (b) that such Person has guaranteed or that is
otherwise its legal liability or which are secured by any assets or property of
such Person and all obligations to purchase, redeem or acquire any Capital
Stock; (d) all Disqualified Capital Stock of such Person and all Preferred Stock
of such Person's Restricted Subsidiaries valued at the greater of its voluntary
or involuntary maximum fixed repurchase price plus accrued and unpaid dividends;
and (e) any and all deferrals, renewals, extensions, refinancing and refundings
(whether direct or indirect) of, or amendments, modifications or supplements to,
any liability of the kind described in any of the preceding clauses (a), (b),
(c), (d) or this clause (e), whether or not between or among the same parties;
provided that the outstanding principal amount at any date of any Indebtedness
issued with original issue discount is the face amount of such Indebtedness less
the remaining unamortized portion of the original issue discount of such
Indebtedness at such date. For purposes hereof, the "maximum fixed repurchase
price" of any Disqualified Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such Disqualified
Capital Stock as if such Disqualified Capital Stock were purchased on any date
on which Indebtedness shall be required to be determined pursuant to this
Indenture, and if such price is based upon, or measured by, the Fair Market
Value of such Disqualified Capital Stock, such Fair Market Value to be
determined in good faith by the board of directors of the issuer of such
Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
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"Initial Escrow and Pledge Account" means an account established with
the Trustee pursuant to the terms of the Pledge and Escrow Agreement for the
deposit of the net proceeds realized from the sale of the Securities, together
with the Additional Escrow Amount; and after the Merger such account will hold
the Pledged Securities purchased by the Company with a portion of the net
proceeds from the Offering.
"Initial Purchasers" means Merrill Lynch, Pierce, Fenner & Smith
Incorporated, NationsBanc Montgomery Securities LLC, Morgan Stanley & Co.
Incorporated and Chase Securities Inc.
"Initial Securities" means the 10 3/4% Series A Senior Subordinated
Notes due 2008, as supplemented from time to time in accordance with the terms
hereof, issued pursuant to this Indenture.
"Interest Payment Date" means the stated due date of an installment of
interest on the Securities.
"Interest Rate Protection Obligations" means, with respect to any
Person, the Obligations of such Person under (a) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements and (b) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates. For purposes of this Indenture, the amount of such
obligations shall be the amount determined in respect thereof as of the end of
the then most recently ended fiscal quarter of such Person, based on the
assumption that such obligation had terminated at the end of such fiscal
quarter, and in making such determination, if any agreement relating to such
obligation provides for the netting of amounts payable by and to such Person
thereunder or if any such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the amount of such
obligations shall be the net amount so determined, plus any premium due upon
default by such Person.
"Investment" by any Person in any other Person means (without
duplication) (a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such Person (whether for cash, property, services, securities or
otherwise) of capital stock, bonds, notes, debentures, partnership or other
ownership interests or other securities of such other Person or any agreement to
make any such acquisition; (b) the making by such Person of any deposit with, or
advance, loan or other extension of credit to, such other Person (including the
purchase of property from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such other
Person) or any commitment to make any such advance, loan or extension; (c) the
entering into by such Person of any guarantee of, or other contingent obligation
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with respect to, Indebtedness or other liability of such other Person; (d) the
making of any capital contribution by such Person to such other Person; and (e)
the designation by the Board of Directors of the Company of any Person to be an
Unrestricted Subsidiary. For purposes of Section 4.3, (i) "Investment" shall
include and be valued at the Fair Market Value of the net assets of any
Restricted Subsidiary at the time that such Restricted Subsidiary is designated
an Unrestricted Subsidiary and shall exclude the Fair Market Value of the net
assets of any Unrestricted Subsidiary at the time that such Unrestricted
Subsidiary is designated a Restricted Subsidiary and (ii) the amount of any
Investment shall be equal to the Fair Market Value of such Investment plus the
Fair Market Value of all additional Investments by the Company or any of its
Restricted Subsidiaries at the time any such Investment is made; provided that,
for purposes of this sentence, the Fair Market Value of net assets shall be as
determined in the reasonable judgment of the Board of Directors of the Company.
"Investment Equity" has the meaning given such term in the definition
of "Permitted Investment."
"Issue Date" means the time and date of the first issuance of the
Securities under this Indenture.
"Legal Defeasance" shall have the meaning specified in Section 8.2.
"Legal Holiday" shall have the meaning specified in Section 13.7.
"Lien" means any mortgage or deed of trust, lien, pledge, charge,
privilege, security interest, assignment, deposit, arrangement, easement,
hypothecation, claim, preference, priority or other encumbrance of any kind,
whether or not filed, recorded or otherwise perfected under applicable law with
respect to property of any kind (including any conditional sale, capital lease
or other title retention agreement and any lease deemed to constitute a security
interest and any option or other agreement to give any security interest), real
or personal, movable or immovable, now owned or hereafter acquired.
"Marketable U.S. Securities" means: (i) Government Securities; (ii)
any time deposit account, money market deposit and certificate of deposit
maturing not more than 270 days after the date of acquisition issued by, or time
deposit of, an Eligible Institution; (iii) commercial paper maturing not more
than 270 days after the date of acquisition issued by a corporation (other than
an Affiliate of the Company) with a rating, at the time as of which any
investment therein is made, of "P-1" or higher according to Moody's Investors
Service, Inc., "A-1" or higher according to Standard & Poor's Ratings Group or
"A-1" or higher according to Duff & Phelps Credit Rating Co. (or such similar
equivalent rating by at least one "nationally recognized statistical rating
organization" (as defined in Rule 436 under the Securities Act)); (iv) any
banker's acceptances or money market deposit accounts issued or offered by an
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Eligible Institution; (v) repurchase obligations with a term of not more than 7
days for Government Securities entered into with an Eligible Institution; and
(vi) any fund investing exclusively in investments of the types described in
clauses (i) through (v) above.
"Maturity Date" means, when used with respect to any Security, the
date specified on such Security as the fixed date on which the final installment
of principal of such Security is due and payable (in the absence of any
acceleration thereof pursuant to the provisions of this Indenture regarding
acceleration of Indebtedness or any Change of Control Offer or Asset Sale
Offer).
"Merger" means the merger of Centennial and CCW Acquisition Corp.
pursuant to the Merger Agreement.
"Merger Agreement" means the Merger Agreement, dated as of July 2,
1998, between Centennial and CCW Acquisition Corp., as amended.
"Merger Date" means the date upon which the Merger is consummated.
"Mezzanine Financing" means the $180 million in aggregate principal
amount of Senior Subordinated Notes due 2009 issued by Centennial to WCAS
Capital Partners III, L.P., dated the date of the closing of the Merger and in
substantially the form attached to this Indenture.
"Minimum Accumulation Date" shall have the meaning specified in
Section 4.14.
"Minority Cellular Investment Interests" means limited partnership or
other equity interests held directly or indirectly by the Company in cellular
telephony providers which are not Subsidiaries or otherwise controlled (directly
or indirectly) by the Company in existence on the Merger Date.
"Net Cash Proceeds" means the aggregate amount of cash and Cash
Equivalents received by the Company and its Restricted Subsidiaries in respect
of an Asset Sale (including upon the conversion to cash and Cash Equivalents of
(A) any note or installment receivable at any time, or (B) any other property as
and when any cash and Cash Equivalents are received in respect of any property
received in an Asset Sale but only to the extent such cash and Cash Equivalents
are received within one year after such Asset Sale), less the sum of (i) all
out-of-pocket fees, commissions and other expenses incurred in connection with
such Asset Sale, including the amount (estimated in good faith by the Board of
Directors of the Company) of income, franchise, sales and other applicable taxes
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required to be paid by the Company or any Restricted Subsidiary of the Company
in connection with such Asset Sale and (ii) the aggregate amount of cash so
received which is used to retire any existing Senior Indebtedness of the Company
or Indebtedness of its Restricted Subsidiaries, as the case may be, which is
required to be repaid in connection with such Asset Sale or is secured by a Lien
on the property or assets of the Company or any of its Restricted Subsidiaries,
as the case may be.
"Net Proceeds" means the aggregate net proceeds (including the Fair
Market Value of non-cash proceeds constituting equipment or other assets of a
type generally used in a Related Business an amount reasonably determined by the
Board of Directors of the Company for amounts under $10,000,000 and by a
financial advisor or appraiser of national reputation for equal or greater
amounts) received by a Person from the sale of Qualified Capital Stock (other
than to a Subsidiary of such Person) after payment of out-of-pocket expenses,
commissions and discounts incurred and net of taxes paid or payable in
connection therewith.
"Non-Payment Default" means any event of default (other than a Payment
Default) the occurrence of which entitles one or more Persons to accelerate the
maturity of any Designated Senior Indebtedness.
"Non-U.S. Person" means a Person that is not a "U.S. Person" as
defined in Regulation S under the Securities Act.
"Notice of Default" shall have the meaning specified in Section
6.1(3).
"Obligation" means any principal, premium, interest (including
interest accruing subsequent to a bankruptcy or other similar proceeding whether
or not such interest is an allowed claim enforceable against the Company in a
bankruptcy case under Federal bankruptcy law), penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable pursuant
to the terms of the documentation governing any Indebtedness.
"Offering" means the offering of the Securities by the Issuers.
"Offering Memorandum" means that certain Offering Memorandum of the
Issuers, dated December 9, 1998, relating to the original issuance and sale of
the Initial Securities to the Initial Purchasers.
"Officer" means, with respect to the Company or Finance Corp., the
Chief Executive Officer, the President, any Vice President, the Chief Financial
Officer, the Treasurer, the Controller, or the Secretary of the Company or
Finance Corp., respectively.
"Officers' Certificate" means, with respect to the Issuers, a
certificate signed by two Officers or by an Officer and an Assistant Secretary
of each of the Issuers, and otherwise complying with the requirements of
Sections 13.4 and 13.5.
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"Operating Cash Flow" of any Person means (a), with respect to any
period, the Consolidated Net Income of such Person for such period, plus (b) the
sum, without duplication (and only to the extent such amounts are deducted from
net revenues in determining such Consolidated Net Income), of (i) the provisions
for income taxes for such period for such Person and its consolidated Restricted
Subsidiaries, (ii) depreciation, amortization and other non-cash charges of such
Person and its consolidated Restricted Subsidiaries and (iii) Consolidated
Interest Expense of such Person for such period, determined, in each case, on a
consolidated basis for such Person and its consolidated Restricted Subsidiaries
in accordance with GAAP, plus (c) any fees, expenses or charges related to any
equity offering, Permitted Investment, acquisition or recapitalization or
Indebtedness permitted to be incurred by this Indenture (in each case, whether
or not successful) and fees, expenses or charges related to the Recapitalization
and the financings thereof (including fees to Welsh Carson and Blackstone), less
(d) the amount of all cash payments made during such period by such Person and
its Restricted Subsidiaries to the extent such payments relate to non-cash
charges that were added back in determining Operating Cash Flow for such period
or for any prior period.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee complying with the requirements of Sections
13.4 and 13.5.
"Pari Passu Indebtedness" means (a) with respect to the Company, any
Indebtedness of the Company that is pari passu in right of payment to the
Securities, (b) with respect to Finance Corp., any Indebtedness of Finance Corp.
that is pari passu in right of payment to the Notes and (c) with respect to any
Guarantee, Indebtedness which ranks pari passu in right of payment to such
Guarantee.
"Paying Agent" shall have the meaning specified in Section 2.3.
"Payment Default" means any default in payment (whether at Stated
Maturity, upon scheduled installment, by acceleration or otherwise) of principal
of premium, if any, or interest on Designated Senior Indebtedness.
"Permitted Holders" means Welsh Carson and Blackstone.
"Permitted Investment" means (i) Investments in Cash Equivalents; (ii)
Investments in the Company or a Restricted Subsidiary; (iii) Investments in a
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Person substantially all of whose assets are of a type generally used in a
Related Business (an "Acquired Person") if, as a result of such Investments, (A)
the Acquired Person immediately thereupon becomes a Restricted Subsidiary or (B)
the Acquired Person immediately thereupon either (1) is merged or consolidated
with or into the Company or any of its Restricted Subsidiaries and the surviving
Person is the Company or a Restricted Subsidiary or (2) transfers or conveys all
or substantially all of its assets to, or is liquidated into, the Company or any
of its Restricted Subsidiaries; (iv) Investments in accounts and notes
receivable acquired in the ordinary course of business; (v) any securities
received in connection with an Asset Sale and any Investment with the Net Cash
Proceeds from any Asset Sale in Capital Stock of a Person, all or substantially
all of whose assets are of a type used in a Related Business, that complies with
Section 4.14; (vi) any guarantee issued by a Restricted Subsidiary incurred in
compliance with this Indenture; (vii) advances and prepayments for asset
purchases in the ordinary course of business in a Related Business of the
Company or a Restricted Subsidiary; (viii) customary loans or advances made in
the ordinary course of business to officers, directors or employees of the
Company or any of its Restricted Subsidiaries for travel, entertainment, and
moving and other relocation expenses; (ix) advances to employees not in excess
of $1 million outstanding at any one time, in the aggregate; (x) any Investment
acquired by the Company or any of its Restricted Subsidiaries (a) in exchange
for any other Investment or accounts receivable held by the Company or any such
Restricted Subsidiary in connection with or as a result of a bankruptcy,
workout, reorganization or recapitalization of the Company of such other
Investment or accounts receivable or (b) as a result of a foreclosure by the
Company or any of its Restricted Subsidiaries with respect to any secured
Investment or other transfer of title with respect to any secured Investment in
default; (xi) Interest Rate Protection Obligations or Currency Hedging
Agreements permitted under clauses (ix) or (x) of Section 4.11; (xii)
Investments the payment for which consists of Qualified Capital Stock of the
Company ("Investment Equity"); provided, however, that the issuance of such
Qualified Capital Stock equity interests will not increase the amount available
for Restricted Payments under the covenant set forth in Section 4.3; (xiii)
Investments in Permitted Joint Ventures which in the aggregate at any one time
outstanding do not exceed $10 million; and (xiv) any Investment in a Related
Business (including in an Unrestricted Subsidiary) having an aggregate Fair
Market Value, taken together with all other Investments made pursuant to this
clause (xiv) that are at that time outstanding, which does not exceed the
greater of (x) $20 million or (y) 4% of Total Assets at the time of such
Investment (with the Fair Market Value of each Investment being measured at the
time made and without giving effect to subsequent changes in value).
"Permitted Joint Venture" means, as applied to any Person, any other
Person engaged in a Related Business, (a) over which such Person is responsible
(either directly or through a services agreement) for day-to-day operations or
otherwise has operational and managerial control of such other Person or (b) of
which more than forty percent (40%) of the outstanding Voting Stock (other than
directors' qualifying shares) of such other Person in the case of a corporation,
or more than forty percent (40%) of the outstanding ownership interests of such
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other Person, in the case of an entity other than a corporation, is at the time
owned directly or indirectly by such Person.
"Person" means any corporation, individual, joint stock company, joint
venture, partnership, unincorporated association, governmental regulatory
entity, country, state or political subdivision thereof, trust, municipality or
other entity.
"Pledge and Escrow Agreement" means the Pledge and Escrow Agreement,
dated as of the date of this Indenture, among the Company, Finance Corp., the
Trustee and the collateral agents named therein.
"Pledged Securities" means the securities purchased by the Company
with a portion of the net proceeds from the Offering to be deposited in the
Escrow and Pledge Account.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference stock whether now outstanding, or issued
after the Issue Date, and including, without limitation, all classes and series
of preferred or preference stock of such Person.
"Principal" of any Indebtedness means the principal of such
Indebtedness plus, without duplication, applicable premium, if any, on such
Indebtedness.
"Private Placement Legend" means the legend set forth on the face of
the form of Security attached hereto as Exhibit A.
"Public Equity Offering" means an underwritten offer and sale of
common stock (which is Qualified Capital Stock) of the Company or Centennial
with aggregate proceeds of at least $50 million pursuant to a registration
statement that has been declared effective by the Commission pursuant to the
Securities Act (other than a registration statement on Form S-8 (or any
successor form covering substantially the same transactions), S-4 (or any
successor form covering substantially the same transactions), or otherwise
relating to equity securities issuable under any employee benefit plan of such
corporate entity).
"Purchase Money Indebtedness" means any Indebtedness of the Company or
its Restricted Subsidiaries which is secured by a Lien on assets related to the
business of the Company or its Restricted Subsidiaries and any additions and
accessions thereto, which are purchased by the Company or its Restricted
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Subsidiaries at any time after the Securities are issued; provided that (i) the
security agreement or conditional sales or other title retention contract
pursuant to which the Lien on such assets is created (collectively a "Purchase
Money Security Agreement") shall be entered into within 90 days after the
purchase or substantial completion of the construction of such assets and shall
at all times be confined solely to the assets so purchased without further
recourse to either the Company or any of its Restricted Subsidiaries or
acquired, any additions and accessions thereto and any proceeds therefrom, (ii)
at no time shall the aggregate principal amount of the outstanding Indebtedness
secured thereby be increased, except in connection with the purchase of
additions and accessions thereto and except in respect of fees and other
obligations in respect of such Indebtedness and (iii) (A) the aggregate
outstanding principal amount of Indebtedness secured thereby (determined on a
per asset basis in the case of any additions and accessions) shall not at the
time such Purchase Money Security Agreement is entered into exceed 100% of the
purchase price to the Company or its Restricted Subsidiaries of the assets
subject thereto or (B) the Indebtedness secured thereby shall be with recourse
solely to the assets so purchased or acquired, any additions and accessions
thereto and any proceeds therefrom.
"Qualified Capital Stock" means any Capital Stock of a Person that is
not Disqualified Capital Stock.
"Recapitalization" means the Merger and the transactions to be
consummated pursuant to the Recapitalization Documents.
"Recapitalization Documents" means the Merger Agreement, the Credit
Facility, this Indenture, the documentation governing the Mezzanine Financing,
and the ancillary documents related thereto.
"Record Date" means a Record Date specified in the Securities whether
or not such Record Date is a Business Day.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and Paragraph 5 in the form of Security attached hereto as
Exhibit A.
"Redemption Price," when used with respect to any Security to be
redeemed pursuant to any provision in this Indenture means the price at which it
is to be redeemed pursuant to this Indenture, which shall include, without
duplication, in each case, any accrued and unpaid interest to the Redemption
Date.
"Reference Period" with regard to any Person means the last four full
fiscal quarters of such Person for which financial information (which the
Company shall use its best efforts to compile in a timely manner) in respect
thereof is available ended on or immediately preceding any date upon which any
determination is to be made pursuant to the terms of the Securities or this
Indenture.
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"Reference Treasury Dealer" means each of Merrill Lynch, Pierce,
Fenner & Smith Incorporated and three other primary U.S. Government securities
dealers in The City of New York to be selected by the Company, and their
respective successors.
"Refinancing Indebtedness" means any Indebtedness of the Company or
any of its Restricted Subsidiaries issued in exchange for, or the net proceeds
of which are used to extend, refinance, renew, replace, defease or refund other
Indebtedness of the Company or such Restricted Subsidiary (other than
intercompany Indebtedness); provided that: (i) the principal amount (or accreted
value, if applicable) of such Refinancing Indebtedness does not exceed the
principal amount of (or accreted value, if applicable), plus accrued interest
on, the Indebtedness so extended, refinanced, renewed, replaced, defeased or
refunded (plus the amount of premium and reasonable expenses incurred in
connection therewith); (ii) such Refinancing Indebtedness has a final maturity
date later than the final maturity date of, and has a Weighted Average Life
equal to or greater than the Weighted Average Life of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is subordinated in right of payment to the Securities, such Refinancing
Indebtedness is subordinated in right of payment to, the Securities on terms at
least as favorable to the holders of Securities as those contained in the
documentation governing the Indebtedness being extended, refinanced, renewed,
replaced, defeased or refunded; and (iv) such Indebtedness is incurred either by
the Company or by the Restricted Subsidiary who is the obligor on the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded.
"Registrar" shall have the meaning specified in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement dated December 14, 1998 by and among the Initial Purchasers, the
Company and Finance Corp., as such agreement may be amended, modified or
supplemented from time to time in accordance with the terms thereof.
"Regulation S" means Regulation S under the Securities Act, as amended
from time to time.
"Regulation S Global Securities" means one or more permanent global
Securities in registered form representing the aggregate principal amount of
Securities sold in reliance on Regulation S under the Securities Act.
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"Related Business" means any business related to, or complementary to,
the ownership, development, operation, or acquisition of communications systems
as determined by the Board of Directors of the Company.
"Related Person" means, with respect to any Person, (i) any Affiliate
of such Person or any spouse, immediate family member, or other relative who has
the same principal residence of any Affiliate of such Person and (ii) any trust
in which any Person described in clause (i) above, has a beneficial interest.
"Related Person Transaction" shall have the meaning specified in
Section 4.10.
"Representative" means (i) with respect to the Credit Facility, the
Agent Bank and (ii) with respect to any other Senior Indebtedness, the indenture
trustee or other trustee, agent or representative for the holders of such Senior
Indebtedness.
"Restricted Payment" means, with respect to any Person, (i) any
dividend or other distribution on shares of Capital Stock of such Person or any
Restricted Subsidiary of such Person, (ii) any payment on account of the
purchase, redemption or other acquisition or retirement for value in whole or in
part, of any shares of Capital Stock of such Person, any entity which controls
such Person or any Restricted Subsidiary of such Person, which Capital Stock is
held by Persons other than such Person or any of its Restricted Subsidiaries, or
options, warrants or other rights to acquire such Capital Stock, (iii) any
defeasance, redemption, repurchase or other acquisition or retirement for value
in whole or in part, of any Indebtedness of such Person (other than the
scheduled repayment thereof at maturity and any mandatory redemption or
mandatory repurchase thereof pursuant to the terms thereof) by such Person or a
Subsidiary of such Person that is subordinate in right of payment to the
Securities (other than in exchange for Refinancing Indebtedness permitted to be
Incurred under this Indenture and except for any such defeasance, redemption,
repurchase, other acquisition or payment in respect of Indebtedness held by any
Restricted Subsidiary) and (iv) any Investment (other than a Permitted
Investment); provided, however, that the term "Restricted Payment" does not
include (i) any dividend, distribution or other payment on shares of Capital
Stock of the Company or any Restricted Subsidiary solely in shares of Qualified
Capital Stock or in options, warrants or other rights to acquire such Qualified
Capital Stock), (ii) any dividend, distribution or other payment to the Company,
or any dividend to any of its Restricted Subsidiaries, by any of its
Subsidiaries, (iii) any dividend, distribution or other payment by any
Restricted Subsidiary on shares of its Capital Stock that is paid pro rata to
all holders of such Capital Stock and (iv) the purchase, redemption or other
acquisition or retirement for value of shares of Capital Stock of any Restricted
Subsidiary held by Persons other than the Company or any of its Restricted
Subsidiaries.
"Restricted Period" means the period through and including the 40th
day after the later of the commencement of the Offering and the original issue
date of the Securities.
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"Restricted Security" means a Security, unless or until it has been
(i) disposed of in a transaction effectively registered under the Securities Act
or (ii) distributed to the public pursuant to Rule 144 (or any similar provision
then in force) under the Securities Act; provided that in no case shall an
Exchange Security issued in accordance with this Indenture and the terms and
provisions of the Registration Rights Agreement be a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company that has
not been designated by the Board of Directors of the Company by Board Resolution
delivered to the Trustee as an Unrestricted Subsidiary pursuant to and in
compliance with Section 4.17.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
rule), as amended from time to time.
"Rule 144A Global Securities" means one or more permanent Global
Securities in registered form representing the aggregate principal amount of
Securities sold in reliance on Rule 144A under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities" means, collectively, the Initial Securities and, when and
if issued as provided in the Registration Rights Agreement, the Exchange
Securities.
"Securities Act" means the Securities Act of 1933, as amended, or any
successor statute, and the rules and regulations of the SEC promulgated
thereunder.
"Securities Custodian" means the Trustee, as custodian with respect to
the Securities in global form, or any successor entity thereto.
"Senior Indebtedness" means the principal of, premium, if any, and
interest (including interest, to the extent allowable, accruing after the filing
of a petition initiating any proceeding under any state, federal or foreign
bankruptcy law) on any Indebtedness of the Company (other than as otherwise
provided in this definition), whether outstanding on the date of this Indenture
or thereafter created, incurred or assumed, and whether at any time owing,
actually or contingent, unless, in the case of any particular Indebtedness, the
instrument creating or evidencing the same or pursuant to which the same is
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outstanding expressly provides that such Indebtedness shall not be senior in
right of payment to the Securities. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include (i) Indebtedness evidenced by the Securities,
(ii) Indebtedness that is subordinate or junior in right of payment to any
Indebtedness of the Company, (iii) Indebtedness which when incurred and without
respect to any election under Section 1111(b) of Title 11 United States Code, is
without recourse to the Company, (iv) Indebtedness which is represented by
Disqualified Capital Stock, (v) any liability for foreign, federal, state, local
or other taxes owed or owing by the Company to the extent such liability
constitutes Indebtedness, (vi Indebtedness of the Company to a Subsidiary or any
other Affiliate of the Company or any of such Affiliate's Subsidiaries, (vii) to
the extent it might constitute Indebtedness, amounts owing for goods, materials
or services purchased in the ordinary course of business or consisting of trade
accounts payable owed or owing by the Company, and amounts owed by the Company
for compensation to employees or services rendered to the Company, (viii) that
portion of any Indebtedness which at the time of issuance is issued in violation
of this Indenture and (ix) Indebtedness evidenced by any guarantee of any
Subordinated Indebtedness or Pari Passu Indebtedness.
"Significant Restricted Subsidiary" means one or more Restricted
Subsidiaries having an aggregate net book value of assets in excess of 5% of the
net book value of the assets of the Company and its Restricted Subsidiaries on a
consolidated basis.
"Special Record Date" for payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 2.12.
"Special Redemption Price" has the meaning set forth in Section 3.8.
"Stated Maturity" means the date fixed for the payment of any
principal or premium pursuant to this Indenture and the Securities, including
the Maturity Date, upon redemption, acceleration, Asset Sale Offer, Change of
Control Offer or otherwise.
"Strategic Equity Investor" means any Person which is (or a controlled
Affiliate of any Person which is) engaged in the ownership, development,
operation or acquisition of communications systems and which, as of the last
available annual or quarterly financial statements, has Total Common Equity of
at least $1.0 billion.
"Strategic Equity Offering" means an offer or sale of common stock or
Preferred Stock (other than Disqualified Capital Stock) of the Company, with
aggregate proceeds of at least $50.0 million to a Strategic Equity Investor
other than in connection with or after the occurrence of a Change of Control.
The consummation of the transactions contemplated by the Merger shall not be
deemed a Strategic Equity Offering.
"Subordinated Indebtedness" means Indebtedness of the Company or a
Guarantor subordinated in right of payment to the Securities or a Guarantee, as
the case may be.
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"Subsidiary" with respect to any Person, means (i) a corporation at
least 50% of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person, or (ii) a partnership in which such
Person or a Subsidiary of such Person is, at the time, a general partner of such
partnership, or (iii) any Person in which such Person, one or more Subsidiaries
of such Person, or such Person and one or more Subsidiaries of such Person,
directly or indirectly, at the date of determination thereof has (x) at least a
fifty percent ownership interest or (y) the power to elect or direct the
election of the directors or other governing body of such Person.
"Successor Security" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 2.15 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
ss.ss.77aaa-77bbbb) as amended and as in effect on the date of the execution of
this Indenture.
"Total Assets" means the total assets of the Company and its
Restricted Subsidiaries shown on the Consolidated balance sheet of the Company
and its Restricted Subsidiaries prepared in accordance with GAAP as of the last
day of the immediately preceding fiscal quarter for which financial statements
are available.
"Total Common Equity" of any Person means, as of any date of
determination, the product of (i) the aggregate number of outstanding primary
shares of Common Stock of such Person on such day (which shall not include any
options or warrants on, or securities convertible or exchangeable into, shares
of Common Stock of such Person) and (ii) the average Closing Price of such
Common Stock over the 20 consecutive Trading Days immediately preceding such
day. If no such Closing Price exists with respect to shares of any such class,
the value of such shares for purposes of clause (ii) of the preceding sentence
shall be determined by the Board of Directors of Centennial or the Company in
good faith and evidenced by a resolution of the Board of Directors filed with
the Trustee.
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"Trading Day," with respect to a securities exchange or automated
quotation system, means a day on which such exchange or system is open for a
full day of trading.
"Transfer Restricted Securities" means Securities that bear or are
required to bear the legend set forth on the face of the form of Security
attached hereto as Exhibit A.
"Treasury Rate" means, with respect to any Redemption Date, the rate
per annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such Redemption Date.
"Trust Officer" means any officer within the corporate trust division
(or any successor group) of the Trustee or any other officer of the Trustee
customarily performing functions similar to those performed by the Persons who
at that time shall be such officers assigned and duly authorized by the Trustee
to administer its corporate trust matters hereunder, and also means, with
respect to a particular corporate trust matter hereunder, any other officer of
the Trustee to whom such trust matter is referred because of his knowledge of
and familiarity with the particular subject.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Unrestricted Subsidiary" means any Subsidiary of the Company (other
than a Guarantor) designated as such pursuant to and in compliance with Section
4.17.
"U.S. Government Obligations" means (a) any security which is (i) a
direct obligation of the United States of America for the payment of which the
full faith and credit of the United States of America is pledged or (ii) an
obligation of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof, and (b) any depositary receipt
issued by a bank as custodian with respect to any U.S. Government Obligation
which is specified in clause (a) above and held by such bank for the account of
the holder of such depositary receipt, or with respect to any specific payment
of principal of or interest on any U.S. Government Obligation which is so
specified and held, provided, that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
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"U.S. Legal Tender" means such coin or currency of the United States
of America as at the time of payment shall be legal tender for payment of public
and private debts.
"Voting Stock" with respect to a Person means Capital Stock of such
Person having generally the right to vote in the election of a majority of the
directors of such Person or having generally the right to vote with respect to
the organizational matters of such Person.
"Weighted Average Life" means, when applied to any Indebtedness at any
date, the number of years obtained by dividing (i) the sum of the products
obtained by multiplying (a) the amount of each then remaining installment,
sinking fund, serial maturity or other required payments of principal, including
payment at final maturity, in respect thereof, by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and
the making of such payment, by (ii) the then outstanding principal amount of
such Indebtedness.
"Welsh Carson" means Welsh, Carson, Anderson & Stowe VIII, L.P. and
affiliates of the foregoing that are directly or indirectly controlling or
controlled by Welsh, Carson, Anderson & Stowe VIII, L.P. or under direct or
indirect common control with Welsh, Carson, Anderson & Stowe VIII, L.P.
SECTION 1.2. Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company and any other
obligor on the Securities.
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All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them thereby.
SECTION 1.3. Rules of Construction.
Unless the context otherwise requires:
(l) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision;
(7) references to Sections or Articles means reference to such Section
or Article in this Indenture, unless stated otherwise; and
(8) whenever in this Indenture or the Securities it is provided that
the principal amount with respect to a Security shall be paid, such provision
shall be deemed to require (whether or not so expressly stated) the simultaneous
payment of any accrued and unpaid interest to the date of payment on such
Security payable pursuant to paragraph 1 of the Securities.
ARTICLE II
THE SECURITIES
SECTION 2.1. Form and Dating.
The Securities and the Trustee's certificate of authentication in
respect thereof shall be substantially in the form of Exhibit A hereto, which
Exhibit is part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Issuers shall
approve the form of the Securities and any notation, legend or endorsement on
them. Any such notations, legends or endorsements not contained in the form of
Security attached as Exhibit A hereto shall be delivered in writing to the
Trustee. Each Security shall be dated the date of its authentication.
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The terms and provisions contained in the forms of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Issuers and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
SECTION 2.2. Execution and Authentication.
Two Officers shall sign, or one Officer shall sign and one Officer
shall attest to, the Securities for each of the Issuers by manual or facsimile
signature.
If an Officer whose signature is on a Security was an Officer at the
time of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless and the
Issuers shall nevertheless be bound by the terms of the Securities and this
Indenture.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate Initial Securities for original issue
in the aggregate principal amount of up to $370,000,000 and shall authenticate
Exchange Securities for original issue in the aggregate principal amount of up
to $370,000,000, in each case upon a written order of the Issuers; provided that
such Exchange Securities shall be issuable only upon the valid surrender for
cancellation of Initial Securities of a like aggregate principal amount in
accordance with the Registration Rights Agreement. The written order of the
Issuers shall specify the amount of Securities to be authenticated and the date
on which the Securities are to be authenticated. The aggregate principal amount
of Securities outstanding at any time may not exceed $370,000,000, except as
provided in Section 2.7. Upon the written order of the Issuers, the Trustee
shall authenticate Securities in substitution of Securities originally issued to
reflect any name change of either Issuer.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Issuers, any Affiliate of the Issuers,
or any of their respective Subsidiaries.
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Securities shall be issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. Interest shall be
payable in the manner and at the times specified in the form of Securities
attached hereto.
SECTION 2.3. Registrar and Paying Agent.
The Issuers shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
where Securities may be presented for payment ("Paying Agent") and where notices
and demands to or upon the Issuers in respect of the Securities may be served.
The Company may act as Registrar or Paying Agent, except that, for the purposes
of Articles III, VIII, XI and Section 4.14 and as otherwise specified in this
Indenture, neither the Company nor any Affiliate of the Company shall act as
Paying Agent. The Registrar shall keep a register of the Securities and of their
transfer and exchange. The Issuers may have one or more co-Registrars and one or
more additional Paying Agents. The term "Paying Agent" includes any additional
Paying Agent. The Issuers hereby initially appoint the Trustee as Registrar and
Paying Agent, and the Trustee hereby agrees so to act.
The Issuers shall enter into an appropriate written agency agreement
with any Agent not a party to this Indenture, which agreement shall implement
the provisions of this Indenture that relate to such Agent. The Issuers shall
promptly notify the Trustee in writing of the name and address of any such
Agent. If the Issuers fail to maintain a Registrar or Paying Agent, the Trustee
shall act as such.
The Issuers initially appoint The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Securities.
The Issuers initially appoint the Trustee to act as Securities
Custodian with respect to the Global Securities.
SECTION 2.4. Paying Agent to Hold Assets in Trust.
The Issuers shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all assets held by the Paying Agent for the payment
of principal of, premium, if any, or interest on, the Securities (whether such
assets have been distributed to it by the Issuers or any other obligor on the
Securities), and shall promptly notify the Trustee in writing of any Default in
making any such payment. If either of the Issuers or a Subsidiary of the Issuers
acts as Paying Agent, it shall segregate such assets and hold them as a separate
trust fund for the benefit of the Holders or the Trustee. The Issuers at any
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time may require a Paying Agent to distribute all assets held by it to the
Trustee and account for any assets disbursed and the Trustee may at any time
during the continuance of any Payment Default, upon written request to a Paying
Agent, require such Paying Agent to distribute all assets held by it to the
Trustee and to account for any assets distributed. Upon distribution to the
Trustee of all assets that shall have been delivered by the Issuers to the
Paying Agent, the Paying Agent (if other than the Company) shall have no further
liability for such assets.
SECTION 2.5. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Issuers shall furnish to the
Trustee on or before the third Business Day preceding each Interest Payment Date
and at such other times as the Trustee may request in writing a list in such
form and as of such date as the Trustee reasonably may require of the names and
addresses of Holders.
SECTION 2.6. [INTENTIONALLY OMITTED].
SECTION 2.7. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder
of a Security claims and submits an affidavit or other evidence, satisfactory to
the Trustee, to the Trustee to the effect that the Security has been lost,
destroyed or wrongfully taken, the Issuers shall issue and the Trustee shall
authenticate a replacement Security if the Trustee's requirements are met. If
required by the Trustee or the Issuers, such Holder must provide an indemnity
bond or other indemnity, sufficient in the judgment of both the Issuers and the
Trustee, to protect the Issuers, the Trustee or any Agent from any loss which
any of them may suffer if a Security is replaced. The Issuers may charge such
Holder for its reasonable, out-of-pocket expenses in replacing a Security.
Every replacement Security is an additional obligation of the Issuers.
SECTION 2.8. Outstanding Securities.
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee (including any Security represented by a
Global Security) except those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Security effected by
the Trustee hereunder and those described in this Section 2.8 as not
outstanding. A Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security, except as provided in Section
2.9.
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If a Security is replaced pursuant to Section 2.7 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be outstanding
upon surrender of such Security and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent (other
than the Company or an Affiliate of a Company) holds cash sufficient to pay all
of the principal and interest due on the Securities payable on that date and
payment of the Securities called for redemption or payable on such Maturity Date
is not otherwise prohibited pursuant to this Indenture, then on and after that
date such Securities cease to be outstanding and interest on them ceases to
accrue.
SECTION 2.9. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, amendment, supplement, waiver or
consent, Securities owned by the Company or Affiliates of the Company shall be
disregarded, except that, for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, amendment, supplement,
waiver or consent, only Securities that the Trustee knows are so owned shall be
disregarded.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Issuers may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Issuers reasonably and in good faith consider
appropriate for temporary Securities. Without unreasonable delay, the Issuers
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
permanent Securities authenticated and delivered hereunder.
SECTION 2.11. Cancellation.
The Issuers at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Company or an Affiliate of the Company), and no one else, shall
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cancel and, at the written direction of the Issuers, shall dispose of all
Securities surrendered for transfer, exchange, payment or cancellation. Subject
to Section 2.7, the Issuers may not issue new Securities to replace Securities
that have been paid or delivered to the Trustee for cancellation. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section 2.11, except as expressly permitted in the form of
Securities and as permitted by this Indenture.
SECTION 2.12. Defaulted Interest.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the person in
whose name that Security (or one or more predecessor Securities) is registered
at the close of business on Record Date for such interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date plus, to the extent
lawful, any interest payable on the defaulted interest (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered holder on the
relevant Record Date, and such Defaulted Interest may be paid by the Issuers, at
their election in each case, as provided in clause (1) or (2) below:
(1) The Issuers may elect to make payment of any Defaulted Interest to
the persons in whose names the Securities (or their respective predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Issuers shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Issuers shall deposit with the
Trustee an amount of cash equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
cash when deposited to be held in trust for the benefit of the persons entitled
to such Defaulted Interest as provided in this clause (1). Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Issuers of such Special Record Date and, in the name and at the expense of the
Issuers, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Security register not less
than 10 days prior to such Special Record Date. Notice of the proposed payment
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of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the persons in
whose names the Securities (or their respective predecessor Securities) are
registered on such Special Record Date and shall no longer be payable pursuant
to the following clause (2).
(2) The Issuers may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Issuers to the Trustee
of the proposed payment pursuant to this clause, such manner shall be deemed
practicable by the Trustee in its sole discretion.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon transfer of or in exchange for or in lieu of any other
Security shall carry the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 2.13. Registration, Registration of Transfer and Exchange.
The Issuers shall cause the Trustee to keep, so long as it is the
Security Registrar, at the Corporate Trust Office of the Trustee, or such other
office as the Trustee may designate, a register (the register maintained in such
office or in any other office or agency designated pursuant to Section 4.2 being
herein sometimes referred to as the "Security Register") in which, subject to
such reasonable regulations as the Security Registrar may prescribe, the Issuers
shall provide for the registration of Securities and of transfers of Securities.
The Trustee shall initially be the "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided. The
Issuers may change the Security Registrar or appoint one or more co-Security
Registrars without notice.
Upon surrender for registration of transfer of any Security at the
office or agency of the Issuers designated pursuant to Section 4.2, the Issuers
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of the same
series of any authorized denomination or denominations, of a like aggregate
principal amount.
Furthermore, any Holder of the Global Security shall, by acceptance of
such Global Security, agree that transfers of beneficial interests in such
Global Security may be effected only through a book-entry system maintained by
the Holder of such Global Security (or its agent), and that ownership of a
beneficial interest in a Security shall be required to be reflected in a book
entry.
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At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Issuers shall execute, and the Trustee shall authenticate and deliver,
Securities of the same series which the Holder making the exchange is entitled
to receive; provided that no exchange of Series A Securities for Series B
Securities shall occur until an Exchange Offer Registration Statement shall have
been declared effective by the Commission and that the Series A Securities
exchanged for the Series B Securities shall be canceled.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuers, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer,
or for exchange, repurchase or redemption, shall (if so required by the Issuers
or the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Issuers and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer, exchange or redemption of Securities, except for any tax or other
governmental charge that may be imposed in connection therewith, other than all
exchanges pursuant to Section 2.1, 2.2, 2.7, 2.10, 2.13, 3.7, 4.14, 9.5 or 11.1
not involving any transfer.
The Issuers shall not be required (a) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the mailing of a notice of redemption of the Securities selected
for redemption under Section 3.3 and ending at the close of business on the day
of such mailing or (b) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
Securities being redeemed in part.
Every Security shall be subject to the restrictions on transfer
provided in the legend required to be set forth on the face of each Security as
indicated on the form of Security attached hereto as Exhibit A, and the
restrictions set forth in this Section 2.13, and the Holder of each Security, by
such Holder's acceptance thereof (or interest therein), agrees to be bound by
such restrictions on transfer.
Except as provided in the preceding paragraph, any Security
authenticated and delivered upon registration of transfer of, or in exchange
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for, or in lieu of, any Global Security, whether pursuant to this Section 2.13,
Section 2.7, 2.10, 3.7 or 9.5 or otherwise, shall also be a Global Security and
bear the legend indicated on the form of Security attached hereto as Exhibit A.
SECTION 2.14. Book Entry Provisions for Global Securities.
(a) Each Global Security initially shall (i) be registered in the name
of the Depositary for such Global Security or the nominee of such Depositary,
(ii) be deposited with, or on behalf of, the Depositary or with the Trustee as
custodian for such Depositary and (iii) bear legends indicated on the form of
Security attached hereto as Exhibit A.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary, or the Trustee as its custodian, or under such
Global Security, and the Depositary may be treated by the Issuers, the Trustee
and any agent of the Issuers or the Trustee as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuers, the Trustee or any agent of the Issuers or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any Security.
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary (A) has notified the Issuers that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
has ceased to be a clearing agency registered as such under the Exchange Act,
and in either case the Issuers fail to appoint a successor Depositary, (ii) the
Issuers, at their option, execute and deliver to the Trustee a Company Order
stating that it elects to cause the issuance of the Securities in certificated
form and that all Global Securities shall be exchanged in whole for Securities
that are not Global Securities (in which case such exchange shall be effected by
the Trustee) or (iii) there shall have occurred and be continuing an Event of
Default or any event which after notice or lapse of time or both would be an
Event of Default with respect to such Global Security.
(c) If any Global Security is to be exchanged for other Securities or
canceled in whole, it shall be surrendered by or on behalf of the Depositary or
its nominee to the Trustee, as Security Registrar, for exchange or cancellation
as provided in this Article Two. If any Global Security is to be exchanged for
other Securities or canceled in part, or if another Security is to be exchanged
in whole or in part for a beneficial interest in any Global Security, then
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either (i) such Global Security shall be so surrendered for exchange or
cancellation as provided in this Article Two or (ii) the principal amount
thereof shall be reduced or increased by an amount equal to the portion thereof
to be so exchanged or canceled, or equal to the principal amount of such other
Security to be so exchanged for a beneficial interest therein, as the case may
be, by means of an appropriate adjustment made on the records of the Trustee, as
Security Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Security, the Trustee shall, subject to this Section
2.14(c) and as otherwise provided in this Article Two, authenticate and deliver
any Securities issuable in exchange for such Global Security (or any portion
thereof) to or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative. Upon the request
of the Trustee in connection with the occurrence of any of the events specified
in the preceding paragraph, the Issuers shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to rely upon any order, direction or
request of the Depositary or its authorized representative which is given or
made pursuant to this Article Two if such order, direction or request is given
or made in accordance with the Applicable Procedures.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article Two or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members.
SECTION 2.15. Special Transfer and Exchange Provisions.
(a) Certain Transfers and Exchanges. Transfers and exchanges of
Securities and beneficial interests in a Global Security of the kinds specified
in this Section 2.15 shall be made only in accordance with this Section 2.15.
(i) Rule 144A Global Security to Regulation S Global Security
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If the owner of a beneficial interest in the Rule 144A Global
Security wishes at any time to transfer such interest to a Person who
wishes to acquire the same in the form of a beneficial interest in the
Regulation S Global Security, such transfer may be effected only in
accordance with the provisions of this paragraph and paragraph (iv)
below and subject to the Applicable Procedures. Upon receipt by the
Trustee, as Security Registrar, of (a) an order given by the
Depositary or its authorized representative directing that a
beneficial interest in the Regulation S Global Security in a specified
principal amount be credited to a specified Agent Member's account and
that a beneficial interest in the Rule 144A Global Security in an
equal principal amount be debited from another specified Agent
Member's account and (b) a Regulation S Certificate in the form of
Exhibit B hereto, satisfactory to the Trustee and duly executed by the
owner of such beneficial interest in the Rule 144A Global Security or
his attorney duly authorized in writing, then the Trustee, as Security
Registrar but subject to paragraph (iv) below, shall reduce the
principal amount of the Rule 144A Global Security and increase the
principal amount of the Regulation S Global Security by such specified
principal amount as provided in Section 2.14(c).
(ii) Regulation S Global Security to Rule 144A Global Security
If the owner of a beneficial interest in the Regulation S
Global Security wishes at any time to transfer such interest to a
Person who wishes to acquire the same in the form of a beneficial
interest in the Rule 144A Global Security, such transfer may be
effected only in accordance with this paragraph (ii) and subject to
the Applicable Procedures. Upon receipt by the Trustee, as Security
Registrar, of (a) an order given by the Depositary or its authorized
representative directing that a beneficial interest in the Rule 144A
Global Security in a specified principal amount be credited to a
specified Agent Member's account and that a beneficial interest in the
Regulation S Global Security in an equal principal amount be debited
from another specified Agent Member's account and (b) if such transfer
is to occur during the Restricted Period, a Restricted Securities
Certificate in the form of Exhibit C hereto, satisfactory to the
Trustee and duly executed by the owner of such beneficial interest in
the Regulation S Global Security or his attorney duly authorized in
writing, then the Trustee, as Security Registrar, shall reduce the
principal amount of the Regulation S Global Security and increase the
principal amount of the Rule 144A Global Security by such specified
principal amount as provided in Section 2.14(c).
(iii) Exchanges between Global Security and Non-Global Security
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A beneficial interest in a Global Security may be exchanged for a
Security that is not a Global Security as provided in Section 2.15(b);
provided that, if such interest is a beneficial interest in the Rule
144A Global Security, or if such interest is a beneficial interest in
the Regulation S Global Security and such exchange is to occur during
the Restricted Period, then such interest shall bear the Private
Placement Legend (subject in each case to Section 2.15(b)).
(iv) Regulation S Global Security to be Held Through Euroclear or
Cedel during Restricted Period
The Issuers shall use their best efforts to cause the Depositary
to ensure that, until the expiration of the Restricted Period,
beneficial interests in the Regulation S Global Security may be held
only in or through accounts maintained at the Depositary by Euroclear
or Cedel (or by Agent Members acting for the account thereof), and no
person shall be entitled to effect any transfer or exchange that would
result in any such interest being held otherwise than in or through
such an account; provided that this paragraph (iv) shall not prohibit
any transfer or exchange of such an interest in accordance with
paragraph (ii) above. Notwithstanding anything otherwise stated
herein, during the Restricted Period, holders of beneficial interests
in the Regulation S Global Security may not transfer such interest to
a person that takes delivery thereof in the form of an interest in the
Rule 144A Global Security; upon the expiration of the Restricted
Period, such interest in the Regulation S Global Security may be
transferred to a person who takes delivery in the form of an interest
in the Rule 144A Global Security provided that (for persons other than
distributors (as defined in Regulation S)) such person delivers a
certificate in the Form of Exhibit B hereto to the Trustee.
(b) Private Placement Legends
Rule 144A Securities and their Successor Securities and Regulation S
Securities and their Successor Securities shall bear a Private Placement Legend,
subject to the following:
(i) subject to the following clauses of this Section 2.15(b), a
Security or any portion thereof which is exchanged, upon transfer or
otherwise, for a Global Security or any portion thereof shall bear the
Private Placement Legend borne by such Global Security while
represented thereby;
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(ii) subject to the following clauses of this Section 2.15(b), a
new Security which is not a Global Security and is issued in exchange
for another Security (including a Global Security) or any portion
thereof, upon transfer or otherwise, shall bear the Private Placement
Legend borne by such other Security;
(iii) Exchange Securities, and all other Securities sold or
otherwise disposed of pursuant to an effective registration statement
under the Securities Act, together with their respective Successor
Securities, shall not bear a Private Placement Legend;
(iv) at any time after the Securities may be freely transferred
without registration under the Securities Act or without being subject
to transfer restrictions pursuant to the Securities Act, a new
Security which does not bear a Private Placement Legend may be issued
in exchange for or in lieu of a Security (other than a Global
Security) or any portion thereof which bears such a legend if the
Trustee has received an Unrestricted Securities Certificate
substantially in the form of Exhibit D hereto, satisfactory to the
Trustee and duly executed by the Holder of such legended Security or
his attorney duly authorized in writing, and after such date and
receipt of such certificate, the Trustee shall authenticate and
deliver such a new Security in exchange for or in lieu of such other
Security as provided in this Article II;
(v) a new Security which does not bear a Private Placement Legend
may be issued in exchange for or in lieu of a Security (other than a
Global Security) or any portion thereof which bears such a legend if,
in the Issuers' judgment, placing such a legend upon such new Security
is not necessary to ensure compliance with the registration
requirements of the Securities Act, and the Trustee, at the direction
of the Issuers, shall authenticate and deliver such a new Security as
provided in this Article II; and
(vi) notwithstanding the foregoing provisions of this Section
2.15(b), a Successor Security of a Security that does not bear a
particular form of Private Placement Legend shall not bear such form
of legend unless the Issuers have reasonable cause to believe that
such Successor Security is a "restricted security" within the meaning
of Rule 144, in which case the Trustee, at the direction of the
Issuers, shall authenticate and deliver a new Security bearing a
Private Placement Legend in exchange for such Successor Security as
provided in this Article II.
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By its acceptance of any Security bearing the Private Placement
Legend, each Holder of such a Security acknowledges the restrictions on transfer
of such Security set forth in this Indenture and in the Private Placement Legend
and agrees that it will transfer such Security only as provided in this
Indenture.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.14 or this Section
2.15. The Issuers shall have the right to inspect and make copies of all such
letters, notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Security Registrar.
In the event that Regulation S is amended during the term of this
Indenture to alter the applicable holding period, all reference in this
Indenture to a holding period for Non-U.S. Persons will be deemed to include
such amendment.
SECTION 2.16. CUSIP Numbers.
Neither the Issuers nor the Trustee shall have any responsibility for
any defect in the CUSIP number that appears on any Security, check, advice of
payment or redemption notice, and any such document may contain a statement to
the effect that CUSIP numbers have been assigned by an independent service for
convenience of reference and that neither the Issuers nor the Trustee shall be
liable for any inaccuracy in such numbers.
ARTICLE III
REDEMPTION
SECTION 3.1. Rights of Redemption.
(a) In addition to the provisions of Sections 4.14 and 11.1 hereof,
the Securities are subject to redemption at any time on or after December 15,
2003, at the option of the Issuers, in whole or in part, subject to the
conditions, and at the Redemption Prices, specified in the form of Security
attached hereto as Exhibit A, together with accrued and unpaid interest, if any,
to the Redemption Date (subject to the rights of holders of record on relevant
record dates to receive interest due on an interest payment date).
(b) In addition, at any time after consummation of the Merger and
prior to December 15, 2001, the Issuers, at their option, may use the net cash
proceeds of one or more Public Equity Offerings or Strategic Equity Offerings in
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a single transaction or a series of related transactions to redeem up to an
aggregate of 35% of the aggregate principal amount of Securities originally
issued under this Indenture at a redemption price equal to 110.75% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon, if
any, to the redemption date (subject to the rights of holders of record on
relevant record dates to receive interest due on an interest payment date);
provided that at least 65% of the initial aggregate principal amount of
Securities remains outstanding immediately after the occurrence of such
redemption; provided, further, that any such redemption with respect to a
Strategic Equity Offering may not occur in connection with or after the
occurrence of a Change of Control; provided, further, that any such net proceeds
received by Centennial or any other direct or indirect parent of the Company are
first contributed to the Company as a capital contribution prior to such
redemption. In order to effect the foregoing redemption, the Issuers must mail a
notice of redemption no later than 30 days after the closing of the related
Public Equity Offering or Strategic Equity Offering and must consummate such
redemption within 60 days of the closing of the Public Equity Offering or
Strategic Equity Offering.
(c) In addition, the Securities may be redeemed upon a Change of
Control at any time prior to December 15, 2003, at the option of the Issuers, in
whole and not in part, within 60 days of such Change of Control at a redemption
price equal to (i) 100% of the principal amount of the Securities, plus (ii)
accrued interest to the redemption date (subject to the rights of holders of
record on relevant record dates to receive interest due on an interest payment
date) plus (iii) the Applicable Premium, if any. In no event will the redemption
price of the Securities be less than 105.375% (the Redemption Price for the
Securities on December 15, 2003) of the principal amount of the Securities, plus
accrued interest to the applicable Redemption Date.
SECTION 3.2. Notices to Trustee.
If the Issuers elect to redeem Securities pursuant to Paragraph 5 of
the Securities, or are required to redeem Securities pursuant to Section 3.8 of
this Indenture or Paragraph 13 of the Securities, they shall notify the Trustee
in writing of the Redemption Date and the principal amount of Securities to be
redeemed and whether they want the Trustee to give notice of redemption to the
Holders.
If the Issuers elect to reduce the principal amount of Securities to
be redeemed pursuant to Paragraph 5 of the Securities by crediting against any
such redemption Securities they have not previously delivered to the Trustee for
cancellation, they shall so notify the Trustee of the amount of the reduction
and deliver such Securities with such notice, provided that no Initial
Securities received by the Issuers in exchange for Exchange Securities may be
made the basis for such credit.
The Issuers shall give each notice to the Trustee provided for in this
Section 3.2 at least 45 days before the Redemption Date (unless a shorter notice
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shall be satisfactory to the Trustee). Any such notice may be canceled at any
time prior to notice of such redemption being mailed to any Holder and shall
thereby be void and of no effect.
SECTION 3.3. Selection of Securities to Be Redeemed.
If less than all of the Securities are to be redeemed pursuant to
Paragraph 5 thereof, and in the case of a redemption pursuant to Section 3.8 of
this Indenture or Paragraph 13 of the Securities, the Trustee shall select the
Securities or portions thereof for redemption in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities are listed, or if the Securities are not so listed, on a pro rata
basis, by lot or by any other manner as the Trustee shall determine to be fair
and appropriate; provided, that any such redemption pursuant to the provisions
relating to a Public Equity Offering or a Strategic Equity Offering shall be
made on a pro rata basis or on as nearly a pro rata basis as practicable
(subject to the procedures of any applicable Depositary, legal and stock
exchange requirements. The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall promptly notify
the Issuers in writing of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the principal amount
thereof to be redeemed. The Securities may be redeemed in part pursuant to this
Section 3.3 in multiples of $1,000 only. The Trustee may select for redemption
portions (equal to $1,000 or any integral multiple thereof) of the principal of
Securities that have denominations larger than $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption.
SECTION 3.4. Notice of Redemption.
At least 30 days and not more than 60 days before a Redemption Date
(other than in connection with a Special Mandatory Redemption, which only
requires no less than seven days' and no more than 20 days' notice), the Issuers
shall mail a notice of redemption by first-class mail, postage prepaid, to the
Trustee and each Holder whose Securities are to be redeemed to such Holder's
last address as then shown upon the books of the Registrar. At the Issuers'
request, the Trustee shall give the notice of redemption in the Issuers' names
and at the Issuers' expense. Each notice for redemption shall identify the
Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price, including the amount of accrued and unpaid
interest, if any, to be paid upon such redemption;
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(3) the name, address and telephone number of the Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent at the address specified in such notice to collect
the Redemption Price;
(5) that, unless (a) the Issuers default in their obligation to
deposit cash with the Paying Agent in accordance with Section 3.6
hereof or (b) such redemption payment is prohibited pursuant to
this Indenture, interest on Securities (or portion thereof)
called for redemption ceases to accrue on and after the
Redemption Date and the only remaining right of the Holders of
such Securities is to receive payment of the Redemption Price,
including any accrued and unpaid interest to the Redemption Date,
upon surrender to the Paying Agent of the Securities called for
redemption and to be redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount, equal to $1,000 or any integral multiple
thereof, of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new
Security or Securities in aggregate principal amount equal to the
unredeemed portion thereof will be issued;
(7) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof)
to be redeemed, as well as the aggregate principal amount of such
Securities to be redeemed and the aggregate principal amount of
Securities to be outstanding after such partial redemption;
(8) the CUSIP number of the Securities to be redeemed; and
(9) that the notice is being sent pursuant to this Section 3.4 and
pursuant to the optional redemption provisions of Paragraph 5 of
the Securities or pursuant to the mandatory redemption provisions
of Section 3.8 of this Indenture and Paragraph 13 of the
Securities.
SECTION 3.5. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.4,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price, including any accrued and unpaid interest to the
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Redemption Date. Upon surrender to the Trustee or Paying Agent, such Securities
called for redemption shall be paid at the Redemption Price, including interest,
if any, accrued and unpaid to the Redemption Date; provided that if the
Redemption Date is after a regular Record Date and on or prior to the Interest
Payment Date, the accrued interest shall be payable to the Holder of the
redeemed Securities registered on the relevant Record Date; and provided,
further, that if a Redemption Date is a Legal Holiday, payment shall be made on
the next succeeding Business Day and no interest shall accrue for the period
from such Redemption Date to such succeeding Business Day.
SECTION 3.6. Deposit of Redemption Price.
By 10:00 a.m. on, or prior to, the Redemption Date, the Issuers shall
deposit with the Paying Agent (other than the Company or an Affiliate of the
Company) cash sufficient to pay the Redemption Price of, including any accrued
and unpaid interest on, all Securities to be redeemed on such Redemption Date
(other than Securities or portions thereof called for redemption on that date
that have been delivered by the Issuers to the Trustee for cancellation). The
Paying Agent shall promptly return to the Company any cash so deposited which is
not required for that purpose.
If the Issuers comply with the preceding paragraph and the other
provisions of this Article III and payment of the Securities called for
redemption is not prohibited under this Indenture, interest on the Securities to
be redeemed will cease to accrue on the applicable Redemption Date, whether or
not such Securities are presented for payment. Notwithstanding anything herein
to the contrary, if any Security surrendered for redemption in the manner
provided in the Securities shall not be so paid upon surrender for redemption
because of the failure of the Issuers to comply with the preceding paragraph,
interest shall continue to accrue and be paid from the Redemption Date until
such payment is made on the unpaid principal, and, to the extent lawful, on any
interest not paid on such unpaid principal, in each case at the rate and in the
manner provided in Section 4.1 hereof and the Securities.
SECTION 3.7. Securities Redeemed in Part.
Upon surrender of a Security that is to be redeemed in part, the
Issuers shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge to the Holder, a new Security or Securities equal
in principal amount to the unredeemed portion of the Security surrendered.
SECTION 3.8. Special Mandatory Redemption.
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(a) In addition to any payments required by Section 11.1 hereof, upon
the earlier to occur (such earlier date (after giving effect to any permitted
extension as provided in clause (ii)) being referred to as the "Escrow Draw
Date") of (i) termination of the Merger Agreement and (ii) 60 days after the
Issue Date if the Initial Escrow Funds (as defined in the Pledge and Escrow
Agreement) have not been released by that time (provided that the 60-day period
may be extended at the option of the Company on or prior to the 50th day after
the Issue Date up to an additional 30 days if (a) the Company shall have
increased the amount of cash by an additional amount (to be reasonably
determined by the Initial Purchasers on the same basis as the determination of
the Additional Escrow Amount) in the Initial Escrow and Pledge Account for the
benefit of the holders of the Securities, (b) the basis under which the Merger
Agreement is not satisfied on such 60th day relates to pending governmental or
regulatory approval or effectiveness of stockholder approval, (c) the lenders
under the Credit Facility shall, in their discretion, have extended their
commitment to lend to no earlier than the date to which the escrow has been
extended and (d) the Company shall have issued a press release on or prior to
the 50th day after the Issue Date in a commercially reasonable manner and
notified the Trustee with respect to such extension of the escrow period
(clauses (a) through (d) being referred to herein as the "Extension
Condition")), the Issuers shall redeem all of the outstanding Securities upon at
least seven (7) (and no more than twenty (20)) days' prior written notice to the
Holders with the Initial Escrow Funds delivered to the Paying Agent pursuant to
the terms of the Pledge and Escrow Agreement, at a redemption price equal to the
Special Redemption Price, plus accrued and unpaid interest, if any, to the date
of redemption (the "Special Mandatory Redemption").
(b) Once a date for any such redemption has been publicly announced,
it shall not be changed. The Trustee shall promptly notify the Holders of the
date fixed for any redemption pursuant to this Section 3.8.
(c) "Special Redemption Price" means, with respect to any Securities
as of any date of redemption with respect thereto, an amount equal to 101% of
the principal amount plus accrued and unpaid interest, if any, to the date of
redemption.
(d) Other than as specifically provided in this Section 3.8, any
redemption pursuant to this Section 3.8 shall be made pursuant to the provisions
of Section 3.1 through 3.7 hereof.
ARTICLE IV
COVENANTS
SECTION 4.1. Payment of Securities.
The Issuers shall pay the principal of, premium, if any, and interest
on the Securities on the dates and in the manner provided in the Securities. An
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installment of principal of, premium, if any, or interest on the Securities
shall be considered paid by the Issuers on the date it is due if the Trustee or
Paying Agent (other than the Company or an Affiliate of the Company) holds for
the benefit of the Holders, on or before 10:00 a.m. New York City time on that
date, cash deposited and designated for and sufficient to pay the installment.
The Issuers shall pay interest on overdue principal, premium, if any, and on
overdue installments of interest at the rate specified in the Securities
compounded semi-annually, to the extent lawful.
SECTION 4.2. Maintenance of Office or Agency.
The Issuers shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Issuers in respect of the
Securities and this Indenture may be served. The Issuers shall give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Issuers shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee set forth in Section 13.2. The Issuers
may also from time to time designate one or more other offices or agencies where
the Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Issuers of their
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Issuers shall give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. The Issuers hereby initially
designate the Corporate Trust Office of the Trustee at 450 West 33rd Street, New
York, New York 10001 as such office.
SECTION 4.3. Limitation on Restricted Payments.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, make any Restricted Payment, if,
immediately prior or after giving effect thereto (a) a Default or an Event of
Default would exist, (b) the Company would not be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Annual Operating Cash Flow
Ratio provision set forth in the second paragraph of Section 4.11 or (c) the
aggregate amount of all Restricted Payments made by the Company and its
Restricted Subsidiaries, including such proposed Restricted Payment (if not made
in cash, then the Fair Market Value of any property used therefor) from and
after the Issue Date and on or prior to the date of such Restricted Payment,
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shall exceed the sum of (i) the amount determined by subtracting (x) 1.75 times
the aggregate Consolidated Interest Expense of the Company for the period (taken
as one accounting period) from the first day of the first quarter commencing
after the Issue Date to the last day of the last full fiscal quarter prior to
the date of the proposed Restricted Payment (the "Computation Period") from (y)
Operating Cash Flow of the Company for the Computation Period, plus (ii) the
aggregate Net Proceeds received by the Company from the sale (other than to a
Subsidiary of the Company) of its Qualified Capital Stock after the Issue Date
and on or prior to the date of such Restricted Payment (other than any such Net
Proceeds received by the Company in connection with the financing of the Merger)
and in any case other than Excluded Contributions, Excluded Cash Contributions
and Investment Equity), plus (iii) 100% of the aggregate amount of non-recourse
contributions to the capital of the Company since the Issue Date (in any case
other than Excluded Contributions, Excluded Cash Contributions and Investment
Equity), plus (iv) to the extent not otherwise included in clauses (i) - (ii),
above, an amount equal to the net reduction in Investments in Unrestricted
Subsidiaries resulting from payments of dividends, repayment of loans or
advances, or other transfers of assets, in each case to the Company or any
Restricted Subsidiary of the Company from Unrestricted Subsidiaries, or from
redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued
in each case as provided in the definition of "Investments").
Notwithstanding the foregoing, the provisions set forth in clauses (b)
or (c) of the immediately preceding paragraph will not prohibit (and the
provision set forth in clause (a) of the immediately preceding paragraph will
not prohibit the payment described in clause (i)) (i) the payment of any
dividend within 60 days after the date of its declaration if such dividend could
have been made on the date of its declaration in compliance with the foregoing
provisions, (ii) the redemption, defeasance, repurchase or other acquisition or
retirement of any Indebtedness or Capital Stock of the Company or its Restricted
Subsidiaries either in exchange for or out of the Net Proceeds of the
substantially concurrent sale (other than to a Subsidiary of the Company) of
Qualified Capital Stock (in the case of any redemption, defeasance, repurchase
or other acquisition or retirement of any Subordinated Indebtedness or Capital
Stock of the Company or its Restricted Subsidiaries) or Subordinated
Indebtedness (in the case of any redemption, defeasance, repurchase or other
acquisition or retirement of any Indebtedness of the Company or its Restricted
Subsidiaries) of the Company, (iii) loans, advances, dividends or distributions
by the Company to Centennial in order to fund the payment of the management or
other similar fees to equity investors (or their Affiliates) in Centennial
permitted by Section 4.10 (iv) the purchase, redemption or other acquisition or
retirement for value of Capital Stock of Centennial (or loans, advances,
dividends, or distributions by the Company to Centennial to fund the foregoing)
from employees, former employees, directors, former directors, consultants and
former consultants of Centennial or any of its Subsidiaries pursuant to the
terms of the agreements pursuant to which such Capital Stock was acquired in an
amount not to exceed $2.5 million in the aggregate in any calendar year (with
unused amounts in any calendar year being carried over to the next two
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succeeding calendar years; provided, further, that such amount in any calendar
year may be increased by an amount not to exceed (a) the cash proceeds from the
sale of Capital Stock to members of management, directors or consultants that
occurs after the Issue Date plus (b) the cash proceeds of key man life insurance
policies received by the Company and its Restricted Subsidiaries after the Issue
Date; (v) repurchases of Capital Stock of the Company deemed to occur upon
exercise of stock options if such Capital Stock represents a portion of the
exercise price of such options, (vi) loans, advances, dividends or distributions
by the Company to Centennial to fund the acquisition, repurchase or other
repayment in respect of Centennial's Common Shares, Class B Shares, Convertible
Preferred Stock, par value $.01 per share, Second Series Convertible Preferred
Stock, par value $.01 per share, or options or warrants to purchase any of the
foregoing, in each case pursuant to the Merger Agreement; (vii) loans, advances,
dividends or distributions by the Company to Centennial not to exceed an amount
necessary to permit Centennial to pay (a) its costs (including all professional
fees and expenses) incurred to comply with its reporting obligations under
federal or state laws or under this Indenture, (b) its other operational
expenses (other than taxes) incurred in the ordinary course of business and not
exceeding $1 million in any fiscal year (with unused amounts in any fiscal year
being carried over to the next two succeeding fiscal years) and (c) its then
currently due taxes attributable solely on account of the Company and its
subsidiaries (as a consolidated, combined or unitary filing group) or on account
of the income of Centennial related to its investment in the Company and its
subsidiaries payable pursuant to a tax sharing agreement between Centennial and
the Company and its subsidiaries and the reasonable expenses of preparing
returns reflecting such taxes (not to exceed in any event the amount of tax that
the Company and the Restricted Subsidiaries would otherwise pay if not part of
such filing group), provided that Centennial agrees to be obligated to
contribute to the Company any refund Centennial receives relating to any such
taxes; (viii) the repurchase, redemption, defeasance, retirement, refinancing,
acquisition for value or payment of principal of any Subordinated Indebtedness
(other than Disqualified Capital Stock) (a "refinancing") through the
substantially concurrent issuance of new Subordinated Indebtedness of the
Company, provided that any such new Subordinated Indebtedness (1) shall be in a
principal amount that does not exceed the principal amount so refinanced (or, if
such Subordinated Indebtedness provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration thereof,
then such lesser amount as of the date of determination), plus the lesser of (I)
the stated amount of any premium or other payment required to be paid in
connection with such a refinancing pursuant to the terms of the Indebtedness
being refinanced or (II) the amount of premium or other payment actually paid at
such time to refinance the Indebtedness, plus, in either case, the amount of
expenses of the Company incurred in connection with such refinancing; (2) has a
final maturity date later than the final maturity date of, and has a Weighted
Average Life equal to or greater than the Weighted Average Life of, the
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Indebtedness to be refinanced; and (3) is expressly subordinated in right of
payment to the Securities at least to the same extent as the Subordinated
Indebtedness to be refinanced; (ix) loans, advances, dividends or distributions
by the Company to Centennial in an amount no greater than the current quarterly
interest payments then due on the Mezzanine Financing as in effect on the Issue
Date; provided that in no event shall such amount exceed the aggregate amount of
Cash from Minority Cellular Investment Interests received by the Company net of
all taxes (on a consolidated basis) or capital contributions required to be paid
in respect thereof; and provided further that with respect to any loans,
advances, dividends or distributions after the first anniversary of the Issue
Date and after giving effect thereto, the Company would be permitted to incur at
least $1.00 of additional Indebtedness pursuant to the Annual Operating Cash
Flow Ratio test contained in the second paragraph of Section 4.11; (x) the
declaration and payment of dividends or distributions to holders of any class or
series of Disqualified Capital Stock of the Company or any Preferred Stock of
its Restricted Subsidiaries issued or incurred in accordance with Section 4.11;
(xi) the payment of dividends on the Company's common stock following the first
initial public offering of Centennial's or the Company's common stock after the
Issue Date, of up to 6% per annum of the net cash proceeds received by the
Company in such public offering or contributed by Centennial to the Company from
the net cash proceeds of an equity offering by Centennial; (xii) loans,
advances, dividends or distribution by the Company to Centennial to fund the
repurchase, retirement or other acquisition for value of Capital Stock of
Centennial in existence on the Issue Date after the Merger (which shall not
exceed 7.1% of the outstanding Capital Stock of Centennial prior to the Merger)
and which are not held by Welsh Carson, Blackstone or their respective
Affiliates or any members of management of Centennial or the Company or any of
their Subsidiaries (including any Capital Stock issued in respect of such
Capital Stock as a result of a stock split, recapitalization, merger,
combination, consolidation or otherwise) provided that (A) the amount per share
paid under this clause (xii) shall not exceed $41.50 per share (as such amount
shall be adjusted as determined in good faith by the Board of Directors of the
Company for stock splits, stock dividends, recapitalizations, stock
recombinations, mergers, reverse stock splits, consolidations or similar
transactions) and (B) after giving effect thereto, the Company would be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Annual Operating Cash Flow Ratio test contained in the second paragraph of
Section 4.11; (xiii) Investments made with Excluded Contributions; and (xiv)
other Restricted Payments in an aggregate amount not to exceed $2 million.
In determining the aggregate amount expended for Restricted Payments
in accordance with clause (c) of the first paragraph of this Section 4.3, 100%
of the amounts expended under clauses (i), (ii) (to the extent the Net Proceeds
from the concurrent sale of Qualified Capital Stock has been added to the
aggregate Net Proceeds calculation pursuant to clause (ii) of the first
paragraph of this Section 4.3), (iv), (v), (x), (xi) and (xii) of the
immediately preceding paragraph shall be deducted.
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Notwithstanding anything contained in this Section 4.3, prior to the
Merger, the Company, Finance Corp. and their Subsidiaries shall not make any
Restricted Payments (other than pursuant to clause (vi) of the second preceding
paragraph).
SECTION 4.4. Corporate Existence.
Subject to Article V, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate or other existence of each of its Restricted
Subsidiaries in accordance with the respective organizational documents of each
of them and the rights (charter and statutory) and corporate franchises of the
Company and each of the Company's Restricted Subsidiaries; provided, however,
that the Company shall not be required to preserve, with respect to itself, any
right or franchise, and with respect to any Restricted Subsidiaries of the
Company, any such existence, right or franchise, if the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of such entity.
SECTION 4.5. Payment of Taxes and Other Claims.
Except with respect to items which are not material to the Company on
a Consolidated basis, Finance Corp. and the Company shall, and the Company shall
cause each of its Restricted Subsidiaries to, pay or discharge or cause to be
paid or discharged, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges (including withholding taxes and any
penalties, interest and additions to taxes) levied or imposed upon Finance
Corp., the Company or any of the Company's Restricted Subsidiaries or any of
their respective properties and assets and (ii) all lawful claims, whether for
labor, materials, supplies, services or anything else, which have become due and
payable and which by law have or may become a Lien upon the property and assets
of Finance Corp., the Company or any of the Company's Restricted Subsidiaries;
provided, however, that the Issuers shall not 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 and for which disputed amounts adequate reserves have
been established in accordance with GAAP.
SECTION 4.6. Maintenance of Properties and Insurance.
Finance Corp. and the Company shall cause all material properties used
or useful to the conduct of their respective business and the business of each
of the Company's Restricted Subsidiaries to be maintained and kept in reasonably
good condition, repair and working order (reasonable wear and tear excepted) and
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shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in its reasonable judgment 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
4.6 shall prevent the Issuers from discontinuing any operation or maintenance of
any of such properties, or disposing of any of them, if such discontinuance or
disposal is in the judgment of the Board of Directors of the Company, desirable
in the conduct of the business of such entity.
Finance Corp. and the Company shall each provide, or cause to be
provided, for themselves and each of the Company's Restricted Subsidiaries,
insurance (including appropriate self-insurance) against loss or damage of the
kinds that, in the reasonable, good faith opinion of the Issuers is adequate and
appropriate for the conduct of the business of Finance Corp., the Company and
such Restricted Subsidiaries, with (except for self-insurance) reputable
insurers or with the government of the United States of America or an agency or
instrumentality thereof, in such amounts, with such deductibles, and by such
methods, in the reasonable, good faith opinion of the Issuers as are adequate
and appropriate for the conduct of the business of Finance Corp., the Company
and such Restricted Subsidiaries in a prudent manner for entities similarly
situated in the industry, unless failure to provide such insurance (together
with all other such failures) would not have a material adverse effect on the
financial condition or results of operations of Finance Corp. and its Restricted
Subsidiaries or the Company or such Restricted Subsidiaries, as the case may be.
SECTION 4.7. Compliance Certificate; Notice of Default.
(a) The Issuers shall deliver to the Trustee within 120 days after the
end of its respective fiscal year an Officers' Certificate (one of the signers
being the principal executive officer, principal financial officer or principal
accounting officer) complying with Section 314(a)(4) of the TIA and stating that
a review of its activities and the activities of its Subsidiaries during the
preceding fiscal year, as applicable, has been made under the supervision of the
signing Officers with a view to determining whether the Issuers have kept,
observed, performed and fulfilled their obligations under this Indenture and
further stating, as to each such Officer signing such certificate, whether or
not the signer knows of any failure by the Issuers or any Subsidiary of the
Issuers to comply with any conditions or covenants in this Indenture and, if
such signer does know of such a failure to comply, the certificate shall
describe such failure with particularity. The Officers' Certificate shall also
notify the Trustee should the relevant fiscal year end on any date other than
the current fiscal year end date which currently is December 31.
(b) The Issuers shall, so long as any of the Securities are
outstanding, deliver to the Trustee, within five Business Days of becoming aware
of any Default, Event of Default or fact which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, an Officers'
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Certificate specifying such Default, Event of Default or fact and what action
the Issuers are taking or proposes to take with respect thereto. The Trustee
shall not be deemed to have knowledge of any Default, any Event of Default or
any such fact unless one of its Trust Officers receives notice thereof from the
Issuers or any of the Holders.
SECTION 4.8. Provision of Financial Statements.
Whether or not the Company is subject to Section 13(a) or 15(d) of the
Exchange Act, so long as any Securities are outstanding, the Company will, to
the extent permitted under the Exchange Act, file with the Commission the annual
reports, quarterly reports and other documents which the Company would have been
required to file with the Commission pursuant to Section 13(a) or 15(d) if it
were so subject, such documents to be filed with the Commission on or prior to
the date (the "Required Filing Date") by which the Company would have been
required so to file such documents if it were so subject. The Company will also
in any event (x) within 15 days of each Required Filing Date (whether or not
prior to the 120th calendar day following the Merger Date) (i) transmit by mail
to all holders, as their names and addresses appear in the security register,
without cost to such holders and (ii) file with the Trustee copies of the annual
reports, quarterly reports and other documents which the Company would have been
required to file with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act if the Company were subject to either of such Sections and (y) if
filing such documents by the Company with the Commission is not permitted under
the Exchange Act, promptly upon written request and payment of the reasonable
cost of duplication and delivery, supply copies of such documents to any
prospective purchaser of Securities at the Company's cost. So long as any of the
Securities remain outstanding, the Company will make available to any
prospective purchaser of Securities or beneficial owner of Securities in
connection with any sale thereof the information required by Rule 144A(d)(4)
under the Securities Act, until such time as the Company has either exchanged
the Securities for securities identical in all material respects which have been
registered under the Securities Act or until such time as the holders thereof
have disposed of such Securities pursuant to an effective registration statement
under the Securities Act. The Company will be deemed to have satisfied the
requirements set forth above if (a) Centennial prepares, files, mails and
supplies reports and other documents prepared on a consolidated basis of the
types required above, in each case within the applicable time periods, (b) the
Company is not required to file such reports and other documents separately
under the applicable rules and regulations of the Commission (after giving
effect to any exemptive relief) because of the filings made by Centennial, (c)
Centennial does not own assets in excess of $10 million other than the Capital
Stock of the Company, and (d) Centennial does not have outstanding Indebtedness
in excess of $10 million (other than indebtedness under the Mezzanine Financing
and Indebtedness as to which the Company is also liable).
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SECTION 4.9. [INTENTIONALLY OMITTED].
SECTION 4.10. Limitation on Transactions with Related Persons.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties or assets to, or purchase any property or
assets from, or enter into or make or amend any transaction, contract,
agreement, understanding, loan, advance or guarantee with, or for the benefit
of, any Affiliate (each of the foregoing, an "Affiliate Transaction") involving
in one or a series of related transactions an aggregate consideration in excess
of $5.0 million, unless (a) such Affiliate Transaction is on terms that are not
materially less favorable to the Company or the relevant Restricted Subsidiary
than those that would have been obtained in a comparable transaction by the
Company or such Restricted Subsidiary with an unrelated Person and the Company
delivers an Officer's Certificate to the Trustee certifying that such Affiliate
Transaction complies with this clause (a) and (b) with respect to any Affiliate
Transaction or series of related Affiliate Transactions involving aggregate
consideration in excess of $10.0 million, the Company delivers to the Trustee a
resolution adopted by the majority of the Disinterested Directors approving such
Affiliate Transaction and set forth in an Officer's Certificate certifying that
such Affiliate Transaction complies with clause (a) above.
The foregoing provisions will not apply to the following: (i)
transactions between or among the Company and/or any of its Restricted
Subsidiaries; (ii) Restricted Payments permitted by the provisions of this
Indenture described above under Section 4.3; (iii) the payment of annual
management, consulting, monitoring and advisory fees and related expenses to
Welsh Carson, Blackstone and their respective Affiliates in an amount in any
calendar year not to exceed the greater of (a) $1 million or (b) 1% of Annual
Operating Cash Flow; (iv) the payment of reasonable and customary fees paid to,
and indemnity provided on behalf of, officers, directors, employees or
consultants of the Company or any Restricted Subsidiary; (v) payments by the
Company or any of its Restricted Subsidiaries to Welsh Carson, Blackstone and
their respective Affiliates made for any financial advisory, financing,
underwriting or placement services or in respect of other investment banking
activities, including, without limitation, in connection with acquisitions or
divestitures which payments are approved by a majority of the Board of Directors
of the Company in good faith; (vi) transactions with respect to which the
Company or any of its Restricted Subsidiaries, as the case may be, delivers to
the Trustee a letter from an investment banking firm of national standing
stating that such transaction is fair to the Company or such Restricted
Subsidiary from a financial point of view; (vii) payments or loans to employees
or consultants which are approved by a majority of the Board of Directors of the
Company in good faith; (viii) any agreement as in effect on the Issue Date or
any amendment thereto (so long as any such amendment is not disadvantageous to
the Holders of the Securities in any material respect) or any transaction
contemplated thereby; (ix) the existence of, or the performance by the
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Company or any of its Restricted Subsidiaries of its obligations under the terms
of, the Recapitalization Documents and any stockholders agreement (including any
registration rights agreement or purchase agreement related thereto) to which it
is a party on the Issue Date and any similar agreements which it may enter into
thereafter; provided, however, that the existence of, or the performance by the
Company or any of its Restricted Subsidiaries of obligations under any future
amendment to any such existing agreement or under any similar agreement entered
into after the Issue Date shall only be permitted by this clause; (x) to the
extent that the terms of any such amendment or new agreement are not otherwise
disadvantageous to the Holders of the Securities in any material respect; (xi)
the payment of all fees, expenses, bonuses and awards related to the
Recapitalization including fees to Welsh Carson and Blackstone; and (xii) any
payment pursuant to a tax sharing agreement between the Company and any other
Person with which the Company is required or permitted to file a consolidated
tax return or with which the Company is or could be part of a consolidated,
combined or unitary group for tax purposes, which payments are not in excess of
the tax liabilities attributable solely to the Company and its Restricted
Subsidiaries (as a consolidated, combined or unitary group).
SECTION 4.11. Limitation on Incurrence of Additional Indebtedness.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, issue, create, incur, assume, guarantee
or otherwise directly or indirectly become liable for, or otherwise become
responsible for, contingently or otherwise (individually or collectively, to
"Incur" or, as appropriate, an "Incurrence"), any Indebtedness (including any
Acquired Indebtedness). Neither the accrual of interest (including the issuance
of "pay in kind" securities or similar instruments in respect of such accrued
interest) pursuant to the terms of Indebtedness Incurred in compliance with this
Section 4.11, nor the accretion of original issue discount, nor the mere
extension of the maturity of any Indebtedness shall be deemed to be an
Incurrence of Indebtedness.
Notwithstanding the foregoing, the Company and any Guarantor may Incur
Indebtedness (including Acquired Indebtedness) and any Restricted Subsidiary may
Incur Acquired Indebtedness if the Company's Annual Operating Cash Flow Ratio,
after giving effect to the Incurrence of such Indebtedness and the application
of the proceeds therefrom, would have been less than 8.25 to 1.0 at any time
prior to December 31, 2000 and 7.5 to 1.0 thereafter.
In addition, the foregoing limitations will not apply to the
Incurrence of the following:
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(i) Indebtedness of the Company, any Guarantor or Centennial de Puerto
Rico under the Credit Facility in an aggregate principal amount at any one
time outstanding not to exceed $1.05 billion, reduced by permanent
reductions in commitments in satisfaction of the Net Cash Proceeds
application requirement set forth in Section 4.14; provided, that the
aggregate principal amount of Indebtedness of Centennial de Puerto Rico
pursuant to this clause (i) shall not exceed 25% of the principal amount
which may be borrowed pursuant to this clause (i);
(ii) Indebtedness of the Company (a) pursuant to the Securities or (b)
existing on the Issue Date (other than under the Credit Facility);
(iii) Indebtedness between the Company and any Restricted Subsidiary
of the Company or between Restricted Subsidiaries of the Company, provided
that, in the case of Indebtedness of the Company, such obligations shall be
unsecured and subordinated in all respects to the Holders' rights pursuant
to the Securities; provided, further, that with respect to any Indebtedness
in excess of $250,000, any such Indebtedness is made pursuant to an
intercompany note in the form attached to this Indenture as Exhibit F;
provided, further, that (a) any disposition, pledge or transfer of any such
Indebtedness to a Person (other than a disposition, pledge or transfer to
the Company or a Restricted Subsidiary) shall be deemed to be an Incurrence
of such Indebtedness by the obligor not permitted by this clause (iii), and
(b) any transaction pursuant to which any Restricted Subsidiary, which has
Indebtedness owing to the Company or any other Restricted Subsidiary,
ceases to be a Restricted Subsidiary shall be deemed to be the Incurrence
of Indebtedness by such Restricted Subsidiary that is not permitted by this
clause (iii);
(iv) Capitalized Lease Obligations and Purchase Money Indebtedness of
the Company and any Restricted Subsidiary in an aggregate amount or
aggregate principal amount, as the case may be, outstanding at any time not
to exceed in the aggregate the greater of (x) $25 million and (y) 5% of the
Company's Total Assets; provided that in the case of Purchase Money
Indebtedness, such Indebtedness shall not constitute more than 100% of the
cost (determined in accordance with GAAP) to the Company or such Restricted
Subsidiary of the property purchased or leased with the proceeds thereof;
(v) Indebtedness of the Company or any Restricted Subsidiary arising
from agreements providing for indemnification, adjustment of purchase price
or similar obligations, or from guarantees or letters of credit, surety
bonds or performance bonds securing any obligations of the Company or its
Restricted Subsidiaries pursuant to such agreements, in any case Incurred
in connection with the disposition of any business, assets or Restricted
Subsidiary of the Company to the extent none of the foregoing results in
the obligation to repay an obligation for money borrowed by any Person;
(vi) any guarantee by any Restricted Subsidiary of the Credit Facility
or any other Indebtedness made in accordance with the provisions of Section
4.19;
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(vii) Indebtedness Incurred by the Company or any of its Restricted
Subsidiaries in connection with the acquisition of a new Restricted
Subsidiary, the majority of whose revenues for the most recent twelve
months for which audited or unaudited financial statements are available
are from a Related Business, or of property, businesses or assets which, or
Capital Stock of a Person all or substantially all of whose assets, are of
a type generally used in a Related Business; provided, that the principal
amount (or accreted value, as applicable) of such Indebtedness, together
with any other outstanding Indebtedness Incurred pursuant to this clause
(vii), does not exceed $40 million in the aggregate at any one time
outstanding; and provided, further, that the principal amount of
Indebtedness that may be incurred pursuant to this clause (vii) and clause
(xi) by any individual Restricted Subsidiary that is not a Guarantor shall
not exceed $25 million in the aggregate at any one time outstanding;
(viii) Indebtedness of the Company or any Restricted Subsidiary under
standby letters of credit or reimbursement obligations with respect thereto
issued in the ordinary course of business and consistent with industry
practices; provided that upon the drawing of such letters of credit or the
incurrence of such Indebtedness, such obligations are reimbursed within 30
days following such drawing or incurrence;
(ix) Interest Rate Protection Obligations relating to (A) Indebtedness
of the Company or any Restricted Subsidiary (which Indebtedness is
otherwise permitted to be Incurred under this Section 4.11) or (B)
Indebtedness for which a lender has provided a commitment in an amount
reasonably anticipated to be Incurred by the Company or any Restricted
Subsidiary in the 12 months after such Interest Rate Protection Obligations
has been Incurred; provided, however, that the notional principal amount of
such Interest Rate Protection Obligations does not exceed the principal
amount of the Indebtedness (including Indebtedness subject to commitments)
to which such Interest Rate Protection Obligations relate;
(x) Currency Hedging Agreements relating to (A) Indebtedness of the
Company or any Restricted Subsidiary and/or (B) obligations to purchase or
sell assets or properties, in each case, incurred in the ordinary course of
business of the Company or any Restricted Subsidiary; provided, however,
that such Currency Hedging Agreements do not increase the Indebtedness or
other obligations of the Company or any Restricted Subsidiary outstanding
other than as a result of the fluctuations in foreign currency exchange
rates or by reason of fees, indemnities and compensation payable
thereunder;
(xi) Indebtedness of the Company or any Guarantor (other than as
otherwise permitted pursuant to this Section 4.11) not to exceed $100
million in the aggregate at any one time outstanding; provided, that the
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Company's Restricted Subsidiaries that are not Guarantors may Incur up
to $50 million in the aggregate at any one time outstanding of the $100
million of Indebtedness which may be Incurred pursuant to this clause (xi);
and provided, further, that the principal amount of Indebtedness that may
be Incurred pursuant to this clause (xi) and clause (vii) by any individual
Restricted Subsidiary that is not a Guarantor shall not exceed $25 million
in the aggregate at any one time outstanding;
(xii) Refinancing Indebtedness Incurred to extend, renew, replace or
refund Indebtedness permitted under the second paragraph of this covenant
or clause (ii) of this paragraph (plus the lesser of (a) the stated amount
of any premium or other payment required to be paid in connection with such
a refinancing pursuant to the terms of the Indebtedness being refinanced or
(b) the amount of premium or other payment actually paid at such time to
refinance the Indebtedness, plus, in either case, the amount of expenses of
the Company reasonably incurred in connection with such refinancing); and
(xiii) other Indebtedness of the Company or a Guarantor in an amount
not greater than the aggregate amount of cash contributions made to the
capital of the Company (other than in exchange for Disqualified Capital
Stock); provided that the amount of such cash contributions ("Excluded Cash
Contributions") are designated in an Officer's Certificate as Excluded Cash
Contributions and shall not be included in the computation of the amount of
Restricted Payments which the Company can make pursuant to Section 4.3.
For purposes of determining compliance with this Section 4.11, in the
event that an item of Indebtedness meets the criteria of more than one of
the categories of permitted Indebtedness described in clauses (i) through
(xiii) above or is entitled to be incurred pursuant to the second paragraph
of this covenant, the Company may, in its sole discretion, classify such
item of Indebtedness on the date of incurrence in any manner that complies
with this covenant and such item of Indebtedness will be treated as having
been incurred pursuant to only one of such clauses or pursuant to the
second paragraph hereof.
SECTION 4.12. Limitation on Restricting Subsidiary Dividends.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, assume or suffer to exist any
consensual encumbrance or restriction on the ability of any Restricted
Subsidiary of the Company to pay dividends or make other distributions on the
Capital Stock of any Restricted Subsidiary of the Company or pay or satisfy any
obligation to the Company or any of its Restricted Subsidiaries or otherwise
transfer assets or make or pay loans or advances to the Company or any of its
Restricted Subsidiaries, except encumbrances and restrictions existing under (i)
any applicable law or any governmental or administrative regulation or order,
(ii) Refinancing Indebtedness permitted under this Indenture, provided that the
restrictions contained in the instruments governing such Refinancing
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Indebtedness are no more restrictive in the aggregate than those contained in
the instruments governing the Indebtedness being refinanced immediately prior to
such refinancing, (iii) restrictions with respect solely to a Restricted
Subsidiary of the Company imposed pursuant to a binding agreement which has been
entered into for the sale or disposition of all or substantially all of the
Capital Stock or assets of such Restricted Subsidiary, provided that such
restrictions apply solely to the Capital Stock or assets being sold of such
Restricted Subsidiary, (iv) restrictions contained in any agreement relating to
a Person or real or tangible personal property acquired after the Issue Date
which are not applicable to any Person or property, other than the Person or
property so acquired and which were not put in place in connection with, or in
contemplation of, such acquisition; (v) any agreement (other than those referred
to in clause (iv)) of a Person acquired by the Company or a Restricted
Subsidiary of the Company, which restrictions existed at the time of
acquisition; (vi) contractual encumbrances or restrictions in effect on the
Issue Date and customary encumbrances and restrictions contained in the security
agreements related to the Credit Facility and encumbrances and restrictions
which will be contained in the Credit Facility on the Merger Date as such
encumbrances or restrictions may be amended, provided that such encumbrances or
restrictions as amended are no more restrictive in the aggregate than those
contained in the security agreements and the Credit Facility in effect on the
Merger Date; (vii) this Indenture and the Securities; (viii) Purchase Money
Indebtedness for property acquired in the ordinary course of business to the
extent such encumbrance or restriction relates to the property underlying the
Purchase Money Indebtedness; (ix) Indebtedness of Restricted Subsidiaries
otherwise permitted to be incurred pursuant to the Section 4.11 and Section
4.13, which encumbrances or restrictions in the aggregate with all such previous
encumbrances or restrictions do not restrict greater than 10% of the Company's
Annual Operating Cash Flow on the date of incurrence of the Indebtedness; (x)
restrictions on cash or other deposits or net worth imposed by customers under
contracts entered into in the ordinary course of business; (xi) customary
provisions in joint venture agreements and other similar agreements entered into
in the ordinary course of business to the extent such encumbrance and
restriction relates to the activities and assets of such joint venture or
similar entity and provided that the Annual Operating Cash Flow determined as of
the date of execution of any such joint venture or similar agreement in all such
joint ventures or similar entities which are subject to such encumbrances or
restrictions do not exceed 10% of the Company's Annual Operating Cash Flow on
the date of execution of such joint venture or similar agreement; or (xii)
customary provisions restricting subletting or assignment of any lease entered
into in the ordinary course of business.
SECTION 4.13. Limitation on Liens.
The Company will not, and will not cause or permit any Restricted
Subsidiary to, directly or indirectly, create, incur or affirm any Lien of any
kind securing any Pari Passu Indebtedness or Subordinated Indebtedness
(including any assumption, guarantee or other liability with respect thereto by
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any Restricted Subsidiary) upon any property or assets (including any
intercompany notes) of the Company or any Restricted Subsidiary owned on the
date of this Indenture or acquired after the date of this Indenture, or any
income or profits therefrom, unless the Securities are directly secured equally
and ratably with (or, in the case of Subordinated Indebtedness, prior or senior
thereto, with the same relative priority as the Securities shall have with
respect to such Subordinated Indebtedness) the obligation or liability secured
by such Lien except for Liens (A) securing any Indebtedness which became
Indebtedness pursuant to a transaction permitted under Section 5.1 or securing
Acquired Indebtedness which was created prior to (and not created in connection
with, or in contemplation of) the incurrence of such Pari Passu Indebtedness or
Subordinated Indebtedness (including any assumption, guarantee or other
liability with respect thereto by any Restricted Subsidiary) and which
Indebtedness is permitted under the provisions of Section 4.11 or (B) securing
any Indebtedness incurred in connection with any refinancing, renewal,
substitutions or replacements of any such Indebtedness described in clause (A),
so long as the aggregate principal amount of Indebtedness represented thereby
(or if such Indebtedness provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration of the maturity
thereof, the original issue price of such Indebtedness plus any accreted value
attributable thereto since the original issuance of such Indebtedness) is not
increased by such refinancing by an amount greater than the lesser of (i) the
stated amount of any premium or other payment required to be paid in connection
with such a refinancing pursuant to the terms of the Indebtedness being
refinanced or (ii) the amount of premium or other payment actually paid at such
time to refinance the Indebtedness, plus, in either case, the amount of expenses
of the Company incurred in connection with such refinancing, provided, however,
that in the case of clauses (A) and (B), any such Lien only extends to the
assets that were subject to such Lien securing such Indebtedness prior to the
related acquisition by the Company or its Restricted Subsidiaries.
Notwithstanding the foregoing, any Lien securing the Securities granted pursuant
to this Section 4.13 shall be automatically and unconditionally released and
discharged upon the release by the holders of the Pari Passu Indebtedness or
Subordinated Indebtedness described above of their Lien on the property or
assets of the Company or any Restricted Subsidiary (including any deemed release
upon payment in full of all obligations under such Indebtedness), at such time
as the holders of all such Pari Passu Indebtedness or Subordinated Indebtedness
also release their Lien on the property or assets of the Company or such
Restricted Subsidiary, or upon any sale, exchange or transfer to any Person not
an Affiliate of the Company of the property or assets secured by such Lien, or
of all of the Capital Stock held by the Company or any Restricted Subsidiary in,
or all or substantially all the assets of, any Restricted Subsidiary creating
such Lien.
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SECTION 4.14. Limitation on Asset Sales and Sales of Subsidiary Stock.
The Company will not, and will not permit any of its Restricted
Subsidiaries to, in one or a series of related transactions, convey, sell,
transfer, assign or otherwise dispose of, directly or indirectly, any of its
property, businesses or assets, including by merger or consolidation or sale and
leaseback transaction, and including any sale or other transfer or issuance of
any Capital Stock of any Restricted Subsidiary of the Company, whether by the
Company or a Restricted Subsidiary (an "Asset Sale"), unless (1)(a) within one
year after the date of such Asset Sale, an amount equal to the Net Cash Proceeds
therefrom (the "Asset Sale Offer Amount") are applied to the optional redemption
of the Securities in accordance with the terms of this Indenture and other
Indebtedness of the Company ranking on a parity with the Securities from time to
time outstanding with similar provisions requiring the Company to make an offer
to purchase or to redeem such Indebtedness with the proceeds from asset sales,
pro rata in proportion to the respective principal amounts (or accreted values
in the case of Indebtedness issued with an original issue discount) of the
Securities and such other Indebtedness then outstanding or to the repurchase of
the Securities and such other Indebtedness pursuant to an irrevocable,
unconditional offer (the "Asset Sale Offer") to repurchase such Indebtedness at
a purchase price (the "Asset Sale Offer Price") of 100% of the principal amount
thereof in the case of the Securities or 100% of the principal amount (or
accreted value in the case of Indebtedness issued with an original issue
discount) of such Indebtedness, plus, in each case, accrued interest to the date
of payment, made within one year of such Asset Sale, or (b) within one year of
such Asset Sale, the Asset Sale Offer Amount is (i) invested (or committed,
pursuant to a binding commitment subject only to reasonable, customary closing
conditions, to be invested, and in fact is so invested, within an additional 90
days) in tangible assets and property (other than notes, obligations or
securities), which in the good faith reasonable judgment of the Company are of a
type used in a Related Business, or Capital Stock of a Person (which, if such
Person becomes a Subsidiary of the Company by virtue of such Asset Sale, shall
initially be designated a Restricted Subsidiary) all or substantially all of
whose assets and property (in the good faith reasonable judgment of the Company)
are of a type used in a Related Business (provided that, with respect to such
Capital Stock, all of the requirements of the last proviso of clause (v) of the
following paragraph shall have been satisfied) or (ii) used to permanently
retire Senior Indebtedness of the Company or any Guarantor or Indebtedness of
any Restricted Subsidiary (which is not a Guarantor), (2) with respect to any
transaction or related series of transactions of securities, property or assets
with an aggregate Fair Market Value in excess of $2,500,000, at least 75% of the
value of consideration for the assets disposed of in such Asset Sale (excluding
(a) Senior Indebtedness under a bank credit facility (and any Refinancing
Indebtedness issued to refinance any such Indebtedness) or any Indebtedness of a
Restricted Subsidiary in each case that is assumed by a transferee which
assumption permanently reduces the amount of Indebtedness outstanding on the
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Issue Date and permitted to have been Incurred pursuant to Section 4.11
(including that in the case of a revolver or similar arrangement that makes
credit available, such commitment is permanently reduced by such amount), (b)
Purchase Money Indebtedness secured exclusively by the assets subject to such
Asset Sale which is assumed by a transferee and (c) marketable securities that
are promptly converted into cash or Cash Equivalents) consists of cash or Cash
Equivalents, provided that any cash or Cash Equivalents received within 12
months following any such Asset Sale upon conversion of any property or assets
(other than in the form of cash or Cash Equivalents) received in consideration
of such Asset Sale shall be applied promptly in the manner required of Net Cash
Proceeds of any such Asset Sale as set forth above (provided further that the
Company and its Restricted Subsidiaries shall not be required to receive any
cash in connection with the transfer or contribution of assets to a joint
venture), and (3) the Board of Directors of the Company determines in good faith
that the Company or such Restricted Subsidiary, as applicable, would receive
Fair Market Value in consideration of such Asset Sale. An Asset Sale Offer may
be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied
to the uses set forth in (1)(b) above exceeds $15,000,000 and that each Asset
Sale Offer shall remain open for 20 Business Days following its commencement and
no longer, except as otherwise required by applicable law (the "Asset Sale Offer
Period"). Upon expiration of the Asset Sale Offer Period, the Company shall
apply the Asset Sale Offer Amount, plus an amount equal to accrued interest to
the purchase of all Indebtedness properly tendered (on a pro rata basis as
described above if the Asset Sale Offer Amount is insufficient to purchase all
Indebtedness so tendered) at the Asset Sale Offer Price (together with accrued
interest).
Notwithstanding the foregoing provisions of the prior paragraph:
(i) the Company and its Restricted Subsidiaries may, in the ordinary
course of business, convey, sell, lease, transfer, assign or otherwise
dispose of assets acquired and held for resale in the ordinary course of
business;
(ii) the Company and its Restricted Subsidiaries may convey, sell,
lease, transfer, assign or otherwise dispose of assets pursuant to and in
accordance with Section 5.1;
(iii) the Company and its Restricted Subsidiaries may sell or dispose
of damaged, worn out or other obsolete property in the ordinary course of
business so long as such property is no longer necessary for the proper
conduct of the business of the Company or such Restricted Subsidiary, as
applicable;
(iv) the Company and its Restricted Subsidiaries may convey, sell,
lease, transfer, assign or otherwise dispose of assets to the Company or
any of its Restricted Subsidiaries in accordance with the terms of this
Indenture; and
(v) the Company and its Restricted Subsidiaries may, in the ordinary
course of business (or, if otherwise than in the ordinary course of
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business, in the case of exchanges in excess of $15 million upon receipt of
a favorable written opinion by an independent financial advisor of national
reputation as to the fairness from a financial point of view to the Company
or such Restricted Subsidiary of the proposed transaction), exchange all or
a portion of its property, businesses or assets for property, businesses or
assets which, or Capital Stock of a Person all or substantially all of
whose assets, are of a type used in the business of the Company on the date
of this Indenture or a Related Business (provided that such Person shall
initially be designated a Restricted Subsidiary if such Person becomes a
Subsidiary of the Company by virtue of such Asset Sale), or a combination
of any such property, businesses or assets, or Capital Stock of such a
Person and cash or Cash Equivalents; provided that (i) a majority of the
Disinterested Directors of the Board of Directors of the Company shall have
approved a resolution of the Board of Directors that such exchange is fair
to the Company or such Restricted Subsidiary, as the case may be, and (ii)
any cash or Cash Equivalents received pursuant to any such exchange shall
be applied in the manner applicable to Net Cash Proceeds from an Asset Sale
as set forth pursuant to the provisions of the immediately preceding
paragraph of this Section 4.14; and provided, further, that any Capital
Stock of a Person received in an Asset Sale pursuant to this clause (v)
shall be owned directly by the Company or a Restricted Subsidiary and, when
combined with the Capital Stock of such Person already owned by the Company
and its Restricted Subsidiaries, shall constitute a majority of the voting
power and Capital Stock of such Person.
Restricted Payments that are made in compliance with Section 4.3 shall
not be deemed to be Asset Sales.
Any Asset Sale Offer shall be made in compliance with all applicable
laws, rules, and regulations, including, if applicable, Regulation 14E of the
Exchange Act and the rules and regulations thereunder and all other applicable
Federal and state securities laws, and any provisions of this Indenture that
conflict with such laws shall be deemed to be superseded by the provisions of
such laws.
The Company shall accumulate all Net Cash Proceeds and the aggregate
amount of such accumulated Net Cash Proceeds not used for the purposes permitted
and within the time provided by this Section 4.14 is referred to as the
"Accumulated Amount."
For purposes of this Section 4.14, "Minimum Accumulation Date" means
each date on which the Accumulated Amount exceeds $5,000,000. Not later than 10
Business Days after each Minimum Accumulation Date, the Company will commence an
Asset Sale Offer to the Holders and holders of other Indebtedness of the Company
ranking pari passu in right of payment with the Securities from time to time
outstanding with similar provisions requiring the Company to make an offer to
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purchase or to redeem such Indebtedness with the proceeds from asset sales to
purchase, on a pro rata basis in proportion to the respective principal amounts
(or accreted values in the case of Indebtedness issued with an original issue
discount) of the Securities and such other Indebtedness then outstanding, for
cash, Securities and such other Indebtedness that will have an aggregate
principal amount (and accreted value, as applicable) on the purchase date equal
to the Accumulated Amount, at a purchase price equal to the Asset Sale Offer
Price, plus accrued but unpaid interest, if any, to, and including, the date of
purchase (the "Asset Sale Purchase Date"), which date shall be no later than 30
Business Days after the first date on which the Asset Sale Offer is required to
be made. Notice of an Asset Sale Offer will be sent 20 Business Days prior to
the close of business on the earlier of (a) the third Business Day prior to the
Asset Sale Purchase Date and (b) the third Business Day following the expiration
of the Asset Sale Offer (such earlier date being the "Final Put Date"), by
first-class mail, by the Company to each Holder at its registered address, with
a copy to the Trustee. The notice to the Holders will contain all information,
instructions and materials required by applicable law or otherwise material to
such Holders' decision to tender Securities pursuant to the Asset Sale Offer.
The notice to Holders, which (to the extent consistent with this Indenture)
shall govern the terms of the Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made pursuant to such notice
and this Section 4.14;
(2) the Asset Sale Offer Amount, the Asset Sale Offer Price
(including the amount of accrued and unpaid interest), the Final
Put Date, and the Asset Sale Purchase Date, which Asset Sale
Purchase Date shall be on or prior to 40 Business Days following
the Minimum Accumulation Date;
(3) that any Security or portion thereof not tendered or accepted for
payment will continue to accrue interest;
(4) that, unless the Company defaults in depositing cash with the
Paying Agent in accordance with the penultimate paragraph of this
Section 4.14 or such payment is otherwise prevented, any
Security, or portion thereof, accepted for payment pursuant to
the Asset Sale Offer shall cease to accrue interest after the
Asset Sale Purchase Date;
(5) that Holders electing to have a Security, or portion thereof,
purchased pursuant to an Asset Sale Offer will be required to
surrender the Security, with the form entitled "Option of Holder
to Elect Purchase" on the reverse of the Security completed, to
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the Paying Agent (which may not for purposes of this Section
4.14, notwithstanding anything this Indenture to the contrary, be
the Company or any Affiliate of the Company) at the address
specified in the notice prior to the close of business on the
Final Put Date;
(6) that Holders will be entitled to withdraw their elections, in
whole or in part, if the Paying Agent (which may not for purposes
of this Section 4.14, notwithstanding any other provision of this
Indenture, be the Company or any Affiliate of the Company)
receives, up to the close of business on the Final Put Date, a
telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Securities
the Holder is withdrawing and a statement that such Holder is
withdrawing his election to have such principal amount of
Securities purchased;
(7) that if Indebtedness in a principal amount in excess of the
principal amount of Securities to be acquired pursuant to the
Asset Sale Offer is tendered and not withdrawn, the Company shall
purchase Indebtedness on a pro rata basis in proportion to the
respective principal amounts (or accreted values in the case of
Indebtedness issued with an original issue discount) thereof
(with such adjustments as may be deemed appropriate by the
Company so that only Securities in denominations of $1,000 or
integral multiples of $1,000 shall be acquired);
(8) that Holders whose Securities were purchased only in part will be
issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; and
(9) a brief description of the circumstances and relevant facts
regarding such Asset Sales.
On or before an Asset Sale Purchase Date, the Company shall (i) accept
for payment Securities or portions thereof properly tendered and not properly
withdrawn pursuant to the Asset Sale Offer on or before the Final Put Date (on a
pro rata basis if required pursuant to paragraph (7) hereof), (ii) deposit with
the Paying Agent cash sufficient to pay the Asset Sale Offer Price for all
Securities or portions thereof so tendered and accepted and (iii) deliver to the
Trustee Securities so accepted together with an Officers' Certificate stating
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the Securities or portions thereof being purchased by the Company. The Paying
Agent shall on each Asset Sale Purchase Date mail or deliver to Holders of
Securities so accepted payment in an amount equal to the Asset Sale Offer Price
for such Securities, and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Security not so accepted
shall be promptly mailed or delivered by the Company to the Holder thereof. The
Trustee shall not be deemed to have notice of any Asset Sale Purchase Date
unless a Trust Officer receives notice thereof from the Company or any Holder.
If the amount required to acquire all Indebtedness properly tendered
by Holders pursuant to the Asset Sale Offer (the "Acceptance Amount") made
pursuant to this Section 4.14 is less than the Asset Sale Offer Amount, the
excess of the Asset Sale Offer Amount over the Acceptance Amount may be used by
the Company for general corporate purposes without restriction, unless otherwise
restricted by the other provisions of this Indenture. Upon consummation of any
Asset Sale Offer made in accordance with the terms of this Indenture, the
Accumulated Amount will be reduced to zero irrespective of the amount of
Indebtedness tendered pursuant to the Asset Sale Offer.
SECTION 4.15. Waiver of Stay, Extension or Usury Laws.
The Issuers covenant (to the extent that they may lawfully do so) that
they will not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury law
or other law which would prohibit or forgive the Issuers from paying all or any
portion of the principal of, premium of, or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force, or
which may affect the covenants or the performance of this Indenture; and (to the
extent that it may lawfully do so) the Issuers hereby expressly waive all
benefit or advantage of any such law, and covenant that they will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 4.16. Limitation on Senior Subordinated Indebtedness.
Each Issuer will not, and will not permit or cause any Guarantor to,
directly or indirectly, create, incur, issue, assume, guarantee or otherwise in
any manner become directly or indirectly liable for or with respect to or
otherwise permit to exist any Indebtedness that is subordinate in right of
payment to any Indebtedness of such Issuers or such Guarantor, as the case may
be, unless such Indebtedness is also pari passu with the Securities or the
Guarantee of such Guarantor or subordinated in right of payment to the
Securities or such Guarantee at least to the same extent as the Securities or
such Guarantee are subordinated in right of payment to Senior Indebtedness or
Senior Indebtedness of such Guarantor, as the case may be, as set forth in this
Indenture.
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SECTION 4.17. Limitation on Unrestricted Subsidiaries.
The Company may designate any Subsidiary (other than a Guarantor) as
an "Unrestricted Subsidiary" under this Indenture (a "Designation") only if:
(a) no Default shall have occurred and be continuing at the time of or
after giving effect to such Designation;
(b) the Company would be permitted to make an Investment at the time
of Designation (assuming the effectiveness of such Designation) pursuant to
Section 4.3 above in an amount (the "Designation Amount") equal to the greater
of (1) the net book value of the Company's interest in such Subsidiary
calculated in accordance with GAAP or (2) the Fair Market Value of the Company's
interest in such Subsidiary as determined in good faith by the Company's Board
of Directors;
(c) such Unrestricted Subsidiary does not own any Capital Stock in any
Restricted Subsidiary of the Company which is not simultaneously being
designated an Unrestricted Subsidiary;
(d) such Unrestricted Subsidiary is not liable, directly or
indirectly, with respect to any Indebtedness other than Unrestricted Subsidiary
Indebtedness, provided that an Unrestricted Subsidiary may provide a Guarantee
for the Securities; and
(e) such Unrestricted Subsidiary is not a party to any agreement,
contract, arrangement or understanding at such time with the Company or any
Restricted Subsidiary unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might be obtained at the time from Persons
who are not Affiliates of the Company or, in the event such condition is not
satisfied, the value of such agreement, contract, arrangement or understanding
to such Unrestricted Subsidiary shall be deemed a Restricted Payment.
In the event of any such Designation, the Company shall be deemed to
have made an Investment constituting a Restricted Payment pursuant to Section
4.3 for all purposes of this Indenture in the Designation Amount.
The Company shall not and shall not cause or permit any Restricted
Subsidiary to at any time (x) provide credit support for (provided that
operational contracts in the ordinary course of business shall not be deemed
credit support), or subject any of its property or assets (other than the
Capital Stock of any Unrestricted Subsidiary) to the satisfaction of, any
Indebtedness of any Unrestricted Subsidiary (including any undertaking,
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agreement or instrument constituting such Indebtedness) (other than Permitted
Investments in Unrestricted Subsidiaries) or (y) be directly or indirectly
liable for any Indebtedness of any Unrestricted Subsidiary. For purposes of the
foregoing, the Designation of a Subsidiary of the Company as an Unrestricted
Subsidiary shall be deemed to be the Designation of all of the Subsidiaries of
such Subsidiary as Unrestricted Subsidiaries.
The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") if:
(a) no Default shall have occurred and be continuing at the time of
and after giving effect to such Revocation;
(b) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if incurred at such
time, have been permitted to be incurred for all purposes of this Indenture; and
(c) unless such redesignated Subsidiary shall not have any
Indebtedness outstanding (other than Indebtedness that would be Permitted
Indebtedness), immediately after giving effect to such proposed Revocation, and
after giving pro forma effect to the incurrence of any such Indebtedness of such
redesignated Subsidiary as if such Indebtedness was incurred on the date of the
Revocation, the Company could incur $1.00 of additional Indebtedness (other than
Permitted Indebtedness) pursuant to Section 4.11.
All Designations and Revocations must be evidenced by a resolution of
the Board of Directors of the Company delivered to the Trustee certifying
compliance with the foregoing provisions.
SECTION 4.18. Limitation on Lines of Business.
Neither the Company nor any of its Restricted Subsidiaries shall
directly or indirectly engage in any line or lines of business activity other
than that which, in the reasonable, good faith judgment of the Board of
Directors of the Company, is a Related Business.
SECTION 4.19. Limitation on Issuances of Guarantees.
(a) The Company will not cause or permit any Restricted Subsidiary
(which is not a Guarantor), directly or indirectly, to guarantee, assume or in
any other manner become liable with respect to any Indebtedness of the Company
or any Restricted Subsidiary (other than under the Credit Facility, except for
any Indebtedness under the Credit Facility constituting Pari Passu Indebtedness
or Subordinated Indebtedness) unless such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture to this Indenture providing for a
Guarantee of the Securities on the same terms as the guarantee of such
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Indebtedness except that (A) such guarantee need not be secured unless required
pursuant to Section 4.13, (B) if such Indebtedness is by its terms Senior
Indebtedness, any such assumption, guarantee or other liability of such
Restricted Subsidiary with respect to such Indebtedness shall be senior to such
Restricted Subsidiary's Guarantee of the Securities to the same extent as such
Senior Indebtedness is senior to the Securities and (C) if such Indebtedness is
by its terms expressly subordinated to the Securities, any such assumption,
guarantee or other liability of such Restricted Subsidiary with respect to such
Indebtedness shall be subordinated to such Restricted Subsidiary's Guarantee of
the Securities at least to the same extent as such Indebtedness is subordinated
to the Securities.
(b) Notwithstanding the foregoing, any Guarantee by a Restricted
Subsidiary of the Securities shall provide by its terms that it (and all Liens
securing the same) shall be automatically and unconditionally released and
discharged upon (i) any sale, exchange or transfer, to any Person not an
Affiliate of the Company, of all of the Company's Capital Stock in, or all or
substantially all the assets of, such Restricted Subsidiary, which transaction
is in compliance with the terms of this Indenture and such Restricted Subsidiary
is released from all guarantees, if any, by it of other Indebtedness of the
Company or any Restricted Subsidiaries or (ii) the release by the holders of the
Indebtedness of the Company described in clause (a) above or their guarantee by
such Restricted Subsidiary (including any deemed release upon payment in full of
all obligations under such Indebtedness), which resulted in the Securities being
guaranteed by such Restricted Subsidiary, at such time as (A) no other
Indebtedness of the Company has been secured or guaranteed by such Restricted
Subsidiary or (B) the holders of all such other Indebtedness which is guaranteed
by such Restricted Subsidiary also release their guarantee by such Restricted
Subsidiary (including any deemed release upon payment in full of all obligations
under such Indebtedness).
SECTION 4.20. Limitation on Activities Prior to the Merger.
Prior to consummation of the Merger, the Issuers may not, and must
cause their Subsidiaries not to, incur any Indebtedness or engage in any
activities other than in connection with the Merger and the Credit Facility.
SECTION 4.21. Transfer of Stock to the Company.
Immediately following consummation of the Merger, Centennial shall
cause the Capital Stock of all of its existing Subsidiaries and Minority
Cellular Investment Interests to be contributed to the Company and Centennial
shall immediately thereafter have no material assets other than its Investment
in the Capital Stock of the Company.
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SECTION 4.22. Amendments to Mezzanine Financing.
The Mezzanine Financing shall be in substantially the form attached to
this Indenture and Centennial shall not amend the terms of the Mezzanine
Financing in a manner adverse to the Holders.
SECTION 4.23. Waiver of Compliance With Certain Covenants. The Issuers
may omit in any particular instance to comply with any covenant or condition set
forth in Sections 4.3 and 4.8 through 4.22 if, before or after the time for such
compliance, the holders of not less than a majority in aggregate principal
amount of the Securities at the time Outstanding shall, by act of such holders,
waive such compliance in such instance with such covenant or provision, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Issuers and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1. Limitation on Merger, Sale or Consolidation.
The Company will not consolidate with or merge with or into another
Person, or sell, lease, convey, transfer or otherwise dispose of all or
substantially all of its properties and assets (computed on a consolidated
basis), whether in a single transaction or a series of related transactions, to
another Person or group of affiliated Persons, and the Company will not permit
any Restricted Subsidiary to enter into any such transaction or series of
transactions which would result in a sale, lease, conveyance, transfer or other
disposition of all or substantially all of the properties and assets of the
Company on a consolidated basis, unless (i) either (a) the Company is the
continuing entity or (b) the resulting, surviving or transferee entity is an
entity organized under the laws of the United States, any state thereof or the
District of Columbia and expressly assumes by supplemental indenture all of the
obligations of the Company in connection with the Securities, this Indenture and
the Registration Rights Agreement, as the case may be, and the Securities, this
Indenture and the Registration Rights Agreement will remain in full force and
effect as so supplemented (and any Guarantee shall be confirmed as applied to
the surviving entity's obligations); (ii) no Default or Event of Default shall
exist or shall occur immediately after giving effect on a pro forma basis (and
treating any Indebtedness not previously an obligation of the Company or any of
its Restricted Subsidiaries which becomes the obligation of the Company or any
of its Restricted Subsidiaries as a result of such transaction as having been
incurred at the time of such transaction) to such transaction; (iii) immediately
before and immediately after giving effect to such transaction on a pro forma
basis (on the assumption that the transaction occurred on the first day of the
four-quarter period for which financial statements are available ending
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immediately prior to the consummation of such transaction with the appropriate
adjustments with respect to the transaction being included in such pro forma
calculation), either the Company or resulting surviving or transferee entity
would immediately thereafter be permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Annual Operating Cash Flow Ratio provision set
forth in the second paragraph Section 4.11 or such Annual Operating Cash Flow
Ratio would be lower than such ratio immediately prior to such transaction; (iv)
at the time of the transaction any co-obligor, unless it is the other party to
the transaction described above, will have by supplemental indenture confirmed
that it remains a co-obligor under this Indenture and the Securities; (v) at the
time of the transaction each Guarantor, if any, unless it is the other party to
the transaction described above, will have by supplemental indenture confirmed
that its Guarantee shall apply to such Person's obligations under this Indenture
and the Securities; and (vi) at the time of the transaction the Company or the
resulting surviving or transferee entity will have delivered, or caused to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an officers' certificate and an opinion of counsel, each to the effect
that such consolidation, merger, transfer, sale, assignment, conveyance,
transfer, lease or other transaction and the supplemental indenture in respect
thereof comply with this Indenture and that all conditions precedent therein
provided for relating to such transaction have been complied with.
Notwithstanding the foregoing, any Restricted Subsidiary may merge
with and into any other Restricted Subsidiary or the Company.
Immediately upon consummation of the Merger, Finance Corp. shall merge
with and into Centennial and Centennial shall assume all of Finance Corp.'s
obligations under this Indenture and the Securities pursuant to a supplemental
indenture and assumption agreement (the "Assumption Agreement") in the form
attached hereto as Exhibit G.
Centennial will not, in a single transaction or through a series of
related transactions, consolidate with or merge with or into any other Person
(other than (i) the Company or any Guarantor, (ii) CCW Acquisition Corp. in
connection with the Merger or (iii) Finance Corp. upon consummation of the
Merger) or sell, assign, convey, transfer, lease or otherwise dispose of all or
substantially all of its properties and assets to any Person or group of Persons
(other than the Company or any Guarantor) unless at the time and after giving
effect thereto (i) either (a) Centennial will be the continuing corporation or
(b) the Person (if other than Centennial) formed by such consolidation or into
which Centennial is merged or the Person which acquires by sale, assignment,
conveyance, transfer, lease or disposition all or substantially all of the
properties and assets of Centennial on a Consolidated basis will be a
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corporation duly organized and validly existing under the laws of the United
States of America, any state thereof or the District of Columbia and such Person
expressly assumes, by a supplemental indenture, in a form reasonably
satisfactory to the Trustee, all the obligations of Centennial under the
Securities and this Indenture and the Registration Rights Agreement and such
Security, Indenture and Registration Rights Agreement will remain in full force
and effect; (ii) immediately before and immediately after giving effect to such
transaction on a pro forma basis, no Default or Event of Default will have
occurred and be continuing; and (iii) at the time of the transaction Centennial
or the surviving entity will have delivered, or caused to be delivered, to the
Trustee, in form and substance reasonably satisfactory to the Trustee, an
officers' certificate and an opinion of counsel, each to the effect that such
consolidation, merger, transfer, sale, assignment, conveyance, lease or other
transaction and the supplemental indenture in respect thereof comply with this
Indenture and that all conditions precedent therein provided for relating to
such transaction have been complied with. In the event that Centennial shall
merge or consolidate with or into the Company, the provisions of the first
paragraph of this Section are also required to be satisfied.
SECTION 5.2. Successor Corporation Substituted.
Upon any consolidation or merger or any transfer (other than a lease)
of all or substantially all of the assets of the Company or Centennial, as the
case may be in accordance with the foregoing, the successor corporation formed
by such consolidation or into which the Company or Centennial, as the case may
be, is merged or to which such transfer is made, shall succeed to, and be
substituted for, and may exercise every right and power of, the Company or
Centennial, as the case may be, under this Indenture with the same effect as if
such successor entity had been named herein as the Company or Centennial, as the
case may be, and the Company or Centennial, as the case may be (except in
connection with a transfer that results in the transfer of assets constituting
or accounting for less than 95% of the consolidated assets (as of the last
balance sheet available), revenues, or Annual Operating Cash Flow of the Company
or Centennial, as the case may be (as of the last twelve month period for which
financial statements are available)), shall be released from the obligations
under the Securities and this Indenture.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
SECTION 6.1. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
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(1) the failure by Finance Corp. or the Company to pay any
installment of interest on the Securities as and when the same
becomes due and payable and, with respect to any installment of
interest after the first three Interest Payment Dates, the
continuance of such failure for 30 days (whether or not
prohibited by Article XII of this Indenture);
(2) the failure by Finance Corp. or the Company to pay all or any
part of the principal, or premium, if any, on the Securities when
and as the same becomes due and payable at maturity, redemption,
by acceleration or otherwise, including, without limitation,
payment of the Change of Control Purchase Price in accordance
with Article XI or the Asset Sale Offer Price in accordance with
Section 4.14 (whether or not prohibited by Article XII of this
Indenture);
(3) the failure by Finance Corp. or the Company to observe or perform
any other covenant or agreement contained in the Securities or
this Indenture (other than a default in the performance of any
covenant or agreement which is specifically dealt with elsewhere
in this Section 6.1), and the continuance of such failure for a
period of 30 days after written notice is given to the Company by
the Trustee or to the Company and the Trustee by Holders of at
least 25% in aggregate principal amount of the Securities
outstanding, specifying such default or breach, requiring it to
be remedied and stating that such notice is a "Notice of Default"
hereunder;
(4) there shall have been the entry by a court of competent
jurisdiction of a (a) decree or order for relief in respect of
Centennial, the Company, or any Significant Restricted
Subsidiaries in an involuntary case or proceeding under the
applicable Bankruptcy Law or (b) a decree or order adjudging
Centennial, the Company, or any Significant Restricted Subsidiary
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment or composition of or in respect of Centennial, the
Company, or any Significant Restricted Subsidiary under any
applicable federal or state law, or appointing a Custodian,
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of Centennial, the Company or any Significant
Restricted Subsidiary or of any substantial part of their
respective properties, or ordering the winding up or liquidation
of their affairs, and any such decree or order for relief shall
continue to be in effect, or any such other decree or order shall
be unstayed and in effect, for a period of 60 consecutive days;
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(5) (a) Centennial, the Company, or any Significant Restricted
Subsidiary commences a voluntary case or proceeding under any
applicable Bankruptcy Law or any other case or proceeding to be
adjudicated bankrupt or insolvent, (b) Centennial, the Company or
any Significant Restricted Subsidiary consents to the entry of a
decree or order for relief in respect of Centennial, the Company
or such Significant Restricted Subsidiary in an involuntary case
or proceeding under any applicable Bankruptcy Law or to the
commencement of any bankruptcy or insolvency case or proceeding
against it, (c) Centennial, the Company, or any Significant
Restricted Subsidiary files a petition or answer or consent
seeking reorganization or relief under any applicable federal or
state law, (d) Centennial, the Company, or any Significant
Restricted Subsidiary (I) consents to the filing of such petition
or the appointment of, or taking possession by, a Custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of Centennial, the Company, or such Significant
Restricted Subsidiary or of any substantial part of their
respective properties, (II) makes an assignment for the benefit
of creditors or (III) admits in writing its inability to pay its
debts generally as they become due or (e) Centennial, the Company
or any Significant Restricted Subsidiary takes any corporate
action in furtherance of any such actions in this paragraph (5);
(6) any Guarantee of a Significant Restricted Subsidiary shall for
any reason cease to be, or shall for any reason be asserted in
writing by any Guarantor or the Company not to be, in full force
and effect and enforceable in accordance with its terms, except
to the extent contemplated by this Indenture and any such
Guarantee, or Finance Corp. shall for any reason cease to be, or
shall for any reason be asserted in writing not to be, a
co-obligor pursuant to the Securities, except to the extent
contemplated by this Indenture and the Securities;
(7) one or more defaults in any Indebtedness for money borrowed by
Finance Corp., the Company or any of their Restricted
Subsidiaries (or the payment of which is guaranteed by Finance
Corp., the Company or any of their Restricted Subsidiaries),
whether such Indebtedness or guarantee now exists or is created
after the Issue Date, which default results from the failure to
pay Indebtedness at its final maturity date or results in the
acceleration of such
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Indebtedness prior to its express maturity and, in each case, the
principal amount of any such Indebtedness, together with the
principal amount of any other such Indebtedness which was not
paid at its final maturity date or the maturity of which has been
so accelerated, aggregates $20,000,000 or more; and
(8) final unsatisfied judgments, orders or decrees (not subject to
appeal) of any court or regulatory or administrative agency
aggregating in excess of $20,000,000 (exclusive of any portion of
any such payment covered by insurance, if and to the extent the
insurer has acknowledged in writing its liability therefor), at
any one time rendered against Finance Corp., the Company or any
of its Restricted Subsidiaries and not stayed, bonded or
discharged within 60 days.
SECTION 6.2. Acceleration of Maturity Date; Rescission and Annulment.
If an Event of Default occurs and is continuing (other than an Event
of Default specified in Section 6.1(4) and (5) relating to Centennial, the
Company or any Significant Restricted Subsidiary), then in every such case,
unless the principal of all of the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities then outstanding, by notice in writing to the
Company (and to the Trustee if given by Holders) (an "Acceleration Notice"), may
declare all principal of the Securities (or the Change of Control Purchase Price
if the Event of Default includes failure to pay the Change of Control Purchase
Price) (or the Special Redemption Price in connection with any Special Mandatory
Redemption, if the Event of Default relates to failure to make payment in
connection with the Special Mandatory Redemption), determined as set forth
below, including in each case accrued interest thereon to be due and payable
immediately; provided that so long as the Credit Facility shall be in full force
and effect, if an Event of Default shall have occurred and be continuing (other
than as specified in clauses (4) or (5) with respect to Centennial, the Company
or any Significant Restricted Subsidiary), any such acceleration shall not be
effective until the earlier to occur of (x) five business days following
delivery of a written notice of such acceleration of the Securities to the agent
under the Credit Facility and (y) the acceleration of any Indebtedness under the
Credit Facility. If an Event of Default specified in clauses (4) and (5) above
relating to Centennial, the Company or any Restricted Subsidiary occurs, all
principal and accrued interest thereon will be immediately due and payable on
all outstanding Securities without any declaration or other act on the part of
Trustee or the Holders.
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At any time after such a declaration of acceleration being made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article VI, the Holders of a
majority in aggregate principal amount of then outstanding Securities, by
written notice to the Company and the Trustee, may rescind, on behalf of all
Holders, any such declaration of acceleration if:
(1) the Issuers have paid or deposited with the Trustee cash
sufficient to pay (A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, applicable to any
Securities which would become due otherwise than by such
declaration of acceleration, and interest thereon at the rate
borne by the Securities, (C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate
borne by the Securities, (D) all sums paid or advanced by the
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and
(2) all Events of Default, other than the non-payment of the
principal of, premium, if any, and interest on Securities which
have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 6.12, including, if
applicable, any Event of Default relating to the covenants
contained in Section 11.1.
Notwithstanding the previous sentence of this Section 6.2, no waiver shall be
effective against any Holder for any Event of Default or event which with notice
or lapse of time or both would be an Event of Default with respect to any
covenant or provision which cannot be modified or amended without the consent of
the Holder of each outstanding Security affected thereby, unless all such
affected Holders agree, in writing, to waive such Event of Default or other
event. No such waiver shall cure or waive any subsequent default or impair any
right consequent thereon.
SECTION 6.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Issuers covenant that if an Event of Default in payment of
principal, premium, or interest specified in clause (1) or (2) of Section 6.1
occurs and is continuing, the Issuers shall, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal, premium (if any) and interest,
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate borne by the Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the reasonable costs and expenses
of collection, including compensation to, and expenses, disbursements and
advances of the Trustee, its agents and counsel.
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If the Issuers fail to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust in favor of the
Holders, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Issuers or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Issuers or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 6.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Issuers or any other obligor upon the
Securities or the property of the Issuers or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Issuers for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise to take any and
all actions under the TIA, including (1) to file and prove a claim for the whole
amount of principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agent and counsel) and of the Holders allowed in such judicial
proceeding, and (2) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any Custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.7.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment, or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.5. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust in favor of the Holders, and any recovery of
judgment shall, after provision for the payment of compensation to, and
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 6.6. Priorities.
Any money collected by the Trustee pursuant to this Article VI shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal, premium
(if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to
Section 7.7;
SECOND: To the Holders in payment of the amounts then due and
unpaid for principal of, premium (if any) and interest on,
the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts
due and payable on such Securities for principal, premium
(if any) and interest, respectively; and
THIRD: To the Issuers.
SECTION 6.7. Limitation on Suits.
No Holder of any Security shall have any right to order or direct the
Trustee to institute any proceeding, judicial or otherwise, with respect to this
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Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless (A) such Holder has previously given written notice to
the Trustee of a continuing Event of Default; (B) the Holders of not less than
25% in principal amount of then outstanding Securities shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder; (C) such Holder or Holders have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities to be incurred or reasonably probable to be incurred in
compliance with such request; (D) the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute any such
proceeding; and (E) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the outstanding Securities; it being understood and intended
that no one or more Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect, disturb
or prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all the Holders.
SECTION 6.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision of this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, and premium (if any) and accrued interest
on, such Security on the Maturity Date of such payments as expressed in such
Security (in the case of redemption, the Redemption Price on the applicable
Redemption Date, in the case of the Change of Control Purchase Price, on the
applicable Change of Control Purchase Date, and in the case of an Asset Sale
Offer, the Asset Sale Offer Price on the Asset Sale Purchase Date), and to
institute suit for the enforcement of any such payment after such respective
dates, and such rights shall not be impaired without the consent of such Holder.
SECTION 6.9. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
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SECTION 6.10. Delay or Omission Not Waiver.
No delay or omission by the Trustee or by any Holder of any Security
to exercise any right or remedy arising upon any Event of Default shall impair
the exercise of any such right or remedy or constitute a waiver of any such
Event of Default. Every right and remedy given by this Article VI or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 6.11. Control by Holders.
The Holder or Holders of a majority in aggregate principal amount of
then outstanding Securities will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred upon the Trustee, provided that (1) such
direction shall not be in conflict with any rule of law or with this Indenture,
(2) the Trustee shall not determine that the action so directed would be
unjustly prejudicial to the Holders not taking part in such direction, (3) the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, (4) the Trustee may require indemnification to
its satisfaction before taking any action in accordance with such direction and
(5) the Trustee shall not be liable with respect to any action so taken in good
faith.
SECTION 6.12. Waiver of Past Default.
Subject to Section 6.8, the Holder or Holders of not less than a
majority in aggregate principal amount of the outstanding Securities may, on
behalf of all Holders, prior to the declaration of the acceleration of the
maturity of the Securities, waive any past default hereunder and its
consequences, except a default (A) in the payment of the principal of, premium,
if any, or interest on, any Security as specified in clauses (1) and (2) of
Section 6.1, or (B) in respect of a covenant or provision hereof which, under
Article IX, cannot be modified or amended without the consent of the Holder of
each outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair the exercise of any right arising therefrom.
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SECTION 6.13. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted to be taken by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 6.13 shall not apply to any suit instituted
by the Issuers, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of the outstanding Securities, or to any suit
instituted by any Holder for enforcement of the payment of principal of, or
premium (if any) or interest on, any Security on or after the Maturity Date
expressed in such Security (including, in the case of redemption, on or after
the Redemption Date).
SECTION 6.14. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Issuers, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
SECTION 7.1. Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their exercise
as a prudent Person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of a Default or an Event of Default:
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(1) The Trustee need perform only those duties as are specifically
set forth in this Indenture and no others, and no covenants or
obligations shall be implied in or read into this Indenture.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall
examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.1.
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.11.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this Section 7.1
and shall extend to the Registrar and Paying Agent.
(f) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Issuers.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
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SECTION 7.2. Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of Counsel,
which shall conform to Sections 13.4 and 13.5. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or advice of counsel.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee will not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture.
(e) The Trustee will not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, notice, request, direction, consent, order, bond, debenture, or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit and, if
the Trustee shall determine to make such further inquiry or investigation it
shall be entitled to examine the books, records and premises of the Issuers
personally or by agent or attorney.
(f) The Trustee will be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
(g) Unless otherwise specifically provided for in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
(h) The Trustee shall have no duty to inquire as to the performance of
the covenants in Article IV hereof. In addition, the Trustee shall not be deemed
to have knowledge of any Default or Event of Default hereunder or under the
Pledge and Escrow Agreement except (i) any Event of Default occurring pursuant
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to Sections 6.1(1) or 6.1(2), or (ii) any Default or Event of Default of which
the Trustee shall have received notification or obtained knowledge. In the
absence of such actual knowledge or notice, the Trustee may conclusively assume
that no default has occurred and is continuing under this Indenture.
(i) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty unless so specified herein.
SECTION 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or any of
the Company's Subsidiaries, or their respective Affiliates with the same rights
it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
SECTION 7.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity, adequacy or
priority of this Indenture or the Securities and it shall not be accountable for
the Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities, other than the Trustee's
certificate of authentication, or the use or application of any funds received
by a Paying Agent other than the Trustee.
SECTION 7.5. Notice of Default.
If a Default or an Event of Default occurs and is continuing and if it
is actually known to the Trustee, the Trustee shall mail to each Securityholder
notice of the uncured Default or Event of Default within 90 days after such
Default or Event of Default occurs. Except in the case of a Default or an Event
of Default in payment of principal (or premium, if any) of, or interest on, any
Security (including the payment of the Change of Control Purchase Price on the
Change of Control Purchase Date, the payment of the Redemption Price on the
Redemption Date and the payment of the Asset Sale Offer Price on the Asset Sale
Purchase Date), the Trustee may withhold the notice if and so long as a Trust
Officer in good faith determines that withholding the notice is in the interest
of the Securityholders.
SECTION 7.6. Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, the Trustee shall, if required by law, mail to each
Securityholder a brief report dated as of such May 15 that complies with TIA s
313(a). The Trustee also shall comply with TIA ss 313(b) and 313(c).
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The Issuers shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Issuers and filed with the SEC and each stock exchange,
if any, on which the Securities are listed.
SECTION 7.7. Compensation and Indemnity.
The Issuers agree to pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Issuers shall
reimburse the Trustee upon request for all reasonable disbursements, expenses
and advances incurred or made by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents, accountants,
experts and counsel.
The Issuers agree to indemnify the Trustee (in its capacity as
Trustee) and each of its officers, directors, attorneys-in-fact and agents for,
and hold it harmless against, any claim, demand, expense (including but not
limited to reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel), loss or liability incurred by it without negligence or
willful misconduct on its part, arising out of or in connection with the
administration of this trust and its rights or duties hereunder including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Issuers promptly of any claim asserted
against the Trustee for which it may seek indemnity. The Issuers need not
reimburse any expense or indemnify against any loss or liability to the extent
incurred by the Trustee through its negligence or willful misconduct.
To secure the Issuers' payment obligations in this Section 7.7., the
Trustee shall have a lien prior to the Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal and premium, if any, of or interest on particular
Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
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The Issuers' obligations under this Section 7.7 and any lien arising
hereunder shall survive the resignation or removal of the Trustee, the discharge
of the Issuers' obligations pursuant to Article VIII of this Indenture and any
rejection or termination of this Indenture under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee.
The Trustee may resign by so notifying the Issuers in writing. The
Holder or Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Issuers and the Trustee in
writing and may appoint a successor trustee with the Issuers' consent. The
Issuers may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver, Custodian, or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of
Trustee for any reason, the Issuers shall promptly appoint a successor Trustee.
Within one year after the successor Trustee takes office, the Holder or Holders
of a majority in principal amount of the Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Issuers. A successor
Trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuers. Immediately after that and provided that all sums
owing to the trustee provided for in Section 7.7 have been paid, the retiring
Trustee shall transfer all property held by it as trustee to the successor
Trustee, subject to the lien provided in Section 7.7, the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. A
successor Trustee shall mail notice of its succession to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers or the
Holder or Holders of at least 10% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
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Notwithstanding replacement of the Trustee pursuant to this Section
7.8, the Issuers' obligations under Section 7.7 shall continue for the benefit
of the retiring Trustee.
SECTION 7.9. Successor Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
The Trustee shall at all times satisfy the requirements of TIA ss.
310(a)(1), (2) and (5). The Trustee shall have a combined capital and surplus of
at least $10,000,000 as set forth in its most recent published annual report of
condition. The Trustee shall comply with TIA ss. 310(b).
SECTION 7.11. Preferential Collection of Claims against the Issuers.
The Trustee shall comply with TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated.
SECTION 7.12. Wire Transfers and Investments.
(a) The Trustee shall be authorized to seek confirmation of fund
transfer instructions by telephone call-back to the person or persons designated
on Exhibit E hereto, and the Trustee may rely upon the confirmations of any one
purporting to be the person or persons so designated. The persons and telephone
numbers for call-backs may be changed only in a writing actually received and
acknowledged by the Trustee. The parties to this Indenture acknowledge that such
security procedure is commercially reasonable.
(b) It is understood that the Trustee and the beneficiary's bank in
any funds transfer may rely solely upon any account numbers or similar
identifying number provided by either of the other parties hereto to identify
(i) the beneficiary, (ii) the beneficiary's bank, or (iii) an order it executes
using any such identifying number, even where its use may result in a person
other than the beneficiary being paid, or the transfer of funds to a bank other
than the beneficiary's bank or an intermediary bank designated.
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(c) All money held by the Trustee in any of the accounts or funds
established pursuant hereto shall be invested in Marketable U.S. Securities upon
receipt of a Company Request. In the absence of such Company Request, the
Trustee shall invest in those items described in clause (vi) of the definition
of Marketable U.S. Securities. The Trustee may act as principal or agent in the
acquisition or disposition of investments. The Trustee shall not be responsible
for any loss of any investment made in accordance herewith.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at its option and at any time, elect to have Section
8.2 or Section 8.3 applied to all outstanding Securities upon compliance with
the conditions set forth below in this Article VIII.
SECTION 8.2. Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.2, the Issuers, any Guarantor and any other obligor upon the
Securities shall be deemed to have been discharged from their obligations with
respect to all outstanding Securities on the date the conditions set forth below
are satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Issuers, any Guarantor and any other obligor upon the
securities shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Securities, which shall thereafter be deemed to
be "outstanding" only for the purposes of Section 8.5 and the other Sections of
this Indenture referred to in (a) and (b) below, and to have satisfied all its
other obligations under such Securities and this Indenture (and the Trustee, on
demand of and at the expense of the Issuers, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Securities to receive solely from the trust fund described in
Section 8.4, and as more fully set forth in such Section 8.4, payments in
respect of the principal of, premium, if any, and interest on such Securities
when such payments are due, (b) the Issuers' obligations with respect to such
Securities under Sections 2.4, 2.7, 2.10, 2.13, 2.14, 2.15 and 4.2, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Issuers' obligations in connection therewith and (d) this Article VIII. Subject
to compliance with this Article VIII, the Company may exercise its option under
this Section 8.2 notwithstanding the prior exercise of its option under Section
8.3 with respect to the Securities.
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SECTION 8.3. Covenant Defeasance.
Upon the Company's exercise under Section 8.1 of the option applicable
to this Section 8.3, the Issuers shall be released from their obligations under
the covenants contained in Sections 4.3, 4.5, 4.6, 4.7, 4.8, 4.10, 4.11, 4.12,
4.13, 4.14, 4.16, 4.17, 4.18, 4.19, 4.20, 4.21, 4.22, and Article V (other than
the obligation of any successor to assume the obligations of the Issuers
hereunder) with respect to the outstanding Securities on and after the date the
conditions set forth below are satisfied (hereinafter, "Covenant Defeasance"),
and the Securities shall thereafter be deemed not "outstanding" for the purposes
of any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Securities, the Issuers need not comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document, but, except as specified above,
the remainder of this Indenture and such Securities shall be unaffected thereby.
If Covenant Defeasance occurs, the events listed in Section 6.1, other than
those described in subsections (1), (2), (4) (with respect to the Issuers) and
(5) (with respect to the Issuers), shall no longer constitute Events of Default
with respect to the Securities.
SECTION 8.4. Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.2 or Section 8.3 to the outstanding Securities:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 who shall agree to comply with the provisions of this Article VIII
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, U.S. Legal Tender,
non-callable Government Securities or a combination thereof, in such amounts, as
in each case will be sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge the principal of,
premium, if any, and interest on such Securities on the Stated Maturity or on
the applicable Redemption Date of such principal or installment of principal of,
premium, if any, or interest on such Securities, and the Holders of Securities
must have a valid, perfected, exclusive security interest in such trust;
provided that the Trustee shall have been irrevocably instructed to apply such
U.S. Legal Tender or non-callable Government Securities to said payments with
respect to the Securities.
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(b) In the case of an election under Section 8.2, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date hereof, there has been a change in the applicable
Federal income tax law, in each case to the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of such Securities will not
recognize income, gain or loss for Federal income tax purposes as a result of
such Legal Defeasance, and will be subject to Federal income tax in the same
amount, in the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred;
(c) In the case of an election under Section 8.3, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to such Trustee confirming that the Holders of such
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such Covenant Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(d) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as Section 6.1(4) or 6.1(5)
is concerned, at any time in the period ending on the 91st day after the date of
such deposit (other than a Default which results from the borrowing of amounts
to finance the defeasance and which borrowing does not result in a breach or
violation of, or constitute a default under, any other material agreement or
instrument to which Centennial, the Company or any Restricted Subsidiary is a
party or to which it is bound) (it being understood that such condition will not
be satisfied until the expiration of such 91-day period);
(e) The Company shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably acceptable to the Trustee to the effect
that (assuming that no holder of any Securities would be considered an insider
of the Company under any applicable bankruptcy or insolvency law) after the 91st
day following the deposit, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(f) such defeasance or covenant defeasance shall not cause the Trustee
for the Securities to have a conflicting interest for purposes of the Trust
Indenture Act with respect to any securities of the Company or any Guarantor;
(g) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
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other material agreement or instrument to which Finance Corp., the Company or
any of their Subsidiaries is a party or by which Finance Corp., the Company or
any of their Subsidiaries is bound;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of such Securities over any other creditors of the
Company or with the intent of defeating, hindering, delaying or defrauding any
other creditors of the Issuers or others; and
(i) the Company shall have delivered to the Trustee an Officers'
Certificate and Opinion of Counsel each stating that all conditions precedent
provided for or relating to either the Legal Defeasance under Section 8.2 or the
Covenant Defeasance under Section 8.3 (as the case may be) have been complied
with as contemplated by this Section 8.4.
SECTION 8.5. Deposited U.S. Legal Tender and Government Securities to
be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.6, all, U.S. Legal Tender and Government
Securities (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 8.5, the
"Trustee") pursuant to Section 8.4 in respect of the outstanding Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent as the Trustee may determine, to the
Holders of such Securities of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
SECTION 8.6. Repayment to the Issuers.
Subject to any applicable escheat or abandoned property laws, any
money deposited with the Trustee or any Paying Agent, or then held by the
Issuers, in trust for the payment of the principal of, premium, if any, or
interest on any Security and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company within sixty (60) days after termination of such two-year
period; and the Holder of such Security shall thereafter look only to the
Issuers for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money shall thereupon cease. The Trustee shall
not be liable to the Issuers or any Holder for interest on funds held by it for
the payment and discharge of the interest, or premium (if any) on or principal
of any of the Securities to any Holder. The Issuers shall not be liable for any
interest on the sums paid to it pursuant to this paragraph and shall not be
regarded as a trustee of such money.
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SECTION 8.7. Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or Government Securities in accordance with Section 8.2 or 8.3, as the
case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Issuers' obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.2
or 8.3 until such time as the Trustee or Paying Agent is permitted to apply such
money in accordance with Sections 8.2 and 8.3, as the case may be; provided,
however, that, if the Issuers make any payment of principal of, premium, if any,
or interest on any Security following the reinstatement of its obligations, the
Issuers shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the cash held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holder, Finance Corp., the Company, any
Guarantor and any other obligor under the Securities when authorized by Board
Resolutions, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to Finance Corp.,
the Company or a Guarantor, and the assumption by any such
successor of the covenants of Finance Corp., the Company or such
Guarantor in this Indenture and in the Securities and in any
Guarantee in accordance with Section 5.1 (including to execute a
supplemental indenture upon consummation of the Merger in which
Centennial will assume the obligations hereunder of Finance
Corp.);
(2) to add to the covenants of Finance Corp., the Company, any
Guarantor or any other obligor upon the Securities for the
benefit of the Holders of the Securities or to surrender any
right or power conferred upon Finance Corp., the Company or any
Guarantor or any other obligor upon the Securities, as
applicable, in this Indenture, in the Securities or in any
Guarantee;
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(3) to cure any ambiguity, or to correct or supplement any provision
in this Indenture, the Securities or any Guarantee which may be
defective or inconsistent with any other provision in this
Indenture, the Securities or any Guarantee or make any other
provisions with respect to matters or questions arising under
this Indenture, the Securities or any Guarantee; provided that,
in each case, such provisions shall not adversely affect the
interest of the holders of the Securities;
(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the
Trust Indenture Act;
(5) to add a Guarantor under this Indenture;
(6) to evidence and provide the acceptance of the appointment of a
successor Trustee under this Indenture; or
(7) to mortgage, pledge, hypothecate or grant a security interest in
favor of the Trustee for the benefit of the holders of the
Securities as additional security for the payment and performance
of Finance Corp.'s, the Company's and any Guarantor's obligations
under this Indenture, in any property, or assets, including any
of which are required to be mortgaged, pledged or hypothecated,
or in which a security interest is required to be granted to the
Trustee pursuant to this Indenture or otherwise.
SECTION 9.2. Amendments, Supplemental Indentures and Waivers with
Consent of Holders.
Subject to Section 6.8, with the consent of the Holders of not less
than a majority in aggregate principal amount of then outstanding Securities, by
written act of said Holders delivered to the Issuers and the Trustee, the
Issuers, when authorized by Board Resolutions, and the Trustee may amend or
supplement this Indenture or the Securities or enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
the Securities or of modifying in any manner the rights of the Holders under
this Indenture or the Securities. Subject to Section 6.8, the Holder or Holders
of not less than a majority, in principal amount of then outstanding Securities
may waive compliance by the Issuers with any provision of this Indenture or the
Securities. Notwithstanding any of the above, however, no such amendment,
supplemental indenture or waiver shall, without the consent of the Holder of
each outstanding Security affected thereby:
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(1) change the Stated Maturity of, or the Change of Control Purchase
Date or the Asset Sale Offer Period on, or change to an earlier
date any Redemption Date of, any Note, or reduce the principal
amount thereof or the rate (or extend the time for payment) of
interest thereon or any premium payable upon the redemption
thereof, or change the place of payment where, or the coin or
currency in which, any Note or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the
Redemption Date), or reduce the Change of Control Purchase Price
or the Asset Sale Offer Price or alter the redemption provisions
or the provisions of Article XI, including, in each case,
amending, changing or modifying any definitions related thereto,
but only to the extent such definitions relate thereto, in a
manner adverse to the Holders;
(2) reduce the percentage in principal amount of the outstanding
Securities, the consent of whose Holders is required for any such
amendment, supplemental indenture or waiver provided for in this
Indenture;
(3) modify any of the waiver provisions, except to increase any
required percentage or to provide that certain other provisions
of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected
thereby;
(4) except as otherwise permitted under Section 5.1 consent to the
assignment or transfer by Finance Corp., the Company or any
Guarantor of any of its rights and obligations under this
Indenture; or
(5) amend or modify any of the provisions of this Indenture relating
to the subordination of the Securities or any Guarantee in any
manner adverse to the holders of the Securities or any Guarantee;
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, supplement
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
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After an amendment, supplement or waiver under this Section 9.2
becomes effective, the Issuers shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Issuers to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.
After an amendment, supplement or waiver under this Section 9.2 or
Section 9.4 becomes effective, it shall bind each Holder.
In connection with any amendment, supplement or waiver under this
Article IX, the Issuers may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
SECTION 9.3. Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of his Security by written notice to the
Issuers or the Person designated by the Issuers as the Person to whom consents
should be sent if such revocation is received by the Issuers or such Person
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
The Issuers may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Issuers notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date, and only those Persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
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After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(1) through (8) of Section 9.2, in which case, the amendment, supplement or
waiver shall bind only each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that evidences
the same debt as the consenting Holder's Security; provided that any such waiver
shall not impair or affect the right of any Holder to receive payment of
principal and premium of and interest on a Security, on or after the respective
dates set for such amounts to become due and payable expressed in such Security,
or to bring suit for the enforcement of any such payment on or after such
respective dates.
SECTION 9.5. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee
or require the Holder to put an appropriate notation on the Security. The
Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Issuers or the Trustee
so determines, the Issuers in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms. Any
failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment, supplement or waiver.
SECTION 9.6. Trustee to Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article IX; provided that the Trustee may, but shall
not be obligated to, execute any such amendment, supplement or waiver which
affects the Trustee's own rights, duties or immunities under this Indenture. The
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article IX is authorized or
permitted by this Indenture.
ARTICLE X
SECTION 10.1. Security.
(a) At the Release Time (as defined in the Pledge and Escrow
Agreement) which shall occur on or about the Merger Date, the Trustee shall
promptly purchase, for the benefit of the Holders of the Securities a portfolio
of securities initially consisting of Government Securities in such amount as
will be sufficient upon receipt of scheduled interest and/or principal payments
of such Pledged Securities, in the opinion of a nationally recognized firm of
independent public accountants selected by the Issuers, to provide for payment
in full of the first three scheduled interest payments due on the outstanding
Securities (unless already paid) and shall be held by the Trustee in the Escrow
and Pledge Account pending disposition pursuant to the Pledge and Escrow
Agreement.
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(b) Each Holder, by its acceptance of a Security, consents and agrees
to the terms of the Pledge and Escrow Agreement (including, without limitation,
the provisions providing for foreclosure and release of the Pledged Securities)
as the same may be in effect or may be amended from time to time in accordance
with its terms, and authorizes and directs the Trustee to enter into the Pledge
and Escrow Agreement and to perform its respective obligations and exercise its
respective rights thereunder in accordance therewith. The Issuers will do or
cause to be done all such acts and things as may be necessary or proper, as the
case may be required by the provisions of the Pledge and Escrow Agreement, to
assure and confirm to the Trustee the security interest in the Pledged
Securities contemplated hereby, by the Pledge and Escrow Agreement or any part
thereof, as from time to time constituted, so as to render the same available
for the security and benefit of this Indenture and of the Securities secured
hereby, according to the intent and purposes herein expressed. The Issuers shall
take, or shall cause to be taken, any and all actions reasonably required (and
any action reasonably requested by the Trustee) to cause the Pledge and Escrow
Agreement to create and maintain, as security for the obligations of the Issuers
under this Indenture and the Securities, valid and enforceable first priority
liens in and on all the Pledged Securities, in favor of the Trustee, superior to
and prior to the rights of third Persons and subject to no other Liens. The
Trustee shall not be liable for the validity, sufficiency or priority of the
funds or Pledged Securities held under the Pledge and Escrow Agreement or for
the maintenance of the perfection of any funds or securities held therein.
(c) The release of any Pledged Securities pursuant to the Pledge and
Escrow Agreement will not be deemed to impair the security under this Indenture
in contravention of the provisions hereof if and to the extent the Pledged
Securities are released pursuant to this Indenture and the Pledge and Escrow
Agreement. To the extent applicable, the Issuers shall cause TIA Section 314(d)
relating to the release of property or securities from the Lien and security
interest of the Pledge and Escrow Agreement (other than pursuant to Section 9(e)
and 9(g) thereof) and relating to the substitution therefor of any property or
securities to be subjected to the Lien and security interest of the Pledge and
Escrow Agreement to be complied with. Any certificate or opinion required by TIA
Section 314(d) may be made by an Officer of the Company, except in cases where
TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person, which Person shall be an independent engineer, appraiser or
other expert selected by the Company.
(d) The Trustee, in its sole discretion and without the consent of the
Holders, may, and at the request of the Holders of at least 25% in aggregate
principal amount of Securities then outstanding and upon receipt of indemnity
satisfactory to it shall, on behalf of the Holders, take all actions it deems
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necessary or appropriate in order to (i) enforce any of the terms of the Pledge
and Escrow Agreement and (ii) collect and receive any and all amounts payable in
respect of the obligations of the Issuers thereunder. The Trustee shall have
power to institute and to maintain such suits and proceedings as the Trustee may
deem expedient to preserve or protect its interests and the interests of the
Holders in the Pledged Securities (including power to institute and maintain
suits or proceedings to restrain the enforcement of or compliance with any
legislative or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid if the enforcement of, or compliance with,
such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of the Holders or of the Trustee).
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1. Repurchase of Securities at Option of the Holder Upon a
Change of Control.
(a) In the event that a Change of Control has occurred, each Holder of
Securities will have the right, at such Holder's option, pursuant to an
irrevocable and unconditional offer by the Issuers (the "Change of Control
Offer"), to require the Issuers to repurchase all or any part (equal to $1,000
principal amount or an integral multiple thereof) of such Holder's Securities,
on a date (the "Change of Control Purchase Date") that is no later than 45
Business Days after the occurrence of such Change of Control at a cash price
(the "Change of Control Purchase Price") equal to 101% of the aggregate
principal amount thereof, together with any accrued and unpaid interest to the
Change of Control Purchase Date. The Change of Control Offer shall be made
within 30 Business Days following a Change of Control and shall remain open for
20 Business Days following its commencement (the "Change of Control Offer
Period"). Upon expiration of the Change of Control Offer Period, the Issuers
shall purchase all Securities properly tendered in response to the Change of
Control Offer.
(b) In the event that, pursuant to this Section 11.1, the Issuers
shall be required to commence such an offer to purchase Securities (a "Change of
Control Offer"), the Issuers shall follow the procedures set forth in this
Section 11.1 as follows:
(1) the Issuers shall provide the Trustee with notice of the Change
of Control Offer at least 5 Business Days before the commencement
of any Change of Control Offer; and
(2) on or before the commencement of any Change of Control Offer, the
Issuers or the Trustee (upon the request and at the expense of
the Issuers) shall send, by first-class mail, a notice to each of
the Holders, which (to the extent consistent with this Indenture)
shall govern the terms of the Change of Control Offer and shall
state:
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(i) that the Change of Control Offer is being made pursuant to
such notice and this Section 11.1 and that all Securities, or portions
thereof, tendered will be accepted for payment;
(ii) the Change of Control Purchase Price (including the amount
of accrued and unpaid interest), the Change of Control Purchase Date
and the Change of Control Put Date (as defined below);
(iii) that any Security, or portion thereof, not tendered or
accepted for payment will continue to accrue interest;
(iv) that, unless the Issuers default in depositing cash with the
Paying Agent in accordance with the last paragraph of this clause (b)
or such payment is prevented, any Security, or portion thereof,
accepted for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Purchase Date;
(v) that Holders electing to have a Security, or portion thereof,
purchased pursuant to a Change of Control Offer will be required to
surrender the Security, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Security completed, to the
Paying Agent (which may not for purposes of this Section 11.1,
notwithstanding anything in this Indenture to the contrary, be the
Company or any Affiliate of the Company) at the address specified in
the notice prior to the close of business on the earlier of (a) the
third Business Day prior to the Change of Control Purchase Date and
(b) the third Business Day following the expiration of the Change of
Control Offer (such earlier date being the "Change of Control Put
Date");
(vi) that Holders will be entitled to withdraw their election, in
whole or in part, if the Paying Agent (which may not for purposes of
this Section 11.1, notwithstanding anything in this Indenture to the
contrary, be the Company or any Affiliate of the Company) receives, up
to the close of business (5:00 p.m. New York Time) on the Change of
Control Put Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the Holder, the principal amount of the
Securities the Holder is withdrawing and a statement that such Holder
is withdrawing his election to have such principal amount of
Securities purchased; and
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(vii) a brief description of the events resulting in such Change
of Control.
On or before the Change of Control Purchase Date, the Issuers will (i)
accept for payment Securities or portions thereof properly tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent cash sufficient
to pay the Change of Control Purchase Price (together with accrued and unpaid
interest) of all Securities so tendered and (iii) deliver to the Trustee
Securities so accepted together with an Officers' Certificate listing the
Securities or portions thereof being purchased by the Issuers. The Paying Agent
promptly will deliver to the Holders of Securities so accepted payment in an
amount equal to the Change of Control Purchase Price (together with any accrued
and unpaid interest), and the Trustee will promptly authenticate and mail or
deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so accepted
will be promptly mailed or delivered by the Issuers to the Holder thereof. The
Issuers will announce publicly the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Purchase Date.
Any Change of Control Offer will be made in compliance with all
applicable laws, rules and regulations, including, if applicable, Regulation 14E
under the Exchange Act and the rules thereunder and all other applicable Federal
and state securities laws and the Issuers may modify a Change of Control Offer
to the extent necessary to effect such compliance.
ARTICLE XII
SUBORDINATION OF SECURITIES
SECTION 12.1. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by
its acceptance thereof, likewise covenants and agrees, for the benefit of the
holders, from time to time, of Senior Indebtedness that, to the extent and in
the manner hereinafter set forth in this Article, the Indebtedness represented
by the Securities and the payment of the principal of (and premium, if any) and
interest on each and all of the Securities are hereby expressly made subordinate
and subject in right of payment as provided in this Article to the prior payment
in full in cash or cash equivalents of all Senior Indebtedness; provided,
however, that the Securities, the Indebtedness represented thereby and the
payment of the principal of (and premium, if any) and interest on the Securities
in all respects shall rank equally with, or prior to, all existing and future
senior subordinated indebtedness (including, without limitation, Indebtedness)
of the Company that is subordinated to Senior Indebtedness.
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SECTION 12.2. Payment over of Proceeds upon Dissolution, etc.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relating to the Company or to its assets, or
(b) any liquidation, dissolution or other winding-up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any assignment for the benefit of creditors or other marshalling of
assets or liabilities of the Company (except in connection with the
consolidation or merger of the Company or its liquidation or dissolution
following the conveyance, transfer or lease of its properties and assets
substantially as an entirety upon the terms and conditions described under
Article Five), then and in any event:
(1) the holders of Senior Indebtedness will be entitled to receive
payment in full in cash or cash equivalents of all Senior Indebtedness, or
provision shall be made for such payment in full, before the Holders of
Securities will be entitled to receive any payment or distribution of any kind
or character (other than any payment or distribution in the form of equity
securities or subordinated securities of the Company or any successor obligor
that, in the case of any such subordinated securities, are subordinated in right
of payment to all Senior Indebtedness that may at the time be outstanding to at
least the same extent as the Securities are so subordinated as provided in this
Indenture (such equity securities or subordinated securities hereinafter being
"Permitted Junior Securities") and any payment made pursuant to Article Eight
from monies or U.S. Government Obligations previously deposited with the
Trustee) on account of principal of, or premium, if any, or interest on the
Securities;
(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (other than a payment or
distribution in the form of Permitted Junior Securities and any payments made
pursuant to Article Eight from monies or U.S. Government Obligations previously
deposited with the Trustee), by set-off or otherwise, to which the Holders of
the Securities or the Trustee would be entitled but for the provisions of this
Indenture shall be paid by the liquidating trustee or agent or other Person
making such payment or distribution, whether a trustee in bankruptcy, a receiver
or liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives ratably according to the
aggregate amounts remaining unpaid on account of the Senior Indebtedness to the
extent necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company following
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the conveyance, transfer or lease of its properties and assets substantially as
an entirety to another Person upon the terms and conditions set forth in Article
Five shall not be deemed a dissolution, winding up, liquidation, reorganization,
assignment for the benefit of creditors or marshalling of assets and liabilities
of the Company for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance, transfer or lease such properties and assets substantially as an
entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance, transfer or lease, comply with the conditions set forth in Article
Five.
SECTION 12.3. Suspension of Payment When Designated Senior
Indebtedness in Default.
(a) Unless Section 12.2 shall be applicable, upon the occurrence of a
Payment Default, no payment or distribution of any assets of the Company of any
kind or character, whether in cash, property or securities (other than Permitted
Junior Securities and payments made pursuant to Article Eight from monies or
U.S. Government Obligations previously deposited with the Trustee), may be made
by or on behalf of the Company on account of principal of, premium, if any, or
interest on the Securities or on account of the purchase, redemption or other
acquisition of Securities until such Payment Default shall have been cured or
waived in writing from the Agent Bank or any other representative of a holder of
Designated Senior Indebtedness or shall have ceased to exist or such Designated
Senior Indebtedness shall have been discharged or paid in full in cash or cash
equivalents, after which the Company shall resume making any and all required
payments in respect of the Securities, including any missed payments.
(b) Unless Section 12.2 shall be applicable, upon (1) the occurrence
of a Non-Payment Default and (2) receipt by the Trustee of written notice
thereof from the Agent Bank or any other representative of a holder of
Designated Senior Indebtedness, then no payment or distribution of any assets of
the Company of any kind or character, whether in cash, property or securities
(other than Permitted Junior Securities and payments made pursuant to Article
Eight from monies or U.S. Government Obligations previously deposited with the
Trustee), may be made by or on behalf of the Company on account of principal of,
premium, if any, or interest on the Securities or on account of the purchase,
redemption or other acquisition of Securities for a period (a "Payment Blockage
Period") commencing on the date of receipt by the Trustee of written notice from
the Agent Bank or such other representative of the holders of Designated Senior
Indebtedness in respect of which the Non-Payment default exists and shall end on
the earliest of (i) 179 days thereafter (provided that any Designated Senior
Indebtedness as to which notice was given shall not theretofore have been
accelerated, in which case the provisions of paragraph (a) shall apply), (ii)
the date on which such Non-Payment Default is cured, waived or ceases to exist
or such Designated Senior Indebtedness is discharged or paid in full in cash or
cash equivalents or (iii) the date on which such Payment Blockage Period shall
have been terminated by written notice to the Trustee or the Company from the
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Agent Bank or such other representative initiating such Payment Blockage Period,
after which the Company will resume making any and all required payments in
respect of the Securities, including any missed payments. In any event, not more
than one Payment Blockage Period may be commenced during any period of 365
consecutive days, and there must be at least 186 consecutive days in every 365
day period during which there is no Payment Blockage Period. No event of default
that existed or was continuing on the date of the commencement of any Payment
Blockage Period will be, or can be made, the basis for the commencement of a
subsequent Payment Blockage Period, unless such default has been cured or waived
for a period of not less than 90 consecutive days subsequent to the commencement
of such initial Payment Blockage Period.
In the event that, notwithstanding the foregoing and the provisions of
Section 12.2, any payments or distribution shall be made to the Trustee which is
prohibited by the foregoing provisions of this Section and the provisions of
Section 12.2, then and in such event such payment shall be paid over and
delivered forthwith by the Trustee to the Agent Bank and any other
representative of holders of Designated Senior Indebtedness, as their interests
may appear, for application to Designated Senior Indebtedness.
SECTION 12.4. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent the Company, at any time except during the
pendency of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 12.2 or under the conditions
described in Section 12.3, from making payments at any time of principal of, and
premium, if any, or interest on the Securities.
SECTION 12.5. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated (equally and ratably with the holders of
all Pari Passu Indebtedness of the Company) to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness to the extent that
distributions otherwise payable to the holders of the Securities have been
applied to the payment of Senior Indebtedness. For purposes of such subrogation,
no payments or distributions to the holders of Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
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over pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Securities or on their behalf or by the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness; it
being understood that the provisions of this Article are intended solely for the
purpose of determining the relative rights of the Holders of Securities, on the
one hand, and the holders of Senior Indebtedness, on the other hand.
SECTION 12.6. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Indebtedness on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as between the Company and the Holders, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders the
principal of, and premium, if any, and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders and creditors of
the Company other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or any Holder from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness.
SECTION 12.7. Trustee to Effectuate Subordination.
Each Holder of a Security by its acceptance thereof authorizes and
directs the Trustee on its behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 12.8. No Waiver of Subordination Provisions.
(a) No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any non-compliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have
or be otherwise charged with.
(b) Without in any way limiting the generality of paragraph (a) of
this Section, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Holders and without impairing or releasing the
subordination provided in this Article or the obligations hereunder of the
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Holders to the holders of Senior Indebtedness, do any one or more of the
following: (1) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness is
outstanding; (2) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Indebtedness; (3) release any
Person liable in any manner for the collection of Senior Indebtedness; and (4)
exercise or refrain from exercising any rights against the Company and any other
Person.
SECTION 12.9. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Indebtedness, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to
in this Article Twelve, the Trustee and the Holders shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction or upon any
certificate of such Representative or of the liquidating trustee or agent or
other Person making any distribution to the Trustee or to the Holders for the
purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other acts pertinent thereto or to this Article
Twelve.
SECTION 12.10. Notice to Trustee.
(a) The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company, the Agent Bank or a holder of Senior Indebtedness or from any trustee,
fiduciary or agent therefor; and, prior to the receipt of any such written
notice, the Trustee, subject to Sections 315(a) through 315(d) of the Trust
Indenture Act, shall be entitled in all respects to assume that no such facts
exist; provided, however, that, if the Trustee shall not have received the
notice provided for in this Section at least three Business Days prior to the
date upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of, and premium, if
any, or interest on any Security), then, anything herein contained to the
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contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
(b) Subject to Sections 315(a) through 315(d) of the Trust Indenture
Act, the Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing itself to be a holder of Senior Indebtedness (or
a trustee, fiduciary or agent therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee, fiduciary or agent
therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 12.11. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to Sections 315(a) through 315(d) of the
Trust Indenture Act, and the Holders of the Securities shall be entitled to rely
upon any order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
Custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article; provided that such court, trustee, receiver, Custodian,
assignee, agent or other Person has been apprised of, or the order, decree or
certificate makes reference to, the provisions of this Article.
SECTION 12.12. Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
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its rights as such holder. Nothing in this Article shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.12(c).
SECTION 12.13. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 12.12. shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 12.14. No Suspension of Remedies.
Nothing contained in this Article shall limit the right of the Trustee
or the Holders of Securities to take any action to accelerate the maturity of
the Securities pursuant to Article Six or to pursue any rights or remedies
hereunder or under applicable law, except as provided in Article Six.
SECTION 12.15. Trust Moneys Not Subordinated.
Notwithstanding anything contained herein to the contrary, payments
from cash or the proceeds of Government Securities held in trust under Article
Four hereof by the Trustee (or other qualifying trustee) and which were
deposited in accordance with the terms of Article Four hereof and not in
violation of Section 12.3 hereof for the payment of principal of (and premium,
if any) and interest on the Securities shall not be subordinated to the prior
payment of any Senior Indebtedness or subject to the restrictions set forth in
this Article Twelve, and none of the Holders shall be obligated to pay over any
such amount to the Company or any holder of Senior Indebtedness or any other
creditor of the Company.
SECTION 12.16. Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
the Trustee shall mistakenly, in the absence of gross negligence or wilful
misconduct, pay over or distribute to Holders of Securities or to the Company or
to any other person cash, property or securities to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article or otherwise. With
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respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article and no implied covenants or obligations with respect to
holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
SECTION 12.17. Applicability of Article to Finance Corp.
The indebtedness represented by the Securities shall be subordinated
to indebtedness of Finance Corp. to the same extent as it is, pursuant to this
Article, subordinated to the indebtedness of the Company, mutatis mutandis.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of the TIA, the imposed duties, upon
qualification of this Indenture under the TIA, shall control.
SECTION 13.2. Notices.
Any notices or other communications to the Issuers or the Trustee
required or permitted hereunder shall be in writing, and shall be sufficiently
given if made by hand delivery, by telecopier or registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
if to the Issuers:
Centennial Cellular Operating Co. LLC
Centennial Finance Corp.
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue
New York, New York 10022-6815
Attention: Michael Small
Telecopy: 212-893-9575
if to the Trustee:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Global Trust Services
Telecopy: 212-946-8161
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Any party by notice to each other party may designate additional or
different addresses as shall be furnished in writing by such party. Any notice
or communication to any party shall be deemed to have been given or made as of
the date so delivered, if personally delivered; when receipt is acknowledged, if
telecopied; and five Business Days after mailing if sent by registered or
certified mail, postage prepaid (except that a notice of change of address shall
not be deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be sufficiently
given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 13.3. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Issuers, the Trustee, the Registrar and any other Person shall
have the protection of TIA ss. 312(c).
SECTION 13.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take
any action under this Indenture, such Person shall furnish to the Trustee:
(1) an Officers' Certificate (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
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SECTION 13.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
Person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an
Opinion of Counsel may rely on an Officers' Certificate or
certificates of public officials.
SECTION 13.6. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 13.7. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York, New York or San Francisco, California are authorized
or obligated by law or executive order to close. If a payment date is a Legal
Holiday at such place, payment may be made at such place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
SECTION 13.8. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK. THE ISSUERS HEREBY IRREVOCABLY
SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF
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MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE SECURITIES, AND IRREVOCABLY
ACCEPTS FOR THEMSELVES AND IN RESPECT OF THEIR RESPECTIVE PROPERTY, GENERALLY
AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE ISSUERS
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF THE TRUSTEE OR ANY SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY IN ANY OTHER JURISDICTION.
SECTION 13.9. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of Finance Corp., the Company or any of their respective
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
SECTION 13.10. No Recourse against Others.
No direct or indirect stockholder (or partner, limited liability
company member or employee of a stockholder), employee, officer or director, as
such, past, present or future of the Issuers or any successor entity or any
Affiliate thereof shall have any personal liability in respect of the
obligations of the Issuers under the Securities or this Indenture by reason of
his or its status as such stockholder (or partner, limited liability company
member or employee of a stockholder), employee, officer or director. Each
Securityholder by accepting a Security waives and releases all such liability.
Such waiver and release are part of the consideration for the issuance of the
Securities.
SECTION 13.11. Successors.
All agreements of the Issuers in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 13.12. Duplicate Originals.
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All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of them
together shall represent the same agreement.
SECTION 13.13. Severability.
In case any one or more of the provisions in this Indenture or in the
Securities shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 13.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and headings of the
Articles and the Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 13.15. Qualification of Indenture.
The Issuers shall qualify this Indenture under the TIA in accordance
with the terms and conditions of the Registration Rights Agreement and shall pay
all costs and expenses (including attorneys' fees for the Issuers and the
Trustee) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of this Indenture and the Securities and printing
this Indenture and the Securities. The Trustee shall be entitled to receive from
the Issuers any such Officers' Certificates, Opinions of Counsel or other
documentation as it may reasonably request in connection with any such
qualification of this Indenture under the TIA.
SECTION 13.16. Registration Rights.
Certain Holders of the Securities are entitled to certain registration
rights with respect to such Securities pursuant to, and subject to the terms of,
the Registration Rights Agreement.
ARTICLE XIV
SATISFACTION AND DISCHARGE
SECTION 14.1. Satisfaction and Discharge of Indenture.
This Indenture shall be discharged and shall cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
Securities as expressly provided for herein) as to all outstanding Securities
hereunder, and the Trustee, upon Company Request and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
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(a) either
(1) all such Securities theretofore authenticated and delivered
(other than lost, stolen or destroyed Securities which have been
replaced or paid as provided in Section 2.7) have been delivered to
the Trustee for cancellation; or
(2) all Securities not theretofore delivered to the Trustee for
cancellation (x) have become due and payable, (y) will become due and
payable at their Stated Maturity within one year, or (z) are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company; and the Company or
any Guarantor has irrevocably deposited or caused to be deposited with
the Trustee as trust funds in trust an amount in United States dollars
sufficient to pay and discharge the entire Indebtedness on the
Securities not theretofore delivered to the Trustee for cancellation,
including the principal of, premium, if any, and accrued interest at
maturity, Stated Maturity or Redemption Date;
(b) Finance Corp., the Company or any Guarantor has paid or caused to
be paid all other sums payable hereunder by the Company; and
(c) the Company and Finance Corp. have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in form and substance
satisfactory to the Trustee, each stating that (i) all conditions precedent
herein relating to the satisfaction and discharge hereof have been complied with
and (ii) such satisfaction and discharge will not result in a breach or
violation of, or constitute a default under, this Indenture or any other
material agreement or instrument (in the case of the legal opinion, such
material agreements or instruments as are known to such counsel) to which
Finance Corp., the Company, any Guarantor or any Subsidiary is a party or by
which Finance Corp., the Company, any Guarantor or any of the Company's
Subsidiaries is bound.
Notwithstanding the satisfaction and discharge hereof, the obligations
of the Issuers to the Trustee under Section 7.7 and, if United States dollars
shall have been deposited with the Trustee pursuant to subclause (2) of
subsection (a) of this Section 14.1, the obligations of the Trustee under
Section 14.2 shall survive.
114
<PAGE>
SECTION 14.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 2.4, all
United States dollars deposited with the Trustee pursuant to Section 14.1 shall
be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuers acting as their own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal of,
premium, if any, and interest on, the Securities for whose payment such United
States dollars have been deposited with the Trustee.
115
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
CENTENNIAL CELLULAR OPERATING
CO. LLC,
a Delaware limited liability company
By: Centennial Finance Corp.
By /s/ Michael J. Small
Name: Michael J. Small
Title: Chief Executive Officer
CENTENNIAL FINANCE CORP.,
a Delaware corporation
By /s/ Michael J. Small
Name: Michael J. Small
Title: Chief Executive Officer
THE CHASE MANHATTAN BANK
as Trustee
By /s/ Jennifer F. Smith
Name: Jennifer F. Smith
Title: Trust Officer
116
<PAGE>
Exhibit A
[FORM OF SECURITY]
10 3/4% SERIES [A/B] SENIOR SUBORDINATED NOTE DUE 2008
No. $______________
CUSIP No.
Centennial Cellular Operating Co. LLC, a Delaware limited liability
company (hereinafter called the "Company," which term includes any successors
under the Indenture hereinafter referred to) and Centennial Finance Corp., a
Delaware corporation (hereinafter called "Centennial," which term includes any
successors under the Indenture hereinafter referred to), for value received,
hereby promise to pay to Cede & Co., or registered assigns, the principal sum of
$_____________ Dollars, on December 15, 2008.
Interest Payment Dates: June 15 and December 15;
commencing June 15, 1999.
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
A-1
<PAGE>
IN WITNESS WHEREOF, the Company and Centennial have caused this
Instrument to be duly executed under their corporate seal.
Dated:
CENTENNIAL CELLULAR OPERATING
CO. LLC,
a Delaware limited liability company
By: Centennial Finance Corp.
By:
Name:
Title:
By:
Name:
Title:
CENTENNIAL FINANCE CORP.,
a Delaware corporation
By:
Name:
Title:
By:
Name:
Title:
A-2
<PAGE>
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned
Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By:
Authorized Signatory
Dated:
A-3
<PAGE>
CENTENNIAL CELLULAR OPERATING CO. LLC
CENTENNIAL FINANCE CORP.
10 3/4% Series [A/B] Senior Subordinated Note due 2008
Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation, ("DTC"), to the Issuers
or their agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other name
as is requested by an authorized representative of DTC (and any payment is made
to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.1[FN1]
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")) OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION, (2)
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY PRIOR TO THE DATE
- --------
[FN1] This paragraph should only be added if the Security is issued in
global form.
A-4
<PAGE>
WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE
LAST DATE ON WHICH ONE OF THE ISSUERS OR ANY AFFILIATE OF THE ISSUERS WAS THE
OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) ONLY (A) TO THE
ISSUERS, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A INSIDE THE UNITED STATES, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES PURSUANT TO OFFERS AND SALE
TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION WITHIN THE MEANING OF REGULATION
S UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUERS' AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE. AS USED HEREIN, THE TERMS "UNITED STATES,"
"OFFSHORE TRANSACTION," AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE SECURITIES ACT.2[2]
[THIS NOTE IS A REGULATION S GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
- --------
[FN2] This Private Placement Legend should appear on the face of any Series A
Securities authenticated and delivered hereunder unless and until (i) an
Initial Security is sold under an effective Registration Statement or (ii)
an Initial Security is exchanged for a Series B Security in connection
with an effective Registration Statement, in each case pursuant to the
Registration Rights Agreement.
A-5
<PAGE>
REFERRED TO HEREIN. INTERESTS IN THIS REGULATION S GLOBAL NOTE MAY NOT BE
OFFERED OR SOLD TO A U.S. PERSON OR FOR THE ACCOUNT OR BENEFIT OF A U.S. PERSON
PRIOR TO THE EXPIRATION OF THE RESTRICTED PERIOD (AS DEFINED IN THE INDENTURE),
AND NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS REGULATION S GLOBAL NOTE MAY
BE MADE FOR AN INTEREST IN A RULE 144A GLOBAL NOTE UNTIL AFTER THE TERMINATION
OF THE RESTRICTED PERIOD OR AS OTHERWISE PERMITTED BY LAW AND CONTEMPLATED BY
THE INDENTURE.] [FN3]
1. Interest.
Centennial Cellular Operating Co. LLC, a Delaware limited liability
company (hereinafter called the "Company," which term includes any successors
under the Indenture hereinafter referred to) and Centennial Finance Corp., a
Delaware corporation (hereinafter called "Centennial," which term includes any
successors under the Indenture hereinafter referred to, and together with the
Company, the "Issuers"), promise to pay interest on the principal amount of this
Security at the rate and in the manner specified below. Interest will accrue at
10 3/4% per annum and will be payable semi-annually in arrears in cash on June
15 and December 15 of each year or if any such day is not a Business Day on the
next succeeding Business Day (each an "Interest Payment Date") commencing June
15, 1999, to Holders of record of the Securities at the close of business on the
immediately preceding June 1 or December 1, whether or not a Business Day (each,
a "Record Date").
The Holder of this Series A Security is entitled to the benefits of
the Registration Rights Agreement among the Issuers and the Initial Purchasers,
dated December 14, 1998, pursuant to which, subject to the terms and conditions
thereof, the Issuers are obligated to consummate the Exchange Offer pursuant to
which the Holder of this Security shall have the right to exchange this Security
- --------
[FN3] This Private Placement Legend should appear on the face of any Series A
Securities authenticated and delivered hereunder unless and until (i) an
Initial Security is sold under an effective Registration Statement or (ii)
an Initial Security is exchanged for a Series B Security in connection
with an effective Registration Statement, in each case pursuant to the
Registration Rights Agreement.
A-6
<PAGE>
for 10 3/4% Senior Subordinated Securities due 2008, Series B (herein called the
"Series B Securities") in like principal amount as provided therein. The Series
A Securities and the Series B Securities are together referred to as the
"Securities." The Series A Securities rank pari passu in right of payment with
the Series B Securities.
In the event that (a) the Exchange Offer Registration Statement is not
filed with the Commission on or prior to the 60th calendar day following the
Merger Date, (b) the Exchange Offer Registration Statement has not been declared
effective on or prior to the 150th calendar day following the Merger Date, (c)
the Exchange Offer is not consummated or a Shelf Registration Statement is not
declared effective, in either case, on or prior to the 180th calendar day
following the Merger Date or (d) the Shelf Registration Statement is declared
effective but shall thereafter become unusable for more than 60 days in the
aggregate as a result of certain material business transactions described in the
Registration Rights Agreement (each such event referred to in clauses (a)
through (d) above, a "Registration Default"), the interest rate borne by the
Series A Securities shall be increased by one-quarter of one percent per annum
upon the occurrence of each Registration Default, which rate (as increased as
aforesaid) will increase by an additional one quarter of one percent each 90-day
period that such additional interest continues to accrue under any such
circumstance, with an aggregate maximum increase in the interest rate equal to
one percent (1%) per annum. Such additional interest will be payable in cash
semi-annually in arrears on each Interest Payment Date. Following the cure of
all Registration Defaults the accrual of additional interest will cease and the
interest rate will revert to the original rate.
Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months. Interest shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of
issuance. To the extent lawful, the Issuers shall pay interest on overdue
principal at the rate of the then applicable interest rate on the Securities;
they shall pay interest on overdue installments of interest (without regard to
any applicable grace periods) at the same rate to the extent lawful.
2. Method of Payment.
The Issuers shall pay interest on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date. Holders must
A-7
<PAGE>
surrender Securities to a Paying Agent to collect principal payments. Except as
provided below, the Issuers shall pay principal and interest in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for payment of public and private debts ("U.S. Legal Tender").
However, the Issuers may pay principal and interest by wire transfer of Federal
funds, or interest by its check payable in such U.S. Legal Tender. The Issuers
may deliver any such interest payment to the Paying Agent or the Issuers may
mail any such interest payment to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, The Chase Manhattan Bank (the "Trustee") will act as Paying
Agent and Registrar. The Issuers may change any Paying Agent, Registrar or
co-Registrar without notice to the Holders. The Issuers or any of their
Subsidiaries may, subject to certain exceptions, act as Paying Agent, Registrar
or co-Registrar.
4. Indenture.
The Issuers issued the Securities under an Indenture, dated as of
December 14, 1998 (the "Indenture"), among the Issuers and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The terms of the Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act, as in effect on the date of the Indenture. The Securities are
subject to all such terms, and Holders of Securities are referred to the
Indenture and said Act for a statement of them. The Securities are general
obligations of the Issuers limited in aggregate principal amount to
$370,000,000.
5. Redemption.
The Securities will be subject to redemption at any time on or after
December 15, 2003, at the option of the Issuers, in whole or in part, on not
less then 30 nor more than 60 days' prior notice, in amounts of $1,000 or an
integral multiple thereof, at the following redemption prices (expressed as
percentages of the principal amount), if redeemed during the 12 month period
beginning December 15 of the years indicated below:
A-8
<PAGE>
Year Redemption Price
2003.................................... 105.375%
2004.................................... 103.583
2005.................................... 101.792
and thereafter at 100% of the principal amount, in each case, together with
accrued and unpaid interest, if any, to the Redemption Date (subject to the
rights of holders of record on relevant record dates to receive interest due on
an interest payment date).
In addition, at any time prior to December 15, 2001, the Issuers, at
their option, may use the net cash proceeds of one or more Public Equity
Offerings or Strategic Equity Offerings in a single transaction or a series of
related transactions to redeem up to an aggregate of 35% of the aggregate
principal amount of Securities originally issued under the Indenture at a
redemption price equal to 110.75% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon, if any, to the redemption date
(subject to the rights of holders of record on relevant record dates to receive
interest due on an interest payment date); provided that at least 65% of the
initial aggregate principal amount of Securities remains outstanding immediately
after the occurrence of such redemption; provided, further, that any such
redemption with respect to a Strategic Equity Offering may not occur in
connection with or after the occurrence of a Change of Control; provided,
further, that any such net proceeds received by Centennial or any other direct
or indirect parent of the Company are first contributed to the Company as a
capital contribution prior to any such redemption. In order to effect the
foregoing redemption, the Company must mail a notice of redemption no later than
30 days after the closing of the related Public Equity Offering or Strategic
Equity Offering and must consummate such redemption within 60 days of the
closing of the Public Equity Offering or Strategic Equity Offering.
In addition, the Securities may be redeemed upon a Change of Control
at any time prior to December 15, 2003, at the option of the Issuers, in whole
and not in part, within 60 days of such Change of Control, at a redemption price
A-9
<PAGE>
equal to (i) 100% of the principal amount of the Securities, plus (ii) accrued
interest to the redemption date (subject to the rights of holders of record on
relevant record dates to receive interest due on an interest payment date) plus
(iii) the Applicable Premium, if any. In no event will the redemption price of
the Securities be less than 105.375% (the Redemption Price for the Securities on
December 15, 2003) of the principal amount of the Securities, plus accrued
interest to the applicable Redemption Date.
In the case of a partial redemption, the Trustee shall select the
Securities or portions thereof for redemption in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities are listed, or if the Securities are not so listed, on a pro rata
basis, by lot or by any other manner as it deems appropriate and fair; provided,
that any such redemption pursuant to the provisions relating to a Public Equity
Offering or a Strategic Equity Offering shall be made on a pro rata basis or on
as nearly a pro rata basis as practicable (subject to the procedures of DTC or
any other depositary). The Securities may be redeemed in part in multiples of
$1,000 only.
Any such redemption will comply with Article III of the Indenture.
6. Notice of Redemption.
Except as provided in the next paragraph, notice of redemption will be
sent by first class mail, at least 30 days and not more than 60 days prior to
the Redemption Date, to the Holder of each Security to be redeemed at such
Holder's last address as then shown upon the registry books of the Registrar.
Notice of a Special Mandatory Redemption will be given upon not less
than seven days' and not more than 20 days' prior written notice to the Holders.
Any notice which relates to a Security to be redeemed in part only
must state the portion of the principal amount to be redeemed and must state
that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities in a principal amount equal to the
unredeemed portion thereof will be issued. On and after the date fixed for
redemption, interest will cease to accrue on the portions of the Securities
called for redemption.
A-10
<PAGE>
7. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of, or exchange Securities in accordance with, the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption prior to 15 days after the
notice of redemption.
8. Persons Deemed Owners.
The registered Holder of a Security may be treated as the owner of it
for all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Company. After that, all liability of the Trustee and such Paying Agent(s)
with respect to such money shall cease.
10. Defeasance and Discharge Prior to Redemption or Maturity.
Except as set forth in the Indenture, if the Issuers irrevocably
deposit with the Trustee, in trust, for the benefit of the Holders, U.S. Legal
Tender and Government Securities or a combination thereof, in such amounts as
will be sufficient in the opinion of a nationally recognized firm of independent
public accountants selected by the Trustee, to pay the principal of, premium, if
any, and interest on the Securities to redemption or maturity and comply with
the other provisions of the Indenture relating thereto, the Issuers will be
discharged from certain provisions of the Indenture and the Securities
(including the financial covenants, but excluding their obligation to pay the
principal of (and premium, if any) and interest on the Securities). Upon
satisfaction of certain additional conditions set forth in the Indenture, the
Company may elect to have the Issuers' obligations discharged with respect to
outstanding Securities.
In addition, the Indenture will be discharged in full as to all
outstanding Securities when (a) either (i) all Securities are delivered to the
Trustee for authentication or (ii) all Securities not so delivered have become
A-11
<PAGE>
due and payable, will become due and payable within one year or are to be called
for redemption within one year, and in either event the Issuers have deposited
with the Trustee an amount in United States dollars sufficient to pay and
discharge all of the Securities, (b) the Issuers have paid all other sums
payable under the Indenture by them and (c) the Issuers have delivered an
officer's certificate and opinion of counsel related thereto.
11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding, and
any existing Default or Event of Default or compliance with any provision may be
waived with the consent of the Holders of a majority in aggregate principal
amount of the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
or make any other change that does not adversely affect the rights of any Holder
of a Security.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to, among other things, incur additional
Indebtedness and Disqualified Capital Stock, pay dividends or make certain other
restricted payments, enter into certain transactions with Affiliates, incur
Liens, sell assets, merge or consolidate with any other Person or transfer (by
lease, assignment or otherwise) substantially all of the properties and assets
of the Company. The limitations are subject to a number of important
qualifications and exceptions. The Issuers must periodically report to the
Trustee on compliance with such limitations.
13. Repurchase at Option of Holder; Special Mandatory Redemption.
(a) If there is a Change of Control, the Issuers shall be required to
offer to purchase on the Change of Control Purchase Date all outstanding
Securities at a purchase price equal to 101% of the principal amount thereof,
together with any accrued and unpaid interest, to the Change of Control Purchase
Date. Holders of Securities will receive a Change of Control Offer from the
Issuers prior to any related Change of Control Purchase Date and may elect to
have such Securities purchased by properly tendering such Securities pursuant to
the Change of Control Offer.
A-12
<PAGE>
(b) The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries to sell assets. In the event the
proceeds from a permitted Asset Sale exceed certain amounts, as specified in the
Indenture, the Company will be required either to reinvest the proceeds of such
Asset Sale as described in the Indenture or to make an offer to purchase each
Holder's Securities at 100% of the principal amount thereof, plus accrued
interest, if any, to the purchase date.
(c) Upon the earlier to occur of (i) termination of the Merger
Agreement and (ii) 60 days after the Issue Date if the Initial Escrow Funds have
not been released by that time (provided that the 60-day period may be extended
at the option of the Company on or prior to the 50th day after the Issue Date up
to an additional 30 days if (a) the Company shall have increased the amount of
cash by an additional amount (to be reasonably determined by the Initial
Purchasers on the same basis as the determination of the Additional Escrow
Amount) in the Initial Escrow and Pledge Account for the benefit of the holders
of the Securities, (b) the basis under which the Merger Agreement is not
satisfied on such 60th day relates to pending governmental or regulatory
approval or effectiveness of stockholder approval, (c) the lenders under the
Credit Facility shall, in their discretion, have extended their commitment to
lend to no earlier than the date to which the escrow has been extended and (d)
the Company shall have issued a press release on or prior to the 50th day after
the Issue Date in a commercially reasonable manner and notified the Trustee with
respect to such extension of the escrow period), the Issuers shall redeem all of
the outstanding Securities upon at least seven (7) days' and not more 20 days'
prior written notice to the Holders with the Initial Escrow Funds delivered to
the Paying Agent pursuant to the terms of the Pledge and Escrow Agreement, at a
redemption price equal to 101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the date of redemption.
14. Successors.
When a successor assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
A-13
<PAGE>
15. Defaults and Remedies.
If an Event of Default occurs and is continuing (other than as Event
of Default relating to certain events of bankruptcy, insolvency or
reorganization), then in every such case, unless the principal of all of the
Securities shall have already become due and payable, either the Trustee or the
Holders of 25% in aggregate principal amount of Securities then outstanding may
declare all the Securities to be due and payable immediately in the manner and
with the effect provided in the Indenture. The Holders of Securities may not
enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities then outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders of Securities notice of any continuing Default or Event of
Default (except a Default in payment of principal or interest), if it determines
that withholding notice is in their interest.
16. Collateral.
Prior to the Merger, the payment of the Securities will be secured
pursuant to the Pledge and Escrow Agreement by the net proceeds of the offering
of the Securities, together cash in the amount of $25 million. After the Merger,
the payment of the Securities will be secured by Pledged Securities held in an
account to secure and fund the first three scheduled interest payments on the
Securities. Once the first three scheduled interest payments are made, the
Securities will be unsecured.
17. Trustee Dealings with Issuers.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, perform investment advisory
or other management services and perform services for the Issuers or their
Affiliates, and may otherwise deal with the Issuers or their Affiliates as if it
were not the Trustee.
18. No Recourse Against Others.
No direct or indirect stockholder (or partner, limited liability
company member or employee of a stockholder), employee, officer or director, as
such, past, present or future, of the Issuers or any successor entity or any
Affiliate thereof shall have any personal liability in respect of the
obligations of the Issuers under the Securities or the Indenture by reason of
his or its status as such stockholder (or partner, limited liability company
member or employee of a stockholder), employee, officer or director. Each
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<PAGE>
Holder of a Security by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Securities.
19. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
20. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
21. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
22. Additional Rights of Holders of Transfer Restricted Securities.
In addition to the rights provided to Holders of Securities under the
Indenture, Holders of Securities shall have all the rights set forth in the
Registration Rights Agreement.
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<PAGE>
[FORM OF] ASSIGNMENT
I or we assign this Security to
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
and irrevocably appoint __________ agent to transfer this Security on the books
of the Issuers. The agent may substitute another to act for him.
Dated: __________ Signed: ______________________________
(Sign exactly as name appears on
the other side of this Security)
Signature(s) must be guaranteed by an eligible guarantor institution (banks,
stock brokers, savings and loan associations and credit unions with membership
in an approved signature guarantee medallion program) pursuant to Securities and
Exchange Commission Rule 17Ad-15.
A-16
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuers
pursuant to Section 4.14 or Article XI of the Indenture, check the appropriate
box:
|_| Section 4.14 |_| Article XI If you want to elect to have only
part of this Security purchased by the Issuers pursuant to Section 4.14 or
Article XI of the Indenture, as the case may be, state the principal amount you
want to be purchased: $__________
Date: ________________ Signature: ___________________________________
(Sign exactly as your
name appears on the
other side of this Security)
A-17
<PAGE>
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES[FN4]
<TABLE>
<CAPTION>
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
Principal
Amount of Amount of Amount of this Signature of
decrease in increase in Global Security authorized
Principal Principal following such officer of
Amount of this Amount of this decrease (or Trustee or
Date of Global Security Global Security increase) Securities
Exchange Custodian
- ---------------------- ---------------------- ---------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
</TABLE>
- --------
[FN4] This schedule should only be added if the Security is issued in
global form.
A-18
<PAGE>
EXHIBIT B
REGULATION S CERTIFICATE
(For transfers pursuant to ss. 2.15(a)(i) of the Indenture)
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Global Trust Services
Re: 10 3/4% Senior Subordinated Notes due 2008 of Centennial Cellular
Operating Co. LLC and Centennial Finance Corp.
Reference is made to the Indenture, dated as of December 14, 1998 (the
"Indenture"), between Centennial Cellular Operating Co. LLC, a Delaware limited
liability company (the "Company") and Centennial Finance Corp., a Delaware
corporation ("Centennial" and together with the Company, the "Issuers") and The
Chase Manhattan Bank, as Trustee. Terms used herein and defined in the Indenture
or in Regulation S or Rule 144 under the U.S. Securities Act of 1933 (the
"Securities Act") are used herein as so defined or with respect to Regulation S
or Rule 144 as such rules may be amended (including successor rules).
This certificate relates to US$____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner."
The Specified Securities are represented by a Global Security and are held
B-1
<PAGE>
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Regulation S Global Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 904 or Rule 144 under the Securities Act and with all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Securities, an
affiliate of the Issuers or any such distributor or a person acting on
behalf of any of the foregoing;
(B) the offer of the Specified Securities was not made to a
person in the United States;
(C) either:
(i) at the time the buy order was
originated, the Transferee was outside the
United States or the Owner and any person
acting on its behalf reasonably believed
that the Transferee was outside the United
States, or
(ii) the transaction is being
executed in, on or through the facilities of
the Eurobond market, as regulated by the
Association of International Bond Dealers,
or another designated offshore securities
market and neither the Owner nor any person
acting on its behalf knows that the
transaction has been prearranged with a
buyer in the United States;
(D) no directed selling efforts have been
made in the United States by or on behalf of the Owner or any
affiliate thereof;
(E) if the Owner is a dealer in securities
or has received a selling concession, fee or other
remuneration in respect of the Specified Securities, and
B-2
<PAGE>
the transfer is to occur during the Restricted Period, then the
requirements of Rule 904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or
scheme to evade the registration requirements of the
Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule
144) has elapsed since the Specified Securities were last
acquired from the Issuers or from an affiliate of the Issuers,
whichever is later, and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of Rule
144; or
(B) the transfer is occurring after a holding period of at
least two years has elapsed since the Specified Securities were
last acquired from the Issuers or from an affiliate of the
Issuers, whichever is later, and the Owner is not, and during the
preceding three months has not been, an affiliate of the Issuers.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers and the Initial Purchasers.
Dated:
(Print the name of the
Undersigned, as such term
is defined in the second
paragraph of this
certificate.)
By:
Name:
Title:
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the
person signing on behalf of
the Undersigned must be
stated.)
B-3
<PAGE>
EXHIBIT C
RESTRICTED SECURITIES CERTIFICATE
(For transfers pursuant to ss. 2.15(a)(ii) of the Indenture)
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Global Trust Services
Re: 10 3/4% Senior Subordinated Notes due 2008 of Centennial
Cellular Operating Co. LLC and Centennial Finance Corp.
Reference is made to the Indenture, dated as of December 14, 1998 (the
"Indenture"), between Centennial Cellular Operating Co. LLC, a Delaware limited
liability company (the "Company") and Centennial Finance Corp., a Delaware
corporation ("Centennial" and together with the Company, the "Issuers") and The
Chase Manhattan Bank, as Trustee. Terms used herein and defined in the Indenture
or in Rule 144A or Rule 144 under the U.S. Securities Act of 1933 (the
"Securities Act") are used herein as so defined or with respect to Regulation S
or Rule 144 as such rules may be amended (including successor rules).
This certificate relates to US$_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
ISIN No(s). If any. ____________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the
C-1
<PAGE>
"Owner." The Specified Securities are represented by a Global Security and are
held through the Depositary or an Agent Member in the name of the Undersigned,
as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Restricted Security. In connection with such transfer, the Owner hereby
certifies that, unless such transfer is being effected pursuant to an effective
registration statement under the Securities Act, it is being effected in
accordance with Rule 144A or Rule 144 under the Securities Act and all
applicable securities laws of the states of the United States and other
jurisdictions. Accordingly, the Owner hereby further certifies as follows:
(1) Rule 144A Transfers. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a
person that the Owner and any person acting on its behalf reasonably
believe is a "qualified institutional buyer" within the meaning of
Rule 144A, acquiring for its own account or for the account of a
qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner
may be relying on Rule 144A in connection with the transfer; and
(2) Rule 144 Transfers. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule 144)
has elapsed since the Specified Securities were last acquired from the
Issuers or from an affiliate of the Issuers, whichever is later, and
is being effected in accordance with the applicable amount, manner of
sale and notice requirements of Rule 144; or
(B) the transfer is occurring after a holding period of at
least two years has elapsed since the Specified Securities were last
acquired from the Issuers or from an affiliate of the Issuers,
whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Issuers.
C-2
<PAGE>
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers and the Initial Purchasers.
Dated:
(Print the name of the
Undersigned, as such term
is defined in the second
paragraph of this
certificate.)
By:
Name:
Title:
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the
person signing on behalf of
the Undersigned must be
stated.)
C-3
<PAGE>
EXHIBIT D
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Securities Act Legends pursuant to ss. 2.15(b))
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attention: Global Trust Services
Re: 10 3/4% Senior Subordinated Notes due 2008 of Centennial Cellular
Operating Co. LLC and Centennial Finance Corp.
Reference is made to the Indenture, dated as of December 14, 1998 (the
"Indenture"), between Centennial Cellular Operating Co. LLC, a Delaware limited
liability company (the "Company") and Centennial Finance Corp., a Delaware
corporation ("Centennial" and together with the Company, the "Issuers") and The
Chase Manhattan Bank, as Trustee. Terms used herein and defined in the Indenture
or in Rule 144 under the U.S. Securities Act of 1933 (the "Securities Act") are
used herein as so defined or with respect to Rule 144 as such rule may be
amended (including successor rules).
This certificate relates to US$_____________ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
CUSIP No(s). ___________________________
CERTIFICATE No(s). _____________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
D-1
<PAGE>
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be exchanged for
Securities bearing no Private Placement Legend pursuant to Section 2.15(b) of
the Indenture. In connection with such exchange, the Owner hereby certifies that
the exchange is occurring after a holding period of at least two years (computed
in accordance with paragraph (d) of Rule 144) has elapsed since the Specified
Securities were last acquired from the Issuers or from an affiliate of the
Issuers, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Issuers. The Owner also
acknowledges that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Issuers and the Initial Purchasers.
Dated:
(Print the name of the
Undersigned, as such term
is defined in the second
paragraph of this
certificate.)
By:
Name:
Title:
(If the Undersigned is a
corporation, partnership or
fiduciary, the title of the
person signing on behalf of
the Undersigned must be
stated.)
D-2
<PAGE>
EXHIBIT E
Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions
If to the Issuers:
Name Telephone Number
1. Peter Chehayl (732) 919-1000
2. Thomas Bucks (732) 919-1000
E-1
<PAGE>
EXHIBIT F
INTERCOMPANY NOTE
Evidences of all loans or advances ("Loans") made hereunder shall be
reflected on the grid attached hereto. FOR VALUE RECEIVED, ________________, a
_______________ corporation (the "Maker"), HEREBY PROMISES TO PAY ON DEMAND to
the order of ________________________ (the "Holder") the principal sum of the
aggregate unpaid principal amount of all Loans (plus accrued interest thereon)
at any time and from time to time made hereunder which has not been previously
paid.
All capitalized terms used herein that are defined in, or by reference
in, the Indenture between Centennial Cellular Operating Co. LLC, a Delaware
limited liability company (the "Company"), Centennial Finance Corp., a Delaware
corporation ("Finance Corp.") and The Chase Manhattan Bank, as trustee, dated as
of December 14, 1998 (the "Indenture"), have the meanings assigned to such terms
therein, or by reference therein, unless otherwise defined.
ARTICLE I
TERMS OF INTERCOMPANY NOTE
Section 1.01 Note Not Forgivable. Unless the Maker of the Loan
hereunder is the Company or any Guarantor, the Holder may not forgive any
amounts owing under this intercompany note.
Section 1.02 Interest: Prepayment. (a) The interest rate ("Interest
Rate") on the Loans shall be a rate per annum reflected on the grid attached
hereto.
(b) The interest, if any, payable on each of the Loans shall accrue
from the date such Loan is made and, subject to Section 2.01, shall be payable
upon demand of the Holder.
(c) To the extent permitted by law, if the principal or accrued
interest, if any, of the Loans is not paid on the date demand is made, interest
on the unpaid principal and interest will accrue at a rate equal to the Interest
Rate, if any, plus 100 basis points per annum from maturity until the principal
and interest on such Loans are fully paid.
F-1
<PAGE>
(d) Subject to Section 2.01, any amounts hereunder may be repaid at
any time by the Maker.
Section 1.02 Subordination. All Loans hereunder shall be subordinated
in right of payment to the payment and performance of the obligations of the
Company and any Subsidiary (which Subsidiary is also an obligor under the
Indenture, the Securities, a Guarantee or other Senior Indebtedness or Pari
Passu Indebtedness, as the case may be, whether as a borrower or guarantor)
under the Indenture, the Securities, the Guarantees or any other Indebtedness
ranking senior to or pari passu with the Securities; provided, that this
provision shall not prohibit the repayment by any Subsidiary of any Loans of
which the Company is the Holder.
ARTICLE II
EVENTS OF DEFAULT
Section 2.01 Events of Default. If after the date of issuance of this
Loan (i) an Event of Default has occurred under the Indenture, (ii) an Event of
Default (as defined) has occurred under the Credit Facility or (iii) an "event
of default" (as defined) has occurred under any other Indebtedness of the
Company or any Subsidiary, then (x) in the event the Maker is (A) a Subsidiary
which is not a Guarantor or (B) a Guarantor in the case where the Holder is the
Company, all amounts owing under the Loans hereunder shall be immediately due
and payable to the Holder, (y) in the event the Maker is the Company, the
amounts owing under the Loans hereunder shall not be due and payable at any time
and shall not be paid and (z) in the event the Maker is a Guarantor and the
Holder is not the Company or any Guarantor, the amounts owing under the Loans
hereunder shall not be due and payable at any time and shall not be paid;
provided, however, that if such Event of Default or event of default has been
waived, cured or rescinded, such amounts shall no longer be due and payable in
the case of clause (x), and such amounts may be paid in the case of clauses (y)
and (z). If the Holder is a Subsidiary, then the Holder hereby agrees that if it
receives any payments or distributions on any Loan from the Company or a
Guarantor which is not payable pursuant to clause (y) or (z) of the prior
sentence after any Event of Default described in clauses (i) or (ii) or any
event of default described in clause (iii) above has occurred, is continuing and
has not been waived, cured or rescinded, it will pay over and deliver forthwith
to the Company or such Guarantor, as the case may be, all such payments and
distributions.
F-2
<PAGE>
ARTICLE III
MISCELLANEOUS
Section 3.01 Amendments, Etc. No amendment or waiver of any provision
of this intercompany note, or consent to depart herefrom is permitted at any
time for any reason, except with the consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities.
Section 3.02 Assignment. No party to this Agreement may assign, in
whole or in part, any of its rights and obligations under this intercompany
note, except to its legal successor in interest.
Section 3.03 Third Party Beneficiaries. The holders of the Securities
or any other Indebtedness ranking pari passu with or senior to, the Securities
or any Guarantees, including without limitation, any Indebtedness incurred under
the Credit Facility, shall be third party beneficiaries to this intercompany
note and upon an Event of Default shall have the right to enforce this
intercompany note against the Company or any of its Subsidiaries.
Section 3.04 Headings. Article and Section headings in this
intercompany note are included for convenience of reference only and shall not
constitute a part of this intercompany note for any other purpose.
Section 3.05 Entire Agreement. This intercompany note sets forth the
entire agreement of the parties with respect to its subject matter and
supersedes all previous understandings, written or oral, in respect thereof.
Section 3.06 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING
EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
F-3
<PAGE>
Section 3.07 Waivers. The Maker hereby waives presentment, demand for
payment, notice of protest and all other demands and notices in connection with
the delivery, acceptance, performance or enforcement hereof.
By: __________________________________
BORROWINGS, MATURITIES, AND PAYMENTS OF PRINCIPAL
<TABLE>
<CAPTION>
Amount of Maturity of Amount
Borrowing/ Borrowing/ Principal Paid Unpaid Principal Notation
Date Principal Principal or Prepaid Balance Made by
<S> <C> <C> <C> <C> <C>
</TABLE>
F-4
<PAGE>
EXHIBIT G
ASSUMPTION AGREEMENT AND
SUPPLEMENTAL INDENTURE NO. 1 TO THE INDENTURE
Supplemental Indenture and Assumption Agreement, dated as of
______________ (this "Assumption Agreement") by Centennial Cellular Corp., a
Delaware corporation (together with its successors, "Centennial"), Centennial
Cellular Operating Co. LLC, a Delaware limited liability company (the "Company")
and The Chase Manhattan Bank, as Trustee (the "Trustee").
WITNESSETH:
WHEREAS the corporation formerly named Centennial Finance Corp., a
Delaware corporation ("Finance Corp."), the Company and the Trustee have
heretofore executed and delivered an Indenture, dated as of December 14, 1998
(as amended, the "Indenture"), providing for the issuance of $370,000,000 of the
10 3/4% Senior Subordinated Notes due 2008 of the Company and Finance Corp. (the
"Notes");
WHEREAS immediately after the consummation of the merger of CCW
Acquisition Corp., a Delaware corporation, with and into Centennial, with
Centennial surviving (the "Acquisition Merger"), Finance Corp. merged with and
into Centennial, with Centennial surviving (the "Merger"); and
WHEREAS, pursuant to Section 5.1 of the Indenture, the Company,
Centennial and the Trustee are authorized to execute and deliver this
Supplemental Indenture and Assumption Agreement;
NOW, THEREFORE, each party hereto agrees as follows for the benefit of
each other party and for the equal and ratable benefit of the Holders of the
Notes as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture. For all purposes, except as
otherwise expressly provided or unless the context otherwise requires: (i) the
terms and expressions used herein shall have the same meanings as the
corresponding terms and expressions used in the Indenture; and (ii) the words
"herein," "hereof," and "hereunder" and other words of similar import refer to
this Assumption Agreement as a whole and not to any particular section or other
subdivision hereof.
G-1
<PAGE>
2. Express Assumption. Centennial hereby acknowledges and agrees that
as a result of it being the surviving corporation in the Merger with Finance
Corp. it has succeeded to all the obligations of Finance Corp. under the Notes
and the Indenture. Centennial hereby expressly assumes all the covenants,
agreements, terms, conditions, obligations, appointments, duties and liabilities
of Finance Corp. under the Notes and the Indenture and acknowledges that all
references to Finance Corp. in the Indenture shall be deemed to be references to
Centennial from and after the date and time of this Assumption Agreement.
Centennial shall perform and observe all the covenants, agreements, terms,
conditions, obligations, appointments, duties and liabilities of "Finance Corp."
under the Indenture from and after the date hereof. The references to
"Centennial" in the Indenture shall not be affected by this Assumption
Agreement.
3. Ratification of Indenture; Assumption Agreement Part of Indenture.
Except as expressly amended hereby, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect. This Assumption Agreement shall form a part of the
Indenture for all purposes, and every Holder of Notes heretofore or hereafter
authenticated and delivered shall be bound hereby.
4. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK.
5. Trustee Makes No Representations. The Trustee makes no
representation as to the validity or sufficiency of this Assumption Agreement.
6. Effect of Headings. The Section headings of this Assumption
Agreement have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms of provisions thereof.
7. Counterparts. This Assumption Agreement may be signed in any number
of counterparts with the same effect as if the signatures to each counterpart
were upon a single instrument, and all such counterparts together shall be
deemed an original of this Assumption Agreement.
G-2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Assumption
Agreement to be duly executed as of the day and year first above written.
CENTENNIAL CELLULAR OPERATING CO. LLC
By: Centennial Cellular Corp.
By
Name:
Title:
CENTENNIAL CELLULAR CORP.
By
Name:
Title:
THE CHASE MANHATTAN BANK
By
Name:
Title:
G-3
ASSUMPTION AGREEMENT AND
SUPPLEMENTAL INDENTURE NO. 1 TO THE INDENTURE
Supplemental Indenture and Assumption Agreement, dated as of January
7, 1999 (this "Assumption Agreement") by Centennial Cellular Corp., a Delaware
corporation (together with its successors, "Centennial"), Centennial Cellular
Operating Co. LLC, a Delaware limited liability company (the "Company") and The
Chase Manhattan Bank, as Trustee (the "Trustee").
WITNESSETH:
WHEREAS the corporation formerly named Centennial Finance Corp., a
Delaware corporation ("Finance Corp."), the Company and the Trustee have
heretofore executed and delivered an Indenture, dated as of December 14, 1998
(as amended, the "Indenture"), providing for the issuance of $370,000,000 of the
10 3/4% Senior Subordinated Notes due 2008 of the Company and Finance Corp. (the
"Notes");
WHEREAS immediately after the consummation of the merger of CCW
Acquisition Corp., a Delaware corporation, with and into Centennial, with
Centennial surviving (the "Acquisition Merger"), Finance Corp. merged with and
into Centennial, with Centennial surviving (the "Merger"); and
WHEREAS, pursuant to Section 5.1 of the Indenture, the Company,
Centennial and the Trustee are authorized to execute and deliver this
Supplemental Indenture and Assumption Agreement;
NOW, THEREFORE, each party hereto agrees as follows for the benefit of
each other party and for the equal and ratable benefit of the Holders of the
Notes as follows:
1. Definitions. Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture. For all purposes, except as
otherwise expressly provided or unless the context otherwise requires: (i) the
terms and expressions used herein shall have the same meanings as the
corresponding terms and expressions used in the Indenture; and (ii) the words
"herein," "hereof," and "hereunder" and other words of similar import refer to
this Assumption Agreement as a whole and not to any particular section or other
subdivision hereof.
2. Express Assumption. Centennial hereby acknowledges and agrees that
as a result of it being the surviving corporation in the Merger with Finance
Corp. it has succeeded to all the obligations of Finance Corp. under the Notes
and the Indenture. Centennial hereby expressly assumes all the covenants,
agreements, terms, conditions, obligations, appointments, duties and liabilities
of Finance Corp. under the Notes and the Indenture and acknowledges that all
references to Finance Corp. in the Indenture shall be deemed to be references to
Centennial from and after the date and time of this Assumption Agreement.
Centennial shall perform and observe
<PAGE>
all the covenants, agreements, terms, conditions, obligations, appointments,
duties and liabilities of "Finance Corp." under the Indenture from and after the
date hereof. The references to "Centennial" in the Indenture shall not be
affected by this Assumption Agreement.
3. Ratification of Indenture; Assumption Agreement Part of Indenture.
Except as expressly amended hereby, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect. This Assumption Agreement shall form a part of the
Indenture for all purposes, and every Holder of Notes heretofore or hereafter
authenticated and delivered shall be bound hereby.
4. GOVERNING LAW. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK.
5. Trustee Makes No Representations. The Trustee makes no
representation as to the validity or sufficiency of this Assumption Agreement.
6. Effect of Headings. The Section headings of this Assumption
Agreement have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms of provisions thereof.
7. Counterparts. This Assumption Agreement may be signed in any number
of counterparts with the same effect as if the signatures to each counterpart
were upon a single instrument, and all such counterparts together shall be
deemed an original of this Assumption Agreement.
2
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Assumption
Agreement to be duly executed as of the day and year first above written.
CENTENNIAL CELLULAR OPERATING
CO. LLC
By: Centennial Finance Corp.
By: /s/ Peter W. Chehayl
Name: Peter W. Chehayl
Title: Vice President
CENTENNIAL CELLULAR CORP.
By: /s/ Peter W. Chehayl
Name: Peter W. Chehayl
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Jennifer F. Smith
Name: Jennifer F. Smith
Title: Trust Officer
3
------------------------------------------------------------
CENTENNIAL CELLULAR CORP.
and
BANK OF MONTREAL TRUST COMPANY, Trustee
---------------------------------------
Third Supplemental Indenture
Dated as of January 7, 1999
---------------------------------------
8 7/8% Senior Notes due 2001
------------------------------------------------------------
<PAGE>
THIRD SUPPLEMENTAL INDENTURE, dated as of January 7, 1999 (the "Third
Supplemental Indenture"), to the Indenture, dated as of November 15, 1993 (the
"Indenture") and the First Supplemental Indenture, dated as of November 15, 1993
(the "First Supplemental Indenture"), between CENTENNIAL CELLULAR CORP., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), having its principal office at 50 Locust Avenue, New Canaan,
Connecticut 06840, and BANK OF MONTREAL TRUST COMPANY, a New York banking
corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
the Indenture to provide for the issuance from time to time of one or more
series of its senior debt securities (the "Notes") to be issued in one or more
series as in the Indenture provided;
WHEREAS, the Company has duly executed and delivered the First
Supplemental Indenture in order to establish and provide for the issuance by the
Company of a series of Notes designated as its 8 7/8% Senior Notes due 2001 (the
"8 7/8% Notes") in the aggregate principal amount of $250,000,000;
WHEREAS, in connection with the merger (the "Merger") of the Company
with CCW Acquisition Corp., a Delaware corporation ("CCW") organized at the
direction of Welsh, Carson, Anderson & Stowe VIII, L.P., a Delaware limited
partnership ("WCAS"), the Company has offered to purchase for cash (each such
offer, a "Tender Offer" and collectively, the "Tender Offers"), upon the terms
and subject to the conditions set forth in that certain Offer to Purchase and
Consent Solicitation (as it may be amended from time to time, the "Offer to
Purchase and Consent Solicitation") and the related Consent and Letter of
Transmittal (the "Consent and Letter of Transmittal" and together with the Offer
to Purchase and Consent Solicitation, the "Offer Documents"), all of the Notes
for a cash purchase price with respect to each series of Notes as further
described in the Offer to Purchase and Consent Solicitation;
WHEREAS, in conjunction with the Tender Offers, the Company has
solicited (with respect to each series of Notes, a "Solicitation" and
collectively the "Solicitations") consents (the "Consents") from Holders of not
less than a majority in aggregate principal amount outstanding, of each series
of Notes not owned by the Company or its affiliates (the "Requisite Consents")
to the Proposed Amendments to the Indenture and the First and Second
Supplemental Indentures (collectively, the "Indentures") under which each such
<PAGE>
series of Notes was issued which would eliminate or modify certain of the
covenants and events of default in the Indentures as further described in the
Offer to Purchase and Consent Solicitation;
WHEREAS, this Supplemental Indenture to the First Supplemental
Indenture relating to the Proposed Amendments with respect to the 8 7/8% Notes
shall be known as the Third Supplemental Indenture;
WHEREAS, the Company desires and has requested the Trustee to join it
in the execution and delivery of this Third Supplemental Indenture in order to
give full effect to the Proposed Amendments with respect to its 8 7/8% Notes;
WHEREAS, Section 10.02 of the Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee with the consent of
the holders of a majority in principal amount of each series of Notes provided
certain conditions are met;
WHEREAS, the conditions set forth in the Indenture for the execution
and delivery of this Third Supplemental Indenture have been complied with; and
WHEREAS, all things necessary have been done to make this Third
Supplemental Indenture a valid agreement of the Company and the Trustee, in
accordance with its terms, and a valid amendment of, and supplement to, the
Indenture and the First Supplemental Indenture;
NOW, THEREFORE:
In consideration of the premises and the purchase and acceptance of
the Notes by the holders thereof, the Company mutually covenants and agrees with
the Trustee, for the equal and proportionate benefit of all holders of the
Notes, that the Indentures are supplemented and amended, to the extent and for
the purposes expressed herein, as follows:
PARAGRAPH A
AMENDMENTS TO THE INDENTURE
SECTION 11.08. Statement by Officers as to Default.
Section 11.08 of the Indenture, which shall apply to the Notes, is
amended and restated in its entirety to read as follows:
"SECTION 11.08. Intentionally Omitted."
<PAGE>
PARAGRAPH B
AMENDMENTS TO THE FIRST SUPPLEMENTAL INDENTURE
SECTION 9.01. Restrictions on Merger, Consolidation and
Sale of Substantially All Assets.
Section 9.01 of the First Supplemental Indenture, which shall apply to
the 8 7/8% Notes, is amended and restated in its entirety to read as follows:
"SECTION 9.01. "Intentionally Omitted."
SECTION 9.02. Successor Corporation Substituted.
Section 9.02 of the First Supplemental Indenture, which shall apply to
the 8 7/8% Notes, is amended and restated in its entirety to read as follows:
"SECTION 9.02. Intentionally Omitted."
SECTION 11.10. Limitations on Debt and Preferred Stock.
Section 11.10 of the First Supplemental Indenture, which shall apply
to the 8 7/8% Notes, is amended and restated in its entirety to read as follows:
"SECTION 11.10. Intentionally Omitted."
SECTION 11.11. Limitations on Restricted Payments.
Section 11.11 of the First Supplemental Indenture, which shall apply
to the 8 7/8% Notes, is amended and restated in its entirety to read as follows:
"SECTION 11.11. Intentionally Omitted."
SECTION 11.12. Limitations on Transactions with Affiliates.
Section 11.12 of the First Supplemental Indenture, which shall apply
to the 8 7/8% Notes, is amended and restated in its entirety to read as follows:
"SECTION 11.12. Intentionally Omitted."
SECTION 11.13. Limitations on Dividend Restrictions Affecting Subsidiaries.
<PAGE>
Section 11.13 of the First Supplemental Indenture, which shall apply
to the 8 7/8% Notes, is amended and restated in its entirety to read as follows:
"SECTION 11.13. Intentionally Omitted."
SECTION 11.14. Limitations on Liens Securing Debt.
Section 11.14 of the First Supplemental Indenture, which shall apply
to the 8 7/8% Notes, is amended and restated in its entirety to read as follows:
"SECTION 11.14. Intentionally Omitted."
SECTION 11.15. Limitations on Sale of Assets and Subsidiary Stock.
Section 11.15 of the First Supplemental Indenture, which shall apply
to the 8 7/8% Notes, is amended and restated in its entirety to read as follows:
"SECTION 11.15. Intentionally Omitted."
SECTION 11.17. SEC Reports
Section 11.17 of the First Supplemental Indenture, which shall apply
to the 8 7/8% Notes, is amended and restated in its entirety to read as follows:
"SECTION 11.17. Intentionally Omitted."
ARTICLE SIX -- REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENTS OF DEFAULT.
Section 6.01 of the First Supplemental Indenture, which shall apply to
the 8 7/8% Notes, is amended and restated in its entirety to read as follows:
"SECTION 6.01. Events of Default.
"Event of Default," whenever used herein with respect to the Notes,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
<PAGE>
(1) default in the payment of interest upon any Note when it
becomes due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Note when the same becomes due and payable at maturity,
upon acceleration, optional or mandatory redemption, required
repurchase or otherwise; or
(3) the Company fails to observe, perform or comply with any of
its agreements or covenants pursuant to Section 11.16 hereof; or
(4) the Company or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law (a) commences a voluntary
case; (b) consents to the entry of an order for relief against it in
an involuntary case; (c) consents to the appointment of a Custodian of
it or for all or substantially all of its property; (d) makes a
general assignment for the benefit of its creditors or generally is
not paying its debts as they become due; or
(5) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (a) is for relief against the Company
or any Restricted Subsidiary in an involuntary case; (b) appoints a
Custodian of the Company or any Restricted Subsidiary or for all or
substantially all of the property of the Company or any Restricted
Subsidiary; or (c) orders the liquidation of the Company or any
Restricted Subsidiary, and the order or decree remains unstayed and in
effect for 60 consecutive days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law."
PARAGRAPH C
EFFECTIVENESS
This Supplemental Indenture shall become effective in accordance
herewith upon its execution but shall become operative and shall supersede the
Indenture and the First Supplemental Indenture to the extent provided herein
only if, and on the date (the "Operative Date") that, the Company consummates
the purchase of the Notes pursuant to and in accordance with the terms of the
Offer to Purchase and Consent Solicitation, dated September 8, 1998. From and
after such date, the Indenture and the First Supplemental Indenture shall apply
only to the extent not amended and superseded hereby. The Company shall notify
the trustee of the Operative Date promptly after such date. Any failure of the
Company to give such notice, or any defect therein, shall not, however, in any
way impair or affect (a) the validity of this Supplemental Indenture or (b) this
Supplemental Indenture becoming operative pursuant to this Paragraph C.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year above first
above written.
CENTENNIAL CELLULAR CORP.
By: /s/ Scott N. Schneider
______________________________
Title: Senior Vice President
Chief Financial Officer
and Treasurer
[CORPORATE SEAL]
ATTEST:
/s/ Scott N. Schneider
______________________________
BANK OF MONTREAL TRUST
COMPANY, as Trustee
By: /s/ Amy Roberts
______________________________
Title: Vice President
[CORPORATE SEAL]
ATTEST:
/s/ Amy Roberts
______________________________
<PAGE>
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 7th day of January, 1999, before me personally came Scott N.
Schneider, to me known, who, being by me duly sworn, did depose and say that he
is Senior Vice President, Chief Financial Officer and Treasurer of CENTENNIAL
CELLULAR CORP., one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
[NOTARIAL SEAL]
/s/ Carol Reese
______________________________
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 7th day of January, 1999, before me personally came Amy
Roberts, to me known, who, being by me duly sworn, did depose and say that she
is Vice President of BANK OF MONTREAL TRUST COMPANY, one of the corporations
described in and which executed the foregoing instrument; that she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that she signed her name thereto by like authority.
[NOTARIAL SEAL]
/s/ Estelle A. Redding
______________________________
Notary Public
- --------------------------------------------------------------------------------
CENTENNIAL CELLULAR CORP.
and
BANK OF MONTREAL TRUST COMPANY, Trustee
---------------------------------------
Fourth Supplemental Indenture
Dated as of January 7, 1999
---------------------------------------
10 1/8% Senior Notes due 2005
- --------------------------------------------------------------------------------
<PAGE>
FOURTH SUPPLEMENTAL INDENTURE, dated as of January 7, 1999 (the
"Fourth Supplemental Indenture"), to the Indenture, dated as of November 15,
1993 (the "Indenture") and the Second Supplemental Indenture, dated as of May
11, 1995 (the "Second Supplemental Indenture"), between CENTENNIAL CELLULAR
CORP., a corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), having its principal office at 50 Locust Avenue, New
Canaan, Connecticut 06840, and BANK OF MONTREAL TRUST COMPANY, a New York
banking corporation, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of
the Indenture to provide for the issuance from time to time of one or more
series of its senior debt securities (the "Notes") to be issued in one or more
series as in the Indenture provided;
WHEREAS, the Company has duly executed and delivered the Second
Supplemental Indenture in order to establish and provide for the issuance by the
Company of a series of Notes designated as its 10 1/8% Senior Notes due 2005
(the "10 1/8% Notes") in the aggregate principal amount of $100,000,000;
WHEREAS, in connection with the merger (the "Merger") of the Company
with CCW Acquisition Corp., a Delaware corporation ("CCW") organized at the
direction of Welsh, Carson, Anderson & Stowe VIII, L.P., a Delaware limited
partnership ("WCAS"), the Company has offered to purchase for cash (each such
offer, a "Tender Offer" and collectively, the "Tender Offers"), upon the terms
and subject to the conditions set forth in that certain Offer to Purchase and
Consent Solicitation (as it may be amended from time to time, the "Offer to
Purchase and Consent Solicitation") and the related Consent and Letter of
Transmittal (the "Consent and Letter of Transmittal" and together with the Offer
to Purchase and Consent Solicitation, the "Offer Documents"), all of the Notes
for a cash purchase price with respect to each series of Notes as further
described in the Offer to Purchase and Consent Solicitation;
WHEREAS, in conjunction with the Tender Offers, the Company has
solicited (with respect to each series of Notes, a "Solicitation" and
collectively "the Solicitations") consents (the "Consents") from Holders of not
less than a majority in aggregate principal amount outstanding, of each series
of Notes not owned by the Company or its affiliates (the "Requisite Consents")
to the Proposed Amendments to the Indenture and the First and Second
Supplemental Indentures (collectively, the "Indentures") under which each such
series of Notes was issued which would eliminate or modify certain of the
covenants and events of default in the Indentures as further described in the
Offer to Purchase and Consent Solicitation;
- 2 -
<PAGE>
WHEREAS, this Supplemental Indenture to the Second Supplemental
Indenture relating to the Proposed Amendments with respect to the 10 1/8% Notes
shall be known as the Fourth Supplemental Indenture;
WHEREAS, the Company desires and has requested the Trustee to join it
in the execution and delivery of this Fourth Supplemental Indenture in order to
give full effect to the Proposed Amendments with respect to its 10 1/8% Notes;
WHEREAS, Section 10.02 of the Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee with the consent of
the holders of a majority in principal amount of each series of Notes provided
certain conditions are met;
WHEREAS, the conditions set forth in the Indenture for the execution
and delivery of this Fourth Supplemental Indenture have been complied with; and
WHEREAS, all things necessary have been done to make this Fourth
Supplemental Indenture a valid agreement of the Company and the Trustee, in
accordance with its terms, and a valid amendment of, and supplement to, the
Indenture and the Second Supplemental Indenture;
NOW, THEREFORE:
In consideration of the premises and the purchase and acceptance of
the Notes by the holders thereof, the Company mutually covenants and agrees with
the Trustee, for the equal and proportionate benefit of all holders of the
Notes, that the Indentures are supplemented and amended, to the extent and for
the purposes expressed herein, as follows:
PARAGRAPH A
AMENDMENTS TO THE INDENTURE
SECTION 11.08. Statement by Officers as to Default.
Section 11.08 of the Indenture, which shall apply to the Notes, is
amended and restated in its entirety to read as follows:
"SECTION 11.08. Intentionally Omitted."
- 3 -
<PAGE>
PARAGRAPH B
AMENDMENTS TO THE SECOND SUPPLEMENTAL INDENTURE
SECTION 9.01. Restrictions on Merger, Consolidation and Sale of Substantially
All Assets.
Section 9.01 of the Second Supplemental Indenture, which shall apply
to the 10 1/8% Notes, is amended and restated in its entirety to read as
follows:
"SECTION 9.01. Intentionally Omitted."
SECTION 9.02. Successor Corporation Substituted.
Section 9.02 of the Second Supplemental Indenture, which shall apply
to the 10 1/8% Notes, is amended and restated in its entirety to read as
follows:
"SECTION 9.02. Intentionally Omitted."
SECTION 11.10. Limitations on Debt and Preferred Stock.
Section 11.10 of the Second Supplemental Indenture, which shall apply
to the 10 1/8% Notes, is amended and restated in its entirety to read as
follows:
"SECTION 11.10. Intentionally Omitted."
SECTION 11.11. Limitations on Restricted Payments.
Section 11.11 of the Second Supplemental Indenture, which shall apply
to the 10 1/8% Notes, is amended and restated in its entirety to read as
follows:
"SECTION 11.11. Intentionally Omitted."
SECTION 11.12. Limitations on Transactions with Affiliates.
Section 11.12 of the Second Supplemental Indenture, which shall apply
to the 10 1/8% Notes, is amended and restated in its entirety to read as
follows:
"SECTION 11.12. Intentionally Omitted."
SECTION 11.13. Limitations on Dividend Restrictions Affecting Subsidiaries.
Section 11.13 of the Second Supplemental Indenture, which shall apply
to the 10 1/8% Notes, is amended and restated in its entirety to read as
follows:
"SECTION 11.13. Intentionally Omitted."
SECTION 11.14. Limitations on Liens Securing Debt.
- 4 -
<PAGE>
Section 11.14 of the Second Supplemental Indenture, which shall apply
to the 10 1/8% Notes, is amended and restated in its entirety to read as
follows:
"SECTION 11.14. Intentionally Omitted."
SECTION 11.15. Limitations on Sale of Assets and Subsidiary Stock.
Section 11.15 of the Second Supplemental Indenture, which shall apply
to the 10 1/8% Notes, is amended and restated in its entirety to read as
follows:
"SECTION 11.15. Intentionally Omitted."
SECTION 11.17. SEC Reports
Section 11.17 of the Second Supplemental Indenture, which shall apply
to the 10 1/8% Notes, is amended and restated in its entirety to read as
follows:
"SECTION 11.17. Intentionally Omitted."
ARTICLE SIX -- REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENTS OF DEFAULT.
Section 6.01 of the Second Supplemental Indenture, which shall apply
to the 10 1/8% Notes, is amended and restated in its entirety to read as
follows:
"SECTION 6.01. Events of Default.
"Event of Default," whenever used herein with respect to the Notes,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of interest upon any Note when it
becomes due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Note when the same becomes due and payable at maturity,
upon acceleration, optional or mandatory redemption, required
repurchase or otherwise; or
(3) the Company fails to observe, perform or comply with any of
its agreements or covenants pursuant to Section 11.16 hereof; or
- 5 -
<PAGE>
(4) the Company or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law (a) commences a voluntary
case; (b) consents to the entry of an order for relief against it in
an involuntary case; (c) consents to the appointment of a Custodian of
it or for all or substantially all of its property; (d) makes a
general assignment for the benefit of its creditors or generally is
not paying its debts as they become due; or
(5) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (a) is for relief against the Company
or any Restricted Subsidiary in an involuntary case; (b) appoints a
Custodian of the Company or any Restricted Subsidiary or for all or
substantially all of the property of the Company or any Restricted
Subsidiary; or (c) orders the liquidation of the Company or any
Restricted Subsidiary, and the order or decree remains unstayed and in
effect for 60 consecutive days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law."
PARAGRAPH C
EFFECTIVENESS
This Supplemental Indenture shall become effective in accordance
herewith upon its execution but shall become operative and shall supersede the
Indenture and the Second Supplemental Indenture to the extent provided herein
only if, and on the date (the "Operative Date") that, the Company consummates
the purchase of the Notes pursuant to and in accordance with the terms of the
Offer to Purchase and Consent Solicitation, dated September 8, 1998. From and
after such date, the Indenture and the Second Supplemental Indenture shall apply
only to the extent not amended and superseded hereby. The Company shall notify
the trustee of the Operative Date promptly after such date. Any failure of the
Company to give such notice, or any defect therein, shall not, however, in any
way impair or affect (a) the validity of this Supplemental Indenture or (b) this
Supplemental Indenture becoming operative pursuant to this Paragraph C.
- 6 -
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year above first
above written.
CENTENNIAL CELLULAR CORP.
By: /s/ Scott N. Schneider
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
[CORPORATE SEAL]
ATTEST:
/s/ Scott Schneider
BANK OF MONTREAL TRUST COMPANY,
as Trustee
By: /s/ Amy Roberts
Title: Vice President
[CORPORATE SEAL]
ATTEST:
/s/ Amy Roberts
- 7 -
<PAGE>
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 7th day of January, 1999, before me personally came,
Scott N. Schneider, to me known, who, being by me duly sworn, did depose and
say that he is Senior Vice President, Chief Financial Officer and Treasurer
of CENTENNIAL CELLULAR CORP., one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was
so affixed by authority of the Board of Directors of said corporation; and that
he signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ Carol Reese
Notary Public
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
On the 7th day of January, 1999, before me personally came
Amy Roberts, to me known, who, being by me duly sworn, did depose and
say that she is Vice President of BANK OF MONTREAL TRUST COMPANY, one of
the corporations described in and which executed the foregoing instrument; that
she knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that she signed her name thereto by
like authority.
[NOTARIAL SEAL]
/s/ Estelle A. Redding
Notary Public
- 8 -
PLEDGE AND ESCROW
AGREEMENT
Dated as of December 14, 1998
from
CENTENNIAL CELLULAR OPERATING CO. LLC
and
CENTENNIAL FINANCE CORP.
as Pledgors
to
THE CHASE MANHATTAN BANK
as Trustee
<PAGE>
PLEDGE AND ESCROW AGREEMENT
---------------------------
This PLEDGE AND ESCROW AGREEMENT (the "Pledge Agreement") is made and
entered into as of December 14, 1998 by and among CENTENNIAL CELLULAR OPERATING
CO. LLC, a Delaware limited liability company, having its principal office at
c/o Welsh, Carson, Anderson & Stowe, 320 Park Avenue, Suite 2500, New York, New
York 10022-6815 (the "Issuer") and CENTENNIAL FINANCE CORP., a Delaware
corporation, having its principal office at c/o Welsh, Carson, Anderson & Stowe,
320 Park Avenue, Suite 2500, New York, New York 10022-6815 ("Finance Corp." and,
together with the Issuer, the "Pledgors"), and The Chase Manhattan Bank, a trust
company duly organized and existing under the laws of the State of New York,
having its principal corporate trust office at 450 West 33rd Street, New York,
New York 10001, as trustee (the "Trustee") for the holders (the "Holders") of
the Notes (as defined herein) issued by the Pledgors under the Indenture
referred to below. Upon consummation of the merger (the "Merger") of CCW
ACQUISITION CORP., a Delaware corporation, with and into CENTENNIAL CELLULAR
CORP., a Delaware corporation ("Centennial"), Finance Corp. will merge with and
into Centennial, which will assume Finance Corp.'s obligation under the Pledge
Agreement as one of the Pledgors.
W I T N E S S E T H
WHEREAS, the Pledgors and the Initial Purchasers are parties to a
Purchase Agreement dated December 9, 1998 (the "Purchase Agreement"), pursuant
to which the Pledgors will issue and sell to the Initial Purchasers $370,000,000
in aggregate principal amount of 10 3/4% Senior Subordinated Notes due 2008 (the
"Series A Notes") which will be exchangeable into 10 3/4% Senior Subordinated
Notes due 2008, Series B (the "Series B Notes"), containing terms identical to
the Series A Notes in all material respects (except for references to certain
interest rate provisions, restrictions on transfers and restrictive legends)
(the Series A Notes and the Series B Notes being collectively referred to as the
"Notes");
WHEREAS, the Pledgors and the Trustee have entered into that certain
indenture dated as of the date hereof (as amended, restated, supplemented or
otherwise modified from time to time, the "Indenture"), pursuant to which the
Pledgors are issuing the Notes on the date hereof;
WHEREAS, pursuant to the Indenture, simultaneously with receipt of
payment for the Series A Notes (the "Deposit Time"), (i) all of the proceeds
from the sale of the Series A Notes after payment of the Initial Purchasers'
discount and (ii) an equity contribution from the equity investors of $25
million in cash (the funds referred to in clauses (i) and (ii) being
collectively referred to as the "Initial Funds") will be deposited into a
segregated trust account in the name of The Chase Manhattan Bank, as Trustee,
- 2 -
<PAGE>
for Centennial Cellular Operating Co. LLC and Centennial Finance Corp. Senior
Subordinated Note Holders (the "Initial Escrow and Pledge Account").
WHEREAS, this Pledge Agreement and the Initial Collateral (as defined
below) initially secure the Initial Secured Obligations (as defined below).
WHEREAS, the parties hereto desire to set forth their agreement with
regard to the administration of the Initial Escrow and Pledge Account, the
creation of a security interest in the Initial Collateral and the conditions
upon which a portion of the Initial Collateral will be released from the Initial
Escrow and Pledge Account;
WHEREAS, pursuant to the Indenture, upon release of a portion of the
Initial Collateral, the Pledgors are required to use the balance of funds (the
"Subsequent Funds") in the Initial Escrow and Pledge Account to cause the
Trustee to purchase and hold in the Subsequent Collateral Investment Account (as
defined below) or other account in pledge for the benefit of the Holders of the
Notes a portfolio of securities initially consisting of Government Securities
(as defined below) in an amount as will be sufficient upon receipt of scheduled
interest and principal payments of such securities, in the opinion of a
nationally recognized firm of independent public accountants selected by the
Pledgors, to provide for payment in full of the first three scheduled interest
payments due on the Notes (unless and to the extent already paid) at the stated
rate of 10 3/4% (excluding Additional Interest, if any) (the "First Three
Scheduled Interest Payments");
WHEREAS, the Pledgors will also open an account (the "Cash Collateral
Account") with the Trustee at its office in New York, New York, which will be in
the name of the Trustee for the benefit of the Pledgors but under the sole
dominion and control of the Trustee and subject to the terms of this Pledge
Agreement;
WHEREAS, this Pledge Agreement and the Subsequent Collateral (as
defined below) secures the Subsequent Secured Obligations; and
WHEREAS, the parties hereto desire to set forth their agreement with
regard to the administration of Cash Collateral Account, the creation and
perfection of a Security Interest in the Subsequent Collateral, the termination
of this Pledge Agreement and other matters.
Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Indenture.
AGREEMENT
NOW, THEREFORE, in consideration of the premises herein contained, and
in order to induce the Holders of the Notes to purchase the Notes, the Pledgors
and the Trustee hereby agree, for the benefit of the Trustee and for the ratable
benefit of the Holders of the Notes, as follows:
- 3 -
<PAGE>
SECTION 1. Definitions.
"Add-In Additional Escrow Amount" shall have the meaning specified in
Section 4.4 hereof.
"Anticipated Merger Date" shall have the meaning specified in Section
3.3 hereof.
"Cash Collateral Account" shall have the meaning specified in the
Recitals.
"Cash Equivalents" shall have the meaning specified in Section 3.3
hereof.
"Collateral" means and includes the Initial Collateral and the
Subsequent Collateral, as the case may be.
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"Credit Facility" means that certain Credit Facility to be entered
into among the Issuer, Centennial de Puerto Rico, the guarantors, Merrill Lynch
Capital Corporation and the other financial institutions party thereto, as such
agreement may be, in one or more agreements with one or more lending groups,
amended, renewed, extended, substituted, refinanced, restructured, replaced,
supplemented or otherwise modified, in whole or in part, from time to time
(including, without limitation, any successive renewals, extensions,
substitutions, refinancings, restructurings, replacements, supplementations or
other modifications of the foregoing).
"Credit Facilities Commitment Letter" means that certain Credit
Facilities Commitment Letter dated November 29, 1998 among CCW Acquisition
Corp., Merrill Lynch Capital Corporation, NationsBank, N.A. and The Chase
Manhattan Bank, as amended and restated by that certain Credit Facilities
Commitment Letter dated November 30, 1998 among CCW Acquisition Corp., Merrill
Lynch Capital Corporation, NationsBank, N.A., The Chase Manhattan Bank and The
Bank of Nova Scotia.
"Eligible Institution" means a commercial banking institution that has
combined capital and surplus of not less than $500 million or its equivalent in
foreign currency, whose debt is rated "A" or higher (or the equivalent rating or
higher) according to Moody's Investors Service, Inc., Standard & Poor's Ratings
Group or Duff & Phelps Credit Rating Co. (or such similar equivalent rating by
at least one "nationally recognized statistical rating organization" (as defined
in Rule 436 under the Securities Act)) respectively, at the time as of which an
acquisition of any Marketable U.S. Securities described in any of clauses (ii),
(iv) or (v) of the definition thereof is made.
"Equity Contribution" means the equity contribution in the form of
cash by Welsh, Carson, Anderson & Stowe VIII, L.P., Blackstone Capital Partners,
L.P., WCAS Capital Partners III, L.P. and certain other investors to Centennial
Cellular Corp. in connection with the financing of the Merger.
"Event of Default" shall have the meaning specified in Section 14
hereof.
"Financing Condition" shall have the meaning specified in Section 4.2
hereof.
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"First Three Scheduled Interest Payments" shall have the meaning
specified in the Recitals.
"FRBNY" shall have the meaning specified in Section 5.4 hereof.
"Government Securities" means direct obligations of, or obligations
guaranteed by, the United States of America for the payment of which obligations
or guarantee the full faith and credit of the United States is pledged and which
have the remaining weighted average life to maturity of not more than the date
of the interest payment as to which such Investment in the Government Security
is intended to pay.
"Holders" shall have the meaning specified in the Recitals.
"Indenture" shall have the meaning specified in the Recitals.
"Initial Collateral" shall have the meaning specified in Section 2.1
hereof.
"Initial Escrow and Pledge Account" shall have the meaning specified
in the Recitals.
"Initial Funds" shall have the meaning specified in the Recitals.
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"Initial Purchasers" means Merrill Lynch, Pierce, Fenner & Smith
Incorporated, NationsBanc Montgomery Securities LLC, Morgan Stanley & Co.
Incorporated and Chase Securities Inc.
"Initial Secured Obligations" means all obligations and indebtedness
of the Pledgors, whether now or hereafter existing, under the Notes, the
Indenture and this Pledge Agreement (whether at maturity, upon acceleration or
otherwise), and including without limitation, all principal, premium and
interest (whether accrued before or after the commencement of a bankruptcy,
insolvency or other similar proceeding regardless of whether or not a claim
therefore is allowed or allowable in any such proceeding) on the Notes.
"Issue Date" means the time and date of the first issuance of the
Notes under the Indenture.
"Issuer Order" shall have the meaning specified in Section 6 hereof.
"Lien" means any mortgage or deed of trust, lien, pledge, charge,
privilege, security interest, assignment, deposit, arrangement, easement,
hypothecation, claim, preference, priority or other encumbrance of any kind,
whether or not filed, recorded or otherwise perfected under applicable law with
respect to property of any kind (including any conditional sale, capital lease
or other title retention agreement and any lease deemed to constitute a security
interest and any option or other agreement to give any security interest), real
or personal, movable or immovable, now owned or hereafter acquired.
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"Marketable U.S. Securities" means: (i) Government Securities; (ii)
any time deposit account, money market deposit and certificate of deposit
maturing not more than 270 days after the date of acquisition issued by, or time
deposit of, an Eligible Institution; (iii) commercial paper maturing not more
than 270 days after the date of acquisition issued by a corporation (other than
an Affiliate of the Pledgors) with a rating, at the time as of which any
investment therein is made, of "P-1" or higher according to Moody's Investors
Service, Inc., "A-1" or higher according to Standard & Poor's Ratings Group or
"A-1" or higher according to Duff & Phelps Credit Rating Co. (or such similar
equivalent rating by at least one "nationally recognized statistical rating
organization" (as defined in Rule 436 under the Securities Act)); (iv) any
banker's acceptances or money market deposit accounts issued or offered by an
Eligible Institution; and (v) any fund investing exclusively in investment of
the types described in clauses (i) through (iv) above, including funds for which
the Trustee, its parent holding company or any affiliates or subsidiaries of the
Trustee or such holding company provide investment advisory or other management
services.
"Mezzanine Financing" means the $180 million in aggregate principal
amount of Senior Subordinated Notes due 2009 issued by Centennial Cellular Corp.
to WCAS Capital Partners III, L.P., dated the date of the closing of the Merger
and in substantially the form attached to the Indenture.
"Merger Date" shall have the meaning specified in Section 4.2 hereof.
"Notes" shall have the meaning specified in the Recitals.
"Old Notes" means the 1993 Notes and the 1995 Notes.
"Pledge Agreement" shall have the meaning specified in the Recitals.
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"Pledgors" means the parties named as such in this Pledge Agreement
until a successor replaces it pursuant to the Pledge Agreement, and thereafter
means such successor.
"Pledgors Funds" shall have the meaning specified in Section 6 hereof.
"Pledgors' Designee" shall have the meaning specified in Section 6
hereof.
"Purchase Agreement" shall have the meaning specified in the Recitals.
"Release Conditions" shall have meaning specified in Section 4.1
hereof.
"Release Time" shall have the meaning specified in Section 4.3 hereof.
"Secured Obligations" means and includes the Initial Secured
Obligations and the Subsequent Secured Obligations, as the case may be.
"Series A Notes" shall have the meaning specified in the Recitals.
"Series B Notes" shall have the meaning specified in the Recitals.
"Subsequent Collateral" shall have the meaning specified in Section
2.1 hereof.
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"Subsequent Collateral Investments" shall have the meaning specified
in Section 5.3 hereof.
"Subsequent Collateral Investments Account" shall have the meaning
specified in Section 5.4 hereof.
"Subsequent Funds" shall have the meaning specified in the Recitals.
"Subsequent Secured Obligations" means the Pledgors' obligations to
(i) pay in full the First Three Scheduled Interest Payments and (ii) repay the
principal, premium and interest (whether accrued before or after the
commencement of a bankruptcy, insolvency or other similar proceeding regardless
of whether or not a claim therefore is allowed or allowable in any such
proceeding) on the Notes in the event that the Notes become due and payable
prior to such time as the First Three Scheduled Interest Payments shall have
been paid in full.
"Trustee" shall mean the Person named as the "Trustee" in the first
paragraph of this Pledge Agreement until a successor Trustee shall have become
such, and thereafter "Trustee" shall mean the Person who is then the Trustee
hereunder.
"UCC" means the Uniform Commercial Code as in effect on the date
hereof in New York State.
Unless otherwise defined herein or in the Indenture, terms used herein
which are defined in the UCC are used herein as therein defined.
SECTION 2. Security Interest.
2.1 Pledge and Grant of Security Interest. The Pledgors hereby
irrevocably pledge, assign and set over to the Trustee, and grant to the
Trustee, for the ratable benefit of the Holders of the Notes, a first priority
continuing security interest in all of the
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Pledgors' right, title and interest to all of the Initial Collateral and all of
the Subsequent Collateral, whether now owned or existing or hereafter acquired
or created.
"Initial Collateral" means and includes (whether characterized as
investment property, deposit accounts, cash or otherwise):
(a) the Initial Escrow and Pledge Account;
(b) all funds from time to time deposited or held in the Initial
Escrow and Pledge Account, including, without limitation, the Initial Funds and
all certificates and instruments, if any, from time to time, representing or
evidencing the Initial Escrow and Pledge Account or the Initial Funds;
(c) all Cash Equivalents, whether the same shall constitute
certificated securities, uncertificated securities, investment property,
instruments, general intangibles or otherwise held by or registered in the name
of the Trustee or its nominees and all certificates and instruments, if any,
from time to time representing or evidencing the Cash Equivalents;
(d) all notes, certificates of deposit, deposit accounts, checks
and other instruments from time to time hereafter delivered to or otherwise
possessed by the Trustee or its nominees;
(e) all interest, dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of the then existing Initial Collateral; and
(f) all proceeds of the foregoing, including, without limitation,
cash proceeds.
"Subsequent Collateral" means and includes (whether characterized
as investment property, deposit accounts, cash or otherwise):
(a) the Cash Collateral Account, all funds from time to time
deposited or held therein and all certificates and instruments, if any, from
time to time representing or evidencing the Cash Collateral Account;
(b) all Subsequent Collateral Investments and all certificates
and instruments, if any, representing or evidencing the Subsequent Collateral
Investments, and any and all security entitlement to the Subsequent Collateral
Investments, and any and all related securities accounts in which any security
entitlement to the Subsequent Collateral Investments is carried, including,
without limitation the Subsequent Collateral Investments Account;
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(c) all notes, certificates of deposit, deposit accounts, checks
and other instruments, if any, from time to time hereafter delivered to or
otherwise possessed by the Trustee or its nominees for or on behalf of the
Pledgors in substitution for or in addition to any or all the then existing
Subsequent Collateral;
(d) all interest, dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of the then existing Subsequent Collateral; and
(e) all proceeds of the foregoing, including, without limitation,
cash proceeds.
2.2 Secured Obligations. This Pledge Agreement, in accordance with its
terms and the terms of the Indenture, initially secures the due and punctual
payment and performance of the Initial Secured Obligations, and after the
Release Time, secures the due and punctual payment and performance of the
Subsequent Secured Obligations.
SECTION 3. Establishment and Maintenance of Initial Escrow and Pledge
Account; Investment and Liquidation of Funds in the Initial
Escrow and Pledge Account.
3.1 Delivery of Initial Collateral. All certificates or instruments,
if any, representing or evidencing the Initial Collateral shall be held by or on
behalf of the Trustee pursuant hereto and shall be in suitable form for transfer
by delivery, or shall be accompanied by duly executed instruments of transfer or
assignments in blank, all in form and substance reasonably satisfactory to the
Trustee. All securities in uncertificated or book-entry form, if any,
representing or evidencing the Initial Collateral shall be registered in the
name of the Trustee or any of its nominees by book-entry or as otherwise
appropriate so as to properly identify the interest of the Trustee therein. In
addition, the Trustee shall have the right, at any time following the occurrence
of an Event of Default, in its discretion to transfer to or to register in the
name of the Trustee or any of its nominees any or all other Initial Collateral.
Except as otherwise provided herein, all Initial Collateral shall be deposited
and held in the Initial Escrow and Pledge Account. The Trustee shall have the
right at any time to exchange certificates or instruments representing or
evidencing all or any portion of the Initial Collateral for certificates or
instruments of smaller or larger denominations in the same aggregate amount.
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3.2 Maintaining the Initial Escrow and Pledge Account
(a) The Pledgors shall establish and maintain the Initial Escrow
and Pledge Account with the Trustee in New York, New York, and the Initial
Escrow and Pledge Account shall at all times remain under the exclusive dominion
and control of the Trustee.
(b) It shall be a term and condition of the Initial Escrow and
Pledge Account, notwithstanding any term or condition to the contrary in any
other agreement relating to the Initial Escrow and Pledge Account and except as
otherwise provided by the provisions of Section 4 of this Pledge Agreement, that
no amount (including, without limitation, interest on or other proceeds of the
Initial Escrow and Pledge Account or on any Cash Equivalents held therein) shall
be paid or released to or for the account of, or withdrawn by or for the account
of, the Pledgors or any other person or entity other than the Trustee or its
designated agent from the Initial Escrow and Pledge Account (other than
customary brokerage or similar fees, discounts or commissions payable in
connection with investments of funds pursuant to Section 3.3).
3.3 Allowable Investments. Funds held by the Trustee in the Initial
Escrow and Pledge Account may, at the written direction of the Pledgors or an
agent appointed by the Pledgors, be invested and reinvested in the following
("Cash Equivalents"):
(a) securities issued or directly and fully guaranteed
or insured by the United States of America or any
agency or instrumentality thereof (provided that the
full faith and credit of the United States of America
is pledged in support thereof) in each case maturing no
later than January 6, 1999, (b) time deposits and
certificates of deposit and commercial paper issued by
the parent corporation of any domestic commercial bank
of recognized standing having capital and surplus in
excess of $500 million and commercial paper issued by
others rated at least A-2 or at least the equivalent
thereof by Standard & Poor's Corporation or at least
P-2 or the equivalent thereof by Moody's Investor
Service, Inc. and in each case maturing no later than
January 6, 1999, (c) investments in money market funds
substantially all of whose assets comprise securities
of the types described in clauses (a) and (b) above,
including funds for which the Trustee, its parent
holding company or any affiliates or subsidiaries of
the Trustee or such holding company provide investment
advisory or other management services, (d) U.S.
dollars, and (e) a deposit of any bank (including that
of the trustee and its affiliates), trust company or
financial institution authorized to engage in the
banking business having a combined capital and surplus
of at least $500 million whose long term, unsecured
debt is rated "AA" or higher by Standard & Poor's
Corporation and
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"Aa" or higher by Moody's Investor Services.
Investment instructions from the Pledgors may instruct the Trustee to
purchase or sell specific securities to or from specific persons and/or on
specific terms negotiated by the Pledgors or their agent. If the Pledgors or
such agent fail to give written investment instructions to the Trustee by 10:00
a.m. (New York time) on any Business Day on which there is uninvested cash
and/or maturing Cash Equivalents in the Initial Escrow and Pledge Account, the
Trustee is hereby authorized and directed to invest any such cash or the
proceeds of any maturing Cash Equivalents in Cash Equivalents maturing on the
next Business Day. The Pledgors' or such agent's failure to give such investment
instructions shall not constitute a default or an event of default hereunder.
All of the Cash Equivalents in the Initial Escrow and Pledge Account
shall mature on or prior to January 6, 1999; provided, however, that if the
Trustee receives from the Pledgors a certificate substantially in the form of
Exhibit A hereto (a "Preliminary Release Certificate") that: (x) sets forth the
date (the "Anticipated Merger Date") set for the consummation of the Merger,
which shall not be earlier than five (5) Business Days (unless agreed to by the
Trustee) after receipt by the Trustee of such Preliminary Release Certificate;
(y) states that the Pledgors reasonably believe that the Merger will be
consummated on the specified Anticipated Merger Date; and (z) directs the
liquidation of all of the Cash Equivalents in accordance with Section 4.1, the
Trustee shall invest in Cash Equivalents such that the funds held in the Initial
Escrow and Pledge Account will be available for release no later than 10:00 a.m.
(New York time) on the Anticipated Merger Date.
If the Pledgors determine that the Merger will not occur on or prior
to January 6, 1999 (or such later date specified in the most recent Merger
Extension Notice Certificate), the Pledgors shall deliver to the Trustee a
certificate substantially in the form of Exhibit L hereto (a "Merger Extension
Notice Certificate") stating that (1) the Merger will be consummated after
January 6, 1999 (or such later date specified in the most recent Merger
Extension Notice Certificate), (2) the Merger will not be consummated prior to a
certain date (the "New Anticipated Merger Date") and (3) the Trustee is
authorized to invest the Initial Funds in Cash Equivalents that mature on or
prior to the New Anticipated Merger Date, in which case each of the Cash
Equivalents in the Initial Escrow and Pledge Account shall be required to mature
on or prior to the New Anticipated Merger Date.
3.4 Interest. All interest earned on funds invested in Cash
Equivalents shall be held in the Initial Escrow and Pledge Account and
reinvested in accordance with the terms hereof and will be subject to the
security interest granted hereunder to the Trustee.
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SECTION 4. Disposition of Initial Collateral Upon Certain Events.
4.1 Transfer of Funds for the Merger. Upon delivery by the Pledgors to
the Trustee of a Preliminary Release Certificate stating the Merger Date (as
defined below), the Trustee shall liquidate, within five (5) Business Days (or
such earlier time as the Trustee may agree to) after the Trustee's receipt of
such Preliminary Release Certificate, all of the Cash Equivalents in the Initial
Escrow and Pledge Account. At the Release Time (as defined below), the Trustee
shall purchase in accordance with Section 5.3 hereof for the benefit of the
Holders of the Notes a portfolio of securities initially consisting of
Government Securities in an amount equal to the Subsequent Funds (as such amount
is verified by the report of a nationally recognized independent public
accountant in Exhibit I delivered to the Trustee); and on the Merger Date, upon
satisfaction of the Release Conditions (as defined below), the Trustee shall
transfer the funds in the Initial Escrow and Pledge Account in excess of the
Subsequent Funds as directed by the Pledgors by wire transfer of immediately
available funds to such entity as designated by the Pledgors, and the Trustee
hereby agrees to liquidate such amount of Cash Equivalents and to make such
purchase and funds transfer.
4.2 Conditions to Release of Funds. On the date of the consummation of
the Merger (the "Merger Date"), the Pledgors shall deliver to the Trustee (A)
confirmation in writing of the amounts required to be used to purchase
securities and to be transferred by the Trustee pursuant to the second sentence
of Section 4.1, (B) an opinion of Reboul, MacMurray, Hewitt, Maynard & Kristol,
counsel to the Pledgors, in the form of Exhibit B hereto and addressed to the
Trustee and the Initial Purchasers and (C) a certificate substantially in the
form of Exhibit C hereto (a "Release Certificate") stating that (1) all
conditions to the consummation of the Merger have been satisfied or waived, (2)
upon consummation of the Merger and related transactions (a) Centennial shall
have received the Equity Contribution and Mezzanine Financing of at least $580
million, (b) (i) the Issuer shall have incurred or assumed no more than $1.350
billion and no less than $1.250 billion of Indebtedness under the Credit
Facility and the Notes, and (ii) Centennial shall have outstanding under the
Credit Facility, the Notes and the Mezzanine Financing no more than $1.55
billion (less the principal amount of Old Notes not tendered and not defeased)
and no less than $1.40 billion of Indebtedness (plus the amount of any (x) Old
Notes which have been properly defeased and (y) Equity Contribution and
Mezzanine Financing in excess of $580 million less the principal amount of Old
Notes not tendered and not defeased) and (c) (i) the Issuer and its Restricted
Subsidiaries shall not have outstanding more than $25 million of Indebtedness
for borrowed money (other than the Notes and the borrowings under the Credit
Facility) and (ii) Centennial shall not have outstanding more than $25 million
of Indebtedness for borrowed money (other than its obligations under the Notes
and Credit Facility, the Mezzanine Financing and any remaining Old Notes which
have been properly defeased or not tendered and not defeased) (the condition in
this clause (2) being referred to as the "Financing Condition") and (3) no Event
of Default (as defined in the Indenture) has occurred and is continuing or will
occur as a result of the release of funds contemplated hereby and after giving
effect to the Recapitalization and the transactions contemplated thereby
including the financing thereof, and release the appropriate dollar amount of
the Initial Collateral in accordance with Section 4.1. In addition, Centennial
Cellular Corp., substantially simultaneously with the Merger, shall have
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acknowledged, confirmed and agreed in a certificate substantially in the form of
Exhibit K hereto and addressed to the Trustee and the Initial Purchasers that
(1) the representations and warranties in Section 7 of the Pledge Agreement are
true and correct with respect to all Pledgors (including itself), (2) it assumes
the liabilities and obligations of the Pledgors under the Pledge Agreement and
(3) it is a successor obligor of the Notes. The delivery of the items identified
in the previous sentence and in (A), (B) and (C) above shall be the only
conditions (the "Release Conditions") precedent to the release of funds pursuant
to Section 4.1.
4.3 Release of Security Interest. If the Release Conditions are
satisfied, the Trustee shall deliver to the Pledgors a release of security
interest, with respect to the funds released pursuant to the Release Certificate
at the time of release of such funds (the "Release Time"), in the form of
Exhibit D hereto, duly executed by the Trustee, and the Trustee shall take all
further actions, if any, that are reasonably deemed necessary by the Pledgors to
terminate the Trustee's security interest in all funds transferred by the
Trustee in accordance with the provisions of Section 4.1 (which shall
automatically be deemed to be free and clear of the Trustee's security interest
provided herein).
4.4 Special Mandatory Redemption. Upon the earlier to occur of (i)
termination of the Merger Agreement or (ii) 60 days after the Issue Date if
Initial Funds have not been released pursuant to Section 4.3 by that time
(provided that the 60-day period may be extended at the option of the Pledgors
by written notice to the Trustee on or prior to the 50th day after the Issue
Date up to an additional 30 days if the Pledgors deliver to the Trustee a
certificate, substantially in the form of Exhibit M hereto (an "Extension
Certificate") stating that (a) the Pledgors shall have deposited an additional
amount (the "Add-In Additional Escrow Amount") (to be reasonably determined by
the Initial Purchasers on the same basis as the determination of the Additional
Escrow Amount) in the Initial Escrow and Pledge Account for the benefit of the
holders of the Notes, (b) the basis under which the Merger Agreement is not
satisfied on such 60th day relates to pending governmental or regulatory
approval or the effectiveness of shareholder approval, (c) the parties named in
the Credit Facilities Commitment Letter as lenders shall, in their discretion,
have extended their commitment to lend to no earlier than the date to which the
escrow has been extended and (d) the Pledgors shall have issued a press release
on or prior to the 50th day after the Issue Date in a commercially reasonable
manner to inform the holders of the Notes of such extension and notified the
Trustee with respect to such extension of the escrow period (clauses (a)-(d)
being referred to herein as the "Extension Condition")), the Pledgors shall
deliver a notice (the "Escrow Draw Notice") to the Trustee that all of the
outstanding Notes will be subject to a Special Mandatory Redemption in
accordance with the terms of the Indenture (provided, that if the Pledgors fail
to deliver the Escrow Draw Notice upon the occurence of the earlier of the
events described in clauses (i) and (ii) above, the Escrow Draw Notice may be
delivered by Merrill Lynch, Pierce, Fenner & Smith Incorporated on behalf of the
holders of the Notes and any Escrow Draw Notice delivered by Merrill Lynch,
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Pierce, Fenner & Smith Incorporated on behalf of the holders of the Notes shall
have the same force and effect as if it were delivered by the Pledgors), and the
Trustee shall without any further notice, direction or authorization: (a)
promptly liquidate all of the Cash Equivalents in the Initial Escrow and Pledge
Account to obtain net cash proceeds by no later than 10:00 a.m. (New York time)
on the date that is five (5) Business Days after such date specified in clause
(i) or (ii) above, as applicable, and (b) transfer such dollar amount to the
Paying Agent to be used to redeem Notes in accordance with Section 3.8 of the
Indenture, and the Trustee hereby agrees to liquidate such investments and to
make such funds transfer. Upon such date as all Initial Funds have been released
to the Paying Agent in accordance with this Section 4.4 and upon receipt of a
request by the Pledgors, the Trustee shall transfer by wire transfer of
immediately available funds any funds remaining in the Initial Escrow and Pledge
Account to an account designated by the Pledgors.
SECTION 5. Deposit of Subsequent Funds; Deposit and Investment; Cash
Collateral Account; Subsequent Collateral Investments.
5.1 Deposit of Subsequent Funds. At the Release Time the Trustee shall
deposit, or cause to be deposited, all Subsequent Funds into the Cash Collateral
Account.
5.2 Maintaining the Cash Collateral Account. So long as any Subsequent
Secured Obligation shall remain unpaid:
(a) The Pledgors will maintain the Cash Collateral Account
with The Chase Manhattan Bank in New York, New York; and
(b) It shall be a term and condition of the Cash Collateral
Account, notwithstanding any term or condition to the contrary in any other
agreement relating to the Cash Collateral Account, and except as otherwise
provided by the provisions of Section 5.3, Section 6 and Section 14, that no
amount (including interest on or other proceeds of the Subsequent Collateral
Investments) shall be paid or released to or for the account of, or withdrawn by
or for the account of, the Pledgors or any other Person other than the Trustee
or its designated agent from the Cash Collateral Account (other than customary,
brokerage or similar fees, discounts or commissions payable in connection with
investments of funds pursuant to Section 5.3); provided that notwithstanding the
foregoing no withdrawals may be made by Pledgors under Section 5.3, Section 6 or
Section 14.
The Cash Collateral Account shall be subject to such applicable laws,
and such applicable regulations of the Board of Governors of the Federal Reserve
System and of any other appropriate banking or governmental authority, as may
now or hereafter be in effect.
5.3 Investing of Amounts in the Cash Collateral Account
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(a) As soon as practicable upon deposit of the Subsequent
Funds, the Trustee shall invest all amounts on deposit in the Cash Collateral
Account in such Government Securities, in the name of the Trustee, as the
Pledgors may select in an amount sufficient to pay the First Three Scheduled
Interest Payments. If requested in writing by the Pledgors, the Trustee will,
subject to the provisions of Section 6 and Section 14, from time to time (i)
invest amounts on deposit in the Cash Collateral Account in such Cash
Equivalents in the name of the Trustee as the Pledgors may select and (ii)
invest interest paid on the Cash Equivalents referred to in clause (i) above,
and reinvest other proceeds of any such Cash Equivalents that may mature or be
sold, in each case in such Cash Equivalents in the name of the Trustee, as the
Pledgors may select and the Trustee may approve (the Cash Equivalents referred
to in clauses (i) and (ii) above being collectively "Subsequent Collateral
Investments"); provided, however, in providing directions hereunder the Pledgors
shall assure that the amount on deposit in the Subsequent Collateral Investments
Account (as defined below) and the Cash Collateral Account, collectively, at any
time during the terms of this Pledge Agreement, are sufficient to provide for
the payment in full of the First Three Scheduled Interest Payments remaining
unpaid at such time on the Notes. Interest and proceeds that are not invested or
reinvested in Subsequent Collateral Investments as provided above shall be
deposited and held in the Cash Collateral Account.
(b) At any time while this Pledge Agreement is in force, the
Pledgors may substitute Marketable U.S. Securities for the Government Securities
pledged as Collateral hereunder; provided, however, that the Marketable U.S.
Securities so substituted must have a fair market value (measured at the date of
substitution) as certified to the Trustee, in the opinion of a nationally
recognized firm of independent public accountants selected by the Pledgors in
the form of Exhibit E hereto, at least equal to 125.0% (in the case of
Marketable U.S. Securities that are not Government Securities) or 100.0% (in the
case of Marketable U.S. Securities that are Government Securities) of the amount
of any of the First Three Scheduled Interest Payments that are unpaid (or the
pro rata portion of such interest payments equal to the percentage of such
interest payments to be secured by such Marketable U.S. Securities) as of the
date such Marketable U.S. Securities are proposed to be substituted as
Subsequent Collateral hereunder. Concurrently with such substitution, the
Pledgors shall (i) deliver a certificate in the form of Exhibit F hereto
reaffirming the representations and warranties set forth in Section 7 hereof,
(ii) deliver an Opinion of Counsel stating that the Trustee has a perfected lien
in such Marketable U.S. Securities and (iii) deliver the accountants' opinion in
the form of Exhibit E hereto. The Pledgors hereby pledge and the Trustee shall
hold a security interest in, for the benefit of the Holders of the Notes, any
Marketable U.S. Securities received by the Trustee in accordance with this
Section 5.3(b).
5.4 Delivery of Subsequent Collateral. (a) If and to the extent
the Subsequent Collateral is represented or evidenced by certificates or
instruments, all such certificates or instruments representing or evidencing the
Subsequent Collateral, including, without limitation, amounts invested as
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provided in Section 5.3, shall be delivered to and held by or on behalf of the
Trustee pursuant hereto and shall be in suitable form for transfer by delivery,
or shall be accompanied by duly executed instruments of transfer or assignment
in blank, all in form and substance sufficient to convey a valid security
interest in such Subsequent Collateral to the Trustee or shall be credited to a
securities account (the "Subsequent Collateral Investments Account") designated
by the Trustee. For the better perfection of the Trustee's rights in and to the
Subsequent Collateral, the Pledgors shall forthwith, upon the pledge of any
Subsequent Collateral hereunder, cause all such Subsequent Collateral, including
the Subsequent Collateral Investments Account and all other accounts
representing a security entitlement to or containing any Subsequent Collateral
(including, without limitation, any Subsequent Collateral Investments) to be
registered in the name of the Trustee or such of its nominees as the Trustee
shall direct and the Pledgors shall approve (which approval shall not be
unreasonably withheld), and to be under the sole dominion and control of the
Trustee, which dominion and control shall be agreed to and acknowledged by any
securities intermediary holding any such account in an acknowledgment in the
form of Exhibit G hereto, subject only to the revocable rights specified in
Section 6. In addition, the Trustee shall have the right at any time to exchange
certificates or instruments representing or evidencing the Subsequent Collateral
for certificates or instruments of smaller or larger denominations.
(b) The Trustee shall become the holder or entitlement holder,
as the case may be, of the Subsequent Collateral Investments and of any and all
security entitlements to the Subsequent Collateral Investments, through action
by the Federal Reserve Bank of New York ("FRBNY") or another securities
intermediary, as confirmed (in writing or electronically or otherwise in
accordance with standard industry practice) to the Trustee by FRBNY or such
other securities intermediary (i) indicating by book-entry that the Subsequent
Collateral Investments or a security entitlement thereto has been credited to
the Subsequent Collateral Investments Account, or (ii) acquiring the Subsequent
Collateral Investments or a security entitlement thereto for the Trustee and
accepting the same for credit to the Subsequent Collateral Investments Account.
(c) Prior to the acquisition by the Trustee of Subsequent
Collateral Investments (or acquisition by the Trustee of any security
entitlement thereto), as provided in subsection (a) or (b) of this Section 5.4,
the Trustee shall establish the Subsequent Collateral Investments Account on its
books as an account segregated from all other custodial or collateral accounts
at its office at 450 West 33rd Street, 15th Floor, New York, New York 10001.
Upon acquisition of the Subsequent Collateral Investments by the Trustee (or the
Trustee's acquisition of a security entitlement thereto), as confirmed to the
Trustee by FRBNY or another securities intermediary), the Trustee shall make
appropriate book entries indicating that the Subsequent Collateral Investments
and/or such security entitlement have been credited to and are held in the
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Subsequent Collateral Investments Account. Subject to the other terms and
conditions of this Pledge Agreement, all Subsequent Collateral Investments held
by the Trustee pursuant to this Pledge Agreement shall be held in the Subsequent
Collateral Investments Account subject (except as expressly provided in Section
6 hereof) to the exclusive dominion and control of the Trustee and exclusively
for the benefit of the Trustee and for the ratable benefit of the Holders of the
Notes and segregated from all other funds or other property otherwise held by
the Trustee.
(d) All Subsequent Collateral shall be retained in the Cash
Collateral Account and the Subsequent Collateral Investments Account pending
disbursement pursuant to the terms hereof.
(e) On the Merger Date, the Trustee shall deliver to the
Pledgors and the Initial Purchasers a duly executed certificate, in the form of
Exhibit H hereto, of an officer of the Trustee, confirming the Trustee's
establishment and maintenance of the Cash Collateral Account and the Subsequent
Collateral Investments Account and its receipt and holding of the Subsequent
Funds and the Subsequent Collateral Investments or a security entitlement
thereto and the crediting of the Subsequent Funds and the Subsequent Collateral
Investments or such security entitlement to the Cash Collateral Account and the
Subsequent Collateral Investments Account, all in accordance with this Pledge
Agreement.
(f) On the Merger Date, the Pledgors shall deliver to the
Trustee an opinion of a nationally recognized firm of independent public
accountants, selected by the Pledgors, substantially in the form of Exhibit I
hereto.
SECTION 6. Disbursements of Subsequent Collateral.
The Trustee shall hold the assets in the Cash Collateral Account and
the Subsequent Collateral Investments Account and release the same, or a portion
thereof, only as follows:
(a) At least one Business Day prior to the due date of any of the
First Three Scheduled Interest Payments, the Trustee shall release from the Cash
Collateral Account and/or liquidate Subsequent Collateral in the Subsequent
Collateral Investments Account, and transfer to the Trustee, as Paying Agent in
order to pay to the Holders of the Notes proceeds sufficient to provide for
payment in full of such interest then due on the Notes; provided that in the
event Subsequent Collateral is not required to be liquidated, the Pledgors will
give the Trustee at least three Business Days notice pursuant to written
instructions executed by the Pledgors (an "Issuer Order"). The Trustee will take
any action necessary to provide for the payment of the interest on the Notes to
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the Holders of the Notes in accordance with the payment provisions of the
Indenture from (and to the extent of) proceeds of the Subsequent Funds in the
Cash Collateral Account or the Subsequent Collateral Investments Account, as the
case may be. Nothing in this Section 6 shall affect the Trustee's rights to
apply the Subsequent Collateral to the payments of amounts due on the Notes upon
acceleration thereof.
(b) If the Pledgors make any payment or portion of payment of the
First Three Scheduled Interest Payments from a source of funds other than the
Cash Collateral Account or the Subsequent Collateral Investments Account
("Pledgors Funds"), the Pledgors may, after payment in full of such interest
payment or portion thereof from proceeds of such Pledgors Funds, direct the
Trustee in writing to release to the Pledgors or to another party at the
direction of the Pledgors (the "Pledgors' Designee") proceeds from the Cash
Collateral Account or the Subsequent Collateral Investments Account in an amount
less than or equal to the amount of Pledgors Funds applied to such interest
payment. Upon receipt of an Issuer Order by the Trustee, the Trustee shall pay
over to the Pledgors or the Pledgors' Designee, as the case may be, the
requested amount from proceeds in the Cash Collateral Account or the Subsequent
Collateral Investments Account, as the case may be. Concurrently with any
release of funds requested by the Pledgors pursuant to this Section 6(b), the
Pledgors shall deliver to the Trustee a certificate signed by an officer of each
of the Pledgors stating that such release has been authorized by the Pledgors
and will not contravene any provision of applicable law or its certificate of
incorporation (if the Pledgor is a corporation) or its certificate of formation
(if the Pledgor is a limited liability company) or its by-laws (if the Pledgor
is a corporation) or its operating agreement (if the Pledgor is a limited
liability company) or any material agreement or other material instrument
binding upon the Pledgors or any of their respective subsidiaries or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Pledgors or any of their respective subsidiaries or result
in the creation or imposition of any Lien on any assets of the Pledgors, except
for the security interest granted under the Pledge Agreement.
(c) At least one Business Day prior to the due date of any of the
First Three Scheduled Interest Payments, the Pledgors covenant to give the
Trustee (by Issuer Order) notice as to whether payment of interest will be made
pursuant to Section 6(a) or 6(b) and as to the respective amounts of interest
that will be paid pursuant to Section 6(a) or 6(b); provided that, in the event
Subsequent Collateral is not required to be liquidated, the Pledgors will give
the Trustee at least three Business Days notice pursuant to an Issuer Order. If
no such notice is given, the Trustee will act pursuant to Section 6(a) as if it
had received an Issuer Order pursuant to this paragraph for the payment in full
of the interest then due.
(d) The Trustee shall liquidate Subsequent Collateral Investments
pursuant to Section 6(a) in order to make any scheduled payment of interest or
any release hereunder unless instructed to not do so by Issuer Order or pursuant
to Section 16 hereof.
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(e) In the event that the Subsequent Collateral held in the Cash
Collateral Account and the Subsequent Collateral Investments Account exceeds the
amount sufficient, in the opinion of a nationally recognized firm of independent
public accountants selected by the Pledgors (an "Accountants Opinion"), to
provide for payment in full of the First Three Scheduled Interest Payments (or,
in the event an interest payment or payments have been made, an amount
sufficient to provide for payment in full of the First Three Scheduled Interest
Payments remaining unpaid at such time), the Trustee shall release to the
Pledgors at the Pledgors' request and upon receipt of an Accountant's Opinion
any such excess Subsequent Collateral.
(f) Upon the release of any Subsequent Collateral from the Cash
Collateral Account or the Subsequent Collateral Investments Account, in
accordance with the terms of this Pledge Agreement, the security interest
evidenced by this Pledge Agreement in such released Subsequent Collateral will
automatically terminate and be of no further force and effect.
(g) Nothing contained in Section 5, this Section 6 or any other
provision of this Pledge Agreement shall (i) afford the Pledgors any right to
issue entitlement orders with respect to any security entitlement to the
Subsequent Collateral Investments or any securities account in which any such
security entitlement may be carried, or otherwise afford the Pledgors control of
any such security entitlement or (ii) otherwise give rise to any rights of the
Pledgors with respect to the Subsequent Collateral Investments, any security
entitlement thereto or any securities account in which any such security
entitlement may be carried, other than the Pledgors' rights under this Pledge
Agreement as the beneficial owner of collateral pledged to and subject to the
exclusive dominion and control (except as expressly provided in this Section 6)
of the Trustee in its capacity as such (and not as a securities intermediary).
The Pledgors acknowledge, confirm and agree that the Trustee holds a security
entitlement to the Subsequent Collateral Investments solely as trustee for the
Holders of the Notes and not as a securities intermediary.
SECTION 7. Representations and Warranties.
Each of the Pledgors hereby represents and warrants on its own
behalf, as of the date hereof, that:
(a) The execution and delivery by such Pledgor of, and the
performance by such Pledgor of its obligations under, this Pledge Agreement have
been duly authorized by all necessary corporate or organizational action and
will not contravene or constitute a default under any provision of applicable
law or its certificate of incorporation (if such Pledgor is a corporation) or
its certificate of formation (if such Pledgor is a limited liability
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company) or its by-laws (if such Pledgor is a corporation) or its operating
agreement (if such Pledgor is a limited liability company) or any material
agreement or other material instrument binding upon such Pledgor or any of its
subsidiaries or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over such Pledgor or any of its subsidiaries, or
result in the creation or imposition of any Lien on any assets of such Pledgor,
except for the security interests granted under this Pledge Agreement; no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required (i) for the performance by such Pledgor
of its obligations under this Pledge Agreement, (ii) for the pledge by such
Pledgor of the Initial Collateral and the Subsequent Collateral pursuant to this
Pledge Agreement or (iii) except for any such consents, approvals,
authorizations or orders required to be obtained by the Trustee (or the Holders)
for reasons other than the consummation of this transaction, for the exercise by
the Trustee of the rights provided for in this Pledge Agreement or the remedies
in respect of the Initial Collateral and the Subsequent Collateral pursuant to
this Pledge Agreement.
(b) Such Pledgor is a beneficial owner of the Initial Collateral
and will be the beneficial owner of the Subsequent Collateral, free and clear of
any Lien or claims of any person or entity (except for the security interests
granted under this Pledge Agreement). No financing statement covering such
Pledgor's interest in the Initial Collateral is on file in any public office
other than any Financing Statements filed pursuant to this Pledge Agreement and
no Financing Statement covering such Pledgor's interest in the Subsequent
Collateral will be on file in any public office other than any Financing
Statement filed pursuant to this Pledge Agreement.
(c) This Pledge Agreement has been duly authorized, validly
executed and delivered by such Pledgor and (assuming the due authorization and
valid execution and delivery of this Pledge Agreement by the Trustee and
enforceability of the Pledge Agreement against the Trustee in accordance with
its terms) constitutes a valid and binding agreement of such Pledgor,
enforceable against such Pledgor in accordance with its terms, except as (i) the
enforceability hereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, preference, reorganization, moratorium or similar laws now or
hereafter in effect relating to or affecting creditors' rights or remedies
generally, (ii) the availability of equitable remedies may be limited by
equitable principles of general applicability and the discretion of the court
before which any proceeding therefor may be brought, (iii) the exculpation
provisions and rights to indemnification hereunder may be limited by U.S.
federal and state securities laws and public policy considerations and (iv) the
waiver of rights and defenses contained in Section 14(b), Section 17.11 and
Section 17.15 hereof may be limited by applicable law.
d) Upon the delivery to the Trustee of the certificates or
instruments, if any, representing or evidencing the Initial Collateral, and the
transfer and pledge to the Trustee of the Initial Collateral or the acquisition
by the Trustee of a security entitlement thereto, in accordance with Section 2,
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the pledge of and grant of a security interest in the Initial Collateral
securing the payment of the Initial Secured Obligations for the benefit of the
Trustee and the Holders of the Notes will constitute a first priority perfected
security interest in such Initial Collateral (except, with respect to proceeds,
only to the extent permitted by Section 9-306 of the UCC), enforceable as such
against all creditors of such Pledgor and any persons purporting to purchase any
of the Initial Collateral from the Pledgor, except in each case as enforcement
may be affected by general equitable principles (whether considered in a
proceeding in equity or at law) and other than as permitted by the Indenture.
(e) Upon the delivery to the Trustee of the certificates or
instruments, if any, representing or evidencing the Subsequent Collateral, and
the transfer and pledge to the Trustee of the Subsequent Collateral and the
acquisition by the Trustee of a security entitlement thereto, in accordance
with Section 5.4(a), the pledge of and grant of a security interest in the
Subsequent Collateral securing the payment of the Subsequent Secured Obligations
for the benefit of the Trustee and the Holders of the Notes will constitute a
first priority perfected security interest in such Subsequent Collateral
(except, with respect to proceeds, only to the extent permitted by Section
9-306 of the UCC), enforceable as such against all creditors of such Pledgor
and any persons purporting to purchase any of the Subsequent Collateral from
such Pledgor, except in each case as enforcement may be affected by general
equitable principles (whether considered in a proceeding in equity or at law)
and other than as permitted by the Indenture.
(f) There are no legal or governmental proceedings pending or,
to the best of such Pledgor's knowledge, threatened to which such Pledgor or
any of its subsidiaries is a party or to which any of the properties of such
Pledgor or any of its subsidiaries is subject that would materially adversely
affect the power or ability of such Pledgor to perform its obligations under
this Pledge Agreement or to consummate the transactions contemplated hereby.
(g) The pledge of the Initial Collateral and the Subsequent
Collateral pursuant to this Pledge Agreement is not prohibited by law or
governmental regulation (including, without limitation, Regulations T, U and X
of the Board of Governors of the Federal Reserve System) applicable to such
Pledgor.
(h) No Event of Default (as defined herein) exists.
SECTION 8. Further Assurances.
The Pledgors will, promptly upon request by the Trustee (which
request the Trustee may submit in its discretion or at the direction of the
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Holders of a majority in principal amount of the Notes then outstanding),
execute and deliver or cause to be executed and delivered, or use their
reasonable best efforts to procure, all assignments, instruments and other
documents, deliver any instruments to the Trustee and take any other actions
that are necessary or desirable to perfect, continue the perfection of, or
protect the first priority of the Trustee's security interest in and to the
Initial Collateral and the Subsequent Collateral, to protect the Initial
Collateral and the Subsequent Collateral against the rights, claims, or
interests of third persons (other than any such rights, claims or interests
created by or arising through the Trustee), or to enable the Trustee to exercise
and enforce its rights and remedies hereunder with respect to any Collateral or
to otherwise effect the purposes of this Pledge Agreement. The Pledgors also
agree, whether or not requested by the Trustee, to take all actions (including
the filing of UCC-1 financing statements in the appropriate jurisdictions) that
are necessary to perfect or continue the perfection of, or to protect the first
priority of, the Trustee's security interest in and to the Initial Collateral
and the Subsequent Collateral, and to protect the Initial Collateral and the
Subsequent Collateral against the rights, claims or interests of third persons
(other than any such rights, claims or interests created by or arising through
the Trustee).
SECTION 9. Covenants.
Each of the Pledgors covenants and agrees on its behalf with the
Trustee and the Holders of the Notes that from and after the date of this Pledge
Agreement until the payment in full in cash of the Secured Obligations:
(a) that (i) it will not (and will not purport to) sell, assign
or otherwise dispose of, or grant any option or warrant with respect to, any of
the Initial Collateral or the Subsequent Collateral or (ii) it will not create
or permit to exist any Lien upon or with respect to any of the Initial
Collateral or the Subsequent Collateral (except for the security interests
granted under this Pledge Agreement and any Lien created by or arising through
the Trustee) and at all times will be the sole beneficial owner of the Initial
Collateral and the Subsequent Collateral; or
(b) that it will not (i) enter into any agreement or
understanding that restricts or inhibits or purports to restrict or inhibit the
Trustee's rights or remedies hereunder, including, without limitation, the
Trustee's right to sell or otherwise dispose of the Initial Collateral or the
Subsequent Collateral or (ii) fail to pay or discharge any tax, assessment or
levy of any nature with respect to the Initial Collateral or the Subsequent
Collateral not later than five days prior to the date of any proposed sale under
any judgment, writ or warrant of attachment with respect to the Initial
Collateral or the Subsequent Collateral.
SECTION 10. Power of Attorney.
The Pledgors hereby irrevocably appoints the Trustee as the
Pledgors' attorney-in-fact, coupled with an interest, with full authority in the
place and stead of the Pledgors and in the name of the Pledgors or otherwise,
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from time to time in the Trustee's discretion to take any action and to execute
any instrument which the Trustee may deem necessary or advisable to accomplish
the purposes of this Pledge Agreement, including, without limitation, to
receive, endorse and collect all instruments made payable to the Pledgors
representing any interest payment, dividend or other distribution in respect of
the Collateral or any part thereof and to give full discharge for the same, and
the expenses of the Trustee incurred in connection therewith shall be payable
by the Pledgors. This power of attorney is coupled with an interest and is
irrevocable by the Pledgors.
In addition to all of the powers granted to the Trustee pursuant to
the Indenture, the Pledgors hereby appoint and constitute the Trustee to
exercise to the fullest extent permitted by law all of the following powers upon
and at any time after the occurrence and during the continuance of an Event of
Default: (a) collection of proceeds of any Initial Collateral or Subsequent
Collateral; (b) conveyance of any item of Initial Collateral or Subsequent
Collateral to any purchaser thereof; (c) giving of any notices or recording of
any Liens under Section 8 hereof; and (d) paying or discharging taxes or Liens
levied or placed upon the Initial Collateral or the Subsequent Collateral, the
legality or validity thereof and the amounts necessary to discharge the same to
be determined by the Trustee in its sole reasonable discretion, and such
payments made by the Trustee to become part of the Initial Secured Obligations
or the Subsequent Secured Obligations of the Pledgors to the Trustee, due and
payable immediately upon demand.
The Trustee's authority under this Section 10 shall include, without
limitation, the authority to endorse and negotiate any checks or instruments
representing proceeds of the Initial Collateral and the Subsequent Collateral in
the name of the Pledgors, execute and give receipt for any certificate of
ownership or any document constituting Initial Collateral or Subsequent
Collateral, transfer title to any item of Initial Collateral or Subsequent
Collateral, sign the Pledgors' name on all financing statements (to the extent
permitted by applicable law) or any other documents deemed necessary or
appropriate by the Trustee to preserve, protect or perfect the security interest
in the Initial Collateral or the Subsequent Collateral and to file the same,
prepare, file and sign the Pledgors' name on any notice of Lien, and to take any
other actions arising from or incident to the powers granted to the Trustee in
this Pledge Agreement.
SECTION 11. Trustee May Perform.
Without limiting the authority granted under Section 10 and except
with respect to the failure of the Pledgors to deliver investment instructions
(which shall be governed by the other terms of this Pledge Agreement), if the
Pledgors fail to perform any agreement contained herein, the Trustee may, but
shall not be obligated to, itself perform, or cause performance of, such
agreement, and the expenses of the Trustee incurred in connection therewith
shall be payable by the Pledgors.
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SECTION 12. No Assumption of Duties; Reasonable Care.
The rights and powers granted to the Trustee hereunder are being
granted in order to preserve and protect the security interest of the Trustee
and the Holders of the Notes in and to the Initial Collateral and the Subsequent
Collateral granted hereby and shall not be interpreted to, and shall not impose
any duties on the Trustee in connection therewith other than those expressly
provided herein or imposed under applicable law. Except as provided by
applicable law or by the Indenture, the Trustee shall be deemed to have
exercised reasonable care in the custody and preservation of the Initial
Collateral and the Subsequent Collateral in its possession if the Initial
Collateral and the Subsequent Collateral is accorded treatment substantially
equal to that which the Trustee accords similar property held by the Trustee for
similar accounts, it being understood that the Trustee in its capacity as such
shall not have any responsibility for (a) ascertaining or taking action with
respect to calls, conversions, exchanges, maturities or other matters relative
to any Initial Collateral or Subsequent Collateral, whether or not the Trustee
has or is deemed to have knowledge of such matters, (b) taking any necessary
steps to preserve rights against any parties with respect to any Initial
Collateral or Subsequent Collateral, (c) investing or reinvesting any of the
Initial Collateral or the Subsequent Collateral or (d) the validity, sufficiency
or priority of the Initial Collateral or Subsequent Collateral or the perfection
or the maintenance of the perfection of any security interest granted hereby,
provided, however, that nothing contained in this Pledge Agreement shall relieve
the Trustee of any responsibilities as a securities intermediary under
applicable law.
SECTION 13. Indemnity.
The Pledgors shall indemnify, hold harmless and defend the Trustee
and its directors, officers, agents and employees, from and against any and all
claims, actions, obligations, liabilities and expenses, including reasonable
defense costs, reasonable investigative fees and costs, and reasonable legal
fees and damages arising from the Trustee's performance as Trustee under this
Pledge Agreement, except to the extent that such claim, action, obligation,
liability or expense is directly attributable to the bad faith, gross negligence
or willful misconduct of such indemnified person. The provisions of this Section
13 shall survive termination of this Pledge Agreement and the registration and
removal of the Trustee.
SECTION 14. Remedies upon Event of Default.
If any Event of Default under the Indenture or default hereunder
(any such Event of Default or default being referred to in this Pledge Agreement
as an "Event of Default") shall have occurred and be continuing:
(a) The Trustee may, without notice to the Pledgors except as
required by law and at any time or from time to time, liquidate all Cash
Equivalents and transfer all funds in the Initial Escrow and Pledge Account to
the Paying Agent to apply such funds in accordance with Section 6.6 of the
Indenture.
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(b) The Trustee and the Holders of the Notes shall have, in
addition to all other rights given by law or by this Pledge Agreement or the
Indenture, all of the rights and remedies with respect to the Initial
Collateral and the Subsequent Collateral of a secured party under the UCC.
In addition, with respect to any Initial Collateral or Subsequent Collateral
that shall then be in or shall thereafter come into the possession or custody
of the Trustee, the Trustee may and, at the direction of the Holders of a
majority in principal amount of the Notes then outstanding shall, appoint
a broker or other expert to sell or cause the same to be sold at any broker's
board or at public or private sale, in one or more sales or lots, at such price
or prices such broker or other expert may deem best, for cash or on credit or
for future delivery, without assumption of any credit risk. The purchaser of
any or all of the Initial Collateral or Subsequent Collateral so sold shall
thereafter hold the same absolutely, free from any claim, encumbrance or right
of any kind whatsoever created by or through the Pledgors. The Trustee will
give the Pledgors reasonable notice of the time and place of any public sale
thereof, or of the time after which any private sale or other intended
disposition is to be made. Any sale of the Initial Collateral or the Subsequent
Collateral conducted in conformity with reasonable commercial practices of
banks, insurance companies, commercial finance companies, or other financial
institutions disposing of property similar to the Initial Collateral and the
Subsequent Collateral shall be deemed to be commercially reasonable. Any
requirements of reasonable notice shall be met if such notice is mailed to the
Pledgors as provided in Section 17.1 hereof at least ten (10) days before the
time of the sale or disposition. The Trustee or any Holder of Notes may, in its
own name or in the name of a designee or nominee, buy any of the Initial
Collateral or the Subsequent Collateral at any public sale and, if permitted by
applicable law, at any private sale. All expenses (including court costs and
reasonable attorneys' fees, expenses and disbursements) of, or incident to, the
enforcement of any of the provisions hereof shall be recoverable from the
proceeds of the sale or other disposition of the Initial Collateral or the
Subsequent Collateral.
(c) The Pledgors further agree to use their reasonable best
efforts to do or cause to be done all such other acts as may be necessary to
make such sale or sales of all or any portion of the Initial Collateral or the
Subsequent Collateral pursuant to this Section 14 valid and binding and in
compliance with any and all other applicable requirements of law. The Pledgors
further agree that a breach of any of the covenants contained in this
Section 14 will cause irreparable injury to the Trustee and the Holders of the
Notes, that the Trustee and the Holders of the Notes have no adequate remedy
at law in respect of such breach and, as a consequence, that each and every
covenant contained in this Section 14 shall be specifically enforceable against
the Pledgors, and the Pledgors hereby waive and agree not to assert any
defenses against an action for specific performance of such covenants except
for a defense that no Event of Default has occurred.
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SECTION 15. Expenses.
The Pledgors will upon demand pay to the Trustee the amount of any
and all reasonable expenses, including, without limitation, the reasonable fees,
expenses and disbursements of its counsel, experts and agents retained by the
Trustee, that the Trustee may incur in connection with (a) the review,
negotiation and administration of this Pledge Agreement, (b) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Initial Collateral or the Subsequent Collateral, (c) the exercise or
enforcement of any of the rights of the Trustee and the Holders of the Notes
hereunder or (d) the failure by the Pledgors to perform or observe any of the
provisions hereof.
SECTION 16. Security Interest Absolute.
All rights of the Trustee and the Holders of the Notes and security
interests hereunder, and all obligations of the Pledgors hereunder, shall be
absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Indenture or
any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Initial Secured Obligations or the
Subsequent Secured Obligations, or any other amendment or waiver of or any
consent to any departure from the Indenture;
(c) any exchange, surrender, release or non-perfection of any
Liens on any other collateral for all or any of the Initial Secured Obligations
or the Subsequent Secured Obligations; or
(d) to the extent permitted by applicable law, any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, the Pledgors in respect of the Initial Secured Obligations or
the Subsequent Secured Obligations or of this Pledge Agreement.
SECTION 17. Miscellaneous Provisions.
17.1 Notices.
Any notice or communication shall be sufficiently given if in
writing and delivered in person or mailed by first class mail, commercial
courier service or telecopier communication, addressed as follows:
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if to the Pledgors:
Centennial Cellular Operating Co. LLC
c/o Welsh, Carson, Anderson & Stowe
32 Park Avenue, Suite 2500
New York, New York 10022-6815
Attention: Michael Small
and
Centennial Finance Corp.
c/o Welsh, Carson, Anderson & Stowe
32 Park Avenue, Suite 2500
New York, New York 10022-6815
Attention: Michael Small
with a copy to:
Reboul, MacMurray, Hewitt, Maynard & Kristol
45 Rockefeller Plaza
New York, New York 10111
Telephone: (212) 841-5700
Telecopier: (212) 841-5725
Attention: Robert A. Schwed
if to the Trustee:
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Telephone: (212) 946-3376
Telecopier: (212) 946-8161
Attention: Global Trust Services
with a copy to:
Kelley Drye & Warren LLP
101 Park Avenue
- 30 -
<PAGE>
New York, New York 10178
Telephone: (212) 808-7800
Telecopier: (212) 808-7897
Attention: David Retter
17.2 No Adverse Interpretation of Other Agreements.
This Pledge Agreement may not be used to interpret another pledge,
security or debt agreement of the Pledgors or any subsidiary thereof. No such
pledge, security or debt agreement (other than the Indenture) may be used to
interpret this Pledge Agreement.
17.3 Severability.
The provisions of this Pledge Agreement are severable, and if any
clause or provision shall be held invalid, illegal or unenforceable in whole or
in part in any jurisdiction, then such invalidity or unenforceability shall
affect in that jurisdiction only such clause or provisions, or part thereof, and
shall not in any manner affect such clause or provision in any other
jurisdiction or any other clause or provision of this Pledge Agreement in any
jurisdiction.
17.4 Headings.
The headings in this Pledge Agreement have been inserted for
convenience of reference only, are not to be considered a part thereof and shall
in no way modify or restrict any of the terms or provisions hereof.
17.5 Counterpart Originals.
This Pledge Agreement may be signed in two or more counterparts,
each of which shall be deemed an original, but all of which shall together
constitute one and the same agreement.
17.6 Benefits of Pledge Agreement.
Nothing in this Pledge Agreement, express or implied, shall give to
any person, other than the parties hereto and their successors hereunder, and
the Holders of the Notes, any benefit or any legal or equitable right, remedy or
claim under this Pledge Agreement.
17.7 Amendments, Waivers and Consents.
Any amendment or waiver of any provision of this Pledge Agreement
and any consent to any departure by the Pledgors from any provision of this
Pledge Agreement shall be effective only if made or duly given in compliance
with all of the terms and provisions of the Indenture, and neither the Trustee
- 31 -
<PAGE>
nor any Holder of Notes shall be deemed, by any act, delay, indulgence, omission
omission or otherwise, to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. Failure of the Trustee or any Holder of Notes to
exercise, or delay in exercising, any right, power or privilege hereunder shall
not preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Trustee or any Holder of the Notes
of any right or remedy hereunder on any one occasion shall not be construed
as a bar to any right or remedy that the Trustee or such Holder of Notes
would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
17.8 Interpretation of Agreement.
To the extent a term or provision of this Pledge Agreement conflicts
with the Indenture, the Indenture shall control with respect to the subject
matter of such term or provision. Acceptance of or acquiescence in a course of
performance rendered under this Pledge Agreement shall not be relevant to
determine the meaning of this Pledge Agreement even though the accepting or
acquiescing party had knowledge of the nature of the performance and opportunity
for objection.
17.9 Continuing Security Interest; Termination.
(a) This Pledge Agreement shall create a continuing security
interest in and to the Initial Collateral and the Subsequent Collateral and
shall, unless otherwise provided in the Indenture or in this Pledge Agreement,
remain in full force and effect until the payment in full in cash of the
Initial Secured Obligations and the Subsequent Secured Obligations. This Pledge
Agreement shall be binding upon the Pledgors, their transferees, successors
and assigns, and shall inure, together with the rights and remedies of the
Trustee hereunder, to the benefit of the Trustee, the Holders of the Notes and
their respective successors, transferees and assigns.
(b) This Pledge Agreement shall terminate upon the payment in
full in cash of the Subsequent Secured Obligations or the consummation of a
Special Mandatory Redemption. At such time, the Trustee shall, pursuant to an
Issuer Order, reassign and redeliver to the Pledgors all of the Subsequent
Collateral hereunder that has not been sold, disposed of, retained or
applied by the Trustee in accordance with the terms of this Pledge Agreement
and the Indenture. Such reassignment and redelivery shall be without warranty
by or recourse to the Trustee in its capacity as such, except as to the absence
of any Liens on theSubsequent Collateral created by or arising through the
Trustee, and shall be at the reasonable expense of the Pledgors.
- 32 -
<PAGE>
17.10 Survival Provisions.
All representations, warranties and covenants of the Pledgors
contained herein shall survive the execution and delivery of this Pledge
Agreement, and shall terminate only upon the termination of this Pledge
Agreement. The obligations of the Pledgors under Sections 13 and 15 hereof shall
survive the termination of this Pledge Agreement.
17.11 Waivers.
The Pledgors waive presentment and demand for payment of any of the
Initial Secured Obligations or the Subsequent Secured Obligations, protest and
notice of dishonor or default with respect to any of the Initial Secured
Obligations or the Subsequent Secured Obligations, and all other notices to
which the Pledgors might otherwise be entitled, except as otherwise expressly
provided herein or in the Indenture.
17.12 Authority of the Trustee.
(a) The Trustee shall have and be entitled to exercise all powers
hereunder that are specifically granted to the Trustee by the terms hereof,
together with such powers as are reasonably incident thereto. The Trustee may
perform any of its duties hereunder or in connection with the Initial
Collateral or the Subsequent Collateral by or though agents or employees and
shall be entitled to retain counsel and to act in reliance upon the advice of
counsel concerning all such matters. Except as otherwise expressly provided in
this Pledge Agreement or the Indenture, neither the Trustee nor any director,
officer, employee, attorney or agent of the Trustee shall be liable to the
Pledgors for any action taken or omitted to be taken by the Trustee, in its
capacity as Trustee, hereunder, except for its own bad faith, gross negligence
or willful misconduct, and the Trustee shall not be responsible for the
validity, effectiveness, sufficiency or priority hereof or of any document or
security furnished pursuant hereto. The Trustee and its directors, officers,
employees, attorneys and agents shall be entitled to rely on any communication,
instrument or document believed by it or them to be genuine and correct and to
have been signed or sent by the proper person or persons. The Trustee shall
have no duty to cause any financing statement or continuation statement to be
filed in respect of the Initial Collateral or the Subsequent Collateral.
(b) The Pledgors acknowledge that the rights and responsibilities
of the Trustee under this Pledge Agreement with respect to any action taken by
the Trustee or the exercise or non-exercise by the Trustee of any option, right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Pledge Agreement shall, as between the Trustee and the
Holders of the Notes, be governed by the Indenture and by such other agreements
with respect thereto as may exist from time to time among them, but, as between
the Trustee and the Pledgors, the Trustee shall be conclusively presumed to be
acting as agent for the Holders of the Notes with full and valid authority so to
act or refrain from acting, and the Pledgors shall not be obligated or entitled
to make any inquiry respecting such authority.
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<PAGE>
17.13 Final Expression.
This Pledge Agreement, together with the Indenture and any other
agreement executed in connection herewith, is intended by the parties as a final
expression of this Pledge Agreement and is intended as a complete and exclusive
statement of the terms and conditions thereof.
17.14 Rights of Holders of the Notes.
No Holder of Notes shall have any independent rights hereunder other
than those rights granted to individual Holders of the Notes pursuant to Section
6.8 of the Indenture; provided that nothing in this subsection shall limit any
rights granted to the Trustee under the Notes or the Indenture.
17.15 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial;
Waiver of Damages
(a) THIS PLEDGE AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED
UNDER THE LAWS OF THE STATE OF NEW YORK, AND ANY DISPUTE ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
AMONG THE PLEDGORS, THE TRUSTEE AND THE HOLDERS OF THE NOTES IN CONNECTION WITH
THIS PLEDGE AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY OR
OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. NOTWITHSTANDING THE
FOREGOING: THE MATTERS IDENTIFIED IN 31 C.F.R. ss.ss. 357.10 AND 357.11
(AS IN EFFECT ON THE DATE OF THIS AGREEMENT) SHALL BE GOVERNED SOLELY BY THE
LAWS SPECIFIED THEREIN.
(b) THE PLEDGORS AGREE THAT NEITHER ANY HOLDER OF NOTES NOR
(EXCEPT AS OTHERWISE PROVIDED IN THIS PLEDGE AGREEMENT OR THE INDENTURE) THE
TRUSTEE IN ITS CAPACITY AS TRUSTEE SHALL HAVE ANY LIABILITY TO THE PLEDGORS
(WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES SUFFERED BY THE
PLEDGORS IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY RELATED TO, THE
TRANSACTIONS CONTEMPLATED AND THE RELATIONSHIP ESTABLISHED BY THIS PLEDGE
AGREEMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH,
UNLESS IT IS DETERMINED BY A FINAL AND NONAPPEALABLE JUDGMENT OF A COURT
- 34 -
<PAGE>
THAT IS BINDING ON THE TRUSTEE OR SUCH HOLDER OF NOTES, AS THE CASE MAY BE, THAT
SUCH LOSSES WERE THE RESULT OF ACTS OR OMISSIONS ON THE PART OF THE TRUSTEE OR
SUCH HOLDERS OF NOTES, AS THE CASE MAY BE, CONSTITUTING BAD FAITH, GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
(c) TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PLEDGORS
WAIVE THE POSTING OF ANY BOND OTHERWISE REQUIRED OF THE TRUSTEE OR ANY HOLDER OF
NOTES IN CONNECTION WITH ANY JUDICIAL PROCESS OR PROCEEDING TO ENFORCE ANY
JUDGMENT OR OTHER COURT ORDER PERTAINING TO THIS PLEDGE AGREEMENT OR ANY RELATED
AGREEMENT OR DOCUMENT ENTERED IN FAVOR OF THE TRUSTEE OR ANY HOLDER OF NOTES, OR
TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER OR PRELIMINARY
OR PERMANENT INJUNCTION, THIS PLEDGE AGREEMENT OR ANY RELATED AGREEMENT OR
DOCUMENT BETWEEN THE PLDEGORS ON THE ONE HAND AND THE TRUSTEE AND/OR THE HOLDERS
OF THE NOTES ON THE OTHER HAND.
17.16 Wire Transfers.
(a) The Trustee is authorized to seek confirmation of fund
transfer instructions by telephone call-back to the person or persons designated
on Exhibit J hereto,and the Trustee may rely upon the confirmations of any one
purporting to be the person or persons so designated. The persons and telephone
numbers for call-backs may be changed only in a writing actually received and
acknowledged by the Trustee. The parties to this Pledge Agreement acknowledge
that such security procedure is commercially reasonable.
(b) It is understood that the Trustee and the beneficiary's bank
in any funds transfer may rely solely upon any account numbers or similar
identifying number provided by either of the other parties hereto to identify
(i) the beneficiary, (ii) the beneficiary's bank, or (iii) an order it executes
using any such identifying number, even where its use may result in a person
other than the beneficiary being paid, or the transfer of funds to a bank other
than the beneficiary's bank or an intermediary bank designated.
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<PAGE>
IN WITNESS WHEREOF, the Pledgors and the Trustee have each caused this
Pledge Agreement to be duly executed and delivered as of the date first above
written.
Pledgors:
CENTENNIAL CELLULAR OPERATING CO. LLC
By: Centennial Finance Corp.
By: /s/ Michael Small
Name: Michael Small
Title: Chief Executive Officer
CENTENNIAL FINANCE CORP.
By: /s/ Michael Small
Name: Michael Small
Title: Chief Executive Officer
Trustee:
THE CHASE MANHATTAN BANK
By:/s/ Jennifer F. Smith
Name: Jennifer F. Smith
Title: Trust Officer
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<PAGE>
EXHIBIT A
---------
[Form of Preliminary Release Certificate]
CENTENNIAL CELLULAR OPERATING CO. LLC
CENTENNIAL FINANCE CORP.
Date:
The undersigned officers of Centennial Cellular Operating Co. LLC, a
Delaware limited liability company and Centennial Finance Corp., a Delaware
corporation (the "Pledgors"), hereby certify to the Trustee, pursuant to Section
3.3 of the Pledge and Escrow Agreement dated as of December 14, 1998 (the
"Pledge Agreement") among the Pledgors and The Chase Manhattan Bank, as trustee
(the "Trustee") under the Indenture dated as of December 14, 1998 (the
"Indenture") among the Pledgors and the Trustee, as follows:
The consummation of the Merger (as defined in the Indenture) and
related transactions including the financing thereof is scheduled to occur on
, 1999 (the "Anticipated Merger Date").
- ---------
The Pledgors reasonably believe that the Merger will be consummated on
the Anticipated Merger Date.
The Pledgors hereby request and direct the Trustee to liquidate all of
the Cash Equivalents (as defined in the Pledge Agreement) by no later than 10:00
a.m. (New York time)[FN]* on the Anticipated Merger Date.
CENTENNIAL CELLULAR OPERATING
CO. LLC
By:
Name:
Title:
CENTENNIAL FINANCE CORP.
By:
Name:
Title:
- --------
* Pledgors may request an earlier time or date.
A-1
<PAGE>
EXHIBIT B
---------
[Form of Reboul, MacMurray, Hewitt, Maynard & Kristol Opinion]
The consummation of the Merger and the assumption by Centennial
Cellular Corp. of the Notes and the obligations under the Registration Rights
Agreement and the Pledge Agreement and the entering into by Centennial Cellular
Corp. of the Credit Facility will not result in the violation by Centennial
Cellular Corp. (or any other entity which is the borrower under the Credit
Facility) of its Certificates of Formation, Certificates of Incorporation or
bylaws or any federal or New York statute or the Delaware GCL, rule or
regulation or any judgment, order, writ or decree of any United States federal,
New York or Delaware court or governmental instrumentality or do not and will
not conflict with or result in the breach or default, whether with or without
the passage of time or both, including any repayment event, under any material
agreements known to us; and, no consent, approval, license, authorization or
order of, or filing with, any federal, New York or Delaware court or
governmental agency or body is required for the consummation of the Merger and
the assumption by Centennial Cellular Corp. of the Notes and the obligations
under the Registration Rights Agreement and the Pledge Agreement and the
entering into by Centennial Cellular Corp. of the Credit Facility. Such opinion
may be subject to the same exceptions and assumptions as contained in the
opinion delivered to the Lenders under the Credit Facility with respect to
similar matters and acceptable to the Trustee.
B-1
<PAGE>
EXHIBIT C
---------
[Form of Release Certificate]
CENTENNIAL CELLULAR OPERATING CO. LLC
CENTENNIAL FINANCE CORP.
Date:
The undersigned officers of Centennial Cellular Operating Co. LLC, a
Delaware limited liability company (the "Issuer"), and Centennial Finance Corp.,
a Delaware Corporation ("Finance Corp." and together with the Issuer, the
"Pledgors"), hereby certify, pursuant to Section 4.2 of the Pledge and Escrow
Agreement dated as of December 14, 1998 (the "Pledge Agreement") between the
Pledgors and The Chase Manhattan Bank, as trustee (the "Trustee") under the
Indenture dated as of December 14, 1998 (the "Indenture") between the Pledgors
and the Trustee, as follows:
1. All of the conditions to the consummation of the Merger (as defined in the
Indenture) have been satisfied or waived as of the date hereof.
2. The Merger will be consummated on the date hereof and (a) Centennial
Cellular Corp., a Delaware corporation ("Centennial"), shall have received
the Equity Contribution and Mezzanine Financing of at least $580 million,
(b) (i) the Issuer shall have incurred or assumed no more than $1.35
billion and no less than $1.25 billion of Indebtedness under the Credit
Facility and the Notes, and (ii) Centennial shall have outstanding under
the Credit Facility, the Notes and the Mezzanine Financing no more than
$1.55 billion (less the principal amount of Old Notes not tendered and not
defeased) and no less than $1.4 billion of Indebtedness (plus the amount of
any (x) Old Notes which have been properly defeased and (y) Equity
Contribution and Mezzanine Financing in excess of $580 million less the
principal amount of Old Notes not tendered and not defeased) and (c) (i)
the Issuer and its Subsidiaries shall not have outstanding more than $25
million of Indebtedness for borrowed money (other than the Notes and the
borrowings under the Credit Facility) and (ii) Centennial shall not have
outstanding more than $25 million of Indebtedness for borrowed money (other
than its obligations under the Notes and Credit Facility, the Mezzanine
Financing and any remaining Old Notes which have been properly defeased or
not tendered and not defeased).[FN]
- --------
[FN] These amounts may be appropriately adjusted depending on the actual
amount of funds necessary to fund the first three interest payments on
the Notes.
C-1
<PAGE>
3. No Event of Default (as defined in the Indenture) has occurred and is
continuing or will occur as a result of the release of funds contemplated
hereby and after giving effect to the Recapitalization and the transactions
contemplated thereby including the financing thereof. Unless otherwise
indicated, capitalized terms used herein without definition shall have the
meanings specified in the Pledge Agreement.
The Pledgors hereby requests the Trustee to release $ , which
----------
amount is the funds in excess of the Subsequent Funds held by it in the Initial
Escrow and Pledge Account at The Chase Manhattan Bank, and to terminate and
release its pledge and assignment of, and security interest in, the Initial
Collateral under the Pledge Agreement (but not the Subsequent Collateral) in
accordance with Section 4.3 thereof. As soon as practicable, such funds should
be deposited in immediately available funds in the following account or accounts
at [Insert Bank] in the amounts indicated.
CENTENNIAL CELLULAR OPERATING
CO. LLC
By:
Name:
Title:
CENTENNIAL FINANCE CORP.
By:
Name:
Title:
C-2
<PAGE>
EXHIBIT D
---------
[Form of Release of Security Interest]
[To be typed on Trustee's letterhead]
Date:
VIA FACSIMILE AND FEDERAL EXPRESS
CENTENNIAL CELLULAR OPERATING CO. LLC
CENTENNIAL FINANCE CORP.
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue
Suite 2500
New York, New York 10022-6815
Attention: Michael Small
Re: Release of Security Interest
Ladies and Gentlemen:
Reference is hereby made to that certain Pledge and Escrow Agreement
dated as of December 14, 1998 by and among Centennial Cellular Operating Co.
LLC, Centennial Finance Corp. and The Chase Manhattan Bank, as Trustee (as
amended, supplemented or modified from time to time in accordance with the terms
thereof, the "Pledge Agreement").
By its signature below, the Trustee hereby terminates and releases its
pledge and assignment of, and security interest in, all of the Initial
Collateral under the Pledge Agreement (but not the Subsequent Collateral), which
amount has been delivered to you on your order on the date hereof.
This release may be executed in one or more counterparts, each of
which shall be deemed an original and all of which, taken together, shall
constitute one and the same instrument.
Very truly yours,
THE CHASE MANHATTAN BANK
as Trustee
By:
Name:
Title:
D-1
<PAGE>
EXHIBIT E
---------
[Letterhead]
[ ], 1998
Independent Public Accountants' Report
on Sufficiency of Marketable U.S. Securities
To The Chase Manhattan Bank:
We understand that $370,000,000 Centennial Cellular Operating Co. LLC 10 3/4%
Senior Subordinated Notes due 2008 (the "Notes") were issued on December 14,
1998. We also understand the Trustee currently holds the Government Securities
listed on the attached schedule (the "Government Securities") pursuant to
Section 5.4 of the Pledge and Escrow Agreement, dated December 14, 1998 (the
"Pledge Agreement"). We also understand that at any time while the Pledge
Agreement is in force, the Pledgors may substitute Marketable U.S. Securities
(the "Marketable U.S. Securities") for the Government Securities pledged as
Subsequent Collateral pursuant to Section 5.3(b) of the Pledge Agreement.
We have been requested to verify the mathematical correctness of the
computations shown on the attached schedule that the Marketable U.S. Securities
substituted for the Government Securities pledged as Subsequent Collateral
pursuant to the Pledge Agreement have a fair market value (measured at the date
of substitution) at least equal to 125.0% of the amount of any of the first
three scheduled interest payments on the Notes that are unpaid (or the pro rata
portion of such interest payments equal to the percentage of such interest
payments to be secured by such Marketable U.S. Securities) as of the date such
Marketable U.S. Securities are proposed to be substituted as Subsequent
Collateral pursuant to Section 5.3(b) of the Pledge Agreement.
We have performed the procedures enumerated below, which were agreed to by
Centennial Cellular Operating Co. LLC and Centennial Finance Corp. (the
"Pledgors") solely to assist you with respect to verifying the mathematical
correctness of the above mentioned computations. This engagement to apply
agreed-upon procedures was performed in accordance with standards established by
the American Institute of Certified Public Accountants. The sufficiency of the
procedures is solely the responsibility of the specified users of the report.
Consequently, we make no representation regarding the sufficiency of the
procedures described below either for the purpose for which this report has been
requested or for any other purpose.
E-1
<PAGE>
1. We have verified the computations of the amount of any of the first three
scheduled interest payments on the Notes that are unpaid (or the pro rata
portion of such interest payments equal to the percentage of such interest
payments to be secured by such Marketable U.S. Securities) as of the date
such Marketable U.S. Securities are proposed to be substituted as
Subsequent Collateral.
2. We have verified the fair market value of the Marketable U.S. Securities to
be substituted as Subsequent Collateral.
3. We have recomputed the computation of the fair market value (measured at
the date of substitution) of the Marketable U.S. Securities, which are
proposed to be substituted as Subsequent Collateral, and the fair market
value is at least equal to 125.0% of the amount of any of the first three
scheduled interest payments on the Notes that are unpaid (or the pro rata
portion of such interest payments equal to the percentage of such interest
payments to be secured by such Marketable U.S. Securities) as of the date
such Marketable U.S. Securities are proposed to be substituted as
Subsequent Collateral.
In performing the above calculations, we have relied solely on the data set
forth in the attached schedule. The scope of our engagement did not include the
verification of any underlying data, assumptions or definitions necessary to
derive the financial calculations, which include, but are not limited to, the
following:
1. The principal amounts, coupon rates, and the related maturity for the
Marketable U.S. Securities and the Notes.
2. Interest start dates, delivery dates and first interest payment dates for
the Marketable U.S. Securities and the Notes.
Our engagement was limited to the procedures enumerated above. Accordingly, we
express no opinion or any form of assurance relating to the occurrence of future
events or to the attainability of the assumptions.
The data presented in the accompanying attached schedule indicate that the
Securities will be sufficient upon receipt of scheduled interest and principal
payments on such Securities to provide for payment in full of the first three
scheduled interest payments due on all of the Notes.
This letter is solely for the information of, and assistance to, The Chase
Manhattan Bank, as Trustee under the Pledge Agreement, and, without our prior
consent, is not to be used, circulated, quoted or otherwise referred to for any
other purpose.
By:
Name:
Title:
E-2
<PAGE>
EXHIBIT F
---------
[Form of Representations and Warranties Bring-down Certificate]
CENTENNIAL CELLULAR OPERATING CO. LLC
CENTENNIAL FINANCE CORP.[FN]
The undersigned officers of Centennial Cellular Operating Co. LLC, a
Delaware limited liability company, and Centennial Finance Corp.*, a Delaware
corporation (the "Pledgors"), hereby certify to the Trustee, pursuant to Section
5.3(b) of the Pledge and Escrow Agreement dated as of December 14, 1998 (the
"Pledge Agreement") between the Pledgors and The Chase Manhattan Bank, as
trustee (the "Trustee") under the Indenture dated as of December 14, 1998 (the
"Indenture") between the Pledgors and the Trustee, as follows:
The representations and warranties of the Pledgors set forth in
Section 7 of the Pledge Agreement are true and correct as of the day hereof.
CENTENNIAL CELLULAR OPERATING
CO. LLC
By:
Name:
Title:
CENTENNIAL FINANCE CORP.*
By:
Name:
Title:
- -------
[FN] If delivered after consummation of the Merger, all references to
Centennial Finance Corp. will be to Centennial Cellular Corp. as successor
to Centennial Finance Corp.
F-1
<PAGE>
EXHIBIT G
---------
[Form of Subsequent Collateral Investments Account Letter]
[ ], 1998
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Centennial Cellular Operating Co. LLC
Centennial Cellular Corp.,
as successor to
Centennial Finance Corp
Dear Sir or Madam:
Reference is made to Subsequent Collateral Investments Account No. [ ]
into which certain securities, instruments and other properties are deposited
from time to time (the "Subsequent Collateral Investments Account") maintained
by you (the "Trustee"). Pursuant to the Pledge and Escrow Agreement, dated
December 14, 1998 (the "Pledge Agreement"), Centennial Cellular Operating Co.
LLC and Centennial Cellular Corp., as successor to Centennial Finance Corp. (the
"Pledgors"), have granted to the Trustee for the holders of Notes referred to in
the Indenture dated as of December 14, 1998 (the "Indenture"), between the
Trustee and the Pledgors, a security interest in certain property of the
Pledgors, including, among other things, the following (the "Subsequent
Collateral Investments"): (a) the Subsequent Collateral Investments Account, (b)
all certificates and instruments, if any, representing or evidencing the
Subsequent Collateral Investments, (c) any and all securities entitlements to
the Subsequent Collateral Investments, (d) any and all related securities
accounts in which security entitlements to the Subsequent Collateral Investments
are carried, (e) all notes, certificates of deposit, deposit accounts, checks
and other instruments from time to time hereafter delivered to or otherwise
possessed by the Trustee for or on behalf of the Pledgors in substitution for or
in addition to any
G-1
<PAGE>
or all the then existing Subsequent Collateral Investments, (f) all interest,
dividends, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the then existing Subsequent Collateral Investments, and (g) all proceeds of
any and all of the foregoing Subsequent Collateral (including, without
limitation, proceeds that constitute property of the types described in clauses
(a) - (f) of this paragraph) and, to the extent not otherwise included, all
cash. It is a condition to the continued maintenance of the Subsequent
Collateral Investments Account with you that you agree to this letter agreement.
By signing this letter agreement, you acknowledge notice of,
and consent to the terms and provisions of, the Pledge Agreement, a copy of
which is attached hereto, and confirm to the Trustee that the description of the
Subsequent Collateral Investments Account set forth on Schedule 1 hereof is
correct and that you have received no notice of any other pledge or assignment
of the Subsequent Collateral Investments Account. Further, you hereby agree with
the Trustee that:
(a) Notwithstanding anything to the contrary in any other agreement
relating to the Subsequent Collateral Investments Account, the Subsequent
Collateral Investments Account is and will be subject to the terms and
conditions of the Pledge Agreement, will be maintained solely for the
benefit of the Trustee, will be entitled "CENTENNIAL Subsequent Collateral
Investments Account" and will be subject to written instructions only from
an officer of the Trustee. You hereby agree to comply with all instructions
(including, without limitation, any instructions to liquidate all or less
than all the Subsequent Collateral Investments and transfer the proceeds
thereof to the Trustee), originated by the Trustee relating to the
Subsequent Collateral Investments Account without further consent from any
other person (including, without limitation, the Pledgors), and not to
comply with any instructions originated by any person other than the
Trustee.
(b) You will maintain a record of all securities, instruments, checks
and other remittance items received in the Subsequent Collateral
Investments Account and, in addition to providing the Trustee and the
Pledgors with a report describing the contents on the Subsequent Collateral
Investments Account on a regular basis (or upon Trustee's or Pledgors'
request), furnish to the Trustee a monthly statement of the Subsequent
Collateral Investments Account to be transmitted electronically to the
Trustee at 212-946-8161, Attention: Jennifer F. Smith, Trust Officer.
G-2
<PAGE>
(c) You will transfer, in same day funds, as soon as practicable upon
receipt, all amounts collected from the Collateral Investments Account on
such day to the following account (the "Cash Collateral Account"):
Centennial Cellular Operating Co. LLC
Centennial Cellular Corp.,
as successor to
Centennial Finance Corp.
Account No. [ ]
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue
Suite 2500
New York, New York 10022-6815
Attention: Michael Small
(d) All transfers referred to in paragraph (c) above shall be made by
you irrespective of, and without deduction for, any counterclaim, defense,
recoupment or set-off and shall be final, and you will not seek to recover
from the Trustee for any reason any such payment once made.
(e) All service charges and fees with respect to the Subsequent
Collateral Investments Account shall be payable by the Pledgors.
(f) The Trustee shall be entitled to exercise any and all rights of
the Pledgors in respect of the Subsequent Collateral Investments Account in
accordance with the terms of the Pledge Agreement, and the undersigned
shall comply in all respects with such exercise.
This letter agreement shall be binding upon you and your successors
and assigns and shall inure to the benefit of the Trustee, the holders of the
Notes and their successors, transferees and assigns. You may terminate this
letter agreement only upon thirty days' prior written notice to the Pledgors and
the Trustee. Upon such termination you shall close the Subsequent Collateral
Investments Account and transfer all funds in the Subsequent Collateral
Investments Account to the Cash Collateral Account. After any such termination,
you shall nonetheless remain obligated promptly to transfer to the Cash
Collateral Account all securities, instruments, funds and other property
received in respect of the Subsequent Collateral Investments Account.
G-3
<PAGE>
This letter agreement shall be governed by and construed in accordance
with the laws of the State of New York without regard to choice-of-law
principles.
Very truly yours,
CENTENNIAL CELLULAR OPERATING CO. LLC
By:
Name:
Title:
CENTENNIAL CELLULAR CORP.,
as successor to
CENTENNIAL FINANCE CORP.
By:
Name:
Title:
Acknowledged and agreed to as of the date first above written:
[ ]
By:
Name:
Title:
G-4
<PAGE>
EXHIBIT H
---------
THE CHASE MANHATTAN BANK
OFFICER'S CERTIFICATE
Pursuant to the Pledge and Escrow Agreement (the "Pledge Agreement")
dated as of December 14, 1998 by and among Centennial Cellular Operating Co. LLC
and Centennial Cellular Corp., as successor to Centennial Finance Corp. (the
"Pledgors") and The Chase Manhattan Bank, as trustee (the "Trustee") for the
holders of the Pledgors' 10 3/4% Senior Subordinated Notes Due 2008, the
undersigned officer of the Trustee, on behalf of the Trustee, makes the
following certifications to the Pledgors and the Initial Purchasers. Capitalized
terms used and not defined in this Officer's Certificate have the meanings set
forth or referred to in the Pledge Agreement.
1. Substantially contemporaneously with the execution and delivery of
this Officer's Certificate, the Trustee has established with The Chase Manhattan
Bank a cash collateral account (the "Cash Collateral Account") and, as
securities intermediary, a securities account in the name of "CENTENNIAL
Subsequent Collateral Investments Account" (the "Subsequent Collateral
Investments Account") with respect to which the Trustee is the entitlement
holder and through which the Trustee has acquired a security entitlement to
certain Cash Equivalents (the "Subsequent Collateral Investments"), and has made
appropriate book entries in its records establishing that the Subsequent Funds
and the Subsequent Collateral Investments and the Trustee's securities
entitlement thereto have been credited to and are held in the Cash Collateral
Account or the Subsequent Collateral Investments Account, as the case may be,
all in accordance with the Pledge Agreement.
2. The Trustee has established and maintained and will maintain the
Cash Collateral Account and the Subsequent Collateral Investments Account and
all securities entitlements and other positions carried in the Cash Collateral
Account or the Subsequent Collateral Investments Account solely in its capacity
as Trustee and has not asserted and will not assert any claim to or interest in
the Cash Collateral Account or the Subsequent Collateral Investments Account or
any such securities entitlements or other positions except in such capacity.
3. The Trustee has acquired its security entitlement to the Subsequent
Collateral Investments directly through a "securities account" (as defined in
Section 8-501(a) of the UCC) maintained by [Trustee's Bank] for the benefit of
The Chase Manhattan Bank at the Federal Reserve Bank of New York, as securities
intermediary, for value and without notice of any adverse claim thereto. Without
limiting the generality of the foregoing, the Cash Collateral Account and the
Subsequent Collateral Investments are not and the Trustee's security entitlement
to the Subsequent Collateral Investments is not, to the Trustee's knowledge,
subject to any Lien granted by or to arising through or in favor of any
securities intermediary (including, without limitation, [Trustee's Banks] or the
Federal Reserve Bank of New York) through which the Trustee derives its security
entitlement to the Subsequent Collateral Investments.
H-1
<PAGE>
4. The Trustee has not caused or permitted the Cash Collateral Account
or the Subsequent Collateral Investments or its security entitlement hereto to
become subject to any Lien created by or arising through the Trustee.
IN WITNESS WHEREOF, the undersigned officer has executed this
Officer's Certificate on behalf of The Chase Manhattan Bank as Trustee this [ ]
day of [ ], 1998.
CHASE MANHATTAN BANK
By:
Name:
Title:
H-2
<PAGE>
EXHIBIT I
---------
[Letterhead]
[ ], 1998
Independent Public Accountants' Report
on Applying Agreed-Upon Procedures
To The Chase Manhattan Bank:
We understand that $370,000,000 Centennial Cellular Operating Co. LLC 10 3/4%
Senior Subordinated Notes due 2008 (the "Notes") were issued on December 14,
1998. We also understand the Trustee will hold the Securities listed on the
attached schedule (the "Securities") pursuant to Section 5.4 of the Pledge and
Escrow Agreement, dated December 14, 1998 (the "Pledge Agreement").
We have been requested to verify the mathematical correctness of the
computations shown on the attached schedule that the Securities will be
sufficient upon receipt of scheduled interest and principal payments on such
securities to provide for payment in full of the first three scheduled interest
payments due on all of the Notes.
We have performed the procedures enumerated below, which were agreed to by
Centennial Cellular Operating Co. LLC and Centennial Cellular Corp., as
successor to Centennial Finance Corp. (the "Pledgors") solely to assist you with
respect to verifying the mathematical correctness of the above mentioned
computations. This engagement to apply agreed-upon procedures was performed in
accordance with standards established by the American Institute of Certified
Public Accountants. The sufficiency of the procedures is solely the
responsibility of the specified users of the report. Consequently, we make no
representation regarding the sufficiency of the procedures described below
either for the purpose for which this report has been requested or for any other
purpose.
1. We have verified the computations of the payments in full of the first
three scheduled interest payments on all of the Notes, as shown on the
attached schedule.
2. We have verified the computations of the cash flow shown on the attached
schedule.
I-1
<PAGE>
3. We recomputed the computations of the payments of interest on the Notes and
the amount of the payments of maturing principal and interest to be
received from the Securities to meet the first three scheduled interest
payments on all of the Notes all as set forth in the attached schedule, and
found them to be mathematically correct.
In performing the above calculations, we have relied solely on the data set
forth in the attached schedule, furnished by Merrill Lynch & Co.. The scope of
our engagement did not include the verification of any underlying data,
assumptions or definitions necessary to derive the financial calculations, which
include, but are not limited to, the following:
1. The principal amounts, coupon rates, and the related maturity for the
Securities and the Notes.
2. Interest start dates, delivery dates and first interest payment dates for
the Securities and the Notes.
Our engagement was limited to the procedures enumerated above. Accordingly, we
express no opinion or any form of assurance relating to the occurrence of future
events or to the attainability of the assumptions.
The data presented in the accompanying attached schedule indicate that the
Securities will be sufficient upon receipt of scheduled interest and principal
payments on such Securities to provide for payment in full of the first three
scheduled interest payments due on all of the Notes.
This letter is solely for the information of, and assistance to, The Chase
Manhattan Bank, as Trustee under the Pledge Agreement, and, without our prior
consent, is not to be used, circulated, quoted or otherwise referred to for any
other purpose.
By:
Name:
Title:
I-2
<PAGE>
EXHIBIT J
---------
Telephone Number(s) for Call-Backs and
Person(s) Designated to Confirm Funds Transfer Instructions
If to Pledgors:
Name Telephone Number
1. Peter Chehayl (732) 919-1000
2. Thomas Bucks (732) 919-1000
J-1
<PAGE>
EXHIBIT K
---------
[Form of Successor Certificate]
CENTENNIAL CELLULAR CORP.
The undersigned officer of Centennial Cellular Corp., a Delaware
corporation (the "Successor"), hereby certifies to the Trustee, pursuant to
Section 4.2 of the Pledge and Escrow Agreement dated as of December 14, 1998
(the "Pledge Agreement") between the Pledgors (as defined in the Pledge
Agreement) and The Chase Manhattan Bank, as trustee (the "Trustee") under the
Indenture dated as of December 14, 1998 (the "Indenture") between the Pledgors
and the Trustee, as follows:
1. The representations and warranties of the Pledgors set forth in
Section 7 of the Pledge Agreement are true and correct with respect to all
Pledgors (including the Successor) as of the day hereof.
2. The Successor assumes the liabilities and obligations of the
Pledgors under the Pledge Agreement.
3. The Successor is a successor obligor of the Notes.
CENTENNIAL CELLULAR CORP.
By:
Name:
Title:
K-1
<PAGE>
EXHIBIT L
---------
[Form of Merger Extension Notice Certificate]
CENTENNIAL CELLULAR OPERATING CO. LLC
CENTENNIAL FINANCE CORP.
Date:
The undersigned officers of Centennial Cellular Operating Co. LLC, a
Delaware limited company, and Centennial Finance Corp., a Delaware Company (the
"Pledgors"), hereby certify to the Trustee, pursuant to Section 3.3 of the
Pledge and Escrow Agreement dated as of December 14, 1998 (the "Pledge
Agreement") between the Pledgors and The Chase Manhattan Bank, as trustee (the
"Trustee") under the Indenture dated as of December 14, 1998 (the "Indenture")
between the Pledgors and the Trustee, as follows:
1. The Merger will be consummated after January 6, 1999.
2. The Pledgors believe that the Merger will not be consummated prior
to .
------------
The Pledgors hereby authorize the Trustee to invest the Initial Funds
in Cash Equivalents (as defined in the Pledge Agreement) that mature on or prior
to .
------------
CENTENNIAL CELLULAR OPERATING
CO. LLC
By:
Name:
Title:
CENTENNIAL FINANCE CORP.
By:
Name:
Title:
L-1
<PAGE>
EXHIBIT M
---------
[Form Of Extension Certificate]
CENTENNIAL CELLULAR OPERATING CO. LLC
CENTENNIAL FINANCE CORP.
Date:
The undersigned officers of Centennial Cellular Operating Co. LLC, a
Delaware limited liability company, and Centennial Finance Corp., a Delaware
corporation (the "Pledgors"), hereby certify to the Trustee, pursuant to Section
3.4 of the Pledge and Escrow Agreement dated as of December 14, 1998 (the
"Pledge Agreement") between the Pledgors and The Chase Manhattan Bank, as
trustee (the "Trustee") under the Indenture dated as of December 14, 1998 (the
"Indenture") between the Pledgors and the Trustee, as follows:
1. The Pledgors have deposited on or prior to the 50th day after the
Issue Date $_________ in cash (the "Add-In Additional Escrow Amount") in the
Initial Escrow and Pledge Account for the benefit of the holders of the Notes in
order to extend the escrow until __________, 1999 (the "Extension Date").
2. The amount of cash deposited was determined by the Initial
Purchasers on the same basis as the determination of the Additional Escrow
Amount.
3. The basis under which the Merger Agreement has not been satisfied
as of the date hereof relates to pending governmental or regulatory approvals or
the effectiveness of shareholder approval.
4. The parties named in the Credit Facilities Commitment Letter as
lenders have extended their commitment to lend to no earlier than the Extension
Date or the effectiveness of shareholder approval.
5. The Pledgors have issued a press release on or prior to the 50th
day after the Issue Date in a reasonably commercial manner to inform the holders
of the Notes of such extension and notified the Trustee with respect to the
extension of the escrow period.
M-1
<PAGE>
Terms not otherwise defined herein have the meanings given to such
terms in the Pledge Agreement.
CENTENNIAL CELLULAR OPERATING CO. LLC
By:
Name:
Title:
CENTENNIAL FINANCE CORP.
By:
Name:
Title:
M-2
Registration Rights Agreement
Dated as of December 14, 1998
among
CENTENNIAL CELLULAR OPERATING CO. LLC
(a Delaware limited liability company),
CENTENNIAL FINANCE CORP.
(a Delaware corporation)
(to be merged with and into
Centennial Cellular Corp.
upon consummation of
the Merger (as defined))
and
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED,
NATIONSBANC MONTGOMERY SECURITIES LLC,
MORGAN STANLEY & CO. INCORPORATED
and
CHASE SECURITIES INC.
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 14th day of December 1998, among Centennial Cellular Operating
Co. LLC, a Delaware limited liability company (the "Issuer"), Centennial Finance
Corp., a Delaware corporation (which will be merged with and into Centennial
Cellular Corp. ("Centennial") upon consummation of the Merger (as defined
below)) ("Finance Corp.") as co-obligor, and Merrill Lynch, Pierce, Fenner &
Smith Incorporated, NationsBanc Montgomery Securities LLC, Morgan Stanley & Co.
Incorporated and Chase Securities Inc. (collectively, the "Initial Purchasers").
Upon consummation of the Merger, (i) Finance Corp. will merge with and into
Centennial, with Centennial as the surviving corporation and (ii) Centennial
shall become liable for all of Finance Corp.'s liabilities and will become a
joint and several co-obligor of the Securities. For purposes of this Agreement,
the Term "Co-Obligors" means, before the Merger, the Issuer and Finance Corp.
and, after the Merger, the Issuer and Centennial.
This Agreement is made pursuant to the Purchase Agreement, dated
December 9, 1998, among the Company, Finance Corp. and the Initial Purchasers
(the "Purchase Agreement"), which provides for the sale by the Issuer and
Finance Corp. to the Initial Purchasers of an aggregate of $370 million
principal amount of the Issuer's and Finance Corp.'s 10 3/4% Senior Subordinated
Notes due 2008, Series A (the "Securities"). In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Issuer and Finance Corp.
have agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time.
"Closing Date" shall mean the Closing Time as defined in the Purchase
Agreement.
"Centennial" shall have the meaning set forth in the preamble and
shall also include Centennial's successors.
-1-
<PAGE>
"Co-Obligors" shall have the meaning set forth in the preamble and
shall also include the successors of each of the Issuer, Finance Corp. and
Centennial.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Issuer and Finance Corp., provided, however,
that such depositary must have an address in the Borough of Manhattan, in
the City of New York.
"Exchange Offer" shall mean the exchange offer by the Co-Obligors of
Exchange Securities for Registrable Securities pursuant to Section 2.1
hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form or on any successor form used for substantially the same
transactions), and all amendments and supplements to such registration
statement, including the Prospectus contained therein, all exhibits thereto
and all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2.1
hereof.
"Exchange Securities" shall mean, collectively, the 10 3/4% Senior
Subordinated Notes due 2008, Series B issued by the Co-Obligors under the
Indenture, containing terms identical to the Securities in all material
respects (except for references to certain interest rate provisions,
restrictions on transfers and restrictive legends), to be offered to
Holders of Securities in exchange for Registrable Securities pursuant to
the Exchange Offer.
"Finance Corp." shall have the meaning set forth in the preamble and
shall also include Finance Corp.'s successors.
"Holder" shall mean an Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture and each Participating Broker-Dealer that holds
Exchange Securities for so long as such Participating Broker-Dealer is
required to deliver a prospectus meeting the requirements of the 1933 Act
in connection with any resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the Securities and
the Exchange Securities, dated as of December 14, 1998, among the Issuer,
Finance Corp. and The Chase Manhattan Bank, as trustee, as amended by the
First Supplemental Indenture to be entered into at or about the Merger Date
among the Issuer, Centennial, and The Chase Manhattan Bank, as trustee,
-2-
<PAGE>
as the same may be amended, supplemented, waived or otherwise modified from
time to time in accordance with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the meaning set
forth in the preamble.
"Issuer" shall have the meaning set forth in the preamble and shall
also include the Issuer's successors.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Issuers and other obligors on
the Securities or any Affiliate (as defined in the Indenture) of any of the
Co-Obligors shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage amount.
"Merger Date" means the date on which CCW Acquisition Corp. merges
into Centennial and all of the Recapitalization Transactions (as defined in
the Purchase Agreement) have occurred.
"Participating Broker-Dealer" shall mean any of Merrill Lynch, Pierce,
Fenner & Smith Incorporated, NationsBanc Montgomery Securities LLC, Morgan
Stanley & Co. Incorporated and Chase Securities Inc. or any other
broker-dealer which makes a market in the Securities and exchanges
Registrable Securities in the Exchange Offer for Exchange Securities.
"Person" shall mean an individual, partnership (general or limited),
corporation, limited liability company, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2.1
hereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2.1 hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
-3-
<PAGE>
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean, collectively, the Securities and,
if issued, the Private Exchange Securities; provided, however, that the
Securities and, if issued, the Private Exchange Securities, shall cease to
be Registrable Securities when (i) a Registration Statement with respect to
such Securities shall have been declared effective under the 1933 Act and
such Securities shall have been disposed of pursuant to such Registration
Statement, (ii) such Securities have been sold to the public pursuant to
Rule 144 (or any similar provision then in force, but not Rule 144A) under
the 1933 Act, (iii) such Securities shall have ceased to be outstanding or
(iv) the Exchange Offer is consummated (except in the case of Securities
purchased from the Co-Obligors and continued to be held by the Initial
Purchasers or Securities which may not be exchanged in the Exchange Offer).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Co-Obligors with this Agreement,
including without limitation: (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. (the "NASD") registration and
filing fees, including, if applicable, the fees and expenses of any
"qualified independent underwriter" (and its counsel) that is required to
be retained by any holder of Registrable Securities in accordance with the
rules and regulations of the NASD, (ii) all fees and expenses incurred in
connection with compliance with state securities or blue sky laws and
compliance with the rules of the NASD (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection with
blue sky qualification of any of the Exchange Securities or Registrable
Securities and any filings with the NASD), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any Prospectus, any amendments
or supplements thereto, any underwriting agreements, securities sales
agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities
on any securities exchange or exchanges, (v) all rating agency fees, (vi)
the fees and disbursements of counsel for the Co-Obligors and of the
independent public accountants of the Co-Obligors, including the expenses
of any special audits or "cold comfort" letters required by or incident to
such performance and compliance, (vii) the fees and expenses of the
Trustee, and any escrow agent or custodian, (viii) the reasonable fees and
disbursements of one special counsel representing the Holders of
Registrable Securities in connection with a Shelf Registration and (ix) any
fees and disbursements of the underwriters customarily required to be paid
by issuers or sellers of securities and the fees and expenses of any
special experts retained by the Co-Obligors in connection with any
Registration Statement, but excluding underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition
of Registrable Securities by a Holder.
-4-
<PAGE>
"Registration Statement" shall mean any registration statement of the
Co-Obligors which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all amendments
and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Co-Obligors pursuant to the provisions of Section 2.2 of
this Agreement which covers all of the Registrable Securities or all of the
Private Exchange Securities on an appropriate form under Rule 415 under the
1933 Act, or any successor or similar rule that may be adopted by the SEC,
and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Trustee" shall mean the trustee with respect to the Securities and
the Exchange Securities under the Indenture.
2. Registration Under the 1933 Act.
2.1 Exchange Offer. The Co-Obligors shall, for the benefit of the
Holders, at the Co-Obligors' cost, use their best efforts (A) to prepare and, as
soon as practicable but not later than 60 days following the Merger Date, file
with the SEC an Exchange Offer Registration Statement on an appropriate form
under the 1933 Act with respect to a proposed Exchange Offer and the issuance
and delivery to the Holders, in exchange for the Registrable Securities (other
than Private Exchange Securities), of a like principal amount of Exchange
Securities, (B) to cause the Exchange Offer Registration Statement to be
declared effective under the 1933 Act within 150 days of the Merger Date, (C) to
keep the Exchange Offer Registration Statement effective until the closing of
the Exchange Offer and (D) to cause the Exchange Offer to be consummated not
later than 180 days following the Merger Date. The Exchange Securities will be
issued under the Indenture. Upon the effectiveness of the Exchange Offer
Registration Statement, the Co-Obligors shall promptly commence the Exchange
Offer, it being the objective of such Exchange Offer to enable each Holder
eligible and electing to exchange Registrable Securities for Exchange Securities
(assuming that such Holder (a) is not an affiliate of the Co-Obligors within the
meaning of Rule 405 under the 1933 Act, (b) is not a broker-dealer tendering
-5-
<PAGE>
Registrable Securities acquired directly from the Co-Obligors for its own
account, (c) acquired or will acquire the Exchange Securities in the ordinary
course of such Holder's business and (d) has no arrangements or understandings
with any Person to participate in the Exchange Offer for the purpose of
distributing the Exchange Securities) to transfer such Exchange Securities from
and after their receipt without any limitations or restrictions under the 1933
Act and under state securities or blue sky laws.
In connection with the Exchange Offer, the Co-Obligors shall:
(a) mail as promptly as practicable to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(b) keep the Exchange Offer open for acceptance for a period of
not less than 20 business days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law) (such period referred to
herein as the "Exchange Period");
(c) utilize the services of the Depositary for the Exchange
Offer;
(d) permit Holders to withdraw tendered Registrable Securities at
any time prior to 5:00 p.m. (Eastern Time), on the last business day of the
Exchange Period, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered for exchange,
and a statement that such Holder is withdrawing such Holder's election to have
such Securities exchanged;
(e) notify each Holder that any Registrable Security not tendered
will remain outstanding and continue to accrue interest, but will not retain any
rights under this Agreement (except in the case of the Initial Purchasers and
Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Securities acquired by them and having the status of an
unsold allotment in the initial distribution, the Co-Obligors upon the request
of any Initial Purchaser shall, simultaneously with the delivery of the Exchange
Securities in the Exchange Offer, issue and deliver to such Initial Purchaser in
exchange (the "Private Exchange") for the Securities held by such Initial
Purchaser, a like principal amount of debt securities of the Co-Obligors on a
senior subordinated basis that are identical (except that such securities shall
bear appropriate transfer restrictions) to the Exchange Securities (the "Private
Exchange Securities").
-6-
<PAGE>
The Exchange Securities and the Private Exchange Securities shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture and which, in either case, has been qualified under
the Trust Indenture Act of 1939, as amended (the "TIA"), or is exempt from such
qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions set forth in the Indenture but that the
Private Exchange Securities shall be subject to such transfer restrictions. The
Indenture or such indenture shall provide that the Exchange Securities, the
Private Exchange Securities and the Securities shall vote and consent together
on all matters as one class and that none of the Exchange Securities, the
Private Exchange Securities or the Securities will have the right to vote or
consent as a separate class on any matter. The Private Exchange Securities shall
be of the same series as and the Co-Obligors shall use all commercially
reasonable efforts to have the Private Exchange Securities bear the same CUSIP
number as the Exchange Securities.
As soon as practicable after the close of the Exchange Offer and/or
the Private Exchange, as the case may be, the Co-Obligors shall:
(i) accept for exchange all Registrable Securities duly tendered
and not validly withdrawn pursuant to the Exchange Offer in accordance
with the terms of the Exchange Offer Registration Statement and the
letter of transmittal which shall be an exhibit thereto;
(ii) accept for exchange all Securities properly tendered
pursuant to the Private Exchange;
(iii) deliver to the Trustee for cancellation all Registrable
Securities so accepted for exchange; and
(iv) cause the Trustee promptly to authenticate and deliver
Exchange Securities or Private Exchange Securities, as the case may
be, to each Holder of Registrable Securities so accepted for exchange
in a principal amount equal to the principal amount of the Registrable
Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange Security will
accrue from the last date on which interest was paid on the Registrable
Securities surrendered in exchange therefor or, if no interest has been paid on
the Registrable Securities, from the date of original issuance. The Exchange
Offer and the Private Exchange shall not be subject to any conditions, other
than (i) that the Exchange Offer or the Private Exchange, or the making of any
exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer and the Private Exchange, (iii)
that each Holder of Registrable Securities exchanged in the Exchange Offer shall
have represented that all Exchange Securities to be received by it shall be
acquired in the ordinary course of its business and that at the time of the
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consummation of the Exchange Offer it shall have no arrangement or understanding
with any person to participate in the distribution (within the meaning of the
1933 Act) of the Exchange Securities and shall have made such other
representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or other
appropriate form under the 1933 Act available and (iv) that no action or
proceeding shall have been instituted or threatened in any court or by or before
any governmental agency with respect to the Exchange Offer or the Private
Exchange which, in the Co-Obligors' judgment, would reasonably be expected to
impair the ability of the Co-Obligors to proceed with the Exchange Offer or the
Private Exchange. The Co-Obligors shall inform the Initial Purchasers of the
names and addresses of the Holders to whom the Exchange Offer is made, and the
Initial Purchasers shall have the right to contact such Holders and otherwise
facilitate the tender of Registrable Securities in the Exchange Offer.
2.2 Shelf Registration. (i) If, because of any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC, the Co-Obligors are not permitted to effect the Exchange Offer as
contemplated by Section 2.1 hereof, (ii) if for any other reason the Exchange
Offer Registration Statement is not declared effective within 150 days following
the Merger Date or the Exchange Offer is not consummated within 180 days after
the Merger Date, (iii) upon the request of any of the Initial Purchasers or (iv)
if a Holder (including any Initial Purchaser) is not permitted to participate in
the Exchange Offer or does not receive freely tradeable Exchange Securities
pursuant to the Exchange Offer, then in case of each of clauses (i) through (iv)
the Co-Obligors shall, at their cost:
(a) As promptly as practicable, file with the SEC, and thereafter
shall use their commercially reasonable efforts to cause to be declared
effective as promptly as practicable but no later than the later of (a) 180 days
after the Merger Date and (b) in the case of a request by an Initial Purchaser
for a Shelf Registration Statement, 60 days after receipt of notice that a Shelf
Registration Statement is requested, a Shelf Registration Statement relating to
the offer and sale of the Registrable Securities by the Holders from time to
time in accordance with the methods of distribution elected by the Majority
Holders participating in the Shelf Registration and set forth in such Shelf
Registration Statement.
(b) Use their commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of up to two years
from the Closing Date, or for such shorter period that will terminate when all
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or cease to be outstanding or
otherwise to be Registrable Securities (the "Effectiveness Period"); provided,
however, that the Effectiveness Period in respect of the Shelf Registration
Statement shall be extended to the extent required to permit dealers to comply
with the applicable prospectus delivery requirements under the 1933 Act and as
otherwise provided herein.
(c) Notwithstanding any other provisions hereof, use their
commercially reasonable efforts to ensure that (i) any Shelf Registration
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Statement and any amendment thereto and any Prospectus forming part thereof and
any supplement thereto complies in all material respects with the 1933 Act and
the rules and regulations thereunder, (ii) any Shelf Registration Statement and
any amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any Prospectus forming part of any Shelf Registration Statement, and any
supplement to such Prospectus (as amended or supplemented from time to time),
does not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in light of the
circumstances under which they were made, not misleading.
The Co-Obligors shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement. The Co-Obligors
further agree, if necessary, to supplement or amend the Shelf Registration
Statement, as required by Section 3(b) below, and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
2.3 Expenses. The Co-Obligors shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2. Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
2.4 Effectiveness. (a) The Co-Obligors will be deemed not to have used
their best efforts to cause the Exchange Offer Registration Statement or the
Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if the Co-Obligors voluntarily take any
action that would, or omit to take any action which omission would, result in
any such Registration Statement not being declared or remaining effective or in
the Holders of Registrable Securities covered thereby not being able to exchange
or offer and sell such Registrable Securities during that period as and to the
extent contemplated hereby, unless such action is required by applicable law.
(b) An Exchange Offer Registration Statement pursuant to Section
2.1 hereof or a Shelf Registration Statement pursuant to Section 2.2 hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC; provided, however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to an Exchange Offer Registration
Statement or a Shelf Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement will be deemed not to
have become effective during the period of such interference, until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume.
2.5 Interest. The Indenture executed in connection with the Securities
will provide that in the event that either (a) the Exchange Offer Registration
Statement is not filed with the SEC on or prior to the 60th calendar day
following the Merger Date, (b) the Exchange Offer Registration Statement has
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has not been declared effective on or prior to the 150th calendar day following
the Merger Date, or (c) the Exchange Offer is not consummated or a Shelf
Registration Statement is not declared effective, in either case, on or prior to
the 180th calendar day following the Merger Date (each such event referred to in
clauses (a) through (c) above, a "Registration Default"), the interest rate
borne by the Securities shall be increased ("Additional Interest") by
one-quarter of one percent per annum upon the occurrence of each Registration
Default, which rate will increase by one quarter of one percent each 90-day
period that such Additional Interest continues to accrue under any such
circumstance, provided that the maximum aggregate increase in the interest rate
will in no event exceed one percent (1%) per annum. Following the cure of all
Registration Defaults the accrual of Additional Interest will cease and the
interest rate will revert to the original rate.
If the Shelf Registration Statement is unusable by the Holders because
the Board of Directors of the Co-Obligors have concluded in good faith that
continued use of the Shelf Registration Statement would materially adversely
affect or interfere with any proposed or pending financing, acquisition,
corporate reorganization or other material transaction involving the Co-Obligors
or any of their Subsidiaries, and the aggregate number of days in any
consecutive twelve-month period for which the Shelf Registration Statement shall
not be usable exceeds 60 days in the aggregate, then the interest rate borne by
the Securities will be increased by one-quarter of one percent per annum of the
principal amount of the Securities for the first 90-day period (or portion
thereof) beginning on the 61st such date that such Shelf Registration Statement
ceases to be usable, which rate shall be increased by an additional one-quarter
of one percent per annum of the principal amount of the Securities at the
beginning of each subsequent 90-day period, provided that the maximum aggregate
increase in the interest rate will in no event exceed one percent (1%) per
annum. Any amounts payable under this paragraph shall also be deemed "Additional
Interest" for purposes of this Agreement. Upon the Shelf Registration Statement
once again becoming usable, the interest rate borne by the Securities will be
reduced to the original interest rate if the Co-Obligors are otherwise in
compliance with this Agreement at such time. Additional Interest shall be
computed based on the actual number of days elapsed in each 90-day period in
which the Shelf Registration Statement is unusable.
The Co-Obligors shall notify the Trustee within three business days
after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Additional
Interest shall be paid by depositing with the Trustee, in trust, for the benefit
of the Holders of Registrable Securities, on or before the applicable semiannual
interest payment date, immediately available funds in sums sufficient to pay the
Additional Interest then due whether or not the Trustee holds any funds in
escrow for the benefit of the Holders. The Additional Interest due shall be
payable on each interest payment date to the record Holder of Securities
entitled to receive the interest payment to be paid on such date as set forth in
the Indenture. Each obligation to pay Additional Interest shall be deemed to
accrue from and including the day following the applicable Event Date.
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3. Registration Procedures.
In connection with the obligations of the Co-Obligors with respect to
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Co-Obligors
shall:
(a) prepare and file with the SEC a Registration Statement, on
the appropriate form under the 1933 Act, which form (i) shall be selected by the
Co-Obligors, (ii) shall, in the case of a Shelf Registration, be available for
the sale of the Registrable Securities by the selling Holders thereof, (iii)
shall comply as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial statements
required by the SEC to be filed therewith or incorporated by reference therein,
and (iv) shall comply in all respects with the requirements of Regulation S-T
under the 1933 Act, and use their commercially reasonable efforts to cause such
Registration Statement to become effective and remain effective in accordance
with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary
under applicable law to keep such Registration Statement effective for the
applicable period; and cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
(or any similar provision then in force) under the 1933 Act and comply with the
provisions of the 1933 Act, the 1934 Act and the rules and regulations
thereunder applicable to them with respect to the disposition of all securities
covered by each Registration Statement during the applicable period in
accordance with the intended method or methods of distribution by the selling
Holders thereof (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder
of Registrable Securities, at least five business days prior to filing, that a
Shelf Registration Statement with respect to the Registrable Securities is being
filed and advising such Holders that the distribution of Registrable Securities
will be made in accordance with the method selected by the Majority Holders
participating in the Shelf Registration; (ii) furnish to each Holder of
Registrable Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if the
Holder so requests, all exhibits in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) hereby consent to the use
of the Prospectus or any amendment or supplement thereto by each of the selling
Holders of Registrable Securities in connection with the offering and sale of
the Registrable Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) use their best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Securities covered by a Registration
Statement and each underwriter of an underwritten offering of Registrable
Securities shall reasonably request by the time the applicable Registration
Statement is declared effective by the SEC, and do any and all other acts and
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things which may be reasonably necessary or advisable to enable each such Holder
and underwriter to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that the
Co-Obligors shall not be required to (i) qualify as a foreign corporation or as
a dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Section 3(d), or (ii) take any action which
would subject it to general service of process or taxation in any such
jurisdiction where it is not then so subject;
(e) notify promptly each Holder of Registrable Securities under a
Shelf Registration or any Participating Broker-Dealer who has notified the
Co-Obligors that it is utilizing the Exchange Offer Registration Statement as
provided in paragraph (f) below and, if requested by such Holder or
Participating Broker-Dealer, confirm such advice in writing promptly (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of the Co-Obligors contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating to the
offering cease to be true and correct in all material respects, (v) of the
happening of any event or the discovery of any facts during the period a Shelf
Registration Statement is effective which makes any statement made in such
Registration Statement or the related Prospectus untrue in any material respect
or which requires the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not misleading, (vi) of the
receipt by the Co-Obligors of any notification with respect to the suspension of
the qualification of the Registrable Securities or the Exchange Securities, as
the case may be, for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose and (vii) of any determination by the
Co-Obligors that a post-effective amendment to such Registration Statement would
be appropriate;
(f) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution" which section shall be reasonably acceptable to Merrill Lynch on
behalf of the Participating Broker-Dealers, and which shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that holds
Registrable Securities acquired for its own account as a result of market-making
activities or other trading activities and that will be the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Securities to be
received by such broker-dealer in the Exchange Offer, whether such positions or
policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the judgment of Merrill Lynch on behalf of the
Participating Broker-Dealers and its counsel, represent the prevailing views of
the staff of the SEC, including a statement that any such broker-dealer who
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receives Exchange Securities for Registrable Securities pursuant to the Exchange
Offer may be deemed a statutory underwriter and must deliver a prospectus
meeting the requirements of the 1933 Act in connection with any resale of such
Exchange Securities, (ii) furnish to each Participating Broker-Dealer who has
delivered to the Co-Obligors the notice referred to in Section 3(e), without
charge, as many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus, and any amendment
or supplement thereto, as such Participating Broker-Dealer may reasonably
request, (iii) hereby consent to the use of the Prospectus forming part of the
Exchange Offer Registration Statement or any amendment or supplement thereto, by
any Person subject to the prospectus delivery requirements of the SEC, including
all Participating Broker-Dealers, in connection with the sale or transfer of the
Exchange Securities covered by the Prospectus or any amendment or supplement
thereto, and (iv) include in the transmittal letter or similar documentation to
be executed by an exchange offeree in order to participate in the Exchange Offer
(x) the following provision (or any other provision reasonably requested by
Merrill Lynch on behalf of the Participating Broker-Dealers with respect to
similar matters):
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale
of Exchange Securities received in respect of such
Registrable Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act; and
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish counsel
for the Holders of Registrable Securities copies of any comment letters received
from the SEC or any other request by the SEC or any state securities authority
for amendments or supplements to a Registration Statement and Prospectus or for
additional information;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(i) in the case of a Shelf Registration, furnish to each Holder
of Registrable Securities, and each underwriter, if any, without charge, at
least one conformed copy of each Registration Statement and any post-effective
amendment thereto, including financial statements and schedules (without
documents incorporated therein by reference and all exhibits thereto, unless
requested);
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(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities to
be in such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the underwriters, if any, may
reasonably request at least three business days prior to the closing of any sale
of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence of
any event or the discovery of any facts, each as contemplated by Sections
3(e)(v) and 3(e)(vi) hereof, as promptly as practicable after the occurrence of
such an event, use their best efforts to prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable Securities
or Participating Broker-Dealers, such Prospectus will not contain at the time of
such delivery any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or will remain so
qualified. At such time as such public disclosure is otherwise made or the
Co-Obligors determine that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted material
fact, the Co-Obligors agree promptly to notify each Holder of such determination
and to furnish each Holder such number of copies of the Prospectus as amended or
supplemented, as such Holder may reasonably request;
(l) in the case of a Shelf Registration, a reasonable time prior
to the filing of any Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a Prospectus or any
document which is to be incorporated by reference into a Registration Statement
or a Prospectus after initial filing of a Registration Statement, provide copies
of such document to the Initial Purchasers on behalf of such Holders; and make
representatives of the Co-Obligors as shall be reasonably requested by the
Holders of Registrable Securities, or the Initial Purchasers on behalf of such
Holders, available for discussion of such document;
(m) obtain a CUSIP number for all Exchange Securities, Private
Exchange Securities or Registrable Securities, as the case may be, not later
than the effective date of a Registration Statement, and provide the Trustee
with certificates for the Exchange Securities, Private Exchange Securities or
the Registrable Securities, as the case may be, in a form eligible for deposit
with the Depositary;
(n) (i) cause the Indenture to be qualified under the Trust
Indenture Act of 1939 (the "TIA") in connection with the registration of the
Exchange Securities or Registrable Securities, as the case may be, (ii)
cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in accordance
with the terms of the TIA and (iii) execute, and use its best efforts to cause
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the Trustee to execute, all documents as may be required to effect such changes,
and all other forms and documents required to be filed with the SEC to enable
the Indenture to be so qualified in a timely manner;
(o) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary or appropriate
actions requested by a majority in interest of the Holders in order to expedite
or facilitate the disposition of such Registrable Securities and in such
connection whether or not an underwriting agreement is entered into and whether
or not the registration is an underwritten registration:
(i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, if any, in form,
substance and scope similar to the representations and warranties in
the Purchase Agreement and as to other matters as otherwise are
customarily made by issuers to underwriters in similar underwritten
offerings as may be reasonably requested by them;
(ii) obtain opinions of counsel to the Co-Obligors and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be satisfactory to the managing underwriters, if any, and the
holders of a majority in principal amount of the Registrable
Securities being sold) addressed to each selling Holder and the
underwriters, if any, covering the matters similar to those covered in
the opinions delivered pursuant to the Purchase Agreement and as to
other matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from
Centennial's and the Issuer's independent certified public accountants
(and, if necessary, any other independent certified public accountants
of any subsidiary of Centennial or the Issuer or of any business
acquired by Centennial or the Issuer for which financial statements
are, or are required to be, included in the Registration Statement)
addressed to the underwriters, if any, and use reasonable efforts to
have such letter addressed to the selling Holders of Registrable
Securities (to the extent consistent with Statement on Auditing
Standards No. 72 of the American Institute of Certified Public
Accounts), such letters to be similar to the letters delivered
pursuant to the Purchase Agreement and as to other matters as are
customarily covered in "cold comfort" letters to underwriters in
connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders and
an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement shall
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be in form, substance and scope customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the same
to set forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth
in Section 4 hereof with respect to the underwriters and all other
parties to be indemnified pursuant to said Section or, at the request
of any underwriters, in the form customarily provided to such
underwriters in similar types of transactions; and
(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings to the
Holders of a majority in principal amount of the Registrable
Securities being sold and the managing underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration Statement
(and each post-effective amendment thereto) and (ii) each closing under any
underwriting or similar agreement as and to the extent required thereunder;
(p) in the case of a Shelf Registration or if a Prospectus is
required to be delivered by any Participating Broker-Dealer in the case of an
Exchange Offer, make available for inspection by representatives of the Holders
of the Registrable Securities, any underwriters participating in any disposition
pursuant to a Shelf Registration Statement, any Participating Broker-Dealer and
any counsel or accountant retained by any of the foregoing, all financial and
other records, pertinent corporate documents and properties of the Co-Obligors
reasonably requested by any such persons, and cause the respective officers,
directors, employees, and any other agents of the Co-Obligors to supply all
information reasonably requested by any such representative, underwriter,
special counsel or accountant in connection with a Registration Statement, and
make such representatives of the Co-Obligors available for discussion of such
documents as shall be reasonably requested by the Initial Purchasers;
(q) in the case of a Shelf Registration, a reasonable time prior
to filing any Shelf Registration Statement, any Prospectus forming a part
thereof, any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the Holders of
Registrable Securities, to the Initial Purchasers, to counsel for the Holders
and to the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any, make such changes in any such document prior to
the filing thereof as the Initial Purchasers, the counsel to the Holders or the
underwriter or underwriters reasonably request and not file any such document in
a form to which the Majority Holders, the Initial Purchasers on behalf of the
Holders of Registrable Securities, counsel for the Holders of Registrable
Securities or any underwriter shall not have previously been advised and
furnished a copy of or to which the Majority Holders, the Initial Purchasers of
behalf of the Holders of Registrable Securities, counsel to the Holders of
Registrable Securities or any underwriter shall reasonably object, and make the
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representatives of the Co-Obligors available for discussion of such document as
shall be reasonably requested by the Holders of Registrable Securities, the
Initial Purchasers on behalf of such Holders, counsel for the Holders of
Registrable Securities or any underwriter.
(r) in the case of a Shelf Registration, use its best efforts to
cause all Registrable Securities to be listed on any securities exchange on
which similar debt securities issued by the Co-Obligors are then listed if
requested by the Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;
(s) in the case of a Shelf Registration, use its best efforts to
cause the Registrable Securities to be rated by the appropriate rating agencies,
if so requested by the Majority Holders, or if requested by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;
(t) otherwise comply with all applicable rules and regulations of
the SEC and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
(u) cooperate and assist in any filings required to be made with
the NASD and, in the case of a Shelf Registration, in the performance of any due
diligence investigation by any underwriter and its counsel (including any
"qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD); and
(v) upon consummation of an Exchange Offer or a Private Exchange,
obtain a customary opinion of counsel to the Co-Obligors addressed to the
Trustee for the benefit of all Holders of Registrable Securities participating
in the Exchange Offer or Private Exchange, and which includes an opinion that
(i) the Co-Obligors, as the case may be, have duly authorized, executed
and delivered the Exchange Securities and/or Private Exchange Securities, as
applicable, and the related indenture, and (ii) each of the Exchange
Securities and related indenture constitute a legal, valid and binding
obligation of each of the Issuers, as the case may be, enforceable against each
of the Issuers, as the case may be, in accordance with its respective terms
(with customary exceptions).
In the case of a Shelf Registration Statement, the Co-Obligors may (as
a condition to such Holder's participation in the Shelf Registration) require
each Holder of Registrable Securities to furnish to the Co-Obligors such
information regarding the Holder and the proposed distribution by such Holder of
such Registrable Securities as the Co-Obligors may from time to time reasonably
request in writing.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Co-Obligors of the happening of any
event or the discovery of any facts, each of the kind described in
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Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof, and, if so directed by the Co-Obligors, such Holder will
deliver to the Co-Obligors (at their expense) all copies in such Holder's
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice.
If any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the underwriter or
underwriters and manager or managers that will manage such offering will be
selected by the Majority Holders of such Registrable Securities included in such
offering and shall be acceptable to the Co-Obligors. No Holder of Registrable
Securities may participate in any underwritten registration hereunder unless
such Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in any underwriting arrangements approved by the persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
4. Indemnification; Contribution.
(a) The Co-Obligors, jointly and severally, agree to indemnify and
hold harmless the Initial Purchasers, each Holder, each Participating
Broker-Dealer, each Person who participates as an underwriter (any such Person
being an "Underwriter") and each Person, if any, who controls any Holder or
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
(or any amendment or supplement thereto) pursuant to which Exchange
Securities or Registrable Securities were registered under the 1933 Act,
including all documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
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<PAGE>
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
4(d) below) any such settlement is effected with the written consent of the
Co-Obligors; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by any indemnified party),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Issuers by the
Holder or Underwriter expressly for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto).
(b) Each Holder severally, but not jointly, agrees to indemnify
and hold harmless the Co-Obligors, the Initial Purchasers, each Underwriter and
the other selling Holders, and each of their respective directors and officers,
and each Person, if any, who controls the Co-Obligors, the Initial Purchasers,
any Underwriter or any other selling Holder within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 4(a)
hereof, as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Shelf Registration Statement
(or any amendment thereto) or any Prospectus included therein (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information with respect to such Holder furnished to the Co-Obligors by such
Holder expressly for use in the Shelf Registration Statement (or any amendment
thereto) or such Prospectus (or any amendment or supplement thereto); provided,
however, that no such Holder shall be liable for any claims hereunder in excess
of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so to notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
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<PAGE>
indemnified party. In no event shall the indemnifying party or parties be liable
for the fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 4 is for
any reason unavailable to or insufficient to hold harmless an indemnified party
in respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the Co-Obligors on the one hand and the Holders and the
Initial Purchasers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative fault of the Co-Obligors on the one hand and the Holders
and the Initial Purchasers on the other hand shall be determined by reference
to, among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Co-Obligors, the Holders or the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Co-Obligors, the Holders and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this Section 4 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
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Section 4. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
4 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 4, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities sold by it were offered exceeds the amount
of any damages which such Initial Purchaser has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission.
No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Initial Purchaser or Holder, and each director of any of the Issuers and each
Person, if any, who controls any of the Co-Obligors within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Co-Obligors. The Initial Purchasers' respective
obligations to contribute pursuant to this Section 4 are several in proportion
to the principal amount of Securities set forth opposite their respective names
in Schedule A to the Purchase Agreement and not joint.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the Issuer or Centennial is
subject to the reporting requirements of Section 13 or 15 of the 1934 Act, the
Issuer and Centennial covenant that they will file the reports required to be
filed by them under the 1933 Act and Section 13(a) or 15(d) of the 1934 Act and
the rules and regulations adopted by the SEC thereunder. If the Issuer and
Centennial are not required, or cease to be so required, to file such reports,
the Issuer and Centennial covenant that they will upon the request of any Holder
of Registrable Securities (a) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver
such information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act and it will take such further action as
any Holder of Registrable Securities may reasonably request, and (c) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Securities without registration under the 1933 Act within the limitation of the
exemptions provided by (i) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (ii) Rule 144A under the 1933 Act, as such Rule
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<PAGE>
may be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Securities, the Issuer and Centennial will deliver to such Holder a written
statement as to whether they have complied with such requirements.
5.2 No Inconsistent Agreements. None of the Co-Obligors has entered
into and none of the Co-Obligors will after the date of this Agreement enter
into any agreement which is inconsistent with the rights granted to the Holders
of Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the Holders hereunder do not and will
not for the term of this Agreement in any way conflict with the rights granted
to the holders of any of the Co-Obligors' other issued and outstanding
securities under any such agreements.
5.3 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless the Co-Obligors have obtained the written consent of
Holders of at least a majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification, supplement,
waiver or departure.
5.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Issuers by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially is the address set forth in the Purchase
Agreement with respect to the Initial Purchasers; and (b) if to the Co-Obligors,
initially at the Co-Obligors' address set forth in the Purchase Agreement, and
thereafter at such other address of which notice is given in accordance with the
provisions of this Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged, if telecopied; and on the next business day if timely delivered to
an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If
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any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchasers (even if the
Initial Purchasers are not Holders of Registrable Securities) shall be third
party beneficiaries to the agreements made hereunder between the Co-Obligors, on
the one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Co-Obligors, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
5.7 Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Co-Obligors acknowledge that any
failure by any of them to comply with their obligations hereunder may result in
material irreparable injury to the Initial Purchasers or the Holders for which
there is no adequate remedy at law, that it would not be possible to measure
damages for such injuries precisely and that, in the event of any such failure,
the Initial Purchasers or any Holder may obtain such relief as may be required
to specifically each of the Co-Obligors' obligations under Sections 2.1 through
2.4 hereof.
5.8 Restriction on Resales. Until the expiration of two years after
the original issuance of the Securities, the Co-Obligors will not, and will
cause their "affiliates" (as such term is defined in Rule 144(a)(1) under the
1933 Act) not to, resell any Securities which are "restricted securities" (as
such term is defined under Rule 144(a)(3) under the 1933 Act) that have been
reacquired by any of them and shall immediately upon any purchase of any such
Securities submit such Securities to the Trustee for cancellation.
5.9 Counterparts. This Agreement may be executed in any number of
counterparts and by the 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.
5.10 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
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PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
CENTENNIAL CELLULAR OPERATING CO. LLC
By: Centennial Finance Corp.
By /s/ Michael Small
--------------------------------------
Name: Michael Small
Title: Chief Executive Officer
CENTENNIAL FINANCE CORP.
By /s/ Michael Small
--------------------------------------
Name: Michael Small
Title: Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
NATIONSBANC MONTGOMERY SECURITIES LLC
MORGAN STANLEY & CO. INCORPORATED
CHASE SECURITIES INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By /s/ Lex Maultsby
------------------------------------------
Authorized Signatory
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CENTENNIAL CELLULAR CORP.,
as a Guarantor,
and
CENTENNIAL CELLULAR OPERATING CO. LLC,
as Borrower,
and
CENTENNIAL WIRELESS PCS OPERATIONS CORP.,
as PR Borrower,
and
THE OTHER GUARANTORS PARTY HERETO
----------------------
$1,050,000,000
CREDIT AGREEMENT
Dated as of January 7, 1999
----------------------
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,
as Lead Arranger and Syndication Agent,
and
NATIONSBANK, N.A.,
as Co-Arranger and Administrative Agent,
and
THE CHASE MANHATTAN BANK,
as Co-Arranger and Co-Documentation Agent,
and
THE BANK OF NOVA SCOTIA,
as Co-Documentation Agent,
and
MORGAN STANLEY SENIOR FUNDING, INC.,
as Senior Managing Agent,
and
THE LENDERS PARTY HERETO
<PAGE>
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which it is
attached but is inserted for convenience of reference only.
Page
Section 1. Definitions, Accounting Matters and Rules of Construction.......1
1.01. Certain Defined Terms...........................................1
1.02. Accounting Terms and Determinations............................44
1.03. Classes and Types of Loans.....................................44
1.04. Rules of Construction..........................................44
Section 2. Commitments, Letters of Credit, Fees, Register, Prepayments
and Replacement of Lenders...................................45
2.01. Loans..........................................................45
2.02. Borrowings.....................................................48
2.03. Letters of Credit..............................................49
2.04. Termination and Reductions of Commitments......................54
2.05. Fees...........................................................56
2.06. Lending Offices................................................56
2.07. Several Obligations of Lenders.................................56
2.08. Notes; Register................................................56
2.09. Optional Prepayments and Conversions or Continuations
of Loans.....................................................57
2.10. Mandatory Prepayments..........................................59
2.11. Replacement of Lenders.........................................63
Section 3. Payments of Principal and Interest.............................63
3.01. Repayment of Loans.............................................63
3.02. Interest.......................................................64
Section 4. Payments; Pro Rata Treatment; Computations; Etc................65
4.01. Payments.......................................................65
4.02. Pro Rata Treatment.............................................66
4.03. Computations...................................................66
4.04 Minimum Amounts................................................66
4.05. Certain Notices................................................67
4.06. Non-Receipt of Funds by Administrative Agent...................68
4.07. Right of Setoff; Sharing of Payments; Etc......................69
Section 5. Yield Protection, Etc..........................................70
5.01. Additional Costs...............................................70
5.02. Limitation on Types of Loans...................................71
5.03. Illegality.....................................................72
5.04. Treatment of Affected Loans....................................72
<PAGE>
Page
5.05. Compensation...................................................72
5.06. Net Payments...................................................73
Section 6. Guarantee......................................................75
6.01. The Guarantee..................................................75
6.02. Obligations Unconditional......................................76
6.03. Reinstatement..................................................77
6.04. Subrogation; Subordination.....................................77
6.05. Remedies.......................................................78
6.06. Instrument for the Payment of Money............................78
6.07. Continuing Guarantee...........................................78
6.08. General Limitation on Guarantee Obligations....................78
Section 7. Conditions Precedent...........................................78
7.01. Effectiveness and Initial Extension of Credit..................78
7.02. Initial and Subsequent Extensions of Credit....................84
7.03. Determinations Under Section 7.................................85
Section 8. Representations and Warranties.................................85
8.01. Corporate Existence............................................86
8.02. Financial Condition; Etc.......................................86
8.03. Litigation.....................................................87
8.04. No Breach; No Default..........................................87
8.05. Action.........................................................87
8.06. Approvals......................................................88
8.07. Representations and Warranties in the Merger Agreement.........88
8.08. ERISA..........................................................88
8.09. Taxes..........................................................89
8.10. Investment Company Act; Public Utility Holding Company Act;
Other Restrictions...........................................89
8.11. Environmental Matters..........................................89
8.12. Environmental Investigations...................................90
8.13. Use of Proceeds................................................90
8.14. Subsidiaries, Etc..............................................91
8.15. Properties.....................................................91
8.16. Security Interest; Absence of Financing Statements; Etc........92
8.17. Licenses and Permits; Compliance with Laws.....................92
8.18. True and Complete Disclosure...................................92
8.19. Solvency; Etc..................................................93
8.20. Contracts......................................................93
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Page
8.21. Labor Matters..................................................93
8.22. FCC Matters and Governmental Matters...........................93
8.23. Senior Subordinated Notes; Parent Subordinated Notes...........94
8.24. Year 2000......................................................95
Section 9. Covenants......................................................95
9.01. Financial Statements, Etc......................................95
9.02. Litigation, Etc................................................99
9.03. Existence; Compliance with Law; Payment of Taxes; Inspection
Rights; Performance of Obligations; Etc......................99
9.04. Insurance.....................................................101
9.05. Limitation on Lines of Business; Limitation on Activity of
License Subsidiaries; Limitation on Management Agreements...101
9.06. Limitation on Fundamental Changes, Acquisitions or
Dispositions................................................102
9.07. Limitation on Liens and Negative Pledges......................106
9.08. Prohibition on Disqualified Capital Stock; Limitation on
Indebtedness and Contingent Obligations.....................109
9.09. Limitation on Investments; Limitation on Creation of
Subsidiaries................................................112
9.10. Limitation on Dividend Payments...............................115
9.11. Financial Covenants...........................................117
9.12. Pledge or Mortgage of Additional Collateral...................119
9.13. Security Interests; Further Assurances........................121
9.14. Compliance with Environmental Laws............................122
9.15. Limitation on Transactions with Affiliates....................123
9.16. Limitation on Accounting Changes; Limitation on Investment
Company Status..............................................123
9.17. Limitation on Modifications of Certain Documents, Etc.........124
9.18. Interest Rate Protection Agreements...........................124
9.19. Limitation on Certain Restrictions Affecting Subsidiaries.....124
9.20. Additional Obligors; Licenses To Be Held by License
Subsidiaries................................................124
9.21. Limitation on Activities of Parent............................125
9.22. Limitation on Issuance or Dispositions of Equity Interests
of Borrower and Subsidiaries................................125
9.23. Limitation on Payments or Prepayments of Indebtedness
or Modification of Debt Documents...........................125
9.24. Casualty and Condemnation.....................................126
9.25. Limitation on Tax Sharing Arrangements........................127
9.26. Limitation on Designation of Designated Senior Indebtedness...127
9.27. No Contractual Bar............................................127
9.28. Year 2000 Compliance..........................................127
9.29. Facilities Agreement..........................................127
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Page
Section 10. Events of Default.............................................127
Section 11. Agents........................................................131
11.01. General Provisions............................................131
11.02. Indemnification...............................................133
11.03. Consents Under Other Credit Documents.........................134
11.04. Collateral Sub-Agents.........................................134
Section 12. Miscellaneous.................................................134
12.01. Waiver........................................................134
12.02. Notices.......................................................135
12.03. Expenses, Indemnification, Etc................................135
12.04. Amendments, Etc...............................................137
12.05. Successors and Assigns........................................140
12.06. Assignments and Participations................................140
12.07. Survival......................................................142
12.08. Captions......................................................142
12.09. Counterparts; Interpretation; Effectiveness...................143
12.10. Governing Law; Submission to Jurisdiction; Waivers; Etc.......143
12.11. Confidentiality...............................................143
12.12. Independence of Representations, Warranties and Covenants.....144
12.13. Severability..................................................144
12.14. Acknowledgments...............................................144
Signatures...........................................................S-1
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ANNEX A - Commitments
SCHEDULE 1.01(a) - Applicable Margins Before Reset Date
SCHEDULE 1.01(b) - Applicable Margins After Reset Date
SCHEDULE 1.01(c) - Applicable Revolving Credit Fee Percentage
SCHEDULE 1.01(d) - Guarantors (for Obligations of Borrower)
SCHEDULE 3.01(b) - Amortization Schedule
SCHEDULE 8.02(b) - Certain Contingent Obligations
SCHEDULE 8.02(c) - Certain Financial Matters
SCHEDULE 8.03 - Litigation
SCHEDULE 8.09 - Tax Matters
SCHEDULE 8.11 - Environmental Matters
SCHEDULE 8.14 - Subsidiaries, Etc.
SCHEDULE 8.16 - Security Interests
SCHEDULE 8.20 - Certain Contracts
SCHEDULE 8.21 - Labor Matters
SCHEDULE 8.22(b) - License Expiration Dates as of Closing Date
SCHEDULE 9.07 - Certain Existing Liens
SCHEDULE 9.08 - Certain Indebtedness to Remain Outstanding
SCHEDULE 9.09 - Investments
SCHEDULE 9.15 - Existing Affiliate Agreements
EXHIBIT A-1 - Form of Revolving Credit Note
EXHIBIT A-2 - Form of Tranche A Term Loan Note
EXHIBIT A-3 - Form of Tranche A-PR Term Loan Note
EXHIBIT A-4 - Form of Tranche B Term Loan Note
EXHIBIT A-5 - Form of Tranche C Term Loan Note
EXHIBIT A-6 - Form of Swing Loan Note
EXHIBIT B - Form of Intercompany Note
EXHIBIT C-1 - Form of Interest Rate Certificate
EXHIBIT C-2 - Form of Solvency Certificate
EXHIBIT D - Form of Security Agreement
EXHIBIT E-1 - Form of Opinion of Counsel to the Obligors
EXHIBIT E-2 - Form of Opinion of Special FCC Counsel to the Obligors
EXHIBIT F - Form of Notice of Assignment
EXHIBIT G - Form of Notice of Borrowing
EXHIBIT H - Form of Notice of Conversion/Continuation
EXHIBIT I - Form of Joinder Agreement
EXHIBIT J - Form of Section 5.06 Certificate for Lenders
EXHIBIT K - Form of Collateral Assignment of Location Agreements
EXHIBIT L - Form of Assignment Agreement
EXHIBIT M - Form of Perfection Certificate
EXHIBIT N - Form of Century-ML Consent and Agreement
EXHIBIT O - Form of Joinder Agreement for Lambda Operating Corp.
CREDIT AGREEMENT dated as of January 7, 1999, among CENTENNIAL CELLULAR
OPERATING CO. LLC, as Borrower; CENTENNIAL WIRELESS PCS OPERATIONS CORP., as PR
Borrower; CENTENNIAL CELLULAR CORP., as a Guarantor; the other Guarantors party
hereto; each of the lenders that is a signatory hereto identified under the
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<PAGE>
caption "LENDERS" on the signature pages hereto or that, pursuant to Section
12.06(b), shall become a "Lender" hereunder (individually, a "Lender" and,
collectively, the "Lenders"); MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED, as lead arranging agent (in such capacity, together with
its successors in such capacity, "Lead Arranger"); NATIONSBANK, N.A., as
co-arranger and administrative agent (in such capacity, together with its
successors in such capacity, "Administrative Agent"); THE CHASE MANHATTAN BANK,
as co-arranger and co-documentation agent (in such capacity, together with its
successors in such capacity, "Co-Documentation Agent"); THE BANK OF NOVA SCOTIA,
as co-documentation agent (in such capacity, together with its successors in
such capacity, "Co-Documentation Agent" and together with the other
Co-Documentation Agent, "Co-Documentation Agents"); MERRILL LYNCH & CO., MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as syndication agent (in such
capacity, together with its successors in such capacity, "Syndication Agent");
and MORGAN STANLEY SENIOR FUNDING, INC., as senior managing agent (in such
capacity, together with its successors in such capacity, "Senior Managing
Agent").
The parties hereto agree as follows:
Section 1. Definitions, Accounting Matters and Rules of Construction.
1.01. Certain Defined Terms. As used herein, the following terms
shall have the following meanings:
"ABR Loans" shall mean Loans that bear interest at rates based
upon the Alternate Base Rate.
"Acquisition" shall mean, with respect to any Person, any
transaction or series of related transactions for the direct or indirect (a)
acquisition of all or substantially all of the Property of any other Person, or
of any business or division of any other Person, (b) acquisition of in excess of
50% of the Equity Interests of any other Person, or otherwise causing any other
Person to become a Subsidiary of such Person, or (c) merger or consolidation or
any other combination with any other Person.
"Acquisition Consideration" shall mean the purchase consideration
for any Acquisition and all other payments made and liabilities incurred by any
Company in exchange for, or as part of the purchase price for, any Acquisition,
whether paid in cash or by exchange of Equity Interests (other than of Parent)
or of assets or otherwise and whether payable at or prior to the consummation of
such Acquisition or deferred for payment at any future time, whether or not any
such future payment is subject to the occurrence of any contingency, and
includes any and all payments and liabilities representing the purchase price
and any assumptions of liabilities, "earn-outs" and other Profit Payment
Agreements and non-competition agreements.
"Additional Collateral" see Section 9.12.
"Additional Obligors" see Section 9.20.
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"Additional Senior Subordinated Notes Documents" shall mean an
indenture governing the terms and conditions of the Additional Senior
Subordinated Notes and all other documents relating thereto (including any
interest escrow agreement, if applicable) and delivered to Agents, as any such
agreement or document may be amended and in effect from time to time in
accordance with its terms and this Agreement.
"Additional Senior Subordinated Notes" shall mean any senior
subordinated notes of Borrower or any senior notes of any direct or indirect
parent of Borrower for gross proceeds (for Borrower or any such direct or
indirect parent in the aggregate), in excess of the amount of interest in escrow
pursuant to the interest escrow agreement relating thereto (if applicable), of
up to $150.0 million issued in connection with any Acquisition effected pursuant
to Section 9.06(h), including the senior subordinated notes or senior notes (as
the case may be) issued pursuant to a registered exchange offer therefor, which
notes shall in any event (i) have covenants, events of default, redemption and
repurchase provisions and modification provisions in the aggregate not
materially less favorable to Borrower (or any such parent) and the Lenders than
the covenants, events of default, redemption and repurchase provisions and
modification provisions of the Senior Subordinated Notes, (ii) mature after the
Final Maturity Date (as it may be extended by the Increased Facility Amount),
(iii) be unsecured, (iv) require no cash interest payments (other than from an
interest escrow substantially similar to the Senior Subordinated Notes Interest
Escrow Agreement) until after the Senior Subordinated Notes Interest Trigger
Date, and (v) in the case of any such notes issued by Borrower, have
subordination terms substantially similar to the Senior Subordinated Notes.
"Adjusted Net Income" shall mean, for any period, the
consolidated net income (loss) for such period, of Borrower and its Consolidated
Subsidiaries calculated on a consolidated basis in accordance with GAAP,
adjusted by excluding (to the extent taken into account in the calculation of
such consolidated net income (loss)) the effect of (a) gains or losses for such
period from Excluded Dispositions and Dispositions not in the ordinary course of
business, and the tax consequences thereof, (b) any non-recurring or
extraordinary items of income (other than the proceeds of business interruption
insurance) or expense for such period and the tax consequences thereof, (c) the
portion of net income (loss) of any Person (other than a Subsidiary) in which
Borrower or any Subsidiary has an ownership interest, except to the extent of
the amount of cash dividends or other cash distributions actually paid to
Borrower or (subject to clause (e) below) any Subsidiary during such period to
the extent not in excess of such Person's net income for such period, (d) the
net income (loss) of any Person combined with Borrower or any Subsidiary on a
"pooling of interests" basis attributable to any period prior to the date of
combination, (e) the net income of any Subsidiary to the extent that the
declaration or payment of dividends or similar distribution by such Subsidiary
was not for the relevant period permitted, by operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Subsidiary or its stockholders, and
(f) any net gain from the collection of proceeds of life insurance or "key man"
insurance policies. For the purpose of determining Adjusted Net Income, the
value of handsets reflected on the financial statements of Borrower and its
Consolidated Subsidiaries shall be amortized in accordance with the relevant
amortization policies of Borrower and its Consolidated Subsidiaries as in effect
on the Closing Date."Administrative Agent" see the introduction hereto.
"Administrative Agent Fee Letter" shall mean the Fee Letter dated
the date hereof between Administrative Agent and Parent.
"Advance Date" see Section 4.06.
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"Affiliate" shall mean, with respect to any Person, any other
Person which directly or indirectly controls, or is under common control with,
or is controlled by, such Person. As used in this definition, "control"
(including, with its correlative meanings, "controlled by" and "under common
control with") shall mean possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise). Notwithstanding the foregoing, solely for purposes of Section 9.15,
no Company shall be deemed an Affiliate of any other Company.
"Affiliate Transaction" see Section 9.15.
"Agent" shall mean any of Administrative Agent, Syndication
Agent, Lead Arranger, either Co-Arranger, either Co-Documentation Agent or
Senior Managing Agent and "Agents" shall mean all of them collectively.
"Agreement" shall mean this Credit Agreement, as amended from
time to time.
"Allowable Cellular System" shall mean, at any date, any Cellular
System the geographical boundaries for any portion of which are contiguous to or
within 50 miles from the geographical boundaries of (x) any Cellular System
owned in whole or in part by Borrower or any Subsidiary on the Closing Date or
(y) any Cellular System in the continental United States or group of Cellular
Systems in the same general geographic area in the continental United States
constituting a cluster in each case under this clause (y) owned by Borrower or
any Subsidiary with a combined Net Pops at such date for all such Cellular
Systems of at least 1,000,000 Net Pops. "Net Pops" of any Cellular System shall
mean, at any date, the estimated population at such date (as set forth in
published reports of the Donnelley Market Information Service) of such Cellular
System multiplied by the percentage interest that Borrower or any Subsidiary
owns in the entity licensed in such Cellular System.
"Allowable Wireless System" shall mean, at any date, any Cellular
System, PCS System or SMR System, in each case the geographical boundaries for
any portion of which are contiguous to or within 50 miles from the geographical
boundaries of (x) any Cellular System, PCS System or SMR System owned in whole
or in part by Borrower or any Subsidiary on the Closing Date or (y) any Cellular
System, PCS System or SMR System in the continental United States or group of
Cellular Systems, PCS Systems or SMR Systems in the same general geographic area
in the continental United States constituting a cluster in each case under this
clause (y) owned by Borrower or any Subsidiary with a combined Net Pops at such
date for all such Cellular Systems, PCS Systems or SMR Systems of at least
1,000,000 Net Pops. "Net Pops" of any Cellular System, PCS System or SMR System
shall mean, at any date, the estimated population at such date (as set forth in
published reports of the Donnelley Market Information Service) of such Cellular
System, PCS System or SMR System multiplied by the percentage interest that
Borrower or any Subsidiary owns in the entity licensed in such Cellular System,
PCS System or SMR System.
"Alternate Base Rate" shall mean for any day, a rate per annum
that is equal to the higher of (i) the Federal Funds Rate, plus 0.50%, or (ii)
the Prime Rate.
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"Amortization Payment" shall mean each scheduled installment of
payments on the Term Loans as set forth in Section 3.01(b).
"Applicable Lending Office" shall mean, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an Affiliate of
such Lender) designated for such type of Loan on the signature pages hereof or
such other office of such Lender (or of an Affiliate of such Lender) as such
Lender may from time to time specify to Administrative Agent and Borrower as the
office by which its Loans of such Type are to be made and maintained.
"Applicable Margin" shall be, for any Type and Class of Loan, (x)
from the Closing Date to the first date (the "Reset Date") after the sixth month
after the Closing Date on which Borrower shall have delivered to the Lenders the
financial statements required by Sections 9.01(a) or (b), as the case may be,
Interest Rate Certificates required by Section 9.01(e) and an Officers'
Certificate demonstrating the then applicable Total Leverage Ratio, the
percentage per annum set forth on Schedule 1.01(a) for such Type and Class of
Loan, and (y) on and after the Reset Date, when the Total Leverage Ratio at the
end of the most recently ended fiscal quarter is as set forth in Schedule
1.01(b), the percentage per annum set forth opposite such Total Leverage Ratio
in Schedule 1.01(b) for such Type and Class of Loan. Any change in the Total
Leverage Ratio shall be effective to adjust the Applicable Margin as of the date
of receipt by Administrative Agent of the Interest Rate Certificate most
recently delivered pursuant to Section 9.01(e). If Borrower fails to deliver the
financial statements or Interest Rate Certificate within the times specified in
Sections 9.01(a), (b) and (e), the Total Leverage Ratio shall be deemed to be
greater than or equal to 7.5:1.0 until Borrower delivers such Interest Rate
Certificate and financial statements.
"Applicable Revolving Credit Fee Percentage" shall mean 0.50% per
annum; provided, however, that on and after the Reset Date, when the Total
Leverage Ratio at the end of the most recently ended fiscal quarter is as set
forth in Schedule 1.01(c), the Applicable Revolving Credit Fee Percentage shall
mean the percentage per annum set forth opposite such Total Leverage Ratio in
Schedule 1.01(c). Any change in the Total Leverage Ratio shall be effective to
adjust the Applicable Revolving Credit Fee Percentage as of the date of receipt
by Administrative Agent of the Interest Rate Certificate most recently delivered
pursuant to Section 9.01(e). If Borrower fails to deliver the financial
statements and Interest Rate Certificate within the times specified in Sections
9.01(a), (b) and (e), such ratio shall be deemed to be greater than or equal to
5.0:1.0 until Borrower delivers such Interest Rate Certificate and financial
statements. "Approved Fund" shall mean, with respect to any Lender that is a
fund or commingled investment vehicle that invests in loans, any other fund that
invests in loans and is managed or advised by the same investment advisor as
such Lender or by an Affiliate of such investment advisor.
"Bankruptcy Code" shall mean the United States Federal Bankruptcy
Code of 1978 and any analogous law of Puerto Rico.
"Borrower" shall mean Centennial Cellular Operating Co. LLC, a
Delaware limited liability company.
"Borrower Balance Sheet" shall mean the consolidated balance
sheet of Borrower as of May 31, 1998.
"Business Day" shall mean any day (a) on which commercial banks
are not authorized or required to close in New York City and (b) if such day
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relates to a borrowing of, a payment or prepayment of principal of or interest
on, a Continuation or Conversion of or into, or an Interest Period for, a LIBOR
Loan or a notice by Borrower with respect to any such borrowing, payment,
prepayment, Continuation, Conversion or Interest Period, that is also a day on
which dealings in Dollar deposits are carried out in the London interbank
market.
"CAP System" shall mean a system that provides long-distance
carriers or end-users with an alternative to the traditional local phone company
for local transmission of private line and transport and special access
telecommunications services in Puerto Rico and the Virgin Islands.
"Capital Expenditures" shall mean, for any period any direct or
indirect (by way of acquisition of securities of a Person or the expenditure of
cash or the incurrences of Indebtedness) expenditures in respect of the purchase
or other acquisition of fixed or capital assets, excluding (i) normal
replacement and maintenance programs properly charged to current operations,
(ii) any expenditure made with the Net Available Proceeds of any Equity Issuance
or Disposition Event to the extent such Net Available Proceeds are not required
to be applied to the prepayment of the Loans in accordance with Section
2.10(a)(iv), (iii) any expenditure made with the proceeds of any Excluded
Disposition, (iv) expenditures in an amount not to exceed the sum of (x) the Net
Available Proceeds of any Casualty Event to the extent such Net Available
Proceeds are not required to be applied to the prepayment of the Loans in
accordance with Section 2.10(a)(i) and (y) the amount of any applicable
insurance deductibles with respect to such Casualty Event to the extent such
amount is applied as set forth in clause (w) of Section 2.10(a)(i) within the
period specified therein, (v) expenditures to effect Permitted Acquisitions, and
(vi) the purchase price of equipment to the extent that the consideration
therefor consists of used or surplus equipment being traded in at such time or
the proceeds of a concurrent sale of such used or surplus equipment.
"Capital Lease," as applied to any Person, shall mean any lease
of any Property by that Person as lessee which, in conformity with GAAP, is
required to be classified and accounted for as a capital lease on the balance
sheet of that Person.
"Capital Lease Obligations" shall mean, for any Person, all
obligations of such Person to pay rent or other amounts under a Capital Lease,
and, for purposes of this Agreement, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP.
"Casualty Event" shall mean, with respect to any Property
(including Real Property) of any Person, any loss of title with respect to Real
Property or any loss of or damage to or destruction of, or any condemnation or
other taking (including by any Governmental Authority) of, such Property
(including Real Property) for which such Person or any of its Subsidiaries
receives insurance proceeds or proceeds of a condemnation award or other
compensation; provided, however, no such event shall constitute a Casualty Event
if (x) such proceeds or other compensation in respect thereof is less than $1.0
million and (y) all such proceeds and other compensation in respect of all such
events since the Closing Date is less than $5.0 million. "Casualty Event" shall
include but not be limited to any taking of any Mortgaged Real Property or Real
Property of any Company or any part thereof, in or by condemnation or other
eminent domain proceedings pursuant to any law, general or special, or by reason
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of the temporary requisition of the use or occupancy of any Mortgaged Real
Property or Real Property of any Company or any part thereof, by any
Governmental Authority, civil or military.
"Cellular System" shall mean a cellular mobile radio telephone
system constructed and operated in an MSA or an RSA (or any successor
territorial designation) pursuant to a License therefor issued by the FCC.
"Century-ML" shall mean Century-ML Cable Corporation, a Delaware
corporation.
"Century ML Cable Venture" shall mean Century ML Cable Venture, a
New York joint venture.
"Century-ML Consent and Agreement" shall mean a consent and
agreement entered into by the parties to the Facilities Agreement and
Administrative Agent, substantially in the form of Exhibit N.
"CERCLA" see Section 8.11.
"Change of Control" shall mean any transaction or event
(including, without limitation, an issuance, sale or exchange of Equity
Interests, a merger or consolidation, or a dissolution or liquidation) occurring
on or after the date hereof (whether or not approved by the board of directors
of Parent) as a direct or indirect result of which (a) if such transaction or
event occurs prior to the consummation of an Initial Public Offering, the
Permitted Holders collectively fail to beneficially own, directly or indirectly,
Equity Interests of Parent representing at least 40% of the economic interests
of all Equity Interests then outstanding of Parent or the Permitted Holders
collectively cease to have the ability to appoint a majority of the board of
directors of Parent; (b) any Person or any group (other than the Permitted
Holders) shall (A) beneficially own (directly or indirectly) in the aggregate
Equity Interests of Parent having 35% or more of the aggregate voting power of
all Equity Interests of Parent at the time outstanding if at such time the
Permitted Holders collectively beneficially own Equity Interests having a lesser
aggregate voting power of all Equity Interests of Parent at the time outstanding
or (B) have the right or power to appoint a majority of the board of directors
of Parent; (c) if such transaction or event is an Initial Public Offering or
occurs after the consummation of an Initial Public Offering, during any period
of two consecutive years, individuals who at the beginning of such period
constituted the board of directors of Parent (together with any new directors
whose election by such board of directors or whose nomination for election by
the shareholders of Parent was approved by a vote of a majority of the directors
of Parent then still in office who were either directors at the beginning of
such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute at least a majority of the board of
directors of Parent then in office; (d) any event or circumstance constituting a
"change of control" under the Parent Financing Documents, Senior Subordinated
Notes Financing Documents or any other documentation evidencing or governing any
Indebtedness of any Company in a principal amount in excess of $10.0 million
(other than under the Credit Documents, and other than the Existing Notes as a
result of the Merger) shall occur which results in an obligation of any Company
to prepay (by acceleration or otherwise), purchase, offer to purchase, redeem or
defease all or a portion of such Indebtedness; or (e) Parent fails to own
beneficially and of record 100% (on a fully diluted basis) of the Equity
Interests of Borrower. For purposes of this definition, the terms "beneficially
own" and "group" shall have the respective meanings ascribed to them pursuant to
Section 13(d) of the Exchange Act, except that a Person or group shall be deemed
to "beneficially own" all securities that such Person or group has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time.
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"Class" see Section 1.03.
"Closing Date" shall mean the date on which the initial
extensions of credit are made hereunder.
"Co-Arrangers" shall mean NationsBank, N.A. and The Chase
Manhattan Bank, together with their respective successors in such capacities.
"Code" shall mean the United States Internal Revenue Code of
1986, as amended.
"Co-Documentation Agents" see the introduction hereto.
"Collateral" shall mean all of the Pledged Collateral and
Mortgaged Real Property.
"Collateral Account" see Section 10(d) of the Security Agreement.
"Collateral Assignment of Location Agreements" shall mean the
Collateral Assignment of Location Agreements substantially in the form of
Exhibit K among the Obligors and Administrative Agent, as the same may be
amended in accordance with the terms thereof and hereof, or such other
agreements reasonably acceptable to Administrative Agent as shall be necessary
to comply with applicable Requirements of Law and effective to assign to
Administrative Agent (on behalf of the Creditors) the right, title and interest
identified therein.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Commitment Letter" shall mean the Commitment Letter between
Merrill Lynch Capital Corporation, NationsBank, N.A., The Chase Manhattan Bank,
Morgan Stanley Senior Funding, Inc. and Parent dated November 29, 1998, as
amended and restated on November 30, 1998 to add The Bank of Nova Scotia as a
Lender and as Co-Documentation Agent, together with Exhibit A thereto.
"Commitments" shall mean the Revolving Credit Commitments and the
Term Loan Commitments.
"Communications Act" shall mean the United States Communications
Act of 1934, and any similar or successor federal statute, and the rules and
regulations of the FCC thereunder, all as amended and as the same may be in
effect from time to time.
"Communications Regulatory Authority" shall mean the FCC, any
State PUC, the PRPSC, the PRTRB and any future federal, state, Puerto Rican or
Virgin Island communication regulatory commission, agency, department, board or
authority.
"Companies" shall mean the Obligors and their respective
Subsidiaries; and "Company" shall mean any of them.
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"Consolidated Interest Expense" shall mean, for any period, all
interest expense (including original issue discount, interest paid in kind,
commitment fees, letter of credit fees and the interest component of Capital
Leases but excluding any up-front, underwriting or commitment fees under the
Commitment Letter to the extent accrued on or prior to the Closing Date) of
Borrower and its Consolidated Subsidiaries for such period including all
capitalized interest and the net amounts payable under all Interest Rate
Protection Agreements.
"Consolidated Subsidiary" shall mean, for any Person, each
Subsidiary of such Person (whether now existing or hereafter created or
acquired) the financial statements of which shall be (or should have been)
consolidated with the financial statements of such Person in accordance with
GAAP.
"Contingent Obligation" shall mean, as to any Person, any direct
or indirect liability of such Person, whether or not contingent, with or without
recourse, (a) with respect to any Indebtedness, lease, dividend, letter of
credit or other obligation (the "primary obligations") of another Person (the
"primary obligor"), including any obligation of such Person (i) to purchase,
repurchase or otherwise acquire such primary obligations or any security
therefor, (ii) to advance or provide funds for the payment or discharge of any
such primary obligation, or to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency or any
balance sheet item, level of income or financial condition of the primary
obligor, (iii) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the ability of
the primary obligor to make payment of such primary obligation, or (iv)
otherwise to assure or hold harmless the holder of any such primary obligation
against loss in respect thereof (each of (i)-(iv), a "Guaranty Obligation"); (b)
with respect to any Surety Instrument (other than any Letter of Credit) issued
for the account of such Person or as to which such Person is otherwise liable
for reimbursement of drawings or payments; (c) to purchase any materials,
supplies or other property from, or to obtain the services of, another Person if
the relevant contract or other related document or obligation requires that
payment for such materials, supplies or other property, or for such services,
shall be made regardless of whether delivery of such materials, supplies or
other property is ever made or tendered, or such services are ever performed or
tendered; or (d) in respect of any Swap Contract; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection or standard contractual indemnities entered into, in each
case in the ordinary course of business. The amount of any Contingent Obligation
shall (x) in the case of a Guaranty Obligation, be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such Guaranty
Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof, and (y) in the case of
other Contingent Obligations, be equal to the maximum reasonably anticipated
liability in respect thereof. "Continue," "Continuation" and "Continued" shall
refer to the continuation pursuant to Section 2.09 of a LIBOR Loan from one
Interest Period to the next Interest Period.
"Contractual Obligation" shall mean as to any Person, any
provision of any security issued by such Person or of any mortgage, security
agreement, pledge agreement, indenture, credit agreement, securities purchase
agreement, debt instrument, contract, agreement, instrument or other undertaking
(including, without limitation, any undertaking made to the FCC or any other
Communications Regulatory Authority) to which such Person is a party or by which
it or any of its Property is bound or subject.
"Convert," "Conversion" and "Converted" shall refer to a
conversion pursuant to Section 2.09 of one Type of Loans into another Type of
Loans, which may be accompanied by the transfer by a Lender (at its sole
discretion) of a Loan from one Applicable Lending Office to another.
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"Covered Taxes" see Section 5.06(a).
"Credit Documents" shall mean this Agreement, the Notes, the
Letter of Credit Documents and the Security Documents.
"Creditor" shall mean (i) any Agent, (ii) the Issuing Lender,
(iii) any Lender, and (iv) any party to a Swap Contract relating to the Loans if
at the date of entering into such Swap Contract such Person was a Lender or an
Affiliate of a Lender.
"Debt Issuance" shall mean the incurrence by any Company of any
Indebtedness after the Closing Date (other than as permitted by Section 9.08).
"Default" shall mean any event or condition that constitutes an
Event of Default or that would become, with notice or lapse of time or both, an
Event of Default.
"Delivery Date" shall mean the date Borrower shall have delivered
a compliance certificate and financial statements in accordance with Section
9.01(a), (b) and (c) in respect of the first fiscal quarter after the date of
depletion of the interest escrow in respect of the Senior Subordinated Notes.
"Disposition" shall mean (i) any conveyance, sale, lease,
assignment, transfer or other disposition (including by way of merger or
consolidation and including any sale-leaseback transaction) of any Property
(including receivables and Equity Interests of any Subsidiary of any Company or
Minority Interests of any Company) (whether now owned or hereafter acquired) by
any Company to any Person other than Borrower or any Subsidiary, (ii) any
issuance or sale by any Subsidiary of its Equity Interests to any Person other
than Borrower or any Subsidiary, and (iii) any liquidating dividend or
distribution received by any Company in respect of any Minority Interest,
excluding, however, in each case any Excluded Disposition.
"Disposition Event" shall mean the receipt by any Company of cash
proceeds or cash distributions of any kind received in consideration for a
Disposition of Property.
"Disqualified Capital Stock" shall mean, with respect to any
Person, any Equity Interest of such Person that, by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable),
or upon the happening of any event, matures (excluding any maturity as the
result of an optional redemption by the issuer thereof) or is mandatorily
redeemable (other than solely for Qualified Capital Stock), pursuant to a
sinking fund obligation or otherwise, or is redeemable at the sole option of the
holder thereof (other than solely for Qualified Capital Stock) or exchangeable
or convertible into debt securities of the issuer thereof at the sole option of
the holder thereof, in whole or in part, on or prior to the date which is 90
days after the Final Maturity Date.
"Dividend Payment" shall mean dividends (in cash, Property or
obligations) on, or other payments or distributions on account of, or the
setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any Equity Interests
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or Equity Rights of any Company, but excluding dividends paid through the
issuance of additional shares of Qualified Capital Stock and any redemption or
exchange of any Qualified Capital Stock of such Obligor through the issuance of
Qualified Capital Stock of such Obligor.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiary" shall mean any Subsidiary other than a
Foreign Subsidiary.
"Eligible Person" shall mean (i) a commercial bank organized
under the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $100.0 million; (ii) a commercial bank organized
under the laws of any other country that is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political subdivision of
any such country, and having a combined capital and surplus in a dollar
equivalent amount of at least $100.0 million; provided, however, that such bank
is acting through a branch or agency located in the country in which it is
organized or another country that is also a member of the OECD; (iii) an
insurance company, mutual fund or other entity which is regularly engaged in
making, purchasing or investing in loans or securities; or any other financial
institution organized under the laws of the United States, any state thereof,
any other country that is a member of the OECD or a political subdivision of any
such country with assets, or assets under management, in a dollar equivalent
amount of at least $100.0 million; (iv) any Affiliate of a Lender; (v) any other
entity (other than a natural person) which is an "accredited investor" (as
defined in Regulation D under the United States Securities Act of 1933, as
amended) which extends credit or buys loans as one of its businesses including,
but not limited to, insurance companies, mutual funds and investment funds; and
(vi) any other entity consented to by each of Lead Arranger, Administrative
Agent and Borrower. With respect to any Lender that is a fund or commingled
investment vehicle that invests in loans, any other fund or commingled
investment vehicle that invests in loans and is managed or advised by the same
investment advisor of such Lender or by an Affiliate of such investment advisor
shall be treated as a single Eligible Person.
"Employee Benefit Plan" shall mean an employee benefit plan (as
defined in Section 3(3) of ERISA) that is maintained or contributed to by any
ERISA Entity or with respect to which Borrower or a Subsidiary could incur
liability.
"Environmental Claim" shall mean, with respect to any Person, any
written notice, claim, demand or other communication (collectively, a "claim")
by any other Person alleging such Person's liability for any costs, cleanup
costs, response or corrective action costs, damages to natural resources or
other Property, personal injuries, fines or penalties arising out of or
resulting from (i) the presence, Release or threatened Release into the
environment, of any Hazardous Material at any location, whether or not owned by
such Person, or (ii) any violation of any Environmental Law. The term
"Environmental Claim" shall include any claim by any Person seeking damages,
contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from the presence of Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Laws" shall mean any and all present and future
applicable laws, rules or regulations of any Governmental Authority, any orders,
decrees, judgments or injunctions and the common law in each case as now or
hereafter in effect, relating to pollution or protection of human health, safety
or the environment, including without limitation, ambient air, indoor air, soil,
or surface water, ground water, land or subsurface strata, and natural resources
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such as wetlands, flora or fauna, including, without limitation, those relating
to Releases or threatened Releases of Hazardous Materials into the environment,
or otherwise relating to the manufacture, processing, generation, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials.
"Equity Financing" shall mean the purchase by the Investors from
Parent for cash not later than the time of consummation of the Merger of common
equity in an aggregate amount not less than $400.0 million.
"Equity Interests" shall mean, with respect to any Person, any
and all shares, interests, participations or other equivalents, including
membership interests (however designated, whether voting or non-voting), of
capital of such Person, including, if such Person is a partnership, partnership
interests (whether general or limited) and any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, such partnership, whether outstanding on the
date hereof or issued after the Closing Date.
"Equity Issuance" shall mean any of (a) any issuance or sale
after the Closing Date by any Company or any other direct or indirect parent of
Borrower (other than by the Permitted Holders) of any Equity Interests
(including any Equity Interests issued upon exercise of any Equity Rights) or
any Equity Rights, or (b) the receipt by any Company after the Closing Date of
any capital contribution (whether or not evidenced by any Equity Interest issued
by the recipient of such contribution) other than from any other Company,
excluding in each case (i) any issuance of common Equity Interests of Parent (or
any other direct or indirect parent of Borrower) to the seller or sellers in
consideration for a Permitted Acquisition or as permitted by Section 9.09(A)(r),
(ii) any issuance or sale of Equity Interests in any Subsidiary (which, for the
avoidance of doubt, is treated as a Disposition), (iii) any issuance or sale by
Parent (or any other direct or indirect parent of Borrower) of Equity Interests
of Parent to employees, directors, officers or consultants pursuant to a benefit
or compensation plan in an amount not to exceed 10% of the outstanding Equity
Interests of Parent, (iv) any issuance of Qualified Capital Stock of Parent (or
any other direct or indirect parent of Borrower) to the extent that the proceeds
thereof are used for a substantially contemporaneous purchase or redemption of
Equity Interests of Parent (or any other direct or indirect parent of Borrower)
pursuant to Section 9.10(c)(iii), (v) any issuance of Equity Interests by any
Subsidiary to directors or nominees if resulting in deminimis proceeds, and
(vi) any issuance of any common Equity Interests of Parent to (x) any of the
Permitted Holders or (y) at least one Permitted Holder and a group of private
investors arranged by any Permitted Holder, in each case the proceeds of which
are substantially contemporaneously used to effect any Permitted Acquisition.
"Equity Rights" shall mean, with respect to any Person, any
outstanding subscriptions, options, warrants, commitments, preemptive rights or
agreements of any kind (including any stockholders' or voting trust agreements)
for the issuance, sale, registration or voting of, or outstanding securities
convertible into, any additional shares of Equity Interests of any class, or
partnership or other ownership interests of any type in, such Person.
"ERISA" shall mean the United States Employee Retirement Income
Security Act of 1974, as amended.
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"ERISA Entity" shall mean any member of an ERISA Group.
"ERISA Event" shall mean (a) any "reportable event," as defined
in Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived, the failure to make by its due date a required installment under Section
412(m) of the Code with respect to any Plan or the failure to make any required
contribution to a Multiemployer Plan; (c) the filing pursuant to Section 412(d)
of the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (d) the incurrence by any
ERISA Entity of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by any ERISA Entity from the PBGC or a
plan administrator of any notice relating to an intention to terminate any Plan
or Plans or to appoint a trustee to administer any Plan, or the occurrence of
any event or condition which is reasonably likely to constitute grounds under
ERISA for the termination of or the appointment of a trustee to administer, any
Plan; (f) the incurrence by any ERISA Entity of any liability with respect to
the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; (g)
the receipt by an ERISA Entity of any notice, or the receipt by any
Multiemployer Plan from any ERISA Entity of any notice, concerning the
imposition of Withdrawal Liability or a determination that a Multiemployer Plan
is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA; (h) the making of any amendment to any Plan which could
result in the imposition of a lien or the posting of a bond or other security;
or (i) the occurrence of a nonexempt prohibited transaction (within the meaning
of Section 4975 of the Code or Section 406 of ERISA) which is reasonably likely
to result in liability to any Company.
"ERISA Group" shall mean any Company and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with such Company, are
treated as a single employer under Section 414 of the Code.
"Event of Default" see Section 10.
"Excess Cash Flow" shall mean for the relevant period, (A) the
sum of (i) Operating Cash Flow for such period (calculated for this definition
by adding back the cash portion of all extraordinary or non-recurring items of
income (other than from Dispositions and Excluded Dispositions) to the extent
excluded in the calculation of Adjusted Net Income and by deducting the cash
portion of all extraordinary or non-recurring items of expense to the extent
excluded in the calculation of Adjusted Net Income); (ii) any net decrease in
Working Capital during such period (except to the extent attributable to assets
or Persons subject to a Disposition during such period); and (iii) cash received
from the proceeds of any life insurance or "key man" policies during such
period, minus (B) the sum of (i) cash interest expense (including, without
duplication, cash interest expense under Swap Contracts, cash Capital Lease
expense and commitment fees and interest accruing during such period on the
Senior Subordinated Notes and (if issued by Borrower) the Additional Senior
Subordinated Notes) of Borrower and its Consolidated Subsidiaries for such
period to the extent deducted in calculating Adjusted Net Income; (ii) the sum
of all scheduled principal payments (other than pursuant to Section 2.10(a)(v))
on any Indebtedness (including Capital Leases and Term Loans pursuant to Section
3.01(b)) of Borrower and its Consolidated Subsidiaries made during such period
from internally generated funds, all voluntary prepayments of Term Loans made
during such period from internally generated funds and all prepayments of
Revolving Credit Loans made during such period from internally generated funds
to the extent accompanied by a permanent reduction in Revolving Credit
Commitments; (iii) Capital Expenditures made during such period by
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Borrower and the Subsidiaries to the extent funded from internally generated
funds; (iv) all cash income taxes actually paid by Borrower or any Subsidiary
during such period and dividends paid during such period by Borrower pursuant to
Section 9.10(c)(ii); (v) cash dividends paid during such period by Borrower
pursuant to Section 9.10(c)(iii) to the extent made with internally generated
funds; (vi) cash dividends paid during such period by Borrower pursuant to
Section 9.10(d); (vii) cash paid during such period for any Acquisition or
Investment permitted by Section 9.06 or 9.09, in each case to the extent made
from internally generated funds; (viii) any net increases in Working Capital
during such period (except to the extent attributable to assets or Persons
subject to an Acquisition during such period); (ix) solely to the extent not
reflected in the calculation of Adjusted Net Income, cash distributions required
to be paid to the minority holders of Equity Interests in any Consolidated
Subsidiary of Borrower pursuant to the partnership agreement governing such
Consolidated Subsidiary as in effect on the Closing Date; and (x) monitoring and
management fees actually paid to any Permitted Holder during such period by
Borrower as permitted by Section 9.15.
"Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as amended.
"Exchange Indenture" shall mean the indenture pursuant to which
the Exchange Notes are issued.
"Exchange Notes" see the definition of Senior Subordinated Notes.
"Exchange Offer" see the definition of Senior Subordinated Notes.
"Excluded Dispositions" shall mean (i) Dispositions for fair
market value resulting in no more than $100,000 in aggregate proceeds per
Disposition (or series of related Dispositions) and other Dispositions resulting
in up to $5.0 million in aggregate proceeds in any fiscal year (which $5.0
million shall not include any such $100,000 or less Disposition or series of
related Dispositions); (ii) an exchange of equipment or inventory for other
equipment or inventory, provided that the Company effecting such exchange
receives at least substantially equivalent value in such exchange for the
Property disposed of; (iii) any transaction permitted by Section 9.06 (other
than clause (g), (n), (p), (r) or (s) thereof), any Lien permitted by Section
9.07 and any Investment permitted by Section 9.09; (iv) any issuance of Equity
Interests by any Subsidiary to directors or nominees if resulting in de minimis
proceeds; and (v) the sale of inventory in the ordinary course of business.
"Excluded Equity Issuance" shall mean any issuance of Qualified
Capital Stock excluded from the definition of Equity Issuance by virtue of
clause (iv) thereof.
"Excluded Taxes" see Section 5.06(a).
"Existing Affiliate Agreements" see Section 9.15.
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"Existing Credit Facilities" shall mean the existing $130.0
million credit facility of Centennial Puerto Rico Wireless Corporation agented
by Citibank, N.A. and the existing $115.0 million credit facility of Target
agented by Citibank, N.A..
"Existing Credit Facilities Repayment" shall mean the repayment
of all Indebtedness and cancellation of all commitments to make extensions of
credit under the Existing Credit Facilities.
"Existing Indentures" shall mean each Indenture pursuant to which
each tranche of the Existing Notes were issued.
"Existing Notes" shall mean Target's (i) $250.0 million aggregate
principal amount of 8 7/8% Senior Notes due 2001 and (ii) $100.0 million
aggregate principal amount of 10 1/8% Senior Notes due 2005.
"Existing Stockholders" shall mean the stockholders of Target
immediately prior to the Merger.
"FAA" shall mean the United States Federal Aviation
Administration.
"Facilities Agreement" shall mean the Facilities Agreement dated
as of January 2, 1995 among PR Borrower, Century ML Cable Venture and
Century-ML, as the same shall be modified and supplemented and in effect from
time to time in accordance with its terms and this Agreement.
"fair market value" shall mean, with respect to any asset, a
price (after taking into account any liabilities relating to such assets), as
determined by Borrower in good faith, that is within a reasonable range of
prices which could be negotiated in an arm's-length free market transaction, for
cash, between a willing seller and a willing and able buyer, neither of which is
under any compulsion to complete the transaction.
"FCC" shall mean the United States Federal Communications
Commission, or any other similar or successor agency of the federal government
administering the Communications Act.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided, however, that (a) if the day for which such
rate is to be determined is not a Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Business Day
as so published on the next succeeding Business Day and (b) if such rate is not
so published for any Business Day, the Federal Funds Rate for such Business Day
shall be the average rate quoted to Administrative Agent on such Business Day on
such transactions by three federal funds brokers of recognized standing, as
determined by Administrative Agent.
"Fee Letter" shall mean the Fee Letter dated as of November 29,
1998 between Merrill Lynch Capital Corporation, NationsBank, N.A., The Chase
Manhattan Bank, Morgan Stanley Senior Funding, Inc. and Parent, as amended and
restated on November 30, 1998 to add The Bank of Nova Scotia as a Lender and as
Co-Documentation Agent.
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"Final Maturity Date" shall mean November 30, 2007. If the
Increased Facility Amount shall be put in place, the Final Maturity Date shall
be extended to the final maturity thereof if beyond the Final Maturity Date as
of the Closing Date.
"Financial Maintenance Covenants" shall mean the covenants set
forth in Section 9.11(a) through (e).
"Fixed Charge Coverage Ratio" shall mean, for any Test Date, the
ratio of (x) Operating Cash Flow for the four fiscal quarters ending on such
Test Date to (y) Fixed Charges for the four fiscal quarters ending on such Test
Date.
"Fixed Charges" shall mean, for any period, the sum of (i)
Consolidated Interest Expense for such period to the extent paid or payable in
cash during such period, (ii) the sum of all scheduled principal payments on any
Indebtedness of Borrower and its Consolidated Subsidiaries (including, without
duplication, any lease payments in respect of Capital Leases of Borrower and its
Consolidated Subsidiaries attributable to the principal component thereof for
such period but excluding any prepayment of a type contemplated by Section
2.10), (iii) all cash income tax expense actually paid to any Governmental
Authority by Borrower and its Consolidated Subsidiaries for such period (other
than taxes related to Dispositions or Excluded Dispositions not in the ordinary
course of business), (iv) all dividends paid by Borrower during such period
pursuant to Section 9.10(c)(ii) or pursuant to Section 9.10(d) (other than for
taxes related to Dispositions and Excluded Dispositions not in the ordinary
course of business), and (v) Capital Expenditures during such period to the
extent made from internally generated funds.
"Foreign Plan" shall mean any employee benefit plan, program,
policy, arrangement or agreement maintained or contributed to by, or entered
into with, any Company with respect to employees employed outside the United
States.
"Foreign Subsidiary" shall mean any direct or indirect Subsidiary
organized outside of the United States as defined in Section 7701(a)(9) of the
Code (or any successor provision).
"Funding Date" shall mean the date of the making of any extension
of credit hereunder (including the Closing Date).
"GAAP" shall mean generally accepted accounting principles set
forth as of the relevant date in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession), which are applicable to the
circumstances as of the date of determination.
"Governmental Authority" shall mean any government or political
subdivision of the United States, Puerto Rico, the Virgin Islands or any other
country or any agency, authority, board, bureau, central bank, commission,
department or instrumentality thereof or therein, including, without limitation,
any court, tribunal, grand jury or arbitrator, in each case whether foreign or
domestic, or any
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entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to such government or political subdivision.
"Guarantee" shall mean the guarantee of each Guarantor pursuant
to Section 6.
"Guaranteed Obligations" see Section 6.01.
"Guarantors" shall mean Parent, each Subsidiary (other than any
Foreign Subsidiary) listed on Schedule 1.01(d) and each direct and indirect
Subsidiary (other than any Foreign Subsidiary) that guarantees the payment of
the Obligations of Borrower pursuant to Section 9.20.
"Guaranty Obligation" see the definition of Contingent
Obligation.
"Hazardous Material" shall mean any pollutant, contaminant,
toxic, hazardous or extremely hazardous substance, constituent or waste, or any
other constituent, waste, material, compound or substance subject to regulation
under any Environmental Law including, without limitation, petroleum or any
petroleum product, including crude oil or any fraction thereof, polychlorinated
biphenyls, urea- formaldehyde insulation and asbestos.
"in the ordinary course of business" shall mean in the ordinary
course of business of Borrower and the Subsidiaries.
"Increased Facility Amount" see Section 2.01(f). There is no
commitment for all or any part of the Increased Facility Amount as of the
Closing Date. No Lender shall have any obligation for any part of the Increased
Facility Amount unless it shall have expressly consented thereto in writing.
"incur" shall mean, with respect to any Indebtedness or other
obligation of any Person, to create, issue, incur (including by conversion,
exchange or otherwise), assume, guarantee or otherwise become liable in respect
of such Indebtedness or other obligation or the recording, as required pursuant
to GAAP or otherwise, of any such Indebtedness or other obligation on the
balance sheet of such Person (and "incurrence," "incurred" and "incurring" shall
have meanings correlative to the foregoing). Indebtedness of any Person or any
of its Subsidiaries existing at the time such Person becomes a Company (or is
merged into or consolidates with any Company), whether or not such Indebtedness
was incurred in connection with, or in contemplation of, such Person becoming a
Company (or being merged into or consolidated with any Company), shall be deemed
incurred at the time any such Person becomes a Company or merges into or
consolidates with any Company. Neither the accrual of interest, nor the
accretion of accreted value, shall be deemed to be an incurrence.
"Indebtedness" shall mean, for any Person, without duplication,
(a) all indebtedness for borrowed money of such Person; (b) all obligations
issued, undertaken or assumed by such Person as the deferred purchase price of
Property or services (other than trade payables and accrued expenses); (c) all
non-contingent reimbursement or payment obligations of such Person with respect
to Surety Instruments that are not reimbursed within three Business Days (such
as, for example, unpaid reimbursement obligations in respect of a drawing under
a letter of credit); (d) all obligations of such Person evidenced by notes,
bonds, debentures or similar instruments, including obligations so evidenced
incurred in connection with the acquisition of Property or businesses; (e) all
indebtedness of such Person created or arising under any conditional sale or
other title retention agreement, or incurred as financing, in either case with
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respect to Property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such Property (other than operating leases)); (f) all
Capital Lease Obligations of such Person; (g) all indebtedness of other Persons
referred to in clauses (a) through (f) above secured by (or for which the holder
of such indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien upon or in Property (including accounts and contracts
rights) owned by such Person, whether or not such Person has assumed or become
liable for the payment of such indebtedness (provided that the amount of
indebtedness shall be deemed to be limited to the fair market value of such
Property if such Person has not assumed or become liable for the payment of such
indebtedness); and (h) all Guaranty Obligations of such Person in respect of
indebtedness or obligations of others of the kinds referred to in clauses (a)
through (g) above. Indebtedness shall not include accounts extended by suppliers
in the ordinary course of business in connection with the purchase of goods and
services. The Indebtedness of any Person shall include any Indebtedness of any
partnership in which such Person is the general partner.
"Indemnitee" see Section 12.03(b).
"Initial PR Borrower" shall mean Centennial Wireless PCS
Operations Corp., a Delaware corporation.
"Initial Public Offering" shall mean a primary underwritten
public offering of the common stock of Parent at any time after the Closing
Date, other than any public offering or sale pursuant to a registration
statement on Form S-8 or a comparable form.
"Insolvency Proceeding" shall mean, with respect to any Person,
(a) any case, action or proceeding with respect to such Person before any court
or by or before any other Governmental Authority relating to bankruptcy,
insolvency, reorganization, liquidation, receivership, dissolution,
sequestration, conservatorship, winding-up or relief of debtors (or the
convening of a meeting or the passing of a resolution for or with a view to any
of the foregoing), or (b) any assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other similar arrangement
in respect of such Person's creditors generally or any substantial portion of
its creditors.
"Intercompany Note" shall mean a promissory note substantially in
the form of Exhibit B.
"Interest Coverage Ratio" shall mean, for any Test Date, the
ratio of (x) Operating Cash Flow for the four fiscal quarters ending on such
Test Date (or such shorter period as annualized as specified in the last
sentence of the definition of Operating Cash Flow) to (y) Consolidated Interest
Expense for the four fiscal quarters ending on such Test Date to the extent
thereof paid or payable in cash during such period; provided, however, that (1)
prior to the Senior Subordinated Notes Interest Trigger Date (or, with respect
to the Additional Senior Subordinated Notes, such later date when the interest
escrow in respect of the Additional Senior Subordinated Notes has been
depleted), Consolidated Interest Expense shall exclude interest accruing on the
Senior Subordinated Notes and the Additional Senior Subordinated Notes (if
issued by Borrower), (2) if the Additional Senior Subordinated Notes are issued
by any direct or indirect parent of Borrower, Consolidated Interest Expense
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shall, for any period ending after the Senior Subordinated Notes Interest
Trigger Date (or, such later date when the interest escrow in respect thereof
has been depleted), include cash interest accruing during such period on the
Additional Senior Subordinated Notes and (3) for any period ending after the
Parent Refinanced Notes Interest Trigger Date, Consolidated Interest Expense
shall include cash interest accruing during such period on the Parent Refinanced
Notes. Notwithstanding the foregoing, until November 30, 1999, Consolidated
Interest Expense shall equal the product of (A) Consolidated Interest Expense
since the Closing Date to the date in question and (B) a fraction, the numerator
of which is 365 and the denominator of which is the number of days since the
Closing Date.
"Interest Period" shall mean, with respect to any LIBOR Loan,
each period commencing on the date such LIBOR Loan is made or Converted from an
ABR Loan or the last day of the next preceding Interest Period for such LIBOR
Loan and (subject to the requirements of Sections 2.01(a), 2.01(b), 2.01(c),
2.01(d) and 2.09) ending on the numerically corresponding day in the first,
second, third or sixth calendar month thereafter, as Borrower or PR Borrower may
select as provided in Section 4.05, except that each Interest Period that
commences on the last Business Day of a calendar month (or on any day for which
there is no numerically corresponding day in the appropriate subsequent calendar
month) shall end on the last Business Day of the appropriate subsequent calendar
month. Notwithstanding the foregoing: (i) if any Interest Period for any
Revolving Credit Loan would otherwise end after the Revolving Credit Commitment
Termination Date, such Interest Period shall end on the Revolving Credit
Commitment Termination Date; (ii) no Interest Period for any Term Loan may
commence before and end after any Principal Payment Date, unless, after giving
effect thereto, the aggregate principal amount of the Term Loans having Interest
Periods that end after such Principal Payment Date shall be equal to or less
than the aggregate principal amount of the Term Loans scheduled to be
outstanding after giving effect to the payments of principal required to be made
on such Principal Payment Date; (iii) each Interest Period that would otherwise
end on a day that is not a Business Day shall end on the next succeeding
Business Day (or, if such next succeeding Business Day falls in the next
succeeding calendar month, on the next preceding Business Day); and (iv)
notwithstanding clauses (i) and (ii) above, no Interest Period shall have a
duration of less than one month and, if the Interest Period for any LIBOR Loan
would otherwise be a shorter period, such Loan shall not be available hereunder
as a LIBOR Loan for such period.
"Interest Rate Certificate" shall mean an Officers' Certificate
substantially in the form of Exhibit C-1, delivered pursuant to Section 9.01(e),
demonstrating in reasonable detail the calculation of the Total Leverage Ratio
as of any Test Date.
"Interest Rate Protection Agreement" shall mean, for any Person,
an interest rate swap, cap or collar agreement or similar arrangement between
such Person and one or more financial institutions providing for the transfer or
mitigation of interest risks either generally or under specific contingencies.
"internally generated funds" shall mean funds not generated from
the proceeds of any Loan, Debt Issuance, Equity Issuance, Disposition, insurance
recovery or Indebtedness (in each case without regard to the exclusions from the
definition thereof (other than sales of inventory in the ordinary course of
business)).
"Investment" shall mean, for any Person: (a) the acquisition
(whether for cash, Property, services or securities or otherwise) of Equity
Interests, bonds, notes, debentures or other securities of any other Person; (b)
the making of any deposit with, or advance, loan or other extension of credit
to, any other Person (including the purchase of Property from another Person
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subject to an understanding or agreement, contingent or otherwise, to resell
such Property to such Person); (c) any capital contribution to (by means of any
transfer of cash or other Property to others or any payment for Property or
services for the account or use of others) any other Person; and (d) the
entering into, or direct or indirect incurrence, of any Guaranty Obligation with
respect to Indebtedness or other liability of any other Person.
"Investor Affiliates" shall mean (i) each Affiliate of any
Principal Investor that is not an operating company or controlled by an
operating company and each general partner of each Principal Investor and
Affiliate of a Principal Investor and (ii) any other Person that holds Equity
Interests in Parent if any Principal Investor or Investor Affiliate described in
clause (i) above has at the time of determination the power to vote (or cause to
be voted at its discretion), pursuant to contract, irrevocable proxy or
otherwise, the shares held by such other Person.
"Investors" shall mean the Principal Investors and the Investor
Affiliates.
"Issuing Lender" shall mean NationsBank, N.A. or any of its
Affiliates, or such other Lender or Lenders selected by Administrative Agent and
reasonably satisfactory to Borrower, as the issuer of Letters of Credit under
Section 2.03, together with its successors and assigns in such capacity.
"Joinder Agreement" shall mean a Joinder Agreement substantially
in the form of Exhibit I.
"Lambda Holdings" shall mean Lambda Communications, Inc., a
Puerto Rican corporation.
"Lambda Operating Corp." shall mean Lambda Operations Corp., a
Delaware corporation.
"Lambda Reorganization" shall mean the merger of Lambda Operating
Corp. with and into Lambda Holdings, with Lambda Operating Corp. as the
surviving corporation.
"Lead Arranger" see the introduction hereto.
"Lease" shall mean any lease, sublease, franchise agreement,
license, occupancy or concession agreement.
"LEC System" shall mean a system providing local telephone
services within a local exchange in Puerto Rico and the Virgin Islands.
"Lender" and "Lenders" see the introduction to this Agreement.
"Letter of Credit" see Section 2.03.
"Letter of Credit Documents" shall mean, with respect to any
Letter of Credit, collectively, any other agreements, instruments, guarantees or
other documents (whether general in application or applicable only to such
Letter of Credit) governing or providing for (a) the rights and obligations of
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the parties concerned or at risk with respect to such Letter of Credit or (b)
any collateral security for any of such obligations, each as the same may be
modified and supplemented and in effect from time to time.
"Letter of Credit Interest" shall mean, for each Revolving Credit
Lender, such Lender's participation interest (or, in the case of the Issuing
Lender, the Issuing Lender's retained interest) in the Issuing Lender's
liability under Letters of Credit and such Lender's rights and interests in
Reimbursement Obligations and fees, interest and other amounts payable in
connection with Letters of Credit and Reimbursement Obligations.
"Letter of Credit Liability" shall mean, without duplication, at
any time and in respect of any Letter of Credit, the sum of (a) the undrawn face
amount of such Letter of Credit, plus (b) the aggregate unpaid principal amount
of all Reimbursement Obligations of Borrower at such time due and payable in
respect of all drawings made under such Letter of Credit.
"LIBOR Base Rate" shall mean, with respect to any LIBOR Loan for
any Interest Period therefor, the rate per annum determined by Administrative
Agent to be the arithmetic mean (rounded to the nearest 1/100th of 1%) of the
offered rates for deposits in Dollars with a term comparable to such Interest
Period that appears on the Dow Jones Page 3750 (as defined below) at
approximately 11:00 a.m., London, England time, on the second full Business Day
preceding the first day of such Interest Period; provided, however, that (i) if
no comparable term for an Interest Period is available, the LIBOR Base Rate
shall be determined using the weighted average of the offered rates for the two
terms most nearly corresponding to such Interest Period and (ii) if there shall
at any time no longer exist a Dow Jones Page 3750, "LIBOR Base Rate" shall mean,
with respect to each day during each Interest Period pertaining to LIBOR Loans
comprising part of the same Borrowing, the rate per annum equal to the rate at
which Administrative Agent is offered deposits in Dollars at approximately 11:00
a.m., London, England time, two Business Days prior to the first day of such
Interest Period in the London interbank market for delivery on the first day of
such Interest Period for the number of days comprised therein and in an amount
comparable to its portion of the amount of such LIBOR Loan to be outstanding
during such Interest Period. "Dow Jones Page 3750" shall mean the display
designated as Page 3750 on the Dow Jones (or such other page as may replace such
page on such service for the purpose of displaying the rates at which Dollar
deposits are offered by leading banks in the London interbank deposit market).
"LIBOR Loans" shall mean Loans that bear interest at rates based
on rates referred to in the definition of "LIBOR Rate" in this Section 1.01.
"LIBOR Rate" shall mean, for any LIBOR Loan for any Interest
Period therefor, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by Administrative Agent to be equal to the LIBOR Base
Rate for such Loan for such Interest Period divided by 1 minus the Reserve
Requirement (if any) for such Loan for such Interest Period.
"Licenses" see Section 8.22(a).
"License Subsidiary" shall mean any Subsidiary of Borrower that
(i) is organized in a state within the United States, (ii) has no assets other
than Licenses of the Companies and de minimis other assets and conducts no
activity except holding such Licenses and matters ancillary thereto, (iii) has
no liabilities or obligations, including Contingent Obligations, other than the
Guarantee and liabilities strictly related to its corporate existence incurred
in the ordinary course (but not any trade credit or the like) and de minimis
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other obligations, and (iv) has no Liens, except, to the extent permitted by the
FCC, Liens under the Security Documents in favor of Administrative Agent on
behalf of the Creditors.
"Lien" shall mean, with respect to any Property, any mortgage,
lien, pledge, claim, charge, security interest or encumbrance of any kind, any
other type of preferential arrangement in respect of such Property having the
effect of a security interest or any filing consented to by any Company of any
financing statement under the UCC or any other similar notice of Lien under any
similar notice or recording statute of any Governmental Authority consented to
by any Company, including any easement, right-of-way or other encumbrance on
title to Real Property, and any agreement to give any of the foregoing. For
purposes of the Credit Documents, a Person shall be deemed to own subject to a
Lien any Property that it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement (other than an operating lease) relating to such
Property.
"Loans" shall mean the Revolving Credit Loans, the Swing Loans
and the Term Loans.
"Losses" of any Person shall mean the losses, liabilities, claims
(including those based upon negligence, strict or absolute liability and
liability in tort), damages, reasonable expenses, obligations, penalties,
actions, judgments, encumbrances, liens, penalties, fines, suits, reasonable and
documented costs or disbursements of any kind or nature whatsoever (including
reasonable fees and expenses of counsel in connection with any Proceeding
commenced or threatened in writing, whether or not such Person shall be
designated a party thereto) at any time (including following the payment of the
Obligations) incurred by, imposed on or asserted against such Person.
"Majority Lenders" shall mean (i) at any time prior to the
Closing Date, Lenders holding at least a majority of the aggregate amount of the
Commitments, and (ii) at any time after the Closing Date, Lenders holding at
least a majority of the sum of (without duplication) (a) the aggregate principal
amount of outstanding Loans (other than Swing Loans), plus (b) the aggregate
amount of all Letter of Credit Liabilities, plus (c) the aggregate Unutilized
Revolving Credit Commitments then in effect, plus (d) in the case of the Swing
Loan Lender only, the aggregate amount of Swing Loans then outstanding.
"Majority Revolving Credit Lenders" shall mean (i) at any time
prior to the Closing Date, Lenders holding at least a majority of the aggregate
amount of the Revolving Credit Commitments and (ii) at any time after the
Closing Date, Lenders holding at least a majority of the sum of (without
duplication) (a) the aggregate principal amount of outstanding Revolving Credit
Loans, plus (b) the aggregate amount of all Letter of Credit Liabilities, plus
(c) the aggregate Unutilized Revolving Credit Commitments then in effect, plus
(d) in the case of the Swing Loan Lender only, the aggregate amount of Swing
Loans then outstanding.
"Majority Term Lenders" shall mean (i) at any time prior to the
Closing Date, Lenders holding at least a majority of the Term Loan Commitments,
and (ii) at any time after the Closing Date, Lenders holding at least a majority
of the aggregate principal amount of outstanding Term Loans.
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"Majority Tranche A Term Loan Lenders" shall mean (i) at any time
prior to the Closing Date, Lenders holding at least a majority of the Tranche A
Term Loan Commitments, and (ii) at any time after the Closing Date, Lenders
holding at least a majority of the aggregate principal amount of outstanding
Tranche A Term Loans.
"Majority Tranche A-PR Term Loan Lenders" shall mean (i) at any
time prior to the Closing Date, Lenders holding at least a majority of the
Tranche A-PR Term Loan Commitments, and (ii) at any time after the Closing Date,
Lenders holding at least a majority of the aggregate principal amount of
outstanding Tranche A-PR Term Loans.
"Majority Tranche B Term Loan Lenders" shall mean (i) at any time
prior to the Closing Date, Lenders holding at least a majority of the Tranche B
Term Loan Commitments and (ii) at any time after the Closing Date, Lenders
holding at least a majority of the aggregate principal amount of outstanding
Tranche B Term Loans.
"Majority Tranche C Term Loan Lenders" shall mean (i) at any time
prior to the Closing Date, Lenders holding at least a majority of the Tranche C
Term Loan Commitments and (ii) at any time after the Closing Date, Lenders
holding at least a majority of the aggregate principal amount of outstanding
Tranche C Term Loans.
"Margin Stock" shall mean margin stock within the meaning of
Regulations T, U and X.
"Marketing Agreement" shall mean a material operating or material
marketing agreement between any Obligor and any other party (including, without
limitation, any such agreement with Century- ML).
"Material Adverse Change" shall mean, with respect to any Person,
a material adverse change, or any condition or event that has resulted or could
reasonably be expected to result in a material adverse change, in the financial
condition, business, assets or results of operations of such Person, together
with its Subsidiaries taken as a whole. Unless otherwise indicated, Material
Adverse Change refers to Borrower.
"Material Adverse Effect" shall mean, any of (a) a material
adverse effect, or any condition or event that has resulted or could reasonably
be expected to result in a material adverse effect, on the business, assets, or
results of operations or financial condition of Borrower, together with the
Subsidiaries taken as a whole, (b) a material adverse effect on the ability of
the Obligors to consummate in a timely manner the Transactions or to perform any
of their material obligations under any Credit Document or (c) a material
adverse effect on the legality, binding effect or enforceability of any Credit
Document or any of the material rights and remedies of the Lenders, the Issuing
Lender, Lead Arranger or any Agent thereunder. In determining whether the
occurrence of any individual event or the existence of any individual condition
would, or the failure of any individual event to occur or any individual
condition to exist would, have a Material Adverse Effect, notwithstanding that
the occurrence of such individual event or the existence of such individual
condition does not, or the failure to occur of such individual event or such
individual condition to exist does not, of itself have such effect, a Material
Adverse Effect shall be deemed to have occurred if the cumulative effect of such
event or condition or failure of event or condition and all other then existing
events or conditions and failures or event or conditions would have a Material
Adverse Effect.
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"Merger" shall mean the merger on the Closing Date of Parent with
and into Target, with Target as the survivor pursuant to the Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger
dated as of July 2, 1998 between Parent and Target, as amended on November 29,
1998 and as amended and in effect in accordance with its terms and this
Agreement.
"Minority Interest" shall mean an Investment in any Person that
is not a Subsidiary.
"Minority Interest Basket" shall mean, at any time, the excess of
(A) the aggregate amount of cash dividends or other cash distributions received
by Borrower since the Closing Date and on or prior to such time from the
Minority Interests listed on Schedule 8.14, net of all capital contributions or
taxes required to be paid in respect thereof over (B) the sum of (i) the
aggregate amount of all Investments made after the Closing Date and outstanding
as of such time in Minority Interests pursuant to Section 9.09(A)(q) and (ii)
the aggregate amount of all dividends paid as of such time since the Closing
Date pursuant to Section 9.10(c)(iv).
"MLCC" shall mean Merrill Lynch Capital Corporation.
"MLPF&S" shall mean Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
"Mortgage" shall mean an agreement, including, but not limited
to, a mortgage, deed of trust or any other document, creating and evidencing a
Lien on a Mortgaged Real Property, which shall be in form and substance
reasonably satisfactory to Administrative Agent, with such schedules and
including such provisions as shall be necessary to conform such document to
applicable or local law or as shall be customary under local law, as the same
may at any time be amended in accordance with the terms thereof and hereof.
"Mortgaged Real Property" shall mean each Real Property, if any,
which shall be subject to a Mortgage delivered after the Closing Date pursuant
to Section 9.12.
"MSA" shall mean any "metropolitan statistical area" as defined
and modified by the FCC for the purpose of licensing public cellular radio
telecommunications service systems.
"Multiemployer Plan" shall mean at any time a multiemployer plan
within the meaning of Section 4001(a)(3) of ERISA (i) to which any member of the
ERISA Group is then making or accruing an obligation to make contributions, (ii)
to which any member of the ERISA Group has within the preceding five plan years
made contributions, including for these purposes any Person which ceased to be a
member of the ERISA Group during such five year period, or (iii) with respect to
which any Company is reasonably likely to incur liability.
"NAIC" shall mean the National Association of Insurance
Commissioners.
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"Net Available Proceeds" shall mean:
(i) in the case of any Disposition Event, the amount of Net
Cash Payments received by any Company in connection with such
Disposition Event;
(ii) in the case of any Casualty Event, the aggregate amount
of cash proceeds of insurance, condemnation awards and other
compensation received by any Company in respect of such Casualty
Event net of (A) fees and expenses incurred by such Company in
connection with recovery thereof, (B) repayments of Indebtedness
(other than Indebtedness hereunder) to the extent secured by a
Lien on such Property that is permitted hereunder or under the
applicable Security Document, (C) any taxes (including income,
transfer, stamp, duty, customs, withholding and any other taxes)
paid or payable by any Company in respect of the amount so
recovered (after application of all credits and other offsets)
and (D) amounts drawn under the Revolving Credit Facility that
are applied to the replacement, restoration or repair of the
Property subject to such Casualty Event; and
(iii) in the case of any Equity Issuance or any Debt
Issuance, the aggregate amount of all cash received by any
Company in respect thereof net of all investment banking fees,
discounts and commissions, legal fees, consulting fees,
accountants' fees, underwriting discounts and commissions and
other fees and expenses, actually incurred in connection
therewith.
"Net Cash Payments" shall mean, with respect to any Disposition
Event, the aggregate amount of all cash payments (including any cash payments
received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise, but
only as and when received) received by any Company directly or indirectly in
connection with such Disposition Event; provided, however, that Net Cash
Payments shall be net (without duplication) of (i) the amount of all fees and
expenses paid by any Company in connection with such Disposition Event (the
"Relevant Disposition"); (ii) any taxes (including income,
transfer, stamp, duty, customs, withholding and any other taxes) paid or
estimated to be payable by any Company as a result of the Relevant Disposition
(after application of all credits and other offsets); (iii) any repayments by
any Company of Indebtedness other than the Obligations to the extent that (a)
such Indebtedness is secured by a Lien on the Property that is the subject of
the Relevant Disposition that is permitted hereunder or under the applicable
Security Document and (b) the transferee of (or holder of a Lien on) such
Property requires that such Indebtedness be repaid as a condition to the
purchase or sale of such Property; (iv) amounts required to be paid to any
Person (other than any Company) owning a beneficial interest in the assets
subject to such Relevant Disposition; and (v) appropriate amounts to be provided
by any Company, as a reserve, in accordance with GAAP, against any liabilities
associated with such Relevant Disposition and retained by any Company after such
Relevant Disposition, including, without limitation, pension and other post-
employment benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Relevant
Disposition, all as reflected in an Officers' Certificate delivered to
Administrative Agent.
"New Lenders" see Section 2.01(f).
"Non-Qualified Subsidiary" shall mean any Subsidiary other than a
Qualified Subsidiary.
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"Non-U.S. Lender" see Section 5.06(b).
"Note Defeasance" shall mean the defeasance of all covenants and
events of default (except to the extent prohibited by the terms of the Existing
Indentures) relating to the Existing Notes.
"Note Tender" shall mean the tender offer and consent
solicitation with respect to the Existing Notes by Parent pursuant to the Offer
to Purchase and Consent Solicitation dated September 8, 1998 of Parent, as
extended from time to time.
"Notes" shall mean the Revolving Credit Notes, the Term Loan
Notes and the Swing Loan Notes.
"Notice of Assignment" shall mean a notice of assignment pursuant
to Section 12.06 substantially in the form of Exhibit F.
"Notice of Borrowing" shall mean a notice of borrowing
substantially in the form of Exhibit G.
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any time existing,
owing to any Creditor or any of its Related Parties or their respective
successors, transferees or assignees pursuant to the terms of any Credit
Document or any Swap Contract or secured by any of the Security Documents,
whether or not the right of such Person to payment in respect of such
obligations and liabilities is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable,
secured or unsecured and whether or not such claim is discharged, stayed or
otherwise affected by any bankruptcy case or insolvency or liquidation
proceeding.
"Obligors" shall mean Borrower, PR Borrower and the Guarantors.
"Officers' Certificate" shall mean, as applied to any
corporation, a certificate executed on behalf of such corporation by its
Chairman of the Board (if an officer) or its Chief Executive Officer or its
President or one of its Vice Presidents (or an equivalent officer) and by its
Chief Financial Officer, Vice President-Finance or its Treasurer (or an
equivalent officer) or any Assistant Treasurer in their official (and not
individual) capacities; provided, however, that every Officers' Certificate with
respect to the compliance with a condition precedent to the making of any Loan
or the taking of any other action hereunder shall include (i) a statement that
the officers making or giving such Officers' Certificate have read such
condition and any definitions or other provisions contained in this Agreement
relating thereto, and (ii) a statement as to whether, in the opinion of the
signers, such condition has been complied with.
"Operating Cash Flow" shall mean, for any period, the sum
(without duplication) of the amounts for such period of Adjusted Net Income,
plus, in each case to the extent deducted in calculating such Adjusted Net
Income, (1) income tax expense and withholding tax expense incurred in
connection with cross border transactions, (2) consolidated interest expense
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(including in respect of the Senior Subordinated Notes and, (if issued by
Borrower) the Additional Senior Subordinated Notes), (3) depreciation and
amortization expense, (4) other non-cash items of expense, other than to the
extent requiring an accrual or reserve for future cash expenses, and (5)
monitoring and management fees actually paid to any Permitted Holder as
permitted by Section 9.15 all as determined on a consolidated basis for Borrower
and its Consolidated Subsidiaries, and minus (1) cash dividends or other
distributions paid by Borrower to Parent pursuant to Section 9.10(c)(i) and (2)
distributions received from all Minority Interests during such period to the
extent included in calculating such Adjusted Net Income. Operating Cash Flow
shall be calculated on a pro forma basis and otherwise in accordance with GAAP
to give effect to any Acquisition or Disposition of any Cellular System, PCS
System, SMR System, LEC System, CAP System or paging system consummated during
the fiscal period of Borrower ended on such Test Date as if each such
Acquisition had been effected on the first day of such period and as if each
such Disposition had been consummated on the day prior to the first day of such
period; provided that any such pro forma calculation may include adjustments for
the pro forma effect of (a) any cost savings accounted for on an annualized
basis as a result of an Acquisition by Borrower or any of its Consolidated
Subsidiaries which, in the good faith judgment of Borrower (as evidenced by an
Officers' Certificate delivered to Administrative Agent), will be eliminated or
realized within one year after the date of such transaction (provided that any
such cost savings are calculated in accordance with Regulation S-X under the
Securities Act of 1933, as amended) or (b) any direct quantifiable savings from
the conversion of roaming expense which Borrower will obtain within one year of
the transaction in the good faith judgment of Borrower from the Acquisition of a
third party which prior to such Acquisition had a contract with Borrower or any
of its Consolidated Subsidiaries for roaming services. For purposes of the
foregoing sentence, when calculating Operating Cash Flow for any Person or
business, Operating Cash Flow and all defined terms used herein (or in any such
defined term) shall be deemed to refer to such Person or business. For purposes
of determining compliance with Section 7.01(xviii), Operating Cash Flow shall be
calculated based on the Operating Cash Flow for the fiscal quarter most recently
ended prior to the Closing Date for which financial statements have been
delivered to the Agents and Lenders multiplied by four (4), and shall be
calculated on a consolidated basis for Target and its Consolidated Subsidiaries.
For all purposes (other than for purposes of Section 7.01(xviii)),
notwithstanding anything herein to the contrary, Operating Cash Flow for the
Test Date on February 28, 1999 will equal the product of (i) the Operating Cash
Flow for the nine months ended on such Test Date and (ii) four-thirds (4/3).
"Option" see Section 2.09.
"Original Lenders" shall mean the Lenders named on the signature
pages hereof who were Lenders at the Closing Date.
"Organic Document" shall mean, relative to any Person, its
certificate of incorporation, its by-laws, its partnership agreement, its
memorandum and articles of association, share designations or similar
organization documents and all shareholder agreements, voting trusts and similar
arrangements applicable to any of its authorized shares of Equity Interests.
"Other Taxes" see Section 5.06(c).
"Parent" shall mean (x) prior to the consummation of the Merger,
CCW Acquisition Corp., Delaware corporation, and (y) on any day after the
consummation of the Merger, Target.
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"Parent Financing" shall mean (x) the Equity Financing and (y)
the issuance and sale of the Parent Subordinated Notes.
"Parent Financing Documents" shall mean (x) the Merger Agreement
and (y) the Parent Subordinated Notes and the Securities Purchase Agreement
dated December 29, 1998 between Parent, WCAS Capital Partners III, L.P. and the
other purchasers named therein pursuant to which the Parent Subordinated Notes
were issued and all other documents relating thereto and delivered to Agents on
or prior to the Closing Date, as any such agreement or document may be amended
and in effect from time to time in accordance with its terms and this Agreement.
"Parent Refinanced Notes" shall mean the senior notes of Parent
issued to refinance the Parent Subordinated Notes for net proceeds (in excess of
the amount of interest in escrow pursuant to any interest escrow agreement
relating thereto), of not more than an aggregate principal amount sufficient to
repay in full all then outstanding Parent Subordinated Notes Obligations, which
notes shall in any event (i) have covenants, events of default, redemption and
repurchase provisions and modification provisions in the aggregate not
materially less favorable to Parent, Borrower and the Lenders than the
covenants, events of default, redemption and repurchase provisions and
modification provisions of the Senior Subordinated Notes, (ii) mature no earlier
than six months after the maturity date for the Senior Subordinated Notes, (iii)
be unsecured and (iv) require no cash interest payments (other than from an
interest escrow substantially similar to the Senior Subordinated Notes Interest
Escrow Agreement, so long as it will be sufficient to fund the first ten
scheduled semi-annual interest payments thereof) for at least five years after
the issue date thereof.
"Parent Refinanced Notes Documents" shall mean an indenture
governing the terms and conditions of the Parent Refinanced Notes and all other
documents relating thereto (including any interest escrow agreement, if
applicable) and delivered to Agents, as any such agreement or document may be
amended and in effect from time to time in accordance with its terms and this
Agreement.
"Parent Refinanced Notes Interest Trigger Date" shall mean the
earlier of (x) the tenth scheduled semi-annual interest payment date on the
Parent Refinanced Notes after the issue date thereof or (y) the first date on
which interest is required to be paid on any Permitted Refinancing only in cash
on the Parent Refinanced Notes (or any one or more refinancings thereof) other
than from an interest escrow arrangement funded at the date of issuance thereof.
"Parent Subordinated Notes" shall mean the Senior Subordinated
Notes due 2009 of Parent in an aggregate amount of $180.0 million issued
pursuant to the Parent Financing Documents.
"Parent Subordinated Notes Obligations" shall mean the
obligations of Parent under the Parent Subordinated Notes (including any notes
issued to holders thereof in lieu of cash interest payments in accordance with
the Parent Financing Documents) and the Parent Financing Documents.
"Participant" see Section 12.06(c).
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"Payment Date" shall mean any Principal Payment Date and each
date on which interest is due and payable on any Loan.
"Payor" see Section 4.06.
"PBGC" shall mean the United States Pension Benefit Guaranty
Corporation or any successor thereto.
"PCS System" shall mean a wireless telecommunications system
licensed by the FCC under 47 C.F.R. Part 24 for operation in the "B" frequency
block (1.865/1.880 GHz and 1.945/1.960 GHz) to provide any or all of a family of
digital, wireless mobile or portable and fixed radio communications services to
individuals and businesses in Puerto Rico and the Virgin Islands.
"Permits" see Section 8.17.
"Permitted Acquisition" shall mean any Acquisition effected in
compliance with Section 9.06(h), (i), (o) or (q).
"Permitted Holders" means the Principal Investors, the Investor
Affiliates and the Permitted Transferees.
"Permitted Investments" shall mean, for any Person: (a) direct
obligations of the United States of America, or of any agency thereof, or
obligations guaranteed as to principal and interest by the United States of
America, or by any agency thereof, in either case maturing not more than one
year from the date of acquisition thereof by such Person; (b) time deposits,
certificates of deposit or bankers' acceptances (including eurodollar deposits)
issued by any bank or trust company organized under the laws of the United
States of America or any state thereof and having capital, surplus and undivided
profits of at least $500.0 million and a deposit rating of investment grade; (c)
commercial paper rated A-1 or better by Standard & Poor's Corporation or P-1 or
better by Moody's Investors Service, Inc., respectively, maturing not more than
180 days from the date of acquisition thereof by such Person; (d) repurchase
obligations with a term of not more than 30 days for underlying securities of
the types described in clause (a) above entered into with a bank meeting the
qualifications described in clause (b) above; (e) securities with maturities of
six months or less from the date of acquisition issued or fully guaranteed by
any state, commonwealth or territory of the United States of America, or by any
political subdivision or taxing authority thereof, and rated at least A by
Standard & Poor's Corporation or A by Moody's Investors Service, Inc.; or (f)
money market mutual funds that invest primarily in the foregoing items.
"Permitted Liens" see Section 9.07.
"Permitted Refinancing" shall mean, with respect to any
Indebtedness or Contingent Obligation, any refinancing thereof, provided,
however, that (w) no Default or Event of Default shall have occurred and be
continuing or would arise therefrom, (x) any such refinancing Indebtedness shall
(I) not be on financial and other terms that are materially more onerous (as
determined by Borrower and Agents) in the aggregate to any Company or Creditor
than the Indebtedness or Contingent Obligation being refinanced and shall not
have defaults, rights or remedies more burdensome (as determined by Borrower and
Agents) to any Company or Creditor than the Indebtedness being refinanced, (II)
not have a stated maturity or weighted average life that is shorter than the
Indebtedness or Contingent Obligation being refinanced, (III)
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if the Indebtedness or Contingent Obligation being refinanced is subordinated by
its terms or by the terms of any agreement or instrument relating to such
Indebtedness or Contingent Obligation, be at least as subordinate to the
Obligations as the Indebtedness or Contingent Obligation being refinanced (and
unsecured if the refinanced Indebtedness is unsecured), and (IV) be in a
principal amount that does not exceed the principal amount so refinanced, plus
accrued interest, plus the lesser of (1) the stated amount of any premium or
other payment required to be paid in connection with such refinancing pursuant
to the terms of the Indebtedness or Contingent Obligation being refinanced and
(2) the amount of premium or other payment actually paid at such time to
refinance the Indebtedness, plus, in either case, the amount of fees and
reasonable expenses of any Obligor or any Subsidiary incurred in connection with
such refinancing, (y) the sole obligor on such refinancing Indebtedness or
Contingent Obligation shall be Parent or the original obligor on such
Indebtedness or Contingent Obligation being refinanced; provided, however, that
(I) any guarantor of the Indebtedness or Contingent Obligation being refinanced
shall be permitted to guarantee the refinancing Indebtedness and (II) any
Obligor shall be permitted to guarantee any such refinancing of any other
Obligor, and (z) any refinancing of the Senior Subordinated Notes (or any
refinancing thereof) shall provide for an interest escrow (or non-cash interest)
through the date that as of the Closing Date would have been the originally
regularly scheduled third interest payment date on the Senior Subordinated Notes
on terms and conditions no less favorable to the Creditors than the Senior
Subordinated Notes Interest Escrow Agreement.
"Permitted Transferee" shall mean, with respect to any
individual, (i) such individual's spouse or children (natural or adopted), any
trust for such individual's benefit or the benefit of such individual's spouse
or children (natural or adopted), or any corporation or partnership in which the
direct and beneficial owner of all of the equity interest is such Person or such
individual's spouse or children (natural or adopted) or any trust for the
benefit of such persons; or (ii) the heirs, executors, administrators or
personal representatives upon the death of such person or upon the incompetency
or disability of such person for purposes of the protection and management of
such individual's assets.
"Person" shall mean any individual, corporation, company,
voluntary association, partnership, joint venture, trust, unincorporated
organization or government (or any agency, instrumentality or political
subdivision thereof).
"Plan" shall mean at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards under Section 412 of the Code or
Section 302 of ERISA and is maintained or contributed to by any member of the
ERISA Group or with respect to which any Company is reasonably likely to incur
liability.
"Pledged Collateral" shall mean all Property pledged pursuant to
the Security Agreement.
"PR Borrower" shall mean (1) prior to the consummation of the
Lambda Reorganization is in accordance with Section 9.03(c), Initial PR
Borrower, and (2) after the consummation of the Lambda Reorganization in
accordance with Section 9.03(c), each of Initial PR Borrower and Lambda
Operating Corp.
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"PR Borrower Parents" shall mean Centennial Cellular Wireless
Holding Corporation, a New Jersey corporation and Centennial Puerto Rico
Wireless Corporation, a Delaware corporation.
"PR Systems" shall mean, collectively, the PCS Systems, the CAP
Systems and the LEC Systems of PR Borrower.
"Prepayment Designation Basket" shall mean, at any time, the
excess of (A) $75,000,000 over (B) the aggregate amount of prepayments of the
Term Loans as to which Borrower and/or PR Borrower has relied upon Section
2.09(c)(i) or Section 2.10(b)(i)(A) since the Closing Date to designate the
Class of Loan and the order of application to scheduled Amortization Payments of
such prepayment.
"Prime Rate" shall mean for any day, a rate per annum that is
equal to the prime rate of interest established by Administrative Agent from
time to time, changing when and as said corporate base rate changes. The
corporate base rate is not necessarily the lowest rate charged by Administrative
Agent to its customers.
"Principal Investors" shall mean WCAS and Blackstone Capital
Partners III Merchant Banking Fund L.P. and Blackstone Offshore Capital Partners
III L.P.
"Principal Office" shall mean the principal office of
Administrative Agent, located on the date hereof at 901 Main Street, 14th Floor,
Dallas, Texas 75202 Attention: Agency Services or such other office as may be
designated by Administrative Agent.
"Principal Payment Date" shall mean, with respect to any Term
Loan, each Quarterly Date or other date set forth on Schedule 3.01(b) on which a
payment of principal is due with respect to such Term Loan.
"Prior Liens" shall mean Liens which, pursuant to the provisions
of any Security Document, are or may be superior to the Lien of such Security
Document.
"Proceeding" shall mean any claim, counterclaim, action,
judgment, suit, hearing, governmental investigation, arbitration or proceeding,
including by or before any Governmental Authority and whether judicial or
administrative.
"Profit Payment Agreement" shall mean any agreement to make any
payment the amount of which is, or the terms of payment of which are, in any
respect subject to or contingent upon the revenues, income, cash flow or profits
(or the like) of any Person or business.
"Pro Forma Balance Sheets" see Section 8.02(d).
"Pro Forma Date" see Section 8.02(d).
"Pro Forma Debt Service" shall mean, for any period, the sum of
(i) the reasonably anticipated Consolidated Interest Expense of Borrower and its
Consolidated Subsidiaries for such period to the extent to be paid in cash
during such period and assuming prevailing interest rates at the time of
calculation, and (ii) the combined sum of all scheduled principal payments on
any Indebtedness (including, without duplication, the Loans and Capital Leases)
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of Borrower and its Consolidated Subsidiaries during such period; provided,
however, that such Consolidated Interest Expense shall (1) include only interest
that will accrue after the Senior Subordinated Notes Interest Trigger Date (or,
with respect to the Additional Senior Subordinated Notes, such later date when
the interest escrow in respect thereof is depleted) during such period on the
Senior Subordinated Notes and (if issued by Borrower) the Additional Senior
Subordinated Notes, (2) include, if the Additional Senior Subordinated Notes are
issued by any direct or indirect parent of Borrower, and (3) interest that
accrues on the Parent Refinanced Notes after the Parent Refinanced Notes
Interest Trigger Date during such period.
"Pro Forma Debt Service Coverage Ratio" shall mean, for any Test
Date, the ratio of Operating Cash Flow for the four fiscal quarters ending on
such Test Date to Pro Forma Debt Service for the four fiscal quarters
immediately following such Test Date.
"Property" shall mean any right, title or interest in or to
property or assets of any kind whatsoever, whether real, personal or mixed and
whether tangible or intangible and including Equity Interests or other ownership
interests of any Person.
"PRPSC" shall mean the Puerto Rico Public Service Commission.
"PRTRB" shall mean the Telecommunications Regulatory Board of
Puerto Rico created by Act No. 213 of the Legislature of Puerto Rico approved
September 12, 1996, or any successor thereto.
"Puerto Rico" shall mean the Commonwealth of Puerto Rico.
"Qualified Capital Stock" shall mean with respect to any Person
any Equity Interests of such Person which is not Disqualified Capital Stock.
"Qualified Subsidiary" shall mean any Wholly Owned Subsidiary of
Borrower that is a Guarantor.
"Quarter" shall mean each three month period ending on February
28 (or 29, as the case may be), May 31, August 31 and November 30.
"Quarterly Dates" shall mean the last Business Day of each
Quarter in each year, commencing with the last Business Day of February 1999.
"Real Property" shall mean all right, title and interest of any
Company (including, without limitation, any leasehold estate) in and to a parcel
of real property owned or operated by any Company, whether by lease, license or
other use agreement, together with, in each case, all improvements and
appurtenant fixtures, equipment, personal property, easements and other property
and rights incidental to the ownership, lease or operation thereof or thereon.
"Recapitalization" shall mean the recapitalization of Centennial
Cellular Corp. pursuant to the Merger Agreement.
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"redeem" shall mean redeem, repurchase, repay, defease or
otherwise acquire or retire for value; and "redemption" and "redeemed" have
correlative meanings.
"refinance" shall mean refinance, renew, extend, replace, defease
or refund, in whole or in part, including successively; and "refinancing" and
"refinanced" have correlative meanings.
"Register" see Section 2.08.
"Regulation D" shall mean Regulation D (12 C.F.R. Part 204) of
the Board of Governors of the United States Federal Reserve System.
"Regulations T, U and X" shall mean, respectively, Regulation T
(12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) and Regulation X (12
C.F.R. Part 224) of the Board of Governors of the United States Federal Reserve
System (or any successor), as the same may be modified and supplemented and in
effect from time to time.
"Regulatory Change" shall mean, with respect to any Lender, any
change after the date hereof in United States Federal, state or foreign law or
regulations (including Regulation D) or the adoption or making after such date
of any interpretation, directive or request applying to a class of banks or
other financial institutions including such Lender of or under any Federal,
state or foreign law or regulations (whether or not having the force of law and
whether or not failure to comply therewith would be unlawful) by any court or
governmental or monetary authority or any other regulatory agency with proper
authority, including non-governmental agencies or bodies, charged with the
interpretation or administration thereof or by the NAIC.
"Reimbursement Obligations" shall mean, at any time, the
obligations of Borrower then outstanding, or that may thereafter arise in
respect of all Letters of Credit then outstanding, to reimburse amounts paid by
the Issuing Lender in respect of any drawings under a Letter of Credit.
"Related Parties" see Section 11.01.
"Release" shall mean any release, spill, emission, leaking,
pumping, injection, deposit, disposal, discharge, dispersal, leaching or
migration into the environment.
"Replaced Lender" see Section 2.11.
"Replacement Lender" see Section 2.11.
"Required Payment" see Section 4.06.
"Requirement of Law" shall mean as to any Person, the Certificate
of Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its Property or to which such Person or
any of its Property is subject.
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"Reserve Requirement" shall mean, for any Interest Period for any
LIBOR Loan, the average maximum rate at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained during such
Interest Period under Regulation D by member banks of the United States Federal
Reserve System in New York City with deposits exceeding one billion Dollars
against "Eurocurrency liabilities" (as such term is used in Regulation D).
"Reset Date" see the definition of Applicable Margin.
"Responsible Officer" shall mean the chief executive officer of
Borrower and the president of Borrower (if not the chief executive officer) and,
with respect to financial matters, the chief financial officer of Borrower.
"Revolving Credit Commitment" shall mean, for each Revolving
Credit Lender, the obligation of such Lender to make Revolving Credit Loans in
an aggregate principal amount at any one time outstanding up to but not
exceeding the amount set opposite the name of such Lender on Annex A under the
caption "Revolving Credit Commitment" (as the same may be reduced from time to
time pursuant to Section 2.04 or changed pursuant to Section 12.06(b)). The
initial aggregate principal amount of the Revolving Credit Commitments is $150.0
million.
"Revolving Credit Commitment Percentage" shall mean, with respect
to any Revolving Credit Lender, the ratio of (a) the amount of the Revolving
Credit Commitment of such Lender to (b) the aggregate amount of the Revolving
Credit Commitments of all of the Lenders.
"Revolving Credit Commitment Termination Date" shall mean
November 30, 2006. If the Revolving Credit Commitments are increased pursuant to
Section 2.01(f), the Revolving Credit Commitment Termination Date with respect
to such increased portion may be extended by the Lenders agreeing to provide
such increase beyond the date specified in the preceding sentence.
"Revolving Credit Commitments" shall mean the aggregate sum of
the Revolving Credit Commitments of all Revolving Credit Lenders.
"Revolving Credit Facility" shall mean the credit facility
comprising the Revolving Credit Commitment of all of the Revolving Credit
Lenders.
"Revolving Credit Lenders" shall mean (a) on the date hereof, the
Lenders having Revolving Credit Commitments on the signature pages hereof and
(b) thereafter, the Lenders from time to time holding Revolving Credit Loans and
Revolving Credit Commitments after giving effect to any assignments thereof
permitted by Section 12.06(b).
"Revolving Credit Loans" see Section 2.01(a).
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"Revolving Credit Notes" shall mean the promissory notes provided
for by Section 2.08(a) and all promissory notes delivered in substitution or
exchange therefor, in each case as the same shall be modified and supplemented
and in effect from time to time.
"RSA" shall mean any "rural service area" as defined and modified
by the FCC for the purpose of licensing public cellular radio telecommunications
service systems.
"Sale and Leaseback Transaction" shall mean any arrangement,
directly or indirectly, with any Person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred.
"Security Agreement" shall mean a Security Agreement
substantially in the form of Exhibit D among the Obligors and Administrative
Agent, as the same may be amended in accordance with the terms thereof and
hereof or such other agreements reasonably acceptable to Administrative Agent as
shall be necessary to comply with applicable Requirements of Law and effective
to grant to Administrative Agent (on behalf of the Creditors) a perfected first
priority security interest in the Pledged Collateral covered thereby.
"Security Documents" shall mean the Security Agreement, the
Mortgages (if any), the Collateral Assignment of Location Agreements and each
other security document or pledge agreement required by applicable local law to
grant a valid, perfected security interest in any Property acquired or developed
pursuant to a Permitted Acquisition, and all UCC or other financing statements
or instruments of perfection required by this Agreement, the Security Agreement
or any Mortgage to be filed with respect to the security interests in Property
and fixtures created pursuant to the Security Agreement or any Mortgage and any
other document or instrument utilized to pledge as collateral for the
Obligations any Property of whatever kind or nature.
"Senior Debt" shall mean, at any date, Total Debt other than
Subordinated Debt.
"Senior Leverage Ratio" shall mean, for any Test Date, the ratio
of (x) Senior Debt at such Test Date to (y) Operating Cash Flow for the four
fiscal quarters ending on such Test Date (or such shorter period as annualized
as specified in the last sentence of the definition of Operating Cash Flow).
"Senior Managing Agent" see the recitals hereto.
"Senior Subordinated Notes" shall mean the 10 3/4% Senior
Subordinated Notes due 2008 of Borrower in an aggregate principal amount of
$370.0 million issued pursuant to the Senior Subordinated Notes Financing
Documents, including the senior subordinated notes issued pursuant to a
registered exchange offer (the "Exchange Offer") therefor made pursuant to the
registration rights agreement entered into in connection with the issuance
thereof on the date of issuance thereof (the "Exchange Notes").
"Senior Subordinated Notes Financing" shall mean the issuance and
sale of the Senior Subordinated Notes for gross proceeds (in excess of the
amount of interest in escrow pursuant to the Senior Subordinated Notes Interest
Escrow Agreement) of not less than $310.0 million.
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"Senior Subordinated Notes Financing Documents" shall mean the
Senior Subordinated Notes Indenture, the Senior Subordinated Notes Interest
Escrow Agreement and all other documents relating thereto and delivered to
Agents, as any such agreement or document may be amended and in effect from time
to time in accordance with its terms and this Agreement.
"Senior Subordinated Notes Indenture" shall mean the Indenture
dated December 14, 1998 pursuant to which the Senior Subordinated Notes were
(and the Exchange Notes will be) issued.
"Senior Subordinated Notes Interest Escrow Agreement" shall mean
that certain Pledge Escrow and Assignment Agreement dated as of December 14,
1998 between Borrower and The Chase Manhattan Bank, as trustee, pursuant to
which proceeds from the Senior Subordinated Notes sufficient to fund the first
three scheduled semi-annual interest payments will be held in escrow for the
benefit of the holders of the Senior Subordinated Notes.
"Senior Subordinated Notes Interest Trigger Date" shall mean the
earlier of (x) the third scheduled semi-annual interest payment date on the
Senior Subordinated Notes after the Closing Date or (y) the first date on which
cash interest is payable on any Permitted Refinancing of the Senior Subordinated
Notes (or any one or more refinancings thereof) other than from an interest
escrow arrangement on terms substantially identical to the terms of the Senior
Subordinated Notes Interest Escrow Agreement as in effect on the Closing Date.
"SMR System" shall mean a specialized mobile radio system
consisting of two-way radio service operating in the 800-900 megahertz band.
"Sold Minority Interests" see Section 9.10(c)(v).
"Solvent" and "Solvency" shall mean, for any Person on a
particular date, that on such date (a) the fair value of the Property of such
Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, 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 debts as they
become absolute and matured, (c) such Person does not intend to, and does not
believe that it will, incur debts and liabilities beyond such Person's ability
to pay as such debts and liabilities mature, (d) such Person is not engaged in a
business or a transaction, and is not about to engage in a business or a
transaction, for which such Person's Property would constitute an unreasonably
small capital and (e) such Person is able to pay its debts as they become due
and payable.
"Specified Wireless System Information" shall mean, for each
fiscal quarter or fiscal year, as the case may be, (i) the number of Cellular
System, PCS System, SMR System, LEC System, CAP System and paging system
subscribers at the beginning of such period, (ii) the number of gross new
Cellular System, PCS System, SMR System, LEC System, CAP System and paging
systems subscribers added and deactivated Cellular System, PLC System, SMR
System, LEC System, CAP System and paging system subscribers lost during such
period, (iii) the number of Cellular System, PCS System, SMR System, LEC System,
CAP System and paging system subscribers at the end of such period, (iv) Net
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Pops, (v) monthly churn (as such term is used in the cellular telecommunications
industry), and (vi) roaming revenues for the applicable period as a percentage
of total revenue for the same period.
"State PUC" shall mean any state public utility commission or any
other state commission, agency, department, board or authority with
responsibility for regulating intrastate and local telecommunications services.
"Statutes" see Section 8.22(e).
"Subordinated Debt" shall mean Indebtedness of any Company that
is contractually subordinated to any other Indebtedness of such Company. No
Indebtedness shall be subordinate to any other Indebtedness solely by virtue of
such other Indebtedness being secured and such Indebtedness not being secured by
the same collateral.
"Subsidiary" shall mean, 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 clearly requires
otherwise, all references to any Subsidiary shall mean a Subsidiary of Borrower.
All references to any Subsidiary of Borrower shall include all those Persons
which become Subsidiaries of Borrower upon consummation of the Merger and at any
time thereafter.
"Supermajority Lenders" shall mean (i) at any time prior to the
Closing Date, Lenders holding at least two-thirds of the aggregate amount of the
Commitments and (ii) at any time after the Closing Date, Lenders holding at
least two-thirds of the sum of (without duplication) (a) the aggregate principal
amount of outstanding Loans (other than Swing Loans), plus (b) the aggregate
amount of all Letter of Credit Liabilities, plus (c) the aggregate unused amount
of Unutilized Revolving Credit Commitments then in effect, plus (d) in the case
of the Swing Loan Lender only, the aggregate amount of the Swing Loans then
outstanding.
"Supermajority Lenders of the Affected Class" shall mean (i) at
any time prior to the Closing Date, Lenders holding at least two-thirds of the
aggregate amount of the Commitments of the applicable tranche of Term Loan
Commitments which would be affected by any modification, supplement or waiver
contemplated by clause (f) to the proviso to Section 12.04(i), and (ii) at any
time after the Closing Date, Lenders holding at least two-thirds of the sum of
the aggregate amount of the outstanding Loans of the applicable tranche of Term
Loans which would be affected by any modification, supplement or waiver
contemplated by clause (f) to the proviso to Section 12.04(i).
"Supplemental Indentures" shall mean (i) the Third Supplemental
Indenture dated as of January 7, 1999, to the applicable Existing Indenture,
dated as of November 15, 1993 and the First Supplemental Indenture, dated as of
November 15, 1993, between Target and Bank of Montreal Trust Company and (ii)
the Fourth Supplemental Indenture, dated as of January 7, 1999, to the
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applicable Existing Indenture, dated as of November 13, 1993 and the Second
Supplemental Indenture, dated as of May 11, 1995 between Target and Bank of
Montreal Trust Company.
"Surety Instruments" shall mean all letters of credit (including
standby and commercial), bankers' acceptances, bank guarantees, surety bonds and
similar instruments.
"Survey" shall mean a survey of any Mortgaged Real Property (and
all improvements thereon): (i) prepared by a surveyor or engineer licensed to
perform surveys in the state, province or country where such Mortgaged Real
Property is located, (ii) dated (or redated) not earlier than 6 months prior to
the date of delivery thereof unless there shall have occurred after the date of
such survey any exterior construction on the site of such Mortgaged Real
Property, in which event such survey shall be dated (or redated) after the
completion of such construction or, if such construction shall not have been
completed as of such date of delivery, not earlier than 20 days prior to such
date of delivery, (iii) certified by the surveyor (in a manner acceptable to
Administrative Agent) to Administrative Agent and (iv) complying in all respects
with Requirements of Law.
"Swap Contract" shall mean any agreement entered into in the
ordinary course of business or in accordance with Borrower's business plan (as a
bona fide hedge and not for speculative purposes) (including any master
agreement and any agreement, whether or not in writing, relating to any single
transaction) that is an interest rate swap agreement, basis swap, forward rate
agreement, commodity swap, commodity option, equity or equity index swap or
option, bond option, interest rate option, foreign exchange agreement, rate cap,
collar or floor agreement, currency swap agreement, cross-currency rate swap
agreement, swaption, currency option or any other similar agreement (including
any option to enter into any of the foregoing) and is designed to protect the
Obligors against fluctuations in interest rates, currency exchange rates, or
similar risks (including any Interest Rate Protection Agreement entered into
pursuant to Section 9.18).
"Swing Loan Commitment" shall mean the obligation of the Swing
Loan Lender to make or continue Swing Loans hereunder in an aggregate principal
amount up to but not exceeding $30.0 million, as the same may be reduced or
terminated pursuant to Section 2.04 or Section 10, it being understood that the
Swing Loan Commitment is part of the Revolving Credit Commitment of the Swing
Loan Lender, rather than a separate, independent commitment.
"Swing Loan Lender" shall mean NationsBank, N.A. and its
successors and assigns in such capacity.
"Swing Loan Maturity Date" shall mean the Revolving Credit
Commitment Termination Date.
"Swing Loan Notes" shall mean the promissory notes made by
Borrower and PR Borrower evidencing the Swing Loans, in the form of Exhibit A-5.
"Swing Loans" see Section 2.01(g).
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"Syndication Agent" see the introduction hereto.
"Target" shall mean Centennial Cellular Corp., a Delaware
corporation.
"Target Balance Sheet" shall mean the balance sheet of Target as
of May 31, 1998 included on the Form 10-K for the fiscal year of Target ended
May 31, 1998 filed by Target with the Commission.
"Tax Returns" see Section 8.09.
"Taxes" shall mean any and all taxes, imposts, duties, charges,
fees, levies or other charges or assessments of whatever nature, including
income, gross receipts, excise, real or personal property, sales, withholding,
social security, retirement, unemployment, occupation, use, service, license,
net worth, payroll, franchise, and transfer and recording, imposed by the
Internal Revenue Service or any taxing authority (whether domestic or foreign,
including any federal, state, U.S. possession, county, local or foreign
government or any subdivision or taxing agency thereof), whether computed on a
separate, consolidated, unitary, combined or any other basis, including
interest, fines, penalties or additions to tax attributable to or imposed on or
with respect to any such taxes, charges, fees, levies or other assessments.
"Term Loan Commitments" shall mean the Tranche A Term Loan
Commitments, the Tranche A-PR Term Loan Commitments, the Tranche B Term Loan
Commitments and the Tranche C Term Loan Commitments, collectively.
"Term Loan Facilities" shall mean the credit facilities
comprising the Term Loan Commitments of all of the Term Loan Lenders.
"Term Loan Lenders" shall mean the Tranche A Term Loan Lenders,
the Tranche A-PR Term Loan Lenders, the Tranche B Term Loan Lenders and the
Tranche C Term Loan Lenders, collectively.
"Term Loan Notes" shall mean the Tranche A Term Loan Notes, the
Tranche A-PR Term Loan Notes, the Tranche B Term Loan Notes and the Tranche C
Term Loan Notes, collectively.
"Term Loan Tranches" shall mean the Term Loans outstanding under
the Tranche A Term Loans, the Tranche A-PR Term Loans, the Tranche B Term Loans
and the Tranche C Term Loans, collectively, and "Term Loan Tranche" shall mean
any of them.
"Term Loans" shall mean the Tranche A Term Loans, the Tranche
A-PR Term Loans, the Tranche B Term Loans and the Tranche C Term Loans,
collectively.
"Test Date" shall mean, for any Financial Maintenance Covenant,
the last day of each fiscal quarter of Borrower included within any period set
forth in the table for such Financial Maintenance Covenant, except that for
purposes of determining compliance with Section 7.01(xviii), Operating Cash Flow
shall be calculated based on the fiscal quarter most recently ended prior to the
Closing Date for which financial statements have been delivered to Agents and
the Lenders. Compliance with the Financial Maintenance Covenants shall be
tested, as of each Test Date, on the date on which financial statements pursuant
to Section 9.01(a) or (b) have been, or should have been, delivered for the
applicable fiscal period.
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"Title Company" shall mean First American Title Insurance Company
or such other title insurance or abstract company as shall be designated by
Administrative Agent.
"Total Debt" shall mean, at any date, the aggregate amount of
Indebtedness of Borrower and its Consolidated Subsidiaries as of such date
determined on a consolidated basis in accordance with GAAP, net of (A) up to
$30.0 million in cash held by Borrower or any Qualified Subsidiary not in the
Collateral Account and (B) all cash held in the Collateral Account at such date
that resulted from any Disposition of any Cellular System, PCS System, SMR
System, LEC System, CAP System or paging system of Borrower or any Subsidiary,
and, prior to the Senior Subordinated Notes Interest Trigger Date, net of the
cash held in the Senior Subordinated Notes Interest Escrow Agreement.
"Total Leverage Ratio" shall mean, for any Test Date, the ratio
of (x) the sum (without duplication) of (1) Total Debt at such Test Date, plus
(2) if the Additional Senior Subordinated Notes were issued by any direct or
indirect parent of Borrower and if such date is on or after the Senior
Subordinated Notes Interest Trigger Date (or such later date as the interest
escrow account in respect thereof is depleted), the aggregate principal amount
of Additional Senior Subordinated Notes outstanding on such date, plus (3) if
any Disposition has been effected of any Minority Interest set forth on Schedule
8.14 and the Net Available Proceeds therefrom have not as of such Test Date been
applied to the prepayment of the Loans, an aggregate principal amount of the
Parent Subordinated Notes equal to the amount of such Net Available Proceeds
(not to exceed the aggregate principal amount of the Parent Subordinated Notes
then outstanding), plus (4) if the Parent Refinanced Notes are issued and if
such date is on or after the Parent Refinanced Notes Interest Trigger Date, the
aggregate principal amount of Parent Refinanced Notes outstanding on such date
to (y) Operating Cash Flow for the four fiscal quarters ending on such Test Date
(or such shorter period as adjusted as set forth in definition of Operating Cash
Flow).
"Tranche A Term Loan Commitment" shall mean, for each Tranche A
Term Loan Lender, the obligation of such Lender to make a Tranche A Term Loan in
an amount up to but not exceeding the amount set opposite the name of such
Lender on Annex A under the caption "Tranche A Term Loan Commitment" (as the
same may be changed pursuant to Section 12.06(b)).
"Tranche A Term Loan Commitments" shall mean the aggregate sum of
the Tranche A Term Loan Commitment of all the Lenders. The initial aggregate
principal amount of the Tranche A Term Loan Commitments is $325.0 million.
"Tranche A Term Loan Lenders" shall mean (a) on the date hereof,
the Lenders having Tranche A Term Loan Commitments on the signature pages
hereof, and (b) thereafter, the Lenders from time to time holding Tranche A Term
Loans and Tranche A Term Loan Commitments after giving effect to any assignments
thereof permitted by Section 12.06(b).
"Tranche A Term Loan Notes" shall mean the promissory notes
provided for by Section 2.08(a)(ii) and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
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"Tranche A Term Loans" shall mean the loans provided for by
Section 2.01(b), which may be ABR Loans and/or LIBOR Loans.
"Tranche A-PR Term Loan Commitment" shall mean, for each Tranche
A-PR Term Loan Lender, the obligation of such Lender to make a Tranche A-PR Term
Loan in an amount up to but not exceeding the amount set opposite the name of
such Lender on Annex A under the caption "Tranche A-PR Term Loan Commitment" (as
the same may be changed pursuant to Section 12.06(b)).
"Tranche A-PR Term Loan Commitments" shall mean the aggregate sum
of the Tranche A-PR Term Loan Commitment of all the Lenders. The initial
aggregate principal amount of the Tranche A-PR Term Loan Commitments is $125.0
million.
"Tranche A-PR Term Loan Lenders" shall mean (a) on the date
hereof, the Lenders having Tranche A-PR Term Loan Commitments on the signature
pages hereof, and (b) thereafter, the Lenders from time to time holding Tranche
A-PR Term Loans and Tranche A-PR Term Loan Commitments after giving effect to
any assignments thereof permitted by Section 12.06(b).
"Tranche A-PR Term Loan Notes" shall mean the promissory notes
provided for by Section 2.08(a)(iii) and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
"Tranche A-PR Term Loans" shall mean the loans provided for by
Section 2.01(b), which may be ABR Loans and/or LIBOR Loans.
"Tranche B Term Loan Commitment" shall mean, for each Tranche B
Term Loan Lender, the obligation of such Lender to make a Tranche B Term Loan in
an amount up to but not exceeding the amount set opposite the name of such
Lender on Annex A under the caption "Tranche B Term Loan Commitment" (as the
same may be changed pursuant to Section 12.06(b)).
"Tranche B Term Loan Commitments" shall mean the aggregate sum of
the Tranche B Term Loan Commitment of all the Lenders. The initial aggregate
principal amount of the Tranche B Term Loan Commitments is $225.0 million.
"Tranche B Term Loan Lenders" shall mean (a) on the date hereof,
the Lenders having Tranche B Term Loan Commitments on the signature pages
hereof, and (b) thereafter, the Lenders from time to time holding Tranche B Term
Loans and Tranche B Term Loan Commitments after giving effect to any assignments
thereof permitted by Section 12.06(b).
"Tranche B Term Loan Notes" shall mean the promissory notes
provided for by Section 2.08(a)(iv) and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
"Tranche B Term Loans" shall mean the loans provided for by
Section 2.01(c), which may be ABR Loans and/or LIBOR Loans.
"Tranche C Term Loan Commitment" shall mean, for each Tranche C
Term Loan Lender, the obligation of such Lender to make a Tranche C Term Loan in
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an amount up to but not exceeding the amount set opposite the name of such
Lender on Annex A under the caption "Tranche C Term Loan Commitment" (as the
same may be changed pursuant to Section 12.06(b)).
"Tranche C Term Loan Commitments" shall mean the aggregate sum of
the Tranche C Term Loan Commitment of all the Lenders. The initial aggregate
principal amount of the Tranche C Term Loan Commitments is $225.0 million.
"Tranche C Term Loan Lenders" shall mean (a) on the date hereof,
the Lenders having Tranche C Term Loan Commitments on the signature pages
hereof, and (b) thereafter, the Lenders from time to time holding Tranche C Term
Loans and Tranche C Term Loan Commitments after giving effect to any assignments
thereof permitted by Section 12.06(b).
"Tranche C Term Loan Notes" shall mean the promissory notes
provided for by Section 2.08(a)(v) and all promissory notes delivered in
substitution or exchange therefor, in each case as the same shall be modified
and supplemented and in effect from time to time.
"Tranche C Term Loans" shall mean the loans provided for by
Section 2.01(d), which may be ABR Loans and/or LIBOR Loans.
"Transaction Documents" shall mean the Merger Agreement, the
Parent Financing Documents, the Senior Subordinated Notes Financing Documents,
this Agreement, all documents relating to the Note Tender and the Note
Defeasance and all documents related thereto and all exhibits, appendices,
schedules and annexes to any thereof.
"Transactions" shall mean the Merger, the Recapitalization, the
Parent Financing, the Senior Subordinated Notes Financing, the Note Tender, the
Note Defeasance (if any), the Existing Credit Facilities Repayment and the
borrowings hereunder on the Closing Date.
"Type" see Section 1.03.
"UCC" shall mean the Uniform Commercial Code as in effect in the
applicable state, Puerto Rico or other jurisdiction.
"Unutilized Revolving Credit Commitment" shall mean, for any
Revolving Credit Lender, at any time, the excess of such Lender's Revolving
Credit Commitment at such time over the sum of (i) the aggregate outstanding
principal amount of Revolving Credit Loans made by such Lender, (ii) such
Lender's Revolving Credit Commitment Percentage of the aggregate amount of
Letter of Credit Liabilities at such time and (iii) with respect to the Swing
Loan Lender only, the aggregate principal amount of Swing Loans then
outstanding.
"Virgin Islands" shall mean the United States Virgin Islands.
"WCAS" shall mean Welsh, Carson, Anderson & Stowe VIII, L.P.
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"Wholly Owned Subsidiary" shall mean, with respect to any Person,
any corporation, partnership or other entity of which all of the Equity
Interests (other than, in the case of a corporation, directors' qualifying
shares or nominee shares required under applicable law) 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. Unless the context clearly requires otherwise, all
references to any Wholly Owned Subsidiary shall mean a Wholly Owned Subsidiary
of Borrower. ["Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part 1 of Subtitle E of Title IV of ERISA.]
"Working Capital" shall mean an amount determined for Borrower
and the Consolidated Subsidiaries equal to the sum of all current assets (other
than cash and Permitted Investments) less the sum of all current liabilities
(other than the current portion of long-term Indebtedness).
1.02. Accounting Terms and Determinations. Except as otherwise
provided in this Agreement, all computations and determinations as to accounting
or financial matters (including financial covenants) shall be made in accordance
with GAAP consistently applied for all applicable periods, and all accounting or
financial terms shall have the meanings ascribed to such terms by GAAP. All
financial statements to be delivered pursuant to this Agreement shall be
prepared in accordance with GAAP.
1.03. Classes and Types of Loans. Loans hereunder are
distinguished by "Class" and by "Type". The "Class" of a Loan (or of a
Commitment to make a Loan) refers to whether such Loan is a Revolving Credit
Loan, Swing Loan, Tranche A Term Loan, Tranche A-PR Term Loan, Tranche B Term
Loan or Tranche C Term Loan, each of which constitutes a Class. The "Type" of a
Loan refers to whether such Loan is an ABR Loan or a LIBOR Loan, each of which
constitutes a Type. Loans may be identified by both Class and Type.
1.04. Rules of Construction. (a) In this Agreement and each other
Credit Document, unless the context clearly requires otherwise (or such other
Credit Document clearly provides otherwise), references to (i) the plural
include the singular, the singular include the plural and the part include the
whole; (ii) Persons include their respective permitted successors and assigns
or, in the case of governmental Persons, Persons succeeding to the relevant
functions of such Persons; (iii) agreements (including this Agreement),
promissory notes and other contractual instruments include subsequent
amendments, assignments, and other modifications thereto, but only to the extent
such amendments, assignments or other modifications thereto are not prohibited
by their terms or the terms of any Credit Document; (iv) statutes and related
regulations include any amendments of the same and any successor statutes and
regulations; and (v) time shall be a reference to New York City time. Where any
provision herein refers to action to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such Person.
(b) In this Agreement and each other Credit Document, unless the
context clearly requires otherwise (or such other Credit Document clearly
provides otherwise), (i) "amend" shall mean "amend, restate, amend and restate,
supplement or modify"; and "amended," "amending," and "amendment" shall have
meanings correlative to the foregoing; (ii) in the computation of periods of
time from a specified date to a later specified date, "from" shall mean "from
and including"; "to" and "until" shall mean "to but excluding"; and "through"
shall mean "to and including"; (iii) "hereof," "herein" and "hereunder" (and
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similar terms) in this Agreement or any other Credit Document refer to this
Agreement or such other Credit Document, as the case may be, as a whole and not
to any particular provision of this Agreement or such other Credit Document;
(iv) "including" (and similar terms) shall mean "including without limitation"
(and similarly for similar terms); (v) "or" has the inclusive meaning
represented by the phrase "and/or"; (vi) "satisfactory to" any Creditor shall
mean in form, scope and substance and on terms and conditions satisfactory to
such Creditor; (vii) references to "the date hereof" shall mean the date first
set forth above; and (viii) "asset" and "Property" shall have the same meaning
and effect and refer to all tangible and intangible assets and property, whether
real, personal or mixed and of every type and description.
(c) In this Agreement unless the context clearly requires
otherwise, any reference to (i) an Annex, Exhibit or Schedule is to an Annex,
Exhibit or Schedule, as the case may be, attached to this Agreement and
constituting a part hereof, and (ii) a Section or other subdivision is to a
Section or such other subdivision of this Agreement.
Section 2. Commitments, Letters of Credit, Fees, Register,
Prepayments and Replacement of Lenders.
2.01. Loans.
(a) Revolving Credit Loans. Each Revolving Credit Lender
severally agrees, on the terms and conditions of this Agreement, to make
revolving credit loans (the "Revolving Credit Loans") to Borrower and PR
Borrower in Dollars during the period from and including the Closing Date to but
not including the Revolving Credit Commitment Termination Date in an aggregate
principal amount at any one time outstanding not exceeding the amount of the
Revolving Credit Commitment of such Lender as in effect from time to time;
provided, however, that (i) not more than $65.0 million of Revolving Credit
Loans may be drawn on the Closing Date, (ii) in no event shall the sum of the
aggregate principal amount of (without duplication) all Revolving Credit Loans
then outstanding, plus the aggregate principal amount of Swing Loans then
outstanding, plus the aggregate amount of all Letter of Credit Liabilities at
any time exceed the aggregate amount of the Revolving Credit Commitments as in
effect at such time, and (iii) PR Borrower may not borrow more than $60.0
million of Revolving Credit Loans at any one time outstanding (such $60.0
million to be reduced in the same proportion and at the same time as the
Revolving Credit Commitments are reduced pursuant to Section 2.04(a)(ii) and
Section 2.04(b)). Subject to the terms and conditions of this Agreement, during
such period Borrower or PR Borrower, as the case may be, may borrow, repay and
reborrow the amount of the Revolving Credit Commitments by means of ABR Loans
and LIBOR Loans and may Convert Revolving Credit Loans of one Type into
Revolving Credit Loans of another Type (as provided in Section 2.09) or Continue
Revolving Credit Loans of one Type as Revolving Credit Loans of the same Type
(as provided in Section 2.09).(b) (1) Tranche A Term Loans. Each Tranche A Term
Loan Lender severally agrees, on the terms and conditions of this Agreement, to
make a term loan to Borrower in Dollars on the Closing Date in an aggregate
principal amount equal to the Tranche A Term Loan Commitment of such Lender,
such loan to be used to finance the Transactions and to pay related fees and
expenses. Subject to the terms and conditions of this Agreement, thereafter
Borrower may Convert Tranche A Term Loans of one Type into Tranche A Term Loans
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of another Type (as provided in Section 2.09) or Continue Tranche A Term Loans
of one Type as Tranche A Term Loans of the same Type (as provided in Section
2.09).
Tranche A Term Loans that are repaid or prepaid may not be
reborrowed.
(b) Tranche A-PR Term Loans. Each Tranche A-PR Term Loan Lender
severally agrees, on the terms and conditions of this Agreement, to make a term
loan to PR Borrower in Dollars on the Closing Date in an aggregate principal
amount equal to the Tranche A-PR Term Loan Commitment of such Lender, such loan
to be used to finance the Transactions and to pay related fees and expenses.
Subject to the terms and conditions of this Agreement, thereafter PR Borrower
may Convert Tranche A-PR Term Loans of one Type into Tranche A-PR Term Loans of
another Type (as provided in Section 2.09) or Continue Tranche A-PR Term Loans
of one Type as Tranche A-PR Term Loans of the same Type (as provided in Section
2.09).
Tranche A-PR Term Loans that are repaid or prepaid may not be
reborrowed.
(c) Tranche B Term Loans. Each Tranche B Term Loan Lender
severally agrees, on the terms and conditions of this Agreement, to make a term
loan to Borrower in Dollars on the Closing Date in an aggregate principal amount
equal to the Tranche B Term Loan Commitment of such Lender, such loan to be used
to finance the Transactions and to pay related fees and expenses. Subject to the
terms and conditions of this Agreement, thereafter Borrower may Convert Tranche
B Term Loans of one Type into Tranche B Term Loans of another Type (as provided
in Section 2.09) or Continue Tranche B Term Loans of one Type as Tranche B Term
Loans of the same Type (as provided in Section 2.09).
Tranche B Term Loans that are repaid or prepaid may not be
reborrowed.
(d) Tranche C Term Loans. Each Tranche C Term Loan Lender
severally agrees, on the terms and conditions of this Agreement, to make a term
loan to Borrower in Dollars on the Closing Date in an aggregate principal amount
equal to the Tranche C Term Loan Commitment of such Lender, such loan to be used
to finance the Transactions and to pay related fees and expenses. Subject to the
terms and conditions of this Agreement, thereafter Borrower may Convert Tranche
C Term Loans of one Type into Tranche C Term Loans of another Type (as provided
in Section 2.09) or Continue Tranche C Term Loans of one Type as Tranche C Term
Loans of the same Type (as provided in Section 2.09).
Tranche C Term Loans that are repaid or prepaid may not be
reborrowed.
(e) Limit on LIBOR Loans. No more than seven separate Interest
Periods in respect of LIBOR Loans of any Class may be outstanding at any one
time.
(f) Increased Facility Amount. After the Closing Date, Borrower
may request that any of the Lenders (or to the extent that the existing Lenders
have not agreed within 20 days to provide the Increased Facility Amount
described herein, new Lenders ("New Lenders") acceptable to Lead Arranger) agree
to increase the amount of the Commitments to make extensions of credit hereunder
by up to $150.0 million, which amount shall be allocated among the Revolving
Credit Facility and the Term Loan Facilities or one or more new term loan
facilities in amounts and with maturities (including any extended maturity (in
the sole discretion of Agents) for such portion thereof allocated to the
Revolving Credit Facility) acceptable to Agents in their sole discretion and
having terms and provisions no more onerous than those contained in
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the Credit Documents; provided, however, that at the time of the effectiveness
of such increase in the credit facilities hereunder, (x) no Default or Event of
Default shall have occurred and be continuing or would arise therefrom and (y)
Borrower shall have delivered a compliance certificate and financial statements
in respect of the first full fiscal quarter after the Delivery Date (the
increase above, the "Increased Facility Amount"). No Agent or Lender shall have
any obligation or liability whatsoever to any Company or any other Person with
respect to the approval of any Increased Facility Amount or for any refusal to
approve, negotiate or consider any such proposal or for any act or omission
related thereto. Notwithstanding Section 12.04, Borrower, Lead Arranger and
Administrative Agent may make conforming and other necessary changes to the
Credit Documents in order to integrate any Increased Facility Amount into the
Credit Documents (including to secure the Increased Facility Amount).
(g) Swing Loans. Subject to the terms and conditions of this
Agreement, upon request of Borrower or PR Borrower, the Swing Loan Lender agrees
to make one or more Swing Loans to Borrower and/or PR Borrower from time to time
from and including the Closing Date to but excluding the Swing Loan Maturity
Date, up to but not exceeding the amount of the Swing Loan Lender's Swing Loan
Commitment as then in effect. (Such Swing Loans referred to in this Section
2.01(g) now or hereafter made by the Swing Loan Lender to Borrower and/or PR
Borrower from and including and after the Closing Date are hereinafter
collectively called the "Swing Loans.") Prior to the Swing Loan Maturity Date,
Borrower and/or PR Borrower may borrow, repay and reborrow Swing Loans up to the
Swing Loan Commitment in accordance with the terms of this Agreement. The Swing
Loan Lender shall not make any Swing Loans on or after the Swing Loan Maturity
Date. Notwithstanding anything to the contrary contained in this Section 2.01(g)
or elsewhere in this Agreement, the Swing Loan Lender shall not be obligated,
pursuant to this Section 2.01(g) or otherwise, to make any Swing Loan to or for
the account of Borrower and/or PR Borrower, and Borrower and or PR Borrower
shall not be entitled to borrow, pursuant to this Section 2.01(g), if, after
giving full effect to the requested Swing Loan, the aggregate outstanding amount
of Revolving Credit Loans, plus the aggregate outstanding amount of Swing Loans,
plus the aggregate outstanding Letter of Credit Liabilities would exceed the
aggregate amount of the Revolving Credit Commitments as in effect at such time.
Notwithstanding anything herein or elsewhere to the contrary, the Swing Loans
will be made and maintained only as ABR Loans. The Swing Loan Lender shall not
make any Swing Loan after receiving a written notice from Borrower, PR Borrower
or the Majority Revolving Credit Lenders stating that a Default exists and is
continuing until such time as the Swing Loan Lender shall have received written
notice of (i) rescission of all such notices from the party or parties
originally delivering such notice, (ii) the waiver of such Default by the
Majority Lenders, or (iii) Administrative Agent's good faith determination that
such Default has ceased to exist. Swing Loans shall be made in minimum amounts
of $500,000 and integral multiples of $500,000 above such amount.
Upon the occurrence of a Default, each Revolving Credit Lender
shall be deemed to have purchased (and each Revolving Credit Lender hereby
irrevocably agrees to purchase on a pro rata basis (based upon each Revolving
Credit Lender's Revolving Credit Commitment)) an irrevocable participation in
all outstanding Swing Loans, together with all accrued interest thereon, without
any further action by or on behalf of the Swing Loan Lender, any other Lender,
Borrower, PR Borrower or any other Person. Upon one Business Day's notice from
the Swing Loan Lender, each other Revolving Credit Lender shall deliver to the
Swing Loan Lender an amount equal to its respective participation in such Swing
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Loan (as determined)pursuant to the immediately preceding sentence) in
immediately available funds. In order to evidence such participation, each
Revolving Credit Lender agrees to enter into a participation agreement at the
request of the Swing Loan Lender in form and substance satisfactory to the Swing
Loan Lender and the Revolving Credit Lender. If any Revolving Credit Lender
fails to make available to the Swing Loan Lender the amount of such Revolving
Credit Lender's participation as provided in this paragraph, the Swing Loan
Lender shall be entitled to recover such amount on demand from such Revolving
Credit Lender, together with interest thereon at the Federal Funds Rate until
such amount is paid in full in immediately available funds. In the event the
Swing Loan Lender receives a payment from Borrower, PR Borrower or any other
Obligor of any amount in which the Revolving Credit Lenders have purchased
participations as provided in this paragraph, the Swing Loan Lender shall
promptly distribute to each Revolving Credit Lender its pro rata share of such
payment. Anything contained in this Agreement or otherwise to the contrary
notwithstanding, (A) each Revolving Credit Lender's obligation to purchase a
participation in each unpaid Swing Loan shall be absolute and unconditional and
shall not be affected by any circumstances, including, without limitation, (1)
any setoff, counterclaim, recoupment, defense or other right which such
Revolving Credit Lender may now or hereafter have against the Swing Loan Lender,
Borrower, PR Borrower or any other Person for any reason whatsoever, (2) the
occurrence or continuation of a Default or an Event of Default, (3) any material
adverse change in the condition of Borrower, PR Borrower or any Subsidiary, (4)
any breach or default of this Agreement or any of the Security Documents by any
Person other than a material breach of the provisions of this Section 2.01(g) by
the Swing Loan Lender or (5) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing, and (B) the Swing
Loan Lender shall not have any obligation to make any Swing Loans if (1)
Borrower or PR Borrower, as applicable, fails for whatever reason to satisfy any
of the conditions precedent set forth in Section 7.02 or (2) any Revolving
Credit Lender fails for whatever reason to comply with its obligations under
this Section 2.01(g).
2.02. Borrowings. Borrower or PR Borrower, as the case may be,
shall give Administrative Agent notice of each borrowing hereunder as provided
in Section 4.05. The form of such notice of borrowing shall be substantially in
the form of Exhibit G. Not later than 12:00 noon New York City time on the date
specified for each borrowing hereunder, each Lender shall make available the
amount of the Loan or Loans to be made by it on such date to Administrative
Agent, at an account specified by Administrative Agent maintained at the
Principal Office, in immediately available funds, for the account of Borrower or
PR Borrower, as applicable. Each borrowing of Revolving Credit Loans shall be
made by each Revolving Credit Lender pro rata based on such Lender's Revolving
Credit Commitment Percentage. The amounts so received by Administrative Agent
shall, subject to the terms and conditions of this Agreement, be made available
to Borrower or PR Borrower, as applicable, by depositing the same, in
immediately available funds, in an account of Borrower or PR Borrower, as
applicable, maintained with Administrative Agent at the Principal Office
designated by Borrower or PR Borrower, as applicable.
2.03. Letters of Credit. Subject to the terms and conditions
hereof, the Revolving Credit Commitments may be utilized, upon the request of
Borrower, in addition to the Revolving Credit Loans provided for by Section
2.01(a), for standby and commercial documentary letters of credit (herein
collectively called "Letters of Credit") issued by the Issuing Lender for the
account of Borrower or any Subsidiary which is an Obligor (provided, that
Borrower shall be a co-applicant (and jointly and severally liable) with respect
to each Letter of Credit issued for the account of any such Subsidiary);
provided, however, that in no event shall (i) the aggregate amount of all Letter
of Credit Liabilities, plus the aggregate principal amount of the Revolving
Credit Loans then outstanding, plus the aggregate principal amount of Swing
Loans then outstanding exceed at any time the Revolving Credit Commitments as in
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effect at such time, (ii) the sum of the aggregate principal amount of Revolving
Credit Loans then outstanding made by any Revolving Credit Lender, plus such
Lender's pro rata share (based on the Revolving Credit Commitments) of the
aggregate principal amount of Swing Loans then outstanding, plus such Lender's
pro rata share (based on the Revolving Credit Commitments) of the aggregate
amount of all Letter of Credit Liabilities exceed such Lender's Revolving Credit
Commitment as in effect at such time, (iii) the outstanding aggregate amount of
all Letter of Credit Liabilities exceed $25.0 million, (iv) the face amount of
any Letter of Credit be less than $500,000, (v) the expiration date of any
Letter of Credit extend beyond the earlier of (x) the fifth Business Day
preceding the Revolving Credit Commitment Termination Date and (y) the date
twelve months following the date of such issuance for standby Letters of Credit
or 180 days after the date of such issuance for commercial documentary Letters
of Credit, unless the Majority Revolving Credit Lenders have approved such
expiry date in writing (but never beyond the fifth Business Day prior to the
Revolving Credit Commitment Termination Date); provided, however, that any
standby Letter of Credit may be automatically extendible for periods of up to
one year (but never beyond the fifth Business Day preceding the Revolving Credit
Commitment Termination Date) so long as such Letter of Credit provides that the
Issuing Lender retains an option satisfactory to the Issuing Lender to terminate
such Letter of Credit prior to each extension date, unless all of the Revolving
Credit Lenders have approved such expiry date in writing, or (vi) the Issuing
Lender issue any Letter of Credit after it has received notice from Borrower or
the Majority Revolving Credit Lenders stating that a Default exists until such
time as the Issuing Lender shall have received written notice of (x) rescission
of such notice from the Majority Revolving Credit Lenders, (y) waiver of such
Default in accordance with this Agreement or (z) Administrative Agent's good
faith determination that such Default has ceased to exist. The following
additional provisions shall apply to Letters of Credit:
(a) Borrower shall give Administrative Agent at least three
Business Days' irrevocable prior notice (effective upon receipt)
pursuant to a Letter of Credit application satisfactory to the Issuing
Lender specifying the date (which shall be no later than thirty days
preceding the Revolving Credit Termination Date) each Letter of Credit
is to be issued and describing in reasonable detail the proposed terms
of such Letter of Credit (including the beneficiary thereof)
(including whether such Letter of Credit is to be a commercial Letter
of Credit or a standby Letter of Credit). Upon receipt of any such
notice, Administrative Agent shall advise the Issuing Lender of the
contents thereof. Each Lender hereby authorizes the Issuing Lender to
issue, and perform its obligations under, Letters of Credit. Letters
of Credit shall be issued in accordance with the customary procedures
of the Issuing Lender, which may include an application for Letters of
Credit. The Issuing Lender may refuse to issue any Letter of Credit
the contents of which are not reasonably satisfactory to it. If there
is any conflict between the procedures required by the Issuing Lender
and this Agreement, this Agreement shall govern.
(b) On each day during the period commencing with the issuance by
the Issuing Lender of any Letter of Credit and until such Letter of
Credit shall have expired or been terminated, the Revolving Credit
Commitment of each Revolving Credit Lender shall be deemed to be
utilized for all purposes hereof in an amount equal to such Lender's
Revolving Credit Commitment Percentage of the then undrawn face amount
of such Letter of Credit. Each Revolving Credit Lender (other than the
Issuing Lender) agrees that, upon the issuance of any Letter of Credit
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hereunder, it shall automatically acquire a participation in the
Issuing Lender's liability under such Letter of Credit in an amount
equal to such Lender's Revolving Credit Commitment Percentage of such
liability, and each Revolving Credit Lender (other than the Issuing
Lender) thereby shall absolutely, unconditionally and irrevocably
assume, as primary obligor and not as surety, and shall be
unconditionally obligated to the Issuing Lender to pay and discharge
when due, its Revolving Credit Commitment Percentage of the Issuing
Lender's liability under such Letter of Credit. The Issuing Lender
shall be deemed to hold a Letter of Credit Liability in an amount
equal to its retained interest in the related Letter of Credit after
giving effect to such acquisition by the Revolving Credit Lenders
other than the Issuing Lender of their participation interests.
(c) Upon the making of any payment to the beneficiary of any
Letter of Credit, the Issuing Lender shall promptly notify Borrower
(through Administrative Agent) of the amount paid by the Issuing
Lender and the date on which payment was made to such beneficiary.
Borrower hereby unconditionally agrees to pay and reimburse the
Issuing Lender for the amount of payment under such Letter of Credit,
together with interest thereon at the Alternate Base Rate plus the
Applicable Margin applicable to Revolving Credit Loans from the date
payment was made to such beneficiary to the date on which payment is
due, not later than the next Business Day after the date on which
Borrower receives such notice from the Issuing Lender (or the second
Business Day thereafter if such notice is received on a date that is
not a Business Day or after 11:00 a.m. New York City time on a
Business Day). Any such payment due from Borrower and not paid on the
required date shall bear interest at rates specified in Section
3.02(b).
(d) Forthwith upon its receipt of a notice referred to in clause
(c) of this Section 2.03, Borrower shall advise the Issuing Lender
whether or not Borrower intends to borrow hereunder to finance its
obligation to reimburse the Issuing Lender for the amount of the
related demand for payment and, if it does, submit a notice of such
borrowing as provided in Section 4.05. In the event that Borrower
fails to so advise Administrative Agent, or if Borrower fails to
reimburse the Issuing Lender for a demand for payment under a Letter
of Credit by the next Business Day after the date of such notice,
Administrative Agent shall give each Revolving Credit Lender prompt
notice of the amount of the demand for payment, specifying such
Lender's Revolving Credit Commitment Percentage of the amount of the
related demand for payment.
(e) Each Revolving Credit Lender (other than the Issuing Lender)
shall pay to Administrative Agent for account of the Issuing Lender at
the Principal Office in Dollars and in immediately available funds,
the amount of such Lender's Revolving Credit Commitment Percentage of
any payment under a Letter of Credit upon not less than one Business
Day's notice by the Issuing Lender (through Administrative Agent) to
such Revolving Credit Lender requesting such payment and specifying
such amount. Subject to the proviso to the last paragraph of this
Section 2.03, each such Revolving Credit Lender's obligation to make
such payments to Administrative Agent for the account of the Issuing
Lender under this clause (e), and the Issuing Lender's right to
receive the same, shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including (i) the failure of
any other Revolving Credit Lender to make its payment under this
clause (e), (ii) the financial condition of Borrower or the existence
of any Default or (iii) the termination of the Commitments. Each such
payment to the Issuing Lender shall be made without any offset,
abatement, withholding or reduction whatsoever.
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(f) Upon the making of each payment by a Revolving Credit Lender
to the Issuing Lender pursuant to clause (e) above in respect of any
Letter of Credit, such Lender shall, automatically and without any
further action on the part of Administrative Agent, the Issuing Lender
or such Lender, acquire (i) a participation in an amount equal to such
payment in the Reimbursement Obligation owing to the Issuing Lender by
Borrower hereunder and under the Letter of Credit Documents relating
to such Letter of Credit and (ii) a participation in a percentage
equal to such Lender's Revolving Credit Commitment Percentage in any
interest or other amounts payable by Borrower hereunder and under such
Letter of Credit Documents in respect of such Reimbursement
Obligation. Upon receipt by the Issuing Lender from or for the account
of Borrower of any payment in respect of any Reimbursement Obligation
or any such interest or other amounts (including by way of setoff or
application of proceeds of any collateral security) the Issuing Lender
shall promptly pay to Administrative Agent for the account of each
Revolving Credit Lender which has satisfied its obligations under
clause (e) above, such Revolving Credit Lender's Revolving Credit
Commitment Percentage of such payment, each such payment by the
Issuing Lender to be made in the same money and funds in which
received by the Issuing Lender. In the event any payment received by
the Issuing Lender and so paid to the Revolving Credit Lenders
hereunder is rescinded or must otherwise be returned by the Issuing
Lender, each Revolving Credit Lender shall, upon the request of the
Issuing Lender (through Administrative Agent), repay to the Issuing
Lender (through Administrative Agent) the amount of such payment paid
to such Lender, with interest at the rate specified in clause (i) of
this Section 2.03.(g) Borrower shall pay to Administrative Agent for
the account of the Issuing Lender in respect of each Letter of Credit
a letter of credit commission in an amount (not less than $500) equal
to (x) the rate per annum equal to the Applicable Margin for Revolving
Credit Loans that are LIBOR Loans in effect from time to time,
multiplied by (y) the daily average undrawn face amount of such Letter
of Credit for the period from and including the date of issuance of
such Letter of Credit (i) in the case of a Letter of Credit which
expires in accordance with its terms, to and including such expiration
date and (ii) in the case of a Letter of Credit which is drawn in full
or is otherwise terminated other than on the stated expiration date of
such Letter of Credit, to but excluding the date such Letter of Credit
is drawn in full or is terminated, such fee to be non-refundable and
to be paid in arrears quarterly, on each Quarterly Date, and on the
earlier of the Revolving Credit Commitment Termination Date or the
date of the termination of the Revolving Credit Commitments or the
date of such termination, expiration or the Business Day subsequent to
notice of a drawing. The Issuing Lender shall pay to Administrative
Agent for the account of each Revolving Credit Lender (other than the
Issuing Lender), from time to time at reasonable intervals (but in any
event at least quarterly), but only to the extent actually received
from Borrower, an amount equal to such Lender's Revolving Credit
Commitment Percentage of all letter of credit commissions referred to
in the first sentence of this clause (g). In addition, Borrower shall
pay to Administrative Agent for account of the Issuing Lender only in
respect of each Letter of Credit a letter of credit issuance fee in an
amount equal to 0.125% per annum multiplied by the original face
amount from the issue date through the expiry date of such Letter of
Credit (but in no event less than $500 per Letter of Credit), such
amount to be payable on the date of issuance of such Letter of Credit,
plus all charges, costs and expenses in the amounts customarily
charged by the Issuing Lender from time to time in like circumstances
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with respect to the issuance, amendment or transfer of each Letter of
Credit and drawings and other transactions relating thereto.
(h) Promptly following the end of each calendar month, the
Issuing Lender shall deliver (through Administrative Agent) to each
Revolving Credit Lender and Borrower a notice describing the aggregate
amount of all Letters of Credit outstanding at the end of such month.
Upon the request of any Revolving Credit Lender from time to time, the
Issuing Lender shall deliver any other information reasonably
requested by such Lender with respect to each Letter of Credit then
outstanding.
(i) To the extent that any Revolving Credit Lender fails to pay
an amount required to be paid pursuant to clause (e) or (f) of this
Section 2.03 on the due date therefor, such Lender shall pay interest
to the Issuing Lender (through Administrative Agent) on such amount
from and including such due date to but excluding the date such
payment is made (i) during the period from and including such due date
to but excluding the date three Business Days thereafter, at a rate
per annum equal to the Federal Funds Rate (as in effect from time to
time) and (ii) thereafter, at a rate per annum equal to the
post-default rate (as in effect from time to time) pursuant to Section
3.02(b).
(j) The issuance by the Issuing Lender of any modification or
supplement to any Letter of Credit hereunder that would extend the
expiry date or increase the face amount thereof shall be subject to
the same conditions applicable under this Section 2.03 to the issuance
of new Letters of Credit, and no such modification or supplement shall
be issued hereunder unless either (x) the respective Letter of Credit
affected thereby would have complied with such conditions had it
originally been issued hereunder in such modified or supplemented form
or (y) the Majority Revolving Credit Lenders shall have consented
thereto.
(k) Notwithstanding the foregoing, the Issuing Lender shall not
be under any obligation to issue any Letter of Credit if at the time
of such issuance, any order, judgment or decree of any Governmental
Authority or arbitrator shall purport by its terms to enjoin or
restrain the Issuing Lender from issuing such Letter of Credit or any
requirement of law applicable to the Issuing Lender or any request or
directive (whether or not having the force of law) from any
Governmental Authority shall prohibit the issuance of letters of
credit generally or such Letter of Credit in particular or shall
impose upon such Issuing Lender with respect to such Letter of Credit
any restriction or reserve or capital requirement (for which the
Issuing Lender is not otherwise compensated) not in effect on the date
hereof. At any time that the Issuing Lender shall not be under any
obligation to issue Letters of Credit pursuant to this paragraph (k),
the Issuing Lender may be replaced by Borrower with another Lender
reasonably acceptable to Administrative Agent upon notice to the
Issuing Lender and Administrative Agent. Upon any such replacement,
Administrative Agent shall notify the Lenders of any such replacement
of the Issuing Lender and the replacement Issuing Lender shall agree
to be bound by the applicable provisions of this Agreement. At the
time any such replacement shall become effective, Borrower shall pay
all unpaid fees accrued for the account of the replaced Issuing Lender
pursuant to Section 2.03(g). From and after the effective date of any
such replacement, (i) the successor Issuing Lender shall have all the
rights and obligations of the Issuing Lender under this Agreement with
respect to Letters of Credit to be issued thereafter and (ii)
references herein to the term "Issuing Lender" shall be deemed to
refer to such successor or to any previous Issuing Lender, or to such
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successor and all previous Issuing Lenders, as the context shall
require. After the replacement of an Issuing Lender hereunder, the
replaced Issuing Lender shall remain a party hereto and shall continue
to have all the rights and obligations of an Issuing Lender under this
Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of
Credit.
The obligations of Borrower under this Agreement and any Letter of Credit
Document to reimburse the Issuing Lender for a drawing under a Letter of Credit,
and to repay any drawing under a Letter of Credit converted into Revolving
Credit Loans, shall be unconditional and irrevocable, and shall be paid strictly
in accordance with the terms of this Agreement and each such other Letter of
Credit Document under all circumstances, including the following: (i) any lack
of validity or enforceability of this Agreement or any Letter of Credit
Document; (ii) the existence of any claim, setoff, defense or other right that
Borrower may have at any time against any beneficiary or any transferee of any
Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Lender or any other Person, whether in
connection with this Agreement, the transactions contemplated hereby or by the
Letter of Credit Documents or any unrelated transaction; (iii) any draft,
demand, certificate or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; or any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit; or any defense based upon the failure of
any drawing under a Letter of Credit to conform to the terms of the Letter of
Credit or any non-application or misapplication by the beneficiary of the
proceeds of such drawing; or (iv) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, Borrower or a Guarantor; provided, however, that neither Borrower
nor any Revolving Credit Lender shall be obligated to reimburse the Issuing
Lender for any wrongful payment finally determined by a court of competent
jurisdiction to have been made by the Issuing Lender as a result of acts or
omissions constituting willful misconduct or gross negligence on the part of the
Issuing Lender. To the extent that any provision of any Letter of Credit
Document is inconsistent with the provisions of this Section 2.03, the
provisions of this Section 2.03 shall control.
2.04. Termination and Reductions of Commitments. (a) (i) The
Commitments shall be automatically and permanently terminated on January 31,
1999 (which shall be extended to April 30, 1999 if the sole reason for failure
of the Closing Date to occur thereby is due to the failure to obtain all
necessary FCC and state approvals to the transfer of the FCC and state licenses
in connection with the Recapitalization) if the Closing Date does not occur by
such date. The aggregate amount of the Revolving Credit Commitments shall be
automatically and permanently reduced to zero on the Revolving Credit Commitment
Termination Date. The aggregate amount of Revolving Credit Commitments shall be
permanently reduced on the date any required prepayments described in Section
2.10(a) are required to be made in the amount specified in Section 2.10(b)(ii).
(ii) The aggregate amount of the Revolving Credit Commitments
shall be automatically and permanently reduced on each date set forth in the
table below (or if such date shall not be a Business Day, on the Business Day
immediately preceding such date) in an amount equal to the lesser of (x) that
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dollar amount of the aggregate Revolving Credit Commitments set forth
in the column entitled "Reduction Amount", or (y) that dollar amount
of the Revolving Credit Commitments such that immediately after giving
effect thereto the Revolving Credit Commitments would be not more than
the amount of the Revolving Credit Commitments set forth below in the
column entitled "Remaining Amount":
Date Reduction Amount Remaining Amount
February 28, 2002 $ 3,750,000 $146,250,000
May 31, 2002 $ 3,750,000 $142,500,000
August 31, 2002 $ 3,750,000 $138,750,000
November 30, 2002 $ 3,750,000 $135,000,000
February 28, 2003 $ 5,625,000 $129,375,000
May 31, 2003 $ 5,625,000 $123,750,000
August 31, 2003 $ 5,625,000 $118,125,000
November 30, 2003 $ 5,625,000 $112,500,000
February 28, 2004 $ 7,500,000 $105,000,000
May 31, 2004 $ 7,500,000 $ 97,500,000
August 31, 2004 $ 7,500,000 $ 90,000,000
November 30, 2004 $ 7,500,000 $ 82,500,000
February 28, 2005 $ 9,375,000 $ 73,125,000
May 31, 2005 $ 9,375,000 $ 63,750,000
August 31, 2005 $ 9,375,000 $ 54,375,000
November 30, 2005 $ 9,375,000 $ 45,000,000
February 28, 2006 $11,250,000 $ 33,750,000
May 31, 2006 $11,250,000 $ 22,500,000
August 31, 2006 $11,250,000 $ 11,250,000
Revolving Credit Commitment $11,250,000 $0
Termination Date
Each such reduction shall apply pro rata to each Revolving Credit Lender's
Revolving Credit Commitment. Concurrently with any such reduction, Borrower
shall comply with Section 2.10(c).(iii) The aggregate amount of the Term Loan
Commitments shall be automatically and permanently reduced immediately after the
making of the Term Loans on the Closing Date to zero.
(b) Borrower shall have the right at any time or from time to time
(without premium or penalty except breakage costs (if any)) (i) so long as no
Revolving Credit Loans or Letter of Credit Liabilities will be outstanding as of
the date specified for termination, to terminate the Revolving Credit
Commitments in their entirety, and (ii) to reduce the aggregate amount of the
Unutilized Revolving Credit Commitments of all the Revolving Credit Lenders
(which shall be pro rata among such Lenders); provided, however, that (x)
Borrower shall give notice of each such termination or reduction as provided in
Section 4.05, and (y) each partial reduction shall be in an aggregate amount at
least equal to $5.0 million (or a larger multiple of $1.0 million) or, if less,
the remaining Unutilized Revolving Credit Commitments. Any such reduction by
Borrower shall be on behalf of Borrower and PR Borrower.
(c) The Commitments once terminated or reduced may not be reinstated.
2.05. Fees. (a) Borrower shall pay to Administrative Agent for the
account of each Revolving Credit Lender a commitment fee on the daily average
amount of such Lender's Unutilized Revolving Credit Commitment, for the period
from and including the Closing Date to but not including the earlier of the date
such Revolving Credit Commitment is terminated and the Revolving Credit
Commitment Termination Date, at a rate per annum equal to the Applicable
Revolving Credit Fee Percentage. Any accrued commitment fee under this Section
2.05(a) shall be payable in arrears on each Quarterly Date and on the earlier of
the date the Revolving Credit Commitments are terminated and the Revolving
Credit Commitment Termination Date.
(b) Borrower shall pay to Administrative Agent for its own account an
annual administrative fee pursuant to the Administrative Agent Fee Letter.
2.06. Lending Offices. The Loans of each Type made by each Lender
shall be made and maintained at such Lender's Applicable Lending Office for
Loans of such Type.
2.07. Several Obligations of Lenders. The failure of any Lender to
make any Loan to be made by it on the date specified therefor shall not relieve
any other Lender of its obligation to make its
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Loan on such date, but neither any Lender nor Administrative Agent shall be
responsible for the failure of any other Lender to make a Loan to be made by
such other Lender, and no Lender shall have any obligation to Administrative
Agent or any other Lender for the failure by such Lender to make any Loan
required to be made by such Lender.
2.08. Notes; Register. (a) (i) At the request of any Lender, the
Revolving Credit Loans made by such Lender may be evidenced by one or more
promissory notes of Borrower, substantially in the form of Exhibit A-1, dated
the Closing Date, payable to such Lender and otherwise duly completed.
(ii) At the request of any Lender, the Tranche A Term Loans made or to
be made by such Lender may be evidenced by one or more promissory notes of
Borrower, substantially in the form of Exhibit A-2, dated the Closing Date,
payable to such Lender and otherwise duly completed.
(iii) At the request of any Lender, the Tranche A-PR Term Loans made
or to be made by such Lender may be evidenced by one or more promissory
notes of PR Borrower, substantially in the form of Exhibit A-3, dated the
Closing Date, payable to such Lender and otherwise duly completed.
(iv) At the request of any Lender, the Tranche B Term Loans made or to
be made by such Lender may be evidenced by one or more promissory notes of
Borrower, substantially in the form of Exhibit A-4, dated the Closing Date,
payable to such Lender and otherwise duly completed.
(v) At the request of any Lender, the Tranche C Term Loans made or to
be made by such Lender may be evidenced by one or more promissory notes of
Borrower, substantially in the form of Exhibit A-5, dated the Closing Date,
payable to such Lender and otherwise duly completed.
(vi) At the request of the Swing Loan Lender, the Swing Loans made by
Administrative Agent shall be evidenced by one or more promissory notes of
Borrower and PR Borrower, substantially in the form of Exhibit A-6, dated
the Closing Date, payable to the Swing Loan Lender and otherwise duly
completed.
(b) The date, amount, Type, interest rate and duration of the Interest
Period (if applicable) of each Loan of each Class made by each Lender to
Borrower or PR Borrower (as the case may be), and each payment made on account
of the principal thereof, shall be recorded by such Lender on its books and,
prior to any transfer of any Note evidencing the Loans of such Class held by it,
endorsed by such Lender on the schedule attached to such Note or any
continuation thereof; provided, however, that the failure of such Lender to make
any such recordation or endorsement shall not affect the obligations of Borrower
or PR Borrower (as the case may be) to make a payment when due of any amount
owing hereunder or under such Note.
(c) Borrower and PR Borrower hereby designate Administrative Agent to
serve as their agent, solely for purposes of this Section 2.08, to maintain a
register (the "Register") on which it will record the name and address of each
Lender, the Commitment from time to time of each of the Lenders, the
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principal amount of the Loans made by each of the Lenders and each repayment in
respect of the principal amount of the Loans of each Lender. Failure to make any
such recordation or any error in such recordation shall not affect Borrower's or
PR Borrower's obligations in respect of such Loans. The entries in the Register
shall be conclusive, in the absence of manifest error, and Borrower, PR
Borrower, Administrative Agent and the Lenders shall treat each Person whose
name is recorded in the Register as the owner of a Loan or other obligation
hereunder as the owner thereof for all purposes of this Agreement and the other
Credit Documents, notwithstanding any notice to the contrary. The Register shall
be available for inspection by Borrower, PR Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
2.09. Optional Prepayments and Conversions or Continuations of Loans.
Subject to Section 4.04, Borrower and PR Borrower shall have the right to prepay
Loans, or to Convert Loans of one Type into Loans of another Type or to Continue
Loans of one Type as Loans of the same Type, at any time or from time to time to
be applied as specified by Borrower or PR Borrower, as applicable, and in
accordance with all the terms in this Section 2.09; provided, however, that: (a)
Borrower or PR Borrower, as applicable, shall give Administrative Agent notice
of each such prepayment, Conversion or Continuation as provided in Section 4.05
(and, upon the date specified in any such notice of prepayment, the amount to be
prepaid shall become due and payable hereunder); (b) if LIBOR Loans are prepaid
or Converted other than on the last day of an Interest Period for such Loans,
Borrower or PR Borrower, as applicable, shall at such time pay all expenses and
costs required by Section 5.05; and (c) prepayments of the Term Loans pursuant
to this Section 2.09 shall be applied (i) at the sole election and option of
Borrower or PR Borrower, as applicable, in an amount not to exceed the then
current available Prepayment Designation Basket in any manner among the Term
Loan Tranches and the remaining Amortization Payments thereof as Borrower shall
designate in an Officers' Certificate delivered to Administrative Agent;
provided, however, that any such voluntary prepayments applied to any remaining
Amortization Payments of the Tranche B Term Loans or the Tranche C Term Loans
may only be applied either (at the sole election and option of Borrower or PR
Borrower, as the case may be) in inverse order of maturity or pro rata, (ii) at
the sole election and option of PR Borrower, to the Tranche A-PR Term Loans
(without regard to (or deduction from) the Prepayment Designation Basket) in any
manner among the remaining Amortization Payments thereof as PR Borrower shall
designate in an Officers' Certificate delivered to Administrative Agent but if
and only to the extent such optional prepayment is made from internally
generated funds of PR Borrower and its Subsidiaries, and (iii) unless applied in
accordance with the foregoing subclauses (i) or (ii), pro rata among the Term
Loan Tranches based upon the remaining unpaid amounts thereof and (A) as to
Tranche A Term Loans and Tranche A-PR Term Loans, the amount to be applied
thereto shall be applied pro rata among the remaining Amortization Payments
based upon the remaining unpaid amounts thereof and (B) as to each of the
Tranche B Term Loans and the Tranche C Term Loans, the amount to be applied
thereto shall be applied in inverse order of maturity of the remaining
Amortization Payments thereunder. Each prepayment made pursuant to this Section
2.09 of the Tranche B Term Loans or the Tranche C Term Loans made (A) on or
prior to the first anniversary of the Closing Date shall be accompanied by a
premium payment in cash of 2% of the aggregate principal amount of such Loan
prepaid and (B) after the first anniversary of the Closing Date but on or prior
to the second anniversary of the Closing Date shall be accompanied by a premium
payment in cash of 1% of the aggregate principal amount of such Loan prepaid.
Any prepayment of the Tranche B Term Loans or the Tranche C Term Loans made in
connection with any refinancing of the Loans shall be deemed an optional
prepayment under this Section 2.09 and not a mandatory prepayment of the Term
Loans under Section 2.10.
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Notwithstanding the foregoing, in the event that Borrower elects (in
its sole discretion) to provide the option (the "Option") to any of the holders
of Tranche B Term Loans and Tranche C Term Loans to elect (in the absolute and
sole discretion of such holders) not to have all or any part of any voluntary
prepayments applied to such Lender's Tranche B Term Loans or Tranche C Term
Loans, as the case may be, Borrower shall provide written notice of the Option
with respect to such voluntary prepayment at least five Business Days prior to
such voluntary prepayment to Administrative Agent and all holders of Tranche B
Term Loans and Tranche C Term Loans. Any such holder may elect to accept such
Option (in whole or in part) on or prior to the Business Day prior to the date
of such prepayment. Any such holder who shall not have provided written
acceptance thereof to Administrative Agent on or prior to the Business Day prior
to the date of such prepayment shall be deemed to have declined such Option. Any
amount of such voluntary prepayment so declined pursuant to the Option shall be
applied (i) first, pro rata between the Tranche A Term Loans and the Tranche
A-PR Term Loans and, as to any such Term Loan Tranche, pro rata to the remaining
Amortization Payments thereof; and (ii) second, to the extent that no Tranche A
Term Loans or Tranche A-PR Term Loans are outstanding after giving effect to the
application required by the previous clause (i), pro rata between Tranche B Term
Loans and Tranche C Term Loans (based upon the remaining unpaid principal
amounts thereof) of the holders thereof who had not declined prepayment, and, as
to any such Term Loan Tranche, in inverse order of maturity with respect to the
remaining Amortization Payments thereunder.
Notwithstanding the foregoing, and without limiting the rights and
remedies of the Lenders under Section 10, in the event that any Event of Default
shall have occurred and be continuing, Administrative Agent may (and at the
request of the Majority Lenders shall) suspend the right of Borrower to Convert
any Loan into a LIBOR Loan, or to Continue any Loan as a LIBOR Loan, in which
event all Loans shall be Converted (on the last day(s) of the respective
Interest Periods therefor) or Continued, as the case may be, as ABR Loans.
Each notice of Conversion or Continuation shall be substantially in
the form of Exhibit H.
2.10. Mandatory Prepayments. (a) Borrower shall prepay the Loans as
follows (each such prepayment to be effected in each case in the manner, order
and to the extent specified in subsection (b) below of this Section 2.10):
(i) Casualty Events. Within one Business Day after any Company
receives any Net Available Proceeds from any Casualty Event, in an
aggregate principal amount equal to 100% of such Net Available Proceeds;
provided, however, that
(w) if no Event of Default then exists or would arise therefrom, the
Net Available Proceeds thereof shall not be required to be so applied on
such date to the extent that Borrower has delivered an Officers'
Certificate to Administrative Agent on or prior to such date stating that
such proceeds shall be used to fund the substitution of Property used or
usable in the business of Borrower and the Subsidiaries or repair, replace
or restore the Property in respect of which such Casualty Event has
occurred, in each case within one year following the date of the receipt of
such Net Available Proceeds,
(x) all such Net Available Proceeds in excess of $2,500,000
individually or $10,000,000 in the aggregate shall be held in the
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Collateral Account and released therefrom only in accordance with the terms
of the Security Agreement, and
(y) if all or any portion of such Net Available Proceeds not required
to be applied to the prepayment of Loans pursuant to the preceding proviso
(w) is not so used within one year after the date of the receipt of such
Net Available Proceeds, such remaining portion shall be applied on the last
day of such period as specified in Section 2.10(b).
(ii) Equity Issuance. Upon any Equity Issuance after the Closing Date,
in an aggregate principal amount equal to 50% of the Net Available Proceeds
of such Equity Issuance.
(iii) Debt Issuance. Upon any Debt Issuance after the Closing Date, in
an aggregate principal amount equal to 100% of the Net Available Proceeds
of such Debt Issuance.
(iv) Disposition Events. Within one Business Day after receipt by any
Company of any Net Available Proceeds from any Disposition Event, in an
aggregate principal amount equal to 100% of the Net Available Proceeds from
such Disposition Event; provided, however, that
(x) the Net Available Proceeds from any Disposition Event permitted by
Section 9.06(g), (n), (p), (r) or (s) shall not be required to be applied
as provided herein on such date if (1) no Event of Default then exists or
would arise therefrom, and (2) Borrower delivers an Officers' Certificate
to Administrative Agent on or prior to such date stating that such Net
Available Proceeds shall be reinvested in capital assets of Borrower or any
Subsidiary, in each case within one year following the date of such
Disposition Event (which certificate shall set forth the estimates of the
proceeds to be so expended) (provided, that with respect to any Disposition
effected pursuant to Section 9.06(p), such Net Available Proceeds may only
be used to effect a Permitted Acquisition under clause (h) of Section
9.06),
(y) all such Net Available Proceeds in excess of $2,500,000
individually and $10,000,000 in the aggregate shall be held in the
Collateral Account and released therefrom only in accordance with the terms
of the Security Agreement, and
(z) if all or any portion of such Net Available Proceeds which are
permitted to be applied to reinvestment pursuant to the terms of this
Section 2.10(a)(iv) is not so used within such one year period, such
remaining portion shall be applied on the last day of such period (or such
earlier date as Borrower determines not to reinvest any portion thereof) as
specified in Section 2.10(b) (it being understood that the foregoing shall
in no way affect the obligation of any Company to obtain the consent of the
Majority Lenders if required pursuant to this Agreement to effect any
Disposition).
(v) Excess Cash Flow. Not later than 95 days after the end of each
fiscal year of Borrower commencing with the fiscal year ended May 31, 2000,
in an aggregate principal amount equal to (A) 75% of Excess Cash Flow for
such fiscal year when (x) such fiscal year ends prior to the Delivery Date
or (y) the Total Leverage Ratio at the end of such fiscal year is greater
than or equal to 6.0:1.0 (as evidenced in an Officers' Certificate
delivered to Administrative Agent and the Lenders), and (B) 50% of Excess
Cash Flow for any such fiscal year that ends after the Delivery Date when
the Total Leverage Ratio at the end of such fiscal year is less than
6.0:1.0 (as evidenced in an Officers' Certificate delivered to
Administrative Agent and the Lenders).
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(vi) Other Required Prepayments. If the terms of any agreement,
instrument or indenture pursuant to which any Indebtedness pari passu with
or junior in right of payment to the Loans is outstanding (or pursuant to
which such Indebtedness is guaranteed) require prepayment of such
Indebtedness out of the proceeds of any Disposition or otherwise unless
such proceeds are used to prepay other Indebtedness, then, to the extent
not otherwise required by this Section 2.10(a), the Loans shall be repaid
in an amount not less than the minimum amount that would be required to be
prepaid not later than the latest time as and upon such terms so that such
other Indebtedness will not be required to be prepaid pursuant to the terms
of the agreement, indenture or instrument or guarantee governing such other
Indebtedness.
(b) Application. The amount of any required prepayments described in
Section 2.10(a) shall be applied as follows:
(i) first, the amount of the required prepayment shall be applied (A)
at the option of Borrower or PR Borrower, as applicable, in an amount not
to exceed the then current available Prepayment Designation Basket, in any
manner among the Term Loan Tranches and the remaining Amortization Payments
thereof as Borrower shall designate in an Officers' Certificate delivered
to Administrative Agent; provided, however, that any mandatory prepayments
applied to any remaining Amortization Payments of the Tranche B Term Loans
or the Tranche C Term Loans may only be applied either (at the sole
election and option of Borrower or PR Borrower, as the case may be) in
inverse order of maturity or pro rata and (B) unless applied in accordance
with the foregoing subclause (A), to the reduction of Amortization Payments
on the Term Loans required by Section 3.01(b) pro rata among the Term Loan
Tranches based upon the remaining unpaid amounts thereof and (A) as to
Tranche A Term Loans and Tranche A-PR Term Loans, the amount to be applied
thereto shall be applied pro rata to the remaining Amortization Payments of
such Term Loan Tranche based on the remaining unpaid amounts thereof and
(B) as to each of the Tranche B Term Loans and the Tranche C Term Loans,
the amount to be applied thereto shall be applied in inverse order of
maturity to the remaining Amortization Payments thereunder; provided,
however that any amounts required to be applied to Tranche A-PR Term Loans
pursuant to this clause (B) from any prepayment made pursuant to Section
2.10(a)(v) shall be net of any amounts applied to Tranche A-PR Term Loans
pursuant to Section 2.09(c)(ii) during the period for which Excess Cash
Flow was calculated to make such prepayment required by Section 2.10(a)(v).
Notwithstanding the foregoing, any holder of Tranche B Term Loans or
Tranche C Term Loans at its sole discretion may, with respect to any
mandatory prepayment to be applied as set forth in clause (B) above, so
long as any Tranche A Term Loans or Tranche A-PR Term Loans are then
outstanding (after giving effect to the application of such required
prepayment to the Tranche A Term Loans and Tranche A-PR Term Loans), elect
by written notice provided to Administrative Agent not to have all or any
amount of any such required prepayments applied to such holder's Tranche B
Term Loans or Tranche C Term Loans, as the case may be, in which case the
aggregate amount so declined shall be applied pro rata between the Tranche
A Term Loans and the Tranche A-PR Term Loans and, as to any such Term Loan
Tranche, pro rata to the remaining Amortization Payments thereof; provided,
however, that to the extent that the aggregate principal amount of the
Tranche A Term Loans and Tranche A-PR Term Loans after giving effect to
such mandatory prepayment is less than the aggregate amount so declined by
the holders of the Tranche B Term Loans and Tranche C Term Loans, such
amount so declined shall be allocated between the declining holders of the
Tranche B Term Loans and Tranche C Term Loans pro rata based on
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the remaining aggregate amount of their amounts declined;
(ii) second, after such time as no Term Loans remain outstanding,
Revolving Credit Commitments shall be permanently reduced (at the same time
that the prepayment of the Term Loans would have been made and assuming an
unlimited amount thereof then outstanding) pro rata in an amount equal to
the remaining amount of any such required prepayment that would have been
applied to the Term Loans (assuming an unlimited amount thereof then
outstanding) and to the extent that, after giving effect to such reduction,
the aggregate principal amount of Revolving Credit Loans, plus the
aggregate principal amount of Swing Loans, plus the aggregate amount of all
Letter of Credit Liabilities would exceed the Revolving Credit Commitments,
Borrower or PR Borrower shall, first, prepay outstanding Revolving Credit
Loans and second, prepay outstanding Swing Loans and, third, provide cover
for Letter of Credit Liabilities as specified in Section 2.10(d), in an
aggregate amount equal to such excess. Any application to the Revolving
Credit Commitments shall reduce the required scheduled reduction amounts
under Section 2.04(a)(ii) pro rata; and
(iii) third, after application of prepayments in accordance with
clauses (i) and (ii) above, Borrower or PR Borrower shall be permitted to
retain any such remaining excess.
Notwithstanding the foregoing, if the amount of any prepayment of
Loans required under this Section 2.10 shall be in excess of the amount of the
ABR Loans at the time outstanding, only the portion of the amount of such
prepayment as is equal to the amount of such outstanding ABR Loans shall be
immediately prepaid and, at the election of Borrower or PR Borrower, the balance
of such required prepayment shall be either (i) deposited in the Collateral
Account and applied to the prepayment of LIBOR Loans on the last day of the then
next-expiring Interest Period for LIBOR Loans (with all interest accruing
thereon for the account of Borrower or PR Borrower, as applicable) or (ii)
prepaid immediately, together with any amounts owing to the Lenders under
Section 5.05. Notwithstanding any such deposit in the Collateral Account,
interest shall continue to accrue on such Loans until prepayment.
(c) Revolving Credit Extension Reductions. Until the Revolving Credit
Commitment Termination Date, Borrower and PR Borrower, as applicable, shall from
time to time immediately prepay the Swing Loans and the Revolving Credit Loans
(and/or provide cover for Letter of Credit Liabilities as specified in Section
2.10(d)) in such amounts as shall be necessary so that at all times the
aggregate outstanding amount of the Revolving Credit Loans, plus the aggregate
outstanding amount of Swing Loans, plus the aggregate outstanding Letter of
Credit Liabilities shall not exceed the Revolving Credit Commitments as in
effect at such time, such amount to be applied, first, to the Swing Loans,
second, to Revolving Credit Loans outstanding and, third, as cover for Letter of
Credit Liabilities outstanding as specified in Section 2.10(d).(d) Cover for
Letter of Credit Liabilities. In the event that Borrower or PR Borrower shall be
required pursuant to this Section 2.10 to provide cover for Letter of Credit
Liabilities, Borrower shall effect the same by paying to Administrative Agent
immediately available funds in an amount equal to the required amount, which
funds shall be retained by Administrative Agent in the Collateral Account (as
provided in the Security Agreement as collateral security in the first instance
for the Letter of Credit Liabilities) until such time as all Letters of Credit
shall have been terminated and all of the Letter of Credit Liabilities paid in
full.
2.11. Replacement of Lenders. Borrower shall have the right, if no
Default then exists, to replace any Lender (the "Replaced Lender")
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with one or more other Eligible Persons reasonably acceptable to Lead Arranger
(collectively, the "Replacement Lender") if (x) such Lender is charging Borrower
increased costs pursuant to Section 5.01 or 5.06 in excess of those being
charged generally by the other Lenders or such Lender becomes incapable of
making LIBOR Loans as provided in Section 5.03 and/or (y) as provided in Section
12.04(ii), such Lender refuses to consent to certain proposed amendments,
waivers or modifications with respect to this Agreement; provided, however, that
(i) at the time of any replacement pursuant to this Section 2.11, the
Replacement Lender shall enter into one or more assignment agreements (and with
all fees payable pursuant to Section 12.06 to be paid by the Replacement Lender)
pursuant to which the Replacement Lender shall acquire all of the Commitments
and outstanding Loans of, and in each case Letter of Credit Interests by, the
Replaced Lender and, in connection therewith, shall pay to (x) the Replaced
Lender, an amount equal to the sum of (A) the principal of, and all accrued
interest on, all outstanding Loans of the Replaced Lender, (B) all Reimbursement
Obligations owing to such Replaced Lender, together with all then unpaid
interest with respect thereto at such time, and (C) all accrued, but theretofore
unpaid, fees owing to the Replaced Lender pursuant to Section 2.05, and (y) the
Issuing Lender an amount equal to such Replaced Lender's Revolving Credit
Commitment Percentage of any Reimbursement Obligations (which at such time
remains a Reimbursement Obligation) to the extent such amount was not
theretofore funded by such Replaced Lender, and (ii) all obligations of Borrower
and PR Borrower owing to the Replaced Lender (other than those specifically
described in clause (i) above in respect of which the assignment purchase price
has been, or is concurrently being, paid, but including any amounts which would
be paid to a Lender pursuant to Section 5.05 if Borrower or PR Borrower were
prepaying a LIBOR Loan) shall be paid in full to such Replaced Lender
concurrently with such replacement. Upon the execution of the respective
assignment agreement, the payment of amounts referred to in clauses (i) and (ii)
above and, if so requested by the Replacement Lender, delivery to the
Replacement Lender of Notes executed by Borrower, or PR Borrower, as the case
may be, the Replacement Lender shall become a Lender hereunder and the Replaced
Lender shall cease to constitute a Lender hereunder and be released of all its
obligations as a Lender, except with respect to indemnification provisions
applicable to the Replaced Lender under this Agreement, which shall survive as
to such Replaced Lender.
Section 3. Payments of Principal and Interest.
3.01. Repayment of Loans.
(a) Revolving Credit and Swing Loans. Each of Borrower and PR Borrower
hereby promises to pay to Administrative Agent for the account of each Lender
the entire outstanding principal amount of such Lender's Revolving Credit Loans
made to Borrower or PR Borrower, as the case may be, and each Revolving Credit
Loan shall mature, on the Revolving Credit Commitment Termination Date. Borrower
hereby promises to pay the Swing Loan Lender for its account the entire
outstanding principal amount of the Swing Loans, and the Swing Loans shall
mature, on the Swing Loan Maturity Date.
(b) (1) Tranche A Term Loans. Borrower hereby promises to pay to
Administrative Agent for the account of the Tranche A Term Loan Lenders, in
repayment of the principal of the Tranche A Term Loans, the amounts set forth on
Schedule 3.01(b) on the dates set forth on Schedule 3.01(b) (subject to
adjustment for any prepayments required by Section 2.10 to the extent actually
made).
(2) Tranche A-PR Term Loans. PR Borrower hereby promises to pay to
Administrative Agent for the account of the Tranche A-PR Term Loan Lenders, in
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repayment of the principal of the Tranche A-PR Term Loans, the amounts set forth
on Schedule 3.01(b) on the dates set forth on Schedule 3.01(b) (subject to
adjustment for any prepayments required by Section 2.10 to the extent actually
made).
(3) Tranche B Term Loans. Borrower hereby promises to pay to
Administrative Agent for the account of the Tranche B Term Loan Lenders, in
repayment of the principal of the Tranche B Term Loans, the amounts set forth in
Schedule 3.01(b) on the dates set forth in Schedule 3.01(b) (subject to
adjustment for any prepayments required by Section 2.10 to the extent actually
made).
(4) Tranche C Term Loans. Borrower hereby promises to pay to
Administrative Agent for the account of the Tranche C Term Loan Lenders, in
repayment of the principal of the Tranche C Term Loans, the amounts set forth on
Schedule 3.01(b) on the dates set forth on Schedule 3.01(b) (subject to
adjustment for any prepayments required by Section 2.10 to the extent actually
made).
3.02. Interest. (a) Each of Borrower and PR Borrower hereby promises
to pay to Administrative Agent for the account of each Lender interest on the
unpaid principal amount of each Loan made by such Lender to Borrower or PR
Borrower, as the case may be, for the period from and including the date of such
Loan to but excluding the date such Loan shall be paid in full at the following
rates per annum:
(i) during such periods as such Loan is an ABR Loan, the Alternate
Base Rate (as in effect from time to time), plus the Applicable Margin, and
(ii) during such periods as such Loan is a LIBOR Loan, for each
Interest Period relating thereto, the LIBOR Rate for such Loan for such
Interest Period, plus the Applicable Margin.
(b) Overdue principal and, to the extent permitted by law, overdue
interest in respect of each Loan and other overdue amounts owed by any Obligor
under the Credit Documents (including such interest accruing before and after
judgment) shall bear interest at a rate per annum equal to (x) in the case of
principal of any Loans, the rate which is 2% in excess of the rate then borne by
such Loans and (y) in the case of interest or such other amounts, the rate which
is 2% in excess of the rate otherwise applicable to ABR Loans which are
Revolving Credit Loans from time to time. Interest which accrues under this
paragraph shall be payable on demand.
(c) Accrued interest on each Loan shall be payable (i) in the case of
an ABR Loan, quarterly on the Quarterly Dates, (ii) in the case of a LIBOR Loan,
on the last day of each Interest Period therefor and, if such Interest Period is
longer than three months, at three-month intervals following the first day of
such Interest Period and (iii) in the case of any LIBOR Loan, upon the payment
or prepayment thereof or the Conversion of such Loan to a Loan of another Type
(but only on the principal amount so paid, prepaid or Converted), except that
interest payable at the rate set forth in Section 3.02(b) shall be payable from
time to time on demand. Promptly after the determination of any interest rate
provided for herein or any change therein, Administrative Agent shall give
notice thereof to the Lenders to which such interest is payable and to Borrower.
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Section 4. Payments; Pro Rata Treatment; Computations; Etc.
4.01. Payments. (a) Except to the extent otherwise provided herein,
all payments of principal, interest, Reimbursement Obligations and other amounts
to be made by Borrower and PR Borrower under this Agreement and the Notes, and,
except to the extent otherwise provided therein, all payments to be made by the
Obligors under any other Credit Document, shall be made in Dollars, in
immediately available funds, without deduction, set-off or counterclaim, to
Administrative Agent at its account at the Principal Office, not later than
11:00 a.m. New York City time on the date on which such payment shall become due
(each such payment made after such time on such due date to be deemed to have
been made on the next succeeding Business Day).
(b) Each of Borrower and PR Borrower shall, at the time of making each
payment under this Agreement or any Note for the account of any Lender, specify
(in accordance with Section 2.09 and 2.10, if applicable) to Administrative
Agent (which shall so notify the intended recipient(s) thereof) the Type of
Loans, Reimbursement Obligations or other amounts payable by Borrower or PR
Borrower hereunder to which such payment is to be applied (and in the event that
Borrower or PR Borrower fails to so specify, or if an Event of Default has
occurred and is continuing, Administrative Agent may distribute such payment to
the Lenders for application to the Obligations under the Credit Documents in
such manner as it or the Majority Lenders, subject to Section 4.02, may
determine to be appropriate).
(c) Except to the extent otherwise provided in the second sentence of
Section 2.03(g), each payment received by Administrative Agent or by Issuing
Lender (through Administrative Agent) under this Agreement or any Note for the
account of any Lender shall be paid by Administrative Agent or by Issuing Lender
(through Administrative Agent), as the case may be, to such Lender, in
immediately available funds, (x) if the payment was actually received by
Administrative Agent or by Issuing Lender (through Administrative Agent), as the
case may be, prior to 11:00 a.m. (New York City time) on any day, on such day
and (y) if the payment was actually received by Administrative Agent or by
Issuing Lender (through Administrative Agent), as the case may be, after 11:00
a.m. (New York City time) on any day, by 1:00 p.m. (New York City time) on the
following Business Day (it being understood that to the extent that any such
payment is not made in full by Administrative Agent or by Issuing Lender
(through Administrative Agent), as the case may be, Administrative Agent shall
pay to such Lender, upon demand, interest at the Federal Funds Rate from the
date such amount was required to be paid to such Lender pursuant to the
foregoing clauses until the date Administrative Agent pays such Lender the full
amount).
(d) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such date shall be
extended to the next succeeding Business Day, and interest shall be payable for
any principal so extended for the period of such extension.
4.02. Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) each borrowing of Loans of a particular Class from the Lenders under
Section 2.01 shall be made from the relevant Lenders, each payment of commitment
fee under Section 2.05 in respect of Commitments of a particular Class shall be
made for account of the relevant Lenders, and each termination or reduction of
the amount of the Commitments of a particular Class under Section 2.04 shall be
applied to the respective Commitments of such Class of the relevant Lenders, pro
rata according to the amounts of their respective Commitments of such Class;
provided, however, that Swing Loans shall be made only by, and interest thereon
shall be paid by Borrower only to, the Swing Loan Lender (subject to such
Lender's obligation in respect of any participation therein purchased by the
other Revolving Credit Lenders as provided in Section 2.01(g)); (b) except as
otherwise provided in Section 5.04, LIBOR Loans of any Class having the same
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Interest Period shall be allocated pro rata among the relevant Lenders according
to the amounts of their respective Revolving Credit and Term Loan Commitments
(in the case of the making of Loans) or their respective Revolving Credit and
Term Loans (in the case of Conversions and Continuations of Loans); (c) each
payment or prepayment of principal of Revolving Credit Loans or Term Loans by
Borrower or PR Borrower shall be made for the account of the relevant Lenders
pro rata in accordance with the respective unpaid outstanding principal amounts
of the Loans of such class held by them; and (d) each payment of interest on
Revolving Credit Loans and Term Loans by Borrower or PR Borrower shall be made
for account of the relevant Lenders pro rata in accordance with the amounts of
interest on such Loans then due and payable to the respective Lenders.4.03.
Computations. Interest on LIBOR Loans, commitment fees and Letter of Credit fees
shall be computed on the basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day) occurring in the period for
which such amounts are payable and interest on ABR Loans and Reimbursement
Obligations shall be computed on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed (including the first day but excluding the
last day) occurring in the period for which such amounts are payable.
Notwithstanding the foregoing, for each day that the Alternate Base Rate is
calculated by reference to the Federal Funds Rate, interest on ABR Loans and
Reimbursement Obligations shall be computed on the basis of a year of 360 days
and actual days elapsed (including the first day but excluding the last day).
4.04. Minimum Amounts. Except for mandatory prepayments made pursuant
to Section 2.10 and Conversions or prepayments made pursuant to Section 5.04,
each borrowing, Conversion and prepayment of principal of Loans (other than
Swing Loans, for which the minimum amounts thereof are in Section 2.01(g)) shall
be in an amount at least equal to $1.0 million with respect to ABR Loans and
$1.0 million with respect to LIBOR Loans and in multiples of $100,000 in excess
thereof (borrowings, Conversions or prepayments of or into Loans of different
Types or, in the case of LIBOR Loans, having different Interest Periods at the
same time hereunder to be deemed separate borrowings, Conversions and
prepayments for purposes of the foregoing, one for each Type or Interest
Period). Anything in this Agreement to the contrary notwithstanding, the
aggregate principal amount of LIBOR Loans having the same Interest Period shall
be in an amount at least equal to $1.0 million and in multiples of $100,000 in
excess thereof and, if any LIBOR Loans or portions thereof would otherwise be in
a lesser principal amount for any period, such Loans or portions, as the case
may be, shall be ABR Loans during such period.
4.05. Certain Notices. Notices by Borrower or PR Borrower to
Administrative Agent of terminations or reductions of the Commitments, of
borrowings, Conversions, Continuations and optional prepayments of Loans and of
Classes of Loans, of Types of Loans and of the duration of Interest Periods
shall be irrevocable and shall be effective only if received by Administrative
Agent by telephone not later than 11:00 a.m. New York City time (promptly
followed by written notice via telecopier) on the number of Business Days prior
to the date of the relevant termination, reduction, borrowing, Conversion,
Continuation or prepayment or the first day of such Interest Period specified in
the table below (and not later than 11:00 a.m. New York City time on the
Business Day of the borrowing or prepayment in the case of Swing Loans).
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NOTICE PERIODS
Notice Number of Business Days Prior
Termination or reduction of 2
Commitments
Borrowing or optional
prepayment of, or Conversions into, ABR Loans 1
(other than Swing Loans)
Borrowing or optional
prepayment of, Conversions into, Continuations
as, or duration of Interest Periods for, LIBOR 3
Loans
Each such notice of termination or reduction shall specify the amount
and the Class of the Commitments to be terminated or reduced. Each such notice
of borrowing, Conversion, Continuation or prepayment shall specify the Class of
Loans to be borrowed, Converted, Continued or prepaid and the amount (subject to
Section 4.04) and Type of each Loan to be borrowed, Converted, Continued or
prepaid and the date of borrowing, Conversion, Continuation or prepayment (which
shall be a Business Day). Each such notice of the duration of an Interest Period
shall specify the Loans to which such Interest Period is to relate. Unless
otherwise consented to by Agents in their sole discretion, prior to the earlier
of (x) five Business Days after the Closing Date, and (y) the date on which
Borrower has been notified by Lead Arranger that the primary syndication of the
Commitments has been completed, no borrowing of or Conversion into any LIBOR
Loan may be made, and, in addition to the foregoing limitation, prior to the
earlier of (x) three months after the Closing Date and (y) the date on which
Borrower has been notified by Lead Arranger that the primary syndication of the
Commitments has been completed, no Interest Period of more than one month may be
elected. Administrative Agent shall promptly notify the Lenders of the contents
of each such notice. In the event that Borrower or PR Borrower fails to select
the Type of Loan, or the duration of any Interest Period for any LIBOR Loan,
within the time period and otherwise as provided in this Section 4.05, such Loan
(if outstanding as a LIBOR Loan) will be automatically Converted into an ABR
Loan on the last day of the then current Interest Period for such Loan or (if
outstanding as an ABR Loan) will remain as, or (if not then outstanding) will be
made as, an ABR Loan.
4.06. Non-Receipt of Funds by Administrative Agent. Unless
Administrative Agent shall have received written notice from a Lender, Borrower
or PR Borrower (the "Payor") prior to the date on which the Payor is to make
payment to Administrative Agent of (in the case of a Lender) the proceeds of a
Loan to be made by such Lender hereunder or a payment to Administrative Agent
for the account of one or more of the Lenders hereunder (such payment being
herein called the "Required Payment"), which notice shall be effective upon
receipt, that the Payor does not intend to make the Required Payment to
Administrative Agent, Administrative Agent may assume that the Required Payment
has been made and may, in reliance upon such assumption (but shall not be
required to), make the amount thereof available to the intended recipient(s) on
such date; and, if the Payor has not in fact made the Required Payment to
Administrative Agent, the recipient(s) of such payment shall, on demand, repay
to Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date (the
"Advance Date") such amount was so made available by Administrative Agent until
the date Administrative Agent recovers such amount at a rate per annum equal to
the Federal Funds Rate for such day and, if such recipient(s) shall fail
promptly to make such payment, Administrative Agent shall be entitled to recover
such amount, on demand, from the Payor, together with interest as aforesaid;
provided, however, that if neither the recipient(s) nor the Payor shall return
the Required Payment to Administrative Agent within three Business Days of the
date such demand was made, then, retroactively to the Advance Date, the Payor
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and the recipient(s) shall each be obligated to pay interest on the Required
Payment as follows (without double recovery):
(i) if the Required Payment shall represent a payment to be made by
Borrower or PR Borrower to the Lenders, Borrower or PR Borrower, as
applicable, and the recipient(s) shall each be obligated retroactively to
the Advance Date to pay interest in respect of the Required Payment at the
rate set forth in Section 3.02(b) (without duplication of the obligation of
Borrower under Section 3.02 to pay interest on the Required Payment at the
rate set forth in Section 3.02(b)), it being understood that the return by
the recipient(s) of the Required Payment to Administrative Agent shall not
limit such obligation of Borrower or PR Borrower, as applicable, under
Section 3.02 to pay interest at the rate set forth in Section 3.02(b) in
respect of the Required Payment and
(ii) if the Required Payment shall represent proceeds of a Loan to be
made by the Lenders to Borrower or PR Borrower, the Payor, Borrower or PR
Borrower, as applicable, shall each be obligated retroactively to the
Advance Date to pay interest in respect of the Required Payment pursuant to
Section 3.02, it being understood that the return by Borrower or PR
Borrower, as applicable, of the Required Payment to Administrative Agent
shall not limit any claim Borrower or PR Borrower may have against the
Payor in respect of such Required Payment.
4.07. Right of Setoff; Sharing of Payments; Etc. (a) If any Event of
Default shall have occurred and be continuing, each Obligor agrees that, in
addition to (and without limitation of) any right of setoff, banker's lien or
counterclaim a Lender may otherwise have, each Lender shall be entitled, at its
option (to the fullest extent permitted by law), to set off and apply any
deposit (general or special, time or demand, provisional or final), or other
indebtedness, held by it for the credit or account of such Obligor at any of its
offices, in Dollars or in any other currency, against any principal of or
interest on any of such Lender's Loans, Reimbursement Obligations or any other
amount payable to such Lender hereunder that is not paid when due (regardless of
whether such deposit or other indebtedness is then due to such Obligor), in
which case it shall promptly notify such Obligor and Administrative Agent
thereof; provided, however, that such Lender's failure to give such notice shall
not affect the validity thereof.
(b) Each of the Lenders agrees that, if it should receive (other than
pursuant to Section 5) any amount hereunder (whether by voluntary payment, by
realization upon security, by the exercise of the right of setoff or banker's
lien, by counterclaim or cross action, by the enforcement of any right under the
Credit Documents, or otherwise) which is applicable to the payment of the
principal of, or interest on, the Loans, Reimbursement Obligations or fees, the
sum of which with respect to the related sum or sums received by other Lenders
is in a greater proportion than the total of such amounts then owed and due to
such Lender bears to the total of such amounts then owed and due to all of the
Lenders immediately prior to such receipt, then such Lender receiving such
excess payment shall purchase for cash without recourse or warranty from the
other Lenders an interest in the Obligations of the respective Obligor to such
Lenders in such amount as shall result in a proportional participation by all of
the Lenders in such amount; provided, however, that if all or any portion of
such excess amount is thereafter recovered from such Lender, such purchase shall
be rescinded and the purchase price restored to the extent of such recovery, but
without interest. Each of Borrower and PR Borrower consents to the foregoing
arrangements.
(c) Each of Borrower and PR Borrower agrees that any Lender so
purchasing such a participation may exercise all rights of setoff, banker's
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lien, counterclaim or similar rights with respect to such participation as fully
as if such Lender were a direct holder of Loans or other amounts (as the case
may be) owing to such Lender in the amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of exercising, any such right with respect to any other Indebtedness or
obligation of any Obligor. If, under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a setoff to
which this Section 4.07 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders entitled under this Section 4.07 to share in the
benefits of any recovery on such secured claim.
Section 5. Yield Protection, Etc.
5.01. Additional Costs. (a) If the adoption of, or any change in, in
each case after the date hereof, any Requirement of Law or in the interpretation
or application thereof or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority or the NAIC made subsequent to the date hereof:
(i) shall subject any Lender or Issuing Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note, any Letter of Credit
or any Lender's participation therein, any Letter of Credit Document or any
Loan made by it or change the basis of taxation of payments to such Lender
in respect thereof by any Governmental Authority (except for taxes covered
by or expressly excluded from coverage by Section 5.06 and changes in the
rate of tax on the overall net income of such Lender or its Applicable
Lending Office, or any affiliate thereof or franchise tax by any
Governmental Authority);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender or Issuing Lender which is not otherwise included in
the determination of the LIBOR Rate hereunder; or
(iii) shall impose on such Lender or Issuing Lender any other
condition (excluding taxes);
and the result of any of the foregoing is to increase the cost to such Lender or
Issuing Lender, by an amount which such Lender or Issuing Lender deems to be
material, of making, converting into, continuing or maintaining LIBOR Loans or
issuing or participating in Letters of Credit or to reduce any amount receivable
hereunder in respect thereof then, in any such case, Borrower shall promptly pay
such Lender or Issuing Lender, upon its written demand, any additional amounts
necessary to compensate such Lender or Issuing Lender for such increased cost or
reduced amount receivable. If any Lender or Issuing Lender becomes entitled to
claim any additional amounts pursuant to this subsection, it shall promptly
notify Borrower, through Administrative Agent, of the event by reason of which
it has become so entitled. A certificate as to any additional amounts setting
forth the calculation of such additional amounts pursuant to this Section 5.01
submitted by such Lender or Issuing Lender, through Administrative Agent, to
Borrower shall be conclusive in the absence of clearly demonstrable error.
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Without limiting the survival of any other covenant hereunder, this Section 5.01
shall survive the termination of this Agreement and the payment of the Notes and
all other amounts payable hereunder.
(b) In the event that any Lender or Issuing Lender shall have
determined that the adoption after the date hereof of any law, rule, regulation
or guideline regarding capital adequacy (or any change after the date hereof
therein or in the interpretation or application thereof) or compliance by any
Lender or Issuing Lender or any corporation controlling such Lender or Issuing
Lender with any request or directive regarding capital adequacy (whether or not
having the force of law) from any central bank or Governmental Authority or the
NAIC, in each case, made subsequent to the date hereof including, without
limitation, the issuance after the date hereof of any final rule, regulation or
guideline, does or shall have the effect of reducing the rate of return on such
Lender's or Issuing Lender's or such corporation's capital as a consequence of
its obligations hereunder or under any Letter of Credit to a level below that
which such Lender or Issuing Lender or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
or Issuing Lender's or such corporation's policies with respect to capital
adequacy) by an amount deemed by such Lender or Issuing Lender to be material,
then from time to time, after submission by such Lender or Issuing Lender to
Borrower (with a copy to Administrative Agent) of a written request therefor,
Borrower shall promptly pay to such Lender or Issuing Lender such additional
amount or amounts as will compensate such Lender or Issuing Lender for such
reduction.
(c) PR Borrower shall reimburse Borrower for any amounts paid under
Section 5.01 which are attributable to extensions of credit made to PR Borrower
hereunder.
5.02. Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any LIBOR Base Rate for
any Interest Period:
(i) Administrative Agent determines, which determination shall be
conclusive, absent manifest error, that quotations of interest rates for
the relevant deposits referred to in the definition of "LIBOR Base Rate" in
Section 1.01 are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining rates of interest for LIBOR
Loans as provided herein; or (ii) if the related Loans are Revolving Credit
Loans, the Majority Revolving Credit Lenders or, if the related Loans are
Tranche A Term Loans, the Majority Tranche A Term Loan Lenders or, if the
related Loans are Tranche A-PR Term Loans, the Majority Tranche A-PR Term
Loan Lenders or, if the related Loans are Tranche B Term Loans, the
Majority Tranche B Term Loan Lenders or, if the related Loans are Tranche C
Term Loans, the Majority Tranche C Term Loan Lenders determine, which
determination shall be conclusive, that the relevant rates of interest
referred to in the definition of "LIBOR Base Rate" in Section 1.01 upon the
basis of which the rate of interest for LIBOR Loans for such Interest
Period is to be determined are not likely adequate to cover the cost to the
applicable Lenders of making or maintaining LIBOR Loans for such Interest
Period,
then Administrative Agent shall give Borrower, PR Borrower and each Lender
prompt notice thereof, and so long as such condition remains in effect, the
affected Lenders shall be under no obligation to make additional LIBOR Loans
(but shall make their portion of any additional Borrowings as ABR Loans), to
Continue LIBOR Loans or to Convert ABR Loans into LIBOR Loans and Borrower and
PR Borrower shall, on the last day(s) of the then current Interest Period(s) for
the outstanding LIBOR Loans, either prepay such Loans of such affected Lenders
or Convert such Loans of such affected Lenders into ABR Loans in accordance with
Section 2.09.
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5.03. Illegality. Notwithstanding any other provision of this
Agreement, in the event that any change after the date hereof in any Requirement
of Law or in the interpretation or application thereof shall make it unlawful
for any Lender or Issuing Lender or its Applicable Lending Office to honor its
obligation to make or maintain LIBOR Loans or issue Letters of Credit hereunder
(and, in the sole opinion of such Lender or Issuing Lender, the designation of a
different Applicable Lending Office would either not avoid such unlawfulness or
would be disadvantageous to such Lender or Issuing Lender), then such Lender or
Issuing Lender shall promptly notify Borrower and PR Borrower thereof (with a
copy to Administrative Agent) and such Lender's or Issuing Lender's obligation
to make or Continue, or to Convert Loans of any other Type into, LIBOR Loans or
issue Letters of Credit shall be suspended until such time as such Lender or
Issuing Lender may again make and maintain LIBOR Loans or issue Letters of
Credit (in which case the provisions of Section 5.04 shall be applicable).
5.04. Treatment of Affected Loans. If the obligation of any Lender to
make LIBOR Loans or to Continue, or to Convert ABR Loans into, LIBOR Loans shall
be suspended pursuant to Section 5.03, such Lender's LIBOR Loans shall be
automatically Converted into ABR Loans on the last day(s) of the then current
Interest Period(s) for such LIBOR Loans (or on such earlier date as such Lender
may specify to Borrower or PR Borrower with a copy to Administrative Agent as is
required by law) and, unless and until such Lender gives notice as provided
below that the circumstances specified in Section 5.03 which gave rise to such
Conversion no longer exist:
(i) to the extent that such Lender's LIBOR Loans have been so
Converted, all payments and prepayments of principal which would otherwise
be applied to such Lender's LIBOR Loans shall be applied instead to its ABR
Loans; and
(ii) all Loans which would otherwise be made or Continued by such
Lender as LIBOR Loans shall be made or Continued instead as ABR Loans and
all ABR Loans of such Lender which would otherwise be Converted into LIBOR
Loans shall remain as ABR Loans.
If such Lender gives notice to Borrower or PR Borrower with a copy to
Administrative Agent that the circumstances specified in Section 5.03 which gave
rise to the Conversion of such Lender's LIBOR Loans pursuant to this Section
5.04 no longer exist (which such Lender agrees to do promptly upon such
circumstances ceasing to exist) at a time when LIBOR Loans are outstanding, such
Lender's ABR Loans shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding LIBOR Loans, to the
extent necessary so that, after giving effect thereto, all Loans held by the
Lenders holding LIBOR Loans and by such Lender are held pro rata (as to
principal amounts, Types and Interest Periods) in accordance with their
respective Commitments.
5.05. Compensation. (a) Borrower and PR Borrower agree to indemnify
each Lender and to hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (1) default by Borrower or PR
Borrower in payment when due of the principal amount of or interest on any LIBOR
Loan, (2) default by Borrower or PR Borrower in making a borrowing of,
Conversion into or Continuation of LIBOR Loans after Borrower or PR Borrower has
given a notice requesting the same in accordance with the provisions of this
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Agreement, (3) default by Borrower or PR Borrower in making any prepayment after
Borrower or PR Borrower has given a notice thereof in accordance with the
provisions of this Agreement, or (4) the making of a payment or a prepayment of
LIBOR Loans on a day which is not the last day of an Interest Period with
respect thereto, including in each case, any such loss (including loss of margin
but not the Applicable Margin) or expense arising from the reemployment of funds
obtained by it or from fees payable to terminate the deposits from which such
funds were obtained.
(b) For the purpose of calculation of all amounts payable to a Lender
under this Section 5.05 each Lender shall be deemed to have actually funded its
relevant LIBOR Loan through the purchase of a deposit bearing interest at the
LIBOR Rate in an amount equal to the amount of the LIBOR Loan and having a
maturity comparable to the relevant Interest Period; provided, however, that
each Lender may fund each of its LIBOR Loans in any manner it sees fit, and the
foregoing assumption shall be utilized only for the calculation of amounts
payable under this subsection. Any Lender requesting compensation pursuant to
this Section 5.05 will furnish to Administrative Agent, Borrower and PR Borrower
a certificate setting forth the basis and amount of such request and such
certificate, absent manifest error, shall be conclusive. Without limiting the
survival of any other covenant hereunder, this covenant shall survive the
termination of this Agreement and the payment of the Notes and all other amounts
payable hereunder.
5.06. Net Payments. (a) All payments made by any Obligor hereunder or
under any Note or any Guarantee will be made without setoff, counterclaim or
other defense. Except as provided in Section 5.06(b), all such payments will be
made free and clear of, and without deduction or withholding for, any present or
future Taxes now or hereafter imposed by any Governmental Authority or by any
politi cal subdivision or taxing authority thereof or therein with respect to
such payments (but excluding any Excluded Tax) and all interest, penalties or
similar liabilities with respect thereto (all such Taxes (other than Excluded
Taxes) being referred to collectively as "Covered Taxes"). If any Covered Taxes
are so levied or imposed, each Obligor agrees on a joint and several basis to
pay the full amount of such Covered Taxes, and such additional amounts as may be
necessary so that every payment of all amounts due under this Agreement, the
Guarantees or under any Note, after withholding or deduction for or on account
of any Covered Taxes, will not be less than the amount provided for herein or in
such Note. If any amounts are payable in respect of Covered Taxes pursuant to
the preceding sentence, each Obligor agrees, notwithstanding the definition of
Excluded Taxes, to reimburse on a joint and several basis each Lender, upon the
written request of such Lender, (i) for Taxes imposed on or measured by the net
income or net profits of such Lender pursuant to the laws of the jurisdiction in
which such Lender is organized or in which the principal office or Applicable
Lending Office of such Lender is located or under the laws of any political
subdivision or taxing authority of any such jurisdiction by reason of the making
of payments in respect of Covered Taxes pursuant to this Section (including
pursuant to this sentence) and (ii) for any withholding of Taxes as such Lender
shall determine are payable by, or withheld from, such Lender in respect of
amounts paid in respect of Covered Taxes to or on behalf of such Lender pursuant
to the preceding sentence and in respect of any amounts paid to or on behalf of
such Lender pursuant to this sentence. Each Obligor will furnish to
Administrative Agent within 45 days after the date the payment of any Covered
Taxes is due pursuant to applicable law certified copies of tax receipts or
other documentation reasonably satisfactory to such Lender evidencing such
payment by such Obligor. The Obligors agree to jointly and severally indemnify
and hold harmless each Lender, and reimburse such Lender upon its written
request, for the amount of any Covered Taxes so levied or imposed and paid by
such Lender and any liability (including penalties, additions to tax, interest
and expenses) arising therefrom or with respect thereto.
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"Excluded Taxes" shall mean other than as provided in the fourth
sentence of the first paragraph of this Section 5.06(a), any Tax (other than any
Other Taxes) (i) imposed on or measured by the net income or net profits of a
Lender pursuant to the laws of the jurisdiction in which it is organized or the
jurisdiction in which the principal office or Applicable Lending Office of such
Lender is located or any jurisdiction in which such Lender conducts business or
any subdivision thereof or therein and (ii) imposed on any Lender in the nature
of franchise taxes or other similar taxes imposed as a result of such Lender
doing business in a particular jurisdiction.
(b) Each Lender that is not a United States person (as such term is
defined in Section 7701(a)(30) of the Code) (a "Non-U.S. Lender") agrees to
deliver to Borrower and Administrative Agent on or prior to the Closing Date or,
in the case of a Lender that is an assignee or transferee of an interest under
this Agreement pursuant to Section 12.06 (unless the respective Lender was
already a Lender hereunder immediately prior to such assignment or transfer), on
the date of such assignment or transfer to such Lender, (i) two accurate and
complete original signed copies of Internal Revenue Service Form 4224 or 1001
(or successor forms) certifying to such Lender's entitlement to a complete
exemption from United States withholding tax with respect to payments to be made
under this Agreement and under any Note (or, with respect to any assignee
Lender, at least as extensive as the assigning Lender), or (ii) if the Lender is
not a "bank" within the meaning of Section 881(c)(3)(A) of the Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 pursuant to clause (i)
above, (x) a certificate substantially in the form of Exhibit J (any such
certificate, a "Section 5.06 Certificate") and (y) two accurate and complete
original signed copies of Internal Revenue Service Form W-8 (or successor form)
certifying to such Lender's entitlement to a complete exemption from United
States withholding tax with respect to payments to be made under this Agreement
and under any Note (or, with respect to any assignee Lender, at least as
extensive as the assigning Lender). In addition, each Lender agrees that from
time to time after the Closing Date, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
material respect, it will deliver to Borrower and Administrative Agent two new
accurate and complete original signed copies of Internal Revenue Service Form
4224 or 1001, or Form W-8 and a Section 5.06 Certificate, as the case may be,
and such other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in United
States withholding tax with respect to payments under this Agreement and any
Note, or it shall immediately notify Borrower and Administrative Agent of its
inability to deliver any such Form or Certificate, in which case such Lender
shall not be required to deliver any such form or certificate pursuant to this
Section 5.06(b) for so long as such payments may be made from United States
withholding tax. Notwithstanding the foregoing, no Lender shall be required to
deliver any such form or certificate if a change in treaty, law or regulation
has occurred prior to the date on which such delivery would otherwise be
required that renders any such form or certificate inapplicable or would prevent
the Lender from duly completing and delivering any such form or certificate with
respect to it and such Lender so advises Borrower. No Obligor shall be required
to indemnify any Non-U.S. Lender, or to pay any additional amounts to any
Non-U.S. Lender, in respect of any Covered Taxes to the extent that (i) the
obligation to pay such Covered Taxes would not have arisen but for a failure by
such Non-U.S. Lender to comply with the provisions of this Section 5.06(b) or
(ii) if the Internal Revenue Service properly determines that a Lender is a
"conduit entity" participating in a "conduit financing arrangement" within the
meaning of Treasury Regulation Section 1.881-3 and such additional amounts are
in excess of the amounts that would otherwise have been payable had such Lender
not been a "conduit entity" participating in a "conduit financing arrangement"
within the meaning of Treasury Regulation Section 1.881-3. Notwithstanding
anything to the contrary contained in the preceding sentence or elsewhere in
this Section 5.06 and except as set forth in Section 12.06(b), each of Borrower
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and PR Borrower agrees to pay additional amounts and to indemnify each Lender in
the manner set forth in Section 5.06(a) (without regard to the identity of the
jurisdiction requiring the deduction or withholding) in respect of any amounts
deducted or withheld by it as described in the immediately preceding sentence as
a result of any changes after the Closing Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the interpretation
thereof, relating to the deducting or withholding of income or similar Covered
Taxes.
(c) In addition, Borrower and PR Borrower agree 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").
(d) Any Lender claiming any additional amounts payable pursuant to
this Section 5.06 agrees to use (at the Obligors' expense) reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions) to
change the jurisdiction of its Applicable Lending Office if the making of such
change would avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the sole judgment of such
Lender, be otherwise disadvantageous to such Lender.
Section 6. Guarantee.
6.01. The Guarantee. The Guarantors hereby jointly and severally
guarantee as a primary obligor and not as a surety to each Lender, Issuing
Lender and 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 (including any interest, fees, costs or charges
that would accrue but for the provisions of the Bankruptcy Code after any
bankruptcy or insolvency petition under the Bankruptcy Code) on the Loans made
by the Lenders to, and the Notes held by each Lender of, Borrower and/or PR
Borrower, as applicable, and all other Obligations from time to time owing to
the Lenders, Issuing Lender or Agents by Borrower and/or PR Borrower, as
applicable, under this Agreement and under the Notes and by any Obligor under
any of the other Credit Documents, and all Obligations of the Obligors to any
Creditor and all Obligations owing to the Issuing Lender under the Letter of
Credit Documents, in each case strictly in accordance with the terms thereof
(such obligations being herein collectively called the "Guaranteed
Obligations"). The Guarantors hereby jointly and severally agree that if
Borrower and/or PR Borrower, as applicable, 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.
6.02. Obligations Unconditional. The obligations of the Guarantors
under Section 6.01 are absolute, irrevocable and unconditional, joint and
several, irrespective of the value, genuineness, validity, regularity or
enforceability of the obligations of Borrower and/or PR Borrower, as applicable,
under this 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 (except for payment in full).
Without limiting the generality of the foregoing, it is agreed that
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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, irrevocable
and unconditional under any and all circumstances 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 this
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 amended in any
respect, or any right under this Agreement, the Notes or any other Credit
Document or any other agreement or instrument referred to herein or therein
shall be amended or waived in any respect or any other guarantee of any of
the Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with;
(iv) any lien or security interest granted to, or in favor of, the
Issuing Lender or any Lender or Agent as security for any of the Guaranteed
Obligations shall fail to be perfected; or
(v) the release of any other Guarantor.
The Guarantors hereby expressly waive diligence, presentment, demand
of payment, protest and all notices whatsoever, and any requirement that the
Issuing Lender or any Agent or any Lender or Affiliate thereof exhaust any
right, power or remedy or proceed against Borrower and/or PR Borrower, as
applicable, under this 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. The
Guarantors waive any and all notice of the creation, renewal, extension, waiver,
termination or accrual of any of the Guaranteed Obligations and notice of or
proof of reliance by the Issuing Lender, any Lender or Affiliate thereof or any
Agent upon this guarantee or acceptance of this guarantee, and the Guaranteed
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred in reliance upon this guarantee, and all dealings between
Borrower and/or PR Borrower, as applicable, and the Issuing Lender, Lenders,
Affiliate thereof and Agents shall likewise be conclusively presumed to have
been had or consummated in reliance upon this guarantee. This guarantee shall be
construed as a continuing, absolute, irrevocable and unconditional guarantee of
payment without regard to any right of offset with respect to the Guaranteed
Obligations at any time or from time to time held by the Issuing Lender,
Lenders, Affiliate thereof and Agents, and the obligations and liabilities of
the Guarantors hereunder shall not be conditioned or contingent upon the pursuit
by the Issuing Lender, Lenders, Affiliate thereof or Agents or any other Person
at any time of any right or remedy against Borrower and/or PR Borrower, as
applicable, or against any other Person which may be or become liable in respect
of all or any part of the Guaranteed Obligations or against any collateral
security or guarantee therefor or right of offset with respect thereto. This
guarantee shall remain in full force and effect and be binding in accordance
with and to the extent of its terms upon the Guarantors and the successors and
assigns thereof, and shall inure to the benefit of the Lenders, and their
respective successors and assigns, notwithstanding that from time to time during
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the term of this Agreement there may be no Guaranteed Obligations outstanding.
6.03. Reinstatement. The obligations of the Guarantors under this
Section 6 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of Borrower and/or PR Borrower, as
applicable, 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. The
Guarantors jointly and severally agree that they will indemnify the Issuing
Lender, each Agent and each Lender or Affiliate thereof on demand for all
reasonable costs and expenses (including reasonable fees of counsel) incurred by
the Issuing Lender, such Agent or such Lender or Affiliate thereof 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, other than any costs or expenses resulting from the
gross negligence or bad faith of such Creditor.
6.04. Subrogation; Subordination. Each Guarantor hereby agrees that
until the indefeasible payment and satisfaction in full in cash of all
Guaranteed Obligations and the expiration and termination of the Commitments of
the Lenders under this Agreement it shall not exercise any right or remedy
arising by reason of any performance by it of its guarantee in Section 6.01,
whether by subrogation or otherwise, against Borrower, PR Borrower or any other
Guarantor of any of the Guaranteed Obligations or any security for any of the
Guaranteed Obligations. The payment of any amounts due with respect to any
indebtedness of Borrower, PR Borrower or any other Guarantor now or hereafter
owing to any Guarantor by reason of any payment by such Guarantor under the
Guarantee in this Section 6 is hereby subordinated to the prior indefeasible
payment in full in cash of the Guaranteed Obligations. Each Guarantor agrees
that it will not demand, sue for or otherwise attempt to collect any such
indebtedness of Borrower or PR Borrower to such Guarantor until the Obligations
shall have been indefeasibly paid in full in cash. If, notwithstanding the
foregoing sentence, any Guarantor shall prior to the indefeasible payment in
full in cash of the Guaranteed Obligations collect, enforce or receive any
amounts in respect of such indebtedness, such amounts shall be collected,
enforced and received by such Guarantor as trustee for Agents, the Issuing
Lender and the Lenders and Affiliates thereof and be paid over to Administrative
Agent on account of the Guaranteed Obligations without affecting in any manner
the liability of such Guarantor under the other provisions of the guaranty
contained herein.
6.05. Remedies. The Guarantors jointly and severally agree that, as
between the Guarantors and the Lenders, the obligations of Borrower and PR
Borrower under this Agreement and the Notes may be declared to be forthwith due
and payable as provided in Section 10 (and shall be deemed to have become
automatically due and payable in the circumstances provided in said Section 10)
for purposes of Section 6.01, notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against Borrower or PR 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 Borrower or PR Borrower, as applicable) shall forthwith become due and
payable by the Guarantors for purposes of Section 6.01.
6.06. Instrument for the Payment of Money. Each Guarantor hereby
acknowledges that the guarantee in this Section 6 constitutes an instrument for
the payment of money, and consents and agrees that any Lender or 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 a motion-action under New
York CPLR Section 3213.
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6.07. Continuing Guarantee. The guarantee in this Section 6 is a
continuing guarantee, and shall apply to all Guaranteed Obligations whenever
arising.
6.08. General Limitation on Guarantee Obligations. In any action or
proceeding involving any state corporate law, or any state, Federal or foreign
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, if the obligations of any Guarantor under Section 6.01
would otherwise be held or determined to be void, voidable, invalid or
unenforceable, or subordinated to the claims of any other creditors, on account
of the amount of its liability under Section 6.01, then, notwithstanding any
other provision to the contrary, the amount of such liability shall, without any
further action by such Guarantor, any Lender, any Agent 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 7. Conditions Precedent.
7.01. Effectiveness and Initial Extension of Credit. The effectiveness
of the Credit Documents and the obligation of the Lenders to make any initial
extension of credit hereunder (whether by making a Loan or issuing a Letter of
Credit) is subject to the satisfaction of the conditions precedent that:
(i) Documentation and Evidence of Certain Matters. Agents shall have
received the following documents, each duly executed where appropriate
(with sufficient conformed copies for each Lender), each of which shall be
reasonably satisfactory to Agents (and to the extent specified below, to
the Majority Lenders or to each Lender, as the case may be) in form and
substance:
(1) Corporate Documents. Certified true and complete copies of
the charter and by-laws and all amendments thereto (or equivalent
documents) of each Obligor and of all corporate authority for each
Obligor (including board of director resolutions and evidence of the
incumbency, including specimen signatures, of officers) with respect
to the execution, delivery and performance of such of the Credit
Documents to which such Obligor is intended to be a party and each
other document to be delivered by such Obligor from time to time in
connection herewith and the extensions of credit hereunder and the
consummation of the Transactions, certified as of the Closing Date as
complete and correct copies thereof by the Secretary or an Assistant
Secretary of such Obligor.
(2) Officers' Certificate. An Officers' Certificate of Borrower,
dated the Closing Date, to the effect set forth in clauses (a) and (b)
of Section 7.02(i) and to the effect that all conditions precedent to
the making of such extension of credit have been satisfied.
(3) Opinions of Counsel. (i) Opinion of Reboul, MacMurray,
Hewitt, Maynard & Kristol, counsel to the Obligors, substantially in
the form of Exhibit E-1, and (ii) opinion of Wilkinson, Barker, Knaver
& Quinn, LLP, special FCC counsel to the Obligors, substantially in
the form of Exhibit E-2 (and each Obligor hereby instructs each such
counsel to deliver such opinion to the Lenders and Agents).
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(4) The Credit Agreement. This Agreement, (i) executed and
delivered by a duly authorized officer of each Obligor with a
counterpart for each Lender, and (ii) executed and delivered by a duly
authorized officer of each Lender and Agent.
(5) Notes. The Notes, duly completed and executed for each Lender
that has requested Notes prior to the Closing Date.
(6) Security Documents. The Security Agreement, the Collateral
Assignment of Location Agreements, such other pledge agreements
required under local law in the judgment of counsel to Administrative
Agent and requested reasonably in advance of the intended Closing Date
(each of which shall be in full force and effect) and the Perfection
Certificate, substantially in the form of Exhibit M, duly authorized,
executed and delivered by the Obligors and Administrative Agent, and
the certificates identified under the name of such Obligors in
Schedule I-A to the Security Agreement, accompanied by undated stock
powers executed in blank if applicable, and the Intercompany Notes
identified under the name of such Obligors in Schedule II to the
Security Agreement, accompanied by undated notations or instruments of
assignment executed in blank.
(7) Solvency Certificate and Opinion. A certificate in the form
of Exhibit C-2 from the chief financial officer of Borrower as to the
Solvency of each Obligor (on a consolidated basis) immediately after
giving effect to the Transactions on the Closing Date and, at
Borrower's expense, an opinion of Valuation Research in form and
substance reasonably satisfactory to Agents with respect to the
Solvency of each of Parent and Borrower (each on a consolidated basis)
immediately after giving effect to the Transactions on the Closing
Date.
(8) Insurance. Evidence of insurance complying with the
requirements of Section 9.04 and the Security Documents and
certificates naming Administrative Agent as an additional insured
and/or loss payee, and stating that such insurance shall not be
canceled or revised without 30 days prior written notice by the
insurer to Administrative Agent.
(9) Transaction Documents, Etc. Executed copies of the Merger
Agreement, the Parent Financing Documents, the Senior Subordinated
Notes Financing Documents, any management or similar agreement entered
into by any Obligor or any executive officer or director thereof with
any Affiliate of Borrower (other than any Company) and all exhibits,
appendices, annexes and schedules to any thereof, each certified by a
senior officer of Borrower as true, complete and correct copies
thereof.
(10) Repayment of Existing Credit Facilities. Evidence in the
form of a "payoff" letter satisfactory to Agents that the principal of
and interest on, and all other amounts owing in respect of, the
Existing Credit Facilities have been (or shall be simultaneously) paid
in full, that any commitments to extend credit under the agreements or
instruments relating to such Indebtedness have been canceled or
terminated and that all guarantees in respect of, and all Liens
securing, any such Indebtedness have been released with such evidence
thereof satisfactory to Agents (or arrangements for such release
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satisfactory to Agents have been made); in addition, from any Person
holding any Lien securing any such Indebtedness, such Uniform
Commercial Code termination statements, mortgage releases and other
instruments, in each case in proper form for recording, as Agents
shall have reasonably requested to release and terminate of record the
Liens securing such Indebtedness (or arrangements for such release and
termination reasonably satisfactory to Agents have been made).
(11) Consent and Agreements. The Century-ML Consent and Agreement
executed by the parties thereto.
(ii) Date of Closing. Such extension of credit shall be made on or
before January 31, 1999 (extended to April 30, 1999 if the sole reason for
failure to consummate the Merger is due to the failure to obtain all
necessary FCC and state approvals to the transfer of the FCC and state
licenses in connection with the Merger).
(iii) Completion of Senior Subordinated Notes Financing. Borrower
shall have received aggregate gross proceeds (in excess of the amount of
interest in escrow pursuant to the Senior Subordinated Notes Interest
Escrow Agreement) of not less than $310.0 million from the Senior
Subordinated Notes Financing pursuant to the Senior Subordinated Notes
Financing Documents, which documents shall be on terms and conditions
satisfactory to Agents. There shall have been deposited into the Senior
Subordinated Notes Interest Escrow Account, pursuant to the terms thereof,
cash and/or securities in an amount sufficient to pay the first three
scheduled interest payments on the Senior Subordinated Notes as and when
due.
(iv) Completion of Parent Financing. (a) The Investors shall have
purchased for cash common equity of Parent in an aggregate amount of $400.0
million. The Investors shall beneficially own not less than a majority of
the voting and economic interests in Parent immediately after giving effect
to the Transactions; (b) Parent shall have received aggregate gross
proceeds of not less than $180.0 million from the issuance and sale of the
Parent Subordinated Notes pursuant to Parent Financing Documents, which
documents shall be on terms and conditions satisfactory to Agents (which
shall include provisions requiring all interest not paid in cash to be paid
in kind, restricting the transfer of the Parent Subordinated Notes to third
parties and allowing acceleration of the Parent Subordinated Notes only if
the Senior Subordinated Notes and the Credit Facilities shall have been
accelerated and such acceleration shall not have been rescinded within 90
days after notice); and (c) Agents shall have received satisfactory
evidence that fees and expenses in connection with the Transactions and
tender premiums in connection with the Note Tender will not exceed $135.0
million (such tender premiums reduced proportionally to the extent that
less than all of the Existing Notes are tendered) (unless a greater amount
is provided with additional equity or consented to by Agents).
(v) Board Approval. The Board of Directors of each of Parent, its
Subsidiaries and Target shall have authorized and approved the Transactions
and Agents shall have received reasonably satisfactory evidence of the
same.
(vi) Terms of Merger. The Merger Agreement shall be in full force and
effect. The terms, conditions and structure of the Merger and the Merger
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Agreement, including any amendments thereto (and the documentation therefor
(including all proxy solicitation materials)) shall be in form and
substance reasonably satisfactory to Agents (it being understood that the
terms, conditions and structure of the Merger Agreement dated July 2, 1998,
as amended by the amendment thereto dated November 29, 1998, are acceptable
to Agents). Target shall not have any "poison pill" rights or shall have
redeemed such rights at a nominal price, or Agents shall otherwise be
reasonably satisfied that such rights are null and void as applied to the
Merger. Agents shall have received copies of all filings made with any
governmental authority in connection with the Transactions.
(vii) Legality. Each of the Transactions and the financing therefor
shall be in compliance with all laws and regulations, or Agents shall have
determined such to be inapplicable to such transactions.
(viii) Consummation of Transactions. The Transactions shall have been
or shall simultaneously be consummated in all material respects in
accordance with the terms hereof and the terms of the Transaction Documents
and the other documentation therefor (without the waiver or amendment of
any condition relating to FCC approvals or any other material condition
unless consented to by Agents and the Lenders) that are in form and
substance reasonably satisfactory to Agents (with any condition therein
requiring the satisfaction or consent of Parent being deemed to require the
satisfaction of Agents).
(ix) Maximum Merger Price; Maximum Existing Stockholders Ownership.
The cash consideration per share of common stock in the Merger shall not
exceed $41.50 per share and an aggregate of $1,203.5 million for all
shares. After giving effect to the Transactions, the Existing Stockholders
shall own not more than 7.1% of the fully diluted common equity of Parent.
(x) Note Tender Acceptance; No Other Debt or Preferred Stock; Note
Defeasance. Target shall have accepted for payment all Existing Notes
validly tendered in the Note Tender pursuant to the terms of the Offer to
Purchase and Consent Solicitation dated September 8, 1998 of Target (and
Agents shall have been provided with reasonably satisfactory evidence
thereof). After giving effect to the Transactions and other transactions
contemplated hereby, no Company or Subsidiary shall have outstanding
Indebtedness or preferred stock (or direct or indirect guarantees or other
credit support in respect thereof) outstanding other than the Loans, the
Senior Subordinated Notes, the Parent Subordinated Notes and all remaining
Existing Notes not validly tendered in the Note Tender in an amount
acceptable to Agents for which arrangements satisfactory to Agents have
been made and other Indebtedness as set forth in Schedule 9.08. To the
extent that any Existing Notes are not tendered in the Note Tender in an
amount in excess of an amount acceptable to Agents, the Note Defeasance
shall be effected pursuant to documentation satisfactory to Agents.
(xi) Effectiveness of Supplemental Indentures for Existing Notes.
Paragraphs A and B of each of the Supplemental Indentures which eliminates
the negative covenants and certain events of default under the Existing
Indentures, shall have become effective in accordance with the terms
thereof and the terms of such Supplemental Indentures shall be satisfactory
to Agents.
(xii) No Material Adverse Change. There shall not have occurred or
become known any Material Adverse Change of Target and its subsidiaries,
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taken as a whole, as the case may be (before and after giving effect to the
Transactions), since May 31, 1998.
(xiii) Pro Forma Balance Sheet. The Lenders shall have received a pro
forma consolidated balance sheet of Borrower dated as of the date of the
most recently available financial statements of Borrower after giving
effect to the Transactions, which balance sheet shall be consistent in all
material respects with the sources and uses shown on Annex I to the
Commitment Letter. The sources and uses to effect the Transactions shall
not differ in any material respect from that set forth in Annex I to the
Commitment Letter. Borrower shall also have provided such other financial
information as the Agents may reasonably request in connection with the
Transactions.
(xiv) Approvals. All requisite Governmental Authorities and third
parties shall have approved or consented to the Transactions and the other
transactions contemplated hereby to the extent required under the Merger
Agreement (including that the necessary consent of the FCC with respect to
the transfer of the FCC licenses to occur upon consummation of the
Recapitalization shall have become a "final order" (as customarily
understood)) and all applicable appeal periods shall have expired and there
shall be no governmental or judicial action or Proceeding, actual or
threatened, that has had the effect of (or could reasonably be expected to
have the effect of) restraining, preventing or imposing materially
burdensome conditions on any of the Transactions or the other transactions
contemplated hereby, except, in each case, as would not, singly or in the
aggregate, result in a Material Adverse Effect.
(xv) No Default in Other Agreements. Any defaults in any material
agreements of any Company or Target and its Subsidiaries that may result
from the Transactions shall have been resolved or otherwise addressed in a
manner satisfactory to Agents; and no law or regulation shall be applicable
in the judgment of Agents that restrains, prevents or imposes materially
adverse conditions upon any component of the Transactions or the financing
thereof, including the extensions of credit under this Agreement.
(xvi) Margin Rule Compliance. All Loans and other financing to
Borrower and PR Borrower (including after giving effect to the
Transactions) shall be in full compliance with all applicable requirements
of Regulations T, U and X.
(xvii) Payment of Fees and Expenses. All accrued fees and expenses
(including the reasonable fees and expenses of Cahill Gordon & Reindel,
special counsel to Agents) of Agents and accrued fees of the Lenders in
connection with the Credit Documents shall have been paid.
(xviii) Maximum Total Leverage Ratio. Agents shall have received
satisfactory evidence (including satisfactory supporting schedules and
other data) that after giving pro forma effect to the Transactions the
Total Leverage Ratio is not greater than 9.0:1.0.
(xix) Filings and Lien Searches. The Obligors shall have authorized,
executed and delivered each of the following:
(1) UCC Financing Statements (Form UCC-1) in appropriate form for
filing under the UCC and any other applicable law, rule or regulation
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in each jurisdiction as may be necessary or appropriate to perfect the
Liens created, or purported to be created, by the Security Documents;
(2) certified copies of Requests for Information (Form UCC-11),
tax lien, judgment lien and pending lawsuit searches or equivalent
reports or lien search reports, each of a recent date listing all
effective financing statements, lien notices or comparable documents
that name any Obligor as debtor and that are filed in those state,
county and other jurisdictions in which any of the Collateral of such
Obligor is located and the state, county and other jurisdictions in
which each such Person's principal place of business is located, none
of which encumber the Collateral covered or intended to be covered by
the Security Agreement other than those encumbrances which constitute
Permitted Liens or Prior Liens; and
(3) evidence of arrangements for (A) the completion of all
recordings and filings of, or with respect to, the Security Documents,
including, to the extent required by Agents, filings with the United
States Patent, Trade and Copyright offices, (B) delivery of such
other security and other documents, and (C) the taking of all actions
as may be necessary or, in the opinion of Agents, desirable, to
perfect the Liens created, or purported to be created, by the Security
Documents.
(xx) Certain Agreements. Except as provided in the Merger Agreement,
all material contracts with Borrower or its affiliates relating to the
conduct of its Puerto Rican operations and its Subsidiaries' business shall
remain in full force and effect on terms and conditions and pursuant to
documentation satisfactory to Agents. Each of the Facilities Agreement and
the Marketing Agreements shall be in full force and effect and Agents shall
have received certified copies thereof and reasonably satisfactory evidence
that each such agreement shall remain in full force and effect after the
Closing Date on the terms previously disclosed to Agents.
(xxi) Minority Interests. All Minority Interests shall be held of
record and beneficially by Borrower or one of its Wholly Owned
Subsidiaries.
(xxii) Other Matters. The Lenders shall have received such other legal
opinions, corporate documents and other instruments and/or certificates as
Agents may request in their reasonable discretion.
7.02. Initial and Subsequent Extensions of Credit. The obligation of
the Lenders to make any Loan or otherwise extend any credit to Borrower or PR
Borrower upon the occasion of each borrowing or other extension of credit
(whether by making a Loan or issuing a Letter of Credit) hereunder (including
the initial borrowing) is subject to the further conditions precedent that:
(i) No Default or Event of Default; Representations and Warranties
True. Both immediately prior to the making of such Loan or other extension
of credit and also after giving pro forma effect thereto and to the
intended use thereof:
(a) no Default or Event of Default shall have occurred and be
continuing; and
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(b) the representations and warranties made by the Obligors in
Section 8, and by each Obligor in each of the other Credit Documents
to which it is a party, shall be true and complete in all material
respects on and as of the date of the making of such Loan or other
extension of credit with the same force and effect as if made on and
as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such
specific date).
(ii) No Legal Bar. The Loans and the use of proceeds thereof shall not
contravene, violate or conflict with, nor involve any Lender in a violation
of, any law, rule, injunction, or regulation or determination of any court
of law or other Governmental Authority.
(iii) No Material Adverse Effect. There shall not have occurred any
Material Adverse Effect.
(iv) Notice of Borrowing. Administrative Agent shall have received a
Notice of Borrowing duly completed and complying with Section 4.05.
Each Notice of Borrowing or request for the issuance of a Letter of
Credit by Borrower or PR Borrower (as the case may be) hereunder shall
constitute a certification by Borrower to the effect set forth in clauses
(i)-(iii) above as of the date of such borrowing or issuance.
Each notice submitted by Borrower or PR Borrower (as the case may be)
hereunder for an extension of credit hereunder shall constitute a representation
and warranty by Borrower or PR Borrower (as the case may be), as of the date of
such notice and as of the relevant borrowing date or date of issuance of a
Letter of Credit, as applicable, that the applicable conditions in Sections 7.01
and 7.02 have been satisfied or waived in accordance with the terms hereof.
7.03. Determinations Under Section 7. For purposes of determining
compliance with the conditions specified in Sections 7.01 and 7.02, 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
Administrative Agent responsible for the transactions contemplated by this
Agreement shall have received notice from such Lender prior to the date that
Borrower or PR Borrower (as the case may be), by notice to the Lenders,
designates as the proposed date of the extension of credit, specifying its
objection thereto.
Section 8. Representations and Warranties. Each Obligor represents and
warrants to the Creditors that at and as of each Funding Date (in each case
immediately before and immediately after giving effect to the transactions to
occur on such date (including, with respect to the Closing Date, the
Transactions)):
8.01. Corporate Existence. Each Company: (a) is a corporation,
partnership, limited liability company or other entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization; (b) has all requisite corporate or other power and authority, and
has all governmental licenses, authorizations, consents and approvals necessary
to own its Property and carry on its business as now being conducted; and (c) is
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qualified to do business and is in good standing in all jurisdictions in which
the nature of the business conducted by it makes such qualification necessary
and, in the case of clauses (a), (b) and (c) where the failure thereof
individually or in the aggregate is reasonably likely to have a Material Adverse
Effect.
8.02. Financial Condition; Etc. (a) Borrower has heretofore delivered
to the Lenders (A) the audited consolidated balance sheets of Target and its
Subsidiaries as of May 31, 1995, May 31, 1996, May 31, 1997 and May 31, 1998,
and the related statements of earnings, changes in stockholders' equity and cash
flows for the fiscal years ended on those dates, together with reports thereon
by Deloitte & Touche LLP, certified public accountants, and (B) the unaudited
consolidated balance sheets of Target and its Subsidiaries as of August 31,
1998, and the related statements of earnings and cash flows for the fiscal
period ended on August 31, 1998. All of said financial statements, including in
each case the related schedules and notes, are true, complete and correct and
have been prepared in accordance with GAAP consistently applied and present
fairly the financial position of Target and its Subsidiaries as of the
respective dates of said balance sheets and the results of their operations for
the respective periods covered thereby, subject (in the case of interim
statements) to period-end audit adjustments.
(b) Except as set forth in Schedule 8.02(b) or in the financial
statements or other information referred to in Section 8.02(a), as of the
Closing Date, there are no material liabilities of any Company of any kind
required to be set forth on a balance sheet or in the notes thereto prepared in
accordance with GAAP, whether accrued, contingent, absolute, determined,
determinable or otherwise, and there is no existing condition, situation or set
of circumstances which is reasonably likely to result in such a liability, other
than:
(i) liabilities disclosed or provided for in the Schedules hereto, the
reports filed by Target with the Commission filed prior to the date of the
Merger Agreement;
(ii) liabilities incurred in the ordinary course of business
consistent with past practice since May 31, 1998, which in the aggregate
are not reasonably likely to have a Material Adverse Effect; and
(iii) liabilities under this Agreement, the Merger Agreement, the
Parent Financing Documents, the Senior Subordinated Notes Financing
Documents or liabilities incurred in connection with the transactions
contemplated hereby.
(c) Except as set forth in the filings by Target prior to the date of
the Merger Agreement or as set forth in Schedule 8.02(c), since May 31, 1998
there has been no Material Adverse Change.
(d) Each of the pro forma balance sheet of Parent and its Consolidated
Subsidiaries and Borrower and its Consolidated Subsidiaries (the "Pro Forma
Balance Sheets"), certified by the chief financial officer of Parent and
Borrower, copies of which have been heretofore furnished to each Lender, is the
balance sheet of Target and its Consolidated Subsidiaries as of the date of the
latest available balance sheet of Target prior to the Closing Date (the "Pro
Forma Date"), adjusted to give effect (as if such events had occurred on such
date) to the Transactions to occur on the Closing Date and the application of
the proceeds of all Indebtedness to be incurred on such date. Each Pro Forma
Balance Sheet, together with the notes thereto, accurately reflects in all
material respects all adjustments necessary to give effect to the Transactions,
was prepared based on good faith assumptions, and presents fairly in all
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material respects on a pro forma basis the consolidated financial position of
Parent and its Consolidated Subsidiaries and Borrower and its Consolidated
Subsidiaries as at the Pro Forma Date, adjusted as described above.
8.03. Litigation. Except as set forth in the reports filed by Target
with the Commission prior to the date hereof or in Schedule 8.03, there is no
Proceeding pending against, or to the knowledge of any Obligor threatened in
writing against or affecting, any Company or any of its respective Properties
before any Governmental Authority that have a reasonable likelihood of being
adversely determined and that, if determined or resolved adversely to such
Company in accordance with the plaintiff's demands, is reasonably likely to have
a Material Adverse Effect.
8.04. No Breach; No Default. (a) None of the execution, delivery and
performance by any Obligor of any Credit Document or Transaction Document to
which it is a party nor the consummation of the transactions herein and therein
contemplated (including the Transactions) will (i) conflict with or result in a
breach of, or require any consent (which has not been obtained and is in full
force and effect) under, any Organic Document of any Company or any applicable
Requirement of Law or any order, writ, injunction or decree of any Governmental
Authority binding on any Company, or any term or provision of any Contractual
Obligation of any Company or (ii) constitute (with due notice or lapse of time
or both) a default under any such Contractual Obligation, or (iii) result in the
creation or imposition of any Lien (except for the Liens created pursuant to the
Security Documents) upon any Property of any Company pursuant to the terms of
any such Contractual Obligation, except with respect to each of the foregoing
which is not reasonably likely to have a Material Adverse Effect or which is not
reasonably likely to subject any Agent, Lender or Issuing Lender to any material
risk of damages or liability to third parties.
(b) No Company is in default under or with respect to any Contractual
Obligation (including any Transaction Document) or any order, award or decree of
any Governmental Authority or arbitrator binding upon it or any of its Property
in any respect which is reasonably likely to have a Material Adverse Effect.
(c) No Default or Event of Default has occurred and is continuing.
8.05. Action. Each Company has all necessary corporate power,
authority and legal right to execute, deliver and perform its obligations under
each Credit Document and Transaction Document to which it is a party and to
consummate the transactions herein and therein contemplated; the execution,
delivery and performance by each Company of each Credit Document and Transaction
Document to which it is a party and the consummation of the transactions herein
and therein contemplated have been duly authorized by all necessary corporate
action on its part; and this Agreement has been duly and validly executed and
delivered by each Obligor and constitutes, and each of the Notes and the other
Credit Documents to which it is a party when executed and delivered by such
Obligor (in the case of the Notes, for value) will constitute, its legal, valid
and binding obligation, enforceable against each Obligor in accordance with its
terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws of
general applicability from time to time in effect affecting the enforcement of
creditors' rights and remedies and (b) the application of general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
8.06. Approvals. No authorizations, approvals or consents of, and no
filings or registrations with, any Governmental Authority or any securities
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exchange are necessary for the execution, delivery or performance by any Company
of the Credit Documents and the Transaction Documents to which it is a party or
for the legality, validity or enforceability hereof or thereof or for the
consummation of the transactions herein and therein contemplated, except for
filings and recordings in respect of the Liens created pursuant to the Security
Documents and except for consents, authorizations and filings that have been
obtained or made and are in full force and effect or the failure of which to
obtain is not reasonably likely to have a Material Adverse Effect.
8.07. Representations and Warranties in the Merger Agreement. The
representations and warranties set forth in the Merger Agreement made by Parent
and Target, respectively, are, in each case, true and correct in all material
respects as of the time such representations and warranties were made and shall
be true and correct in all material respects as of the Closing Date as if such
representations and warranties were made on and as of such date, unless such
representations and warranty expressly indicates that it is being made as of any
other specific date.
8.08. ERISA. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could be reasonably likely to have a
Material Adverse Effect. The present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $10.0 million the fair market value of the assets of all such underfunded
Plans. Each member of the ERISA Group is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect to
each Employee Benefit Plan. Using actuarial assumptions and computation methods
consistent with subpart 1 of subtitle E of Title IV of ERISA, the aggregate
liabilities of any of each ERISA Entity to all Multiemployer Plans in the event
of a complete withdrawal therefrom, as of the close of the most recent fiscal
year of each such Multiemployer Plan, would not reasonably be expected to result
in a Material Adverse Effect.
Each Foreign Plan has been maintained in compliance in all material
respects with its terms and with the requirements of any and all applicable
laws, statutes, rules regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. Neither the
Borrower nor any Subsidiary have incurred any material obligation in connection
with the termination of or withdrawal from any Foreign Plan. The present value
of the accrued benefit liabilities (whether or not vested) under each Foreign
Plan which is funded, determined as of the end of the most recently ended fiscal
year of Borrower or Subsidiary on the basis of actuarial assumptions, each of
which is reasonable, did not materially exceed the current value of the assets
of such Foreign Plan, and for each Foreign Plan which is not funded, the
obligations of such Foreign Plan are properly accrued.
8.09. Taxes. Except as set forth in the Target Balance Sheet
(including the notes thereto) and except as is not reasonably likely to have a
Material Adverse Effect, (i) all tax returns, statements, reports and forms
(including estimated Tax or information returns) (collectively, the "Tax
Returns") required to be filed with any taxing authority by, or with respect to,
each Company have been filed in accordance with all applicable laws; (ii) each
Company has timely paid or made provision for payment of all Taxes shown as due
and payable on Tax Returns that have been so filed, and, as of the time of
filing, each Tax Return correctly reflected the facts regarding income,
business, assets, operations, activities and the status of each Company (other
than Taxes which are being contested in good faith and for which
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adequate reserves are reflected on the Target Balance Sheet or on other
financial statements subsequently delivered hereunder) and (iii) each Company
has made provision for all Taxes payable by such Company for which no Tax Return
has yet been filed.
Except as set forth on Schedule 8.09, (i) no extension of a statute of
limitations relating to material Taxes is in effect with respect to any Company;
(ii) no Company has ever been a member of an affiliated group of corporations
within the meaning of Section 1504 of the Code other than an affiliated group of
corporations of which Parent was the common parent; and (iii) there are no
material tax sharing agreements or similar arrangements (including tax indemnity
arrangements) with respect to or involving any Company.
8.10. Investment Company Act; Public Utility Holding Company Act;
Other Restrictions. No Company is an "investment company", or a company
"controlled" by an "investment company", within the meaning of the United States
Investment Company Act of 1940, as amended. No Company is a "holding company",
or an "affiliate" of a "holding company" or a "subsidiary company" of a "holding
company", within the meaning of the United States Public Utility Holding Company
Act of 1935, as amended. No Obligor is subject to regulation under any law or
regulation which limits its ability to incur Indebtedness, other than Regulation
X of the Board of Governors of the Federal Reserve System.
8.11. Environmental Matters. Except as disclosed in Schedule 8.11 and
except as would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect: (i) each Company is in compliance with and
in the last five years has been in compliance with, and is not subject to
liability under, any Environmental Laws applicable to it and there are no
Environmental Laws, including such Laws which have been formally proposed for
public comment, which would reasonably be expected to result in material
expenditures by any Company, and no such Environmental Laws would reasonably be
expected to interfere in any material way with current or projected operations
of any Company; (ii) no Company has received notice that it or any of their
respective predecessors in interest has been identified as a potentially
responsible party under the United States Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA"), or any similar
law of any Governmental Authority, nor has any Company received notice that any
Hazardous Materials that it or any of its respective predecessors in interest
has used, generated, stored, treated, handled, transported or disposed of, or
arranged for disposal or treatment of, have been found at any site at which any
Person is conducting or plans to conduct any action pursuant to any
Environmental Law, and no Company, or to the knowledge of the Obligors, any of
their respective predecessors in interest, has disposed of, arranged for the
disposal or treatment of, or otherwise released Hazardous Materials at any site
at which any Person is conducting or plans to conduct any action under
Environmental Law; (iii) no properties now or formerly owned, leased or operated
by any Company or, to the knowledge of any Obligor, any of their respective
predecessors in interest, are (x) listed or proposed for listing on the National
Priorities List under CERCLA or (y) listed on the Comprehensive Environmental
Response, Compensation and Liability Information System List promulgated
pursuant to CERCLA or (z) included on any similar lists maintained by any
Governmental Authority; (iv) there are no past or present events, conditions,
activities, practices or actions, or any agreements, judgments, decrees or
orders by which any Company is bound, which would reasonably be expected to
prevent any Company's compliance with any Environmental Law, or which would
reasonably be expected to give rise to any liability of any Company under any
Environmental Law, including, without limitation, liability under CERCLA or any
similar state or foreign laws; (v) no Lien has been asserted or recorded, or to
the knowledge of the obligors, threatened, under any Environmental Law
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with respect to any asset, facility, inventory or property currently owned,
leased or operated by any Company; (vi) there are no underground storage tanks
or related piping at any property owned, operated or leased by any Company;
(vii) no such tanks or related piping has been removed from such properties; and
(viii) no Company is subject to any Proceeding alleging the violation of, or
liability under, any Environmental Law and, to the knowledge of the Obligors, no
such Proceeding is threatened.
8.12. Environmental Investigations. As of the Closing Date, all
material environmental investigations, studies, audits or assessments which have
been conducted and which are in the possession, custody or control of any
Company relating (i) to the current or prior business, operations, facilities or
Property of any Company or any of their respective predecessors in interest or
(ii) to any facility, Property or other asset now or previously owned, operated,
leased or used by any Company or any of their respective predecessors in
interest have been made available to Agents and the Lenders.
8.13. Use of Proceeds. No Company is engaged principally, or as one of
its important activities, in the business of extending credit for the purpose,
whether immediate, incidental or ultimate, of buying or carrying Margin Stock
and no part of the proceeds of any extension of credit hereunder will be used
directly or indirectly and whether immediately, incidentally or ultimately to
purchase or carry any Margin Stock or to extend credit to others for such
purpose or to refund Indebtedness originally incurred for such purpose.
Following application of the proceeds of each extension of credit hereunder, not
more than 25 percent of the value of the assets (either of Borrower or PR
Borrower individually or of Borrower and its Consolidated Subsidiaries) will be
Margin Stock. Borrower and PR Borrower will use the proceeds of (i) all Term
Loans to finance the Transactions and (ii) Revolving Credit Loans to finance the
Transactions (in an amount not to exceed on the Closing Date $65.0 million
unless consented to by Agents in their sole discretion), pay fees and expenses
related thereto, and for general corporate purposes. If requested by any Lender
or Lead Arranger, Borrower will furnish to Administrative Agent and each Lender
a statement to the foregoing effect in conformity with the requirements of FR
Form U-1 referred to in Regulation U.
8.14. Subsidiaries, Etc. As of the Closing Date (after giving effect
to the Transactions), Parent, Borrower and PR Borrower have no Subsidiaries or
interests (whether direct or indirect) in partnerships, Minority Interests or
business trusts other than the entities set forth on Schedule 8.14. Each
Subsidiary listed on Schedule 8.14 (other than any Foreign Subsidiary or any
non-operating Subsidiary, as indicated on such schedule) is a Guarantor as of
the Closing Date. Each of Parent, Borrower and PR Borrower owns, as of the
Closing Date, the percentage of the issued and outstanding Equity Interests or
other evidences of the ownership of each of their respective Subsidiaries,
partnerships or Minority Interests listed on Schedule 8.14 as set forth on such
Schedule. No such Subsidiary, partnership or Minority Interest has issued any
securities convertible into shares of its Equity Interests (or other evidence of
ownership) or any Equity Rights to acquire such shares or securities convertible
into such shares (or other evidence of ownership), and the outstanding stock and
securities (or other evidence of ownership) of such Subsidiaries, partnerships
or Minority Interests are owned by Parent, Borrower or PR Borrower, as
applicable, free and clear of all Liens and Equity Rights of others of any kind
whatsoever, except for Liens pursuant to the Security Documents. Parent does not
have any direct equity interest in any Person other than Borrower. All Minority
Interests that will be the source of Dividend Payments pursuant to Section
9.10(c)(iv) or 9.10(c)(v) are expressly identified on Schedule 8.14 and are
owned directly by Borrower or a Qualified Subsidiary.
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8.15. Properties. Except as otherwise contemplated or provided in the
Mortgages, the other Security Documents or this Agreement, and except for such
exceptions that do not, or are not reasonably likely to, have a Material Adverse
Effect, Borrower or a Subsidiary (i) has good and marketable title to all the
Property reflected in Borrower Balance Sheet or in any later financial
statements provided hereunder as being owned by Borrower or any Subsidiary
(except Property sold or otherwise disposed of since the date thereof in the
ordinary course of business or as otherwise not prohibited by the Credit
Documents), or acquired after the date thereof, free and clear of all Liens,
except (x) Permitted Liens and (y) such imperfections or irregularities of title
or Liens as do not materially affect the use of the Properties subject thereto
or affected thereby or otherwise materially impair business operations at such
Properties and (ii) is the lessee of all leasehold estates and is in possession
of the Properties purported to be leased thereunder, and to the knowledge of
Borrower, each such lease is valid without default thereunder by the lessee or
lessor. Title to all Property of any Company is held by such Company free and
clear of all Liens except for Permitted Liens.
Except for such exceptions that do not, or are not reasonably likely
to have a Material Adverse Effect, the Properties of Borrower and the
Subsidiaries, taken as a whole, are in good operating condition and repair
(ordinary wear and tear excepted), and constitute all of the assets and
properties which are required for the businesses and operations of Borrower and
the Subsidiaries as presently conducted.
8.16. Security Interest; Absence of Financing Statements; Etc. The
Security Documents, once executed and delivered, will create, in favor of
Administrative Agent for the benefit of the Issuing Lender, Lenders and Agents,
as security for the obligations purported to be secured thereby, a valid and
enforceable, and upon filing or recording with the appropriate Governmental
Authorities and delivery of the applicable documents to Administrative Agent,
perfected first priority security interest in and Lien upon all of the
Collateral (and the proceeds thereof), superior to and prior to the rights of
all third persons other than the holders of Permitted Liens.
Except as set forth on Schedule 8.16 and except for Permitted Liens
and the Liens created by the Security Documents, there is no currently effective
financing statement, security agreement, chattel mortgage, real estate mortgage
or other document filed or recorded with any filing records, registry, or other
public office, that purports to cover, affect or give notice of any Lien on, or
security interest in, any Property of any Company or rights thereunder.
8.17. Licenses and Permits; Compliance with Laws. The Companies hold
all governmental permits, licenses, authorizations, consents and approvals
necessary for the Companies to own, lease, and operate their respective
Properties and to operate their respective businesses as now being conducted
(collectively, the "Permits"), except for Permits the failure of which to obtain
is not reasonably likely to have a Material Adverse Effect. None of the Permits
has been modified in any way that is reasonably likely to have a Material
Adverse Effect. All Permits are in full force and effect except where the
failure to be in full force and effect is not reasonably likely to have a
Material Adverse Effect.
The businesses of the Companies are not being conducted in violation
of any applicable law, statute, ordinance, regulation, judgment, Permits, order,
decree, concession, grant or other authorization of any governmental entity,
except for violations that are not reasonably likely to have a Material Adverse
Effect.
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There does not exist any judgment, order or injunction prohibiting or
imposing material adverse conditions upon the Transactions, or the performance
by any Company of any of its material obligations under the Credit Documents.
8.18. True and Complete Disclosure. The information, reports,
financial statements, exhibits and schedules furnished in writing by or on
behalf of any Obligor to any Creditor in connection with the negotiation,
preparation or delivery of this Agreement and the other Credit Documents or
included herein or therein or delivered pursuant hereto or thereto or pursuant
to the Confidential Information Memorandum dated November 1998 distributed in
connection with the syndication of the Commitments and Loans, including all
filings made with the Commission by Target or any Company, but in each case
excluding all projections, whether prior to or after the date of this Agreement,
when taken as a whole, do not, as of the date such information was furnished,
contain any untrue statement of material fact or omit to state a material fact
necessary in order to make the statements herein or therein, in light of the
circumstances under which they were made, not materially misleading. The
projections and pro forma financial information furnished at any time by any
Obligor to any Creditor pursuant to this Agreement have been prepared in good
faith based on assumptions believed by Borrower to be reasonable at the time
made, it being recognized by the Lenders that such financial information as it
relates to future events is not to be viewed as fact and that actual results
during the period or periods covered by such financial information may differ
from the projected results set forth therein by a material amount and no
Obligor, however, makes any representation as to the ability of any Company to
achieve the results set forth in any such projections. Each Obligor understands
that all such statements, representations and warranties shall be deemed to have
been relied upon by the Lenders as a material inducement to make each extension
of credit hereunder.
8.19. Solvency; Etc. As of the Closing Date immediately prior to and
immediately following the consummation of the Transactions and the extensions of
credit to occur on such date each Obligor is and will be Solvent (after giving
effect to Section 6.08(a)).
8.20. Contracts. No Company is in default under any material contract
or agreement to which it is a party or by which it is bound, nor, to Borrower's
knowledge, does any condition exist that, with notice or lapse of time or both,
would constitute such default, excluding in any case such defaults that are not
reasonably likely to have a Material Adverse Effect. Schedule 8.20 and the Form
10-K for the fiscal year ended May 31, 1998 filed by Target with the Commission
accurately and completely list (x) all agreements, if any, among the
stockholders (or any of their Affiliates other than any Company) of Parent on
the one hand and any Company on the other in effect on the date hereof and (y)
all material agreements which are in effect on the date hereof in connection
with the conduct of the business of the Companies. PR Borrower and each of its
Subsidiaries are in compliance in all material respects with the requirements of
the Facilities Agreement and the Marketing Agreements. PR Borrower and each of
its Subsidiaries are in compliance in all material respects with the
requirements of (and no default has occurred under) all other contracts,
agreements, indentures, mortgages, leases and other instruments binding on it or
its property, assets or operations the violation of which could have a Material
Adverse Effect.
8.21. Labor Matters. Except as set forth in Schedule 8.21, there are
no strikes or other labor disputes against any Company pending or, to the
knowledge of Borrower, threatened which are reasonably likely to have a Material
Adverse Effect.
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8.22. FCC Matters and Governmental Matters. (a) Each Company holds all
licenses, permits and other authorizations issued by the FCC or any other
Communications Regulatory Authority (the "Licenses") that are required for the
operations and businesses of the Companies as they are now operated, in each
case where the failure to hold a License, individually or in the aggregate, is
reasonably likely to have a Material Adverse Effect. Without limiting the
foregoing, each Company has received all necessary authorizations from the FAA
for all existing towers that are part of the cellular or microwave systems
operated by the Companies and for any facilities the construction of which have
been approved by the FCC or of which applications or notifications have been
filed for such approval.
(b) Schedule 8.22(b) sets forth, as of the Closing Date, the
expiration date for each of the Licenses held by any Company.
(c) The Licenses are valid and in full force and effect, unimpaired by
any condition or restriction or any act or omission by any Company which is
reasonably likely to have a Material Adverse Effect. Except as is not reasonably
likely to have a Material Adverse Effect, there are no modifications,
amendments, applications, revocations, or other proceedings, or complaints
pending or, to the knowledge of Borrower, threatened, with respect to the
Licenses (other than proceedings that apply to the cellular industry generally).
Except as is not reasonably likely to have a Material Adverse Effect, all fees
due and payable to the FCC or any other Communications Regulatory Authority have
been paid and no event has occurred which, with or without the giving of notice
or lapse of time or both, would constitute grounds for revocation or
modification of any Licenses. Borrower does not conduct any microwave operations
on frequencies that are subject to relocation under the FCC's rules, except as
is not reasonably likely to result in a Material Adverse Effect.
(d) Except where a lack of compliance is not reasonably likely to have
a Material Adverse Effect, (i) all reports required by the Communications Act or
required to be filed with the FCC or any other Communications Regulatory
Authority by any Company have been filed and are accurate and complete in all
material respects and (ii) all reports required to be filed by each Company with
all other governmental or administrative authorities, federal, state and local,
have been filed and are accurate and complete in all material respects.
(e) Except where a lack of compliance is not reasonably likely to have
a Material Adverse Effect, each Company is in compliance with, and their
Cellular Systems, PCS Systems, SMR Systems, LEC Systems, CAP Systems and paging
systems have been operated in compliance with, the Communications Act and the
rules, regulations, policies and orders of the relevant state public utilities
commissions and the FAA, including, without limitation, the FCC's time and
coverage requirements of 47 C.F.R. ss.ss. 22.142, 22.911, 22.912 and 22.946 (the
"Statutes"). Except as is not reasonably likely to result in a Material Adverse
Effect, no Company has received any written notice to the effect, or otherwise
been advised in writing, that they are not in compliance with any Statutes and
do not have any reason to anticipate that any presently existing circumstances
are reasonably likely to result in violations of any Statutes.
(f) No Company has engaged in any course of conduct that is reasonably
likely to impair the ability of any Company to be the holder of the Licenses or
is aware of any reason why the Licenses might not be renewed in the ordinary
course, why any of the Licenses might be revoked, or why any pending
applications or notifications might not be approved, in each case where the
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failure to hold a License, individually or in the aggregate, is reasonably
likely to have a Material Adverse Effect.
8.23. Senior Subordinated Notes; Parent Subordinated Notes. Each of
Parent and Borrower has provided to Agents on the Closing Date true, complete
and correct copies of the Parent Financing Documents and the Senior Subordinated
Notes Financing Documents, respectively. All the representations and warranties
in the Parent Financing Documents and the Senior Subordinated Notes Financing
Documents were true and correct in all material respects on and as of the date
made. The Parent Subordinated Notes and the Senior Subordinated Notes and, if
issued, the Additional Senior Subordinated Notes and the Parent Refinanced Notes
when both are issued and sold, will either (a) have been registered or qualified
under applicable federal and state securities laws or (b) be exempt therefrom.
The offering documents for the issuance and sale of the Senior Subordinated
Notes and (if issued) the Additional Senior Subordinated Notes and the Parent
Refinanced Notes, as of its respective date, did not contain an untrue statement
of material fact or omit to state a material fact required to be stated therein
or necessary to make the statement therein not misleading (it being understood
that no representation or warranty is being made with respect to information in
respect of the initial purchasers thereof expressly provided by them for
inclusion therein).
8.24. Year 2000. Each Company has reviewed their operations with a
view to assessing whether their business or operations will, in the receipt,
transmissions, processing, manipulation, storage, retrieval, retransmission or
other utilization of data, be vulnerable to any significant risk that computer
hardware, software or any equipment containing embedded microchips used in their
business or operations will not in the case of dates or time periods occurring
after December 31, 1999 function at least as effectively as in the case of dates
or time periods occurring prior to January 1, 2000. In addition each Company has
obtained assurances from their respective third party billing providers and
their respective principal sources of cellular equipment that they are
addressing the potential problems of the Year 2000. No Company has reason to
believe that the risks associated with the Year 2000 issue are reasonably likely
to have a Material Adverse Effect.
Section 9. Covenants. Each Obligor, for itself and on behalf of its
Subsidiaries, covenants and agrees with the Creditors that, so long as any
Commitment, Loan or Letter of Credit Liability is outstanding and until payment
in full of all amounts payable by Borrower and PR Borrower hereunder:
9.01. Financial Statements, Etc. The Companies shall deliver to
Administrative Agent and each of the Lenders:
(a) Quarterly Financials. As soon as available and in any event within
45 days after the end of each of the first three quarterly fiscal periods
of each fiscal year beginning with the fiscal quarter ending November 30,
1998, consolidated statements of operations, cash flows and stockholders'
equity of Borrower and its Consolidated Subsidiaries for such period and
for the period from the beginning of the respective fiscal year to the end
of such period, and the related consolidated balance sheet of Borrower and
its Consolidated Subsidiaries as at the end of such period, setting forth
in each case in comparative form (i) the corresponding consolidated
statements of operations, cash flows and stockholders' equity for the
corresponding period in the preceding fiscal year to the extent such
financial statements are available and (ii) the corresponding budget or
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plan for such period, accompanied by a certificate of a Responsible Officer
of Borrower, which certificate shall state that said consolidated financial
statements fairly present the consolidated financial condition, results of
operations and cash flows of Borrower and its Consolidated Subsidiaries in
accordance with GAAP, consistently applied, as at the end of, and for, such
period (subject to normal year-end audit adjustments);
(b) Annual Financials. As soon as available and in any event within 90
days after the end of each fiscal year beginning with the fiscal year
ending May 31, 1999, consolidated and consolidating statements of
operations, cash flows and stockholders' equity of Borrower and its
Consolidated Subsidiaries for such year and the related consolidated and
consolidating balance sheet of Borrower and its Consolidated Subsidiaries
as at the end of such year, setting forth in each case in comparative form
(i) the corresponding consolidated and consolidating information as of the
end of and for the preceding fiscal year to the extent such financial
statements are available and (ii) the corresponding budget or plan for such
period, and accompanied by an opinion, without a going concern or similar
qualification or exception as to scope, thereon of Deloitte & Touche LLP or
other independent certified public accountants of recognized national
standing reasonably acceptable to Agents and the Majority Lenders, which
opinion shall state that said consolidated and consolidating financial
statements fairly present the consolidated and consolidating financial
condition, results of operations and cash flows of Borrower and its
Consolidated Subsidiaries as at the end of, and for, such fiscal year in
accordance with GAAP, consistently applied; Borrower shall supply such
additional information and detail as to any item or items contained on any
such statement that Lenders may reasonably require; all such information
will be prepared in accordance with GAAP consistently applied;
(c) Compliance Certificate; Performance Certificate.
(i) concurrently with the delivery of the financial statements
referred to in Section 9.01(b), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Event of Default relating to the Financial
Maintenance Covenants, except as specified in such certificate;
(ii) at the time it furnishes each set of financial statements
pursuant to paragraph (a) or (b) above, (1) a certificate of a senior
financial officer of Borrower (I) to the effect that no Default has
occurred and is continuing (or, if any Default has occurred and is
continuing, describing the same in reasonable detail and describing
the action that the Companies have taken and proposes to take with
respect thereto) and (II) setting forth in reasonable detail the
computations necessary to determine whether each Company is in
compliance with Section 9.11 as of the end of the respective quarterly
fiscal period or fiscal year, (2) to the extent not previously
disclosed to Administrative Agent, a listing of any state within the
United States where any Obligor keeps inventory or equipment and of
any material licenses arising under the laws of the United States (or
any jurisdiction therein) acquired by any Obligor since the date of
the most recent list delivered pursuant to this clause (2) (or, in the
case of the first such list so delivered, since the Closing Date), and
(3) any final accountants' management letters delivered by the
independent certified public accountants reporting on such financial
statements to Borrower or any Subsidiary; and
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(iii) at the time the financial statements are furnished pursuant
to Section (I) 9.01(a), an Officers' Certificate, setting forth the
Specified Wireless System Information on a consolidated basis for
Borrower and the Consolidated Subsidiaries for the fiscal quarter
covered by such financial statements, and (II) 9.01(b), an Officers'
Certificate setting forth the Specified Cellular Information (i) on a
consolidated basis for Borrower and the Consolidated Subsidiaries and
(ii) for each cluster of Cellular Systems, PCS Systems and SMR Systems
owned by Borrower or any Subsidiary with combined Net Pops at such
date for all such Cellular Systems, PCS Systems and SMR Systems (as
the case may be) of 1,000,000 or more, in each case clause (i) and
(ii) for the fiscal year covered by such financial statements;
(d) Other Financial Information. Promptly upon delivery thereof to the
holders of any debt securities or the stockholders of any Company
generally, copies of all financial statements and reports and proxy
statements so delivered, and at the time the same are filed, copies of all
financial statements and reports which Borrower, PR Borrower or Parent may
make to or file with the Commission or any successor or analogous
Governmental Authority;
(e) Interest Rate Certificates. Together with the financial statements
delivered pursuant to clause (a) or (b) of this Section 9.01, an Interest
Rate Certificate;
(f) Notice of Default. Promptly after any Company knows or has reason
to believe that any Default has occurred or that any Company is in default
of any material term or provision of the Senior Subordinated Notes
Financing Documents, Parent Financing Documents or any other agreement or
instrument relating to or evidencing material Indebtedness, a notice of
such Default describing the same in reasonable detail and, together with
such notice or as soon thereafter as possible, a description of the action
that the Companies have taken and propose to take with respect thereto;
(g) Environmental Matters. Written notice of any Environmental Claim
materially affecting any Company, any Mortgaged Real Property or the
operations of any Company and any notice from any Person of (i) the
occurrence of any release, spill or discharge of any Hazardous Material
that is reportable under any Environmental Law, (ii) the commencement of
any clean-up pursuant to or in accordance with any Environmental Law of any
Hazardous Material at, on, under or within the Mortgaged Real Property or
any part thereof, (iii) any matters relating to Hazardous Materials or
Environmental Laws that may impair, or threaten to impair, Lenders'
security interest in the Mortgaged Real Property or any Obligor's ability
to perform any of its obligations under this Agreement when such
performance is due or (iv) any other condition, circumstance, occurrence or
event which is reasonably likely to have a Material Adverse Effect;
(h) Auditors' Reports. Promptly upon receipt thereof, copies of all
annual, interim or special reports submitted to any Company by independent
certified public accountants in connection with each annual, interim or
special audit of such Company's books made by such accountants, including,
without limitation, any management letter commenting on any Company's
internal controls submitted by such accountants to management in connection
with their annual audit;
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(i) Annual Budgets. As soon as practicable and in any event within 60
days after the beginning of each fiscal year of Borrower beginning with the
fiscal year ending May 31, 1999, a consolidated plan and financial forecast
for such fiscal year, including without limitation (a) a forecasted
consolidated balance sheet and forecasted consolidated statements of income
and cash flows of Borrower and the Subsidiaries for such fiscal year,
together with an Officers' Certificate demonstrating pro forma compliance
for such fiscal year with Section 9.11 and an explanation of the
assumptions on which such forecasts are based and (b) forecasted
consolidated statements of income and cash flows of Borrower and the
Subsidiaries for each quarter of each such fiscal year, together with an
explanation of the assumptions on which such forecasts are based;
(j) Lien Matters. Written notice of (1) the incurrence of any Lien
(other than Permitted Liens and other Liens expressly permitted by the
terms of the applicable Security Document) on, or claim asserted against
any of the Collateral or (2) the occurrence of any other event which is
reasonably likely to materially adversely affect the aggregate value of the
Collateral;
(k) Notice of Material Adverse Effect. Written notice of the
occurrence of any Material Adverse Effect or any event or condition which
is reasonably likely to result in any Material Adverse Effect;
(l) Governmental Filings and Notices. Promptly upon request by
Administrative Agent, copies of any other material reports or documents
that were filed by any Company with any Governmental Agency relating to the
acquisition or maintenance of a material license including, but not limited
to, the FCC or any other Communications Regulatory Authority and copies of
any and all material notices and other material communications from any
Federal, state or local Governmental Authority with respect to any Company;
(m) ERISA Information. Promptly upon the occurrence of any ERISA Event
that, alone or together with any other ERISA Events that have occurred, is
reasonably likely to result in liability to the Companies in an aggregate
amount exceeding $100,000, a written notice specifying the nature thereof,
what action the Borrower, its Subsidiaries or other ERISA Entity have
taken, are taking or propose to take with respect thereto, and, when known,
any action taken or threatened by the Internal Revenue Service, Department
of Labor, PBGC or Multiemployer Plan sponsor with respect thereto;
(n) ERISA Filings, Etc. Upon request by the Administrative Agent,
copies of: (i) each Schedule B (Actuarial Information) to the annual report
(Form 5500 Series) filed by Borrower, its Subsidiaries or ERISA Affiliate
with the Internal Revenue Service with respect to each Plan; (ii) the most
recent actuarial valuation report for each Plan; (iii) all notices received
by Borrower or any of its Subsidiaries or ERISA Affiliates from a
Mutiemployer Plan sponsor or any governmental agency concerning an ERISA
Event; and (iv) such other documents or governmental reports or filings
relating to any Employee Benefit Plan as the Administrative Agent shall
reasonably request;
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(o) FCC Notices; Notice of Certain Information Regarding Permitted
Acquisitions. Promptly upon (1) receipt thereof, copies of any material
adverse notice or reports regarding any Company from the FCC, the PRPSC,
the PRTRB or any other Communications Regulatory Authority, (2) receipt of
notice of (A) any forfeiture, non-renewal, cancellation, termination,
revocation, suspension, impairment or material adverse modification of any
material License held by any Company, or any notice of default or
forfeiture with respect to any such License, or (B) any refusal by any
Communications Regulatory Authority to renew or extend any material
license, permit, certification or other authorization (including any
License) held by any Company, an Officers' Certificate specifying the
nature of such event, the period of existence thereof, and what action the
Companies are taking and propose to take with respect thereto, and (3) the
consummation of any Permitted Acquisition, a written notice setting forth
with respect to the business acquired, all of the data required to be set
forth in Schedule 8.22(b) with respect to such business and the Licenses
and any other licenses, permits, certifications and other authorizations
from any other Communications Regulatory Authority required in connection
with the operation of such business (as if the date of consummation of such
Permitted Acquisition were the Closing Date);
(p) Name and Location Changes. Promptly, written notice of any change
(i) in such Company's corporate name or in any trade name used to identify
it in the conduct of its business or in the ownership of its properties,
(ii) in the location of such Obligor's chief executive office, its
principal place of business, any office in which it maintains books or
records relating to Collateral owned by it or any office or facility at
which Collateral owned by it is located (including the establishment of any
such new office or facility), (iii) in such Company's identity or corporate
structure, (iv) resulting in any tangible Collateral being located in any
jurisdiction in which a financing statement must be, but has not been,
filed in order to perfect Administrative Agent's Liens, or (v) in such
Company's Federal Taxpayer Identification Number (to the extent
applicable); each Company will not effect or permit any change referred to
in the preceding sentence unless all filings have been made under the
Uniform Commercial Code or otherwise that are required in order for
Administrative Agent to continue at all times following such change to have
a valid, legal and perfected security interests in all the Collateral; and
(q) Miscellaneous. Promptly, such financial and other information with
respect to any Company as any Creditor may from time to time reasonably
request.
9.02. Litigation, Etc. Borrower shall promptly give to Administrative
Agent and each Lender notice of all Proceedings, and (except to the extent that
any such notice would, in the reasonable opinion of outside counsel to Borrower,
waive attorney client privilege) any material development thereof, affecting any
Company, except Proceedings which are not reasonably likely to have a Material
Adverse Effect.
9.03. Existence; Compliance with Law; Payment of Taxes; Inspection
Rights; Performance of Obligations; Etc. (a) Each Company shall (i) preserve and
maintain its legal existence and all of its material rights, privileges and
franchises; provided, however, that nothing in this Section 9.03 shall prohibit
any transaction expressly permitted under Section 9.06 or clause (c) of this
Section 9.03, (ii) except as is not reasonably likely to have a Material Adverse
Effect, comply with the requirements of all applicable laws, rules, regulations
and orders of Governmental Authorities, (iii) except as is not reasonably likely
to have a Material Adverse Effect, timely file true, accurate and complete tax
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returns required by all Governmental Authorities and pay and discharge all
Taxes, assessments and governmental charges or levies imposed on it or on its
income or profits or on any of its Property prior to the date on which any
material penalties attach thereto (except for any such Tax, assessment, charge
or levy the payment of which is being contested in good faith and by proper
proceedings and against which adequate reserves are being maintained in
accordance with GAAP); (iv) maintain all of its Properties used or useful in its
business in good working order and condition, ordinary wear and tear excepted,
except to the extent that the failure to do so with respect to any such Property
is not reasonably likely to have a Material Adverse Effect; (v) permit
representatives of any Creditor during normal business hours and, except during
the existence of any Default, upon reasonable prior notice, to examine, copy and
make extracts from its books and records, to inspect its Properties, and to
discuss its business and affairs with its officers and employees, all to the
extent reasonably requested by such Creditor; (vi) upon reasonable notice,
allow, with the presence of Borrower if Borrower so elects to participate, and
subject to reasonable requirements of confidentiality, including requirements
imposed by law or by contract, Lead Arranger or any representative chosen by the
Majority Lenders to consult with Borrower's independent public accountants and
auditors with respect to the financial affairs of the Companies and authorize
such accountants to disclose to Lead Arranger or any representative chosen by
the Majority Lenders and the Lenders (and Lead Arranger to the Creditors) any
and all financial statements and other supporting financial documents and
schedules including copies of any management letter with respect to the
business, financial condition and other affairs of the Companies; at the request
of Lead Arranger or any representative chosen by the Majority Lenders, Borrower
shall deliver a letter addressed to such accountants instructing them to comply
with the provisions of this Section 9.03(vi); (vii) perform in all material
respects all of its Contractual Obligations, except where such failure to so
perform, singly or in the aggregate with all other such failures, is not
reasonably likely to have a Material Adverse Effect; and (viii) keep proper
books of record and accounts, in which full and correct entries shall be made of
all financial transactions and the Property and business of each Company in
accordance with GAAP in effect from time to time or as otherwise required by
applicable rules and regulations of any Governmental Authority having
jurisdiction over such Company. Parent and Borrower shall cause the Merger to be
consummated on the Closing Date in accordance in all material respects with the
terms of this Agreement and the Merger Agreement. No material change may be made
to the Merger Agreement without the prior consent of the Majority Lenders.
(b) Parent will promptly make payment on all Existing Notes validly
tendered in the Tender Offer in accordance with applicable law and, if
thereafter there are any Existing Notes remaining outstanding, Parent will
effect the Note Defeasance with respect to such outstanding Existing Notes.
(c) Within 120 days following the Closing Date, the Lambda
Reorganization shall have been consummated and Lambda Operating Corp. shall have
simultaneously executed and delivered the following documents to the Agents: (i)
a Joinder Agreement providing therein that Lambda Operating Corp. shall become a
Guarantor as well as a co-borrower of the Loans and other extensions of credit
hereunder made to PR Borrower substantially in the form of Exhibit O, (ii) a
legal opinion satisfactory to Administrative Agent and (iii) any other
documents, including customary charter documents, that Administrative Agent may
request. Upon the consummation of the foregoing, all references herein to PR
Borrower shall include Lambda Operating Corp. Lambda Operating Corp. will be
jointly and severally liable with the Initial PR Borrower for all Obligations of
PR Borrower under this Agreement.
9.04. Insurance. (A) Each Company shall maintain, with financially
sound and reputable insurers, insurance of the kinds and in the amounts
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customarily insured against by companies engaged in the same or similar business
and similarly situated (including business interruption insurance). Each Company
shall pay all insurance premiums payable by it as and when due.
(B) All policies of insurance required to be maintained by any Company
must name Administrative Agent on behalf of Issuing Lender, Lenders and Agents,
as mortgagees (in the case of property insurance) or additional insured (in the
case of liability insurance), as applicable, or certificate holder (in the case
of workers' compensation insurance) and must provide that no cancellation,
non-renewal or modification (including reduced coverage) of the policies will be
made without thirty days' prior written notice to Administrative Agent and if
the insurance carrier shall have received written notice from Administrative
Agent of the occurrence and continuance of an Event of Default, the insurance
carrier shall pay all proceeds otherwise payable to any Company under such
policies directly to Administrative Agent.
(C) The Obligors shall give immediate written notice of any loss in
excess of $5.0 million to the insurance carrier and to Administrative Agent.
(D) If at any time the area in which any Mortgaged Real Property is
located is designated (i) a "flood hazard area" in any Flood Insurance Rate Map
published by the Federal Emergency Management Agency (or any successor agency),
Borrower shall obtain flood insurance in such total amount as Administrative
Agent or the Majority Lenders may from time to time require, and otherwise
comply with the National Flood Insurance Program as set forth in the Flood
Disaster Protection Act of 1973, as amended from time to time, or (ii) a "Zone
1" area, Borrower shall obtain earthquake insurance in such total amount as
Administrative Agent or the Majority Lenders may require.
9.05. Limitation on Lines of Business; Limitation on Activity of
License Subsidiaries; Limitation on Management Agreements. No Company shall
directly or indirectly, engage to any material extent in any line or lines of
business activity other than the business of the type conducted by the
Companies, respectively, as of the Closing Date (after giving effect to the
Merger) or any business related, ancillary or complementary thereto; provided
that for purposes of clarification the lease of cell sites owned by any Company
shall be deemed a complementary business of such Company. No License Subsidiary
shall engage in any business or incur any liabilities other than the ownership
of its Licenses and the execution, delivery and performance of the Credit
Documents to which it is a party and activities incidental to the foregoing. No
Company shall, directly or indirectly, enter into any management or similar
agreement with any Person other than with any one or more Principal Investors
and Investor Affiliates (other than employment or consulting agreements entered
into in the ordinary course of business).
9.06. Limitation on Fundamental Changes, Acquisitions or Dispositions.
No Company shall, directly or indirectly, in a single transaction or series of
transactions, (1) merge, consolidate or amalgamate with or into any Person
(other than pursuant to the Merger on the Closing Date or the Lambda
Reorganization), or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), (2) effect any Acquisition, or (3) effect any
Disposition (or agree to do any of the foregoing). Notwithstanding the foregoing
provisions of this Section 9.06, each of the following shall be permitted if and
to the extent complying with the Parent Financing Documents and the Senior
Subordinated Notes Financing Documents (and any Permitted Refinancing thereof)
as from time to time in effect (if then in effect):
(a) purchases and sales of Property in the ordinary course of
business;
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(b) the pledge of the Collateral pursuant to the Security Documents
and the incurrence of any Permitted Lien;
(c) the merger, consolidation, dissolution or liquidation of (1) any
Subsidiary with or into (i) Borrower if Borrower shall be the continuing or
surviving corporation or (ii) any Qualified Subsidiary if a Qualified
Subsidiary shall be the continuing or surviving corporation, and (2) any
Subsidiary that is not a Qualified Subsidiary with or into any other
Subsidiary that is not a Qualified Subsidiary;
(d) Dispositions by any Company to Borrower or to any Qualified
Subsidiary or by any Subsidiary that is not a Qualified Subsidiary to any
other Subsidiary that is not a Qualified Subsidiary;
(e) Dispositions of used, worn out, obsolete or surplus Property by
any Company in the ordinary course of business; provided, however, that the
proceeds thereof shall be reinvested in the business of Borrower or any
Subsidiary within one year of such Disposition;
(f) sale or discount, in each case without recourse, of accounts
receivable past due arising in the ordinary course of business, but only in
connection with the compromise or collection thereof; provided, however,
that in no event may any Company enter into any factoring or securitization
program with respect to receivables;
(g) Borrower or any Subsidiary may effect any Disposition for fair
market value resulting in gross proceeds not to exceed $50.0 million since
the Closing Date for Borrower and the Subsidiaries in the aggregate;
provided, however, that the Net Available Proceeds therefrom are applied as
specified in Section 2.10(a)(iv);
(h) Acquisitions by Borrower or any Qualified Subsidiary of any
Allowable Wireless System(s) (including an Allowable Wireless System
containing paging systems; provided, however, that such paging systems
generated no more than 20% (and 10% at any time after the first twelve
months after the Closing Date) of the operating income plus depreciation
and amortization of the Person from whom such Allowable Wireless System was
acquired for the last four full fiscal quarters prior to the acquisition of
such Allowable Wireless System and including any Acquisition of any
Allowable Cellular System(s) effected through a swap transaction of any of
Borrower's or any Subsidiary's Cellular System(s) for any Allowable
Cellular System(s) (or any Allowable Cellular System(s) together with any
business any Company may engage in pursuant to Section 9.05 which business
operates with such Allowable Cellular System(s) so acquired) of another
Cellular System operator); provided, however, that each Acquisition under
this Section 9.06(h) shall satisfy each of the following conditions:
(i) no Default then exists or would result therefrom;
(ii) after giving pro forma effect in accordance with GAAP to
such Acquisition, Borrower shall be in compliance with all covenants
set forth in Section 9.11 as of the Test Date immediately prior to the
consummation thereof (assuming, for purposes of Section 9.11, that
such Acquisition, and all other Permitted Acquisitions consummated
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since the first day of the relevant measurement period for each
financial covenant set forth in Section 9.11 ending on or prior to the
date of such Acquisition, had occurred on the first day of such
relevant measurement period);
(iii) no Company shall, in connection with any such Acquisition,
assume or remain liable with respect to any Indebtedness or other
liability (including any material tax or ERISA liability) of the
related seller, except (1) to the extent permitted under Section 9.08,
and (2) obligations of the seller or acquired Person or business
incurred in the ordinary course of business and necessary or desirable
to the continued operation of the underlying properties, and any other
such liabilities or obligations not permitted to be assumed or
otherwise supported by any of the Companies hereunder shall be paid in
full or released as to the assets being so acquired on or before the
consummation of such Acquisition;
(iv) the Properties acquired in connection with any such
Acquisition shall be free and clear of any Liens, other than Permitted
Liens;
(v) the board of directors of the acquired Person shall not have
indicated privately at the time of consummation of the Acquisition to
any Company or publicly its opposition to the consummation of such
Acquisition;
(vi) such Acquisition shall be effected through Borrower or a
Qualified Subsidiary and the Person or business acquired shall at the
time of consummation of such Acquisition be merged or combined or
consolidated with or into a Qualified Subsidiary or shall be at the
time of consummation thereof a Qualified Subsidiary (unless the only
reason why such Person is not a Qualified Subsidiary is that it is a
Foreign Subsidiary, in which case such Subsidiary shall be a Wholly
Owned Subsidiary);
(vii) with respect to any Acquisition involving Acquisition
Consideration of more than $25.0 million, Borrower shall have provided
the Lenders not fewer than 15 days prior to the proposed closing
thereof, (I) with respect to any Acquisition, with (1) written notice
thereof and a brief description of the material terms thereof and a
brief description of the business or Person to be acquired, (2)
historical financial statements for the last three fiscal years (or,
if less, for the period of such Person's existence) of the Person or
business to be acquired (audited if available without undue cost or
delay) and unaudited financial statements thereof for the most recent
interim period which are available, (3) copies of all available
material documentation pertaining to such Acquisition, and (4) all
such other available information and data relating to such Acquisition
or the Person or business to be acquired as may be reasonably
requested by Lead Arranger or the Majority Lenders and (II) with
respect to any Acquisition with Acquisition Consideration of more than
$100.0 million, in addition to the materials provided in (I) above,
with reasonably detailed projections pertaining to the Person or
business to be acquired through the earlier of (x) the succeeding ten
years or (y) the Final Maturity Date;
(viii) Borrower shall have delivered to Lead Arranger and the
Lenders (x) an Officers' Certificate at least 10 days prior to the
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date of consummation of such Acquisition (but in any event not earlier
than a date which would result in the Test Date occurring on or
immediately prior to the consummation of such Acquisition being more
than 135 days prior to the date of consummation of such Acquisition)
certifying that (1) such Acquisition complies with this Section
9.06(h) (which shall have attached thereto reasonably detailed backup
data and calculations showing such compliance), and (2) such
Acquisition is not reasonably likely to have a Material Adverse Effect
and (y) financial statements referred to in clause (vii) of this
Section 9.06(h) for the most recently ended fiscal period if the
latest financial statements previously delivered pursuant to clause
(vii) cover a period ending more than 135 days before the date of
consummation of such Acquisition;
(ix) prior to the completion of any Permitted Acquisition,
Borrower shall, and shall cause its Subsidiaries to, obtain material
approvals and consents of all Governmental Authorities and all
consents of other Persons (including without limitation the FCC and
each other Communications Regulatory Authority), in each case that are
necessary or advisable in connection with the transfer of any Licenses
and the continued operation of the Cellular System, PCS System or SMR
System or business being acquired in substantially the manner proposed
to be conducted following to the consummation of such Permitted
Acquisition; and
(x) contemporaneously with or as soon as practicable after the
completion of a Permitted Acquisition, Borrower shall, and shall cause
its Subsidiaries to, transfer to a License Subsidiary any Licenses
acquired in connection with the Permitted Acquisition; provided,
however, that Borrower need not, and need not cause its Subsidiaries
to, transfer to License Subsidiaries such Licenses to the extent such
a transfer is not permitted by applicable law (other than as a result
of any Company failing to take all necessary action to permit such
transfer);
(i) Acquisitions by Borrower or any Qualified Subsidiary of any
Cellular System(s), PCS System(s) or SMR System(s) (including any
Acquisition of any Cellular System(s) effected through a swap transaction
of any of Borrower's or any Subsidiary's Cellular System(s) for any
Cellular System(s) (or any Cellular System(s) together with any business
any Company may engage in pursuant to Section 9.05 which business operates
with such Cellular System(s) so acquired) of another Cellular System
operator); provided, however, that (1) each such Acquisition under this
Section 9.06(i) shall satisfy each of the conditions set forth in clauses
(i) through (x) of Section 9.06(h) (with references therein to Section
9.06(h) being deemed references to this Section 9.06(i)), and (2) the
Acquisition Consideration for such Acquisition shall not exceed $50.0
million, and the Acquisition Consideration for such Acquisition, together
with the aggregate amount of the Acquisition Consideration for all
Acquisitions effected pursuant to this Section 9.06(i) since the Closing
Date, shall not exceed $100.0 million;
(j) transfers resulting from any casualty or condemnation of Property;
(k) licenses or sublicenses by any Company of software, trademarks and
other intellectual property and general intangible and leases, licenses or
subleases of other property in the ordinary course of business and which do
not materially interfere with the business of any Company;
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(l) any consignment arrangements or similar arrangements for the sale
of assets in the ordinary course of business of any Company;
(m) the making of Investments permitted by Section 9.09 and the
liquidation in the ordinary course of business of (A) Permitted Investments
and (B) Investments made pursuant to Section 9.09(A)(a);
(n) Dispositions of any Cellular System(s), PCS System(s) or SMR
System(s) (other than any Cellular System, PCS System or SMR System with
Net Pops of 1,000,000 or more) of Borrower or any Subsidiary for fair
market value through any swap transaction (which may consist of one or a
series of related transactions) consummated to effect a Permitted
Acquisition (including those involving the receipt of cash by Borrower or
any Subsidiary); provided, however, that (1) the aggregate amount of cash
received in connection with any such Disposition shall not exceed 10% of
the total consideration received by Borrower and the Subsidiaries in such
Disposition, and (2) the Net Available Proceeds therefrom are applied as
specified in Section 2.10(a)(iv);
(o) Acquisitions not otherwise permitted hereunder by Borrower or any
Subsidiary of any new Subsidiary; provided, however, that (1) the sole
consideration provided therefor by any Company is common Equity Interests
of Parent or the proceeds of any common Equity Interests of Parent to the
extent issued to (x) any of the Permitted Holders or (y) at least one
Permitted Holder and a group of private investors arranged by any Permitted
Holder, and (2) such Acquisition shall comply with each of clauses (i),
(ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), and (x) of Section
9.06(h) (with references therein to Section 9.06(h) being deemed references
to this Section 9.06(o));
(p) Dispositions of any Cellular System owned by any Company with Net
Pops of less than 500,000; provided, however, that the Net Available
Proceeds therefrom are applied as specified in Section 2.10(a)(iv);
(q) Acquisitions not otherwise permitted hereby of a business directly
related or complementary to a business of Borrower and the Subsidiaries on
the Closing Date so long as the aggregate Acquisition Consideration for all
Acquisitions consummated pursuant to this Section 9.06(q) since the Closing
Date does not exceed $25.0 million;
(r) Sale and Leaseback Transactions permitted by Section 9.08(o);
(s) Borrower and the Subsidiaries may effect the sale of Equity
Interests of PR Borrower in any public offering of shares so long as (1)
after giving effect thereto, Borrower owns directly or indirectly not less
than 80% of the Equity Interests then outstanding in such Subsidiary and
(2) the Net Available Proceeds thereof are applied as required by Section
2.10(a)(iv); and
(t) Acquisitions of any LEC Systems, CAP System and paging system
located wholly in Puerto Rico so long as the aggregate Acquisition
Consideration paid for all such Acquisitions since the Closing Date do not
exceed $25.0 million.
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For purposes of clarification, the lease of cell sites owned by any
Company shall not be prohibited hereunder. Subject to Section 12.04, to the
extent the Majority Lenders waive the provisions of this Section 9.06 with
respect to the sale or other disposition of any Collateral, or any Collateral is
sold or otherwise disposed of as permitted by this Section 9.06 (other than to
any Company), such Collateral in each case shall be sold or otherwise disposed
of free and clear of the Liens created by the Security Documents and
Administrative Agent shall take such actions as are appropriate in connection
therewith.
9.07. Limitation on Liens and Negative Pledges. No Company shall,
directly or indirectly, create, incur, assume or suffer to exist any Lien upon
or with respect to any of their respective Property, whether now owned or
hereafter acquired, except, with respect to Collateral, for Liens expressly
permitted by the applicable Security Document and except for the following (so
long as complying with the Parent Financing Documents, the Parent Refinanced
Notes Documents and the Senior Subordinated Notes Financing Documents (and any
Permitted Refinancing of any thereof) from time to time in effect (if then in
effect)), which are herein collectively referred to as "Permitted Liens":
(a) Liens (including any Prior Liens) in existence on the Closing Date
and identified in Schedule 9.07 (excluding, however, following the Closing
Date, Liens securing the Existing Credit Facilities);
(b) Liens imposed by any Governmental Authority for taxes, assessments
or charges (other than any de minimis taxes, assessments or charges) not
yet due or which are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on the
books of the Companies, in accordance with GAAP;
(c) Liens imposed by law which were incurred in the ordinary course of
business, such as carriers', warehousemen's, landlords' and mechanics'
Liens and other similar Liens arising in the ordinary course of business,
in each case for sums the payment of which is not required by Section 9.03;
(d) pledges or deposits under workers' compensation, unemployment
insurance and other social security legislation (including the Federal
Employer's Liability Act) or the deposits securing the liability to
insurance carriers, in each case arising in the ordinary course of
business;
(e) pledges or deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business under insurance or self
insurance agreements;
(f) easements, rights-of-way, restrictions or minor defects or
irregularities in title incurred in the ordinary course of business and
encumbrances consisting of zoning restrictions, easements, licenses,
restrictions on the use of Real Property or minor imperfections in title
thereto which, in the aggregate, are not material in amount, and which do
not in any case materially detract from the value of the Real Property
subject thereto or interfere with the ordinary conduct of the business of
any Company;
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(g) Liens upon tangible personal Property acquired after the Closing
Date by Borrower or any Subsidiary, which Liens either (A) existed on such
Property before the time of its acquisition and was not created in
anticipation thereof, or (B) was created solely for the purpose of securing
Indebtedness representing, or incurred to finance or refinance, the cost of
such Property or improvements thereon; provided, however, that (1) no such
Lien shall extend to or cover any Property of any Company other than the
Property so acquired and improvements thereon and proceeds thereof, and (2)
the principal amount of Indebtedness secured by any such Lien shall at no
time exceed 100% of the fair market value of such Property at the time it
was acquired or constructed;
(h) Liens existing on any Property of any Person at the time such
Property is acquired or such Person becomes a Subsidiary or is merged or
consolidated with or into a Subsidiary and, in each case, not created in
contemplation of or in connection with such event; provided, however, that
such Liens do not extend to any other Property of any Company;
(i) Liens not otherwise permitted hereunder (on Property other than
the Collateral) securing obligations of any Company at any time not
exceeding in the aggregate $10.0 million;
(j) Liens securing obligations under Swap Contracts with any Creditor
to the extent such Swap Contract relates to the Loans and only so long as
the Obligations are secured by the same collateral on at least a pari passu
basis;
(k) Liens consisting of judgment or judicial attachment Liens
(including pre-judgment attachment) in existence less than 60 days after
the entry thereof or the enforcement of which is effectively stayed or
payment of which is covered in full (subject to a customary deductible) by
insurance or which do not otherwise result in an Event of Default under
Section 10(h) or (n);
(l) Liens securing obligations in respect of Capital Leases solely on
Property (including improvements thereto and the proceeds thereof) subject
to such Capital Leases;
(m) any obligations or duties affecting any of the Property of any
Company to any municipality or public authority with respect to any
franchise, grant, license or permit which do not materially impair the use
of such Property for the purposes for which it is held and restrictions on
the transfer of assets imposed by the FCC or the Communications Act in
effect generally on all Persons subject thereto;
(n) leases or subleases granted to third Persons not interfering in
any material respect with the business of any Company;
(o) Liens arising from UCC financing statements regarding leases
permitted by this Agreement;
(p) any interest or title of a lessor or sublessor under any lease
permitted by this Agreement;
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(q) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of custom duties in connection with the
importation of goods so long as such Liens attach only to the imported
goods;
(r) Liens arising out of consignment or similar arrangements for the
sale of goods entered into by any Company in the ordinary course of
business;
(s) Liens created under this Agreement and/or the other Credit
Documents;
(t) Liens granted pursuant to the Senior Subordinated Notes Interest
Escrow Agreement securing the Senior Subordinated Notes as such Senior
Subordinated Notes Interest Escrow Agreement is in effect on the Closing
Date and solely with respect to the Property contemplated thereby on the
Closing Date and Liens granted pursuant to any interest escrow agreement
securing the Additional Senior Subordinated Notes or the Parent Refinanced
Notes so long as solely covering Property of the type contemplated by the
Senior Subordinated Notes Interest Escrow Agreement;
(u) Liens that are contractual rights of set-off;
(v) Liens arising in connection with buy/sell agreements related to
Equity Interests of any Person that is not a Wholly Owned Subsidiary;
(w) any Lien arising by operation of law pursuant to Section 107(l) of
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. ss. 9607(l), for costs or damages which are not
yet due (by virtue of a written demand for payment by a Governmental
Authority) or which are being contested in compliance with the standard set
forth in Section 9.03(iii); provided that Borrower is in full compliance
with all obligations hereunder including without limitation Sections 9.14
and 12.03(b); and provided, further, that the liability of Borrower and the
Subsidiaries with respect to the matters giving rise to all such Liens
shall not, in the reasonable estimate of Administrative Agent, exceed $2.0
million; and
(x) any extension, renewal or replacement of the foregoing; provided,
however, that the Liens permitted by this Section 9.07(x) shall not cover
any additional principal amount of Indebtedness or Property (other than
like Property substituted for Property covered by such Lien).
Except with respect to (i) specific Property encumbered pursuant to a
Lien permitted to be incurred pursuant to this Section 9.07 or (ii) specific
Property to be sold pursuant to an executed agreement with respect to a
Disposition or Excluded Disposition consummated in accordance with this
Agreement, no Company will directly or indirectly, enter into any agreement on
or after the Closing Date prohibiting or restricting in any manner (directly or
indirectly and including by way of covenant, representation or warranty or event
of default) the creation or assumption of any Lien upon its Property, whether
now owned or hereafter acquired, except pursuant to the Credit Documents, the
Senior Subordinated Notes Financing Documents, the Additional Senior
Subordinated Notes Documents, the Parent Refinanced Notes Documents and any
Permitted Refinancing of any thereof (so long as such Parent Refinanced Notes
Documents or any such Permitted Refinancing is not more restrictive in such
regard than the Senior Subordinated Notes Financing Documents as in effect on
the Closing Date and expressly allows for Liens securing the Obligations).
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For purposes of clarification, the lease of cell sites owned by any
Company shall not be prohibited hereunder.
9.08. Prohibition on Disqualified Capital Stock; Limitation on
Indebtedness and Contingent Obligations. No Company shall directly or indirectly
issue or permit to be outstanding any Disqualified Capital Stock. No Company
shall, directly or indirectly, incur any Indebtedness or any Contingent
Obligation, except (each of which shall be given independent effect) for the
following (so long as complying with the Parent Financing Documents , the Parent
Refinanced Notes Documents and the Senior Subordinated Notes Financing Documents
(and any Permitted Refinancing of any thereof) from time to time in effect (if
then in effect)):
(a) the Loans and the other Obligations (including the Guarantees)
under the Credit Documents;
(b) the Existing Notes (so long as the Note Tender and Note Defeasance
have been effected), the Senior Subordinated Notes, the Parent Subordinated
Notes (but only so long as not a direct or indirect obligation of Borrower
or any Subsidiary), other Indebtedness and Contingent Obligations (other
than the Existing Notes) outstanding on the Closing Date and listed in
Schedule 9.08 and specified on Schedule 9.08 as to remain outstanding after
the Closing Date (less the aggregate amount of any permanent prepayments or
repayments thereof) and, in the case of the Senior Subordinated Notes, the
Parent Subordinated Notes and any such Indebtedness listed on Schedule
9.08, Permitted Refinancings thereof;
(c) Indebtedness and Contingent Obligations of Borrower or any
Subsidiary owing to Borrower or any Qualified Subsidiary; provided,
however, that (1) such Indebtedness shall be evidenced by an Intercompany
Note which shall be pledged to Administrative Agent on behalf of the
Creditors pursuant to the Security Agreement, and (2) such Indebtedness and
Contingent Obligations shall not be held by any Person other than Borrower
or a Qualified Subsidiary and shall not be subordinate to any other
Indebtedness or Contingent Obligations or other obligation of the obligor
unless also subordinated to the Loans on terms no less favorable to the
Lenders than that of any other creditor;
(d) Contingent Obligations in respect of operating leases;
(e) Indebtedness and Contingent Obligations arising from honoring a
check, draft or similar instrument against insufficient funds; provided,
however, that such Indebtedness is extinguished within two Business Days of
its incurrence;
(f) Swap Contracts entered into in the ordinary course of business and
designed to protect the Obligors against fluctuations in interest rates,
currency exchange rates, or similar risks (including any Interest Rate
Protection Agreement entered into pursuant to Section 9.18);
(g) Contingent Obligations of Borrower or any Qualified Subsidiary in
respect of Indebtedness or other liabilities of Borrower or any Subsidiary
to the extent that the existence of such Indebtedness or other liabilities
is not prohibited under this Agreement;
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(h) Contingent Obligations in connection with Dispositions permitted
under Section 9.06, arising in connection with indemnification and other
agreements in respect of any contract relating to such Disposition, not to
exceed the consideration received by Borrower or any Subsidiary (which
consideration shall be deemed to exclude any obligation of any third Person
incurred in connection with the acquisition of the Property which is the
subject of such Disposition) in connection with such sale;
(i) Indebtedness and Contingent Obligations of Borrower and the
Subsidiaries (including Permitted Refinancings thereof) secured by Liens
permitted under Section 9.07(g) or (l) (and extensions, renewals or
replacements thereof pursuant to Section 9.07(x)) not exceeding (together
with any Permitted Refinancing thereof) $10.0 million in the aggregate at
any time outstanding for Borrower and the Subsidiaries collectively;
(j) Indebtedness of a Person that becomes a Subsidiary after the date
hereof; provided, however, that (1) such Indebtedness existed at the time
such Person became a Subsidiary and was not created in connection with or
in anticipation thereof, (2) immediately after giving effect to the
acquisition of such Person by Borrower no Default shall have occurred and
be continuing, and (3) the aggregate amount of Indebtedness outstanding at
any time pursuant to this Section 9.08(j) shall not exceed $25.0 million
for all Subsidiaries;
(k) Indebtedness and Contingent Obligations incurred by any Company,
and any Permitted Refinancing thereof, not to exceed in the aggregate at
any time outstanding the excess of (1) $25.0 million in the aggregate for
all Companies over (2) the aggregate amount of Indebtedness outstanding
pursuant to Section 9.08(j);
(l) Indebtedness of any Company to (including obligations in respect
of letters of credit for the benefit of) any Person providing worker's
compensation, health, disability or other employee benefits or property,
casualty or liability insurance to any Company;
(m) Indebtedness or Contingent Obligation of any Company in respect of
performance bonds, bid bonds, appeal bonds, surety bonds and similar
obligations and trade letters of credit, in each case provided in the
ordinary course of business, including those incurred to secure health,
safety and environmental obligations in the ordinary course of business,
and any extension, renewal or refinancing thereof to the extent the amount
of refinancing Indebtedness or Contingent Obligations is not greater than
the amount of Indebtedness or Contingent Obligations being refinanced;
(n) any Additional Senior Subordinated Notes incurred solely in
connection with the financing of an Acquisition pursuant to Section 9.06(h)
so long as at the time of the incurrence thereof and after giving pro forma
effect thereto Borrower would be in compliance with all Financial
Maintenance Covenants and no Default has occurred and is continuing or
would arise therefrom, and Permitted Refinancings thereof;
(o) Capital Lease Obligations incurred by Borrower and the
Subsidiaries in respect of any Sale and Leaseback Transaction not to exceed
(x) with respect to any such transaction involving Borrower's or any of its
Subsidiaries' towers, in the aggregate, $20.0 million and (y) in the
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aggregate (including pursuant to the foregoing clause (x)) $50.0 million;
provided, however, that such Sale and Leaseback Transaction involves a sale
of Property by Borrower or a Subsidiary solely for cash consideration on
terms not less favorable than would prevail in an arm's-length transaction
and (i) such obligation results from a financing transaction to acquire
Property and occurs within 270 days after the acquisition of such Property,
(ii) results in an operating lease not involving any Company, or (iii)
results in a Capital Lease Obligation or an operating lease entered into
for any purpose; provided, that the proceeds of any such Sale and Leaseback
Transaction in reliance upon this clause (iii) shall be deemed subject to
Section 2.10(a)(iv); and
(p) any Parent Refinanced Notes incurred solely to repay in full the
Parent Subordinated Notes Obligations so long as at the time of the
incurrence thereof the Parent Subordinated Notes Obligations are repaid in
full and after giving pro forma effect thereto Borrower would be in
compliance with all Financial Maintenance Covenants and no Default then
exists or would arise therefrom, and Permitted Refinancings thereof.
All intercompany debt shall be unsecured and subordinate in right of
payment (to the same extent as the subordination provisions set forth in Exhibit
B hereto) to the Obligations. Each Obligor, by its execution and delivery of
this Agreement, hereby agrees to subordinate its right of payment under any
intercompany debt owed to it by Borrower or any Subsidiary to the full and
complete payment and performance of the Obligations. No Obligor shall incur any
Subordinated Debt unless otherwise permitted by the foregoing exceptions listed
as clauses (a) through (o) above and unless such Subordinated Debt shall be
subordinated to the Obligations at least to the same extent and for so long as
such Subordinated Debt is subordinated to such other Indebtedness.
9.09. Limitation on Investments; Limitation on Creation of
Subsidiaries. (A) No Company shall, directly or indirectly, make or permit to
remain outstanding any Investments, except for the following (so long as
complying with the Parent Financing Documents and the Senior Subordinated Notes
Financing Documents (and any Permitted Refinancing thereof) from time to time in
effect (if then in effect)):
(a) operating deposit accounts and certificates of deposit with banks
in the ordinary course of business;
(b) Permitted Investments and Investments that were Permitted
Investments when made;
(c) Investments by any Company in Borrower or any Qualified Subsidiary
or in any Subsidiary if as a result thereof or in connection therewith such
Subsidiary becomes a Qualified Subsidiary and Investments by any
Non-Qualified Subsidiary in any Company or in any Person not a Subsidiary
if as a result thereof or in connection therewith such Person becomes a
Subsidiary (provided that no Investment will be permitted in respect of any
Subsidiary with respect to which Borrower or PR Borrower has not complied
with Section 9.20);
(d) Investments outstanding on the Closing Date and identified in
Schedule 9.09 and any renewals, amendments and replacements thereof that do
not increase the amount thereof;
(e) Investments that constitute Indebtedness or Contingent Obligations
permitted under Section 9.08;
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(f) advances, loans or extensions of credit by any Company to (1)
employees of any Company in the ordinary course of business; provided,
however, that the aggregate amount of all such loans, advances and
extensions of credit (other than pursuant to clause (2) of this Section
9.09(A)(f)) shall not at any time exceed in the aggregate $3.0 million
(without giving effect to any write-down or write-off thereof) and (2)
employees of any Company in connection with stock option plans so long as
(x) such loans do not involve cash payments by any Company and (y) no
Company incurs any obligations at any time to repurchase the stock so
purchased;
(g) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods or services in the
ordinary course of business and (ii) prepayments and other credits to
suppliers made in the ordinary course of business;
(h) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security or similar legislation;
(i) pledges or deposits in connection with (i) the non-delinquent
performance of bids, trade contracts (other than for borrowed money),
leases or statutory obligations, (ii) contingent obligations on surety or
appeal bonds, and (iii) other non-delinquent obligations of a like nature,
in each case incurred in the ordinary course of business;
(j) Investments (including debt obligations) received in connection
with the bankruptcy or reorganization of suppliers and customers and in
settlement of delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(k) additional Investments in any Non-Qualified Subsidiary to the
extent that such Investments reflect an increase in the stockholders'
equity of such Subsidiary resulting from retained earnings of such
Subsidiary;
(l) Capital Expenditures and Liens not prohibited by this Agreement;
(m) Investments by any Company in any Non-Qualified Subsidiary to the
extent made in the ordinary course to fund or support the ordinary course
operations of such Subsidiary so long as no Default shall have occurred and
be continuing; provided, however, that (1) other than with respect to any
Subsidiary of which not less than 65% of the Equity Interests are owned
directly or indirectly by Borrower, the amount of such Investments made
pursuant to this clause (m) shall not exceed $5.0 million in the aggregate
(plus amounts representing return of capital) outstanding at any time
(without giving effect to any write-down or write-off thereof), (2) no such
Investment shall be permitted which singularly or in the aggregate will
result in all or a substantial part of the assets of Borrower and the
Qualified Subsidiaries being transferred to Non-Qualified Subsidiaries and
(3) all such Investments shall be evidenced by Intercompany Notes, which
shall be pledged to Administrative Agent pursuant to the Security
Agreement;
(n) Borrower or any Subsidiary may hold the Equity Interests of any
Subsidiary existing on the Closing Date or created or acquired thereafter
in accordance with the provisions hereof and any additional Equity
Interests issued in exchange therefor or as a dividend thereon;
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(o) Investments consisting of non-cash consideration received in the
form of securities, notes or similar obligations in connection with any
Disposition (which shall not be subordinated by its terms to any
obligations of the issuer thereof); provided, however, that (1) the
aggregate amount of such non-cash consideration received in connection with
any such Disposition shall not exceed 25% of the total consideration
received in connection with such Disposition, (2) such non-cash
consideration is pledged pursuant to the appropriate Security Document, and
(3) the aggregate amount of such Investments made and outstanding at any
time shall not exceed $10.0 million (without giving effect to any
write-downs or write-offs thereof);
(p) Investments consisting of or made in order to consummate
Acquisitions permitted by Section 9.06(h), (i), (o), (q) or (t);
(q) Investments not otherwise permitted by this Section 9.09 in an
aggregate amount made in any fiscal year not to exceed $10.0 million (plus
amounts representing return of capital) (exclusive of any write down or
write off thereof); provided, however, that (i) the aggregate amount of
Investments permitted to be made pursuant to this Section 9.09(A)(q) in any
fiscal year shall be increased by 50% of the amount not expended in the
prior (but not any other) fiscal year (it being understood that in
determining whether any amount is available to be carried over, the amount
expended shall be deemed first to have been made from the amount available
prior to any carryover from the prior fiscal year) and (ii) at the time of
any such Investment, and after giving pro forma effect thereto, no Default
shall have occurred or would result therefrom;
(r) Investments (other than Acquisitions) made with Equity Interests
of Parent;
(s) Investment in Minority Interests to the extent forming part of the
assets acquired in a Permitted Acquisition so long as such Minority
Interests do not comprise more than 20% of the consolidated assets of the
entity acquired as set forth in the financial statements related thereto;
and
(t) Investments in Lambda Holdings and/or Lambda Operating Corp. made
prior to the earlier of (x) the date that is 120 days following the Closing
Date and (y) the date on which the Lambda Reorganization is consummated, in
an aggregate amount not to exceed $14.0 million so long as no Default shall
have occurred or would result therefrom.
(B) No Company shall, directly or indirectly, create or acquire any
Subsidiary without the prior written consent of the Majority Lenders, which
consent shall not be unreasonably withheld; provided, however, that (1) the
provisions of this Section 9.09(B) shall not require the Majority Lenders'
consent for (I) the creation or acquisition of direct or indirect Wholly Owned
Subsidiaries so long as Section 9.20 is complied with at the time of formation
or acquisition thereof and (II) the creation or acquisition of any Subsidiary
which is not a Wholly Owned Subsidiary so long as the Investment made in
connection therewith complies with Section 9.09(A) and so long as Section 9.20
is complied with at the time of formation or acquisition thereof; and (2) all
Investments in any Subsidiary, including in connection with the creation or
acquisition thereof, must comply with Section 9.09(A).
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9.10. Limitation on Dividend Payments. No Company shall, directly or
indirectly, declare or make any Dividend Payment at any time, except:
(a) any Subsidiary may declare and make Dividend Payments to Borrower
or any Subsidiary and to minority interest holders in such Subsidiary if
made on a pro rata basis to all holders of Equity Interests in such
Subsidiary at the same time except that no Qualified Subsidiary may make
any Dividend Payment to any Non-Qualified Subsidiary;
(b) Dividend Payments on the date of consummation of the Merger
necessary to consummate the Transactions in accordance with the Transaction
Documents;
(c) so long as no Default has occurred and is continuing or would
arise therefrom, Borrower may make Dividend Payments to Parent if the
proceeds thereof are used at the time of such Dividend Payment by Parent
(and Parent may use such Dividend Payments by Borrower as set forth below):
(i) to pay out-of-pocket expenses, for administrative, legal and
accounting services provided by third parties incurred in the ordinary
course of business for the professional services, or to pay franchise
fees and similar costs;
(ii) to pay taxes of the Companies as part of a consolidated,
combined or unitary tax filing group or of the separate operations of
Parent which are actually due and payable arising from the ownership
of the Equity Interests of Borrower by Parent (not to exceed in any
event the amount of tax that Borrower and the Subsidiaries would
otherwise pay if not part of such filing group);
(iii) to redeem Equity Interests (other than Disqualified Capital
Stock) (x) on or prior to March 1, 1999 held by current employees or
directors of any Company as of the Closing Date, pursuant to the 1991
Employee Stock Purchase Plan as in effect on the Closing Date or (y)
held by current or former employees or directors of any Company (or
their estates or beneficiaries of their estates) upon the death,
disability, retirement or termination of employment or directorship,
as the case may be, pursuant to any agreement in effect on the Closing
Date as in effect on the Closing Date and pursuant to other agreements
on substantially similar terms entered into after the Closing Date;
provided, however, that the aggregate cash consideration paid, or
distributions made, pursuant to this clause (c)(iii) shall not exceed
$2.5 million in any fiscal year ending after the Closing Date, plus,
in each case, the proceeds of any Excluded Equity Issuance;
(iv) to pay regularly scheduled interest payments due on the
Parent Subordinated Notes at the time of such Dividend Payment as set
forth in the Parent Financing Documents; provided, however, any such
Dividend Payments made pursuant to this clause (iv) shall not exceed
the Minority Interest Basket and shall not be made any earlier than
the Business Day prior to the due date of such interest;
(v) to the extent regularly scheduled interest payments due on
the Parent Subordinated Notes are not satisfied by Dividend Payments
allowed by clause (iv) of this Section 9.10(c), if Borrower or any
Subsidiary shall have effected the Disposition of any Minority
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Interest pursuant to Section 9.06 (the "Sold Minority Interests"), to
pay regularly scheduled interest payments due on the Parent
Subordinated Notes; provided, however, that (1) any such Dividend
Payments made pursuant to this clause (v) shall not exceed the sum of
the amounts included in the definition of Minority Interest Basket
pursuant to clause (A) thereof in respect of all such Sold Minority
Interests for the twelve months prior to each such Disposition, (2) no
such Dividend may be paid unless at the time of the making thereof
Borrower could incur $1.00 of additional Indebtedness pursuant to the
first paragraph of Section 4.11 of the Senior Subordinated Notes
Indenture (without giving effect to any waiver or amendment granted in
respect thereof by the holders of the Senior Subordinated Notes unless
made in accordance with the consent of the Majority Lenders) and (3)
no such Dividend Payment shall be made any earlier than the Business
Day prior to the due date of such interest; and
(vi) to pay monitoring and management fees permitted to be paid
under Section 9.15(j); and
(d) so long as no Default under Section 10(a), (d), (e), (f) or (g) or
with respect to Section 9.11 has occurred and is continuing or would arise
therefrom, Borrower may after the Senior Subordinated Notes Interest
Trigger Date (with respect to the Additional Senior Subordinated Notes (if
issued by any parent of Borrower)) or the Parent Refinanced Notes Trigger
Date (with respect to the Parent Refinanced Notes) make Dividend Payments
to any direct or indirect parent of Borrower not earlier than the second
Business Day prior to the due date of any scheduled interest payment on the
Additional Senior Subordinated Notes or the Parent Refinanced Notes if the
proceeds thereof are used at the time of such Dividend Payment by such
parent to pay, on the scheduled semiannual interest payments dates,
interest accrued on the Additional Senior Subordinated Notes or the Parent
Refinanced Notes, as the case may be, subsequent to (1) with respect to the
Additional Senior Subordinated Notes, the Senior Subordinated Notes
Interest Trigger Date (or such later date when the interest escrow in
respect thereof has been depleted) and (2) with respect to the Parent
Refinanced Notes, the Parent Refinanced Notes Interest Trigger Date.
9.11. Financial Covenants.
(a) Maximum Total Leverage Ratio. The Total Leverage Ratio shall not,
as of any Test Date during any period set forth in the table below, exceed the
ratio set forth opposite such period in the table below:
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Period Ratio
Closing Date - 5/31/00 9.00
6/1/00 - 8/31/00 8.75
9/1/00 - 11/30/00 8.50
12/1/00 - 2/28/01 8.00
3/1/01 - 5/31/01 7.75
6/1/01 - 8/31/01 7.25
9/1/01 - 11/30/01 7.00
12/1/01 - 2/28/02 6.75
3/1/02 - 5/31/02 6.50
6/1/02 - 8/31/02 6.25
9/1/02 - 11/30/02 6.00
12/1/02 - 2/28/03 5.75
3/1/03 - 5/31/03 5.25
6/1/03 - 8/31/03 5.00
9/1/03 - 11/30/03 4.75
12/1/03 and thereafter 4.50
(b) Maximum Senior Leverage Ratio. The Senior Leverage Ratio shall
not, as of any Test Date during any period set forth in the table below, exceed
the ratio set forth opposite such period in the table below:
Period Ratio
Closing Date - 5/31/00 7.00
6/1/00 - 8/31/00 6.50
9/1/00 - 11/30/00 6.25
12/1/00 - 2/28/01 6.00
3/1/01 - 5/31/01 5.75
6/1/01 - 8/31/01 5.50
9/1/01 - 11/30/01 5.25
12/1/01 - 2/28/02 5.00
3/1/02 - 5/31/02 4.75
6/1/02 - 8/31/02 4.50
9/1/02 - 2/28/03 4.25
3/1/03 - 5/31/03 4.00
6/1/03 - 8/31/03 3.75
9/1/03 - 2/29/04 3.50
3/1/04 - 5/31/04 3.25
6/1/04 and thereafter 3.00
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(c) Minimum Interest Coverage Ratio. The Interest Coverage Ratio shall
not, as of any Test Date during any period set forth in the table below, be less
than the ratio set forth opposite such period in the table below:
Period Ratio
Closing Date - 5/31/01 1.35
6/1/01 - 8/31/01 1.40
9/1/01 - 2/28/02 1.45
3/1/02 - 8/31/02 1.50
9/1/02 - 2/29/04 1.75
3/1/04 - 2/28/05 2.00
3/1/05 - 2/28/06 2.25
3/1/06 and thereafter 2.50
(d) Minimum Fixed Charge Coverage Ratio. The Fixed Charge Coverage
Ratio shall not, as of any Test Date during any period set forth in the table
below, be less than the ratio set forth opposite such period in the table below:
Period Ratio
6/1/00 and thereafter 1.00
(e) Minimum Pro Forma Debt Service Coverage Ratio. The Pro Forma Debt
Service Coverage Ratio shall not, as of any Test Date during any period set
forth in the table below, be less than the ratio set forth opposite such period
in the table below:
Period Ratio
12/1/00 - 5/31/01 1.10
6/1/01 - 5/31/02 1.15
6/1/02 - 5/31/03 1.20
6/1/03 - 5/31/04 1.25
6/1/04 and thereafter 1.30
(f) Limitation on Capital Expenditures. The aggregate amount of
Capital Expenditures made by the Companies in any period set forth below shall
not exceed the amount set forth opposite such period below:
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Period Amount
Closing Date - 11/30/99 $135.0 million
12/1/99 - 11/30/00 $115.0 million
; provided that to the extent Capital Expenditures made in any period above are
less than the amount set forth above for such period, such unused amount may be
carried forward to succeeding period set forth above.
9.12. Pledge or Mortgage of Additional Collateral. Promptly, and in
any event within 30 days, after the acquisition of any Property of the type that
would have constituted Collateral at the Closing Date (including the Equity
Interests of any Subsidiary hereafter created or acquired) other than Real
Property (the "Additional Collateral") and after the creation or acquisition of
any Subsidiary, each Company shall take all action reasonably necessary or
desirable (to the extent permitted by applicable Contractual Obligations
existing on the Closing Date), if any, including the execution and delivery of
all such agreements, assignments, documents, registers and instruments
(including amendments to the Credit Documents) and the filing of appropriate
financing statements or other documents under the provisions of the UCC or
applicable requirements of any Governmental Authority in each of the offices
where such filing is necessary or appropriate, to grant (in the reasonable
judgment of Administrative Agent or the Majority Lenders) to Administrative
Agent, for the benefit of the Creditors, a duly perfected first priority Lien on
such Property pursuant to appropriate Security Documents; provided, however,
that (1) in no event shall any Foreign Subsidiary be required to pledge assets,
and (2) with respect to the Equity Interests of Subsidiaries, Borrower, PR
Borrower and the Domestic Subsidiaries need only pledge 65% of the Equity
Interests of Foreign Subsidiaries and no Equity Interests of any Subsidiary that
is both a Foreign Subsidiary and not a direct Subsidiary of Borrower, PR
Borrower or any Domestic Subsidiary need be pledged.In the event that, after the
Closing Date, any Company (including any Subsidiary created or acquired on or
after the Closing Date but excluding any Foreign Subsidiary) acquires or holds
an interest with a fair market value of $5.0 million or more in any Real
Property, such Company shall notify Administrative Agent and, if requested by
Majority Lenders or Administrative Agent, (i) to the extent permitted by
applicable Contractual Obligations existing on the Closing Date, take such
actions and execute such documents as Administrative Agent or the Majority
Lenders shall reasonably require to confirm the Lien of an existing Mortgage, if
applicable, or to create a new Mortgage on such additional Real Property and
(ii) cause to be delivered to Administrative Agent, on behalf of the Creditors,
the documents and instruments reasonably requested by Administrative Agent,
including, without limitation, the items set forth in Section 7.01 in respect of
Mortgaged Real Property. If reasonably requested by Agents or the Majority
Lenders, Borrower shall obtain at its sole expense and as soon as practicable
but in any event not later than 45 days after request therefor, Phase 1
environmental reports from an environmental engineering firm reasonably
acceptable to Lead Arranger with respect to any Real Property held by any
Company if not delivered on or prior to the Closing Date.
With respect to each such Real Property, each such Company shall cause
to be delivered to Administrative Agent, on behalf of the Creditors, the
following documents and instruments (to the extent permitted by Contractual
Obligations existing on the Closing Date):
(i) a Mortgage encumbering each Mortgaged Real Property in favor of
Administrative Agent, for the benefit of the Creditors, in form for
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recording in the recording office of each jurisdiction where each such
Mortgaged Real Property is situated, together with such other documentation
as shall be required to create a lien under applicable law, and other
similar statements as are contemplated by counsel for Administrative Agent
and the Lenders, all of which shall be in form and substance reasonably
satisfactory to Administrative Agent, which Mortgage and other instruments
shall be effective to create a first priority Lien on such Mortgaged Real
Property subject to no Liens other than Prior Liens applicable to such
Mortgaged Real Property;
(ii) with respect to each Mortgaged Real Property, such consents, lien
waivers, approvals, estoppels, tenant subordination agreements or other
instruments as necessary or as shall be reasonably deemed required by
Administrative Agent to consummate the transactions contemplated hereby or
to grant the Lien contemplated by the Mortgage; and
(iii) the following documents and instruments:
(1) with respect to each Mortgaged Real Property, if required to
obtain the title insurance coverage (if any) required by
Administrative Agent, a Survey;
(2) with respect to each Mortgaged Real Property, policies or
certificates of insurance as reasonably required by the Mortgage
relating thereto;
(3) with respect to each Mortgaged Real Property, judgment, tax
and other lien searches in form and substance satisfactory to
Administrative Agent;
(4) evidence acceptable to Administrative Agent of payment by
Borrower of all title insurance premiums (if any), search and
examination charges, survey costs, mortgage recording taxes and
related charges required for the recording of the Mortgages and
issuance of the title insurance policies (if any) referred to in this
Section 9.12;
(5) with respect to each Real Property or Mortgaged Real
Property, copies of all material leases in which any Company holds the
landlord's or the tenant's interest, each of which shall be reasonably
acceptable to Administrative Agent;
(6) with respect to each Mortgaged Real Property, an Officer's
Certificate that as of the date thereof there (a) has been issued and
is in effect, to the extent required, a valid and proper certificate
of occupancy of local or foreign equivalent (if any) for the use then
being made of such Mortgaged Real Property, (b) has not occurred any
uncured material Casualty Event of any Mortgaged Real Property and (c)
except as may be disclosed in the Survey of such Mortgaged Real
Property delivered pursuant to subclause (iii)(1) of this Section 9.12
above, are no material disputes regarding boundary lines, location,
encroachment or possession of such Mortgaged Real Property and no
state of facts existing which could reasonably be expected to give
rise to any such claim;
(7) if required by Administrative Agent or Majority Lenders, a
policy (or commitment to issue a policy) of title insurance insuring
(or committing to insure) the Lien of such Mortgage as a valid first
priority Lien on the real property and fixtures described therein in
such amount not to exceed 100% of the fair market value thereof as
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Administrative Agent may reasonably require which policy (or
commitment) shall (a) be issued by the Title Company or another title
insurance company acceptable to Administrative Agent, (b) include such
reinsurance arrangements (with provisions for direct access) as shall
be reasonably acceptable to Administrative Agent, (c) have been
supplemented by such endorsements (or where such endorsements are not
available, opinions of special counsel or other professionals
acceptable to Agents) as shall be reasonably requested by
Administrative Agent, (d) include such affidavits and instruments of
indemnifications by Borrower and the applicable Subsidiary as shall be
reasonably required to induce such title insurance company to issue
the policy or policies (or commitment) and endorsements contemplated
in this paragraph (7), and (e) contain no exceptions to title other
than exceptions for Prior Liens; and
(8) with respect to each Mortgaged Real Property, all such other
items as shall be necessary in the opinion of counsel to the Lenders
to create a valid perfected first priority mortgage in such Mortgaged
Real Property.
The costs of all actions taken by the parties in connection with the
pledge of Additional Collateral or in connection with any Mortgage, including
reasonable costs of counsel for Administrative Agent, shall be paid by the
Obligors promptly following written demand.
9.13. Security Interests; Further Assurances. Each Company shall,
promptly, upon the reasonable request of Administrative Agent or any Lender, at
Borrower's expense, execute, acknowledge and deliver, or cause the execution,
acknowledgment and delivery of, and thereafter register, file or record, or
cause to be registered, filed or recorded, in an appropriate governmental
office, any document or instrument supplemental to or confirmatory of the
Security Documents or otherwise deemed by Administrative Agent reasonably
necessary or desirable for the continued validity, perfection and priority of
the Liens on the Collateral covered thereby, or obtain any consents, including,
without limitation, landlord or similar lien waivers and consents, as may be
necessary or appropriate in connection therewith.
Each Company shall deliver or cause to be delivered to Administrative
Agent from time to time such other documentation, consents, authorizations,
approvals and orders in form and substance reasonably satisfactory to
Administrative Agent as Administrative Agent shall reasonably deem necessary to
perfect or maintain the Liens on the Collateral.
Upon the exercise by Administrative Agent or the Lenders of any power,
right, privilege or remedy pursuant to any Credit Document which requires any
consent, approval, registration, qualification or authorization of any
Governmental Authority, each Company shall execute and deliver all applications,
certifications, instruments and other documents and papers that Administrative
Agent or the Lenders may be so required to obtain.
9.14. Compliance with Environmental Laws. (a) Each Company shall
comply with all Environmental Laws, and will keep or cause all Real Property to
be kept free of any Liens under Environmental Laws, unless failure to do so
could not reasonably be expected to have a Material Adverse Effect or subject
any Agent, Lender or Issuing Lender to any material risk of damages or
liability; (b) in the event of the presence of any Hazardous Material at, on,
under or emanating from any Real Property which would reasonably be expected to
result in liability under or a violation of any Environmental Law, in each
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case which could reasonably be expected to have a Material Adverse Effect, each
Company shall undertake, and/or cause any of their respective tenants or
occupants to undertake, at their sole expense, any action required pursuant to
Environmental Laws to mitigate and eliminate such presence; provided, however,
that no Company shall be required to comply with any order or directive which is
being contested in good faith and by proper proceedings so long as it has
maintained adequate reserves with respect to such compliance to the extent
required in accordance with GAAP; (c) each Company shall promptly notify
Administrative Agent of the occurrence of any event specified in clause (b) of
this Section 9.14 and shall periodically thereafter keep Administrative Agent
informed of any material actions taken in response to such event and the results
of such actions; and (d) at the written request of Administrative Agent at any
time and from time to time, such Obligor will provide, at such Obligor's sole
cost and expense, an environmental site assessment (including, without
limitation, the results of any groundwater or other testing, conducted if
Administrative Agent directs that such testing be conducted) concerning any Real
Property now or hereafter owned, leased or operated by any Company, conducted by
an environmental consulting firm proposed by such Obligor and approved by
Administrative Agent indicating the presence or absence of Hazardous Materials
and the potential cost of any required investigation or other response or any
corrective action in connection with any Hazardous Materials on, at, under or
emanating from such Real Property; provided, however, that such request may be
made only if (a) there has occurred and is continuing an Event of Default, (b)
Administrative Agent reasonably believes that any Company or any such Real
Property is not in material compliance with Environmental Law or (c)
circumstances exist that reasonably could be expected to form the basis of an
Environmental Claim against such Company or any such Real Property which would
have a Material Adverse Effect. If any Obligor fails to provide the same within
60 days after such request was made, Administrative Agent may but is under no
obligation to conduct the same, and such Obligor shall grant and hereby grants
to Administrative Agent and its agents access to such Real Property and
specifically grants Administrative Agent an irrevocable non-exclusive license,
subject to the rights of tenants, to undertake such an assessment, all at such
Obligor's sole cost and expense.
9.15. Limitation on Transactions with Affiliates. No Company shall,
directly or indirectly: enter into or permit to exist any transaction
(including, without limitation, the purchase, sale, lease or exchange of any
Property, the rendering of any service, or a merger or consolidation), with or
for the benefit of any Affiliate (an "Affiliate Transaction") unless such
Affiliate Transaction is (i) otherwise not prohibited under this Agreement and
(ii) on fair and reasonable terms that are not less favorable to such Company
than those that are reasonably obtainable at the time in an arm's-length
transaction with a Person that is not such an Affiliate; provided, however, that
the following shall be permitted: (a) Dividend Payments permitted by Section
9.10; (b) fees and compensation paid to, and customary indemnity and
reimbursement provided on behalf of, officers, directors and employees of any
Company in the ordinary course of business; (c) loans or advances to employees
permitted by Section 9.09; (d) so long as no Event of Default shall have
occurred and be continuing, transactions and agreements contemplated by any
management agreements so long as the terms and conditions thereof are reasonably
satisfactory to Lead Arranger; (e) transactions and agreements in existence on
the Closing Date and listed in Schedule 9.15 (as such agreements are in effect
on the Closing Date, the "Existing Affiliate Agreements") and the transactions
pursuant to the Existing Affiliate Agreements; (f) any employment agreements
entered into by any Company in the ordinary course of business; (g) any purchase
by any Permitted Holder of Equity Interests of Parent or any purchase by Parent
of Equity Interests of Borrower or any contribution by Parent to the equity
capital of Borrower, provided that any Equity Interests of Borrower purchased by
Parent shall be pledged to Administrative Agent on behalf of the Lenders
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pursuant to the Security Documents; (h) transactions in which Borrower delivers
to Lead Arranger, Administrative Agent and the Lenders a letter from an
independent financial advisor acceptable to Lead Arranger, Administrative Agent
and the Majority Lenders stating that such transaction is fair to such Company
from a financial point of view; (i) the existence of, or the performance by any
Company of its obligations under the terms of, the Merger Agreement, or any
agreement contemplated thereunder (including any registration rights agreement
or purchase agreement related thereto) to which it is a party as of the Closing
Date and any similar agreements which it may enter into thereafter; provided,
however, that the existence of, or the performance by any such Company of
obligations under any future amendment to any such existing agreement or under
any similar agreement entered into after the Closing Date shall only be
permitted by this clause (i) to the extent that the terms of any such amendment
or new agreement are not otherwise disadvantageous to the Lenders in any
material respect; (j) so long as no Event of Default shall have occurred and be
continuing, payment of monitoring or management or similar fees payable to the
Principal Investors and their Affiliates in an aggregate amount in any fiscal
year not in excess of $1.0 million (plus reasonable expenses in connection
therewith); and (k) so long as no Event of Default shall have occurred and be
continuing, payments by Parent, Borrower or any of their respective Subsidiaries
to any Permitted Holder made for any financial advisory, financing, underwriting
or placement services or in respect of other investment banking activities,
including, without limitation, in connection with acquisitions or divestitures,
which payments are approved by a majority of the board of directors of Parent in
good faith.
9.16. Limitation on Accounting Changes; Limitation on Investment
Company Status. No Company shall make or permit any change in (i) accounting
policies or reporting practices, except immaterial changes and except as
required by generally accepted accounting principles or (ii) its fiscal year end
(May 31 of each year). No Obligor shall be or become an investment company
subject to the registration requirements under the United States Investment
Company Act of 1940, as amended.
9.17. Limitation on Modifications of Certain Documents, Etc. No
Company shall, directly or indirectly, consent to any modification, supplement
or waiver of, or amend, in any manner which could reasonably be expected to be
materially adverse to the Lenders, any of the provisions of any Organic
Document. No material change that could reasonably be expected to be adverse to
the Creditors may be made to the Merger Agreement, any Supplemental Indenture,
or any of the Marketing Agreements, Century M-L Consent and Agreement or the
Facilities Agreement.
9.18. Interest Rate Protection Agreements. Borrower shall obtain, on
or within 90 days after the Closing Date, Interest Rate Protection Agreements
having terms and with counterparties reasonably satisfactory to Lead Arranger as
shall result in effectively limiting the interest cost to the Companies of at
least 50% of the aggregate principal amount of then outstanding Total Debt of
the Companies for a period of at least three years from the date the Initial
Interest Rate Protection Agreements were obtained.
9.19. Limitation on Certain Restrictions Affecting Subsidiaries. No
Company shall, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any direct or indirect encumbrance or restriction on
the ability of any Subsidiary to (a) pay dividends or make any other
distributions on such Subsidiary's Equity Interests or any other interest or
participation in its profits owned by any Company, or pay any Indebtedness or
any other obligation owed to any Company, (b) make Investments in or to any
Company, or (c) transfer any of its Property to any Company. The foregoing shall
not prohibit (i) any such encumbrances or restrictions existing under or by
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reason of (x) applicable law, (y) the Credit Documents or (z) the Senior
Subordinated Notes Financing Documents as in effect on the date hereof, the
Additional Senior Subordinated Notes Documents, the Parent Refinanced Notes
Documents, and any Permitted Refinancing of any thereof so long as such
restriction in such Additional Senior Subordinated Notes Documents, the Parent
Refinanced Notes Documents or such Permitted Refinancing is not more
disadvantageous to the Creditors or Borrower than the Senior Subordinated Notes
Financing Documents as in effect on the date hereof, (ii) restrictions on the
transfer of assets subject to a Lien permitted under Section 9.07, (iii)
customary restrictions on subletting or assignment of any lease governing a
leasehold interest of any Company, and (iv) restrictions on the transfer of any
Property subject to a Disposition permitted under this Agreement.
9.20. Additional Obligors; Licenses To Be Held by License
Subsidiaries. (A) Upon any Company creating or acquiring any Subsidiary (other
than any Foreign Subsidiary) after the Closing Date (each such Subsidiary
referred to herein as an "Additional Obligor" and collectively as the
"Additional Obligors"), Borrower and PR Borrower shall (i) cause each such
Subsidiary that is a Wholly Owned Subsidiary to execute and deliver all such
agreements, guarantees, documents and certificates (including any amendments to
the Credit Documents and a Joinder Agreement) as Administrative Agent or the
Majority Lenders may reasonably request and do such other acts and things as
Administrative Agent or the Majority Lenders may reasonably request in order to
have such Subsidiary guarantee the Obligations in accordance with the terms of
the Credit Documents, (ii) promptly, to the extent permitted by Contractual
Obligations existing on the Closing Date, (I) execute and deliver to
Administrative Agent such amendments to the Security Documents as Administrative
Agent deems necessary or advisable in order to grant to Administrative Agent,
for the benefit of the Lenders, a perfected first priority security interest in
the Equity Interests and debt securities of such new Subsidiary which are owned
by Borrower, PR Borrower or any Subsidiary and required to be pledged pursuant
to the Security Agreement, (II) deliver to Administrative Agent the certificates
representing such Equity Interests and debt securities, together with (A) in the
case of such Equity Interests, undated stock powers endorsed in blank, and (B)
in the case of such debt securities, endorsed in blank, in each case executed
and delivered by a Responsible Officer of Borrower or such Subsidiary, as the
case may be, (III) to the extent permitted by Contractual Obligations existing
on the Closing Date, cause such new Subsidiary to take such actions necessary or
advisable to grant to Administrative Agent for the benefit of the Creditors a
perfected first priority security interest in the collateral described in the
Security Agreement with respect to such new Subsidiary, including, without
limitation, the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Security Agreement or by law or as may
be reasonably requested by Administrative Agent, and (IV) if reasonably
requested by Administrative Agent, deliver to Administrative Agent legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to Administrative
Agent.
(B) The Obligors shall cause all Licenses of any Company to be held,
within 90 days of the Closing Date, and at all times thereafter, by one or more
License Subsidiaries, except that if any Company shall acquire (including by
merger) any Person that holds a License, Borrower shall cause such License to be
transferred to a License Subsidiary within 90 days of such acquisition.
9.21. Limitation on Activities of Parent. Parent shall not conduct any
business, incur any obligations (other than under the agreements relating to the
Merger Agreement, the Credit Documents, Parent Financing Documents, Senior
Subordinated Notes Financing Documents, the Additional Senior Subordinated Notes
Documents and the Parent Refinanced Notes Documents, as applicable) or hold or
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acquire any assets (other than the Equity Interests of Borrower); provided,
however, that Parent shall be permitted to take any action necessary in order to
comply with Section 9.03(b).
9.22. Limitation on Issuance or Dispositions of Equity Interests of
Borrower and Subsidiaries. Borrower shall not issue any of its Equity Interests
or Equity Rights or permit any Person to own any of its Equity Interests or
Equity Rights other than Parent. Parent shall not, directly or indirectly,
effect any Disposition of any Equity Interests or Equity Rights of Borrower,
other than the pledge thereof pursuant to the Security Agreement. Except as
permitted by Section 9.06(s), neither Borrower nor any Subsidiary shall effect
the Disposition of any Equity Interests of any Subsidiary unless all Equity
Interests owned by Borrower and the Subsidiaries are sold pursuant thereto in
accordance with the Credit Documents, upon which sale the Guarantee by such
Subsidiary shall be automatically deemed to be released.
9.23. Limitation on Payments or Prepayments of Indebtedness or
Modification of Debt Documents. No Company shall, directly or indirectly:
(a) make any payment or prepayment (optional or otherwise) on or
redemption of or any payments in redemption, defeasance or repurchase
(whether in cash, securities or other Property) of the Senior Subordinated
Notes, the Parent Subordinated Notes, any Existing Notes, any Additional
Senior Subordinated Notes, any Parent Refinanced Notes or any Permitted
Refinancing of any of the foregoing, except (1) regularly scheduled
mandatory payments of interest, (2) pursuant to the Note Tender or Note
Defeasance, (3) the conversion or exchange of any Indebtedness into shares
of common Equity Interests of Parent, and (4) the exchange of Senior
Subordinated Notes, Additional Senior Subordinated Notes or Parent
Refinanced Notes for exchange notes, as contemplated by the respective
definitions thereof;
(b) amend, supplement, waive or otherwise modify any of the provisions
of any Senior Subordinated Notes Financing Document, Parent Financing
Documents, Additional Senior Subordinated Notes Document, Parent Refinanced
Notes Document or (other than in connection with the Note Tender) any
Existing Indenture (or any Permitted Refinancing of any thereof):
(i) which shortens the fixed maturity, or increases the rate or
shortens the time of payment of interest or dividends on, or increases
the amount or shortens the time of payment of any principal,
liquidation preference or premium payable whether at maturity, at a
date fixed for prepayment or by acceleration or otherwise of such
Indebtedness, or increases the amount of, or accelerates the time of
payment of, any fees payable in connection therewith;
(ii) which relates to the affirmative or negative covenants,
events of default, redemption or repurchase provisions, or remedies
under the documents or instruments evidencing such Indebtedness and
the effect of which is to subject any Company to any materially more
onerous or more restrictive provisions; or
(iii) which effects and changes to the subordination provisions
(or related definitions) therein or otherwise materially adversely
affects the interests of the Creditors as senior creditors or the
interests of the Creditors under this Agreement or any other Credit
Document in any respect; or
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(c) effect any material change in the Senior Subordinated Notes
Indenture in connection with the Exchange Offer or enter into an Exchange
Indenture which is different in any material respect from the Senior
Subordinated Notes Indenture in connection with the Exchange Offer in each
case unless the terms thereof are reasonably acceptable to Agents and the
Majority Lenders.
9.24. Casualty and Condemnation. Each Company will furnish to
Administrative Agent and the Lenders prompt written notice of any casualty or
other insured damage to any material portion of the Collateral or the
commencement of any action or proceeding for the taking of any material portion
of the Collateral or any part thereof or interest therein under power of eminent
domain or by condemnation or similar proceeding.
9.25. Limitation on Tax Sharing Arrangements. No Company shall enter
into or permit to exist any tax sharing agreement or similar arrangement unless
the same shall have been reviewed by, and consented to, by Agents and the
Majority Lenders.
9.26. Limitation on Designation of Designated Senior Indebtedness.
Borrower shall not, nor shall it permit any Subsidiary to, designate any
Indebtedness or other obligation, other than Indebtedness under the Credit
Documents, as "Designated Senior Indebtedness," as such term is defined in the
Senior Subordinated Notes Indenture, the Additional Senior Subordinated Notes
Documents or any Permitted Refinancing of any thereof, or any comparable
designation that confers upon the holders of such Indebtedness or other
obligation (or any Person acting on their behalf) the right to initiate blockage
periods under the Senior Subordinated Notes Indenture, the Additional Senior
Subordinated Notes Documents or any other Indebtedness or other obligation of
any Company.
9.27. No Contractual Bar. No Company shall enter into or permit to
exist any Contractual Obligation that will prevent any Company from complying
with Sections 9.12 or 9.20.
9.28. Year 2000 Compliance. Each Company will, on or prior to
September 30, 1999, eliminate any significant risks that computer hardware,
software or any equipment containing embedded microchips used in their business
or operations will not in the case of dates or time periods occurring after
December 31, 1999 function, in the receipt, transmission, processing,
manipulation, storage, retrieval, retransmission or other utilization of data,
at least as effectively as in the case of dates or time periods occurring prior
to January 1, 2000, in any respect that would cause a Material Adverse Effect.
9.29. Facilities Agreement. PR Borrower agrees to (i) request under
Section 1 of the Facilities Agreement to lease such additional capacity, cable
and fibers on the Fiber Network (as defined therein) as may be necessary, in the
reasonable commercial judgment of PR Borrower, for the operation of the PR
Systems, (ii) notify Agents of any failure of either other party thereto to
comply with its obligations thereunder in any material respect and (iii) take
such action, if any, as may be reasonably requested by the Majority Lenders in
their reasonable commercial judgment to enforce its rights and remedies against
such other party in respect of any such failure to comply with such obligations
in any material respect provided that any such action shall not be prohibited by
law or by the Facilities Agreement.
Section 10. Events of Default. If one or more of the following events
(herein called "Events of Default") shall occur and be continuing:
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(a) (i) Borrower or PR Borrower shall default in the payment when due
(whether at stated maturity upon prepayment or repayment or acceleration or
otherwise) of any principal of any Loan or Reimbursement Obligation, or
(ii) Borrower or PR Borrower shall default in the payment when due of
interest on any Loan or any Reimbursement Obligation or any fee or any
other amount payable by it hereunder or under any other Credit Document
when due and such default under this clause (ii) shall have continued
unremedied for three or more Business Days; or
(b) Any Company shall default in the payment when due of any principal
of or interest on any of its Indebtedness (other than the Loans)
aggregating $10.0 million or more, beyond the period of grace, if any,
provided in the instrument or agreement under which such Indebtedness was
created, after giving effect to any consents or waivers relating thereto
obtained before the expiration of any such period of grace; or any event
specified in any note, agreement, indenture or other document evidencing or
relating to any Indebtedness aggregating $10.0 million or more if the
effect of such event (after giving effect to any consents or waivers
relating thereto obtained before the expiration of any such period of
grace) is to cause, or (with the giving of notice if required) to permit
the holder or holders of such Indebtedness (or a trustee or agent on behalf
of such holder or holders) to cause, such Indebtedness to become due, or to
be prepaid in full (whether by redemption, purchase, offer to purchase or
otherwise), prior to its stated maturity; or
(c) Any representation or warranty made or deemed made in any Credit
Document (or in any modification or supplement thereto) by any Company or
in any certificate furnished to any Creditor pursuant to the provisions
thereof, shall prove to have been false or misleading as of the time made,
deemed made or furnished in any material respect; or
(d) Any Obligor shall default in the performance of any of its
obligations under any of Sections 9.01(f), 9.06 through 9.11, 9.15, 9.17
through 9.24 or 9.26 through 9.29; or Borrower shall default in the
performance of its obligations under Section 9.01(e) or (k) and such
default shall continue unremedied for at least five Business Days; or any
Obligor shall default in the performance of any of its other obligations in
this Agreement, the Security Documents or the Letter of Credit Documents
and such default shall continue unremedied for a period of at least thirty
days after written notice thereof to such Obligor and Borrower by
Administrative Agent or the Majority Lenders; or
(e) Any Company shall not, or shall admit in writing its inability to,
or be generally unable to, pay its debts as such debts become due; or
(f) Any Company shall (i) apply for or consent to the appointment of,
or the taking of possession by, a receiver, custodian, trustee or
liquidator of itself or of all or a substantial part of its Property, (ii)
make a general assignment for the benefit of its creditors, (iii) commence
or consents to any Insolvency Proceeding, (iv) file a petition seeking to
take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or readjustment of debts, (v)
fail to controvert within 60 days or in a timely and appropriate manner, or
acquiesce in writing to, any petition filed against it in an involuntary
Insolvency Proceeding, or (vi) take any corporate action for the purpose of
effecting any of the foregoing; or
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(g) (i) Any Insolvency Proceeding is commenced or filed against any
Company, or any writ, judgment, warrant of attachment, execution or similar
process is issued or levied against any Company, and either (1) such
proceeding or petition shall not be dismissed, or such writ, judgment,
warrant of attachment, execution or similar process shall not be released,
vacated or fully bonded, within 60 days after commencement, filing or levy
or (2) such proceeding shall not be actively contested by such Company;
(ii) any Company admits the material allegations of a petition against it
in any Insolvency Proceeding, or an order for relief (or similar order
under non-U.S. law) is ordered in any Insolvency Proceeding; (iii) any
Company acquiesces in the appointment of a receiver, receiver and manager,
trustee, custodian, conservator, liquidator, mortgagee in possession (or
agent therefor), or other similar person for itself or a substantial
portion of its Property or business; or (iv) an order of relief against any
Company shall be entered in any Insolvency Proceeding; or
(h) A final judgment or judgments for the payment of money in excess
of $10.0 million in the aggregate (exclusive of judgment amounts to the
extent covered by insurance) shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against any
Company and the same shall not be discharged (or provision shall not be
made for such discharge), vacated or bonded pending appeal, or a stay of
execution thereof shall not be procured, within 60 days from the date of
entry thereof and such Company shall not, within said period of 60 days, or
such longer period during which execution of the same shall have been
stayed, appeal therefrom and cause the execution thereof to be stayed
during such appeal; or
(i) An ERISA Event or noncompliance with respect to Foreign Plans
shall have occurred that when taken together with all other ERISA Events
and noncompliance with respect to Foreign Plans that have occurred, is
reasonably likely to result in liability of any Company in an aggregate
amount exceeding $10.0 million; or
(j) Any Change of Control shall occur; or
(k) Any Security Document after delivery thereof by any Obligor at any
time shall cease to be in full force and effect or shall for any reason
fail to create or cease to maintain a valid and duly perfected first
priority security interest in and Lien upon (subject to Permitted Liens and
other Liens expressly permitted by the terms of the applicable Security
Document) any material portion of the Collateral; or
(l) Any Guarantee ceases to be in full force and effect (other than in
connection with the release thereof authorized by Section 9.22); or
(m) Any Credit Document or any material provision thereof shall at any
time and for any reason be declared by a court of competent jurisdiction to
be null and void, or a Proceeding shall be commenced by any Company or any
other Person, or by any Governmental Authority, seeking to establish the
invalidity or unenforceability thereof (exclusive of questions of
interpretation of any provision thereof), or any Company shall repudiate or
deny in writing that it has any liability or obligation for the payment of
principal or interest or other obligations purported to be created under
any Credit Document; or
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(n) Any non-monetary judgment, order or decree is entered against any
Company which is reasonably likely to have a Material Adverse Effect, and
there shall be any period of 45 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(o) One or more Licenses shall be terminated or revoked such that any
Company is no longer able to operate the related Cellular System, PCS
System, SMR System or any portion thereof and retain the revenue received
therefrom or one or more Licenses shall fail to be renewed at the stated
expiration thereof such that any Company is no longer able to operate the
related Cellular System, PCS System, SMR System or any portion thereof and
retain the revenue received therefrom, except with respect to any of the
foregoing in the event that the termination, revocation or failure to renew
is with respect to any License that is not material (it being understood
that material Licenses shall include (but not be limited to) any License
relating to 10% or more of Operating Cash Flow of Borrower for the most
recently ended two consecutive fiscal quarters); or
(p) The Merger shall not be consummated in all material respects in
accordance with this Agreement and the Merger Agreement substantially
concurrently with the making of the initial extensions of credit hereunder
or the Merger shall be unwound, reversed or otherwise rescinded in whole or
in any material part for any reason; or
(q) Century-ML shall suffer the cancellation, non-renewal or adverse
modification of any one or more approvals, authorizations, licenses,
franchises or other permissions of any governmental, judicial, regulatory
or other agencies if such cancellation, non-renewal or adverse modification
renders the continued performance by it of its obligations under the
Facilities Agreement unlawful, or the Facilities Agreement shall be
terminated, shall expire or shall be materially adversely modified, unless
PR Borrower shall have secured alternative arrangements satisfactory to the
Majority Lenders to substitute for benefits provided by the Facilities
Agreement for the operation by PR Borrower of the PR Systems; or
(r) The subordinated provisions relating to the Senior Subordinated
Notes, Additional Senior Subordinated Notes (if issued by Borrower) or any
Subordinated Debt (the "Subordination Provisions") shall fail in any
material respect to be enforceable by the Lenders (which have not
effectively waived the benefits thereof) in accordance with the terms
thereof, or any Obligation shall fail to constitute Senior Indebtedness (as
defined in the Senior Subordinated Notes, the Additional Senior
Subordinated Notes (if issued by Borrower) or any other Subordinated Debt),
or any Obligor shall, directly or indirectly, disavow or contest in any
manner any of the Subordination Provisions;
THEREUPON: (1) in the case of an Event of Default other than one
referred to in clause (e), (f) or (g) of this Section 10 with respect to
Borrower or PR Borrower, Administrative Agent may, and upon written direction of
the Majority Lenders shall, by notice to Borrower, terminate the Commitments
and/or declare the principal amount then outstanding of, and the accrued
interest on, the Loans, the Reimbursement Obligations and all other amounts
payable by Borrower and PR Borrower hereunder and under the Notes (including any
amounts payable under Section 5.05 or 5.06) to be forthwith due and payable,
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whereupon such amounts shall be immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are hereby
expressly waived by Borrower and PR Borrower, reduce any claim to judgment, take
any other action permitted by law and/or take any action permitted to be taken
by the Security Documents during the existence of an Event of Default; and (2)
in the case of the occurrence of an Event of Default referred to in clause (e),
(f) or (g) of this Section 10 with respect to Borrower or PR Borrower, the
Commitments shall automatically be terminated and the principal amount then
outstanding of, and the accrued interest on, the Loans, the Reimbursement
Obligations and all other amounts payable by Borrower and PR Borrower hereunder
and under the Notes (including any amounts payable under Section 5.05 or 5.06)
shall automatically become immediately due and payable without presentment,
demand, protest or other formalities of any kind, all of which are hereby
expressly waived by Borrower and PR Borrower.
In addition, Borrower agrees, upon the occurrence and during the
continuance of any Event of Default if Administrative Agent has declared the
principal amount then outstanding of, and accrued interest on, the Revolving
Credit Loans, and all other amounts payable to the Revolving Credit Lenders
hereunder and under the Notes evidencing such Loans to be due and payable, it
may and shall, if requested by the Majority Revolving Credit Lenders through
Administrative Agent (and, in the case of any Event of Default referred to in
clause (e), (f) or (g) of this Section 10 with respect to any Company,
forthwith, without any demand or the taking of any other action by
Administrative Agent or such Lenders) provide cover for the Letter of Credit
Liabilities by paying to Administrative Agent immediately available funds in an
amount equal to the then aggregate undrawn face amount of all Letters of Credit,
which funds shall be held by Administrative Agent in the Collateral Account as
collateral security in the first instance for the Letter of Credit Liabilities
and be subject to withdrawal only as provided in the Security Agreement.
Section 11. Agents.
11.01. General Provisions. Each of the Lenders, the Agents and the
Issuing Lender hereby irrevocably appoints Administrative Agent as its agent and
authorizes Administrative Agent to take such actions on its behalf and to
exercise such powers as are delegated to Administrative Agent by the terms
hereof and the Security Documents, together with such actions and powers as are
reasonably incidental thereto. Administrative Agent agrees to give promptly to
each Lender a copy of each notice or other document received by it pursuant to
any Credit Document (other than any that are required to be delivered to the
Lenders by any Obligor).
The Lender or other financial institution serving as any Agent or
Issuing Lender hereunder shall have the same rights and powers in its capacity
as a Lender as any other Lender and may exercise the same as though it were not
such Agent or Issuing Lender, and such bank and its Affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
any Company or other Affiliate thereof as if it were not such Agent or Issuing
Lender hereunder.
No Agent or Issuing Lender shall have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) no Agent or Issuing Lender shall be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) no Agent or Issuing Lender shall have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that such Agent or Issuing
Lender is required to exercise in writing by the Majority Lenders (or such other
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number or percentage of the Lenders as shall be required by Section 12.04), and
(c) except as expressly set forth herein, no Agent or Issuing Lender shall have
any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to any Company that is communicated to or obtained by the
financial institution serving as such Agent or Issuing Lender or any of its
Affiliates in any capacity. No Agent or Issuing Lender shall be liable for any
action taken or not taken by it with the consent or at the request of the
Majority Lenders (or such other number or percentage of the Lenders as shall be
required by Section 12.04) or in the absence of its own gross negligence or
willful misconduct. No Agent shall be deemed to have knowledge of any Default
unless and until written notice thereof is given to Administrative Agent and
such Agent by Borrower or a Lender, and no Agent or Issuing Lender shall be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Agreement or any
other Credit Document, (ii) the contents of any certificate, report or other
document delivered hereunder or under any other Credit Document or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement or any other
Credit Document or any other agreement, instrument or document, (v) the
satisfaction of any condition set forth in Section 7 or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to such
Agent or (vi) making a determination that any condition precedent set forth in
Section 7 that is to be to such Agent's satisfaction is satisfied.
Each Agent and Issuing Lender shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. Each
Agent and Issuing Lender also may rely upon any statement made to it orally or
by telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. Each Agent and Issuing Lender may
consult with legal counsel (who may be counsel for Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts. Each Agent and Issuing Lender may deem and
treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with such Agent or Issuing Lender. Each Agent and Issuing Lender shall be
fully justified in failing or refusing to take any action under this Agreement
or any other Credit Document unless it shall first receive such advice or
concurrence of the Majority Lenders (or, if so specified by this Agreement, all
Lenders or such other number or percentage of the Lenders as shall be required
by Section 12.04) as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action
(it being understood that this provision shall not release Administrative Agent
from performing any action with respect to Borrower expressly required to be
performed by it pursuant to the terms hereof) under this Agreement. Each Agent
and Issuing Lender shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Credit Documents in
accordance with a request of the Majority Lenders (or, if so specified by this
Agreement, all Lenders), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
Each Agent and Issuing Lender may perform any and all of its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by such Agent or Issuing Lender and reasonably acceptable to Borrower.
Each Agent, Issuing Lender and any such sub-agent may perform any and all of its
duties and exercise its rights and powers through their respective Affiliates,
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directors, officers, employees, agents and advisors ("Related Parties"). The
exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Related Parties of each Agent and Issuing Lender and any
such sub-agent, and shall apply to their respective activities in connection
with the syndication of the credit facilities provided for herein as well as
activities of such Agent or Issuing Lender.
Subject to the appointment and acceptance of a successor Agent as
provided in this paragraph, any Agent may resign at any time by notifying the
Lenders, the Issuing Lender (with respect to Administrative Agent only) and
Borrower. Upon any such resignation, the Majority Lenders shall have the right
to appoint a successor which, so long as no Event of Default is continuing,
shall be reasonably acceptable to Borrower. If no successor shall have been so
appointed by the Majority Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders and the Issuing Lender, appoint
a successor Agent which shall be a bank with an office in New York, New York, or
an Affiliate of any such bank which, so long as no Event of Default is
continuing, shall be reasonably acceptable to Borrower. Upon the acceptance of
its appointment as Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties and
obligations hereunder. The fees payable by Borrower to a successor Agent shall
be the same as those payable to its predecessor unless otherwise agreed between
Borrower and such successor. After the Agent's resignation hereunder, the
provisions of this Section 11 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect
of any actions taken or omitted to be taken by any of them while it was acting
as such Agent.
Each Lender acknowledges that it has, independently and without
reliance upon any Agent, Issuing Lender or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Agent,
Issuing Lender or any other Lender and based on such documents and information
as it shall from time to time deem appropriate, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any
related agreement or any document furnished hereunder or thereunder. No Agent or
Issuing Lender shall be deemed a trustee or other fiduciary on behalf of any
party.
11.02. Indemnification. Each Lender agrees to indemnify and hold
harmless each Agent and the Issuing Lender (to the extent not reimbursed under
Section 12.03, but without limiting the obligations of any Obligor under Section
12.03), ratably in accordance with the aggregate principal amount of the
respective Commitments of and/or Loans and Reimbursement Obligations held by the
Lenders (or, if all of the Commitments shall have been terminated or expired,
ratably in accordance with the aggregate outstanding amount of the Loans and
Reimbursement Obligations held by the Lenders), for any and all liabilities
(including pursuant to any Environmental Law), obligations, losses, damages,
penalties, actions, judgments, deficiencies, suits, costs, expenses (including
reasonable attorney's fees) or disbursements of any kind and nature whatsoever
that may be imposed on, incurred by or asserted against such Agent or Issuing
Lender (including by any Lender) arising out of or by reason of any
investigation in or in any way relating to or arising out of any Credit Document
or any other documents contemplated by or referred to therein for any action
taken or omitted to be taken by such Agent or Issuing Lender under or in respect
of any of the Credit Documents or other such documents or the transactions
contemplated thereby (including the costs and expenses that the Obligors are
obligated to pay under Section 12.03, and including also any payments under any
indemnity granted pursuant to Section 19 of the Security Agreement, or to any
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Financial Intermediary referred to in Section 10 of the Security Agreement to
which remittances in respect of Receivables, as defined in the Securities
Agreement, are to be made but excluding, unless a Default has occurred and is
continuing, normal administrative costs and expenses incident to the performance
of its agency duties hereunder) or the enforcement of any of the terms hereof or
thereof or of any such other documents; provided, however, that no Lender shall
be liable for any of the foregoing to the extent they are determined by a court
of competent jurisdiction in a final and nonappealable judgment to have resulted
from the gross negligence or willful misconduct of the party to be indemnified.
The agreements set forth in this Section 11.02 shall survive the payment of all
Loans and other obligations hereunder and shall be in addition to and not in
lieu of any other indemnification agreements contained in any other Credit
Document.
11.03. Consents Under Other Credit Documents. Except as otherwise
provided in this Agreement and the other Credit Documents, Administrative Agent
may, with the prior consent of the Majority Lenders (but not otherwise), consent
to any modification, supplement or waiver under any of the other Credit
Documents.
11.04. Collateral Sub-Agents. Each Lender by its execution and
delivery of this Agreement agrees, as contemplated by Section 10(g) of the
Security Agreement, that, in the event it shall hold any Permitted Investments
referred to therein, such Permitted Investments shall be held in the name and
under the control of such Lender, and such Lender shall hold such Permitted
Investments as a collateral sub-agent for Administrative Agent thereunder. Each
Obligor by its execution and delivery of this Agreement hereby consents to the
foregoing.
Section 12. Miscellaneous.
12.01. Waiver. No failure on the part of any Creditor to exercise and
no delay in exercising, and no course of dealing with respect to, any right,
power or privilege under any Credit Document shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or privilege under
any Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The remedies provided herein
are cumulative and not exclusive of any remedies provided by law.
12.02. Notices. All notices, requests and other communications
provided for herein and under the Security Documents (including any
modifications of, or waivers, requests or consents under, this Agreement) shall
be given or made in writing (including by facsimile) delivered to the intended
recipient at the "Address for Notices" specified below its name on the signature
pages hereof (or as to PR Borrower or any Guarantor, as so specified for
Borrower) or, as to any 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
transmitted by facsimile or personally delivered or, in the case of a mailed
notice, upon receipt, in each case given or addressed as aforesaid. Any Notice
of Borrowing or Notice of Continuation/Conversion shall be deemed to have been
received when actually received.
12.03. Expenses, Indemnification, Etc. (a) The Obligors, jointly and
severally, agree to pay or reimburse:
(i) the Issuing Lender, Syndication Agent, Lead Arranger and
Administrative Agent for all of their reasonable out-of-pocket costs and
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expenses (including the reasonable fees and expenses of one legal counsel
(and all local counsel (including in Puerto Rico) deemed necessary by
Agents)) in connection with (1) the negotiation, preparation, execution and
delivery of the Credit Documents and the extension of credit hereunder, (2)
the negotiation or preparation of any modification, supplement or waiver of
any of the terms of any Credit Document (whether or not consummated or
effective) and (3) the syndication of the Loans and Commitments;
(ii) each of the Lenders, the Issuing Lender, Lead Arranger,
Syndication Agent and Administrative Agent for all reasonable out-of-pocket
costs and expenses of the Lenders, the Issuing Lender, Lead Arranger,
Syndication Agent and Administrative Agent (including the reasonable fees
and expenses of legal counsel) in connection with (1) any enforcement or
collection proceedings resulting from any Default, including 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), (2) the enforcement of
this Section 12.03 and (3) any documentary taxes; and
(iii) Administrative Agent for all reasonable costs, expenses, taxes,
assessments and other charges (including reasonable fees and disbursements
of counsel) incurred in connection with any filing, registration, recording
or perfection of any security interest contemplated by any Credit Document
or any other document referred to therein.
(b) The Obligors, jointly and severally, hereby agree to indemnify
each Creditor and their respective Affiliates, directors, trustees, officers,
employees and agents (each, an "Indemnitee") from, and hold each of them
harmless against, and that no Indemnitee will have any liability for, any and
all Losses incurred by any of them (including any and all Losses incurred by any
Agent or the Issuing Lender to any Lender, whether or not any Creditor is a
party thereto) directly or indirectly arising out of or by reason of or relating
to the negotiation, execution, delivery, performance, administration or
enforcement of any Credit Document, any of the transactions contemplated by the
Credit Documents (including the Transactions), any breach by any Company, as
applicable, of any representation, warranty, covenant or other agreement
contained in any of the Credit Documents in connection with any of the
Transactions, the use or proposed use of any of the Loans or Letters of Credit,
the issuance of or performance under any Letter of Credit or the use of any
collateral security for the Loans (including the exercise by any Creditor of the
rights and remedies or any power of attorney with respect thereto and any action
or inaction in respect thereof), but excluding any such Losses to the extent
finally determined by a court of competent jurisdiction in a final and
nonappealable judgment to have arisen from the gross negligence or bad faith of
the Indemnitee.
Without limiting the generality of the foregoing, the Obligors,
jointly and severally, will indemnify each Creditor and each other Indemnitee
from, and hold each Creditor and each other Indemnitee harmless against, any
Losses described in the preceding sentence arising under any Environmental Law
as a result of (A) the past, present or future operations of any Company (or any
predecessor in interest to any Company), (B) the past, present or future
condition of any site or facility owned, operated, leased or used at any time by
any Company (or any such predecessor in interest), or (C) any Release or
threatened Release of any Hazardous Materials at, on, under or from any such
site or facility, including any such Release or threatened Release that shall
occur during any period when any Creditor shall be in possession of any such
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site or facility following the exercise by such Creditor of any of its rights
and remedies hereunder or under any of the Security Documents; provided,
however, that the indemnity hereunder shall be subject to the exclusions from
indemnification set forth in the preceding sentence.
To the extent that the undertaking to indemnify and hold harmless set
forth in this Section 12.03 or any other provision of any Credit Document
providing for indemnification is unenforceable because it is violative of any
law or public policy or otherwise, the Obligors, jointly and severally, shall
contribute the maximum portion that each of them is permitted to pay and satisfy
under applicable law to the payment and satisfaction of all indemnified
liabilities incurred by any of the Persons indemnified hereunder.
The Obligors also agree that no Indemnitee shall have any liability
(whether direct or indirect, in contract or tort or otherwise) for any Losses to
any Obligor or any Obligor's security holders or creditors resulting from,
arising out of, in any way related to or by reason of any matter referred to in
any indemnification or expense reimbursement provisions set forth in this
Agreement or any other Credit Document, except to the extent that any Loss is
determined by a court of competent jurisdiction in a final nonappealable
judgment to have resulted from the gross negligence or bad faith of such
Indemnitee.
The Obligors agree that, without the prior written consent of
Administrative Agent, Syndication Agent and the Majority Lenders which consent
shall not be unreasonably withheld, no Obligor will settle, compromise or
consent to the entry of any judgment in any pending or threatened Proceeding in
respect of which indemnification is reasonably likely to be sought under the
indemnification provisions of this Section 12.03 (whether or not any Indemnitee
is an actual or potential party to such Proceeding), unless such settlement,
compromise or consent includes an unconditional written release of each
Indemnitee from all liability arising out of such Proceeding and does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Indemnitee and does not involve any payment of money or
other value by any Indemnitee or any injunctive relief or factual findings or
stipulations binding on any Indemnitee.
12.04. Amendments, Etc. (i) No provision of any Credit Document may be
amended, modified or supplemented except by an instrument in writing signed by
the Obligors party thereto and the Majority Lenders, or by the Obligors party
thereto and Administrative Agent acting with the written consent of the Majority
Lenders, and no provision of any Credit Document may be waived except by an
instrument in writing signed by the Obligors party thereto and the Majority
Lenders, or by the Obligors party thereto and Administrative Agent acting with
the written consent of the Majority Lenders; provided, however, that:
(a) no amendment, modification, supplement or waiver shall, unless by
an instrument signed by each Lender or by Administrative Agent acting with
the written consent of each Lender (with the consent of Lenders having
Obligations directly affected thereby in the case of clauses (I), (II) or
(IV) (it being understood that the consent of no other Lender or Agent is
needed in each such case)): (I) extend the scheduled final maturity of any
Loan or Note, or extend the stated expiration date of any Letter of Credit
beyond the Revolving Credit Commitment Termination Date (it being
understood that the termination date of the Increased Facility Amount, if
part of the Revolving Credit Facility or a new term loan facility, may be a
date later than the Revolving Credit Commitment Termination Date or the
Final Maturity Date, respectively, without requiring the consent of any
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Lender), or reduce the rate of interest (other than any waiver of any
increase in the interest rate applicable to any of the Loans pursuant to
clause (b) of Section 3.02) or fees thereon, or extend the time of payment
of interest or fees thereon, or reduce the principal amount thereof, or
make any change to the definition of Applicable Margin or Applicable
Revolving Credit Fee Percentage (other than in connection with the addition
of relevant margins relating to new term loan facilities comprising part of
the Increased Facility Amount), or make any change to the last two
sentences of the first paragraph of Section 2.09, (II) extend the final
maturity of any of the Commitments (or reinstate any Commitment terminated
pursuant to Section 10) (it being understood that the addition of any
Increased Facility Amount with a longer maturity by itself shall not be
deemed to be an extension of a Commitment that is required of each Lender),
(III) change the currency in which any Obligation is payable, (IV) amend
the terms of this Section 12.04 or clause (iv) of Section 12.06(b), Section
4.07, 5 or 11.03 (other than to make conforming changes relating to the
Increased Facility Amount), (V) reduce the percentages specified in the
definition of the term "Majority Lenders" or "Supermajority Lenders" or
amend any provision of any Credit Document requiring the consent of all the
Lenders or reduce any other percentage of the Lenders required to make any
determinations or waive any rights hereunder or to modify any provision
hereof (it being understood that any Increased Facility Amount shall be,
and with the consent of the Majority Lenders, other additional extensions
of credit pursuant to this Agreement may be, included in the determination
of the Majority Lenders and Supermajority Lenders without notice to or
consent of any other Lender or Agent on substantially the same basis as the
Commitments (and related extensions of credit) are included on the Closing
Date), (VI) release any Guarantor from its obligations under Section 6
(unless permitted by this Agreement), (VII) consent to the assignment or
transfer by any Obligor of any of its rights and obligations under any
Credit Document except in a transaction permitted by Section 9.06, (VIII)
release all or substantially all the Collateral or terminate the Lien under
any Credit Document in respect of all or substantially all the Collateral
(except as permitted by the Credit Documents) or agree to additional
obligations (other than the Obligations and any Increased Facility Amount
and any other extensions of credit under this Agreement consented to by the
Majority Lenders) being secured by the Collateral or (IX) amend Section
12.03 or any other indemnification and expense reimbursement provision set
forth in any Credit Document (it being understood that, notwithstanding the
foregoing, any prepayment required by Section 2.10(a) may be waived or
amended by the Majority Lenders);
(b) no such amendment or waiver shall increase the Commitments of any
Lender over the amount thereof then in effect without the consent of such
Lender (it being understood that amendments or waivers of conditions
precedent, covenants or Defaults shall not constitute an increase of the
Commitment of any Lender);
(c) any modification or supplement of or waiver with respect to
Section 11 which affects any Agent in its capacity as such shall require
the consent of such Agent;
(d) no consent of any Lender need be obtained, and Administrative
Agent is hereby authorized, to release any Lien securing the Obligations on
Property which is the subject of any disposition permitted by the Credit
Documents and to release any Guarantee of a Subsidiary upon the sale of all
of the Equity Interests of such Subsidiary in accordance with the Credit
Documents;
(e) subject to clause (a)(I) above of this proviso to this Section
12.04(i),(x) the consent of all of the Lenders of the affected Term
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Loan Tranche shall be required with respect to any extension of any
scheduled Amortization Payment or any reduction in the amount of any
scheduled Amortization Payment (except in accordance with Section 2.09 or
Section 2.10) and (y) the consent of all Revolving Credit Lenders (but no
other Lender or Agent) shall be required with respect to any change in
Section 2.04 (ii) that would result in an increase in any amount under the
column "Remaining Amount" (other than solely by addition of the Increased
Facility Amount) (it being understood that, subject to clause (f) below of
this Section 12.04, any prepayment required by Section 2.10 (and any
corresponding reduction of the Revolving Credit Commitments) may be
modified, supplemented or waived by the Majority Lenders);
(f) no modification, supplement or waiver shall, unless by an
instrument signed by the Supermajority Lenders of the Affected Class or by
Administrative Agent acting with the written consent of the Supermajority
Lenders of the Affected Class (it being understood that the consent of no
other Lender or Agent is needed), change the timing of the receipt or the
application of mandatory prepayments hereunder as among the Tranche A Term
Loans, the Tranche A-PR Term Loans, the Tranche B Term Loans and the
Tranche C Term Loans or the order in which any such prepayment is applied
to the Tranche A Term Loans, the Tranche A-PR Term Loans, Tranche B Term
Loans or Tranche C Term Loans (although any required prepayment set forth
in Section 2.10 may otherwise be modified, supplemented or waived by the
Majority Lenders); provided, however, that if the Increased Facility Amount
is extended as an increase in the Tranche B Term Loans or the Tranche C
Term Loans or as a new term loan facility, such increase in the Tranche B
Term Loans or the Tranche C Term Loans and such new term loan facility may
be treated on the same terms (including pro rata application of
prepayments) as the Tranche B Term Loans and the Tranche C Term Loans
without such consent;
(g) no reduction of the percentage specified in the definition of
"Majority Revolving Credit Lenders," "Majority Tranche A Term Loan
Lenders," "Majority Tranche A-PR Term Loan Lenders," "Majority Tranche B
Term Loan Lenders" or "Majority Tranche C Term Loan Lenders" shall be made
without the consent of each Revolving Credit Lender, each Tranche A Term
Loan Lender, each Tranche A-PR Term Loan Lender, each Tranche B Term Loan
Lender or each Tranche C Term Loan Lender, respectively (it being
understood that only the Lenders of the Class of such Loan to which such
definition relates need consent to any such reduction and that any
Increased Facility Amount shall be (to the extent being an increase in any
such facility), and, with the consent of the Majority Lenders, other
additional extensions of credit pursuant to this Agreement may be, included
in any such definition without notice to or consent of any other Lender or
Agent on substantially the same terms as the Commitments (and related
extensions of credit) are included on the Closing Date);
(h) no reduction of the percentage specified in the definition of (I)
"Majority Term Lenders" shall be made without the consent of the Majority
Tranche A Term Loan Lenders, the Majority Tranche A-PR Term Loan Lenders,
the Majority Tranche B Term Loan Lenders and the Majority Tranche C Term
Loan Lenders or (II) "Supermajority Lenders of the Affected Class" shall be
made without the consent of each Term Loan Lender (it being understood,
that no consent of any other Lender or Agent is needed and that any
Increased Facility Amount shall be (to the extent being an increase in any
such facility), and, with the consent of the Majority Lenders, additional
extensions of credit pursuant to this Agreement may be, included in either
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such definition without notice to or consent of any other Lender or Agent
on substantially the same terms as the Commitments (and related extensions
of credit) are included on the Closing Date);
(i) no amendment or waiver shall affect the rights or duties of the
Issuing Lender in its capacity as such or alter the obligation of any
Revolving Credit Lender pursuant to Section 2.03(e) or 2.03(f) without the
consent of the Issuing Lender;
(j) no consent of any Lender need be obtained to effect any amendment
of any Credit Document necessary to comply with Section 9.12 or Section
9.20 or as permitted by Section 2.01(f);
(k) no amendment, modification, supplement or waiver may be made to
any condition precedent to any extension of credit under the Revolving
Credit Facility set forth in subsection 7.02 without the written consent of
the Majority Revolving Credit Lenders, it being understood that no
amendment to or waiver of any representation or warranty or any covenant
contained in this Agreement or any other Credit Document, or of any
Default, shall be deemed to be effective for purposes of determining
whether the conditions precedent set forth in subsection 7.02 to the making
of any extension of credit under the Revolving Credit Loans have been
satisfied unless the Majority Revolving Credit Lenders shall have consented
to such amendment or waiver;
(l) no amendments or waiver shall make any change to Section 2.01(g)
or the definitions of "Swing Loan Commitment," "Swing Loan Maturity Date"
or "Swing Loans" or the "Swing Loan Notes" without the consent of the Swing
Loan Lender.
(ii) If, in connection with any proposed change, waiver, discharge or
termination to any of the provisions of this Agreement as contemplated by
Section 12.04(i)(a) (other than clause (I) of such section), the consent of the
Majority Lenders is obtained but the consent of one or more of such other
Lenders whose consent is required is not obtained, then Borrower shall have the
right to replace one or more of such non-consenting Lender or Lenders (so long
as all non-consenting Lenders are so replaced) with one or more Replacement
Lenders pursuant to Section 2.11 so long as at the time of such replacement each
such Replacement Lender consents to the proposed change, waiver, discharge or
termination; provided, however, that Borrower shall not have the right to
replace a Lender solely as a result of the exercise of such Lender's rights (and
the withholding of any required consent by such Lender) pursuant to clause (I)
of Section 12.04(i)(a).
12.05. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
12.06. Assignments and Participations. (a) No Obligor may assign its
respective rights or obligations hereunder or under the Notes or any other
Credit Document without the prior written consent of all of the Lenders.
(b) Each Lender may assign to any Eligible Person any of its Loans,
its Notes, its Letter of Credit Interests and its Commitments (but only with the
consent (which shall not be unreasonably withheld, delayed or conditioned) of
Borrower, Lead Arranger, Administrative Agent and, in the case of the Revolving
Credit Commitments, the Issuing Lender); provided, however, that (i) no consent
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of Borrower, Lead Arranger, Administrative Agent, or the Issuing Lender shall be
required in the case of any assignment to another Lender or any Lender's
Affiliate or an Approved Fund of any Lender (in which case, the assignee and
assignor Lenders shall give notice of the assignment to Lead Arranger and
Administrative Agent); (ii) no consent of Borrower, Lead Arranger,
Administrative Agent or Issuing Lender need be obtained if any Event of Default
shall have occurred and be continuing; (iii) each assignment, other than to a
Lender or any Lender's Affiliate or an Approved Fund of any Lender and other
than any assignment effected by any Agent or any of their respective Affiliates
in connection with the syndication of the Commitments and/or Loans or otherwise,
shall be in an aggregate amount of at least $2.5 million unless the assigning
Lender's exposure is reduced to $0 or unless Borrower and Lead Arranger
otherwise consent and (iv) in no event may any such assignment be made to any
Obligor or any of its Affiliates without consent of all Lenders. Any assignment
of a Loan shall be effective only upon appropriate entries with respect thereto
being made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of a Loan shall be registered on the Register only upon
surrender for registration of assignment or transfer of the Note evidencing such
Loan (if a Note was issued in respect thereof), accompanied by an instrument in
writing substantially in the form of Exhibit F, and upon consent thereto by
Borrower, Lead Arranger and the Issuing Lender to the extent required above
(none of which consents to be unreasonably withheld or delayed), one or more new
Notes (if requested by the New Lender) in the same aggregate principal amount
shall be issued to the designated assignee and the old Notes shall be returned
by Administrative Agent to Borrower marked "cancelled". Upon execution and
delivery by the assignee to Borrower and Lead Arranger of an instrument in
writing substantially in the form of Exhibit F, and upon consent thereto by
Borrower, Lead Arranger and the Issuing Lender to the extent required above
(none of which consents to be unreasonably withheld or delayed), and in the case
of a Loan, upon appropriate entries being made in the Register the assignee
shall have, to the extent of such assignment (unless otherwise provided in such
assignment with the consent of Administrative Agent), the obligations, rights
and benefits of a Lender hereunder holding the Commitment(s), Loans (or portions
thereof) and Letter of Credit Interests assigned to it (in addition to the
Commitment(s), Letter of Credit Interests and Loans, if any, theretofore held by
such assignee) and the assigning Lender shall, to the extent of such assignment,
be released from the Commitment(s) (or portion(s) thereof) so assigned. Upon any
such assignment (other than to a Lender or any Affiliate of a Lender or any
Approved Fund and other than any assignment by any Agent or any of their
respective Affiliates) the assignee Lender shall pay a fee of $3,500 to
Administrative Agent. Upon any such assignment, certain rights and obligations
of the assigning Lender shall survive as set forth in Section 12.07. Each
assignment shall be made pursuant to an agreement substantially in the form of
Exhibit L.
(c) A Lender may sell or agree to sell to one or more other Persons a
participation in all or any part of any Loans and Letter of Credit Interests
held by it, or in its Commitments, in which event each purchaser of a
participation (a "Participant") shall be entitled to the rights and benefits of
the provisions of Section 5 (provided, however, that no Participant shall be
entitled to receive any greater amount pursuant to Section 5 than the transferor
Lender would have been entitled to receive in respect of the participation
effected by such transferor Lender had no participation occurred) with respect
to its participation in such Loans, Letter of Credit Interests and Commitments
as if such Participant were a "Lender" for purposes of said Section, but, except
as otherwise provided in Section 4.07(c), shall not have any other rights or
benefits under this Agreement or any Note or any other Credit Document (the
Participant's rights against such Lender in respect of such participation to be
those set forth in the agreements executed by such Lender in favor of the
Participant). All amounts payable by Borrower to any Lender under Section 5 in
respect of Loans, Letter of Credit Interests and its Commitments shall be no
137
<PAGE>
greater than the amount that would have applied if such Lender had not sold or
agreed to sell any participation in such Loans, Letter of Credit Interests and
Commitments, and as if such Lender were funding each of such Loan, Letter of
Credit Interests and Commitments in the same way that it is funding the portion
of such Loan, Letter of Credit Interests and Commitments in which no
participations have been sold. In no event shall a Lender that sells a
participation agree with the Participant to take or refrain from taking any
action hereunder or under any other Credit Document, except that such Lender may
agree with the Participant that it will not, without the consent of the
Participant, agree to any modification or amendment set forth in subclauses (I),
(II), (III) or (VIII) of clause (a) of the proviso to Section 12.04 to the
extent such Lender's consent is required therefor.
(d) In addition to the assignments and participations permitted under
the foregoing provisions of this Section 12.06, any Lender may assign and pledge
all or any portion of its Loans and its Notes to any United States Federal
Reserve Bank as collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating Circular issued by
such Federal Reserve Bank and, in the case of a Lender that is an investment
fund, any such Lender may assign or pledge all or any portion of its Loans and
its Notes to its trustee in support of its obligations to its trustee, without
notice to or consent of Borrower, Administrative Agent, Lead Arranger or Issuing
Lender. No such assignment shall release the assigning Lender from its
obligations hereunder.
(e) A Lender may furnish any information concerning any Company in the
possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants) subject, however, to and so
long as the recipient agrees to be bound by the provisions of Section 12.11. In
addition, each Agent may furnish any information concerning any Obligor or any
of its Affiliates in such Agent's possession to any Affiliate of such Agent,
subject, however, to the provisions of Section 12.11. The Obligors shall assist
any Lender in effectuating any assignment or participation pursuant to this
Section 12.06 (including during syndication) in whatever manner such Lender
reasonably deems necessary, including participation in meetings with prospective
transferees.
12.07. Survival. The obligations of the Obligors under Sections 5.01,
5.05, 5.06 and 12.03, the obligations of each Guarantor under Section 6.03, and
the obligations of the Lenders under Sections 5.06 and 11.02, shall survive the
repayment of the Loans and Reimbursement Obligations and the termination of the
Commitments and, in the case of any Lender that may assign any interest in its
Commitments, Loans or Letter of Credit Interest hereunder, shall (to the extent
relating to such time as it was a Lender) survive the making of such assignment,
notwithstanding that such assigning Lender may cease to be a "Lender" hereunder.
In addition, each representation and warranty made, or deemed to be made by a
notice of any extension of credit, herein or pursuant hereto shall be considered
to have been relied upon by the other parties hereto and shall survive the
execution and delivery of this Agreement and the Notes and the making of any
extension of credit hereunder, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that Administrative Agent or
any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty and regardless of whether any such representation or
warranty under the Merger Agreement survives the Merger.
12.08. Captions. The table of contents and 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.
138
<PAGE>
12.09. Counterparts; Interpretation; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to Administrative Agent
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof, other than the Fee Letter and
the indemnity, confidentiality, waiver of jury trial and governing law
provisions of the Commitment Letter and the provisions of Section 2 of the
Commitment Letter, which are not superseded and survive. Except as provided in
Section 7.01, this Agreement shall become effective when it shall have been
executed by Administrative Agent and when Administrative Agent shall have
received counterparts hereof which, when taken together, bear the signatures of
each of the other parties hereto, and thereafter shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. Delivery of an executed counterpart of a signature page of this
Agreement by telecopy shall be effective as delivery of a manually executed
counterpart of this Agreement.
12.10. Governing Law; Submission to Jurisdiction; Waivers; Etc. Each
Credit Document shall be governed by, and construed in accordance with, the law
of the State of New York, without regard to the principles of conflicts of laws
thereof (except in the case of the other Credit Documents, to the extent
otherwise expressly stated therein). Each Obligor hereby irrevocably and
unconditionally: (I) submits for itself and its Property in any Proceeding
relating to any Credit Document 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 Supreme Court of the State of New York sitting in New York
County, the courts of the United States of America for the Southern District of
New York, and appellate courts from any thereof; (II) consents that any such
Proceeding may be brought in any such court and waives trial by jury and any
objection that it may now or hereafter have to the venue of any such Proceeding
in any such court or that such Proceeding was brought in an inconvenient court
and agrees not to plead or claim the same; (III) agrees that service of process
in any such Proceeding may be effected by mailing a copy thereof by registered
or certified mail (or any substantially similar form of mail), postage prepaid,
to Borrower at its address set forth on the signature page hereto or at such
other address of which Administrative Agent shall have been notified pursuant
thereto; and (IV) 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.
12.11. Confidentiality. Each Lender agrees to keep confidential
information obtained by it pursuant hereto and the other Credit Documents
confidential in accordance with such Lender's customary practices and agrees
that it will only use such information in connection with the transactions
contemplated by this Agreement and not disclose any of such information other
than (a) to such Lender's employees, representatives, directors, attorneys,
auditors, agents, professional advisors, trustees or affiliates who are advised
of the confidential nature of such information or to any direct or indirect
contractual counterparty in swap agreements or such contractual counterparty's
professional advisor (so long as such contractual counterparty or professional
advisor to such contractual counterparty agrees to be bound by the provision of
this Section 12.11, such Lender being liable for any breach of confidentiality
by any Person described in this clause (a)), (b) to the extent such information
presently is or hereafter becomes available to such Lender on a non-confidential
basis from any source of such information that is in the public domain at the
time of disclosure, (c) to the extent disclosure is required by law (including
applicable securities laws), regulation, subpoena or judicial order or process
(provided that notice of such requirement or order shall be promptly furnished
to Borrower unless such notice is legally prohibited) or requested or required
by bank, securities, insurance or investment company regulations or auditors or
139
<PAGE>
any administrative body or commission (including the Securities Valuation Office
of the NAIC) to whose jurisdiction such Lender may be subject, (d) to any rating
agency to the extent required in connection with any rating to be assigned to
such Lender, (e) to assignees or participants or prospective assignees or
participants who agree to be bound by the provisions of this Section 12.11, (f)
to the extent required in connection with any litigation between any Obligor and
any Creditor with respect to the Loans or this Agreement and the other Credit
Documents or (g) with Borrower's prior written consent.
12.12. Independence of Representations, Warranties and Covenants. The
representations, warranties and covenants contained herein shall be independent
of each other and no exception to any representation, warranty or covenant shall
be deemed to be an exception to any other representation, warranty or covenant
contained herein unless expressly provided, nor shall any such exception be
deemed to permit any action or omission that would be in contravention of
applicable law. Notwithstanding anything herein to the contrary, any matter
identified on a Schedule to this Agreement shall be deemed to be set forth on
all other Schedules to this Agreement for purposes of determining compliance
with any of the representations, warranties or covenants contained herein.
12.13. Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provisions or the remaining provisions of this Agreement.
12.14. Acknowledgments. The Obligors hereby acknowledge that: (a) each
of them has been advised by counsel in connection with the negotiation,
execution and delivery of the Credit Documents; (b) no Creditor has any
fiduciary or similar relationship to any Obligor and the relationship between
the Creditors on the one hand, and the Obligors, on the other hand, is solely
that of debtor and creditor; and (c) no joint venture exists among the Creditors
or among the Obligors and the Creditors.
[Signature Pages Follow]
140
<PAGE>
S-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
CENTENNIAL CELLULAR OPERATING CO. LLC
By: /s/ Peter W. Chehayl
Name: Peter W. Chehayl
Title: Vice President
Address for Notices: Corporate Office
1305 Campus Parkway
Neptune, New Jersey 07753
Contact Person: President
Telecopier No.: (732) 919-1022
Telephone No.: (732) 919-1000
<PAGE>
S-2
CENTENNIAL WIRELESS PCS OPERATIONS CORP.
By: /s/ Peter W. Chehayl
Name: Peter W. Chehayl
Title: Vice President
Address for Notices: Corporate Office
1305 Campus Parkway
Neptune, NJ 07753
Contact Person: President
Telecopier No.: (732) 919-1022
Telephone No.: (732) 919-1000
<PAGE>
S-3
GUARANTORS:
CENTENNIAL CELLULAR CORP.
ALEXANDRIA CELLULAR CORPORATION
ALEXANDRIA CELLULAR LICENSE CORPORATION
BAUCE COMMUNICATIONS, INC.
BAUCE COMMUNICATIONS OF BEAUMONT, INC.
CENTENNIAL ASHE CELLULAR CORP.
CENTENNIAL BEAUREGARD HOLDING CORP.
CENTENNIAL BENTON HARBOR CELLULAR CORP.
CENTENNIAL BENTON HARBOR HOLDING CORP.
CENTENNIAL CALDWELL CELLULAR CORP.
CENTENNIAL CELLULAR TELEPHONE COMPANY
OF DEL NORTE
CENTENNIAL CELLULAR TELEPHONE COMPANY
OF LAWRENCE
CENTENNIAL CELLULAR TELEPHONE COMPANY
OF MODOC
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF SACRAMENTO VALLEY
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF SAN FRANCISCO
CENTENNIAL CELLULAR WIRELESS HOLDING CORP.
CENTENNIAL CLAIBORNE CELLULAR CORP.
CENTENNIAL CLINTON CELLULAR CORP.
CENTENNIAL DESOTO CELLULAR CORP.
CENTENNIAL IBERIA HOLDING CORP.
CENTENNIAL LAFAYETTE CELLULAR CORP.
CENTENNIAL LAKE CHARLES CELLULAR CORP.
CENTENNIAL LOUISIANA HOLDING CORP.
CENTENNIAL MEGA COMM HOLDING CORP.
CENTENNIAL MICHIGAN RSA 6 CELLULAR CORP.
<PAGE>
S-4
CENTENNIAL MICHIGAN RSA 7 CELLULAR CORP.
CENTENNIAL PUERTO RICO WIRELESS CORPORATION
CENTENNIAL RANDOLPH HOLDING CORP.
CENTENNIAL WIRELESS PCS LICENSE CORP.
CENTENNIAL WIRELESS PCS OPERATIONS CORP.
CENTURY BEAUMONT CELLULAR CORP.
CENTURY CHARLOTTESVILLE CELLULAR CORP.
CENTURY EL CENTRO CELLULAR CORP.
CENTURY ELKHART CELLULAR CORP.
CENTURY LYNCHBURG CELLULAR CORP.
CENTURY MICHIANA CELLULAR CORP.
CENTURY ROANOKE CELLULAR CORP. (DE)
CENTURY ROANOKE CELLULAR CORP. (VA)
CENTURY SOUTH BEND CELLULAR CORP.
CENTURY YUMA CELLULAR CORP.
EL CENTRO CELLULAR CORP.
ELKHART METRONET, INC.
HENDRIX ELECTRONICS, INC.
HENDRIX RADIO COMMUNICATIONS, INC.
LAFAYETTE COMMUNICATIONS, INC.
MICHIANA METRONET, INC.
SOUTH BEND METRONET, INC.
Each as a Guarantor and Pledgor
By: /s/ Peter W. Chehayl
Name: Peter W. Chehayl
Title: Vice President
<PAGE>
S-5
CENTENNIAL BEAUREGARD CELLULAR LLC,
as a Guarantor and Pledgor
By: CENTENNIAL BEAUREGARD HOLDING CORP.,
a Managing Member
By: /s/ Peter W. Chehayl
Name: Peter W. Chehayl
Title: Vice President
<PAGE>
S-6
CENTENNIAL CELLULAR TRI-STATE
OPERATING PARTNERSHIP, as a Guarantor and
Pledgor
By: CENTENNIAL CLINTON CELLULAR CORP., as a
General Partner
By: /s/ Peter W. Chehayl
Name: Peter W. Chehayl
Title: Vice President
CENTENNIAL HAMMOND CELLULAR LLC, as a
Guarantor and Pledgor
By: CENTENNIAL BEAUREGARD HOLDING CORP., a
Managing Member
By: /s/ Peter W. Chehayl
Name: Peter W. Chehayl
Title: Vice President
CENTENNIAL MOREHOUSE CELLULAR LLC, as
a Guarantor and Pledgor
By: CENTENNIAL BEAUREGARD HOLDING CORP., a
Managing Member
By: /s/ Peter W. Chehayl
Name: Peter W. Chehayl
Title: Vice President
CENTENNIAL RANDOLPH CELLULAR LLC, as a
Guarantor and Pledgor
<PAGE>
S-7
By: CENTENNIAL RANDOLPH HOLDING CORP., a
Managing Member
By: /s/ Peter W. Chehayl
Name: Peter W. Chehayl
Title: Vice President
ELKHART CELLULAR TELEPHONE COMPANY, as a
Guarantor and Pledgor
By: ELKHART METRONET, INC., a General
Partner
By: /s/ Peter W. Chehayl
Name: Peter W. Chehayl
Title: Vice President
IBERIA CELLULAR TELEPHONE COMPANY LLC, as a
Guarantor and Pledgor
By: CENTENNIAL BEAUREGARD HOLDING CORP., a
Managing Member
By: /s/ Peter W. Chehayl
Name: Peter W. Chehayl
Title: Vice President
LAFAYETTE CELLULAR TELEPHONE PARTNERSHIP, as a
Guarantor and Pledgor
By: LAFAYETTE COMMUNICATIONS, INC., a
General Partner
<PAGE>
S-8
By: /s/ Peter W. Chehayl
Name: Peter W. Chehayl
Title: Vice President
MEGA COMM LLC, as a Guarantor and Pledgor
By: MEGA COMM HOLDING CORP., a
Managing Member
By: /s/ Peter W. Chehayl
Name: Peter W. Chehayl
Title: Vice President
<PAGE>
S-9
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED,
as Lead Arranger and Syndication Agent
By:
Name:
Title:
Address for Notices:
World Financial Center
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner
& Smith Incorporated
South Tower
225 Liberty Street
New York, New York 10080-6114
Attention:
Telecopier No.: (212) 449-8230
Telephone No.: (212) 449-8221
<PAGE>
S-10
NATIONSBANK, N.A.,
as Co-Arranger and Administrative Agent
By:
Name:
Title:
Lending Office for all Loans:
901 Main Street, 14th Floor
Dallas, Texas 75202
Attention: Agency Services
Telecopier No.: 214-508-2118
Address for Notices:
901 Main Street, 64th Floor
Dallas, Texas 75202-3748
Attention: Julie A. Schell
Telecopier No: 214-508-9390
Telephone No: 214-508-2126
<PAGE>
S-11
THE CHASE MANHATTAN BANK,
as Co-Arranger and Co-Documentation Agent
By:
Name:
Title:
Address for Notices:
<PAGE>
S-12
THE BANK OF NOVA SCOTIA,
as Co-Documentation Agent
By:
Name:
Title:
Address for Notices:
<PAGE>
S-13
MORGAN STANLEY SENIOR FUNDING, INC.,
as Senior Managing Agent
By:
Name:
Title:
Address for Notices:
<PAGE>
S-14
LENDERS
MERRILL LYNCH CAPITAL CORPORATION,
as a Lender
By:
Name:
Title:
Lending Office for all Loans:
World Financial Center
c/o Merrill Lynch & Co.
North Tower - 7th Floor
250 Vesey Street
New York, New York 10281-1307
Address for Notices:
World Financial Center
c/o Merrill Lynch & Co.
North Tower
250 Vesey Street
New York, New York 10281-1316
Attention:
Telecopier No.: (212) 449-4972
Telephone No.: (212) 449-9435
<PAGE>
S-15
NATIONSBANK, N.A.,
as a Lender
By: /s/ Julie A. Schell
Name: Julie A. Schell
Title: Vice President
Lending Office for all Loans:
901 Main Street, 14th Floor
Dallas, Texas 75202
Attention: Agency Services
Telecopier No.: 214-508-2118
Address for Notices:
901 Main Street, 64th Floor
Dallas, Texas 75202-3748
Attention: Julie A. Schell
Telecopier No: 214-508-9390
Telephone No: 214-508-2126
<PAGE>
S-16
THE BANK OF NOVA SCOTIA,
as a Lender
By: /s/ Vincent J. Fitzgerald, Jr.
Name: Vincent J. Fitzgerald, Jr.
Title: Authorized Signatory
Lending Office for all Loans:
One Liberty Plaza
New York, New York 10006
Attn: Loan Administration
Address for Notices:
One Liberty Plaza
New York, New York 10006
Attn:
Telecopier No.: (212) 225-5090
Telephone No.: (212) 225-5039
<PAGE>
S-16
THE CHASE MANHATTAN BANK,
as a Lender
By: /s/ Robert Anastasio
Name: Robert Anastasio
Title: Vice President
Address for Notices:
<PAGE>
S-17
MORGAN STANLEY SENIOR FUNDING, INC.,
as a Lender
By: /s/ Michael T. McLaughlin
Name: Michael T. McLaughlin
Title: Principal
Address for Notices:
<PAGE>
<TABLE>
<CAPTION>
ANNEX A
COMMITMENTS
Allocation
Revolving Tranche A Tranche A-PR Tranche B Tranche C
Credit Term Loan Term Loan Term Loan Term Loan
Institution Commitments Commitments Commitments Commitments Commitments Total
<S> <C> <C> <C> <C> <C> <C>
Merrill Lynch Capital Corporation
NationsBank, N.A.
The Chase Manhattan Bank
The Bank of Nova Scotia
Morgan Stanley Senior Funding, Inc.
Total $150,000,000 $325,000,000 $125,000,000 $225,000,000 $225,000,000 $1,050,000,000
</TABLE>
<PAGE>
SCHEDULE 1.01(a)
LIBOR Loans ABR Loans
Revolving Credit Loans 3.000% 2.000%
Tranche A Term Loans 3.000% 2.000%
Tranche A-PR Term Loans 3.000% 2.000%
Tranche B Term Loan 3.500% 2.500%
Tranche C Term Loans 3.750% 2.750%
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE 1.01(b)
Revolving Loans,
Tranche A Term Loans and
Tranche A-PR Term Loans Tranche B Term Loans Tranche C Term Loans
Tier Total Leverage LIBOR ABR LIBOR ABR LIBOR ABR
Ratio MARGIN MARGIN MARGIN MARGIN MARGIN MARGIN
<S> <C> <C> <C> <C> <C> <C> <C>
I >7.5:1.0 3.000% 2.000% 3.500% 2.500% 3.750% 2.750%
-
II 7.5:1.0 but 3.500% 2.500% 3.750% 2.750%
>7.0:1.0 2.750% 1.750%
-
III 7.0:1.0 but 3.250% 2.250% 3.500% 2.500%
>6.0:1.0 2.500% 1.500%
-
IV 6.0:1.0 but 3.250% 2.250% 3.500% 2.500%
>5.0:1.0 2.250% 1.250%
-
V 5.0:1.0 but 3.250% 2.250% 3.500% 2.500%
>4.0:1.0 2.000% 1.000%
-
VI 4.0:1.0 1.750% 0.750% 3.250% 2.250% 3.500% 2.500%
- ----------- ---------------- -------------- ----------- -------------- -------------- -------------- --------------
</TABLE>
<PAGE>
SCHEDULE 1.01(c)
Total Leverage Applicable Revolving Credit
Ratio Fee Percentage
>= 5.0:1.0 0.500%
5.0:1.0 0.375%
<PAGE>
SCHEDULE 1.01(d)
GUARANTORS
Centennial Cellular Corp.
Alexandria Cellular Corporation
Alexandria Cellular License Corporation
Bauce Communications, Inc.
Bauce Communications of Beaumont, Inc.
Centennial Ashe Cellular Corp.
Centennial Beauregard Cellular LLC
Centennial Beauregard Holding Corp.
Centennial Benton Harbor Cellular Corp.
Centennial Benton Harbor Holding Corp.
Centennial Caldwell Cellular Corp.
<PAGE>
-2-
Centennial Cellular Telephone Company of Del Norte
Centennial Cellular Telephone Company of Lawrence
Centennial Cellular Telephone Company of Modoc
Centennial Cellular Telephone Company of
Sacramento Valley
Centennial Cellular Telephone Company of San Diego
Centennial Cellular Tri-State Operating Partnership
Centennial Cellular Wireless Holding Corp.
Centennial Claiborne Cellular Corp.
Centennial Clinton Cellular Corp.
Centennial DeSoto Cellular Corp.
Centennial Hammond Cellular LLC
<PAGE>
-3-
Centennial Iberia Holding Corp.
Centennial Lafayette Cellular Corp.
Centennial Lake Charles Cellular Corp.
Centennial Louisiana Holding Corp.
Centennial Mega Comm Holding Corp.
Centennial Michigan RSA 6 Cellular Corp.
Centennial Michigan RSA 7 Cellular Corp.
Centennial Morehouse Cellular LLC
Centennial Puerto Rico Wireless Corporation
Centennial Randolph Cellular LLC
Centennial Randolph Holding Corp.
<PAGE>
-4-
Centennial Wireless PCS License Corp.
Centennial Wireless PCS Operations Corp.
Century Beaumont Cellular Corp.
Century Charlottesville Cellular Corp.
Century El Centro Corp.
Century Elkhart Cellular Corp.
Century Lynchburg Cellular Corp.
Century Michiana Cellular Corp.
Century Roanoke Cellular Corp. (DE)
Century Roanoke Cellular Corp. (VA)
Century South Bend Cellular Corp.
<PAGE>
-5-
Century Yuma Cellular Corp.
El Centro Cellular Corporation
Elkhart Metronet, Inc.
Hendrix Electronics, Inc.
Hendrix Radio Communications, Inc.
Iberia Cellular Telephone Company LLC
Lafayette Communications, Inc.
Mega Comm LLC
Michiana Metronet, Inc.
South Bend Metronet, Inc.
<PAGE>
SCHEDULE 3.01(b)
AMORTIZATION PAYMENTS
<PAGE>
<TABLE>
<CAPTION>
TRANCHE A TRANCHE A-PR TRANCHE B TRANCHE C
DATE* TERM LOANS TERM LOANS TERM LOANS TERM LOANS
<S> <C> <C> <C> <C>
February 1999 $0 0 $562,500 $562,500
May 1999 0 0 562,500 562,500
August 1999 0 0 562,500 562,500
November 1999 0 0 562,500 562,500
February 2000 0 0 562,500 562,500
May 2000 0 0 562,500 562,500
August 2000 0 0 562,500 562,500
November 2000 0 0 562,500 562,500
February 2001 0 0 562,500 562,500
May 2001 0 0 562,500 562,500
August 2001 0 0 562,500 562,500
November 2001 0 0 562,500 562,500
February 2002 8,125,000 3,125,000 562,500 562,500
May 2002 8,125,000 3,125,000 562,500 562,500
August 2002 8,125,000 3,125,000 562,500 562,500
November 2002 8,125,000 3,125,000 562,500 562,500
February 2003 12,187,500 4,687,500 562,500 562,500
May 2003 12,187,500 4,687,500 562,500 562,500
August 2003 12,187,500 4,687,500 562,500 562,500
November 2003 12,187,500 4,687,500 562,500 562,500
February 2004 16,250,000 6,250,000 562,500 562,500
May 2004 16,250,000 6,250,000 562,500 562,500
August 2004 16,250,000 6,250,000 562,500 562,500
November 2004 16,250,000 6,250,000 562,500 562,500
February 2005 20,312,500 7,812,500 562,500 562,500
May 2005 20,312,500 7,812,500 562,500 562,500
August 2005 20,312,500 7,812,500 562,500 562,500
November 2005 20,312,500 7,812,500 562,500 562,500
February 2006 24,375,000 9,375,000 562,500 562,500
May 2006 24,375,000 9,375,000 562,500 562,500
<PAGE>
August 2006 24,375,000 9,375,000 562,500 562,500
November 2006 24,375,000 9,375,000 562,500 562,500
February 2007 562,500 562,500
May 2007 206,437,500 562,500
August 2007 562,500
November 2007 205,312,500
=========== =========== =========== ===========
$325,000,000 $125,000,000 $225,000,000 $225,000,000
=========== =========== =========== ===========
- -------------------------
*Unless otherwise indicated, such date is the last Business Day of the specified
month.
</TABLE>
SCHEDULE 8.02(b)
Certain Contingent Obligations
Cellular Supply Agreement, dated as of May 13, 1994, as amended as of
July 9, 1998, between Centennial Cellular Corporation and Northern Telecom,
Inc., providing for the purchase by Centennial Cellular Corporation of at least
$50 million of equipment and services from Northern Telecom, Inc. over a
three-year period ending July 5, 2001.
<PAGE>
SCHEDULE 8.02(c)
Certain Financial Matters
None.
2
<PAGE>
SCHEDULE 8.03
Litigation
None.
3
<PAGE>
SCHEDULE 8.09
Tax Matters
None.
4
<PAGE>
SCHEDULE 8.11
Environmental Matters
None.
5
<PAGE>
SCHEDULE 8.14
Subsidiaries, Etc.
See Attached List.
6
<PAGE>
<TABLE>
<CAPTION>
Corporation State of Incorporation % Owned
<S> <C> <C>
Alexandria Cellular Corp. Delaware 100%
Alexandria Cellular License Corp. Delaware 92.3%
Bauce Communications, Inc. Oregon 100%
Bauce Communications of Beaumont, Inc. Oregon 100%
Centennial Ashe Cellular Corp Delaware 100%
Centennial Asia Pacific Cellular Holding Corp. Nevada 100%
Centennial Beauregard Cellular LLC Delaware 100%
Centennial Beauregard Holding Corp. Delaware 100%
Centennial Benton Harbor Cellular Corp. Delaware 100%
Centennial Benton Harbor Holding Corp. Delaware 100%
Centennial Caldwell Cellular Corp. Delaware 100%
Centennial Cellular Telephone Company of Del Norte Delaware 100%
Centennial Cellular Telephone Company of Lawrence Delaware 100%
Centennial Cellular Telephone Company of Modoc Delaware 100%
Centennial Cellular Telephone Company of Sacramento Valley Delaware 100%
Centennial Cellular Telephone Company of San Francisco Delaware 100%
Centennial Cellular Wireless Holding Corp. New Jersey 100%
Centennial Claiborne Cellular Corp. Delaware 100%
Centennial Clinton Cellular Corp. Delaware 100%
Centennial DeSoto Cellular Corp. Delaware 100%
Centennial Hammond Cellular LLC Delaware 100%
Centennial Iberia Holding Corp. Delaware 100%
Centennial Lafayette Cellular Corp. Delaware 100%
Centennial Lake Charles Cellular Corp. Delaware 100%
Centennial Louisiana Holding Corp. Delaware 100%
Centennial Mega Comm Holding Corp. Delaware 100%
Centennial Michigan RSA 6 Cellular Corp. Delaware 100%
Centennial Michigan RSA 7 Cellular Corp. Delaware 100%
Centennial Microwave Corp. Delaware 100%
Centennial Morehouse Cellular LLC Delaware 100%
Centennial Puerto Rico Realty Corporation Puerto Rico 100%
Centennial Puerto Rico Wireless Corporation Delaware 100%
Centennial Randolph Holdings Corp. Delaware 100%
Centennial Randolph Cellular LLC Delaware 100%
Centennial Wireless PCS License Corp. Delaware 100%
Centennial Wireless PCS Operations Corp. Delaware 100%
Century Beaumont Cellular Corp. Delaware 100%
Century Cellular Realty Corp. Delaware 100%
Century Charlottesville Cellular Corp. Delaware 100%
Century El Centro Cellular Corp. California 100%
Century Elkhart Cellular Corp. Delaware 100%
Century Indiana Cellular Corp. Delaware 100%
Century Lynchburg-DE Cellular Corp. Delaware 100%
Century Michiana Cellular Corp. Delaware 100%
Century Michigan Cellular Corp. Delaware 100%
Century Montgomery Cellular Corp. Delaware 100%
Century Roanoke Cellular Corp. Delaware 100%
Century Roanoke Cellular Corp. Virginia 100%
7
<PAGE>
Century Rural Cellular Corp. Delaware 100%
Century South Bend Cellular Corp. Delaware 100%
Century Yuma Paging Corp. Delaware 100%
Century Yuma Cellular Corp. Delaware 100%
El Centro Cellular Corp. Delaware 100%
Elkhart Metronet, Inc. Indiana 100%
Hendrix Electronics, Inc. California 100%
Hendrix Radio Communications, Inc. California 100%
Iberia Cellular Telephone Company LLC Delaware 100%
Lafayette Communications, Inc. Delaware 100%
Lambda Communications, Incorporated (Incorporado) Puerto Rico 100%
Lambda Operations Corp. Delaware 100%
Lambda PCS Corp. Nevada 100%
Lambda Realty Corp. Delaware 100%
Mega Comm LLC Delaware 100%
Michiana Metronet Inc. Indiana 100%
South Bend Metronet, Inc. Indiana 100%
Centennial Cellular Tri-State Operating Partnership [FN*] 100%
Lafayette Cellular Telephone Company (a general partnership) 94.5%
Elkhart Cellular Telephone Company (a general partnership) 91.7%
Cal-One Cellular L.P. 6.9%
Lake Charles CellTellCo 25.1%
Modoc RSA Limited Partnership 25.0%
Pennsylvania RSA No. 6 Limited Partnership (I & II) 14.3%
Sacramento Valley Limited Partnership 23.5%
GTE Mobilnet of California Limited Partnership 2.9%
</TABLE>
[FN*] Owned by wholly owned subsidiaries
8
<PAGE>
SCHEDULE 8.16
Security Interests
1. UCC-1 Financing Statement for which Centennial Cellular Corp. is the debtor
and Copelco Capital Inc. the secured party, filed with the Secretary of
State of the state of New Jersey on June 26, 1998 which filing number is
1845393, evidencing a security interest in the assets described on the
attached Schedule A. The unpaid indebtedness secured by the security
interest, as of November 30, 1998, was $266,773.
9
<PAGE>
SCHEDULE 8.20
Certain Contracts
1. Facilities Agreement between Century-ML Cable Corporation, Century-ML Cable
Venture and Lambda.
2. Stockholders Agreement, dated as of January 7, 1999 by and among Centennial
Cellular Corp. (formerly CCW Acquisition Corp.) (the "Company") and the
several persons named in Annexes I-IV attached to this Schedule 8.20 (the
"Purchasers"), providing, among other things, for the payment of an annual
advisory and monitoring fees of (i) $450,000, plus reasonable expenses, to
WCA Management Corporation ("WCA Management"), or its designee and (ii)
$300,000, plus reasonable expenses, to Blackstone Management Partners III
L.L.C. ("Blackstone Management"), or its designee.
3. Securities Purchase Agreement, dated as of December 29, 1998 by and among
the Company and the Purchasers, providing, among other things, for the
payment of (a) (i) certain out-of-pocket expenses incurred by the
Purchasers, WCA Management, Blackstone Management and their respective
affiliates in connection with the transactions contemplated thereby, as
specified therein and (ii) a fee to Signal Capital Partners, L.L.C., of
$4,000,000 and (b) transactions fees of (i) $10,677,485 to WCA Management
Corporation and (ii) $3,322,515 to Blackstone Management Partners III
L.L.C.
10
<PAGE>
ANNEX I
to Schedule 8.20
WCAS Purchasers
Number of Shares Aggregate
Name and Address of Purchaser of Common Stock Purchase Price
Welsh, Carson, Anderson & Stowe VII, L.P. 648,117 $28,500,000
Welsh, Carson, Anderson & Stowe VIII, L.P. 4,791,333 $210,691,735
WCAS Information Partners, L.P. 22,741 $1,000,000
WCAS Capital Partners III, L.P. 542,169 See Section 1.02
WCA Management Corporation 56,852 $2,500,000
Patrick J. Welsh 51,776 $2,276,751
Russell L. Carson 51,776 $2,276,751
Bruce K. Anderson 48,364 $2,126,751
Kristin M. Anderson Trust 1,137 $50,000
Mark S. Anderson Trust 1,137 $50,000
Daniel B. Anderson Trust 1,137 $50,000
Thomas E. McInerney 51,776 $2,276,751
Andrew M. Paul 39,448 $1,734,667
Robert A. Minicucci 20,012 $880,000
Anthony J. de Nicola 4,548 $200,000
Paul B. Queally 4,207 $185,000
Lawrence B. Sorrel 4,548 $200,000
Rudolph E. Rupert 4,548 $200,000
D. Scott Mackesy 1,137 $50,000
Priscilla A. Newman 1,478 $65,000
Laura M. VanBuren 455 $20,000
-------------- ----------------
TOTAL: 6,348,696 $255,333,406
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, New York 10022
Telecopy: (212) 893-9575
Attention: Thomas E. McInerney
11
<PAGE>
ANNEX II
to Schedule 8.20
Blackstone Purchasers
Number of Shares Aggregate
Name and Address of Purchaser of Common Stock Purchase Price
Blackstone CCC Capital Partners L.P. 2,490,358 $ 109,509,775
Blackstone CCC Offshore Capital
Partners L.P. 452,055 $ 19,878,444
Blackstone Family Investment
Partnership III L.P. 187,814 $ 8,258,840
---------- --------------
TOTAL 3,130,227 $ 137,647,059
c/o The Blackstone Group
345 Park Avenue
New York, New York 10154
Attn: Mark T. Gallogly
Telecopy: 212-754-8704
with a copy to:
Robert L. Friedman
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Telecopy: 212-455-2502
12
<PAGE>
ANNEX III
to Schedule 8.20
Signal Purchasers
Number of Shares Aggregate
Name and Address of Purchaser of Common Stock Purchase Price
Signal/Centennial Partners, L.L.C. 142,131 $6,250,000
10 East 53rd Street
32nd Floor
New York, NY 10022
Telecopy: (212) 253-4235
Attention: Alfred J. Puchala
with a copy to:
O'Sullivan, Graev & Karabell, LLP
30 Rockefeller Plaza
New York, NY 10112
Telecopy: (212) 408-2420
Attention: Phyllis Schwartz, Esq.
13
<PAGE>
ANNEX IV
to Schedule 8.20
Management Purchasers
Number of Shares Aggregate
Name and Address of Purchaser of Common Stock Purchase Price
Michael J. Small 6,000 $263,841
Michael J. Small Rollover IRA 4,000 $175,894
Peter W. Chehayl 2,500 $109,934
Edward G. Owen 5,000 $219,867
------ --------
Total: 17,500 $769,536
c/o Centennial Cellular Corp.
1305 Campus Parkway
Neptune, NJ 07753
14
<PAGE>
SCHEDULE 8.21
Labor Matters
None.
15
<PAGE>
SCHEDULE 8.22(b)
License Expiration Dates as of Closing Date
See Attached List.
16
<PAGE>
<TABLE>
<CAPTION>
CELLULAR AND PCS LICENSES
Licensee Call Sign Renewal Date Market Name & No.
- ------------------------------------------------------ ---------------- ----------------------- ----------------------------------
<S> <C> <C> <C>
Alexandria Cellular License Corp. KNKA813 10/01/2000 Alexandria, LA MSA
Market 205A
Bauce Communications of Beaumont, Inc. KNKA454 10/01/2007 Beaumont-Port Arthur, TX MSA
Market 101A
Centennial Beauregard Cellular, L.L.C. KNKQ374 10/01/2003 Louisiana 5 - Beauregard RSA
Market 458A
Centennial Benton Harbor Cellular Corp. KNKA809 10/01/1999 Benton Harbor, MI MSA
Market 193A
Centennial Caldwell Cellular Corp. KNKN548 10/01/2001 Louisiana 4 - Caldwell RSA
Market 457A
Centennial DeSoto Cellular Corp. KNKN478 10/01/2000 Louisiana 3 - DeSoto RSA
Market 456A
Centennial Hammond Cellular L.L.C. KNKQ380 10/01/2003 Louisiana 7 - West Feliciana RSA
Market 460A
Centennial Jackson Cellular Corp. KNKA823 10/01/2001 Jackson, MI MSA
Market 207A
Centennial Michigan RSA 6 Cellular Corp. KNKN842 10/01/2001 Michigan 6 - Roscommon RSA
Market 477A
Centennial Michigan RSA 7 Cellular Corp. KNKN998 10/01/2001 Michigan 7 - Newaygo RSA
Market 478A
Centennial Morehouse Cellular L.L.C. KNKN475 10/01/2000 Louisiana 2 - Morehouse RSA
Market 455A
Centennial Randolph Cellular L.L.C. KNKN440 10/01/2000 Indiana 6 - Randolph RSA
Market 408A
Centennial Cellular Tri-State Operating KNKQ373 10/01/2003 Indiana 1 - Newton RSA
Partnership Market 403A
Centennial Cellular Tri-State Operating KNKQ349 10/01/2002 Indiana 2 - Kosciusko RSA
Partnership Market 404A
Centennial Cellular Tri-State Operating KNKQ350 10/01/2002 Mississippi 9 - Copiah RSA
Partnership Market 501A
17
<PAGE>
Centennial Cellular Tri-State Operating KNKN854 10/01/2000 Ohio 1- Williams RSA
Partnership Market 585A
Century El Centro Cellular Corp. KNKN269 10/01/2000 California 7 - Imperial RSA
Market 342A
Century Indiana Cellular Corp. KNKN509 10/01/2000 Indiana 4 - Miami RSA
Market 406A
Century Michigan Cellular Corp. KNKN857 10/01/2001 Michigan 9 - Cass RSA
Market 480A
Century Yuma Cellular Corp. KNKN212 10/01/1999 Arizona 4 - Yuma RSA
Market 321A
Elkhart Metronet, Inc. KNKA741 10/01/2008 Elkhart-Goshen, IN MSA
Market 223A
Iberia Cellular Telephone Company, L.L.C. KNKQ339 10/01/2002 Louisiana 6 - Iberville RSA
Market 459A
Lafayette Cellular Telephone Company KNKA458 10/01/2007 Lafayette, LA MSA
Market 174A
Mega Comm, L.L.C. KNKN296 10/01/2000 Indiana 3 - Huntington RSA
Market 405A
Michiana Metronet, Inc. KNKA472 10/01/2007 Fort Wayne, IN MSA
Market 096A
Michiana Metronet, Inc. KNKA487 10/01/2007 Battle Creek, MI MSA
Market 177A
Michiana Metronet, Inc. KNKA428 10/01/2007 Kalamazoo, MI MSA
Market 132A
South Bend Metronet, Inc. KNKA656 10/01/2006 South Bend-Mishawaka, IN MSA
Market 129A
Centennial Claiborne Cellular Corp. KNKN636 10/01/2001 Mississippi 8 - Claiborne RSA
Market 500A
Centennial Wireless PCS License Corp. KNLF250 06/23/2005 Puerto Rico-U.S. Virgin Islands
MSA M025B
18
</TABLE>
<PAGE>
Centennial Microwave Licenses
Licensee Call Sign Renewal Date
- --------------------------------------------- ----------------- ------------
Alexandria Cellular License Corp. WLR335 2/01/2001
Alexandria Cellular License Corp. WLR336 2/01/2001
Alexandria Cellular License Corp. WLR337 2/01/2001
Alexandria Cellular License Corp. WPJF555 2/01/2001
Alexandria Cellular License Corp. WPJF556 2/01/2001
Alexandria Cellular License Corp. WPJF557 2/01/2001
Alexandria Cellular License Corp. WPJF558 2/01/2001
Alexandria Cellular License Corp. WPJF559 2/01/2001
Alexandria Cellular License Corp. WPJF560 2/01/2001
Alexandria Cellular License Corp. WMT281 2/01/2001
Alexandria Cellular License Corp. WMT282 2/01/2001
Centennial Benton Harbor Cellular Corp. WLV892 2/01/2001
Centennial Benton Harbor Cellular Corp. WLV893 2/01/2001
Centennial Benton Harbor Cellular Corp. WLV894 2/01/2001
Centennial Tri-State Operating Partnership WMR966 2/01/2001
Centennial Tri-State Operating Partnership WMR967 2/01/2001
Centennial Tri-State Operating Partnership WMR972 2/01/2001
Centennial Tri-State Operating Partnership WMS270 2/01/2001
Centennial Tri-State Operating Partnership WMS271 2/01/2001
Centennial Tri-State Operating Partnership WMN686 2/01/2001
Centennial Tri-State Operating Partnership WMQ755 2/01/2001
Centennial Tri-State Operating Partnership WMQ756 2/01/2001
Centennial Tri-State Operating Partnership WMS266 2/01/2001
Centennial DeSoto Cellular Corp. WMM966 2/01/2001
19
<PAGE>
Centennial DeSoto Cellular Corp. WMN967 2/01/2001
Centennial DeSoto Cellular Corp. WMN968 2/01/2001
Centennial DeSoto Cellular Corp. WMN969 2/01/2001
Centennial DeSoto Cellular Corp. WMN970 2/01/2001
Centennial Hammond Cellular L.L.C. WMK758 2/01/2001
Centennial Hammond Cellular L.L.C. WMN312 2/01/2001
Centennial Hammond Cellular L.L.C. WMN313 2/01/2001
Centennial Hammond Cellular L.L.C. WMN314 2/01/2001
Centennial Hammond Cellular L.L.C. WMN577 2/01/2001
Centennial Hammond Cellular L.L.C. WMQ744 2/01/2001
Centennial Michigan RSA 7 Cellular Corp. WML466 2/01/2001
Centennial Michigan RSA 7 Cellular Corp. WML467 2/01/2001
Centennial Michigan RSA 7 Cellular Corp. WML468 2/01/2001
Centennial Michigan RSA 7 Cellular Corp. WML748 2/01/2001
Centennial Michigan RSA 7 Cellular Corp. WML749 2/01/2001
Century Yuma Cellular Corp. WMS280 2/01/2001
Century Yuma Cellular Corp. WMS281 2/01/2001
Century Yuma Cellular Corp. WMR834 2/01/2001
Century Yuma Cellular Corp. WMR835 2/01/2001
Century Yuma Cellular Corp. WMJ575 2/01/2001
Century Yuma Cellular Corp. WMJ576 2/01/2001
Century Yuma Cellular Corp. WMJ577 2/01/2001
Century Yuma Cellular Corp. WMJ578 2/01/2001
Hendrix Radio Communications Inc. WHT232 2/01/2001
Hendrix Radio Communications Inc. WHT233 2/01/2001
Hendrix Radio Communications Inc. WHT235 2/01/2001
20
<PAGE>
Hendrix Radio Communications Inc. WHO886 2/01/2001
Hendrix Radio Communications Inc. WLN924 2/01/2001
Iberia Cellular Telephone Co., L.L.C. WMQ376 2/01/2001
Iberia Cellular Telephone Co., L.L.C. WMQ377 2/01/2001
Iberia Cellular Telephone Co., L.L.C. WMQ378 2/01/2001
Mega Comm, L.L.C. WMK675 2/01/2001
Mega Comm, L.L.C. WMK676 2/01/2001
Mega Comm, L.L.C. WMK873 2/01/2001
Mega Comm, L.L.C. WMN452 2/01/2001
Mega Comm, L.L.C. WLW649 2/01/2001
Michiana Metronet, Inc. WLK941 2/01/2001
Michiana Metronet, Inc. WLK942 2/01/2001
Michiana Metronet, Inc. WLK943 2/01/2001
Michiana Metronet, Inc. WLN896 2/01/2001
Michiana Metronet, Inc. WLN897 2/01/2001
Michiana Metronet, Inc. WLN898 2/01/2001
Michiana Metronet, Inc. WMN590 2/01/2001
Michiana Metronet, Inc. WMN591 2/01/2001
Michiana Metronet, Inc. WPJE802 2/01/2001
Michiana Metronet, Inc. WPJE803 2/01/2001
Michiana Metronet, Inc. WPJE804 2/01/2001
Michiana Metronet, Inc. WPJE805 2/01/2001
Michiana Metronet, Inc. WPJE806 2/01/2001
Michiana Metronet, Inc. KQN25 2/01/2001
Michiana Metronet, Inc. WLW448 2/01/2001
Michiana Metronet, Inc. WMQ474 2/01/2001
21
<PAGE>
Michiana Metronet, Inc. WMQ475 2/01/2001
Michiana Metronet, Inc. WLL326 2/01/2001
Michiana Metronet, Inc. WLL327 2/01/2001
Michiana Metronet, Inc. WLL328 2/01/2001
Michiana Metronet, Inc. WLL329 2/01/2001
Michiana Metronet, Inc. WLL330 2/01/2001
Michiana Metronet, Inc. WLL331 2/01/2001
Michiana Metronet, Inc. WLL332 2/01/2001
Michiana Metronet, Inc. WPNG630 2/01/2001
South Bend Metronet, Inc. WLT434 2/01/2001
South Bend Metronet, Inc. WLT435 2/01/2001
South Bend Metronet, Inc. WML591 2/01/2001
South Bend Metronet, Inc. WML592 2/01/2001
South Bend Metronet, Inc. WMN592 2/01/2001
South Bend Metronet, Inc. WMN857 2/01/2001
Centennial Wireless PCS License Corp. WPNC754 2/01/2001
Bauce Communications of Beaumont, Inc. WLR591 2/01/2001
Bauce Communications of Beaumont, Inc. WLR591 2/01/2001
Hendrix Electronics Inc. WLC667 2/01/2001
Hendrix Electronics Inc. WLC668 2/01/2001
22
<PAGE>
<TABLE>
<CAPTION>
Centennial Paging, SMR and Business Radio Licenses
Part 22 Paging Licenses
Call Sign License Name Exp. Date TX Location Radio Remarks
Service
<S> <C> <C> <C> <C>
KLF520 Hendrix Electronics, Inc. 7/1/98 Black Mt., CA CD
KOF906 Hendrix Electronics, Inc. 4/1/99 Telegraph Pass, AZ CD
WRD373 Hendrix Radio 4/1/99 Blythe, CA CD
Communications, Inc.
WCT614 Hendrix Radio 11/1/99 Temporary CD
Communications, Inc.
KMA251 Hendrix Radio 4/1/99 Hendrix Peak, CA CD
Communications, Inc.
WXS292 Hendrix Radio 4/1/99 Black Mt., CA CD
Communications, Inc.
SMR Licenses
WNNH878 Hendrix Electronics, Inc. 9/11/99 Blythe, CA YX
WNKS319 Hendrix Electronics, Inc. 6/14/03 El Centro, CA YX
WNCE527 Hendrix Electronics, Inc. 11/29/00 Glamis, CA YX
KNER452 Hendrix Electronics, Inc. 12/13/99 Yuma, AZ YX
Business Radio Licenses
KFR305 Hendrix Electronics, Inc. 4/7/03 Yuma, AZ IB
KA77635 Hendrix Electronics, Inc. 4/7/03 Yuma, AZ IB
WQV701 Hendrix Electronics, Inc. 4/7/03 Yuma, AZ IB
WQV702 Hendrix Electronics, Inc. 4/7/03 Yuma, AZ IB
KEZ873 Hendrix Electronics, Inc. 7/17/02 Glamis, CA IB
</TABLE>
<PAGE>
SCHEDULE 9.07
Certain Existing Liens
1. UCC-1 Financing Statement for which Centennial Cellular Corp. is the debtor
and Copelco Capital Inc. the secured party, filed with the Secretary of
State of the state of New Jersey on June 26, 1998 which filing number is
1845393, evidencing a security interest in the assets described on the
attached Schedule A. The unpaid indebtedness secured by the security
interest, as of November 30, 1998, was $266,773.
23
<PAGE>
SCHEDULE 9.08
Certain Indebtedness to Remain Outstanding
Indebtedness under the Rental Agreement between Centennial Cellular
Corporation, as user and Copelco Capital, Inc., as owner dated January 6, 1998
relating to the items listed on the attached Schedule A. The remaining
Indebtedness as of November 30, 1998, was $266,773.
24
<PAGE>
SCHEDULE 9.09
Investments
The Companies listed on the left have the Investments in Minority
Interests listed on the right.
<TABLE>
<CAPTION>
Name of Company Minority Interest Percentage
<S> <C> <C>
Centennial Cellular Company of Pennsylvania RSA 6 Limited 14.3%
Lawrence Partnership (I and II)
Centennial Cellular Company of Del Cal-One Cellular L.P. 6.9%
Norte
Centennial Cellular Company of Modoc Modoc RSA Limited Partnership 25.0%
Centennial Cellular Company of San GTE Mobilnet of California Limited 2.9%
Francisco Partnership
Centennial Cellular Company of Sacramento Valley Limited 23.5%
Sacramento Partnership
Centennial Lake Charles Cellular Corp. Lake Charles CellTellCo 25.1%
25
</TABLE>
<PAGE>
SCHEDULE 9.15
Existing Affiliate Agreements
1. Facilities Agreement between Century-ML Cable Corporation, Century-ML Cable
Venture and Lambda.
2. Stockholders Agreement, dated as of January 7, 1999 by and among Centennial
Cellular Corp. (formerly CCW Acquisition Corp.) (the "Company") and the
several persons named in Annexes I-IV attached to this Schedule 9.15 (the
"Purchasers"), providing, among other things, for the payment of an annual
advisory and monitoring fees of (i) $450,000, plus reasonable expenses, to
WCA Management Corporation ("WCA Management"), or its designee and (ii)
$300,000, plus reasonable expenses, to Blackstone Management Partners III
L.L.C. ("Blackstone Management"), or its designee.
3. Securities Purchase Agreement, dated as of December 29, 1998 by and among
the Company and the Purchasers, providing, among other things, for the
payment of (a) (i) certain out-of-pocket expenses incurred by the
Purchasers, WCA Management, Blackstone Management and their respective
affiliates in connection with the transactions contemplated thereby, as
specified therein and (ii) a fee to Signal Capital Partners, L.L.C., of
$4,000,000 and (b) transactions fees of (i) $10,677,485 to WCA Management
Corporation and (ii) $3,322,515 to Blackstone Management Partners III
L.L.C.
26
<PAGE>
ANNEX to Schedule 9.15
WCAS Purchasers
Number of Shares Aggregate
Name and Address of Purchaser of Common Stock Purchase Price
Welsh, Carson, Anderson & Stowe VII, L.P. 648,117 $28,500,000
Welsh, Carson, Anderson & Stowe VIII, L.P. 4,791,333 $210,691,735
WCAS Information Partners, L.P. 22,741 $1,000,000
WCAS Capital Partners III, L.P. 542,169 See Section 1.02
WCA Management Corporation 56,852 $2,500,000
Patrick J. Welsh 51,776 $2,276,751
Russell L. Carson 51,776 $2,276,751
Bruce K. Anderson 48,364 $2,126,751
Kristin M. Anderson Trust 1,137 $50,000
Mark S. Anderson Trust 1,137 $50,000
Daniel B. Anderson Trust 1,137 $50,000
Thomas E. McInerney 51,776 $2,276,751
Andrew M. Paul 39,448 $1,734,667
Robert A. Minicucci 20,012 $880,000
Anthony J. de Nicola 4,548 $200,000
Paul B. Queally 4,207 $185,000
Lawrence B. Sorrel 4,548 $200,000
Rudolph E. Rupert 4,548 $200,000
D. Scott Mackesy 1,137 $50,000
Priscilla A. Newman 1,478 $65,000
Laura M. VanBuren 455 $20,000
-------------- ----------------
TOTAL: 6,348,696 $255,333,406
27
<PAGE>
c/o Welsh, Carson, Anderson & Stowe
320 Park Avenue, Suite 2500
New York, New York 10022
Telecopy: (212) 893-9575
Attention: Thomas E. McInerney
28
<PAGE>
ANNEX II
to Schedule 9.15
Blackstone Purchasers
Number of Shares Aggregate
Name and Address of Purchaser of Common Stock Purchase Price
Blackstone CCC Capital Partners L.P. 2,490,358 $109,509,775
Blackstone CCC Offshore Capital
Partners L.P. 452,055 $ 19,878,444
Blackstone Family Investment
Partnership III L.P. 187,814 $ 8,258,840
---------- --------------
TOTAL 3,130,227 $137,647,059
c/o The Blackstone Group
345 Park Avenue
New York, New York 10154
Attn: Mark T. Gallogly
Telecopy: 212-754-8704
with a copy to:
Robert L. Friedman
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Telecopy: 212-455-2502
29
<PAGE>
ANNEX III
to Schedule 9.15
Signal Purchasers
Number of Shares Aggregate
Name and Address of Purchaser of Common Stock Purchase Price
Signal/Centennial Partners, L.L.C. 142,131 $6,250,000
10 East 53rd Street
32nd Floor
New York, NY 10022
Telecopy: (212) 253-4235
Attention: Alfred J. Puchala
with a copy to:
O'Sullivan, Graev & Karabell, LLP
30 Rockefeller Plaza
New York, NY 10112
Telecopy: (212) 408-2420
Attention: Phyllis Schwartz, Esq.
30
<PAGE>
ANNEX IV
to Schedule 9.15
Management Purchasers
Number of Shares Aggregate
Name and Address of Purchaser of Common Stock Purchase Price
Michael J. Small 6,000 $263,841
Michael J. Small Rollover IRA 4,000 $175,894
Peter W. Chehayl 2,500 $109,934
Edward G. Owen 5,000 $219,867
------ --------
TOTAL: 17,500 $769,536
c/o Centennial Cellular Corp.
1305 Campus Parkway
Neptune, NJ 07753
31
<PAGE>
Exhibit A-1
[Form of Revolving Credit Note]
This Note and the Loan evidenced hereby may be transferred in whole or
in part only by registration of such transfer on the Register maintained for
such purpose by or on behalf of the undersigned as provided in Section 2.08 of
the Credit Agreement.
PROMISSORY NOTE
$[ ] [ ]
New York, New York
FOR VALUE RECEIVED, each of CENTENNIAL CELLULAR OPERATING CO. LLC, a
Delaware limited liability company ("Borrower"), and CENTENNIAL WIRELESS PCS
OPERATIONS CORP., a Delaware corporation ("PR Borrower"), hereby promises to pay
to the order of [ ] ("Lender"), for the account of Lender's Applicable
Lending Office provided for by the Credit Agreement referred to below, at the
Principal Office of the Administrative Agent, the principal sum of [ ]
Dollars ($[ ]) (or with respect to either Borrower or PR Borrower such
lesser amount as shall equal the aggregate unpaid principal amount of the
Revolving Credit Loans made by Lender to Borrower or PR Borrower, respectively,
under the Credit Agreement), in lawful money of the United States of America and
in immediately available funds, on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount of each such Revolving Credit Loan, at such office, in like money and
funds, for the period commencing on the date of such Revolving Credit Loan until
such Revolving Credit Loan shall be paid in full, at the rates per annum and on
the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Revolving Credit Loan made by Lender to either Borrower
or PR Borrower, and each payment made on account of the principal thereof, shall
be recorded by Lender on its books and, prior to any transfer of this Note,
endorsed by Lender on the schedule attached hereto or any continuation thereof;
provided, however, that the failure of Lender to make any such recordation or
endorsement shall not affect the obligation of Borrower or PR Borrower, as the
case may be, to make a payment when due of any amount owing under the Credit
Agreement or hereunder.
This Note is one of the Revolving Credit Notes referred to in the
Credit Agreement, dated as of January 7, 1999 (as modified and supplemented and
in effect from time to time, the "Credit Agreement"), among Borrower, PR
Borrower, Parent, as a Guarantor, each of the other Guarantors party thereto,
certain lenders, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Lead Arranger, NationsBank, N.A., as Co-Arranger and
Administrative Agent, The Chase Manhattan Bank, as Co-Arranger and
A-1
<PAGE>
Co-Documentation Agent, The Bank of Nova Scotia, as Co-Documentation Agent,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Syndication Agent, and Morgan Stanley Senior Funding, Inc., as Senior Managing
Agent, and evidences Revolving Credit Loans made by Lender thereunder. Terms
used but not defined in this Note have the respective meanings assigned to them
in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
Except as permitted by Section 12.06 of the Credit Agreement, this
Note may not be assigned by Lender to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
CENTENNIAL CELLULAR OPERATING CO. LLC
By:
Name:
Title:
CENTENNIAL WIRELESS PCS OPERATIONS CORP.
By:
Name:
Title:
A-2
<PAGE>
SCHEDULE OF REVOLVING CREDIT LOANS
This Note evidences Revolving Credit Loans made, Continued or
Converted under the within-described Credit Agreement to Borrower or PR
Borrower, as the case may be, on the dates, in the principal amounts, of the
Types, bearing interest at the rates and having Interest Periods (if applicable)
of the durations set forth below, subject to the payments, Continuations,
Conversions and prepayments of principal set forth below:
A-3
<PAGE>
<TABLE>
<CAPTION>
Amount
Date Paid,
Made, Principal Duration Prepaid,
Continued Amount Type of Continued Unpaid
or of of Interest Interest or Principal Notation
Borrower Converted Loan Loan Rate Period Converted Amount Made by
-------- --------- ---- ---- ---- ------ --------- ------ -------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
A-4
<PAGE>
Exhibit A-2
[Form of Tranche A Term Loan Note]
This Note and the Loan evidenced hereby may be transferred in whole or
in part only by registration of such transfer on the Register maintained for
such purpose by or on behalf of the undersigned as provided in Section 2.08 of
the Credit Agreement.
PROMISSORY NOTE
$[ ] [ ]
New York, New York
FOR VALUE RECEIVED, CENTENNIAL CELLULAR OPERATING CO. LLC, a Delaware
limited liability company ("Borrower"), hereby promises to pay to the order of
[ ] ("Lender"), for the account of Lender's Applicable Lending
Office provided for by the Credit Agreement referred to below, at the Principal
Office of the Administrative Agent, the principal sum of [ ]
Dollars ($[ ]) (or such lesser amount as shall equal the unpaid
principal amount of the Tranche A Term Loan made by Lender to Borrower under the
Credit Agreement), in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
such Tranche A Term Loan, at such office, in like money and funds, for the
period commencing on the date of such Tranche A Term Loan until such Tranche A
Term Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of the Tranche A Term Loan made by Lender to Borrower, and each
payment made on account of the principal thereof, shall be recorded by Lender on
its books and, prior to any transfer of this Note, endorsed by Lender on the
schedule attached hereto or any continuation thereof; provided, however, that
the failure of Lender to make any such recordation or endorsement shall not
affect the obligation of Borrower to make a payment when due of any amount owing
under the Credit Agreement or hereunder.
This Note is one of the Tranche A Term Loan Notes referred to in the
Credit Agreement, dated as of January 7, 1999 (as modified and supplemented and
in effect from time to time, the "Credit Agreement"), among Borrower, PR
Borrower, Parent, as a Guarantor, each of the other Guarantors party thereto,
certain lenders, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Lead Arranger, NationsBank, N.A., as Co-Arranger and
A2-1
<PAGE>
Administrative Agent, and The Chase Manhattan Bank, as Co-Arranger and
Co-Documentation Agent, The Bank of Nova Scotia, as Co-Documentation Agent,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Syndication Agent, and Morgan Stanley Senior Funding, Inc., as Senior Managing
Agent, and evidences the Tranche A Term Loan made by Lender thereunder. Terms
used but not defined in this Note have the respective meanings assigned to them
in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of the
Tranche A Term Loan upon the terms and conditions specified therein.
Except as permitted by Section 12.06 of the Credit Agreement, this
Note may not be assigned by Lender to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
CENTENNIAL CELLULAR OPERATING CO. LLC
By:
Name:
Title:
A2-2
<PAGE>
SCHEDULE OF TRANCHE A TERM LOANS
This Note evidences the Tranche A Term Loan made, Continued or
Converted under the within-described Credit Agreement to Borrower, on the dates,
in the principal amounts, of the Types, bearing interest at the rates and having
Interest Periods (if applicable) of the durations set forth below, subject to
the payments, Continuations, Conversions and prepayments of principal set forth
below:
<TABLE>
<CAPTION>
Amount
Date Paid,
Made, Principal Duration Prepaid,
Continued Amount Type of Continued Unpaid
or of of Interest Interest or Principal Notation
Converted Loan Loan Rate Period Converted Amount Made by
--------- ---- ---- ---- ------ --------- ------ -------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
A2-3
<PAGE>
Exhibit A-3
[Form of Tranche A-PR Term Loan Note]
This Note and the Loan evidenced hereby may be transferred in whole or
in part only by registration of such transfer on the Register maintained for
such purpose by or on behalf of the undersigned as provided in Section 2.08 of
the Credit Agreement.
PROMISSORY NOTE
$[ ] [ ]
New York, New York
FOR VALUE RECEIVED, CENTENNIAL WIRELESS PCS OPERATIONS CORP., a
Delaware corporation ("PR Borrower"), hereby promises to pay to the order of
[ ] ("PR Lender"), for the account of Lender's Applicable
Lending Office provided for by the Credit Agreement referred to below, at the
Principal Office of the Administrative Agent, the principal sum of [ ]
Dollars ($[ ]) (or such lesser amount as shall equal the unpaid
principal amount of the Tranche A-PR Term Loan made by PR Lender to PR Borrower
under the Credit Agreement), in lawful money of the United States of America and
in immediately available funds, on the dates and in the principal amounts
provided in the Credit Agreement, and to pay interest on the unpaid principal
amount of such Tranche A-PR Term Loan, at such office, in like money and funds,
for the period commencing on the date of such Tranche A-PR Term Loan until such
Tranche A-PR Term Loan shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of the Tranche A-PR Term Loan made by PR Lender to PR Borrower,
and each payment made on account of the principal thereof, shall be recorded by
PR Lender on its books and, prior to any transfer of this Note, endorsed by PR
Lender on the schedule attached hereto or any continuation thereof; provided,
however, that the failure of PR Lender to make any such recordation or
endorsement shall not affect the obligation of PR Borrower to make a payment
when due of any amount owing under the Credit Agreement or hereunder.
This Note is one of the Tranche A-PR Term Loan Notes referred to in
the Credit Agreement, dated as of January 7, 1999 (as modified and supplemented
and in effect from time to time, the "Credit Agreement"), among Borrower, PR
Borrower, Parent, as a Guarantor, each of the other Guarantors party thereto,
certain lenders, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Lead Arranger, NationsBank, N.A., as Co-Arranger and
Administrative Agent, The Chase Manhattan Bank, as Co-Arranger and
Co-Documentation Agent, The Bank of Nova Scotia, as Co-Documentation Agent,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
A3-1
<PAGE>
Syndication Agent, and Morgan Stanley Senior Funding, Inc., as Senior Managing
Agent, and evidences the Tranche A-PR Term Loan made by PR Lender thereunder.
Terms used but not defined in this Note have the respective meanings assigned to
them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of the
Tranche A-PR Term Loan upon the terms and conditions specified therein.
Except as permitted by Section 12.06 of the Credit Agreement, this
Note may not be assigned by Lender to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
CENTENNIAL WIRELESS PCS OPERATIONS CORP.
By:
Name:
Title:
A3-2
<PAGE>
SCHEDULE OF TRANCHE A-PR TERM LOANS
This Note evidences the Tranche A-PR Term Loan made, Continued or
Converted under the within-described Credit Agreement to PR Borrower, on the
dates, in the principal amounts, of the Types, bearing interest at the rates and
having Interest Periods (if applicable) of the durations set forth below,
subject to the payments, Continuations, Conversions and prepayments of principal
set forth below:
<TABLE>
<CAPTION>
Amount
Date Paid,
Made, Principal Duration Prepaid,
Continued Amount Type of Continued Unpaid
or of of Interest Interest or Principal Notation
Converted Loan Loan Rate Period Converted Amount Made by
--------- ---- ---- ---- ------ --------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
A3-3
<PAGE>
Exhibit A-4
[Form of Tranche B Term Loan Note]
This Note and the Loan evidenced hereby may be transferred in whole or
in part only by registration of such transfer on the Register maintained for
such purpose by or on behalf of the undersigned as provided in Section 2.08 of
the Credit Agreement.
PROMISSORY NOTE
$[ ] [ ]
New York, New York
FOR VALUE RECEIVED, CENTENNIAL CELLULAR OPERATING CO. LLC, a Delaware
limited liability company ("Borrower"), hereby promises to pay to the order of
[ ] ("Lender"), for the account of Lender's
Applicable Lending Office provided for by the Credit Agreement referred to
below, at the Principal Office of the Administrative Agent, the principal sum of
[ ] Dollars ($[ ]) (or such lesser
amount as shall equal the unpaid principal amount of the Tranche B Term Loan
made by Lender to Borrower under the Credit Agreement), in lawful money of the
United States of America and in immediately available funds, on the dates and in
the principal amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of such Tranche B Term Loan, at such office, in like
money and funds, for the period commencing on the date of such Tranche B Term
Loan until such Tranche B Term Loan shall be paid in full, at the rates per
annum and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of the Tranche B Term Loan made by Lender to Borrower, and each
payment made on account of the principal thereof, shall be recorded by Lender on
its books and, prior to any transfer of this Note, endorsed by Lender on the
schedule attached hereto or any continuation thereof; provided, however, that
the failure of Lender to make any such recordation or endorsement shall not
affect the obligation of Borrower to make a payment when due of any amount owing
under the Credit Agreement or hereunder.
This Note is one of the Tranche B Term Loan Notes referred to in the
Credit Agreement, dated as of January 7, 1999 (as modified and supplemented and
in effect from time to time, the "Credit Agreement"), among Borrower, PR
Borrower, Parent, as a Guarantor, each of the other Guarantors party thereto,
certain lenders, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Lead Arranger, NationsBank, N.A., as Co-Arranger and
Administrative Agent, The Chase Manhattan Bank, as Co-Arranger and
Co-Documentation Agent, The Bank of Nova Scotia, as Co-Documentation Agent,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Syndication Agent, and Morgan Stanley Senior Funding, Inc., as Senior Managing
Agent, and evidences the Tranche B Term Loan made by Lender thereunder. Terms
used but not defined in this Note have the respective meanings assigned to them
in the Credit Agreement.
A4-1
<PAGE>
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of the
Tranche B Term Loan upon the terms and conditions specified therein.
Except as permitted by Section 12.06 of the Credit Agreement, this
Note may not be assigned by Lender to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
CENTENNIAL CELLULAR OPERATING CO. LLC
By:
Name:
Title:
A4-2
<PAGE>
SCHEDULE OF TRANCHE B TERM LOANS
This Note evidences the Tranche B Term Loan made, Continued or
Converted under the within-described Credit Agreement to Borrower, on the dates,
in the principal amounts, of the Types, bearing interest at the rates and having
Interest Periods (if applicable) of the durations set forth below, subject to
the payments, Continuations, Conversions and prepayments of principal set forth
below:
<TABLE>
<CAPTION>
Amount
Date Paid,
Made, Principal Duration Prepaid,
Continued Amount Type of Continued Unpaid
or of of Interest Interest or Principal Notation
Converted Loan Loan Rate Period Converted Amount Made by
--------- ---- ---- ---- ------ --------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
A4-3
<PAGE>
Exhibit A-5
[Form of Tranche C Term Loan Note]
This Note and the Loan evidenced hereby may be transferred in whole or
in part only by registration of such transfer on the Register maintained for
such purpose by or on behalf of the undersigned as provided in Section 2.08 of
the Credit Agreement.
PROMISSORY NOTE
$[ ] [ ]
New York, New York
FOR VALUE RECEIVED, CENTENNIAL CELLULAR OPERATING CO. LLC, a Delaware
limited liability company ("Borrower"), hereby promises to pay to the order of
[ ] ("Lender"), for the account of Lender's
Applicable Lending Office provided for by the Credit Agreement referred to
below, at the Principal Office of the Administrative Agent, the principal sum of
[ ] Dollars ($[ ]) (or such lesser
amount as shall equal the unpaid principal amount of the Tranche C Term Loan
made by Lender to Borrower under the Credit Agreement), in lawful money of the
United States of America and in immediately available funds, on the dates and in
the principal amounts provided in the Credit Agreement, and to pay interest on
the unpaid principal amount of such Tranche C Term Loan, at such office, in like
money and funds, for the period commencing on the date of such Tranche C Term
Loan until such Tranche C Term Loan shall be paid in full, at the rates per
annum and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of the Tranche C Term Loan made by Lender to Borrower, and each
payment made on account of the principal thereof, shall be recorded by Lender on
its books and, prior to any transfer of this Note, endorsed by Lender on the
schedule attached hereto or any continuation thereof; provided, however, that
the failure of Lender to make any such recordation or endorsement shall not
affect the obligation of Borrower to make a payment when due of any amount owing
under the Credit Agreement or hereunder.
This Note is one of the Tranche C Term Loan Notes referred to in the
Credit Agreement, dated as of January 7, 1999 (as modified and supplemented and
in effect from time to time, the "Credit Agreement"), among Borrower, PR
Borrower, Parent, as a Guarantor, each of the other Guarantors party thereto,
certain lenders, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Lead Arranger, NationsBank, N.A., as Co-Arranger and
Administrative Agent, The Chase Manhattan Bank, as Co-Arranger and
Co-Documentation Agent, The Bank of Nova Scotia, as Co-Documentation Agent,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Syndication Agent, and Morgan Stanley Senior Funding, Inc., as Senior Managing
A5-1
<PAGE>
Agent, and evidences the Tranche C Term Loan made by Lender thereunder. Terms
used but not defined in this Note have the respective meanings assigned to them
in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of the
Tranche C Term Loan upon the terms and conditions specified therein.
Except as permitted by Section 12.06 of the Credit Agreement, this
Note may not be assigned by Lender to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
CENTENNIAL CELLULAR OPERATING CO. LLC
By:
Name:
Title:
A5-2
<PAGE>
SCHEDULE OF TRANCHE C TERM LOANS
This Note evidences the Tranche C Term Loan made, Continued or
Converted under the within-described Credit Agreement to Borrower, on the dates,
in the principal amounts, of the Types, bearing interest at the rates and having
Interest Periods (if applicable) of the durations set forth below, subject to
the payments, Continuations, Conversions and prepayments of principal set forth
below:
<TABLE>
<CAPTION>
Amount
Date Paid,
Made, Principal Duration Prepaid,
Continued Amount Type of Continued Unpaid
or of of Interest Interest or Principal Notation
Converted Loan Loan Rate Period Converted Amount Made by
--------- ---- ---- ---- ------ --------- ------ -------
<S> <C> <C> <C> <C> <C> <C> <C>
</TABLE>
A5-3
<PAGE>
Exhibit A-6
[Form of Swing Loan Note]
PROMISSORY NOTE
$30,000,000 [ ], 1998
New York, New York
FOR VALUE RECEIVED, [CENTENNIAL CELLULAR OPERATING CO. LLC, a Delaware
limited liability company ("Borrower")/CENTENNIAL WIRELESS PCS OPERATIONS CORP.,
a Delaware corporation ("PR Borrower")], hereby promises to pay to NATIONSBANK
N.A. (the "Lender"), for the account of its Applicable Lending Office provided
for by the Credit Agreement referred to below, at the Principal Office of the
Administrative Agent, the principal sum of THIRTY MILLION DOLLARS ($30,000,000)
(or such lesser amount as shall equal the aggregate unpaid principal amount of
the Swing Loans made by the Lender to the [Borrower/PR Borrower] under the
Credit Agreement), in lawful money of the United States of America and in
immediately available funds, on the dates and in the principal amounts provided
in the Credit Agreement, and to pay interest on the unpaid principal amount of
each such Swing Loan, at such office, in like money and funds, for the period
commencing on the date of such Swing Loan until such Swing Loan shall be paid in
full, at the rates per annum and on the dates provided in the Credit Agreement.
The date, amount, Type, interest rate and duration of Interest Period
(if applicable) of each Swing Loan made by the Lender to the [Borrower/PR
Borrower], and each payment made on account of the principal thereof, shall be
recorded by the Lender on its books and, prior to any transfer of this Note,
endorsed by the Lender on the schedule attached hereto or any continuation
thereof; provided, however, that the failure of the Lender to make any such
recordation or endorsement shall not affect the obligations of the [Borrower/PR
Borrower] to make a payment when due of any amount owing under the Credit
Agreement or hereunder in respect of the Swing Loans made by the Lender.
This Note is one of the Swing Loan Notes referred to in the Credit
Agreement, dated as of January 7, 1999 (as modified and supplemented and in
effect from time to time, the "Credit Agreement"), among Borrower, PR Borrower,
Parent, as a Guarantor, each of the other Guarantors party thereto, certain
lenders, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Lead Arranger, NationsBank N.A., as Co-Arranger and
Administrative Agent, The Chase Manhattan Bank, as Co-Arranger and
Co-Documentation Agent, The Bank of Nova Scotia, as Co-Documentation Agent,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Syndication Agent, and Morgan Stanley Senior Funding, Inc., as Senior Managing
Agent, and evidences the Swing Loans made by the Lender thereunder. Terms used
but not defined in this Note have the respective meanings assigned to them in
the Credit Agreement.
A6-1
<PAGE>
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Loans
upon the terms and conditions specified therein.
Except as permitted by Section 12.06 of the Credit Agreement, this
Note may not be assigned by the Lender to any other Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
CENTENNIAL CELLULAR OPERATING CO. LLC
By:
Name:
Title:
A6-2
<PAGE>
SCHEDULE OF SWING LOANS
This Note evidences the Swing Loans made under the within-described
Credit Agreement to the [Borrower/PR Borrower], on the dates, in the principal
amounts, and bearing interest at the Alternate Base Rate, subject to the
payments and prepayments of principal set forth below:
<TABLE>
<CAPTION>
Interest
Rate
Principal Type (Alternate Unpaid
Date Amount of Base Rate Amount Principal Notation
Made of Loan Loan Only) Paid Amount Made by
- ---- ------- ---- ----------------- ------ ----------------- -------
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
A6-3-
<PAGE>
Exhibit B
[Form of Intercompany Note]
PROMISSORY NOTE
New York, New York
FOR VALUE RECEIVED, [Name of Payor], a [ ] [corporation/
limited liability company] ("Payor"), hereby promises to pay on demand to the
order of [Name of Payee] ("Payee"), in lawful money of the United States of
America in immediately available funds, at such location in the United States of
America as Payee shall from time to time designate, the unpaid principal amount
of all loans and advances, as reflected from time to time on the accounting
books and records of Centennial Cellular Operating Co. LLC, made by Payee to
Payor. Payor promises also to pay interest on the unpaid principal amount of all
such loans and advances in like money at said location from the date of such
loans and advances until paid at such rate per annum as shall be agreed upon
from time to time by Payor and Payee.
This note ("Note") is one of the Intercompany Notes referred to in the
Credit Agreement, dated as of January 7, 1999 among Centennial Cellular
Operating Co. LLC, a Delaware limited liability company, as Borrower, PR
Borrower, Parent, as a Guarantor, each of the other Guarantors party thereto,
certain lenders, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Lead Arranger, NationsBank, N.A., as Co-Arranger and
Administrative Agent, The Chase Manhattan Bank, as Co-Arranger and
Co-Documentation Agent, The Bank of Nova Scotia, as Co-Documentation Agent,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Syndication Agent, and Morgan Stanley Senior Funding, Inc., as Senior Managing
Agent (as such may be amended, modified or supplemented, the "Credit Agreement";
capitalized terms used herein and not defined shall have the meanings assigned
to them in the Credit Agreement), and is subject to the terms thereof, and shall
be pledged by Payee pursuant to the Security Agreement. Payee hereby
acknowledges and agrees that the Administrative Agent may exercise all rights
provided in the Credit Agreement and the Security Agreement with respect to this
Note.
B-1
<PAGE>
Anything in this Note to the contrary notwithstanding, the
indebtedness evidenced by this Note shall be subordinate and junior in right of
payment, to the extent and in the manner hereinafter set forth, to all
Obligations of Payor under the Credit Agreement, [including, without limitation,
under Payor's guarantee of the Obligations under the Credit Agreement][FN*]
(such Obligations and other indebtedness and obligations in connection with any
renewal, refunding, restructuring or refinancing thereof, including interest
thereon accruing after the commencement of any proceedings referred to in clause
(i) below, whether or not such interest is an allowed claim in such proceeding,
being hereinafter collectively referred to as "Senior Indebtedness"):
(i) In the event of any insolvency or bankruptcy proceedings, and any
receivership, liquidation, reorganization or other similar proceedings in
connection therewith, relative to Payor or to its creditors, as such, or to
its property, and in the event of any proceedings for voluntary
liquidation, dissolution or other winding up of Payor, whether or not
- ---------
[FN*] To be inserted if Payor is not Borrower.
B-2
<PAGE>
involving insolvency or bankruptcy, then (x) the holders of Senior
Indebtedness shall be paid in full in cash in respect of all amounts
constituting Senior Indebtedness before Payee is entitled to receive
(whether directly or indirectly), or make any demands for, any payment on
account of this Note and (y) until the holders of Senior Indebtedness are
paid in full in cash in respect of all amounts constituting Senior
Indebtedness, any payment or distribution to which the Payee would
otherwise be entitled (other than debt securities of Payor that are
subordinated, to at least the same extent as this Note, to the payment of
all Senior Indebtedness then outstanding (such securities being hereinafter
referred to as "Restructured Debt Securities")) shall be made to the
holders of Senior Indebtedness.
(ii) If any payment or distribution of any character, whether in cash,
securities or other property (other than Restructured Debt Securities), in
respect of this Note shall (despite these subordination provisions) be
received by Payee in violation of clause (i) before all Senior Indebtedness
shall have been paid in full in cash, such payment or distribution shall be
held in trust for the benefit of, and shall be paid over or delivered to,
the holders of Senior Indebtedness (or their representatives), ratably
according to the respective aggregate amounts remaining unpaid thereon, to
the extent necessary to pay all Senior Indebtedness in full in cash.
To the fullest extent permitted by law, no present or future holder of
Senior Indebtedness shall be prejudiced in its right to enforce the
subordination of this Note by any act or failure to act on the part of Payor or
by any act or failure to act on the part of such holder or any trustee or agent
for such holder. Payee and Payor hereby agree that the subordination of this
Note is for the benefit of the Creditors, the Creditors are obligees under this
Note to the same extent as if their names were written herein as such and the
Administrative Agent may, on behalf of the Creditors, proceed to enforce the
subordination provisions herein.
Nothing contained in the subordination provisions set forth above is
intended to or will impair, as between Payor and Payee, the obligations of
Payor, which are absolute and unconditional, to pay to Payee the principal of
and interest on this Note as and when due and payable in accordance with its
terms, or is intended to or will affect the relative rights of Payee and other
creditors of Payor other than the holders of Senior Indebtedness.
B-3
<PAGE>
Payee is hereby authorized to record all loans and advances made by it
to Payor (all of which shall be evidenced by this Note), and all repayments or
prepayments thereof, in its books and records, such books and records
constituting prima facie evidence of the accuracy of the information contained
therein.
Payor hereby waives presentment, demand, protest or notice of any kind
in connection with this Note. All payments under this Note shall be made without
offset, counterclaim or deduction of any kind.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
[NAME OF PAYOR]
By:
Name:
Title:
[NAME OF PAYEE]
By:
Name:
Title:
B-4
<PAGE>
Exhibit C-1
[Form of Interest Rate Certificate]
INTEREST RATE CERTIFICATE
Fiscal quarter ended [ ], [ ]
Reference is made to the Credit Agreement, dated as of January 7, 1999
(as such may be amended, modified or supplemented, the "Credit Agreement";
capitalized terms used herein and not defined shall have the meanings assigned
to them in the Credit Agreement), among Centennial Cellular Operating Co. LLC, a
Delaware limited liability company, as Borrower, PR Borrower, Parent, as a
Guarantor, each of the other Guarantors party thereto, certain lenders, Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Lead
Arranger, NationsBank, N.A., as Co-Arranger and Administrative Agent and The
Chase Manhattan Bank, as Co-Arranger and Co-Documentation Agent, The Bank of
Nova Scotia, as Co-Documentation Agent, Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as Syndication Agent, and Morgan Stanley
Senior Funding, Inc., as Senior Managing Agent.
Pursuant to Section 9.01(e) of the Credit Agreement, each of the
undersigned, hereby certifies that, to the best of [his/her] knowledge, attached
hereto as Annex 1 is a true and accurate calculation of the Total Leverage Ratio
as at the end of the fiscal quarter ended [ ], [ ] determined in accordance with
the requirements of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be
duly executed as of the [ ] day of [ ], [ ].
CENTENNIAL CELLULAR OPERATING CO. LLC
By:
Name:
Title:
By:
Name:
Title:
C1-1
<PAGE>
Exhibit C-2
[Form of Solvency Certificate]
OFFICER'S SOLVENCY CERTIFICATE
I, the undersigned, the Chief Financial Officer of Centennial Cellular
Operating Co. LLC, a Delaware limited liability company ("Borrower"), do hereby
certify that:
1. This Certificate is furnished to the Lenders pursuant to Section
7.01(i)(7) of the Credit Agreement, dated as of January 7, 1999, among Borrower,
PR Borrower, Parent, as a Guarantor, each of the other Guarantors party thereto,
certain lenders, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Lead Arranger, NationsBank, N.A., as Co-Arranger and
Administrative Agent, and The Chase Manhattan Bank, as Co-Arranger and
Co-Documentation Agent, The Bank of Nova Scotia, as Co-Documentation Agent,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Syndication Agent, and Morgan Stanley Senior Funding, Inc., as Senior Managing
Agent (such Credit Agreement, as in effect on the date of this Certificate,
being herein called the "Credit Agreement"). Unless otherwise defined herein,
capitalized terms used in this Certificate shall have the meanings set forth in
the Credit Agreement.
2. For purposes of this Certificate, the terms below shall have the
following definitions:
(a) "Fair Value"
The amount at which the assets, in their entirety, of the applicable
Obligor and its Subsidiaries taken as a whole would change hands between a
willing buyer and a willing seller, within a commercially reasonable period of
time, each having reasonable knowledge of the relevant facts, with neither being
under any compulsion to act.
(b) "Present Fair Salable Value"
The amount that could be obtained by an independent willing seller
from an independent willing buyer if the assets of the applicable Obligor and
its Subsidiaries taken as a whole are sold with reasonable promptness in an
arm's-length transaction under normal selling conditions for the sale of
comparable business enterprises.
C2-1
<PAGE>
(c) "New Financing"
The Indebtedness incurred or to be incurred by the applicable Obligor
and its Subsidiaries under the Credit Documents (assuming the full utilization
by Borrower and PR Borrower of the Commitments under the Credit Agreement), the
Parent Financing Documents and the Senior Subordinated Notes Financing Documents
(collectively, the "Documents") and all other financings contemplated by each of
the Documents, in each case after giving effect to the Merger.
(d) "Stated Liabilities"
The recorded liabilities (including contingent liabilities that would
be recorded in accordance with generally accepted accounting principles
("GAAP")) of the applicable Obligor and its Subsidiaries taken as a whole as of
August 31, 1998, after giving effect to the consummation of the Merger,
determined in accordance with GAAP consistently applied, together with the
amount of all New Financings.
(e) "Identified Contingent Liabilities"
The maximum estimated amount of liabilities reasonably likely to
result from pending litigation, asserted claims and assessments, guaranties,
uninsured risks and other contingent liabilities of the applicable Obligor and
its Subsidiaries taken as a whole after giving effect to the Merger (including
all fees and expenses related thereto but exclusive of such contingent
liabilities to the extent reflected in Stated Liabilities), as identified and
explained in terms of their nature and estimated magnitude by responsible
officers of the applicable Obligor and/or any of its Subsidiaries.
(f) "Will be able to pay its Stated Liabilities, including Identified
Contingent Liabilities, as they mature"
For the period from the date hereof through the Final Maturity Date,
each applicable Obligor and its Subsidiaries taken as a whole will have
sufficient assets and cash flow to pay their respective Stated Liabilities and
Identified Contingent Liabilities as those liabilities mature or otherwise
become payable.
(g) "Does not have Unreasonable Small Capital"
C2-2
<PAGE>
For the period from the date hereof through the Final Maturity Date,
the applicable Obligor and its Subsidiaries taken as a whole, after consummation
of the Merger and all Indebtedness (including the Loans) being incurred or
assumed and Liens created by the applicable Obligor and its Subsidiaries in
connection therewith, is a going concern and has sufficient capital to ensure
that it will continue to be a going concern for such period and to remain a
going concern.
3. For purposes of this Certificate, I, or officers of the applicable
Obligor under my direction and supervision, have performed the following
procedures as of and for the periods set forth below.
(a) I have reviewed the financial statements referred to in Section
8.02(a) and (b) of the Credit Agreement.
(b) I have made inquiries of certain officials of each Obligor and its
Subsidiaries who have responsibility for financial and accounting matters
regarding the existence and amount of Identified Contingent Liabilities
associated with the business of each Obligor and its Subsidiaries.
(c) I have knowledge of and have reviewed to my satisfaction the
Documents, and each of its respective Annexes, Schedules and Exhibits thereto.
(d) With respect to Identified Contingent Liabilities, I:
1. inquired of certain officials of each Obligor and its
Subsidiaries who have responsibility for legal, financial and
accounting matters as to the existence and estimated liability with
respect to all contingent liabilities associated with the business of
each Obligor and its Subsidiaries; and
2. confirmed with officers of each Obligor and its Subsidiaries
that, to the best of such officers' knowledge, (i) all appropriate
items were included in Stated Liabilities or Identified Contingent
Liabilities and that (ii) the amounts relating thereto were the
maximum estimated amount of liabilities reasonably likely to result
therefrom as of the date hereof.
C2-3
<PAGE>
(e) I have made inquiries of certain officers of each Obligor and its
Subsidiaries who have responsibility for financial reporting and accounting
matters regarding whether they were aware of any events or conditions that, as
of the date hereof, would cause such Obligor and its Subsidiaries taken as a
whole after giving effect to the consummation of the Merger and the related
financing transactions (including the making of Loans under the Credit
Agreement), to (i) have assets with a Fair Value or Present Fair Salable Value
that are less than Stated Liabilities and Identified Contingent Liabilities;
(ii) have Unreasonably Small Capital; or (iii) not be able to pay its Stated
Liabilities and Identified Contingent Liabilities as they mature or otherwise
become payable.
4. Based on and subject to the foregoing, taking into account Section
6.08 of the Credit Agreement I hereby certify that, after giving effect to the
consummation of the Merger and the related financing transactions (including the
making of Loans under the Credit Agreement), it is my opinion that (i) the Fair
Value (on a going concern basis) of the assets of the Obligors and their
Subsidiaries taken as a whole exceed their respective Stated Liabilities and
Identified Contingent Liabilities; (ii) the Present Fair Salable Value of the
assets of the Obligors and their Subsidiaries taken as a whole exceeds the
probable liability of the Obligors and their Subsidiaries taken as a whole on
its Stated Liabilities and Identified Contingent Liabilities; (iii) the Obligors
and their Subsidiaries taken as a whole do not have Unreasonably Small Capital;
and (iv) the Obligors and their Subsidiaries taken as a whole will be able to
pay their respective Stated Liabilities and Identified Contingent Liabilities as
they mature or otherwise become payable.
IN WITNESS WHEREOF, I have hereto set my hand this 7th day of January,
1999, in my official (and not individual) capacity and without personal
liability.
By:
Name:
Title:
C2-4
<PAGE>
Exhibit D
--------------------------------------------
SECURITY AGREEMENT
Dated January 7, 1999
--------------------------------------------
made by
CENTENNIAL CELLULAR OPERATING CO. LLC,
as Borrower,
and
CENTENNIAL WIRELESS PCS OPERATIONS CORP.,
as PR Borrower
and
EACH OF THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO OR FROM
TIME TO TIME PARTY HERETO BY EXECUTION OF
A JOINDER AGREEMENT,
as Guarantor
in favor of
NATIONSBANK, N.A.
<PAGE>
TABLE OF CONTENTS
Page
R E C I T A L S................................................................1
Section 1. Pledge.............................................................2
Section 2. Secured Obligations................................................8
Section 3. FCC Approvals and Municipal Approvals..............................8
Section 4. No Release.........................................................9
Section 5. Perfection; Supplements; Further Assurances;
Use of Pledged Collateral........................................9
(a) Delivery of Certificated Securities Collateral..................9
(b) Perfection of Uncertificated Securities Collateral.............10
(c) Financing Statements and Other Filings.........................10
(d) Perfection in Financial Accounts...............................10
(e) Motor Vehicles.................................................10
(f) Supplements; Further Assurances................................10
(g) Use and Pledge of Pledged Collateral...........................11
Section 6. Representations, Warranties and Covenants.........................11
(a) Perfection Actions; Prior Liens................................11
(b) No Liens.......................................................11
(c) Other Financing Statements.....................................12
(d) Chief Executive Office; Inventory, Equipment and Records.......12
(e) Due Authorization and Issuance.................................13
(f) No Violations, etc.............................................13
(g) No Options, Warrants, etc......................................13
(h) No Claims......................................................13
(i) Authorization, Enforceability..................................13
(j) No Conflicts, Consents, etc....................................14
(k) Pledged Collateral.............................................14
(l) Insurance......................................................14
(m) Insurance Proceeds.............................................15
(n) Payment of Taxes; Compliance with Laws; Claims.................15
(o) ............................................................15
Section 7. Special Provisions Concerning General Collateral..................16
(a) Special Representations and Warranties.........................16
(b) Maintenance of Records.........................................16
(c) Legend.........................................................16
(d) Modification of Terms, etc.....................................16
D-i
<PAGE>
(e) Collection.....................................................17
(f) Instruments....................................................17
(g) Cash Collateral................................................17
(h) Maintenance of Equipment.......................................17
(i) Warehouse Receipts Non-Negotiable..............................18
(j) Consents to Assignment of Contracts............................18
(k) Fair Labor Standards Act.......................................18
Section 8. Special Provisions Concerning Securities Collateral................18
(a) Pledge of Additional Securities................................18
(b) Voting Rights; Distributions; etc..............................18
(c) No New Securities..............................................20
(d) Operative Agreements...........................................20
(e) Defaults, etc..................................................20
Section 9. Special Provisions Concerning Intellectual Property Collateral....20
(a) Grant of License...............................................20
(b) Registrations..................................................20
(c) No Violations or Proceedings...................................21
(d) Protection of Administrative Agent's Security..................21
(e) After-Acquired Property........................................22
(f) Modifications..................................................22
(g) Applications...................................................22
(h) Litigation.....................................................22
Section 10. Special Provisions Concerning Financial Accounts.................23
(a) Financial Accounts.............................................23
(b) Concentration Account..........................................24
(c) Dispositions from Concentration Account........................24
(d) Revocation of Withdrawal Right.................................24
(f) Application of Amounts in Collateral Account...................25
(g) Investment of Balance in Collateral Account....................25
(h) Cover for Letter of Credit Liabilities.........................25
Section 11. Transfers and Other Liens........................................26
Section 12. Reasonable Care..................................................26
Section 13. Remedies upon Default; Obtaining the Pledged Collateral
upon Event of Default..........................................26
(b) Remedies; Disposition of the Pledged Collateral................27
(c) Waiver of Notice and Claims....................................28
(d) Certain Sales of Pledged Collateral............................29
D-ii
<PAGE>
Section 14. Application of Proceeds..........................................30
Section 15. Expenses.........................................................30
Section 16. No Waiver; Cumulative Remedies...................................31
Section 17. Administrative Agent.............................................31
Section 18. Administrative Agent May Perform; Administrative Agent
Appointed Attorney-in-Fact.....................................31
Section 19. Indemnity........................................................32
(a) Indemnity......................................................32
(b) Survival.......................................................32
(c) Reimbursement..................................................33
Section 20. Modification in Writing..........................................33
Section 21. Termination; Release.............................................33
Section 22. Notices..........................................................33
Section 23. Continuing Security Interest; Assignment.........................33
Section 24. GOVERNING LAW; TERMS.............................................34
Section 25. CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF
JURY TRIAL.....................................................34
Section 26. Severability of Provisions.......................................35
Section 27. Execution in Counterparts........................................35
Section 28. Headings.........................................................35
Section 29. Obligations Absolute.............................................35
Section 30. Administrative Agent's Right to Sever Indebtedness...............36
Section 31. Future Advances..................................................37
D-iii
<PAGE>
[Form of Security Agreement]
SECURITY AGREEMENT
SECURITY AGREEMENT (the "Agreement"), dated as of January 7, 1999,
made by CENTENNIAL CELLULAR OPERATING CO. LLC, a Delaware limited liability
company having an office at Corporate Office, 1305 Campus Parkway, Neptune, New
Jersey 07753 ("Borrower"), CENTENNIAL WIRELESS PCS OPERATIONS CORP., a Delaware
corporation having an office at Corporate Office, 1305 Campus Parkway, Neptune,
New Jersey 07753 ("PR Borrower"), and EACH OF THE GUARANTORS LISTED ON THE
SIGNATURE PAGES HERETO OR FROM TIME TO TIME PARTY HERETO BY EXECUTION OF A
JOINDER AGREEMENT (collectively, the "Guarantors"; together with Borrower, the
"Pledgors", and each, a "Pledgor"), as pledgors, assignors and debtors, in favor
of NATIONSBANK, N.A., having an office at 901 Main Street, 14th Floor, Dallas,
Texas 75202, in its capacity as administrative agent, as pledgee, assignee and
secured party (in such capacity and together with any successors in such
capacity, "Administrative Agent") for the lending institutions (the "Lenders")
from time to time party to the Credit Agreement (as hereinafter defined).
R E C I T A L S :
A. Pursuant to a certain credit agreement, dated as of the date hereof
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the "Credit Agreement"; capitalized terms used herein and not defined
herein shall have the meanings assigned to them in the Credit Agreement), among
Borrower, PR Borrower, Parent, as a Guarantor, each of the other Guarantors, the
Lenders, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Lead Arranger, NationsBank, N.A., as Co-Arranger and
Administrative Agent, The Chase Manhattan Bank, as Co-Arranger and
Co-Documentation Agent, The Bank of Nova Scotia, as Co-Documentation Agent,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Syndication Agent, and
Morgan Stanley Senior Funding, Inc., as Senior Managing Agent, the Lenders have
agreed (i) to make to or for the account of Borrower certain Term Loans up to an
aggregate principal amount of $900,000,000 and certain Revolving Credit Loans up
to an aggregate principal amount of $150,000,000 and (ii) to issue certain
Letters of Credit for the account of Borrower.
B. It is contemplated that one or more of the Pledgors may enter into
one or more Interest Rate Protection Agreements and Swap Contracts with one or
more of the Lenders or their respective Affiliates (collectively, "Interest Rate
Agreements") fixing the interest rates with respect to Loans under the Credit
Agreement (all obligations of the Pledgors now existing or hereafter arising
under such Interest Rate Agreements, collectively, the "Interest Rate
Obligations").
D-1
<PAGE>
C. Each Pledgor is or will be the legal and beneficial owner of the
Pledged Collateral (as hereinafter defined) to be pledged by it hereunder.
D. It is a condition to the obligations of the Lenders to make the
Loans under the Credit Agreement and a condition to any Lender issuing Letters
of Credit under the Credit Agreement or entering into the Interest Rate
Agreements that each Pledgor execute and deliver the applicable Credit
Documents, including this Agreement.
E. This Agreement is given by each Pledgor in favor of Administrative
Agent for its benefit and the benefit of the Lenders and the other Creditors
(collectively, the "Secured Parties") to secure the payment and performance of
all of the Secured Obligations (as defined in Section 2).
A G R E E M E N T :
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Pledgors and Administrative Agent hereby agree as follows:
Section 1. Pledge. As collateral security for the payment and
performance when due of all the Secured Obligations, each Pledgor hereby
pledges, assigns, transfers and grants to Administrative Agent for its benefit
and the benefit of the Secured Parties, a continuing first priority security
interest in and to all of the right, title and interest of such Pledgor in, to
and under the following property, wherever located, whether now existing or
hereafter arising or acquired from time to time (collectively, the "Pledged
Collateral"):
D-2
<PAGE>
(a) all "accounts", as such term is defined in the Uniform Commercial
Code as in effect from time to time in any applicable jurisdiction,
including, without limitation, Puerto Rico, (the "UCC"), and in any event
including, without limitation, all of such Pledgor's rights to payment for
goods sold or leased or services performed by such Pledgor or any other
party, and all rights evidenced by an account, contract, security
agreement, chattel paper, guarantee (including a letter of credit) or other
evidence of indebtedness or security together with (i) all security
pledged, assigned, hypothecated or granted to or held by such Pledgor to
secure the foregoing, (ii) general intangibles arising out of such
Pledgor's rights in any goods, the sale of which gave rise thereto, (iii)
all guarantees, endorsements and indemnifications on, or of, any of the
foregoing, (iv) all powers of attorney for the execution of any evidence of
indebtedness or security or other writing in connection therewith and (v)
all evidences of the filing of financing statements and other statements
and the registration of other instruments in connection therewith and
amendments thereto, notices to other creditors or secured parties and
certificates from filing or other registration offices (collectively, the
"Receivables");
(b) all "inventory", as such term is defined in the UCC, and, in any
event including, without limitation, all raw materials, work in process,
returned goods, finished goods, samples and consigned goods to the extent
of the consignee's interest therein, materials and supplies of any kind or
nature which are or might be used in connection with the manufacture,
printing, publication, packing, shipping, advertising, selling or finishing
of any such goods and all other products, goods, materials and supplies
(collectively, the "Inventory");
D-3
<PAGE>
(c) all books, records, ledgers, print-outs, file materials and other
papers containing information relating to Receivables and any account
debtors in respect thereof;
(d) any and all sale, service, performance and equipment or real
property lease contracts (including, without limitation, all leases for
cell sites to which Pledgor is a party), agreements and grants (whether
written or oral), and any other contract (whether written or oral) between
such Pledgor and third parties, including, without limitation, the Merger
Agreement and the Facilities Agreement, but excluding any of the foregoing
(i) which would be terminable by the counterparty thereto if such Pledgor's
interest therein were subject to the security interest created hereby and
(ii) for which such Pledgor has not received a consent from such
counterparty to the grant of a security interest therein (collectively, the
"Contracts");
(e) all "equipment", as such term is defined in the UCC, and, in any
event including, without limitation, all machinery, equipment, office
machinery, furniture, conveyors, tools, materials, storage and handling
equipment, automotive equipment, motor vehicles, tractors, trailers and
other like property, whether or not the title thereto is governed by a
certificate of title or ownership, and all other equipment of every kind
and nature owned by such Pledgor or in which such Pledgor may have any
interest (to the extent of such interest), all modifications, alterations,
repairs, substitutions, additions and accessions thereto, all replacements
and all parts therefor and together with all substitutes for any of the
foregoing (collectively, the "Equipment");
(f) all "general intangibles", as such term is defined in the UCC,
and, in any event including, without limitation, all manuals, blueprints,
know-how, warranties and records in connection with the Equipment; all
documents of title or documents representing the Inventory and all records,
files and writings with respect thereto; any and all other rights, claims
and causes of action of such Pledgor against any other Person and the
benefits of any and all collateral or other security given by any other
Person in connection therewith, including, without limitation, all rights
under any Contracts; all information, customer lists, identification of
suppliers, data, plans, blueprints, specification designs, drawings,
recorded knowledge, surveys, engineering reports, test reports, manuals,
materials, standards, processing standards, performance standards,
catalogs, research data, computer and automatic machinery software and
programs and the like pertaining to operations by such Pledgor; all field
D-4
<PAGE>
repair data, sales data and other information relating to sales of products
now or hereafter manufactured, distributed or franchised by such Pledgor;
all accounting information pertaining to such Pledgor's operations or any
of the Equipment, Inventory, Receivables or Intangibles and all media in
which or on which any of the information or knowledge or data or records
relating to such operations or any of the Equipment, Inventory,
Receivables, Contracts or Intangibles may be recorded or stored and all
computer programs used for the compilation or printout of such information,
knowledge, records or data; all rights and goodwill of such Pledgor; all
licenses, consents, permits, variances, certifications and approvals of
governmental agencies now or hereafter held by such Pledgor pertaining to
operations now or hereafter conducted by such Pledgor or assets now or
hereafter held by such Pledgor (other than FCC Licenses, as hereinafter
defined); all causes of action, claims and warranties now or hereafter
owned or acquired by such Pledgor; and any other property consisting of a
general intangible under the UCC applicable in such other location where
such Pledgor maintains its records relating to such property (collectively,
the "Intangibles");
(g) all present and future authorizations, permits, licenses and
franchises (collectively the "FCC Licenses") heretofore or hereafter
granted or assigned to such Pledgor by the Federal Communications
Commission (the "FCC") or any present and future authorizations, permits,
licenses and franchises (collectively "Governmental Licenses") heretofore
or hereafter granted or assigned to such Pledgor by any other public or
governmental agency or regulatory body for the operation or ownership of a
wireless telecommunications system; excluding, however, any such FCC
Licenses or Governmental Licenses to the extent, and only to the extent,
that it is unlawful to grant a security interest in the same, but
including, to the maximum extent permitted by law, all rights incident or
appurtenant to such FCC Licenses or Governmental Licenses, including
without limitation the right to receive all proceeds derived or arising
from or in connection with the sale, assignment or transfer of such FCC
Licenses), whether now owned or hereafter acquired by such Pledgor, or in
which such Pledgor may now have or hereafter acquire an interest.
D-5
<PAGE>
(h) all insurance policies held by such Pledgor or naming such Pledgor
as insured, additional insured or loss payee (including, without
limitation, casualty insurance, liability insurance, property insurance and
business interruption insurance), all such insurance policies entered into
after the date hereof other than insurance policies (or certificates of
insurance evidencing such insurance policies) relating to health and
welfare insurance and life insurance policies in which such Pledgor is not
named as beneficiary (i.e., insurance policies that are not "Key Man"
insurance policies) and all rights, claims and recoveries relating thereto
(including all dividends, returned premiums and other rights to receive
money in respect of any of the foregoing) (collectively, the "Insurance
Policies");
(i) such Pledgor's right to receive the surplus funds, if any, which
are payable to such Pledgor following the termination of any employee
pension plan and the satisfaction of all liabilities of participants and
beneficiaries under such plan in accordance with applicable law
(collectively, the "Pension Plan Reversions");
(j) the issued and outstanding shares of capital stock of each Person
described in Schedule I-A hereto and each other corporation hereafter
acquired or formed by such Pledgor (the "Pledged Shares") (which are and
shall remain at all times until this Agreement terminates, certificated
shares), including the certificates representing the Pledged Shares and any
interest of such Pledgor in the entries on the books of any financial
intermediary pertaining to the Pledged Shares; provided that such Pledgor
shall not be required to pledge shares possessing more than 65% of the
voting power of all classes of capital stock entitled to vote of any
Subsidiary which is a controlled foreign corporation (as defined in Section
957(a) of the Internal Revenue Code of 1986, as amended from time to time
D-6
<PAGE>
(the "Tax Code")) and, in any event, shall not be required to pledge the
shares of stock of any Subsidiary otherwise required to be pledged pursuant
to this Section 1(j) to the extent that such pledge would constitute an
investment of earnings in United States property under Section 956 (or a
successor provision) of the Tax Code, which investment would trigger an
increase in the gross income of a United States shareholder of such Pledgor
pursuant to Section 951 (or a successor provision) of the Tax Code;
provided further, that if following a change in the relevant sections of
the Tax Code or the regulations, rules, rulings, notices or other official
pronouncements issued or promulgated thereunder which would permit a pledge
of 66-2/3% or more of the total combined voting power of all classes of
capital stock of any Foreign Subsidiary entitled to vote without causing
the undistributed earnings of such Foreign Subsidiary as determined for
United States Federal income taxes to be treated as a deemed dividend to
the Pledgors for United States Federal income tax purposes, then the 65%
limitation set forth above shall no longer be applicable and the Pledgors
shall duly pledge and deliver to the Administrative Agent such maximum
additional percentage of the capital stock not theretofore required to be
pledged hereunder as will not cause such a deemed dividend to have been
made;
(k) subject to the proviso set forth in clause (j) above, all
additional shares of capital stock of whatever class of any issuer of the
Pledged Shares from time to time acquired by such Pledgor in any manner
(which are and shall remain at all times until this Agreement terminates,
certificated shares) (which shares shall be deemed to be part of the
Pledged Shares), including the certificates representing such additional
shares and any interest of such Pledgor in the entries on the books of any
financial intermediary pertaining to such additional shares;
D-7
<PAGE>
(l) all membership interests and/or partnership interests, as
applicable, of each Person described in Schedule I-B hereto and each other
limited liability company or partnership hereafter acquired or formed by
such Pledgor, together with all rights, privileges, authority and powers of
such Pledgor in and to each such Person or under the membership or
partnership agreement of each such Person (the "Operative Agreements")
(collectively, the "Initial Pledged Interests"), and the certificates,
instruments and agreements, if any, representing the Initial Pledged
Interests;
(m) all options, warrants, rights, agreements, additional membership
or partnership interests or other interests relating to each such Person
described in clause (l) above or any interest in any such Person,
including, without limitation, any right relating to the equity or
membership or partnership interests in any such Person or under the
Operative Agreement of any such Person (collectively, the "Additional
Interests"; together with the Initial Pledged Interests, the "Pledged
Interests"; the Pledged Interests and the Pledged Shares, collectively, the
"Pledged Securities") from time to time acquired by such Pledgor in any
manner and the certificates, instruments and agreements, if any,
representing the Additional Interests;
(n) all intercompany notes described on Schedule II hereto (the
"Intercompany Notes") and all certificates or instruments evidencing such
Intercompany Notes and all proceeds thereof, all accessions thereto and
substitutions therefor;
(o) all dividends, cash, options, warrants, rights, instruments,
distributions, returns of capital or principal, income, interest, profits
and other property, interests (debt or equity) or proceeds, including as a
result of a split, revision, reclassification or other like change of the
Pledged Securities, from time to time received, receivable or otherwise
distributed to such Pledgor in respect of or in exchange for any or all of
the Pledged Securities or Intercompany Notes (collectively,
"Distributions");
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<PAGE>
(p) without affecting the obligations of such Pledgor under any
provision prohibiting such action hereunder or under the Credit Agreement,
in the event of any consolidation or merger in which any Person listed on
Schedule I-A or Schedule I-B hereto is not the surviving entity, all shares
of each class of the capital stock of the successor corporation or
interests or certificates of the successor limited liability company or
partnership owned by such Pledgor (unless such successor is such Pledgor
itself) formed by or resulting from such consolidation or merger;
(q) patents issued or assigned to and all patent applications made by
such Pledgor, including, without limitation, the patents and patent
applications listed on Schedule III hereto, along with any and all (i)
inventions and improvements described and claimed therein, (ii) reissues,
divisions, continuations, extensions and continuations-in-part thereof,
(iii) income, royalties, damages, claims and payments now and hereafter due
and/or payable thereunder and with respect thereto, including, without
limitation, damages and payments for past or future infringements thereof,
and (iv) rights to sue for past, present and future infringements thereof
(collectively, the "Patents");
(r) trademarks (including service marks), logos, federal and state
trademark registrations and applications made by such Pledgor, common law
trademarks and trade names owned by or assigned to such Pledgor and all
registrations and applications for the foregoing, including, without
limitation, the registrations and applications listed on Schedule IV
hereto, along with any and all (i) renewals thereof, (ii) income,
royalties, damages and payments now and hereafter due and/or payable
thereunder and with respect thereto, including, without limitation,
damages, claims and payments for past or future infringements thereof, and
(iii) rights to sue for past, present and future infringements thereof
(collectively, the "Trademarks");
(s) copyrights owned by or assigned to such Pledgor, including,
without limitation, the registrations and applications listed on Schedule V
hereto, along with any and all (i) renewals and extensions thereof, (ii)
income, royalties, damages, claims and payments now and hereafter due
and/or payable thereunder and with respect thereto, including, without
limitation, damages and payments for past, present or future infringements
thereof, and (iii) rights to sue for past, present and future infringements
thereof (collectively, the "Copyrights");
(t) license agreements and covenants not to sue with any other party
with respect to any Patent, Trademark, or Copyright listed on Schedule VI
hereto, along with any and all (i) renewals, extensions, supplements and
continuations thereof, (ii) income, royalties, damages, claims and payments
now and hereafter due and/or payable thereunder and with respect thereto,
including, without limitation, damages and payments for past, present or
future breaches thereof, (iii) rights to sue for past, present and future
breaches thereof and (iv) any other rights to use, exploit or practice any
or all of the Patents, Trademarks or Copyrights (collectively, the
"Licenses");
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<PAGE>
(u) the entire goodwill and all product lines of such Pledgor's
business and other general intangibles, including, without limitation,
know-how, trade secrets, customer lists, proprietary information,
inventions, methods, procedures and formulae connected with the use of and
symbolized by the Trademarks of such Pledgor (collectively, the
"Goodwill");
(v) all financial accounts and all investment property (as defined in
the UCC) of such Pledgor, including, without limitation, (i) the financial
accounts maintained with the financial institutions (each, a "Financial
Intermediary") identified on Schedule VII hereto, (ii) all moneys,
financial assets (as defined in the UCC), checks, drafts, securities and
instruments deposited or required to be deposited in such accounts, (iii)
all investments and all certificates and instruments, if any, from time to
time representing or evidencing any other property from time to time
received, receivable or otherwise distributed in respect of or in exchange
for any or all of the foregoing items listed under subclauses (i) and (ii),
and (iv) each consent or other agreement from time to time entered into by
such Pledgor with any financial institution at which any of the financial
accounts is maintained and all rights of such Pledgor under each such
consent or agreement;
(w) any and all other property of such Pledgor;
(x) all "documents", as such term is defined in the UCC, including,
without limitation, all receipts of such Pledgor covering, evidencing or
representing Inventory or Equipment (collectively, the "Documents");
(y) all "instruments", as such term is defined in the UCC, including,
without limitation, all promissory notes, drafts, bills of exchange or
acceptances (collectively, the "Instruments"); and
(z) all "proceeds", as such term is defined in the UCC or under other
relevant law, and in any event including, without limitation, any and all
(i) proceeds of any insurance (except payments made to a Person which is
not a party to this Agreement), indemnity, warranty or guaranty payable to
Administrative Agent or to such Pledgor from time to time with respect to
any of the Pledged Collateral, (ii) payments (in any form whatsoever) made
or due and payable to such Pledgor from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or
any part of the Pledged Collateral by any federal, state, local, foreign or
other governmental or administrative (including self-regulatory) body,
instrumentality, department or agency or any court, tribunal,
administrative hearing body, arbitration panel, commission or other similar
dispute-resolving body including, without limitation, those governing the
regulation and protection of the environment (each, a "Governmental
Authority") (or any person acting on behalf of a Governmental Authority),
(iii) instruments representing obligations to pay amounts in respect of the
Pledged Collateral, (iv) products of the Pledged Collateral and (v) other
amounts from time to time paid or payable under or in connection with any
of the Pledged Collateral (collectively, the "Proceeds").
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<PAGE>
Notwithstanding the foregoing, to the extent that the provision of any
agreement binding on any Pledgor that governs any intangible personal property
referred to in any of clauses (a) through (z) above expressly prohibits the
pledge, assignment or transfer thereof, or the grant of a security interest
therein, such Pledgor's right, title and interest in such property shall be
excluded from the foregoing pledge, assignment, transfer and grant for so long
as such prohibition continues, it being understood that upon request of the
Administrative Agent, such Pledgor will in good faith use reasonable efforts to
obtain consent for the pledge, assignment, transfer and creation of a security
interest in favor of the Administrative Agent in such Pledgor's right, title and
interest in such property.
The Pledged Securities, the Intercompany Notes, the Distributions and
the Proceeds relating thereto are collectively referred to as the "Securities
Collateral". The Patents, Trademarks, Copyrights, Licenses, Goodwill and the
Proceeds relating thereto are collectively referred to as the "Intellectual
Property Collateral". The property described in clause (u) above and the
Proceeds relating thereto are collectively referred to as the "Financial Account
Collateral". The Pledged Collateral other than the Securities Collateral, the
Intellectual Property Collateral and the Financial Account Collateral is
collectively referred to as the "General Collateral".
Section 2. Secured Obligations. This Agreement secures, and the
Pledged Collateral is collateral security for, the payment and performance in
full when due, whether at stated maturity, by acceleration or otherwise
(including, without limitation, the payment of interest and other amounts which
would accrue and become due but for the filing of a petition in bankruptcy or
the operation of the automatic stay under Section 362(a) of the Bankruptcy Code,
11 U.S.C. ss. 362(a)), of (i) all Obligations of the Pledgors now existing or
hereafter arising under or in respect of the Credit Agreement and all Interest
Rate Obligations of the Pledgors now existing or hereafter arising under or in
respect of any Interest Rate Agreement (including, without limitation, the
obligations of the Pledgors to pay principal, interest and all other charges,
fees, expenses, commissions, reimbursements, premiums, indemnities and other
payments related to or in respect of the Obligations contained in the Credit
Agreement and the obligations contained in any Interest Rate Agreement), and
(ii) without duplication of the amounts described in clause (i), all obligations
of the Pledgors now existing or hereafter arising under or in respect of this
Agreement or any other Credit Document, including, without limitation, all
charges, fees, expenses, commissions, reimbursements, premiums, indemnities and
other payments related to or in respect of the obligations contained in this
Agreement or in any other Credit Document, in each case whether in the regular
course of business or otherwise (the obligations described in clauses (i) and
(ii), collectively, the "Secured Obligations").
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Section 3. FCC Approvals and Municipal Approvals. The provisions of
this Agreement shall be subject to this Section 3. The rights of the
Administrative Agent and the Secured parties under this Agreement are subject to
all applicable rules and regulations of the FCC. Notwithstanding anything to the
contrary contained herein, neither the Administrative Agent nor any Secured
Party will take any action pursuant to this Agreement which would constitute or
result in any assignment of any FCC License or any direct or indirect change of
control of Borrower or any Pledgor or any FCC License, or any Government
License, whether de jure or de facto, if such assignment or change of control
would require the prior approval of the FCC under the Communications Act of
1934, as amended (including the written rules and regulations promulgated by the
FCC) or any other public or governmental agency or regulatory body unless and
until each such approval has been obtained. Borrower and each Pledgor agrees to
take any action which the Administrative Agent may reasonably request in order
to obtain and enjoy to the fullest possible extent the rights and benefits
granted to the Administrative Agent and the Secured Parties by this Agreement
and each other agreement, instrument and document delivered to the
Administrative Agent for the benefit of the Secured Parties in connection
herewith or in any document evidencing or securing the Collateral, including
specifically, at the cost and expense of such Pledgor, the use of such Pledgor's
best efforts to assist in obtaining approval of the FCC or any other agency or
government for any action or transaction contemplated by, and consistent with
the terms of, this Agreement which is then required by law, and specifically,
without limitation, upon request, to prepare, sign and file (or cause to be
filed) with the FCC or any other agency or government the assignor's or
transferor's portion of any application or applications for consent to the
assignment of any license, permit or franchise or change of control necessary or
appropriate under the rules and regulations of the FCC or any agency or
government for approval of (a) the assignment of any FCC license or transfer of
control thereof or of such Pledgor, (b) any sale or sales of property
constituting the Collateral by the Administrative Agent, or (c) any assumption
by the Administrative Agent or the Secured Parties of voting rights or
management rights in property constituting the Collateral which are being
effected in accordance with the terms of this Agreement. Furthermore,
notwithstanding anything to the contrary contained in this Agreement, the
Administrative Agent agrees on behalf of the Secured parties that (aa) voting
rights in any Pledged Securities shall remain with the issuer thereof even upon
an Event of Default unless all required prior approvals of the FCC to the
transfer of such voting rights shall have been obtained, (bb) upon an Event of
Default, and only if so permitted by this Agreement, the Agent or the Secured
Parties may dispose of such Pledged Securities, but only after all consents
required by the FCC or any other public or governmental agency or regulatory
body with respect to such sale have been obtained.
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<PAGE>
Section 4. No Release. Nothing set forth in this Agreement shall
relieve any Pledgor from the performance of any term, covenant, condition or
agreement on such Pledgor's part to be performed or observed under or in respect
of any of the Pledged Collateral or from any liability to any Person under or in
respect of any of the Pledged Collateral or shall impose any obligation on
Administrative Agent or any Secured Party to perform or observe any such term,
covenant, condition or agreement on such Pledgor's part to be so performed or
observed or shall impose any liability on Administrative Agent or any Secured
Party for any act or omission on the part of such Pledgor relating thereto or
for any breach of any representation or warranty on the part of such Pledgor
contained in this Agreement, any Interest Rate Agreement or any other Credit
Document, or under or in respect of the Pledged Collateral or made in connection
herewith or therewith. The obligations of each Pledgor contained in this Section
4 shall survive the termination of this Agreement and the discharge of such
Pledgor's other obligations under this Agreement, any Interest Rate Agreement
and the other Credit Documents.
Section 5. Perfection; Supplements; Further Assurances; Use of Pledged
Collateral.
(a) Delivery of Certificated Securities Collateral. All certificates,
agreements or instruments representing or evidencing the Securities Collateral,
to the extent not previously delivered to Administrative Agent, shall
immediately upon receipt thereof by any Pledgor be delivered to and held by or
on behalf of Administrative Agent pursuant hereto. All certificated Securities
Collateral shall be in suitable form for transfer by delivery or shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to Administrative Agent. Administrative Agent
shall have the right, at any time upon the occurrence and during the continuance
of any Event of Default and without notice to any Pledgor, to endorse, assign or
otherwise transfer to or to register in the name of Administrative Agent or any
of its nominees or endorse for negotiation any or all of the Securities
Collateral, without any indication that such Securities Collateral is subject to
the security interest hereunder. In addition, Administrative Agent shall have
the right at any time to exchange certificates representing or evidencing
Pledged Securities for certificates of smaller or larger denominations.
D-13
<PAGE>
(b) Perfection of Uncertificated Securities Collateral. If any
issuer of Pledged Securities is organized in a jurisdiction which does not
permit the use of certificates to evidence equity ownership, or if any of the
Pledged Securities are at any time not evidenced by certificates of ownership,
then each applicable Pledgor shall, to the extent permitted or required by
applicable law to perfect, continue and maintain a valid, enforceable, first
priority security interest in the Pledged Securities, record such pledge on the
equityholder register or the books of the issuer, cause the issuer to execute
and deliver to Administrative Agent an acknowledgment of the pledge of such
Pledged Securities substantially in the form of Exhibit 1 hereto, execute any
customary pledge forms or other documents necessary or appropriate to complete
the pledge and give Administrative Agent the right to transfer such Pledged
Securities under the terms hereof and provide to Administrative Agent an opinion
of counsel, in form and substance satisfactory to Administrative Agent, as to
the perfection of such pledge.
(c) Financing Statements and Other Filings. Each Pledgor agrees
that at any time and from time to time, it will execute and, at the sole cost
and expense of the Pledgors file and refile, or permit Administrative Agent to
file and refile, such financing statements, continuation statements and other
documents (including, without limitation, this Agreement), in form acceptable to
Administrative Agent, in such offices (including, without limitation, the United
States Patent and Trademark Office and the United States Copyright Office) as
Administrative Agent may reasonably deem necessary or appropriate, wherever
required or permitted by law in order to perfect, continue and maintain a valid,
enforceable, first priority security interest in the Pledged Collateral as
provided herein and to preserve the other rights and interests granted to
Administrative Agent hereunder, as against third parties, with respect to any
Pledged Collateral. Each Pledgor authorizes Administrative Agent to file any
such financing or continuation statement or other document without the signature
of such Pledgor where permitted by law.
(d) Perfection in Financial Accounts. In addition to any other
actions required herein to be taken by any Pledgor, each applicable Pledgor
shall cause each Financial Intermediary to execute and deliver to Administrative
Agent within thirty (30) days of the date hereof a financial account consent
D-14
<PAGE>
agreement substantially in the form of Exhibit 2 hereto acknowledging the
security interest and exclusive dominion and control of Administrative Agent in
all Financial Account Collateral on deposit by such Pledgor with such Financial
Intermediary.
(e) Motor Vehicles. At any time after the occurrence and during
the continuance of an Event of Default, each Pledgor shall, upon the request of
Administrative Agent, deliver to Administrative Agent originals of the
certificates of title or ownership for the motor vehicles, and any other
Equipment covered by certificates of title or ownership owned by it, with
Administrative Agent listed as lienholder.
(f) Supplements; Further Assurances. Each Pledgor agrees to do
such further acts and things, and to execute and deliver to Administrative Agent
such additional assignments, agreements, supplements, powers and instruments, as
Administrative Agent may reasonably deem necessary or appropriate, wherever
required or permitted by law, in order to perfect, preserve and protect the
security interest in the Pledged Collateral as provided herein and the rights
and interests granted to Administrative Agent hereunder, to carry into effect
the purposes of this Agreement or better to assure and confirm unto
Administrative Agent or permit Administrative Agent to exercise and enforce its
respective rights, powers and remedies hereunder with respect to any Pledged
Collateral. Without limiting the foregoing, each Pledgor shall make, execute,
endorse, acknowledge, file or refile and/or deliver to Administrative Agent from
time to time such lists, descriptions and designations of the Pledged
Collateral, copies of warehouse receipts, receipts in the nature of warehouse
receipts, bills of lading, documents of title, vouchers, invoices, schedules,
confirmatory assignments, supplements, additional security agreements,
conveyances, financing statements, transfer endorsements, powers of attorney,
certificates, reports and other assurances or instruments, as Administrative
Agent shall reasonably request. Administrative Agent may institute and maintain,
in its own name or in the name of any Pledgor, such suits and proceedings as
Administrative Agent may be advised by counsel shall be reasonably necessary or
expedient to prevent any impairment of the security interest in or perfection of
the Pledged Collateral. All of the foregoing shall be at the sole cost and
expense of the Pledgors.
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<PAGE>
(g) Use and Pledge of Pledged Collateral. Unless an Event of
Default shall have occurred and be continuing, Administrative Agent shall from
time to time execute and deliver, upon written request of any Pledgor and at the
sole cost and expense of the Pledgors, any and all instruments, certificates or
other documents, in a form reasonably requested by such Pledgor, necessary or
appropriate in the reasonable judgment of such Pledgor to enable such Pledgor to
continue to exploit, license, use, enjoy and protect the Pledged Collateral in
accordance with the terms of this Agreement. The Pledgors and Administrative
Agent acknowledge that this Agreement is intended to grant to Administrative
Agent for the benefit of the Secured Parties a security interest in and Lien
upon the Pledged Collateral and shall not constitute or create a present
assignment of any of the Pledged Collateral.
Section 6. Representations, Warranties and Covenants. Each Pledgor
represents, warrants and covenants as follows:
(a) Perfection Actions; Prior Liens. Upon the completion of the
deliveries, filings and other actions contemplated in Sections 5(a)
through 5(d) hereof, the security interest granted to Administrative
Agent for the benefit of the Secured Parties pursuant to this
Agreement in and to the Pledged Collateral will constitute a perfected
security interest therein, superior and prior to the rights of all
other Persons therein other than with respect to (i) the Liens
identified on Annex A relating to the items of Pledged Collateral
identified on such annex, (ii) with respect to General Collateral
acquired after the date hereof, Liens of the type described in clauses
(g), (h), (l), (n), (o), (p), (q), (r) and (u) of the definition of
Permitted Liens and (iii) Subordinate Liens (as hereinafter defined)
permitted hereunder which are created or authorized under any law or
regulation of any applicable Governmental Authority and which are
required under such law or regulation to be superior to the Lien and
security interest created and evidenced hereby (the Liens described in
this clause (iii), collectively, the "Governmental Prior Liens";
together with the Liens described in clauses (i) and (ii) above,
"Prior Liens").
D-16
<PAGE>
(b) No Liens. Such Pledgor is as of the date hereof, and, as to
Pledged Collateral acquired by it from time to time after the date
hereof, such Pledgor will be, the sole direct and beneficial owner of
all Pledged Collateral pledged by it hereunder free from any Lien or
other right, title or interest of any Person other than (i) Prior
Liens, (ii) the Lien and security interest created by this Agreement
and (iii) Subordinate Liens, and such Pledgor shall defend the Pledged
Collateral pledged by it hereunder against all claims and demands of
all Persons at any time claiming any interest therein adverse to
Administrative Agent or any Secured Party other than the holders of
such Liens. There is no agreement, and no Pledgor shall enter into any
agreement or take any other action, that would result in the
imposition of any other Lien, restrict the transferability of any of
the Pledged Collateral or otherwise impair or conflict with such
Pledgors' obligations or the rights of Administrative Agent hereunder
except to the extent permitted by Credit Documents.
"Subordinate Liens" shall mean (A) with respect to the General
Collateral, Liens of the type described in clauses (b), (c), (g), (h),
(k), (l), (m), (n), (o), (p), (q), (r), (s) and (u) of the definition
of Permitted Liens and (B) with respect to all other Pledged
Collateral, Liens of the type described in clause (b) of the
definition of Permitted Liens.
(c) Other Financing Statements. There is no financing statement
(or similar statement or instrument of registration under the law of
any jurisdiction) covering or purporting to cover any interest of any
kind in the Pledged Collateral other than financing statements
relating to (i) Prior Liens that do not constitute Governmental Prior
Liens, (ii) this Agreement and (iii) Subordinate Liens that do not
constitute Governmental Prior Liens, and so long as any of the Secured
Obligations remain unpaid or the Commitments of the Lenders to make
any Loan or to issue any Letter of Credit shall not have expired or
been sooner terminated, no Pledgor shall execute, authorize or permit
to be filed in any public office any financing statement (or similar
statement or instrument of registration under the law of any
jurisdiction) or statements relating to any Pledged Collateral,
except, in each case, financing statements filed or to be filed in
respect of and covering the security interests granted by such Pledgor
pursuant to this Agreement and financing statements relating to Prior
Liens or Subordinate Liens that in each such case do not constitute
Governmental Prior Liens.
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<PAGE>
(d) Chief Executive Office; Inventory, Equipment and Records. The
chief executive office and all Inventory and Equipment of such Pledgor
are located at the addresses indicated in the perfection certificate
of such Pledgor delivered in connection herewith. Such Pledgor shall
not move its chief executive office or move any Inventory or Equipment
to any location other than those listed on Annex B except to such new
location as such Pledgor may establish in accordance with the last
sentence of this Section 6(d). All tangible evidence of all
Receivables, Pension Plan Reversions, Contracts, Intangibles and
Insurance Policies of such Pledgor and the only original books of
account and records of such Pledgor relating thereto are, and will
continue to be, kept at such chief executive office, or at such new
location for such chief executive office as such Pledgor may establish
in accordance with the last sentence of this Section 6(d). All
Receivables, Pension Plan Reversions, Contracts, Intangibles and
Insurance Policies of such Pledgor are, and will continue to be,
controlled and monitored (including, without limitation, for general
accounting purposes) from such chief executive office location, or
such new location as such Pledgor may establish in accordance with the
last sentence of this Section 6(d). Such Pledgor shall not establish a
new location for its chief executive office, move any Inventory or
Equipment to any location other than those listed on Annex B or change
its name, identity or structure until (i) it shall have given
Administrative Agent not less than 30 days' prior written notice of
its intention so to do, clearly describing such new location or name
and providing such other information in connection therewith as
Administrative Agent may request, and (ii) with respect to such new
location or name, such Pledgor shall have taken all action
satisfactory to Administrative Agent to maintain the perfection and
priority of the security interest of Administrative Agent for the
benefit of the Secured Parties in the Pledged Collateral intended to
be granted hereby, including, without limitation, obtaining waivers of
landlord's or warehouseman's liens with respect to such new location,
if applicable.
(e) Due Authorization and Issuance. All of the Pledged Shares
have been, and to the extent hereafter issued will be upon such
issuance, duly authorized, validly issued and fully paid and
nonassessable. All of the Initial Pledged Interests have been fully
paid for, and there is no amount or other obligation due and owing by
any Pledgor to any issuer of the Initial Pledged Interests in exchange
for or in connection with the issuance of the Initial Pledged
Interests or any Pledgor's status as a partner or a member of any
issuer of the Initial Pledged Interests.
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<PAGE>
(f) No Violations, etc. The pledge of the Pledged Securities
pursuant to this Agreement does not violate Regulation T, U or X of
the Federal Reserve Board.
(g) No Options, Warrants, etc. There are no options, warrants,
calls, rights, commitments or agreements of any character to which
such Pledgor is a party or by which it is bound obligating such
Pledgor to issue, deliver or sell or cause to be issued, delivered or
sold, additional Pledged Securities or obligating such Pledgor to
grant, extend or enter into any such option, warrant, call, right,
commitment or agreement. There are no voting trusts or other
agreements or understandings to which such Pledgor is a party with
respect to the transfer, voting or exercise of any other right of the
equity interests of any issuer of the Pledged Securities.
(h) No Claims. Such Pledgor owns or has rights to use all the
Pledged Collateral pledged by it hereunder and all rights with respect
to any of the foregoing used in, necessary for or material to such
Pledgor's business as currently conducted and as contemplated to be
conducted pursuant to the Credit Documents. The use by such Pledgor of
such Pledged Collateral and all such rights with respect to the
foregoing do not infringe on the rights of any Person. No claim has
been made and remains outstanding that such Pledgor's use of any
Pledged Collateral does or may violate the rights of any third person.
(i) Authorization, Enforceability. Such Pledgor has the requisite
organizational power, authority and legal right to pledge and grant a
security interest in all the Pledged Collateral pledged by it pursuant
to this Agreement, and this Agreement constitutes the legal, valid and
binding obligation of such Pledgor, enforceable against such Pledgor
in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
(j) No Conflicts, Consents, etc. Neither the execution and
delivery of this Agreement by each Pledgor nor the consummation of the
transactions herein contemplated nor the fulfillment of the terms
hereof (i) violates any charter or by-laws or other organizational
document of such Pledgor or any issuer of Pledged Securities, (ii)
violates the terms of any agreement, indenture, mortgage, deed of
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trust, equipment lease, instrument or other document to which such
Pledgor is a party, or by which it may be bound or to which any of its
properties or assets may be subject, (iii) conflicts with any law,
order, rule or regulation applicable to any such Pledgor of any
Governmental Authority having jurisdiction over such Pledgor or its
property, or (iv) results in or requires the creation or imposition of
any Lien (other than the Lien contemplated hereby) upon or with
respect to any of the property now owned or hereafter acquired by such
Pledgor except with respect to each of the foregoing which is not
reasonably likely to have a Material Adverse Effect, or a material
adverse effect on the value of the Pledged Collateral or an adverse
effect on the security interests hereunder. No consent of any party
(including, without limitation, equityholders or creditors of such
Pledgor or any account debtor under a Receivable) and no consent,
authorization, approval, license or other action by, and no notice to
or filing with, any Governmental Authority or regulatory body or other
Person is required for (x) the pledge by such Pledgor of the Pledged
Collateral pledged by it pursuant to this Agreement or for the
execution, delivery or performance of this Agreement by such Pledgor,
(y) except as expressly recognized in Section 3 of this Agreement, the
exercise by Administrative Agent of the rights provided for in this
Agreement or (z) except as expressly recognized in Section 3 of this
Agreement, the exercise by Administrative Agent of the remedies in
respect of the Pledged Collateral pursuant to this Agreement.
(k) Pledged Collateral. All information set forth herein,
including the schedules and annexes attached hereto, and all
information contained in any documents, schedules and lists heretofore
delivered to any Secured Party in connection with this Agreement, in
each case, relating to the Pledged Collateral, is accurate and
complete in all material respects. The Pledged Collateral described on
the schedules attached hereto constitutes all of the property of such
type of Pledged Collateral owned or held by the Pledgors.
(l) Insurance. No Pledgor shall take any action that impairs the
rights of Administrative Agent or any Secured Party in the Pledged
Collateral. Each Pledgor shall at all times keep the Inventory and
Equipment insured, at such Pledgor's own expense, to Administrative
Agent's satisfaction against such risks to which the Pledged
Collateral may be subject, and in such amounts and with such
deductibles as would be maintained by operators of businesses similar
D-20
<PAGE>
to the business of such Pledgor or as Administrative Agent may
otherwise require. Each policy or certificate with respect to such
insurance shall be endorsed to Administrative Agent's satisfaction for
the benefit of Administrative Agent (including, without limitation, by
naming Administrative Agent as an additional named insured and loss
payee as Administrative Agent may request) and such policy or
certificate shall be delivered to Administrative Agent. Each such
policy shall state that it cannot be cancelled without 30 days' prior
written notice to Administrative Agent. At least 30 days prior to the
expiration of any such policy of insurance, each Pledgor shall deliver
to Administrative Agent an extension or renewal policy or an insurance
certificate evidencing renewal or extension of such policy. If any
Pledgor shall fail to insure such Pledged Collateral to Administrative
Agent's satisfaction, Administrative Agent shall have the right (but
shall be under no obligation) to advance funds to procure or renew or
extend such insurance, and such Pledgor agrees to reimburse
Administrative Agent for all costs and expenses thereof, with interest
on all such funds from the date advanced until paid in full at the
highest rate then in effect under the Credit Agreement.
(m) Insurance Proceeds. Any proceeds of insurance received by any
Pledgor shall be applied by it as provided in Section 2.10(a)(i) of
the Credit Agreement. In the event that any Pledgor is permitted to
and elects to apply such proceeds to the repair or replacement of any
item of Pledged Collateral, such Pledgor shall upon its receipt of
such proceeds from Administrative Agent promptly commence and
diligently continue to perform such repair or promptly effect such
replacement. Upon the occurrence and during the continuance of any
Event of Default, Administrative Agent shall have the option to apply
any proceeds of insurance received by any Pledgor in respect of the
Pledged Collateral toward the payment of the Secured Obligations in
accordance with Section 14 hereof or to continue to hold such proceeds
as additional collateral to secure the performance by the Pledgors of
the Secured Obligations.
D-21
<PAGE>
(n) Payment of Taxes; Compliance with Laws; Claims. Each Pledgor
shall pay prior to the date on which material penalties would attach
thereto all property and other taxes, assessments and governmental
charges or levies imposed upon, and all claims (including claims for
labor, materials and supplies) against, the Pledged Collateral. Each
Pledgor shall comply with all laws, rules and regulations applicable
to the Pledged Collateral the failure to comply with which would have
an adverse effect on the value or use of the Pledged Collateral or the
Lien on such Pledged Collateral granted to Administrative Agent
hereunder. Notwithstanding the foregoing, each Pledgor may at its own
expense contest the amount or applicability of any of the obligations
described in the preceding sentences by appropriate legal or
administrative proceedings, prosecution of which operates to prevent
the collection thereof and the sale or forfeiture of the Pledged
Collateral or any part thereof to satisfy the same; provided, however,
that in connection with such contest, such Pledgor shall (a) have made
provision for the payment of such contested amount on such Pledgor's
books if and to the extent required by generally accepted accounting
principles, and (b) at the option and upon the request of
Administrative Agent, have deposited with Administrative Agent a sum
sufficient to pay and discharge such obligation and Administrative
Agent's estimate of all interest and penalties related thereto, such
sum to be released as soon as all such obligations have been satisfied
or withdrawn.
(o) Upon reasonable request to such Pledgor, Administrative Agent
shall have full and free access during normal business hours to all of
the books, correspondence and records of such Pledgor relating to the
Pledged Collateral, and Administrative Agent and its representatives
may examine the same, take extracts therefrom and make photocopies
thereof, and such Pledgor agrees to render to Administrative Agent, at
such Pledgor's cost and expense, such clerical and other assistance as
may be reasonably requested by Administrative Agent with regard
thereto.
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<PAGE>
Section 7. Special Provisions Concerning General Collateral.
(a) Special Representations and Warranties. As of the time
when each of its Receivables arises, each Pledgor shall be deemed to
have represented and warranted that such Receivable and all records,
papers and documents relating thereto (i) are genuine and correct and
in all material respects what they purport to be, (ii) represent the
legal, valid and binding obligation of the account debtor, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability, evidencing indebtedness unpaid and owed by such
account debtor, arising out of the performance of labor or services or
the sale or lease and delivery of the merchandise listed therein or
out of an advance or a loan, not subject to the fulfillment of any
contract or condition whatsoever or to any defenses, set-offs or
counterclaims except with respect to refunds, returns and allowances
in the ordinary course of business, or stamp or other taxes, (iii)
will, in the case of a Receivable, except for the original or
duplicate original invoice sent to a purchaser evidencing such
purchaser's account, be the only original writings evidencing and
embodying such obligation of the account debtor named therein, and
(iv) are in compliance and conform with all applicable federal, state
and local laws and applicable laws of any relevant foreign
jurisdiction.
(b) Maintenance of Records. Each Pledgor shall keep and
maintain at its own cost and expense complete records of each
Receivable, in a manner consistent with prudent business practice,
including, without limitation, records of all payments received, all
credits granted thereon, all merchandise returned and all other
documentation relating thereto. Each Pledgor shall, at such Pledgor's
sole cost and expense, upon Administrative Agent's demand made at any
time after the occurrence and during the continuance of any Event of
Default, deliver all tangible evidence of Receivables, including,
without limitation, all documents evidencing Receivables and any books
and records relating thereto to Administrative Agent or to its
representatives (copies of which evidence and books and records may be
retained by such Pledgor). Upon the occurrence and during the
continuance of any Event of Default, Administrative Agent may transfer
a full and complete copy of any Pledgor's books, records, credit
information, reports, memoranda and all other writings relating to the
Receivables to and for the use by any Person that has acquired or is
contemplating acquisition of an interest in the Receivables or
Administrative Agent's security interest therein without the consent
of any Pledgor.
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<PAGE>
(c) Legend. Each Pledgor shall legend, at the request of
Administrative Agent made at any time after the occurrence of any
Event of Default and in form and manner satisfactory to Administrative
Agent, the Receivables and the other books, records and documents of
such Pledgor evidencing or pertaining to the Receivables with an
appropriate reference to the fact that the Receivables have been
assigned to Administrative Agent for the benefit of the Secured
Parties and that Administrative Agent has a security interest therein.
(d) Modification of Terms, etc. No Pledgor shall rescind or
cancel any indebtedness evidenced by any Receivable or modify any term
thereof or make any adjustment with respect thereto except in the
ordinary course of business consistent with prudent business practice,
or extend or renew any such indebtedness except in the ordinary course
of business consistent with prudent business practice or compromise or
settle any dispute, claim, suit or legal proceeding relating thereto
or sell any Receivable or interest therein without the prior written
consent of Administrative Agent except in the ordinary course of
business consistent with prudent business practice. Each Pledgor shall
timely fulfill all obligations on its part to be fulfilled under or in
connection with the Receivables.
(e) Collection. Each Pledgor shall cause to be collected
from the account debtor of each of the Receivables, as and when due
(including, without limitation, Receivables that are delinquent, such
Receivables to be collected in accordance with generally accepted
commercial collection procedures), any and all amounts owing under or
on account of such Receivable, and apply forthwith upon receipt
thereof all such amounts as are so collected to the outstanding
balance of such Receivable, except that any Pledgor may, with respect
to a Receivable, allow in the ordinary course of business (i) a refund
or credit due as a result of returned or damaged or defective
merchandise and (ii) such extensions of time to pay amounts due in
respect of Receivables and such other modifications of payment terms
D-24
<PAGE>
or settlements in respect of Receivables as shall be commercially
reasonable in the circumstances, all in accordance with such Pledgor's
ordinary course of business consistent with its collection practices
as in effect from time to time. The costs and expenses (including,
without limitation, attorneys' fees) of collection, in any case,
whether incurred by any Pledgor, Administrative Agent or any Secured
Party, shall be paid by the Pledgors.
(f) Instruments. Each Pledgor shall deliver to
Administrative Agent, within five days after receipt thereof by such
Pledgor, any Instrument evidencing Receivables which is in the
principal amount of $100,000 or more. Any Instrument delivered to
Administrative Agent pursuant to this Section 7(f) shall be
appropriately endorsed (if applicable) to the order of Administrative
Agent, as agent for the Secured Parties, and shall be held by
Administrative Agent as further security hereunder; provided, however,
that so long as no Default shall have occurred and be continuing,
Administrative Agent shall, promptly upon request of such Pledgor,
make appropriate arrangements for making any Instrument pledged by
such Pledgor available to such Pledgor for purposes of presentation,
collection or renewal (any such arrangement to be effected, to the
extent deemed appropriate by Administrative Agent, against trust
receipt or like document).
(g) Cash Collateral. Upon the occurrence and during the
continuance of any Event of Default, if Administrative Agent so
directs, each Pledgor shall cause all payments on account of the
Receivables to be held by Administrative Agent as cash collateral in
accordance with subsection 10(f) hereof. Without notice to or assent
by any Pledgor, Administrative Agent may apply any or all amounts then
or thereafter held as cash collateral in the manner provided in
Section 12. The costs and expenses (including, without limitation,
reasonable attorneys' fees) of collection, whether incurred by
Administrative Agent or any Secured Party, shall be paid by the
Pledgors.
(h) Maintenance of Equipment. Each Pledgor shall cause the
Equipment to be maintained and preserved in the same condition, repair
and working order as when new, ordinary wear and tear excepted, and to
the extent consistent with current business practice in accordance
with any manufacturer's manual, and, subject as set forth in Section
2.10(i) of the Credit Agreement, shall forthwith, or in the case of
any loss or damage which (individually or in the aggregate) exceeds
$100,000 to any of the Equipment (of which prompt notice shall be
given to Administrative Agent) as quickly as commercially practicable
after the occurrence thereof, make or cause to be made all repairs,
replacements and other improvements in connection therewith which are
necessary or desirable in the conduct of such Pledgor's business.
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<PAGE>
(i) Warehouse Receipts Non-Negotiable. If any warehouse
receipt or receipt in the nature of a warehouse receipt is issued with
respect to any of the Inventory, the applicable Pledgor shall not
permit such warehouse receipt or receipt in the nature thereof to be
"negotiable" (as such term is used in Section 7-104 of the UCC or
under other relevant law).
(j) Consents to Assignment of Contracts. To the extent that
any contract or other agreement of any Pledgor would constitute a
Contract hereunder but for the exclusions contained in clauses (i) and
(ii) of the definition of "Contracts" hereunder, such Pledgor shall in
good faith use its reasonable efforts to cause the counterparty
thereto to deliver the consent contemplated in clause (ii) of such
definition.
(k) Fair Labor Standards Act. Any goods now or hereafter
produced by each Pledgor included in the Pledged Collateral have been
and will be produced in substantial compliance with the requirements
of the Fair Labor Standards Act of 1938, as amended.
Section 8. Special Provisions Concerning Securities Collateral.
(a) Pledge of Additional Securities. Each Pledgor shall,
upon obtaining any Pledged Securities or Intercompany Notes of any
Person, accept the same in trust for the benefit of Administrative
Agent and promptly (and in any event within five Business Days)
deliver to Administrative Agent a pledge amendment, duly executed by
such Pledgor, in substantially the form of Exhibit 3 hereto (each, a
"Pledge Amendment"), and the certificates and other documents required
under subsections 5(a) and 5(b) in respect of the additional Pledged
Securities or Intercompany Notes which are to be pledged pursuant to
this Agreement, and confirming the attachment of the Lien hereby
created on and in respect of such additional property. Each Pledgor
hereby authorizes Administrative Agent to attach each Pledge Amendment
to this Agreement and agrees that all Pledged Securities or
Intercompany Notes listed on any Pledge Amendment delivered to
Administrative Agent shall for all purposes hereunder be considered
Pledged Collateral.
(b) Voting Rights; Distributions; etc.
(i) So long as no Event of Default shall have occurred and
be continuing:
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<PAGE>
(A) Each Pledgor shall be entitled to exercise any and
all voting and other consensual rights pertaining to the
Securities Collateral or any part thereof for any purpose
not inconsistent with the terms or purposes of this
Agreement or any other Credit Document; provided, however,
that no Pledgor shall in any event exercise such rights in
any manner which may reasonably be expected to have an
adverse effect on the value of the Pledged Collateral or an
adverse effect on the security intended to be provided by
this Agreement.
(B) Each Pledgor shall be entitled to receive and
retain, and to utilize free and clear of the Lien of this
Agreement, any and all Distributions, but only if and to the
extent made in accordance with the provisions of the Credit
Agreement; provided, however, that any and all such
Distributions consisting of rights or interests in the form
of securities shall be forthwith delivered to Administrative
Agent to hold as Pledged Collateral and shall, if received
by any Pledgor, be received in trust for the benefit of
Administrative Agent, be segregated from the other property
or funds of such Pledgor and be forthwith delivered to
Administrative Agent as Pledged Collateral in the same form
as so received (with any necessary endorsement).
(C) Administrative Agent shall be deemed without
further action or formality to have granted to each Pledgor
all necessary consents relating to voting rights and shall,
if necessary, upon written request of any Pledgor and at the
sole cost and expense of the Pledgors, from time to time
execute and deliver (or cause to be executed and delivered)
to such Pledgor all such instruments as such Pledgor may
reasonably request in order to permit such Pledgor to
exercise the voting and other rights which it is entitled to
exercise pursuant to Section 8(b)(i)(A) hereof and to
receive the Distributions which it is authorized to receive
and retain pursuant to Section 8(b)(i)(B) hereof.
(ii) Upon the occurrence and during the continuance of any
Event of Default and except as expressly recognized in Section 3
of this Agreement:
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<PAGE>
(A) All rights of each Pledgor to exercise the voting
and other consensual rights it would otherwise be entitled to
exercise pursuant to Section 8(b)(i)(A) hereof without any
action or the giving of any notice shall cease, and all such
rights shall thereupon become vested in Administrative Agent,
which shall thereupon have the sole right to exercise such
voting and other consensual rights.
(B) All rights of each Pledgor to receive
Distributions which it would otherwise be authorized to
receive and retain pursuant to Section 8(b)(i)(B) hereof shall
cease and all such rights shall thereupon become vested in
Administrative Agent, which shall thereupon have the sole
right to receive and hold as Pledged Collateral such
Distributions.
(iii) Each Pledgor shall, at its sole cost and expense, from
time to time execute and deliver to Administrative Agent
appropriate instruments as Administrative Agent may reasonably
request in order to permit Administrative Agent to exercise the
voting and other rights which it may be entitled to exercise
pursuant to Section 8(b)(ii)(A) hereof and to receive all
Distributions which it may be entitled to receive under Section
8(b)(ii)(B) hereof.
(iv) All Distributions which are received by any Pledgor
contrary to the provisions of Section 8(b)(ii)(B) hereof shall be
received in trust for the benefit of Administrative Agent, shall
be segregated from other funds of such Pledgor and shall
immediately be paid over to Administrative Agent as Pledged
Collateral in the same form as so received (with any necessary
endorsement).
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<PAGE>
(c) No New Securities. Each Pledgor shall cause each issuer of
the Pledged Securities not to issue any stock or other securities or equity
interests in addition to or in substitution for the Pledged Securities issued by
such issuer, except to Pledgor.
(d) Operative Agreements. Each Pledgor has delivered to
Administrative Agent true, correct and complete copies of the Operative
Agreements. The Operative Agreements are in full force and effect, have not as
of the date hereof been amended or modified, and, to such Pledgor's knowledge,
there is no existing default by any party thereunder or any event which, with
the giving of notice or passage of time or both, would constitute a default by
any party thereunder. Each Pledgor shall deliver to Administrative Agent a copy
of any notice of default given or received by it under any Operative Agreement
within ten (10) days after such Pledgor gives or receives such notice. No
Pledgor will terminate or agree to terminate any Operative Agreement or make any
amendment or modification to any Operative Agreement which may reasonably be
expected to have a material adverse effect on the value of the Pledged Interests
or an adverse effect on the security intended to be provided by this Agreement.
(e) Defaults, etc. Such Pledgor is not in default in the payment
of any portion of any mandatory capital contribution, if any, required to be
made under any agreement to which such Pledgor is a party relating to the
Pledged Securities pledged by it, and such Pledgor is not in violation of any
other material provisions of any such agreement to which such Pledgor is a
party, or otherwise in default or violation thereunder. No Pledged Securities
pledged by such Pledgor is subject to any defense, offset or counterclaim, nor
have any of the foregoing been asserted or alleged against such Pledgor by any
Person with respect thereto, and as of the date hereof, there are no
certificates, instruments, documents or other writings (other than the Operative
Agreements and certificates, if any, delivered to Administrative Agent) which
evidence any Pledged Securities of such Debtor.
D-29
<PAGE>
Section 9. Special Provisions Concerning Intellectual Property
Collateral.
(a) Grant of License. For the purpose of enabling Administrative
Agent, during the continuance of an Event of Default, to exercise rights and
remedies under Section 13 hereof at such time as Administrative Agent shall be
lawfully entitled to exercise such rights and remedies, and for no other
purpose, each Pledgor hereby grants to Administrative Agent, to the extent
assignable, an irrevocable, non-exclusive license (exercisable without payment
of royalty or other compensation to such Pledgor) to use, assign, license or
sublicense any of the Intellectual Property Collateral now owned or hereafter
acquired by such Pledgor, wherever the same may be located, including in such
license reasonable access to all media in which any of the licensed items may be
recorded or stored and to all computer programs used for the compilation or
printout hereof.
(b) Registrations. Except pursuant to licenses and other user
agreements entered into by any Pledgor in the ordinary course of business, that
are listed in Schedule VI hereto, on and as of the date hereof (i) each Pledgor
owns and possesses the right to use, and has done nothing to authorize or enable
any other Person to use, any Copyright, Patent or Trademark listed in said
Schedules III, IV and V, and (ii) all registrations listed in said Schedules
III, IV and V are valid and in full force and effect.
(c) No Violations or Proceedings. To each Pledgor's knowledge, on
and as of the date hereof, (i) except as set forth in Schedule VI hereto, there
is no violation by others of any right of such Pledgor with respect to any
Copyright, Patent or Trademark listed in Schedules III, IV and V hereto,
respectively, pledged by it under the name of such Pledgor, (ii) such Pledgor is
not infringing in any material respect upon any Copyright, Patent or Trademark
of any other Person and (iii) no proceedings have been instituted or are pending
against such Pledgor or, to such Pledgor's knowledge, threatened, and no claim
against such Pledgor has been received by such Pledgor, alleging any such
violation, except as may be set forth in said Schedule VI.
D-30
<PAGE>
(d) Protection of Administrative Agent's Security. On a
continuing basis, each Pledgor shall, at its sole cost and expense, (i) promptly
following its becoming aware thereof, notify Administrative Agent of (A) any
adverse determination in any proceeding in the United States Patent and
Trademark Office or the United States Copyright Office with respect to any
Patent, Trademark or Copyright or (B) the institution of any proceeding or any
adverse determination in any federal, state or local court or administrative
body regarding such Pledgor's claim of ownership in or right to use any of the
Intellectual Property Collateral, its right to register the Intellectual
Property Collateral or its right to keep and maintain such registration in full
force and effect, (ii) maintain and protect the Intellectual Property Collateral
necessary for the operation of such Pledgor's business, (iii) not permit to
lapse or become abandoned any Intellectual Property Collateral necessary for the
operation of such Pledgor's business, and not settle or compromise any pending
or future litigation or administrative proceeding with respect to the
Intellectual Property Collateral necessary for the operation of such Pledgor's
business, in each case, without the consent of Administrative Agent, (iv) upon
such Pledgor obtaining knowledge thereof, promptly notify Administrative Agent
in writing of any event which may reasonably be expected to materially adversely
affect the value or utility of the Intellectual Property Collateral or any
portion thereof necessary for the operation of such Pledgor's business, the
ability of such Pledgor or Administrative Agent to dispose of the Intellectual
Property Collateral or any portion thereof or the rights and remedies of
Administrative Agent in relation thereto, including, without limitation, a levy
or threat of levy or any legal process against the Intellectual Property
Collateral or any portion thereof, (v) not license the Intellectual Property
Collateral other than licenses entered into by such Pledgor in, or incidental
to, the ordinary course of business, or amend or permit the amendment of any of
the licenses in a manner that materially adversely affects the right to receive
payments thereunder, or in any manner that would materially impair the value of
the Intellectual Property Collateral or the Lien on the Intellectual Property
Collateral intended to be granted to Administrative Agent for the benefit of the
Secured Parties, without the consent of Administrative Agent, (vi) until
Administrative Agent exercises its rights to make collection, diligently keep
adequate records respecting the Intellectual Property Collateral and (vii)
furnish to Administrative Agent from time to time statements and amended
schedules further identifying and describing the Intellectual Property
Collateral and such other materials evidencing or reports pertaining to the
Intellectual Property Collateral as Administrative Agent may from time to time
reasonably request, all in reasonable detail.
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<PAGE>
(e) After-Acquired Property. If any Pledgor shall, at any time
before the Secured Obligations have been paid or the Commitments of the Lenders
to make any Loan or to issue any Letter of Credit have expired or been sooner
terminated (i) obtain any rights to any additional Intellectual Property
Collateral or (ii) become entitled to the benefit of any additional Intellectual
Property Collateral or any renewal or extension thereof, including any reissue,
division, continuation, or continuation-in-part of any Patent, or any
improvement on any Patent, the provisions of this Agreement shall automatically
apply thereto and any such item enumerated in clause (i) or (ii) with respect to
such Pledgor shall automatically constitute Intellectual Property Collateral if
such would have constituted Intellectual Property Collateral at the time of
execution of this Agreement and be subject to the Lien created by this Agreement
without further action by any party other than actions required to perfect such
Lien. Each Pledgor shall promptly provide to Administrative Agent written notice
of any of the foregoing. Each Pledgor agrees, promptly following a request by
Administrative Agent, to confirm the attachment of the Lien created by this
Agreement to any rights described in clauses (i) and (ii) above if such would
have constituted Intellectual Property Collateral at the time of execution of
this Agreement by execution of an instrument in form reasonably acceptable to
Administrative Agent.
(f) Modifications. Each Pledgor authorizes Administrative Agent
to modify this Agreement by amending Schedules III, IV, V and VI hereto to
include any future Intellectual Property Collateral of such Pledgor, including,
without limitation, any of the items listed in Section 8(e).
(g) Applications. Each Pledgor shall file and prosecute
diligently all applications for the Patents, the Trademarks or the Copyrights
now or hereafter pending that would be necessary to the business of such Pledgor
to which any such applications pertain, and shall do all acts necessary to
preserve and maintain all rights in the Intellectual Property Collateral
necessary for the operation of such Pledgor's business. Any and all costs and
expenses incurred in connection with any such actions shall be borne by the
Pledgors. No Pledgor shall abandon any right to file a Patent, Trademark or
Copyright application, or any pending Patent, Trademark or Copyright application
or any Patent, Trademark or Copyright necessary for the operation of such
Pledgor's business without the consent of Administrative Agent.
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<PAGE>
(h) Litigation.
(i) Unless there shall occur and be continuing any Event of
Default, each Pledgor shall have the right to commence and prosecute in its own
name, as the party in interest, for its own benefit and at the sole cost and
expense of the Pledgors, such applications for protection of the Intellectual
Property Collateral and suits, proceedings or other actions for infringement,
counterfeiting, unfair competition, dilution or other damage as are in its
reasonable business judgment necessary to protect the Intellectual Property
Collateral. Each Pledgor shall promptly notify Administrative Agent in writing
as to the commencement and prosecution of any such actions, or threat thereof
(except where such action is not reasonably likely to have a Material Adverse
Effect) relating to the Intellectual Property Collateral, and shall provide to
Administrative Agent such information with respect thereto as may be reasonably
requested by Administrative Agent. Each Pledgor shall indemnify and hold
harmless each Secured Party for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, expenses or disbursements
(including attorneys' fees and expenses) of any kind whatsoever which may be
imposed on, incurred by or asserted against such Secured Party in connection
with or in any way arising out of such suits, proceedings or other actions.
(ii) Upon the occurrence and during the continuance of any Event
of Default, Administrative Agent shall have the right but shall in no way be
obligated to file applications for protection of the Intellectual Property
Collateral and/or bring suit in the name of any Pledgor, Administrative Agent or
the Secured Parties to enforce the Intellectual Property Collateral and any
license thereunder. In the event of such suit, each Pledgor shall, at the
request of Administrative Agent, do any and all lawful acts and execute any and
all documents requested by Administrative Agent in aid of such enforcement and
the Pledgors shall promptly, upon demand, reimburse and indemnify Administrative
Agent, as the case may be, for all costs and expenses (including fees and
expenses of counsel) incurred by Administrative Agent in the exercise of its
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rights under this Section 8(h). In the event that Administrative Agent shall
elect not to bring suit to enforce the Intellectual Property Collateral, each
Pledgor agrees, at the request of Administrative Agent, to use all reasonable
measures, whether by action, suit, proceeding or otherwise, to prevent the
infringement, counterfeiting or other diminution in value of any of the
Intellectual Property Collateral by others and for that purpose agrees to
diligently maintain any action, suit or proceeding against any person so
infringing necessary to prevent such infringement unless such Pledgor has
determined that such Intellectual Property Collateral that is the subject of any
pending or contemplated infringement or enforcement action or proceeding does
not contain or represent any value or utility (other than of an immaterial
nature), consistent with prudent business practice.
Section 10. Special Provisions Concerning Financial Accounts. Each
Pledgor shall comply with the following covenants and makes the following
representations and warranties.
(a) Financial Accounts. Each Pledgor shall notify each Financial
Intermediary that any Financial Account Collateral maintained with such
Financial Intermediary by such Pledgor is under the exclusive dominion and
control of Administrative Agent and that all moneys, instruments, securities and
other property deposited with such Financial Intermediary are to be held by such
Financial Intermediary for the benefit of Administrative Agent. Each Pledgor
shall, within one Business Day of actual receipt thereof, deposit any payment
received by it into a financial account that is subject to a financial account
consent agreement substantially in the form of Exhibit 2 hereto or into the
Concentration Account referred to in subsection (b) below. In addition, all
Persons that owe money to any Pledgor shall be directed to remit their payments
to a financial account that is subject to a financial account consent agreement
substantially in the form of Exhibit 2 hereto. If any Pledgor is unable to
obtain such an agreement from any Financial Intermediary, then such Pledgor
shall terminate all financial accounts maintained with such Financial
Intermediary and transfer all moneys, instruments, securities and other property
deposited therein to another financial account maintained with a Financial
Intermediary that has executed such an agreement. Each Pledgor hereby represents
and warrants that it does not now maintain, and will not in the future maintain,
any other financial account with any Financial Intermediary or any other banking
or financial institution other than the accounts set forth on Schedule VII;
provided, however, that any Pledgor may establish and maintain additional
financial accounts with any Financial Intermediary or any new Financial
Intermediary if (i) in the case of an existing Financial Intermediary, such
Pledgor, the Financial Intermediary and Administrative Agent shall have entered
into an amendment to the relevant financial account consent letter to include
D-34
<PAGE>
such new financial account under such financial account consent letter, such
amendment to be in form and substance satisfactory to Administrative Agent, and
(ii) in the case of a new Financial Intermediary, (A) the applicable Pledgor
shall have given Administrative Agent 30 days' prior written notice of its
intention to establish a new financial account with a new Financial
Intermediary, (B) such new Financial Intermediary shall be reasonably acceptable
to Administrative Agent and (C) such new Financial Intermediary shall enter into
a financial account consent agreement substantially in the form of Exhibit 2
hereto.
(b) Concentration Account. The Pledgors will establish a
concentration account or sub-account (the "Concentration Account") with
Administrative Agent into which all Financial Account Collateral of the Pledgors
in excess of $1.0 million in the aggregate shall be deposited by 12:00 p.m. New
York time on each Business Day, subject to the provisions of subsection (c)
below. Each Pledgor hereby agrees that the Concentration Account is under the
exclusive dominion and control of Administrative Agent and all moneys,
instruments, securities and other property received in the Concentration Account
are to be held for the benefit of Administrative Agent on behalf of the Secured
Parties. Each Pledgor hereby transfers to Administrative Agent the exclusive
dominion and control over the Concentration Account. Notwithstanding the
foregoing, Administrative Agent shall be permitted to designate a Lender that
agrees to be a collateral sub-agent for Administrative Agent to be the Financial
Intermediary for the Concentration Account.
(c) Dispositions from Concentration Account. Until an Event of
Default shall have occurred and be continuing, each Pledgor is hereby authorized
by Administrative Agent to direct on any Business Day the disposition into one
or more financial accounts that is subject to a financial account consent
agreement substantially in the form of Exhibit 2 hereto any and all moneys,
instruments, securities and other property deposited in the Concentration
Account for use by such Pledgor in a manner permitted by the Credit Agreement.
Administrative Agent shall make such disposition by 2:00 p.m. New York time on
each such date.
(d) Revocation of Withdrawal Right. Upon the occurrence and
during the continuance of any Event of Default, the authorization of the
Pledgors under subsection (c) above shall be revoked and all deposits maintained
in the Concentration Account or with a Financial Intermediary, and any
additional moneys, instruments, securities and other property subsequently
maintained with a Financial Intermediary, shall, at the request of the
Administrative Agent, be transferred to a collateral account or sub-account
maintained by Administrative Agent (or a Lender that agrees to be a collateral
sub-agent for Administrative Agent) in its name as collateral agent for the
Secured Parties (the "Collateral Account"). All such deposits in any such
Collateral Account shall constitute "Pledged Collateral" for all purposes of
this Agreement and shall be held by Administrative Agent as Pledged Collateral
for the Secured Obligations or applied to the payment of the Secured Obligations
in accordance with Section 14 of this Agreement. The costs and expenses
(including attorney's fees) of collection, whether incurred by any Pledgor or
Administrative Agent (or any sub-agent), shall be borne by the Pledgors.
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(e) Deposits to Collateral Account. Each Pledgor shall deposit
into the Collateral Account from time to time (i) the cash proceeds (including
pursuant to any disposition thereof) of any of the Pledged Collateral, (ii) the
cash proceeds of any Taking or Destruction or loss of title with respect to any
Real Property that is subject to a Mortgage (including proceeds of casualty
events and proceeds of insurance covering the Pledged Collateral or any Real
Property that is subject to a Mortgage), (iii) any cash in respect of any
Pledged Collateral which the Administrative Agent is entitled to pursuant to
subsection 7(g) or subsection 8(b)(ii) hereof and (iv) any additional amounts
that such Pledgor desires to pledge to Administrative Agent for the benefit of
the Secured Parties as additional collateral security hereunder or which such
Pledgor is required to pledge as additional collateral security hereunder
pursuant to the Credit Documents.
(f) Application of Amounts in Collateral Account. The balance
from time to time in the Collateral Account shall constitute part of the Pledged
Collateral hereunder and shall not constitute payment of the Secured Obligations
until applied as hereinafter provided. So long as no Event of Default has
occurred and is continuing or will result therefrom, Administrative Agent shall
remit the collected balance outstanding to the credit of the Collateral Account
to or upon the order of the respective Pledgor, in periodic installments, if
applicable, upon submission of reasonable evidence that such amount is to be
applied as permitted by Section 2.10(a) of the Credit Agreement; provided that
any amounts deposited in the Collateral Account in respect of prepayments or
reductions of Loans or Commitments under Section 2.10(a) of the Credit Agreement
which are to be applied to LIBOR Loans as provided in the penultimate sentence
of Section 2.10(b) of the Credit Agreement shall be held by Administrative Agent
until the end of the respective Interest Periods of such LIBOR Loans at which
time, whether or not an Event of Default has occurred, Administrative Agent
shall cause such monies to be applied to such LIBOR Loans. However, at any time
following the occurrence and during the continuance of an Event of Default,
Administrative Agent may (and, if instructed by the Lenders as specified in the
Credit Agreement, shall) in its (or their) discretion apply or cause to be
applied (subject to collection) the balance from time to time outstanding to the
credit of the Collateral Account to the payment of the Secured Obligations in
the manner specified in Section 14 hereof. The balance from time to time in the
Collateral Account shall be subject to withdrawal only as provided herein.
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(g) Investment of Balance in Collateral Account. Amounts on
deposit in the Collateral Account shall be invested from time to time in such
Permitted Investments as the respective Pledgor (or, after the occurrence and
during the continuance of an Event of Default, Administrative Agent) shall
determine, which Permitted Investments shall be held in the name and be under
the control of Administrative Agent (or any sub-agent); provided, however, that
at any time after the occurrence and during the continuance of an Event of
Default, Administrative Agent may (and, if instructed by the Lenders as
specified in the Credit Agreement, shall) in its (or their) discretion at any
time and from time to time elect to liquidate any such Permitted Investments and
to apply or cause to be applied the proceeds thereof to the payment of the
Secured Obligations in the manner specified in Section 14 hereof.
(h) Cover for Letter of Credit Liabilities. Amounts deposited
into the Collateral Account as cover for liabilities in respect of Letters of
Credit under the Credit Agreement pursuant to Section 11 thereof shall be held
by Administrative Agent in a separate sub-account (designated "Letter of Credit
Liabilities Sub-Account") and, notwithstanding any other provision of this
Agreement to the contrary, all amounts held in such sub-account shall constitute
collateral security first for the liabilities in respect of Letters of Credit
outstanding from time to time and second as collateral security for the other
Secured Obligations hereunder until such time as all Letters of Credit shall
have been terminated and all of the liabilities in respect of Letters of Credit
have been paid in full.
Section 11. Transfers and Other Liens. No Pledgor shall (a) sell,
convey, assign or otherwise dispose of, or grant any option with respect to, any
of the Pledged Collateral pledged by it hereunder except as permitted by the
Credit Agreement, (b) create or permit to exist any Lien upon or with respect to
any of the Pledged Collateral pledged by it hereunder other than (i) Prior
Liens, (ii) the Lien and security interest granted to Administrative Agent under
this Agreement and (iii) Subordinate Liens or (c) except to the extent otherwise
permitted under the Credit Agreement, permit any issuer of the Pledged
Securities to merge, consolidate or change its legal form, unless all of the
outstanding equity interests of the surviving or resulting entity are, upon such
merger or consolidation, pledged hereunder and no cash, securities or other
property is distributed in respect of the outstanding equity interests of any
other entity that was merged into or consolidated with such issuer.
Section 12. Reasonable Care. Administrative Agent shall be deemed to
have exercised reasonable care in the custody and preservation of the Pledged
Collateral in its possession if such Pledged Collateral is accorded treatment
substantially equivalent to that which Administrative Agent, in its individual
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capacity, accords its own property consisting of similar instruments or
interests, it being understood that neither Administrative Agent nor any of the
Secured Parties shall have responsibility for (i) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relating to any Securities Collateral, whether or not Administrative
Agent or any other Secured Party has or is deemed to have knowledge of such
matters, or (ii) taking any necessary steps to preserve rights against any
Person with respect to any Pledged Collateral.
Section 13. Remedies upon Default; Obtaining the Pledged Collateral
upon Event of Default. (a) If any Event of Default shall have occurred and be
continuing, then and in every such case, Administrative Agent may:
(i) Personally, or by agents or attorneys, immediately take possession
of the Pledged Collateral or any part thereof, from any Pledgor or any
other Person who then has possession of any part thereof with or without
notice or process of law, and for that purpose may enter upon any Pledgor's
premises where any of the Pledged Collateral is located, remove such
Pledged Collateral, remain present at such premises to receive copies of
all communications and remittances relating to the Pledged Collateral and
use in connection with such removal and possession any and all services,
supplies, aids and other facilities of any Pledgor;
(ii) Demand, sue for, collect or receive any money or property at any
time payable or receivable in respect of the Pledged Collateral, including,
without limitation, instructing the obligor or obligors on any agreement,
instrument or other obligation (including, without limitation, the
Receivables and Contracts) constituting part of the Pledged Collateral to
make any payment required by the terms of such instrument or agreement
directly to Administrative Agent, and in connection with any of the
foregoing, compromising, settling, extending the time for payment and
making other modifications with respect thereto; provided, however, that in
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the event that any such payments are made directly to any Pledgor, prior to
receipt by any such obligor of such instruction, such Pledgor shall
segregate all amounts received pursuant thereto in a separate account and
pay the same promptly to Administrative Agent;
(iii) Sell, assign or otherwise liquidate, or direct any Pledgor to
sell, assign or otherwise liquidate, any or all investments made in whole
or in part with the Pledged Collateral or any part thereof, and take
possession of the proceeds of any such sale, assignment or liquidation;
(iv) Take possession of the Pledged Collateral or any part thereof, by
directing any Pledgor in writing to deliver the same to Administrative
Agent at any place or places so designated by Administrative Agent, in
which event such Pledgor shall at its own expense: (A) forthwith cause the
same to be moved to the place or places designated by Administrative Agent
and there delivered to Administrative Agent, (B) store and keep any Pledged
Collateral so delivered to Administrative Agent at such place or places
pending further action by Administrative Agent; and (C) while the Pledged
Collateral shall be so stored and kept, provide such security and
maintenance services as shall be necessary to protect the same and to
preserve and maintain them in good condition. Each Pledgor's obligation to
deliver the Pledged Collateral is of the essence of this Agreement;
(v) Withdraw all moneys, instruments, securities and other property in
any financial account of any Pledgor for application to the Secured
Obligations as provided in Section 14 hereof;
(vi) Retain and apply the Distributions to the Secured Obligations as
provided in Section 14 hereof; and
(vii) Exercise any and all rights as beneficial and legal owner of the
Pledged Collateral, including, without limitation, perfecting assignment of
and exercising any and all voting, consensual and other rights and powers
with respect to any Pledged Collateral.
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Upon application to a court of equity having jurisdiction,
Administrative Agent shall be entitled to a decree requiring specific
performance by any Pledgor of such obligation.
(b) Remedies; Disposition of the Pledged Collateral.
(i) Upon the occurrence and during the continuance of any Event of
Default, Administrative Agent may from time to time exercise in respect of
the Pledged Collateral, in addition to the other rights and remedies
provided for herein or otherwise available to it, all the rights and
remedies of a secured party on default under the UCC, and Administrative
Agent may also in its sole discretion, without notice except as specified
below, sell, assign or grant a license to use the Pledged Collateral or any
part thereof in one or more parcels at public or private sale, at any
exchange, broker's board or at any of Administrative Agent's offices or
elsewhere, for cash, on credit or for future delivery, and at such price or
prices and upon such other terms as Administrative Agent may deem
commercially reasonable. Administrative Agent or any other Secured Party or
any of their respective Affiliates may be the purchaser, licensee, assignee
or recipient of any or all of the Pledged Collateral at any such sale and
shall be entitled, for the purpose of bidding and making settlement or
payment of the purchase price for all or any portion of the Pledged
Collateral sold, assigned or licensed at such sale, to use and apply any of
the Secured Obligations owed to such Person as a credit on account of the
purchase price of any Pledged Collateral payable by such Person at such
sale. Each purchaser, assignee, licensee or recipient at any such sale
shall acquire the property sold, assigned or licensed absolutely free from
any claim or right on the part of any Pledgor, and each Pledgor hereby
waives, to the fullest extent permitted by law, all rights of redemption,
stay and/or appraisal which it now has or may at any time in the future
have under any rule of law or statute now existing or hereafter enacted.
Administrative Agent shall not be obligated to make any sale of Pledged
Collateral regardless of notice of sale having been given. Administrative
Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. Each Pledgor hereby waives, to the fullest extent permitted by
law, any claims against Administrative Agent arising by reason of the fact
that the price at which any Pledged Collateral may have been sold, assigned
or licensed at such a private sale was less than the price which might have
been obtained at a public sale, even if Administrative Agent accepts the
first offer received and does not offer such Pledged Collateral to more
than one offeree.
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(ii) Each Pledgor acknowledges and agrees that, to the extent notice
of sale shall be required by law, ten days' notice to such Pledgor of the
time and place of any public sale or of the time after which any private
sale or other intended disposition is to take place shall be commercially
reasonable notification of such matters. No notification need be given to
any Pledgor if it has signed, after the occurrence of an Event of Default,
a statement renouncing or modifying any right to notification of sale or
other intended disposition.
(iii) Notwithstanding anything contained to the contrary herein,
Administrative Agent hereby agrees that, consistent with the provisions of
Section 22.937(f) of the FCC's Rules (47 C.F.R. 22.937(f)), and to the
extent then required by such rule or any successor regulation,
Administrative Agent shall provide the applicable Pledgor and the FCC with
at least ten (10) days prior written notification before any Pledged
Collateral constituting equipment utilized in any cellular system operated
by a Pledgor will be repossessed.
(c) Waiver of Notice and Claims. Each Pledgor hereby waives, to
the fullest extent permitted by applicable law, notice or judicial hearing in
connection with Administrative Agent's taking possession or Administrative
Agent's disposition of any of the Pledged Collateral, including, without
limitation, any and all prior notice and hearing for any prejudgment remedy or
remedies and any such right which such Pledgor would otherwise have under law,
and each Pledgor hereby further waives, to the fullest extent permitted by
applicable law: (i) all damages occasioned by such taking of possession, (ii)
all other requirements as to the time, place and terms of sale or other
requirements with respect to the enforcement of Administrative Agent's rights
hereunder, and (iii) all rights of redemption, appraisal, valuation, stay,
extension or moratorium now or hereafter in force under any applicable law.
Administrative Agent shall not be liable for any incorrect or improper payment
made pursuant to this Section 13 in the absence of gross negligence or willful
misconduct. Any sale of, or the grant of options to purchase, or any other
realization upon, any Pledged Collateral shall operate to divest all right,
title, interest, claim and demand, either at law or in equity, of the applicable
Pledgor therein and thereto, and shall be a perpetual bar both at law and in
equity against such Pledgor and against any and all Persons claiming or
attempting to claim the Pledged Collateral so sold, optioned or realized upon,
or any part thereof, from, through or under such Pledgor.
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(d) Certain Sales of Pledged Collateral. Each Pledgor recognizes
that, by reason of certain prohibitions contained in law, rules, regulations or
orders of any foreign Governmental Authority, Administrative Agent may be
compelled, with respect to any sale of all or any part of the Pledged
Collateral, to limit purchasers to those who meet the requirements of such
foreign Governmental Authority. Each Pledgor acknowledges that any such sales
may be at prices and on terms less favorable to Administrative Agent than those
obtainable through a public sale without such restrictions, and, notwithstanding
such circumstances, agrees that any such restricted sale shall be deemed to have
been made in a commercially reasonable manner and that, except as may be
required by applicable law, Administrative Agent shall have no obligation to
engage in public sales.
(e) Each Pledgor recognizes that, by reason of certain
prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act"), and applicable state securities laws, Administrative Agent
may be compelled, with respect to any sale of all or any part of the Securities
Collateral, to limit purchasers to Persons who will agree, among other things,
to acquire such Securities Collateral for their own account, for investment and
not with a view to the distribution or resale thereof. Each Pledgor acknowledges
that any such private sales may be at prices and on terms less favorable to
Administrative Agent than those obtainable through a public sale without such
restrictions (including, without limitation, a public offering made pursuant to
a registration statement under the Securities Act), and, notwithstanding such
circumstances, agrees that any such private sale shall be deemed to have been
made in a commercially reasonable manner and that Administrative Agent shall
have no obligation to engage in public sales and no obligation to delay the sale
of any Securities Collateral for the period of time necessary to permit the
issuer thereof to register it for a form of public sale requiring registration
under the Securities Act or under applicable state securities laws, even if such
issuer would agree to do so.
(f) Notwithstanding the foregoing, each Pledgor shall, upon the
occurrence and during the continuance of any Event of Default, at the request of
Administrative Agent, for the benefit of Administrative Agent, cause any
registration, qualification under or compliance with any federal or state
securities law or laws to be effected with respect to all or any part of the
Securities Collateral as soon as practicable and at the sole cost and expense of
the Pledgors. Each Pledgor will use its best efforts to cause such registration
to be effected (and be kept effective) and will use its best efforts to cause
such qualification and compliance to be effected (and be kept effective) as may
be so requested and as would permit or facilitate the sale and distribution of
such Securities Collateral, including, without limitation, registration under
the Securities Act (or any similar statute then in effect), appropriate
qualifications under applicable blue sky or other state securities laws and
appropriate compliance with any other government requirements. Each Pledgor
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shall cause Administrative Agent to be kept advised in writing as to the
progress of each such registration, qualification or compliance and as to the
completion thereof, shall furnish to Administrative Agent such number of
prospectuses, offering circulars or other documents incident thereto as
Administrative Agent from time to time may request, and shall indemnify and
shall cause the issuer of the Securities Collateral to indemnify Administrative
Agent and all others participating in the distribution of such Securities
Collateral against all claims, losses, damages and liabilities caused by any
untrue statement (or alleged untrue statement) of a material fact contained
therein (or in any related registration statement, notification or the like) or
by any omission (or alleged omission) to state therein (or in any related
registration statement, notification or the like) a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(g) If Administrative Agent determines to exercise its right to
sell any or all of the Securities Collateral, upon written request, the
applicable Pledgor shall from time to time furnish to Administrative Agent all
such information as Administrative Agent may request in order to determine the
number of securities included in the Securities Collateral which may be sold by
Administrative Agent as exempt transactions under the Securities Act and the
rules of the Securities and Exchange Commission thereunder, as the same are from
time to time in effect.
Section 14. Application of Proceeds. The proceeds received by
Administrative Agent in respect of any sale of, collection from or other
realization upon all or any part of the Pledged Collateral pursuant to the
exercise by Administrative Agent of its remedies as a secured creditor as
provided in Section 13 hereof shall be applied, together with any other sums
then held by Administrative Agent pursuant to this Agreement, promptly by
Administrative Agent as follows:
First, to the payment of all costs and expenses, fees, commissions and
taxes of such sale, collection or other realization, including, without
limitation, compensation to Administrative Agent and its agents and
counsel, and all expenses, liabilities and advances made or incurred by
Administrative Agent in connection therewith, together with interest on
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each such amount at the highest rate then in effect under the Credit
Agreement from and after the date such amount is due, owing or unpaid until
paid in full;
Second, to the payment of all other costs and expenses of such sale,
collection or other realization, including, without limitation,
compensation to the Lenders and their agents and counsel and all costs,
liabilities and advances made or incurred by the Lenders in connection
therewith, together with interest on each such amount at the highest rate
then in effect under the Credit Agreement from and after the date such
amount is due, owing or unpaid until paid in full;
Third, without duplication of amounts applied pursuant to clauses
First and Second above, to the indefeasible payment in full in cash, pro
rata, of (i) interest, principal and other amounts constituting Secured
Obligations (other than Interest Rate Obligations) in accordance with the
terms of the Credit Agreement and (ii) the Interest Rate Obligations in
accordance with the terms of the Interest Rate Agreements; and
Fourth, the balance, if any, to the Person lawfully entitled thereto
(including the Pledgors or their respective successors or assigns).
In the event that any such proceeds are insufficient to pay in full
the items described in clauses First through Third of this Section 14, the
Pledgors shall remain liable for any deficiency.
Section 15. Expenses. Each Pledgor will upon demand pay to
Administrative Agent the amount of any and all expenses, including the fees and
expenses of its counsel and the fees and expenses of any experts and agents
which Administrative Agent may incur in connection with (a) the collection of
the Secured Obligations, (b) the enforcement and administration of this
Agreement, (c) the custody or preservation of, or the sale of, collection from,
or other realization upon, any of the Pledged Collateral, (d) the exercise or
enforcement of any of the rights of Administrative Agent or any Secured Party
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hereunder or (e) the failure by any Pledgor to perform or observe any of the
provisions hereof. All amounts payable by any Pledgor under this Section 15
shall be due upon demand and shall be part of the Secured Obligations. Each
Pledgor's obligations under this Section 15 shall survive the termination of
this Agreement and the discharge of such Pledgor's other obligations hereunder.
Section 16. No Waiver; Cumulative Remedies. (a) No failure on the part
of Administrative Agent to exercise, no course of dealing with respect to, and
no delay on the part of Administrative Agent in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy;
nor shall Administrative Agent be required to look first to, enforce or exhaust
any other security, collateral or guaranties. The remedies herein provided are
cumulative and are not exclusive of any remedies provided by law.
(b) In the event that Administrative Agent shall have instituted
any proceeding to enforce any right, power or remedy under this Agreement by
foreclosure, sale, entry or otherwise, and such proceeding shall have been
discontinued or abandoned for any reason or shall have been determined adversely
to Administrative Agent, then and in every such case, the Pledgors,
Administrative Agent and each Secured Party shall be restored to their
respective former positions and rights hereunder with respect to the Pledged
Collateral, and all rights, remedies and powers of Administrative Agent and the
Secured Parties shall continue as if no such proceeding had been instituted.
Section 17. Administrative Agent. Administrative Agent has been
appointed as collateral agent pursuant to the Credit Agreement. The actions of
Administrative Agent hereunder are subject to the provisions of the Credit
Agreement. Administrative Agent shall have the right hereunder to make demands,
to give notices, to exercise or refrain from exercising any rights, and to take
or refrain from taking action (including, without limitation, the release or
substitution of Pledged Collateral), in accordance with this Agreement and the
Credit Agreement. Administrative Agent may employ agents and attorneys-in-fact
in connection herewith and shall not be liable for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it in good faith.
Administrative Agent may resign and a successor Administrative Agent may be
appointed in the manner provided in the Credit Agreement. Upon the acceptance of
any appointment as Administrative Agent by a successor Administrative Agent,
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that successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent under this Agreement, and the retiring Administrative Agent
shall thereupon be discharged from its duties and obligations under this
Agreement. After any retiring Administrative Agent's resignation, the provisions
of this Agreement shall inure to its benefit as to any actions taken or omitted
to be taken by it under this Agreement while it was Administrative Agent.
Section 18. Administrative Agent May Perform; Administrative Agent
Appointed Attorney-in-Fact. If any Pledgor shall fail to do any act or thing
that it has covenanted to do hereunder or if any warranty on the part of any
Pledgor contained herein shall be breached, Administrative Agent may (but shall
not be obligated to) do the same or cause it to be done or remedy any such
breach, and may expend funds for such purpose. Any and all amounts so expended
by Administrative Agent shall be paid by the Pledgors promptly upon demand
therefor, with interest at the highest rate then in effect under the Credit
Agreement during the period from and including the date on which such funds were
so expended to the date of repayment. Each Pledgor's obligations under this
Section 18 shall survive the termination of this Agreement and the discharge of
such Pledgor's other obligations under this Agreement, the Credit Agreement, any
Interest Rate Agreement and the other Credit Documents. Each Pledgor hereby
appoints Administrative Agent its attorney-in-fact, with full authority in the
place and stead of such Pledgor and in the name of such Pledgor, or otherwise,
from time to time in Administrative Agent's discretion to take any action and to
execute any instrument consistent with the terms of this Agreement and the other
Credit Documents which Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Agreement. The foregoing grant of authority is a
power of attorney coupled with an interest and such appointment shall be
irrevocable for the term of this Agreement. Each Pledgor hereby ratifies all
that such attorney shall lawfully do or cause to be done by virtue hereof.
Section 19. Indemnity.
(a) Indemnity. Each Pledgor agrees to indemnify, pay and hold
harmless Administrative Agent and each of the other Secured Parties and the
officers, directors, employees, agents and Affiliates of Administrative Agent
and each of the other Secured Parties (collectively, the "Indemnitees") from and
against any and all other liabilities, obligations, losses, damages, penalties,
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actions, judgments, suits, claims, costs (including, without limitation,
settlement costs), expenses or disbursements of any kind or nature whatsoever
(including, without limitation, the fees and disbursements of counsel for such
Indemnitees in connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not such Indemnitee shall be
designated a party thereto) which may be imposed on, incurred by, or asserted
against that Indemnitee, in any manner relating to or arising out of this
Agreement, any Interest Rate Agreement or any other Credit Document (including,
without limitation, any misrepresentation by any Pledgor in this Agreement, any
Interest Rate Agreement or any other Credit Document) (the "indemnified
liabilities"); provided that no Pledgor shall have any obligation to an
Indemnitee hereunder with respect to indemnified liabilities if it has been
determined by a final decision (after all appeals and the expiration of time to
appeal) of a court of competent jurisdiction that such indemnified liability
arose from the gross negligence or willful misconduct of that Indemnitee. To the
extent that the undertaking to indemnify, pay and hold harmless set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, each Pledgor shall contribute the maximum portion which it is
permitted to pay and satisfy under applicable law to the payment and
satisfaction of all indemnified liabilities incurred by the Indemnitees or any
of them.
(b) Survival. The obligations of the Pledgors contained in this
Section 19 shall survive the termination of this Agreement and the discharge of
the Pledgors' other obligations under this Agreement, any Interest Rate
Agreement and under the other Credit Documents.
(c) Reimbursement. Any amounts paid by any Indemnitee as to which
such Indemnitee has the right to reimbursement shall constitute Secured
Obligations secured by the Pledged Collateral.
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Section 20. Modification in Writing. No amendment, modification,
supplement, termination or waiver of or to any provision of this Agreement, nor
consent to any departure by any Pledgor therefrom, shall be effective unless the
same shall be made in accordance with the terms of the Credit Agreement and
unless in writing and signed by Administrative Agent. Any amendment,
modification or supplement of or to any provision of this Agreement, any waiver
of any provision of this Agreement and any consent to any departure by any
Pledgor from the terms of any provision of this Agreement shall be effective
only in the specific instance and for the specific purpose for which made or
given. Except where notice is specifically required by this Agreement or any
other Credit Document, no notice to or demand on any Pledgor in any case shall
entitle any Pledgor to any other or further notice or demand in similar or other
circumstances.
Section 21. Termination; Release. When all the Secured Obligations
have been paid in full and the Commitments of the Lenders to make any Loan or to
issue any Letter of Credit under the Credit Agreement shall have expired or been
sooner terminated, this Agreement shall terminate. Upon termination of this
Agreement or any release of Pledged Collateral in accordance with the provisions
of the Credit Agreement, Administrative Agent shall, upon the request and at the
sole cost and expense of the Pledgors, forthwith assign, transfer and deliver to
Pledgor, against receipt and without recourse to or warranty by Administrative
Agent, such of the Pledged Collateral to be released (in the case of a release)
as may be in possession of Administrative Agent and as shall not have been sold
or otherwise applied pursuant to the terms hereof, and, with respect to any
other Pledged Collateral, proper documents and instruments (including UCC-3
termination statements or releases) acknowledging the termination of this
Agreement or the release of such Pledged Collateral, as the case may be.
Section 22. Notices. Unless otherwise provided herein or in the Credit
Agreement, any notice or other communication herein required or permitted to be
given shall be given in the manner set forth in the Credit Agreement, as to any
Pledgor, addressed to it at the address of Borrower set forth in the Credit
Agreement and as to Administrative Agent, addressed to it at the address set
forth in the Credit Agreement, or in each case at such other address as shall be
D-48
<PAGE>
designated by such party in a written notice to the other party complying as to
delivery with the terms of this Section 22; provided that notices to
Administrative Agent shall not be effective until received by Administrative
Agent.
Section 23. Continuing Security Interest; Assignment. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(i) be binding upon the Pledgors, their respective successors and assigns and
(ii) inure, together with the rights and remedies of Administrative Agent
hereunder, to the benefit of Administrative Agent and the other Secured Parties
and each of their respective successors, transferees and assigns; no other
Persons (including, without limitation, any other creditor of any Pledgor) shall
have any interest herein or any right or benefit with respect hereto. Without
limiting the generality of the foregoing clause (ii), any Lender may assign or
otherwise transfer any indebtedness held by it secured by this Agreement to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender, herein or otherwise, subject
however, to the provisions of the Credit Agreement and any applicable Interest
Rate Agreement. Each Affiliate of Borrower which from time to time after the
initial date of this Agreement is required under the Credit Agreement to pledge
any assets to Administrative Agent for the benefit of the Secured Parties may
become a party hereto upon execution and delivery to Administrative Agent of a
joinder agreement substantially in the form attached hereto as Exhibit 4, and
upon such execution and delivery shall be deemed to be a "Guarantor" and a
"Pledgor" for all purposes hereunder.
Section 24. GOVERNING LAW; TERMS. THIS AGREEMENT SHALL BE GOVERNED BY,
AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, EXCLUDING (TO THE GREATEST EXTENT PERMITTED BY LAW) ANY RULE OF LAW
THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE
SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
PLEDGED COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK.
Section 25. CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF
JURY TRIAL. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PLEDGOR WITH RESPECT TO
THIS AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, EACH PLEDGOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
D-49
<PAGE>
AFORESAID COURTS AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS AGREEMENT. EACH PLEDGOR DESIGNATES AND APPOINTS
CORPORATION SERVICES COMPANY, WITH AN ADDRESS AT 80 STATE STREET, ALBANY, NEW
YORK 12207 AND SUCH OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY SUCH PLEDGOR
IRREVOCABLY AGREEING IN WRITING TO SO SERVE, AS ITS AGENT TO RECEIVE ON ITS
BEHALF, SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING, SUCH SERVICE BEING HEREBY
ACKNOWLEDGED BY SUCH PLEDGOR TO BE EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT. A COPY OF SUCH PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL TO
EACH PLEDGOR AT THE ADDRESS OF BORROWER PROVIDED FOR IN THE CREDIT AGREEMENT
EXCEPT THAT UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL
SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT
APPOINTED BY ANY PLEDGOR REFUSES TO ACCEPT SERVICE, SUCH PLEDGOR HEREBY AGREES
THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN
SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
SHALL LIMIT THE RIGHT OF COLLATERAL AGENT TO BRING PROCEEDINGS AGAINST ANY
PLEDGOR IN THE COURTS OF ANY OTHER JURISDICTION. THE PLEDGORS AND COLLATERAL
AGENT HEREBY IRREVOCABLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section 26. Severability of Provisions. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 27. Execution in Counterparts. This Agreement and any
amendments, waivers, consents or supplements hereto may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an original,
but all such counterparts together shall constitute one and the same agreement.
D-50
<PAGE>
Section 28. Headings. The Section headings used in this Agreement are
for convenience of reference only and shall not affect the construction of this
Agreement.
Section 29. Obligations Absolute. All obligations of each Pledgor
hereunder shall be absolute and unconditional irrespective of:
(i) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or the like of any Pledgor or any
other Credit Party;
(ii) any lack of validity or enforceability of the Credit Agreement,
any Interest Rate Agreement, any Letter of Credit or any other Credit
Document, or any other agreement or instrument relating thereto;
(iii) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Credit
Agreement, any Interest Rate Agreement, any Letter of Credit or any other
Credit Document, or any other agreement or instrument relating thereto;
(iv) any pledge, exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to any
departure from any guarantee, for all or any of the Secured Obligations;
(v) any exercise, non-exercise or waiver of any right, remedy, power
or privilege under or in respect of this Agreement, any Interest Rate
Agreement or any other Credit Document except as specifically set forth in
a waiver granted pursuant to the provisions of Section 19 hereof; or
(vi) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, any Pledgor other than the defense
that no Event of Default has occurred and is continuing.
D-51
<PAGE>
Section 30. Administrative Agent's Right to Sever Indebtedness. (a)
Each Pledgor acknowledges that (i) the Pledged Collateral does not constitute
the sole source of security for the payment and performance of the Secured
Obligations and that the Secured Obligations are also secured by other types of
property of the Pledgors in other jurisdictions (all such property,
collectively, the "Collateral"), (ii) the number of such jurisdictions and the
nature of the transaction of which this instrument is a part are such that it
would have been impracticable for the parties to allocate to each item of
Collateral a specific loan amount and to execute in respect of such item a
separate credit agreement and (iii) each Pledgor intends that Administrative
Agent have the same rights with respect to the Pledged Collateral, in any
judicial proceeding relating to the exercise of any right or remedy hereunder or
otherwise, that Administrative Agent would have had if each item of Collateral
had been pledged or encumbered pursuant to a separate credit agreement and
security instrument. In furtherance of such intent, each Pledgor agrees to the
greatest extent permitted by law that Administrative Agent may at any time by
notice (an "Allocation Notice") to such Pledgor allocate a portion of the
Secured Obligations (the "Allocated Indebtedness") to all or a specified portion
of the Pledged Collateral and sever from the remaining Secured Obligations the
Allocated Indebtedness. From and after the giving of an Allocation Notice with
respect to any of the Pledged Collateral, the Secured Obligations hereunder
shall be limited to the extent set forth in the Allocation Notice and (as so
limited) shall, for all purposes, be construed as a separate credit obligation
of such Pledgor unrelated to the other transactions contemplated by the Credit
Agreement, any Interest Rate Agreement, any other Credit Document or any
document related to any thereof. To the extent that the proceeds of any judicial
proceeding relating to the exercise of any right or remedy hereunder of the
Pledged Collateral shall exceed the Allocated Indebtedness, such proceeds shall
belong to such Pledgor and shall not be available hereunder to satisfy any
Secured Obligations of such Pledgor other than the Allocated Indebtedness. In
any action or proceeding to exercise any right or remedy under this Agreement
which is commenced after the giving by Administrative Agent of an Allocation
Notice, the Allocation Notice shall be conclusive proof of the limits of the
Secured Obligations hereby secured, and such Pledgor may introduce, by way of
defense or counterclaim, evidence thereof in any such action or proceeding.
Notwithstanding any provision of this Section 30, the proceeds received by
Administrative Agent pursuant to this Agreement shall be applied by
Administrative Agent in accordance with the provisions of Section 14 hereof.
(b) Each Pledgor hereby waives to the greatest extent permitted
under law the right to a discharge of any of the Secured Obligations under any
statute or rule of law now or hereafter in effect which provides that the
exercise of any particular right or remedy as provided for herein (by judicial
D-52
<PAGE>
proceedings or otherwise) constitutes the exclusive means for satisfaction of
the Secured Obligations or which makes unavailable any further judgment or any
other right or remedy provided for herein because Administrative Agent elected
to proceed with the exercise of such initial right or remedy or because of any
failure by Administrative Agent to comply with laws that prescribe conditions to
the entitlement to such subsequent judgment or the availability of such
subsequent right or remedy. In the event that, notwithstanding the foregoing
waiver, any court shall for any reason hold that such subsequent judgment or
action is not available to Administrative Agent, no Pledgor shall (i) introduce
in any other jurisdiction any judgment so holding as a defense to enforcement
against such Pledgor of any remedy in the Credit Agreement, any Interest Rate
Agreement or any other Credit Document or (ii) seek to have such judgment
recognized or entered in any other jurisdiction, and any such judgment shall in
all events be limited in application only to the state or jurisdiction where
rendered and only with respect to the collateral referred to in such judgment.
(c) In the event any instrument in addition to the Allocation
Notice is necessary to effectuate the provisions of this Section 30, including,
without limitation, any amendment to this Agreement, any substitute promissory
note or affidavit or certificate of any kind, Administrative Agent may execute
and deliver such instrument as the attorney-in-fact of any Pledgor. Such power
of attorney is coupled with an interest and is irrevocable.
(d) Notwithstanding anything set forth herein to the contrary,
the provisions of this Section 30 shall be effective only to the maximum extent
permitted by law.
Section 31. Future Advances. This Agreement shall secure the payment
of any amounts advanced from time to time pursuant to the Credit Agreement.
D-53
<PAGE>
IN WITNESS WHEREOF, the Pledgors and Administrative Agent have caused
this Agreement to be duly executed and delivered by their duly authorized
officers as of the date first above written.
CENTENNIAL CELLULAR OPERATING CO. LLC,
as Borrower and Pledgor
By:
Name: Peter W. Chehayl
Title: Vice President
CENTENNIAL WIRELESS PCS OPERATIONS CORP.,
as PR Borrower and Pledgor
By:
Name: Peter W. Chehayl
Title: Vice President
CENTENNIAL CELLULAR CORP.,
as a Guarantor and Pledgor
By:
Name: Peter W. Chehayl
Title: Vice President
D-54
<PAGE>
ALEXANDRIA CELLULAR CORPORATION
ALEXANDRIA CELLULAR LICENSE CORPORATION
BAUCE COMMUNICATIONS, INC.
BAUCE COMMUNICATIONS OF BEAUMONT, INC.
CENTENNIAL ASHE CELLULAR CORP.
CENTENNIAL BEAUREGARD HOLDING CORP.
CENTENNIAL BENTON HARBOR CELLULAR CORP.
CENTENNIAL BENTON HARBOR HOLDING CORP.
CENTENNIAL CALDWELL CELLULAR CORP.
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF DEL NORTE
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF LAWRENCE
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF MODOC
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF SACRAMENTO VALLEY
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF SAN FRANCISCO
CENTENNIAL CELLULAR WIRELESS
HOLDING CORP.
CENTENNIAL CLAIBORNE CELLULAR CORP.
CENTENNIAL CLINTON CELLULAR CORP.
CENTENNIAL DESOTO CELLULAR CORP.
CENTENNIAL IBERIA HOLDING CORP.
CENTENNIAL LAFAYETTE CELLULAR CORP.
CENTENNIAL LAKE CHARLES CELLULAR CORP.
CENTENNIAL LOUISIANA HOLDING CORP.
CENTENNIAL MEGA COMM HOLDING CORP.
CENTENNIAL MICHIGAN RSA 6 CELLULAR CORP.
CENTENNIAL MICHIGAN RSA 7 CELLULAR CORP.
CENTENNIAL PUERTO RICO WIRELESS
CORPORATION
CENTENNIAL RANDOLPH HOLDINGS CORP.
CENTENNIAL WIRELESS PCS LICENSE CORP.
CENTENNIAL WIRELESS PCS OPERATIONS CORP.
CENTURY BEAUMONT CELLULAR CORP.
CENTURY CHARLOTTESVILLE CELLULAR CORP.
CENTURY EL CENTRO CELLULAR CORP.
CENTURY ELKHART CELLULAR CORP.
D-55
<PAGE>
CENTURY LYNCHBURG CELLULAR CORP.
CENTURY MICHIANA CELLULAR CORP.
CENTURY ROANOKE CELLULAR CORP. (DE)
CENTURY ROANOKE CELLULAR CORP. (VA)
CENTURY SOUTH BEND CELLULAR CORP.
CENTURY YUMA CELLULAR CORP.
EL CENTRO CELLULAR CORP.
ELKHART METRONET, INC.
HENDRIX ELECTRONICS, INC.
HENDRIX RADIO COMMUNICATIONS, INC.
LAFAYETTE COMMUNICATIONS, INC.
MICHIANA METRONET INC.
SOUTH BEND METRONET, INC.
Each as a Guarantor and Pledgor
By:
Name: Peter W. Chehayl
Title: Vice President
CENTENNIAL BEAUREGARD CELLULAR LLC,
as a Guarantor and Pledgor
By: CENTENNIAL BEAUREGARD HOLDING
CORP., a Managing Member
By:
Name: Peter W. Chehayl
Title: Vice President
CENTENNIAL CELLULAR TRI-STATE OPERATING
PARTNERSHIP, as a Guarantor and Pledgor
By: CENTENNIAL CLINTON CELLULAR
CORP., as a General Partner
By:
Name: Peter W. Chehayl
Title: Vice President
D-56
<PAGE>
CENTENNIAL HAMMOND CELLULAR LLC,
as a Guarantor and Pledgor
By: CENTENNIAL BEAUREGARD HOLDING CORP.,
a Managing Member
By:
Name: Peter W. Chehayl
Title: Vice President
CENTENNIAL MOREHOUSE CELLULAR LLC,
as a Guarantor and Pledgor
By: CENTENNIAL BEAUREGARD HOLDING CORP.,
a Managing Member
By:
Name: Peter W. Chehayl
Title: Vice President
CENTENNIAL RANDOLPH CELLULAR LLC,
as a Guarantor and Pledgor
By: CENTENNIAL RANDOLPH HOLDING CORP.,
a Managing Member
By:
Name: Peter W. Chehayl
Title: Vice President
D-57
<PAGE>
ELKHART CELLULAR TELEPHONE
COMPANY, as a Guarantor and Pledgor
By: ELKHART METRONET, INC., a General
Partner
By:
Name: Peter W. Chehayl
Title: Vice President
IBERIA CELLULAR TELEPHONE COMPANY LLC,
as a Guarantor and Pledgor
By: CENTENNIAL BEAUREGARD HOLDING CORP.,
a Managing Member
By:
Name: Peter W. Chehayl
Title: Vice President
LAFAYETTE CELLULAR TELEPHONE PARTNERSHIP,
as a Guarantor and Pledgor
By: LAFAYETTE COMMUNICATIONS, INC.,
a General Partner
By:
Name: Peter W. Chehayl
Title: Vice President
D-58
<PAGE>
MEGA COMM LLC, as a Guarantor and Pledgor
By: MEGA COMM HOLDING CORP., a Managing
Member
By:
Name: Peter W. Chehayl
Title: Vice President
NATIONSBANK, N.A.,
as Administrative Agent
By:
Name:
Title:
D-59
<PAGE>
Schedule I-A
Guarantors that Own Capital Stock of Subsidiaries
Pledgor: Centennial Cellular Operating Co, LLC
<TABLE>
<CAPTION>
Certificate Number % of all issued
Issuer Type of Issuance Number of Shares capital
<S> <C> <C> <C> <C>
Alexandria Cellular Corporation Common, no par value 3 3,000 100%
Alexandria Cellular License Corporation Common, no par value 37 88.911 0.8%
Centennial Ashe Cellular Corp. Common, par value $1.00 2 100 100%
Centennial Asia Pacific Cellular Class A Common, par 2 100 100%
Holding Corp. value $.01
Class B Common, par 2 100 100%
value $.01
Preferred $.01 2 100 100%
Centennial Beauregard Holding Corp. Common, par value $1.00 2 100 100%
Centennial Benton Harbor Cellular Corp. Common, par value $1.00 3 100 100%
Centennial Benton Harbor Holding Corp. Common, par value $1.00 2 100 100%
Centennial Cellular Telephone Common, par value 4 100 100%
Company of Del Norte $10.00
Centennial Cellular Telephone Common, par value 4 100 100%
Company of Lawrence $10.00
Centennial Cellular Telephone Company of Common, par value 4 100 100%
Modoc $10.00
Centennial Cellular Telephone Company of Common, par value 4 100 100%
Sacramento Valley $10.00
Centennial Cellular Telephone Company of Common, par value 4 100 100%
San Francisco $10.00
Centennial Cellular Wireless Holding Corp. Class B Common Stock, B2 1,000 100%
par value $.01
Centennial Clinton Cellular Corp. Common, par value $1.00 2 100 100%
D-60
<PAGE>
Centennial Iberia Holding Corp. Common, par value $1.00 3 100 100%
Centennial Jackson Cellular Corp. Common, par value $1.00 2 100 100%
Centennial Lafayette Cellular Corp. Common, par value $1.00 3 200 100%
Centennial Lake Charles Cellular Corp. Common, par value $1.00 2 100 100%
Centennial Louisiana Holding Corp. Common, par value $1.00 2 100 100%
Centennial Mega Comm Holding Corp. Common, par value $1.00 2 100 100%
Centennial Michigan RSA 6 Cellular Corp. Common, par value $1.00 2 100 100%
Centennial Michigan RSA 7 Cellular Corp. Common, par value $1.00 2 100 100%
Centennial Microwave Corp. Common, par value $1.00 2 100 100%
Centennial Montgomery Corp. Common, par value $1.00 2 100 100%
Centennial Randolph Holding Corp. Common, par value $1.00 2 100 100%
Century Beaumont Cellular Corp. Common, par value $1.00 2 100 100%
Century Cellular Realty Corp. Common, par value $1.00 2 100 100%
Century Charlottesville Cellular Corp. Common, par value $1.00 2 100 100%
Century Elkhart Cellular Corp. Common, par value $1.00 2 1,000 100%
Century Indiana Cellular Corp. Common, par value $1.00 2 100 100%
Century Lynchburg Cellular Corp. Common, par value $1.00 2 100 100%
Century Michiana Cellular Corp. Common, par value $1.00 2 1,000 100%
Century Michigan Cellular Corp. Common, par value $1.00 2 100 100%
Century Roanoke Cellular Corp. (DE) Common, par value $1.00 2 1,000 100%
Century Roanoke Cellular Corp. (VA) Common, par value $1.00 2 5,000 100%
Century Rural Cellular Corp. Common, par value $1.00 2 100 100%
Century South Bend Cellular Corp. Common, par value $1.00 2 1,000 100%
Century Yuma Cellular Corp. Common, par value $1.00 2 100 100%
Century Yuma Paging Corp. Common, no par value 2 10 100%
El Centro Cellular Corporation Common, par value $1.00 2 100 100%
</TABLE>
D-61
<PAGE>
<TABLE>
<CAPTION>
Pledgor: Alexandria Cellular Corp.
Issuer Type of Issuance Certificate Number % of all issued
Number of Shares capital
<S> <C> <C> <C> <C>
Alexandria Cellular License Corporation Common, no par value 36 9279.1 91.4%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Bauce Communications, Inc.
Issuer Type of Issuance Certificate Number % of all issued
Number of Shares capital
<S> <C> <C> <C> <C>
Bauce Communications of Beaumont, Inc. Common, par value $1.00 1 1,000 100%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Centennial Cellular Wireless Holding Corp.
Issuer Type of Issuance Certificate Number % of all issued
Number of Shares capital
<S> <C> <C> <C> <C>
Centennial Puerto Rico Wireless Corp. Common, par value $1.00 2 100 100%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Centennial Lafayette Cellular Corp.
Issuer Type of Issuance Certificate Number % of all issued
Number of Shares capital
<S> <C> <C> <C> <C>
Lafayette Communications Common, par value $1.00 3 1 100%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Centennial Louisiana Holding Corp.
Issuer Type of Issuance Certificate Number % of all issued
Number of Shares capital
<S> <C> <C> <C> <C>
Centennial Caldwell Cellular Corp. Common, par value $1.00 1 100 100%
Centennial Claiborne Cellular Corp. Common, par value $1.00 1 100 100%
Centennial DeSoto Cellular Corp. Common, par value $1.00 1 100 100%
</TABLE>
D-62
<PAGE>
<TABLE>
<CAPTION>
Pledgor: Centennial Puerto Rico Wireless Corporation
Issuer Type of Issuance Certificate Number % of all issued
Number of Shares capital
<S> <C> <C> <C> <C>
Lambda Communications, Incorporated Common, par value $1.00 3 6 1/2 65%*
Centennial Wireless PCS License Corp. Common, par value $1.00 2 100 100%
Centennial Wireless PCS Operations Corp. Common, par value $1.00 1 100 100%
</TABLE>
* Centennial Puerto Rico Wireless Corp. owns 100% of issued capital of Lambda
of which 65% is being pledged hereunder.
<TABLE>
<CAPTION>
Pledgor: Century Beaumont Cellular Corp.
Issuer Type of Issuance Certificate Number % of all issued
Number of Shares capital
<S> <C> <C> <C> <C>
Bauce Communications, Inc. Common, par value $1.00 5 675.68 100%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Century Michiana Cellular Corp.
Issuer Type of Issuance Certificate Number % of all issued
Number of Shares capital
<S> <C> <C> <C> <C>
Michiana Metronet Inc. Common, par value $1.00 2 100 100%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Century South Bend Cellular Corp.
Issuer Type of Issuance Certificate Number % of all issued
Number of Shares capital
<S> <C> <C> <C> <C>
South Bend Metronet Inc. Common, par value $1.00 2 100 100%
</TABLE>
D-63
<PAGE>
<TABLE>
<CAPTION>
Pledgor: Century Yuma Paging Corp.
Issuer Type of Issuance Certificate Number % of all issued
Number of Shares capital
<S> <C> <C> <C> <C>
Hendrix Electronics, Inc. Common, no par value 18 1147 100%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: El Centro Cellular Corporation
Issuer Type of Issuance Certificate Number % of all issued
Number of Shares capital
<S> <C> <C> <C> <C>
Century El Centro Cellular Corp. Common, no par value 2 10 100%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Century Elkhart Cellular Corp.
Issuer Type of Issuance Certificate Number % of all issued
Number of Shares capital
<S> <C> <C> <C> <C>
Elkhart Metronet, Inc. Common, par value $1.00 2 100 100%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Hendrix Electronics, Inc.
Issuer Type of Issuance Certificate Number % of all issued
Number of Shares capital
<S> <C> <C> <C> <C>
Hendrix Radio Communications, Inc. Common, par value $1.00 1 350 100%
</TABLE>
D-64
<PAGE>
Schedule I-B
Guarantors that own uncertificated equity interests
in Subsidiaries that are Partnership of Limited Liability Company
(i.e., excluding Minority Interests)
Initial Pledged Interests
<TABLE>
<CAPTION>
Pledgor: Centennial Cellular Corp.
Issuer Type of Interest % of all issued equity interests
of Issuer
<S> <C> <C>
Centennial Cellular Operating Co. LLC LLC membership interest 100%
Elkhart Cellular Telephone Company Partnership interest 14.16%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Centennial Ashe Cellular Corp.
Issuer Type of Interest % of all issued equity interests of
Issuer
<S> <C> <C>
Centennial Tri-State Operating Partnership Partnership interest 23.74%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Centennial Beauregard Holding Corp.
Issuer Type of Interest % of all issued equity interests of
Issuer
<S> <C> <C>
Centennial Beauregard Cellular LLC LLC membership interest 50%
Centennial Hammond Cellular LLC LLC membership interest 50%
Centennial Morehouse Cellular LLC LLC membership interest 50%
Iberia Cellular Telephone LLC LLC membership interest 50%
</TABLE>
D-65
<PAGE>
<TABLE>
<CAPTION>
Pledgor: Centennial Clinton Cellular Corp.
Issuer Type of Interest % of all issued equity interests of
Issuer
<S> <C> <C>
Centennial Tri-State Operating Partnership Partnership interest 16.74%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Centennial Iberia Holding Corp.
Issuer Type of Interest % of all issued equity interests of
Issuer
<S> <C> <C>
Centennial Beauregard Cellular LLC LLC membership interest 50%
Centennial Hammond Cellular LLC LLC membership interest 50%
Centennial Morehouse Cellular LLC LLC membership interest 50%
Iberia Cellular Telephone LLC LLC membership interest 50%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Centennial Lafayette Cellular Corp.
Issuer Type of Interest % of all issued equity interests of
Issuer
<S> <C> <C>
Lafayette Cellular Telephone Company Partnership interest 43.57%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Centennial Lynchburg Cellular Corp.
Issuer Type of Interest % of all issued equity interests of
Issuer
<S> <C> <C>
Centennial Tri-State Operating Partnership Partnership agreement 23.99%
</TABLE>
D-66
<PAGE>
<TABLE>
<CAPTION>
Pledgor: Centennial Mega Comm Holding Corp.
Issuer Type of Interest % of all issued equity interests of
Issuer
<S> <C> <C>
Mega Comm LLC LLC membership interest 99%
Centennial Randolph Cellular LLC LLC membership interest 1%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Centennial Randolph Holding Corp.
Issuer Type of Interest % of all issued equity interests of
Issuer
<S> <C> <C>
Mega Comm LLC LLC membership interest 1%
Centennial Randolph Cellular LLC LLC membership interest 99%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Centennial Roanoke Cellular Corp.
Issuer Type of Interest % of all issued equity interests of
Issuer
<S> <C> <C>
Centennial Tri-State Operating Partnership Partnership interest 34.53%
</TABLE>
<TABLE>
<CAPTION>
Plegor: Elkhart Metronet Inc.
Issuer Type of Interest % of all issued equity interests of
Issuer
<S> <C> <C>
Elkhart Cellular Telephone Company Partnership interest 77.57%
</TABLE>
<TABLE>
<CAPTION>
Pledgor: Lafayette Communications, Inc.
Issuer Type of Interest % of all issued equity interests of
Issuer
<S> <C> <C>
Lafayette Cellular Telephone Company Partnership interest 50.94%
</TABLE>
D-67
<PAGE>
SCHEDULE II
Intercompany Notes
Promissory Notes, dated January 7, 1999, made by each of Payor in
favor of each Payee listed hereafter:
<TABLE>
<CAPTION>
Payor Payee
<S> <C>
Alexandria Cellular Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Alexandria Cellular Corp.
Alexandria Cellular License Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Alexandria Cellular License Corp.
Bauce Communications, Inc. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Bauce Communications, Inc.
Bauce Communications of Beaumont, Inc. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Bauce Communications of Beaumont, Inc.
Centennial Beauregard Cellular LLC Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Centennial Beauregard Cellular LLC
Centennial Benton Harbor Cellular Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Centennial Benton Harbor Cellular Corp.
Centennial Cellular Telephone Company of Modoc Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Centennial Cellular Telephone Company of Modoc
Centennial Cellular Telephone Company of Centennial Cellular Operating Co. LLC
Sacramento Valley
Centennial Cellular Operating Co. LLC Centennial Cellular Telephone Company of
Sacramento Valley
Centennial Cellular Tri-State Operating Centennial Cellular Operating Co. LLC
Partnership
D-68
<PAGE>
Centennial Cellular Operating Co. LLC Centennial Cellular Tri-State Operating
Partnership
Centennial Claiborne Cellular Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Centennial Claiborne Cellular Corp.
Centennial Clinton Cellular Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Centennial Clinton Cellular Corp.
Centennial DeSoto Cellular Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Centennial DeSoto Cellular Corp.
Centennial Hammond Cellular LLC Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Centennial Hammond Cellular LLC
Centennial Lafayette Cellular Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Centennial Lafayette Cellular Corp.
Centennial Lake Charles Cellular Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Centennial Lake Charles Cellular Corp.
Centennial Randolph Cellular LLC Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Centennial Randolph Cellular LLC
Century Charlottesville Cellular Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Century Charlottesville Cellular Corp.
Century El Centro Cellular Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Century El Centro Cellular Corp.
Century Elkhart Cellular Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Century Elkhart Cellular Corp.
Century Lynchburg Cellular Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Century Lynchburg Cellular Corp.
Century Roanoke Cellular Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Century Roanoke Cellular Corp.
Century South Bend Cellular Corp. Centennial Cellular Operating Co. LLC
D-69
<PAGE>
Centennial Cellular Operating Co. LLC Century South Bend Cellular Corp.
Century Yuma Cellular Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Century Yuma Cellular Corp.
El Centro Cellular Corp. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC El Centro Cellular Corp.
Elkhart Metronet Inc. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Elkhart Metronet Inc.
Hendrix Electronics, Inc. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Hendrix Electronics, Inc.
Hendrix Radio Communications, Inc. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Hendrix Radio Communications, Inc.
Iberia Cellular Telephone Company LLC Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Iberia Cellular Telephone Company LLC
Lafayette Communications, Inc. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC Lafayette Communications, Inc.
South Bend Metronet, Inc. Centennial Cellular Operating Co. LLC
Centennial Cellular Operating Co. LLC South Bend Metronet, Inc.
GTE Mobilnet of California Limited Centennial Cellular Operating Co. LLC
Partnership
Cal-One Cellular Limited Partnership Centennial Cellular Operating Co. LLC
Pennsylvania RSA No. 6(I) Limited Centennial Cellular Operating Co. LLC
Partnership
Pennsylvania RSA No. 6(II) Limited Centennial Cellular Operating Co. LLC
Partnership
Centennial Wireless PCS Operations Corp. Centennial Cellular Wireless Holding Corp.
Centennial Cellular Wireless Holding Corp. Centennial Wireless PCS Operations Corp.
Centennial Wireless PCS Operations Corp. Centennial Wireless PCS License Corp.
</TABLE>
D-70
<PAGE>
SCHEDULE III
Patents
None.
D-71
<PAGE>
SCHEDULE IV
Trademarks
Trademark Owner: Centennial Cellular Corp.
Trademark Application No. Filing Date
CENTENNIAL SN. 161,232 September 5, 1996
CENTENNIAL WIRELESS SN. 161,225 September 5, 1996
CENTENNIAL COMMUNICATION SN. 161,075 September 5, 1996
CORPORATION
CENTENNIAL LOGO SN. 161,231 September 5, 1996
CENTENNIAL DIGITAL SN. 161,230 September 5, 1996
CENTENNIAL EXPRESS SN. 361,697 September 23, 1997
D-72
<PAGE>
SCHEDULE V
Copyrights
None.
D-73
<PAGE>
SCHEDULE VI
Licenses
See Attached List.
D-74
<PAGE>
SCHEDULE VII
Financial Accounts
<TABLE>
<CAPTION>
System Bank Name Bank Account #/
Legal Entity Phone. #
<S> <C> <C> <C>
807 NBD Bank, N.A. 185010203734 (800) 652-2265
Michigan City 11260-1201 Centennial Tri-State Debbie Alston
One Indiana Square Operating Prtnshp Ind 1-11 (765) 668-5731
Ms 7163
Indianapolis, IN 46266
808
Warsaw Lake City Bank 000062332 (219) 267-6144
11260-1200
P.O. Box 1387 Centennial Tri-State
Warsaw, IN 46581-1387 Operating Prtnshp Ind 1-11
811
Ft. Wayne NBD, N.A. 711400270052 (800) 652-2265
11260-1205 Debbie Alston
One Indiana Square MS 7163 Michiana Metronet Inc. (765) 668-5731
Indianapolis, IN 46266 DBA Cellular One of Greater Ft. Wayne
Star Financial 61003858 (765) 622-4100
11260-1207 Erin Heinkel
735 Main St. Michiana Metronet Inc (219) 431-5538
P.O. Box 151600
Anderson, IN 46015-1600
Bluffton Norwest Bank 008-6057310 (800) 688-8510
11260-1204 Michiana Metronet Inc Sharon Menier
P.O. Box 960 (219) 925-0960
Fort Wayne, IN 46801
Auburn Norwest Bank 008-6185431 (800) 688-8510
11260-1208 Michiana Metronet Sharon Menier
P.O. Box 960 (219) 925-0960
Fort Wayne, IN 46801
812
Kalamazoo National City Bank 0083046716 (800) 925-9259
11260-1210 Madelyn Read
P.O. Box 8043 Michiana Metronet Inc (317) 267-7109
Royal Oak, MI 48068-8043 DBA Cellular One of Kalamazoo
First Savings 003236 (616) 279-5117
11260-1212
P.O. Box 10 Centennial Wireless
123 Portage Ave.
Three Rivers, MI 49093
Flagstar Bank 58-300736-6 (800) 642-0039
11260-1215
301 West Michigan Ave. Centennial Jackson Cellular Corp
Jackson, MI 49201
D-75
<PAGE>
Star Financial 61003869 (765) 622-4100
11260-1216 Erin Heinkel
735 Main Street Michiana Metronet Inc (219) 431-5538
P.O. Box 151600
Anderson, IN 46015-1600
United Bank & Trust 8008086 (517) 423-8373
11260-1213
P.O. Box 248 Michiana Metronet Inc
Tecumseh, MI 49286
814
South Bend Keybank National Bank 80-000-4993 (800) 774-2424
11260-1220 Credit Dept
10 West Market Street South Bend Metronet Inc
Suite 900 DBA Cellular One of South Bend
Indianapolis, IN 46204
National City Bank 77-3001852-5 (800) 925-9259
11260-1225 Madelyn Read
One National City Ctr South Bend Metronet Inc (317) 267-7109
Indianapolis, IN 46255 D/B/A Cellular One of South Bend
Peoples State Bank 03011224 (219) 567-9151
11260-1221 South Bend Metronet Inc
P.O. Box 188
Franceville, IN 47946
1st Federal Savings Bank 54-000191-6 (219) 563-3185
11260-1222 South Bend Metronet Inc
1205 N. Case Street
P.O. Box 259
Wabash, IN 46992
816
Elkhart Keybank National Bank 116-4429 (888) 539-4249
11260-1230 Credit Dept
10 West Market Street Elkhart Metronet Inc
Suite 900 Century Communications
Indianapolis, IN 46204 Centennial Cellular Corp
817
Benton Harbor NBD, N.A. 895000084064 (800) 652-2265
11260-1231 Debbie Alston
P.O. Box 206A Centennial Benton Harbor (765) 668-5731
Detroit, MI 48232 Cellular Corp
819
Richmond Bank One Richmond 0469009 (800) 234-7350
11260-1235
450 E. Washington Street Centennial Randolph Cellular Corp
Indianapolis, IN 46277-0224
Fayette Federal Savings 2106411177 (765) 825-5121
11260-1236 Centennial Randolph Cellular Corp
630 Central Ave.
Connersville, IN 47331-0267
D-76
<PAGE>
821
Marion NBD, N.A. 120000733091 (800) 652-2265
11260-1240 Debbie Alston
One Indiana Square MI400 Mega Comm Inc (765) 668-5731
Indianapolis, IN 46266 DBA Cellular One of Marion & Huntington
Bippus State Bank 109260 (219) 356-8900
11260-1241 Centennial Wireless Inc
P.O. Box 1148
Huntington, IN 46750
830
Lafayette Bank One, LA 7101525536 (800) 434-3030
11260-1245 Jamie Futch
P.O. Box 3399 Cellular One (318) 236-7680
Baton Rouge, LA 70821 Deposit Account
838
Beaumont First Bank & Trust 40000818 (409) 963-1141
11260-1255 Maryann Hargrave
4000 Twin City Hgwy. Bauce Communications of BMT Inc
P.O. Box 1027
Groves, TX 77619-1027
839
Natchitoches Sabine State Bank 9006206 (318) 256-6331
11260-1265
P.O. Box 670 Centennial De Sota Cellular Corp
Many, LA 71449 DBA Cellular One
Bank One, LA 9300406519 (888) 434-3030
11260-1270
P.O. Box 3399 Centennial De Sota Cellular Corp
Baton Rouge, LA 70821
840
Jonesville Catahoula-La Salle Bank 120251 (318) 339-8571
11260-1285 Larry Reynolds
P.O. Box 68 Centennial Caldwell Cellular Corp (318) 339-8776
Jonesville, LA 71343
841
Natchez United Mississippi Bank 1-4809-8 (601) 445-7000
11260-1290
P.O. Box 670 Centennial Clairborne Cellular Corp
Natchez, MS 39121
First Bank 0886101 (601) 684-2231
11260-1300
P.O. Box 808 Centennial Cellular Claiborne 841
McComb, MS 39649
842
Yuma Norwest Bank Arizona, N.A. 49736887 (800) 326-6000
11260-1305 Cindy Cosper
D-77
<PAGE>
P.O. Box 2908 Century Yuma Cellular Corp (520) 726-8710
Phoenix, AZ 85062-2908
El Centro
Union Bank 3690240067 (760) 352-4441
11260-1310
P.O. Box 4000
576 Main Street Century Yuma Cellular Corp
El Centro, CA 92243-0664
843
New Iberia Bank One, LA 4113329322 (888) 434-3030
11260-1311
P.O. Box 3399 Iberia Cellular Telephone Co. Inc.
Baton Rouge, LA 70821
845
Alexandria Hibernia National Bank 772047924 (800) 262 -5689
11260-1315
P.O. Box 61540 Centennial Cellular Corp
New Orleans, LA 70161
849
Beauregard Hibernia National Bank 902630401 (800) 262-5689
11260-1340
10015 North 11th Street Centennial Beauregard Cellular Corp
Oakdale, LA 71463
Mid-South National Bank 1056409 (800) 452-2267
11260-1341
P.O. Box 3745 Centennial Beauregard Cellular Corp
Lafayette, LA 70502
850
Hendrix Elec Union Bank of California 3690222417 (619) 352-4441
11260-1350 Lenora Poole
576 Main Street Hendrix Electronics Inc
El Centro, CA 92243-0664
851
Hendrix Radio Union Bank of California 3690222425 (619) 352-4441
11260-1355 Lenora Poole
576 Main Street Hendrix Radio Communications Inc
El Centro, CA 92243-0664
872
Mt Pleasant National City Bank 3130056405 (800) 669-1518
11260-1360 Madelyn Read
P.O. Box 8043 Centennial Michigan RSA 7 Cellular Corp
Royal Oak, MI 48068-8043 (317) 267-7109
Chemical Bank 100020320 (616) 796-9944
11260-1365
P.O. Box 917 Centennial Cellular Michigan RSA6 & RSA7
Big Rapids, MI 49307-0917
890
Defiance First Nat'l Bank of N.W. Ohio 6140000 (419) 636-1164
11260-1370 Susan Buehter
310 South Main Street Centennial Tri-State Operating Partnership
Bryan, OH 43506 (419) 636-1164
D-78
<PAGE>
All Systems
National City Bank Centennial Cellular Corp (800) 774-2424
11260-1400 501932305 - MasterCard/Visa Madelyn Read
11260-1405 502029932 - Discover (317) 267-7109
One National City Ctr.
Indianapolis, IN 46255
Bank One AZ Centennial Cellular Corp (602) 261-6346
11305-0000 00114526
P.O. Box 71
Phoenix, AZ 85001
885
Lambda Banco Popular 108005860 (888) 756-9130
Communications 11260-1375 Lambda Operations Corp
Inc P.O. Box 362708
San Juan, Puerto Rico 00936-2708
Lambda 1st Union National Bank 2030000622605 (800) 222-3862
Communications 11260-1376 Lambda Operations Corp Jack Farr
Inc P.O. Box 248 (973) 565-6479
Upper Darby, PA 19802
Banco Santander 3003291021 (800) 726-8263
Lambda 11200-1200 Lambda Operations Corp Nelida Perez
Communications P.O. Box 362589 (787) 759-7070
Inc San Juan, Puerto Rico 00936-2589 EXT 206
888
Cent'l Wire Banco Popular 108005852 (888) 756-9130
11260-1380 Centennial Wireless PCS Operations Corp
P.O. Box 362708
San Juan, Puerto Rico 00936-2708
1st Union National Bank 2030000622595 (800) 222-3862
11260-1381 Centennial Wireless PCS Operations Corp
P.O. Box 248 Jack Farr
Upper Darby, PA 19802 (973) 565-6479
Citibank 4072-7968 (203) 966-8746
111 Wall Street Centennial Puerto Rico Wireless Corp
6th Floor Antonio Thompson
New York, NY 10043 (302) 323-4634
811
Fort Wayne Norwest Bank of Indiana, N.A. 500568 (800) 688-8510
11200-1005 Michiana Metronet
P.O. Box 960
Fort Wayne, IN 46801
814
South Bend Keybank Nat'l Bank 800004104 (800) 539-2968
11200-1015 South Bend Metronet Inc Credit Dept
10 West Market Street DBA Cellular One of South Bend
Suite 900
Indianapolis, IN 46204
838
Beaumont Chase 050-00780890 (800) 2135-8522
11200-1035 Bauce Communications Sarah Valentine
P.O. Box 1231 (212) 552-7395
Houston, TX 77251-1231
D-79
<PAGE>
850
Hendrix Electronics
Valley Independent Bank 0001526936 (760) 337-3200
11200-1080 Hendrix Electronics Inc
1448 Main Street
El Centro, CA 92243
872
Mt Pleasant National City Bank 3130056397 (800) 925-9529
11200-1090 Centennial Cellular Corp Madelyn Read
P.O. Box 8043 (317) 267-7109
Royal Oak, MI 48068-8043
830
Lafayette Bank One LA, N.A. 7101525528 (800) 404-4111
11200-1030 Lafayette Cellular Telephone Partnership
P.O. Box 3399
Baton Rouge, LA 70821
CORPORATE
New Canaan Bank & Trust Co. 1400020517 (203) 966-7100
11410-0000 Centennial Cellular Corp
P.O. Box 967
New Canaan, CT 06840-0967
Citibank, N.A. (203) 966-8746
11200-1000 4052-6373 Antonio Thompson
11250-1125 4052-8803 (302) 323-4634
111 Wall Street Centennial Cellular Corp
6th Floor
New York, NY 10043
The Chase Manhattan Bank 910-2-698074 (718) 242-0166
11220-1110 Centennial Cellular Corp Sarah Valentine
Church Street Station (212) 552-7395
P.O. Box 932
New York, NY 10008-0932
Fleet Bank 132-7402 (800) 841-4000
11190-0000 Centennial Cellular Corp
P.O. Box 40000
Hartford, CT 06151-0602
INVESTMENTS
Merrill Lynch 61M07525 (212) 236-5218
12010-0000 Centennial Cellular Corp
World Financial Center
North Tower
New York, NY 10281-1332
Bear Stearns Securities Corp 470-04813 (212) 272-1000
12030-0000 Centennial Cellular Corp
One Metrotech Center North
Brooklyn, NY 11201-3859
PAYROLL
Lambda Banco Popular 030-130689 (888) 756-9130
Communications 11190-0000 Lambda Communications Inc
Inc P.O. Box 362708
San Juan, Puerto Rico 00936-2708
Wireless Banco Popular 030-130670 (888) 756-9130
11190-0000 Centennial Wireless PCS Operations Corp
P.O. Box 362708
San Juan, Puerto Rico 00936-2708
D-80
<PAGE>
Hendrix Electronics Union Bank of California 3690239938 (619) 352-4441
11190-0000 Hendrix Electronics Inc Lenora Poole
576 Main Street
El Centro, CA 92243-0664
Domestic Fleet Bank 000-132-7402 (800) 825-5194
11190-0000 Centennial Cellular Corp
150 Windsor Street
Hartford, CT 06120
</TABLE>
D-81
<PAGE>
ANNEX A
Prior Liens
<TABLE>
<CAPTION>
Debtor: Centennial Cellular Corp.
Secured Party Jurisdiction Location Date Number Comment
<S> <C> <C> <C> <C> <C>
Copelco Capital, Inc. Secretary of State State of June 26, 1998 1845393 The unpaid indebted-
New Jersey ness as of November
30, 1998, was $266,773
</TABLE>
D-82
<PAGE>
ANNEX B
Locations of Pledgors
<TABLE>
<CAPTION>
Pledgor Chief Executive Office Tax ID Number Other Locations
<S> <C> <C> <C>
Centennial Cellular Operating Co. LLC 1305 Campus Parkway 22-362-6519 None
Neptune, NJ 07753
Centennial Finance Corp. 1305 Campus Parkway None
Neptune, NJ 07753
Alexandria Cellular Corp. 1305 Campus Parkway 94-3115620 None
Neptune, NJ 07753
Alexandria Cellular License Corp. 1305 Campus Parkway 94-3126111 Alexandria, LA 71301
Neptune, NJ 07753 Pineville, LA 71360
Bauce Communications, Inc. 1305 Campus Parkway 93-0975980 None
Neptune, NJ 07753
Bauce Communications of Beaumont, Inc. 1305 Campus Parkway 93-0998708 Orange, TX 77630
Neptune, NJ 07753 Beaumont, TX 77706
Nederland, TX 77627
Centennial Ashe Cellular Corp 1305 Campus Parkway 06-1395074 None
Neptune, NJ 07753
Centennial Beauregard Cellular LLC 1305 Campus Parkway 22-3521764 Abbeville, LA 70510
Neptune, NJ 07753 Crowley, LA 70526
DeRidder, LA 70634
Jennings, LA 70546
Marksville, LA 71361
Oakdale, LA 71463
Opelousas, LA 70570
Centennial Beauregard Holding Corp. 1305 Campus Parkway 22-3521766 None
Neptune, NJ 07753
Centennial Benton Harbor Cellular Corp. 1305 Campus Parkway 06-1449608 Niles, MI 49085
Neptune, NJ 07753 Benton Harbor, MI
49120
Centennial Benton Harbor Holding Corp. 1305 Campus Parkway 06-1464063 None
Neptune, NJ 07753
Centennial Caldwell Cellular Corp. 1305 Campus Parkway 06-1395272 None
Neptune, NJ 07753
Centennial Cellular Corp. 1305 Campus Parkway 06-1242753 None
Neptune, NJ 07753
Centennial Cellular Telephone Company of Del Norte 1305 Campus Parkway 06-1311809 None
Neptune, NJ 07753
Centennial Cellular Telephone Company of Lawrence 1305 Campus Parkway 06-1311807 None
Neptune, NJ 07753
Centennial Cellular Telephone Company of Modoc 1305 Campus Parkway 06-1311801 None
Neptune, NJ 07753
Centennial Cellular Telephone Company of Sacramento 1305 Campus Parkway 06-1311804 None
Neptune, NJ 07753
Centennial Cellular Telephone Company of San Francisco 1305 Campus Parkway 06-1311798 None
Neptune, NJ 07753
D-83
<PAGE>
Centennial Cellular Tri-State Operating Partnership 1305 Campus Parkway 06-1427070 Kendalville, IN
Neptune, NJ 07753 Michigan City, IN 46360
Rensselaer, IN 47978
Syracuse, IN 46567
Warsaw, IN 46580
Defiance, OH 43512
Napoleon, OH 43545
Centennial Cellular Wireless Holding Corp. 1305 Campus Parkway 06-1487759 None
Neptune, NJ 07753
Centennial Claiborne Cellular Corp. 1305 Campus Parkway 06-1395247 Brookhaven, MS 39601
Neptune, NJ 07753 McComb, MS 39648
Natchez, MS 39120
Centennial Clinton Cellular Corp. 1305 Campus Parkway 06-1406503 None
Neptune, NJ 07753
Centennial DeSoto Cellular Corp. 1305 Campus Parkway 06-1395229 Jonesville, LA 71343
Neptune, NJ 07753 Leesville, LA 71446
Natchitoches, LA 71457
Centennial Hammond Cellular LLC 1305 Campus Parkway 22-3521765 None
Neptune, NJ 07753
Centennial Iberia Holding Corp. 1305 Campus Parkway 22-3521767 None
Neptune, NJ 07753
Centennial Lafayette Cellular Corp. 1305 Campus Parkway 91-1383885 None
Neptune, NJ 07753
Centennial Lake Charles Cellular Corp. 1305 Campus Parkway 06-1379071 None
Neptune, NJ 07753
Centennial Louisiana Holding Corp. 1305 Campus Parkway 06-1395248 None
Neptune, NJ 07753
Centennial Mega Comm Holding Corp. 1305 Campus Parkway 22-3563375 None
Neptune, NJ 07753
Centennial Michigan RSA 6 Cellular Corp. 1305 Campus Parkway 06-1414541 None
Neptune, NJ 07753
Centennial Michigan RSA 7 Cellular Corp. 1305 Campus Parkway 06-1414585 None
Neptune, NJ 07753
Centennial Morehouse Cellular LLC 1305 Campus Parkway 22-3521761 None
Neptune, NJ 07753
Centennial Puerto Rico Wireless Corporation 1305 Campus Parkway 06-1423206 None
Neptune, NJ 07753
Centennial Randolph Cellular LLC 1305 Campus Parkway 22-3563378 Connersville, IN 47331
Neptune, NJ 07753 Richmond, IN 47374
Centennial Randolph Holdings Corp. 1305 Campus Parkway 22-3563379 None
Neptune, NJ 07753
Centennial Wireless PCS License Corp. 1305 Campus Parkway 06-1464062 None
Neptune, NJ 07753
Centennial Wireless PCS Operations Corp. 1305 Campus Parkway 06-1464113 Ponce, PR 00731
Neptune, NJ 07753 Rio Piedras, PR 00926
Hato Rey, PR 00919
Arecibo, PR 00612
Mayaguez, PR 00680
Caguas, PR 00725
Humacao, PR 00791
Century Beaumont Cellular Corp. 1305 Campus Parkway 06-1283928 None
Neptune, NJ 07753
Century Charlottesville Cellular Corp. 1305 Campus Parkway 06-1301783 None
Neptune, NJ 07753
Century El Centro Cellular Corp. 1305 Campus Parkway 93-1023432 El Centro, CA 92243
Neptune, NJ 07753 Imperial, CA 92251
Century Elkhart Cellular Corp. 1305 Campus Parkway 06-1267969 None
Neptune, NJ 07753
D-84
<PAGE>
Century Lynchburg-DE Cellular Corp. 1305 Campus Parkway 06-1277026 None
Neptune, NJ 07753
Century Michiana Cellular Corp. 1305 Campus Parkway 06-1245995 None
Neptune, NJ 07753
Century Roanoke Cellular Corp. 1305 Campus Parkway 06-1242617 None
Neptune, NJ 07753
Century South Bend Cellular Corp. 1305 Campus Parkway 06-1245350 None
Neptune, NJ 07753
Century Yuma Cellular Corp. 1305 Campus Parkway 06-1300916 Yuma, AZ 85365
Neptune, NJ 07753
El Centro Cellular Corp. 1305 Campus Parkway 06-1300817 None
Neptune, NJ 07753
Elkhart Cellular Telephone Co. 1305 Campus Parkway None
Neptune, NJ 07753
Elkhart Metronet, Inc. 1305 Campus Parkway 05-0435985 Elkhart, IN 46517
Neptune, NJ 07753
Hendrix Electronics, Inc. 1305 Campus Parkway 95-2395920 None
Neptune, NJ 07753
Hendrix Radio Communications, Inc. 1305 Campus Parkway 95-3803455 None
Neptune, NJ 07753
Iberia Cellular Telephone Company Inc. 1305 Campus Parkway 91-1557127
Neptune, NJ 07753
Iberia Cellular Telephone Company LLC 1305 Campus Parkway 22-3521762 Morgan City, LA 70380
Neptune, NJ 07753 New Iberia, LA 70560
Lafayette Cellular Telephone Company Partnership 1305 Campus Parkway 91-1430742 Lafayette, LA 70503
Neptune, NJ 07753 Lafayette, LA 70506
Lafayette, LA 70508
Lafayette Communications, Inc. 1305 Campus Parkway 94-3033720 None
Neptune, NJ 07753
Mega Comm LLC 1305 Campus Parkway 22-2916947 Huntington, IN 46750
Neptune, NJ 07753 Marion, IN 46952
Michiana Metronet Inc. 1305 Campus Parkway 05-0429135 Angola, IN 46703
Neptune, NJ 07753 Auburn, IN 46706
Bluffton, IN 46714
Decatur, IN 46733
Fort Wayne, IN 46802
Fort Wayne, IN 46805
Fort Wayne, IN 46804
Adrian, MI 49221
Battle Creek, MI 49015
Coldwater, MI 49036
Kalamazoo, MI 49007
Portage, MI 49002
South Bend Metronet, Inc. 1305 Campus Parkway 05-0432137 South Bend, IN 46601
Neptune, NJ 07753 South Bend, IN 46635
</TABLE>
D-85
<PAGE>
EXHIBIT 1
Form of Issuer Acknowledgment
The undersigned hereby (i) acknowledges receipt of a copy of the
Security Agreement (as amended, amended and restated, supplemented or otherwise
modified from time to time, the "Agreement"; capitalized terms used herein but
not defined herein have the meanings given such terms in the Agreement), dated
as of January 7, 1999, among Centennial Cellular Operating Co. LLC (the
"Borrower"), Centennial Wireless PCS Operations Corp. (the "PR Borrower") the
Guarantors from time to time party thereto and NationsBank, N.A., as collateral
agent ("Administrative Agent"), (ii) agrees promptly to note on its books the
security interests granted and confirmed under the Agreement, (iii) agrees that
it will comply with instructions of Administrative Agent with respect to the
applicable Securities Collateral without further consent by applicable Pledgor,
(iv) agrees to notify Administrative Agent upon obtaining knowledge of any
interest in favor of any Person in the applicable Securities Collateral that is
adverse to the interest of Administrative Agent therein and (v) waives any right
or requirement at any time hereafter to receive a copy of the Agreement in
connection with the registration of any Securities Collateral thereunder in the
name of Administrative Agent or its nominee or the exercise of voting rights by
Administrative Agent or its nominee.
[NAME OF ISSUER]
By:
Name:
Title:
NOTE: This form should be signed by each issuer of uncertificated Securities
Collateral.
D-86
<PAGE>
EXHIBIT 2
Form of Financial Account Consent Agreement
[Name of Pledgor]
[Address of Pledgor]
[Date]
[Name and
address of
Financial Institution]
Ladies and Gentlemen:
We refer to account numbers ___________ and _____________ (the
"Financial Accounts") maintained with [Name of Financial Institution] (the
"Financial Institution") by [Name of Pledgor] (the "Company") and into which
certain moneys, instruments, securities and other property are or may be
deposited from time to time. The Company has granted to NationsBank, N.A., as
Administrative Agent ("Administrative Agent") for the benefit of the Secured
Parties under, and as defined in, the Security Agreement, dated as of January 7,
1999, among Centennial Cellular Operating Co. LLC (the "Borrower"), Centennial
Wireless PCS Operations Corp. (the "PR Borrower"), certain guarantors party
thereto and Administrative Agent (as amended, amended and restated, supplemented
or otherwise modified from time to time, the "Agreement"), a security interest
in the Financial Account Collateral (as defined in the Agreement), including,
without limitation, all moneys, instruments, securities and other property
deposited therein and all certificates or other instruments, if any,
representing or evidencing the Financial Accounts. It is a condition to the
continued maintenance of the Financial Accounts with the Financial Institution
that the Financial Institution agrees to this letter agreement.
The parties hereto agree as follows:
1. The Financial Institution hereby confirms that the Company has
established with it the Financial Accounts. The Financial Institution agrees
that from and after the date hereof the Financial Accounts shall be under the
exclusive dominion and control of Administrative Agent and all moneys,
instruments, securities and other property of the Company received in connection
therewith, whether or not deposited in the Financial Accounts, shall be held
solely for the benefit of Administrative Agent. Except as otherwise provided
herein, the Financial Accounts shall be subject to written instructions only
from Administrative Agent.
D-87
<PAGE>
2. The Financial Institution agrees to do the following:
(a) follow its usual operating procedures for the handling of any
remittance received in the Financial Accounts that contains
restrictive endorsements, irregularities, such as a variance between
the written and numerical amounts, undated or postdated items, missing
signature and incorrect payee;
(b) endorse and process all eligible checks and other remittance
items not covered by subparagraph (a) above and deposit such checks
and other remittance items in the Financial Accounts; and
(c) maintain a record of all checks and other remittance items
received in the Financial Accounts and, in addition to providing the
Company with photostats, vouchers and enclosures of checks and other
remittance items received on a daily basis, as well as a monthly
statement, furnish to Administrative Agent, free of any service charge
payable by Administrative Agent, its regular Lender statement with
respect to the Financial Accounts, with the words "NationsBank, N.A.,
as Administrative Agent, Re: Centennial Cellular Operating Co. LLC"
included thereon so that there is no confusion as to ownership of the
Financial Accounts and so that Administrative Agent is able to
properly identify the Financial Accounts.
3. [The Financial Institution hereby agrees that no later than
12:00 p.m. on each business day on which transactions may be made with respect
to the Financial Accounts, without further notice or instruction of any kind, to
transfer (by wire transfer) the total of all immediately available funds or
credits in each Financial Account to the concentration account, account no.
_________________, ABA # ___________, reference: Centennial Cellular Operating
Co. LLC (the "Concentration Account") maintained by the Company with
Administrative Agent at its office located at 901 Main Street, 14th Floor,
Dallas, Texas 75202.
D-88
<PAGE>
[Administrative Agent hereby instructs the Financial Institution to
follow the instructions of the Company with respect to the disposition of any
and all moneys, instruments, securities and other property deposited in the
Financial Accounts as directed by the Company unless and until the Financial
Institution has received written instructions to the contrary from
Administrative Agent, in which case the Financial Institution agrees to follow
such instructions from Administrative Agent.][FN1]
The Financial Institution hereby agrees that Administrative Agent will
be entitled to all rights and remedies to which a person in control of
"financial assets" (within the meaning of Section 8-102(a)(9) of the Uniform
Commercial Code as in effect in the State of New York (the "UCC")) is entitled
pursuant to Part 5 of Article 8 of the UCC and Article 9 of the UCC, and [,
subject to the provisions of the immediately preceding paragraph,] the Financial
Institution agrees to follow the instructions of Administrative Agent with
respect to the disposition of any and all moneys, instruments, securities, and
other property deposited in the Financial Accounts.
Without limiting the foregoing, if at any time the Financial
Institution shall receive an "entitlement order" (within the meaning of Section
8-102(a)(8) of the UCC) issued by Administrative Agent and relating to the
Financial Accounts, the Financial Institution shall comply with such entitlement
order without further consent of Borrower, the Company or any other person. The
[FN1] Note: The first paragraph in this section is only for Financial
Institutions that have collection accounts for receivables of the
Company, and the second paragraph is only for Financial Institutions
that maintain disbursement accounts of the Company. The disbursement
accounts are the accounts where the Pledgors may keep their Financial
Account Collateral that is not subject to the daily sweep requirement
of Section 10(b) of the Agreement. Any funds in excess of such amount
will have to be swept into the concentration account by the Pledgors.
D-89
<PAGE>
Financial Institution hereby agrees that it shall be a "securities intermediary"
within the meaning of Section 8-102(a)(14) of the UCC and that the Financial
Accounts shall be maintained as "securities accounts" (as such term is defined
in Section 8-501(a) of the UCC) to the extent that any "investment property" (as
defined in Section 9-115 of the UCC) is maintained in or in respect of the
Financial Accounts and that each item of investment property credited to a
Financial Account shall be treated as a financial asset. The Financial
Institution further agrees that all securities or other investment property
underlying any financial assets credited to any Financial Account shall be
registered in the name of the Financial Institution, endorsed to it or in blank
or credited to another securities account maintained in its name.
4. Except for the claims and interest of Administrative Agent
and the Company in the Financial Accounts, the Financial Institution
acknowledges that it does not know of any claim to, or interest in, the
Financial Accounts or in any financial asset credited thereto. If any person
asserts any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against the
Financial Accounts or in any financial asset carried therein, the Financial
Institution will promptly notify Administrative Agent, Borrower and the Company
thereof.
5. The Financial Institution waives and agrees not to assert,
claim or endeavor to exercise, and by executing this letter agreement bars and
estops itself from asserting, claiming or exercising, and the Financial
Institution acknowledges that it has not heretofore received a notice from any
other party asserting, claiming or exercising, any right of setoff, banker's
lien or other purported form of claim with respect to the Financial Accounts and
funds from time to time therein. The Financial Institution shall have no rights
in the Financial Accounts or the funds therein. To the extent that it may ever
have any such rights, the Financial Institution hereby expressly subordinates
all such rights to all rights of Administrative Agent.
6. The Financial Institution shall not be liable for any action
taken or omitted by it with respect to the Financial Accounts on the
instructions of Administrative Agent, and the Financial Institution shall not
have any duty or responsibility to ascertain whether any such instructions are
consistent with the Agreement or the other credit documents relating thereto.
The Financial Institution may rely on any certificate, statement, request,
agreement or other instrument it believes in good faith to be genuine and to
have been signed or presented by or on behalf of Administrative Agent. In
maintaining the Financial Accounts hereunder, the Financial Institution may
consult with counsel and shall be fully protected with respect to any action
taken or omitted by it in good faith on advice of counsel and shall have no
liability hereunder except for its bad faith, willful misconduct or gross
negligence with respect to its obligations hereunder.
D-90
<PAGE>
7. The Company agrees to indemnify the Financial Institution
against and save the Financial Institution harmless from any and all claims,
liabilities, reasonable costs and expenses, including reasonable out-of-pocket
fees and expenses of counsel, for anything done or omitted by you in good faith
in connection with this letter agreement, including reasonable costs and
expenses of defending itself against any claim or liability; provided, that the
Financial Institution shall not have the right to be indemnified hereunder for
its bad faith, gross negligence or willful misconduct.
8. The Financial Institution may terminate this letter agreement
only upon thirty days' prior written notice to that effect to the Company and
Administrative Agent and by canceling the Financial Accounts maintained with it
and transferring all funds, if any, in such Financial Accounts to Administrative
Agent. After any such termination, the Financial Institution shall nonetheless
remain obligated promptly to transfer to Administrative Agent at its address
anything from time to time received in respect of the Financial Accounts.
9. This letter agreement shall be binding upon the parties
hereto and their respective successors and assigns. This letter agreement may be
executed in counterparts, each of which will be deemed an original and all of
which taken together shall constitute one and the same instrument.
D-91
<PAGE>
THE "SECURITIES INTERMEDIARY'S JURISDICTION" WITHIN THE MEANING OF
SECTION 8-110(E) OF THE UCC IS AND SHALL CONTINUE TO BE THE STATE OF NEW YORK.
THIS LETTER AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
EXCLUDING (TO THE GREATEST EXTENT PERMITTED BY LAW) ANY RULE OF LAW THAT WOULD
CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF
NEW YORK.
Very truly yours,
[NAME OF PLEDGOR]
By:___________________________
Name:
Title:
NATIONSBANK, N.A.,
as Administrative Agent
By:___________________________
Name:
Title:
Acknowledged and agreed to
as of the date first above written.
[FINANCIAL INSTITUTION]
By:_____________________________
Name:
Title:
D-92
<PAGE>
EXHIBIT 3
Form of Securities Pledge Amendment
PLEDGE AMENDMENT
This Pledge Amendment, dated __________, is delivered pursuant to
Section 8 of the Agreement referred to below. The undersigned hereby agrees that
this Pledge Amendment may be attached to the Security Agreement, dated as of
January 7, 1999, among the undersigned, certain other Pledgors and NationsBank,
N.A., as Administrative Agent (the "Agreement"; capitalized terms used herein
and not defined shall have the meanings assigned to them in the Agreement) and
that the Pledged Securities and/or Intercompany Notes listed on this Pledge
Amendment shall be deemed to be and shall become part of the Pledged Collateral
and shall secure all Secured Obligations.
_______________________________
as Pledgor
By:______________________________
Name:
Title:
Pledged Securities
PERCENTAGE OF ALL
ISSUED CAPITAL OR OTHER
CLASS PAR CERTIFICATE NUMBER OF EQUITY INTERESTS OF
ISSUER OF STOCK VALUE NO(S). SHARES ISSUER
Intercompany Notes
PRINCIPAL DATE OF INTEREST MATURITY
ISSUER AMOUNT ISSUANCE RATE DATE
D-93
<PAGE>
EXHIBIT 4
Form of Joinder Agreement
[Name of New Pledgor]
[Address of New Pledgor]
[Date]
NationsBank, N.A.,
as Administrative Agent
901 Main Street
14th Floor
Dallas, Texas 75202
Attention: _________________
Ladies and Gentlemen:
Reference is made to the Security Agreement (the "Agreement"), dated
as of January 7, 1999, made by Centennial Cellular Operating Co. LLC (the
"Borrower"), Centennial Wireless PCS Operations Corp. (the "PR Borrower"), each
of the Guarantors listed on the signature pages thereto or from time to time
party thereto by execution of a joinder agreement and NationsBank, N.A., as
collateral agent for the Secured Parties. Capitalized terms used herein but not
otherwise defined herein have the meanings given such terms in the Agreement.
This letter supplements the Agreement and is delivered by the
undersigned, ______________ (the "New Pledgor"), pursuant to Section 23 of the
Agreement. The New Pledgor hereby agrees to be bound as a Guarantor and as a
Pledgor by all of the terms, covenants and conditions set forth in the Agreement
to the same extent that it would have been bound if it had been a signatory to
the Agreement on the execution date of the Agreement. The New Pledgor hereby
makes each of the representations and warranties and agrees to each of the
covenants applicable to the Pledgors contained in the Agreement.
Attached hereto are supplements to each of the schedules and annexes
to the Agreement with respect to the New Pledgor. Such supplements shall be
deemed to be part of the Agreement.
D-94
<PAGE>
This agreement and any amendments, waivers, consents or supplements
hereto may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original, but all such counterparts together shall
constitute one and the same agreement.
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, EXCLUDING (TO THE
GREATEST EXTENT PERMITTED BY LAW) ANY RULE OF LAW THAT WOULD CAUSE THE
APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the New Pledgor has caused this Agreement to be
executed and delivered by its duly authorized officer as of the date first above
written.
[NEW PLEDGOR]
By: ____________________________
Name:
Title:
AGREED TO AND ACCEPTED:
NATIONSBANK, N.A.,
as Administrative Agent
By: __________________________
Name:
Title:
[Schedules and Annexes to be attached]
D-95
<PAGE>
Exhibit E-1
[Form of Opinion of Counsel to the Obligors]
[Letterhead of Reboul, MacMurray, Hewitt, Maynard & Kristol]
January 7, 1999
To the Lead Arranger, the Administrative
Agent and each of Lenders party
to the Credit Agreement referred
to below
Ladies & Gentlemen:
We have acted as counsel to Centennial Cellular Operating Co. LLC
("Borrower"), Parent and the other guarantors party to the Credit Agreement (as
defined)(each, a "Guarantor", and collectively, the "Guarantors", and
collectively with Borrower, the "Obligors"), in connection with the execution
and delivery of the Credit Agreement, dated as of January 7, 1999 (the "Credit
Agreement"), among Borrower, PR Borrower, the Guarantors, the lenders party
thereto ("Lenders"), Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Lead Arranger, NationsBank, N.A., as Co-Arranger and
Administrative Agent, The Chase Manhattan Bank, as Co-Arranger and
Co-Documentation Agent, The Bank of Nova Scotia, as Co-Documentation Agent,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Syndication Agent, and Morgan Stanley Senior Funding, Inc., as Senior Managing
Agent, and the transactions contemplated thereby. This opinion is delivered to
you pursuant to Section 7.01(i)(3) of the Credit Agreement. Unless otherwise
indicated, capitalized terms used herein but not otherwise defined herein shall
have the respective meanings set forth in the Credit Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such documents as we
have deemed necessary or appropriate as a basis for the opinions set forth
herein, including, without limitation, the following (collectively, the "Credit
Documents"): (a) the Credit Agreement, (b) the Notes, (c) the Security Documents
and (d) such other public and corporate documents and records as we deem
necessary or appropriate in connection with this opinion.
E1-1
<PAGE>
In our examination we have assumed the genuineness of all signatures
(other than as to any Obligor), the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies and the authenticity of the originals
of such copies. As to questions of fact not independently verified by us we have
relied, to the extent we deemed appropriate, upon representations and
certificates of officers of each Obligor, public officials and other appropriate
persons.
Based upon the foregoing, we are of the opinion that:
1. Each of the Obligors has been duly incorporated and is validly
existing and in good standing under the laws of the State of Delaware, and has
the corporate power and authority to conduct its business as now conducted, and
to own, or hold under lease, its assets.
2. Each of the Obligors is duly qualified to transact business and is
in good standing in each United States jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that failure to so qualify or be
in good standing would not, singly or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
3. The execution, delivery and performance of each of the Credit
Documents have been duly authorized by all necessary corporate action of each of
Obligors, and each of the Credit Documents has been duly executed and delivered
by Borrower.
4. Each of the Credit Documents constitutes a legally valid and
binding obligation of Borrower and PR Borrower in accordance with its terms. On
and after the effective time of the Recapitalization, each of the Credit
Documents will be the legally valid and binding obligation of the Guarantors,
enforceable against the Guarantors in accordance with its terms.
5. The execution and delivery of each of the Obligors to such Credit
Documents, the borrowing of the Loans and the application of the proceeds
thereof as provided in the Credit Agreement, the making by the Guarantors of the
guaranty evidenced by Section 6 of the Credit Agreement, the performance by the
Obligors of their respective obligations under the Credit Documents on or prior
to the date hereof and the consummation of the Recapitalization do not: (i)
contravene any applicable provision of any law, statute, rule, regulation
E1-2
<PAGE>
(including, without limitation, Regulations T, U or X of the Board of Governors
of the Federal Reserve System) or any order, writ, injunction or decree of any
court or governmental instrumentality, (ii) after giving effect to any waivers,
conflict or be inconsistent with or result in any breach of, any of the terms,
covenants, conditions or provisions of, or constitute a default under, or (other
than pursuant to the Security Documents) result in the creation or imposition of
(or the obligation to create or impose) any Lien upon any of the property or
assets of the Obligors pursuant to the terms of any indenture, mortgage, deed of
trust, agreement or other instrument to which any Obligor is a party or by which
it or any of its property or assets are bound or to which it may be subject or
(iii) will violate any provision of any of the Obligor's Organic Documents.
6. There are no actions, suits or proceedings pending or, to the best
of our knowledge after due inquiry, threatened with respect to any Obligor that,
after giving effect to expected insurance proceeds and indemnity payments,
could, singly or in the aggregate, reasonably be likely to have a Material
Adverse Effect.
7. No consent, authorization or order of, or registration or filing
with, approval of or notice to any governmental or public authority is required
to be obtained or made by any Obligor pursuant to any presently existing
federal, New York or Delaware statute, rule or regulation for the execution,
delivery and performance on or prior to the date hereof by any Obligor of the
Credit Documents to which such Obligor is a party, the extension of credit under
the Credit Agreement, the payment of the Loans or the consummation of the
Recapitalization, except for the filing of the certificate of merger relating to
the Merger with the Delaware Secretary of State.
8. To the best of our knowledge, there is no action, suit, proceeding
or investigation pending or threatened against or affecting any of the Obligors
or any of their properties or assets that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge any of the Credit Documents to be
executed and delivered on or prior to the Closing Date.
9. Assuming that each Lender is an "accredited investor" (as defined
in Rule 501(a) of Regulation D of the Securities Act of 1933, as amended (the
"Act")), no registration under the Act is required for the execution or
performance by Borrower of the Credit Agreement.
E1-3
<PAGE>
10. No Obligor is an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
11. No Obligor is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
12. We call to your attention the fact that the Credit Documents
select the internal laws of the State of New York as the governing law. It is
our opinion that a federal or state court sitting in New York will honor the
parties' choice of the internal laws of the State of New York and to the
determination of whether the obligations created by the Credit Documents are
usurious.
13. All corporate, shareholder and other action on the part of Parent
and Target and their respective boards of directors and shareholders necessary
to consummate the Merger will have been taken prior to the Merger. Upon the
filing of the certificate of merger relating to the Merger with the Delaware
Secretary of State, the Merger will be validly consummated in accordance with
the Merger Certificate and Delaware General Corporation Law.
14. The Security Documents create, in favor of the Administrative
Agent for the benefit of the Creditors, as security for the obligations
purported to be secured thereby, a valid and enforceable, and upon filing or
recording with the appropriate Governmental Authorities and delivery of the
applicable documents to Administrative Agent, a perfected, security interest in
and Lien upon all of the Collateral (and the proceeds thereof).
15. When the Obligors deliver the Pledged Securities and the
Intercompany Notes, (each as defined in the Security Agreement) to the
Administrative Agent pursuant to the Security Agreement, the Security Agreement
creates a valid, enforceable and perfected security interest in favor of the
Administrative Agent for the benefit of the Creditors in the rights in the
Pledged Securities and the Intercompany Notes, subject to no equal or prior
consensual security interest granted by the Pledgors as security for the payment
and performance, to the extent set forth in the Security Agreement, of the
Secured Obligations (as defined in the Security Agreement).
E1-4
<PAGE>
16. The filing of the Security Agreement with the U.S. Patent and
Trademark Office and the U.S. Copyright Office and the filing of the UCC
financing statements with the applicable Government Authorities, will create a
valid, enforceable and perfected security interest in favor of the
Administrative Agent for the benefit of the Creditors in all Patents, Trademarks
and Copyrights (each, as defined in the Security Agreement).
17. Upon consummation of the Merger, all of the issued and outstanding
equity interests of Borrower will be duly authorized and validly issued and will
be fully paid and nonassessable and will be owned by Parent, to our knowledge,
free and clear of any Lien other than the Lien of the Security Agreement.
This opinion is being furnished only to the addressees and is solely
for their benefit and the benefit of their participants and assigns in
connection with the above transaction. This opinion may not be relied upon for
any other purpose, or relied upon by any other person, firm (other than Cahill
Gordon and Reindel as counsel to the Lead Arranger, the Administrative Agent and
Lenders) or corporation for any purpose, without our prior written consent.
Very truly yours,
E1-5
<PAGE>
Exhibit E-2
[Form of Opinion of Special FCC
Counsel to the Obligors]
(i) The entering into and borrowing under the Credit Agreement and the
consummation by the Obligors of all of the transactions contemplated by the
Credit Agreement will not result in a violation of the Communications Act of
1934, as amended (the "Communications Act"), or any order, rule or regulation of
the Federal Communications Commission (the "FCC").
(ii) No consent, approval, authorization, order, registration or
qualification of or with any governmental agency or body is required under the
Communications Act or the rules and regulations of the FCC for the entering into
and borrowing under the Credit Agreement or the consummation by the Obligors of
the transactions contemplated by the Credit Agreement, except those that have
been obtained and are in full force and effect.
(iii) The Obligors own or have the right to use or manage all of the
Governmental Licenses listed in Schedule A, without any known conflict known to
us with the rights of others, except to the extent as is not reasonably likely
to have a Material Adverse Effect. Such Governmental Licenses are in full force
and effect and such counsel is not aware of any other licenses required by the
Obligors to conduct its business as now operated or as contemplated to be
operated by it.
(iv) Such counsel is not aware of any material respect in which the
operation of the Obligors' businesses is not in accordance with the Governmental
Licenses, the Communications Act and all orders, rules and regulations of the
FCC.
(v) Except as described in the Credit Agreement, such counsel does not
know of any material proceedings threatened, pending or contemplated before the
FCC or before any court or administrative agency against or involving the
properties, businesses or Governmental Licenses of the Obligors.
(vi) To such counsel's knowledge, no event has occurred that permits,
or with notice or lapse of time or both would permit the revocation or
termination of any of the Governmental Licenses or that might result in any
other material impairment of the rights of the Obligors therein.
E2-1
<PAGE>
Schedule A
E2-2
<PAGE>
Exhibit F
[Form of Notice of Assignment]
NOTICE OF ASSIGNMENT
[Date]
[Centennial Cellular Operating Co. LLC/Centennial Borrower
Wireless PCS Operations Corp.]
Corporate Office
1305 Campus Parkway
Neptune, N.J. 07753
Attention: President
NationsBank, N.A.
901 Main Street, 14th Floor
Dallas, Texas 75202-3748
Attention: Loan Administration and Loan Syndicate Group
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
World Financial Center
225 Liberty Street
South Tower
New York, New York 10080-6114
Attention: Loan Syndicate Group
Re: Credit Agreement, dated as of January 7, 1999 (as amended,
modified or supplemented, the "Credit Agreement"), among
Centennial Cellular Operating Co. LLC, a Delaware limited
liability company, as Borrower, PR Borrower, Parent, as a
Guarantor, each of the other Guarantors party thereto, certain
lenders, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, as Lead Arranger, NationsBank, N.A., as
Co-Arranger and Administrative Agent, The Chase Manhattan Bank,
as Co-Arranger and Co-Documentation Agent, The Bank of Nova
Scotia, as Co-Documentation Agent, Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, as Syndication Agent,
and Morgan Stanley Senior Funding, Inc., as Senior Managing
Agent.
F-1
<PAGE>
Ladies and Gentlemen:
We hereby give notice that, effective as of the date hereof (but
subject to your consent hereto to the extent required pursuant to the Credit
Agreement) [Name of Assignor] (the "Assignor") has assigned its rights and
obligations with respect to $[ ] of the Assignor's outstanding [[Revolving
Credit] [Tranche A Term Loan] [Tranche A-PR Term Loan] [Tranche B Term Loan]
[Tranche C Term Loan] [Commitment and] [[Revolving Credit] [Tranche A Term]
[Tranche A-PR Term] [Tranche B Term] [Tranche C Term]Loans] (such interest in
such rights and obligations being hereinafter referred to as the "Assigned
Interest") under the Credit Agreement to [Name of Assignee] (the "Assignee").
The Assignee hereby (subject only to the effectiveness hereof) (i) becomes a
"Lender" pursuant to Section 12.06(b) of the Credit Agreement (if not already a
Lender under the Credit Agreement) and (ii) assumes all the obligations of the
Assignor thereunder with respect to the Assigned Interest and agrees to comply
with all of the provisions relating to a "Lender" under the Credit Documents.
Nothwithstanding the above, this assignment shall be effective only upon
appropriate entries thereto being made in the Register pursuant to Section
12.06(b) of the Credit Agreement.
The address for notices, lending office(s) and payment instructions
for the Assignee are as follows:
Address for Notices:
--------------------
--------------------
--------------------
Attention:
Telephone:
Telecopier:
Lending Office for Alternate Base Rate Loans:
--------------------
--------------------
--------------------
Lending Office for Loans other than Alternate Base Rate Loans:
--------------------
--------------------
--------------------
Payment Instructions:
--------------------
--------------------
--------------------
F-2
<PAGE>
Enclosed herewith are duly executed copies of all tax certificates and
other tax forms, if any, required to be delivered by Assignee under the Credit
Agreement.
Please sign and return the enclosed copy of this letter to the
undersigned to indicate your receipt hereof, and your consent to or notice of
(as applicable) the above-mentioned assignment and assumption, and your
agreement to the release of the Assignor from its obligations under the Credit
Agreement with respect to the Assigned Interest. As a condition to the
effectiveness of the above-mentioned assignment and assumption, the Assignee
hereby agrees to pay to the Administrative Agent on the date hereof an
assignment fee of $3,500, except as provided in the Credit Agreement.
Very truly yours,
[NAME OF ASSIGNOR]
By:_____________________________
Name:
Title:
[NAME OF ASSIGNEE]
By:_____________________________
Name:
Title:
ACKNOWLEDGED OR CONSENTED TO
(AS APPLICABLE):
NATIONSBANK, N.A.,
as Administrative Agent
By:___________________________
Name:
Title:
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MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED,
as Lead Arranger
By: _________________________
Name:
Title:
[NAME],
as Issuing Lender
By: _________________________
Name:
Title:
[CENTENNIAL CELLULAR OPERATING
CO. LLC, as Borrower/CENTENNIAL
WIRELESS PCS OPERATIONS CORP., as
PR Borrower]
By: _________________________
Name:
Title:
F-4
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Exhibit G
[Form of Notice of Borrowing]
NOTICE OF BORROWING
NationsBank, N.A.,
as Administrative Agent
901 Main Street, 14th Floor
Dallas, Texas 75202-3748
Ladies and Gentlemen:
The undersigned, [Centennial Cellular Operating Co. LLC, a Delaware
limited liability company ("Borrower")/ Centennial Wireless PCS Operations Corp.
("PR Borrower")], refers to the Credit Agreement, dated as of January 7, 1999
(as such may be amended, modified or supplemented, the "Credit Agreement";
capitalized terms used herein and not defined shall have the meanings assigned
to them in the Credit Agreement), among Borrower, PR Borrower, Parent, as a
Guarantor, each of the other Guarantors party thereto, certain lenders, Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Lead
Arranger, NationsBank, N.A., as Co-Arranger and Administrative Agent, The Chase
Manhattan Bank, as Co-Arranger and Co-Documentation Agent, The Bank of Nova
Scotia, as Co-Documentation Agent, Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, as Syndication Agent and Morgan Stanley Senior
Funding, Inc., as Senior Managing Agent. Borrower hereby gives you irrevocable
notice pursuant to Sections 2.02 and 4.05 of the Credit Agreement that Borrower
desires to make a borrowing (the "Proposed Borrowing") under the Credit
Agreement, and in that connection sets forth below the information relating to
the Proposed Borrowing:
(A) Proposed Borrowing:
(i) The Business Day of the Proposed Borrowing is [ ];
(ii) The aggregate amount of the Proposed Borrowing is [ ]
Dollars ($[ ]);
(iii) The Proposed Borrowing shall consist of:
[a ( ) ([$ ]) Tranche A Term Loan, of which $[ ] is requested to be Alternate
Base Rate Loans and $[ ] is requested to be LIBOR Loans [The amount of Tranche A
Term Loans that is requested to be LIBOR Loans is requested to have the
following Interest Period(s): [ ]],
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[a ( ) ($[ ]) Tranche A-PR Term Loan, of which $[ ] is requested to be Alternate
Base Rate Loans and $[ ] is requested to be LIBOR Loans [The amount of Tranche
A-PR Term Loans that is requested to be LIBOR Loans is requested to have the
following Interest Period(s): [ ]],
[a ( ) ($[ ]) Tranche B Term Loan, of which $[ ] is requested to be Alternate
Base Rate Loans and $[ ] is requested to be LIBOR Loans [The amount of Tranche B
Term Loans that is requested to be LIBOR Loans is requested to have the
following Interest Period(s): [ ]],
[a ( ) ($[ ]) Tranche C Term Loan, of which $[ ] is requested to be Alternate
Base Rate Loans and $[ ] is requested to be LIBOR Loans [The amount of Tranche C
Term Loans that is requested to be LIBOR Loans is requested to have the
following Interest Period(s): [ ]], and
[and a ( ) ($[ ]) Revolving Credit Loan, of which $[ ] is requested to be
Alternate Base Rate Loans [and $[ ] of which is requested to be LIBOR Loans.
[The amount of Revolving Credit Loans that is requested to be LIBOR Loans is
requested to have the following Interest Period(s):[ ]]; and
(iv) The proceeds of the Proposed Borrowing are to be deposited
into the accounts set forth in the attached letter and in the respective amounts
set forth therein.
(B) Borrower hereby certifies and represents that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Borrowing:
(i) All representations and warranties made by the Obligors
contained in the Credit Agreement or otherwise made in any other Credit
Documents are true and correct in all material respects, with the same effect as
though made on and as of the date of the Proposed Borrowing (except insofar as
such representations or warranties expressly relate to an earlier date, in which
case the same are true and correct as of such date); and
(ii) No Default has occurred and is continuing, or would result
from the Proposed Borrowing or from the application of the proceeds therefrom or
would otherwise exist immediately after giving effect to the Proposed Borrowing.
Dated:
[CENTENNIAL CELLULAR OPERATING
CO. LLC/CENTENNIAL WIRELESS PCS
OPERATIONS CORP.]
By:_________________________________
Name:
Title:
G-2
<PAGE>
Exhibit H
[Form of Notice of Conversion/Continuation]
NationsBank, N.A.,
as Administrative Agent
901 Main Street, 14th Floor
Dallas, Texas 75202-3748
Ladies and Gentlemen:
The undersigned, [Centennial Cellular Operating Co. LLC, a Delaware
limited liability company ("Borrower")/ Centennial Wireless PCS Operations
Corp., a Delaware corporation ("PR Borrower")], refers to the Credit Agreement,
dated as of January 7, 1999, (as such may be amended, modified or supplemented,
the "Credit Agreement"; capitalized terms used herein and not defined shall have
the meanings assigned to them in the Credit Agreement), among Borrower, PR
Borrower, Parent, as a Guarantor, each of the other Guarantors party thereto,
certain lenders, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, as Lead Arranger, NationsBank, N.A., as Co-Arranger and
Administrative Agent, The Chase Manhattan Bank, as Co-Arranger and
Co-Documentation Agent, The Bank of Nova Scotia, as Co-Documentation Agent,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Syndication Agent, and Morgan Stanley Senior Funding, Inc., as Senior Managing
Agent. Borrower hereby gives you irrevocable notice pursuant to Sections 2.09
and 4.05 of the Credit Agreement that Borrower desires [A: to convert $[ ] in
principal amount of presently outstanding Alternate Base Rate Loans to LIBOR
Loans on [ ], [ ]. The Interest Period for such LIBOR Loans commencing on such
date is requested to be a [ ] period.] [B: to continue as LIBOR Loans $[ ] in
principal amount of presently outstanding LIBOR Loans having an Interest Period
the last day of which is [ ], [ ]. The Interest Period for such LIBOR Loans
commencing on such Interest Payment Date is requested to be a [ ] period.]
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<PAGE>
Borrower hereby certifies that no Default has occurred and is
continuing, or would result from the [Conversion] [Continuation] or would
otherwise exist immediately after giving effect to the [Conversion]
[Continuation].
Dated:
[CENTENNIAL CELLULAR OPERATING
CO. LLC/CENTENNIAL WIRELESS
PCS OPERATIONS CORP.]
By:_____________________________
Name:
Title:
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<PAGE>
Exhibit I
[Form of Joinder Agreement]
JOINDER AGREEMENT, dated as of [ ], made by each of the corporations
that are signatories hereto (the "Additional Obligors"), in favor of
NationsBank, N.A., as administrative agent (in such capacity, the
"Administrative Agent") for the several banks and other financial institutions
("Lenders") from time to time parties to the Credit Agreement, dated as of
January 7, 1999 (as the same may be amended, supplemented, waived or otherwise
modified from time to time, together with any agreement extending the maturity
of, or restructuring, refunding, refinancing or increasing all or any portion of
the Indebtedness under such agreement or any successor agreement, the "Credit
Agreement"; capitalized terms not defined herein have the meanings given to them
in the Credit Agreement), among Centennial Cellular Operating Co. LLC, as
Borrower, PR Borrower, Parent, as a Guarantor, each of the other Guarantors
party thereto, certain lenders, Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, as Lead Arranger, NationsBank, N.A., as Co-Arranger
and Administrative Agent, The Chase Manhattan Bank, as Co-Arranger and
Co-Documentation Agent, The Bank of Nova Scotia, as Co-Documentation Agent,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Syndication Agent, and Morgan Stanley Senior Funding, Inc., as Senior Managing
Agent.
W I T N E S S E T H :
WHEREAS, the parties to this Joinder Agreement wish to amend Schedule
1.01(d) to the Credit Agreement in the manner hereinafter set forth; and
WHEREAS, this Joinder Agreement is entered into pursuant to Section
9.20 of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
1. Each of the undersigned Additional Obligors hereby acknowledges
that it has received and reviewed a copy of the Credit Agreement and the
Security Agreement dated as of January 7, 1999 among Centennial Cellular
Operating Co. LLC, a Delaware limited liability company, Parent, as a Guarantor,
the other Guarantors party thereto from time to time and NationsBank, N.A., as
Administrative Agent (the "Security Agreement") and acknowledges and agrees to:
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<PAGE>
(a) join the Credit Agreement as an Obligor, and, more specifically, as a
Guarantor, and the Security Agreement as a Pledgor, as indicated with
its signature below;
(b) be bound by all covenants, agreements and acknowledgments attributable
to an Obligor in the Credit Agreement and a Pledgor in the Security
Agreement; and
(c) perform all obligations and duties required of it by the Credit
Agreement and the Security Agreement as an Obligor and Pledgor.
2. Each of the undersigned hereby represents and warrants that the
representations and warranties with respect to it contained in Section 8 of the
Credit Agreement and each of the other Credit Documents to which such signatory
is a party, by virtue of this Joinder Agreement or otherwise, or which are
contained in any certificate furnished by or on behalf of such signatory are
true and correct on the date hereof as if made on and as of the date hereof.
3. The address and jurisdiction of incorporation of each of the
undersigned is set forth below its name on the signature pages hereto.
4. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
IN WITNESS WHEREOF, each of the undersigned has caused this Joinder
Agreement to be duly executed and delivered in New York, New York by its proper
and duly authorized officer as of the date set forth below.
Dated: [ ]
[ ],
as Obligor and Pledgor
By:________________________________
Name:
Title:
Address:
Jurisdiction of Incorporation:
ACKNOWLEDGED AND AGREED TO:
NATIONSBANK, N.A.,
as Administrative Agent
By:____________________________
Name:
Title:
I-2
<PAGE>
Exhibit J
[Form of Section 5.06 Certificate for Lenders]
Reference is made to the Credit Agreement dated as of January 7, 1999
among Centennial Cellular Operating Co. LLC, a Delaware limited liability
company ("Borrower"), PR Borrower, Parent, as a Guarantor, each of the other
Guarantors party thereto, certain lenders, Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated, as Lead Arranger, NationsBank, N.A., as
Co-Arranger and Administrative Agent, The Chase Manhattan Bank, as Co-Arranger
and Co-Documentation Agent, The Bank of Nova Scotia, as Co-Documentation Agent,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Syndication Agent, and Morgan Stanley Senior Funding, Inc., as Senior Managing
Agent (as such may be amended, modified or supplemented, the "Credit Agreement";
capitalized terms used herein and not defined shall have the meanings assigned
to them in the Credit Agreement). [ ] ("Lender") is providing this certificate
pursuant to subsection 5.06(b) of the Credit Agreement. Under penalties of
perjury, Lender hereby represents and warrants that:
1. Either (i) Lender is the sole record and beneficial owner of the
Note(s) registered in its name in respect of which it is providing this
certificate, and it shall remain the sole beneficial owner of such Note(s)
registered in its name at all times during which it is the record holder of such
Note(s) registered in its name, or (ii) the beneficial owner of such Loan(s) or
such obligations evidenced by the Note(s) (a) is a United States person or has
provided Internal Revenue Service Form 1001 or 4224 to the Lender, or (b) has
provided to the Lender a completed and duly executed certificate substantially
in the form of this Section 5.06 Certificate.
2. Lender is not a "bank" for purposes of Section 881(c)(3)(A) of the
Internal Revenue Code of 1986, as amended (the "Code").
3. Lender is not a 10% shareholder of Borrower within the meaning of
Section 881(c)(3)(B) of the Code.
4. Lender is not a controlled foreign corporation related to Borrower
within the meaning of Section 864(d)(4) of the Code.
5. The income from the Note(s) held by Lender is not effectively
connected with the conduct of a trade or business within the United States.
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<PAGE>
6. Lender has furnished Borrower with a certificate of foreign status
on Internal Revenue Service Form W-8 (or the applicable successor form or
certificate).
7. Lender will promptly notify Borrower and the Administrative Agent
if any of the representations and warranties made herein are no longer true and
correct.
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate.
[LENDER]
By: _____________________________
Name:
Title:
[Address]
Date:
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<PAGE>
EXHIBIT K
[Form of Collateral Assignment of Location Agreements]
COLLATERAL ASSIGNMENT OF LOCATION AGREEMENTS
COLLATERAL ASSIGNMENT OF LOCATION AGREEMENTS ("Assignment") dated as
of January 7, 1999 by CENTENNIAL CELLULAR OPERATING CO. LLC, a Delaware limited
liability company ("Borrower"), CENTENNIAL WIRELESS PCS OPERATIONS CORP. ("PR
Borrower"), and each of the Guarantors party hereto and each of Borrower, PR
Borrower and such Guarantors, (individually, an "Assignor"; collectively, the
"Assignors"), in favor of NATIONSBANK, N.A., in its capacity as administrative
agent (in such capacity and together with any successor in such capacity, the
"Administrative Agent") for the Lenders.
R E C I T A L S :
A. Borrower, PR Borrower, Parent, as a Guarantor, the other Guarantors
party thereto, certain lenders, Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, as Lead Arranger, NationsBank, N.A., as Co-Arranger
and Administrative Agent, The Chase Manhattan Bank, as Co-Arranger and
Co-Documentation Agent, The Bank of Nova Scotia, as Co-Documentation Agent,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Syndication Agent, and Morgan Stanley Senior Funding, Inc., as Senior Managing
Agent, are parties to a Credit Agreement dated as of the date hereof (as
amended, amended and restated or otherwise modified and supplemented and in
effect from time to time, the "Credit Agreement"), providing, subject to the
terms and conditions thereof, for extensions of credit (by the making of loans
and the issuance of letters of credit) to be made by said lenders to either
Borrower and PR Borrower. Except as otherwise defined herein, terms used herein
and defined in the Credit Agreement shall be used herein as so defined.
B. To secure, among other things, their obligations under the Credit
Agreement, Assignors have entered into a Security Agreement, dated as of the
date hereof, with the Administrative Agent, pursuant to which Assignors have
pledged, among other things, their interests in the Agreements (as hereinafter
defined).
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C. Pledgors are, or are the successors in interest to, the holders of
the access and use rights under those certain agreements (individually, an
"Agreement"; collectively, the "Agreements"), a complete list of which as of the
date hereof is attached as Schedule A hereto, with the respective landlords and
sublandlords (individually, a "Landlord"; collectively, the "Landlords")
thereto. The Agreements pertain to the properties (the "Premises") which are
described in each respective Agreement and shall include any other similar
agreement providing for use of and access to cellular telephone transmission
sites executed by any Assignor after the date hereof.
D. Assignors may at any time and from time to time enter into, or
guarantee obligations of its Subsidiaries under, one or more Swap Contracts or
Interest Rate Protection Agreements with one or more Lenders or Affiliates of a
Lender.
E. It is a condition to each of the above-described extensions of
credit to the Assignors that the Assignors shall have executed and delivered
this Assignment.
F. This Assignment is made by Assignors in favor of Administrative
Agent for the benefit of the Creditors (collectively, the "Secured Parties")
together with the Bank Creditors, the "Secured Creditors"). This Assignment is
given to Administrative Agent to secure the Secured Obligations (as defined in
the Security Agreement).
A G R E E M E N T :
Assignors and Administrative Agent hereby agree as follows:
1. Assignment. Assignors hereby transfer and assign to Administrative
Agent a continuing security interest in all of the right, title and interest of
Assignors, whether now owned or hereafter acquired, in and to each of the
Agreements and any other similar agreements providing for use of and access to
cellular telephone transmission sites executed by any Assignor after the date
hereof. This Assignment of such Agreements is made as collateral security for
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<PAGE>
the payment and performance of the Secured Obligations. Notwithstanding the
foregoing, the foregoing assignment does not and shall not include any Agreement
or other such similar agreement which would be breached or rendered void or
unenforceable by reason of its being including in the foregoing assignment or
which is not assignable by its terms, unless a consent to the assignment has
been received by such Assignor and/or the Administrative Agent; provided,
however, that no Assignor shall enter into any Agreement or other such similar
agreement after the date hereof material to either Borrower and its
Subsidiaries, taken as a whole, or PR Borrower and its Subsidiaries, taken as a
whole, as the case may be, containing any such terms which are not customary
without the prior consent of the Administrative Agent and the Majority Lenders.
2. No Assumption of Obligations or Duties of the Assignors. This
Assignment is an assignment for collateral security only of all right, title and
interest of the Assignors in the Agreements. Assignors agree that the Secured
Creditors have not assumed and will not be deemed to have assumed any of the
obligations or duties of Assignors under or with respect to the Agreements
unless and until the Secured Creditors shall have given the Landlords written
notice that the Secured Creditors have affirmatively assumed such obligations
and duties as the result of a continuing Event of Default under the Credit
Agreement or the Agreements.
3. Representations, Warranties and Covenants of Assignors. Assignors
represent, warrant and covenant to Administrative Agent as follows:
(a) Schedule A attached hereto contains a complete list as of the
date hereof of the Agreements. Each Assignor is the sole owner of the
lessee's interest in each Agreement, free and clear and of all Liens,
except for the Liens created in favor of Administrative Agent pursuant
to, or in connection with, the Credit Documents and Permitted Liens
applicable to the Agreements. Each Agreement is valid and enforceable,
subject to the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and similar laws, and has not been
altered, modified or amended in any manner, except as described on
Schedule A. Neither such Assignor nor, to such Assignor's knowledge,
the Landlord under any Agreement is in default under such Agreement
nor, to the knowledge of such Assignor, has any event occurred (other
than pursuant to this Assignment or the Security Agreement) which with
the passage of time or the giving of notice would constitute a default
under such Agreement except for any such default as is not reasonably
likely to have a Material Adverse Effect.
(b) Each Assignor agrees (i) to observe and perform all
obligations imposed upon such Assignor under each Agreement and not to
do, or permit to be done, anything to materially impair such
Assignor's rights thereunder except as would not reasonably be likely
to have a Material Adverse Effect; (ii) not to assign such Assignor's
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<PAGE>
interest under any Agreement (except pursuant to this Assignment and
the Security Agreement); (iii) other than upon the expiration of the
terms of the respective Agreements in accordance with their terms or
except as would not reasonably be likely to have a Material Adverse
Effect, not alter, modify or change the terms of any Agreement in any
material respect, or cancel or terminate any Agreement, or surrender
possession of any of the Premises, or any part thereof, without the
prior written consent of Administrative Agent, which consent shall not
be unreasonably withheld; and (iv) to use reasonable efforts to
enforce the performance by the Landlord under each Agreement of all of
such Landlord's obligations under such Agreement except as is not
reasonably likely to have a Material Adverse Effect.
(c) Each Assignor has full power and authority to execute,
deliver and perform its obligations under this Assignment.
(d) This Assignment shall be a legal, valid and binding
obligation of each Assignor, enforceable in accordance with its terms,
subject to the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and similar laws.
(e) Each Assignor agrees that, upon request of Administrative
Agent, such Assignor shall provide to Administrative Agent an updated
Exhibit A to this Assignment containing a complete list as of a recent
date of all then effective Agreements.
(f) Each Assignor agrees that at any time during the continuance
of an Event of Default that Administrative Agent believes in its
commercially reasonable business judgment that there is a substantial
risk that any Assignor will not be able to perform its obligations
under the Credit Agreement and the other Credit Documents, such
Assignor shall (i) notify the Landlord under any or all of the
Agreements that such Assignor has executed and delivered this
Assignment to Administrative Agent and (ii) take any and all action
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reasonably requested by Administrative Agent to cause this Assignment
to be recorded in any applicable filing office and the security
interest in the Agreements granted hereunder and under the Security
Agreement to be perfected.
4. Appointment of Administrative Agent as Attorney-in-Fact. Each
Assignor hereby irrevocably constitutes and appoints Administrative Agent as its
attorney-in-fact to demand, receive and enforce the respective rights and
interests of Assignor with respect to the Agreements at any time after the
occurrence and during the continuance of an Event of Default under the Credit
Agreement, and give appropriate notices for and on behalf of and in the name of
any Assignor or, at the option of Administrative Agent in the name of
Administrative Agent, with the same force and effect as such Assignor could do
if this Assignment had not been made.
5. Effect of Assignment; Remedies for Default. This Assignment shall
constitute an assignment for collateral security and Administrative Agent shall
have no right under this Assignment to enforce the provisions of any Agreement
unless there shall occur and be continuing an Event of Default under the Credit
Agreement. Upon the occurrence and during the continuance of any such Event of
Default, Administrative Agent may, without affecting any of its or the Secured
Creditors' rights or remedies against Assignors under any other instrument,
document or agreement, exercise its rights under this Assignment as
attorney-in-fact of Assignors in any manner permitted by law, and Administrative
Agent shall have the right to exercise and enforce any or all rights and
remedies available after default to a secured party under the UCC or other
applicable law. If notice to Assignors of any intended disposition of collateral
or any other intended action is required by law in a particular instance, such
notice shall be deemed commercially reasonable if given at least ten days prior
to the date of intended disposition. During the continuance of an Event of
Default, Administrative Agent may (i) either in person or by agent, with or
without bringing any action or proceeding, or by a receiver appointed by a
court, take possession of any or all of the Premises and have, hold, manage,
lease and operate the same, on such terms, and for such period of time, as
Administrative Agent may deem proper (but in no event in a manner inconsistent
with the stated terms of any applicable Agreement) and (ii) in connection with
the exercise of its rights under clause (i) above, terminate all of Assignors'
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right to retain, use and enjoy all rights under any Agreement. Notwithstanding
anything to the contrary contained herein, to the extent that the exercise of
any such remedies would constitute a transfer of control to Administrative Agent
of any Licenses issued by the FCC to an Assignor, which transfer of control
requires the FCC's prior approval, then Administrative Agent will not exercise
any such remedies until the FCC's prior approval has been obtained.
6. Indemnification. After the occurrence and during the continuance of
any Event of Default, Administrative Agent may, but shall not be obligated to,
perform or discharge any obligation, duty or liability under any Agreement or
under or by reason of this Assignment. Furthermore, each Assignor shall, and
hereby agrees to, indemnify, defend and hold Administrative Agent harmless from,
and against, any and all liability, loss, cost, damage or expense which may, or
might be, incurred by Administrative Agent, directly or indirectly, under any
Agreement or under or by reason of this Assignment and from any and all claims
and demands whatsoever which may be asserted against Administrative Agent by
reason of any alleged obligations or undertakings on its part to perform or
discharge any of the covenants or agreements contained in any Agreement other
than any such liability, loss, cost or expense incurred as a result of the gross
negligence or willful misconduct of Administrative Agent. If Administrative
Agent incurs any such liability under any Agreement or under or by reason of
this Assignment or in defense of any such claims or demands, the amount thereof,
including all costs, expenses and reasonable attorneys' fees, shall be added to
the Secured Obligations and Assignors shall reimburse Administrative Agent
therefor immediately upon demand. The parties hereto understand further that
this Assignment shall not operate to place responsibility for the control, care,
management or repair of any of the Premises upon Administrative Agent (except as
provided in the Agreement for matters first arising after Administrative Agent
has taken physical possession of such Premises, other than for possession solely
for the purpose of disposing of the assets of Assignors), or for the carrying
out of any of the terms or conditions of any Agreement (except for matters first
arising after Administrative Agent has taken physical possession of the
Premises, other than for possession solely for the purpose of disposing of the
assets of Assignors), and it shall not operate to make Administrative Agent
responsible or liable for any waste committed on any of the Premises by
Assignors or for any negligence in the management, upkeep, repair or control of
any of the Premises, resulting in loss, injury or death to any lessee,
sublessee, invitee, licensee, employee, stranger or any other Person.
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7. Remedies Cumulative. No right or remedy of Administrative Agent
hereunder is exclusive of any other right or remedy hereunder or now or
hereafter existing at law or in equity or under the Credit Agreement, the Notes
or the other Credit Documents, but is cumulative and in addition thereto and
Administrative Agent may recover judgment thereon, issue execution therefor, and
resort to every other right or remedy available at law or in equity or under the
Credit Agreement, the Notes or the other Credit Documents, without first
exhausting or affecting or impairing the security or any right or remedy
afforded under this Assignment. No delay in exercising, or omission to exercise,
any such right or remedy will impair any such right or remedy or will be
construed to be a waiver of any default by Assignors hereunder, or acquiescence
therein, nor will it affect any subsequent default hereunder by Assignors of the
same or different nature. Every such right or remedy may be exercised
independently or concurrently, and when and so often as may be deemed expedient
by Administrative Agent. In case Administrative Agent shall have proceeded to
enforce any right under this Assignment and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to Administrative Agent then, and in every such case, Assignors and
Administrative Agent shall be restored to their former positions with respect to
the Agreements, and all rights, remedies, and powers of Administrative Agent
shall continue as though no such proceedings had been taken.
8. Costs and Expenses. Each Assignor hereby agrees to pay all costs
and expenses (including, without limitation, reasonable attorney's fees and
expenses) which Administrative Agent may incur in administering this Assignment
and in exercising and enforcing any of its rights and remedies under this
Assignment.
9. Successors and Assigns. This Assignment shall be binding upon
Assignors and their successors and assigns, and shall inure to the benefit of
Administrative Agent and its successors and assigns. Administrative Agent may
assign its right, title and interest in the Agreements upon notice to the
Assignors, but without any requirements for the consent of Assignors.
10. Amendment. This Assignment can be waived, modified, amended,
terminated or discharged only explicitly in a writing signed by Administrative
Agent, Borrower. A waiver signed by Administrative Agent shall be effective only
in the specific instance and for the specific purpose given.
11. Termination. This Assignment shall terminate and be of no further
force and effect as of the date upon which the Commitments of the Lenders under
the Credit Agreement and all Swap Contracts and Interest Rate Protection
Agreements between any Assignor and any Lender or its Affiliate have been
terminated, no Note under the Credit Agreement is outstanding (and all Loans
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have been repaid in full), all Letters of Credit have been terminated and all
Secured Obligations then owing have been paid in full. Upon such termination, at
the request of Assignors, Administrative Agent shall provide written
confirmation of such termination to Assignors in form reasonably requested by
Assignors, at Assignors' cost and expense.
12. Governing Law. This Assignment shall be governed by, and shall be
construed and enforced in accordance with the laws of the State of New York,
without regard to principles of conflicts of laws except to the extent that,
with respect to enforcement relating to any Agreement, the laws of the
jurisdiction where the applicable Premises are located govern.
13. Notices. Any notice delivered by Assignors or Administrative Agent
hereunder shall be delivered in the manner provided in the Credit Agreement.
IN WITNESS WHEREOF, Assignors and Administrative Agent have executed
this Assignment as of the date first set forth above.
ASSIGNORS:
CENTENNIAL CELLULAR OPERATING CO.
LLC, as Borrower
By:_______________________________
Name:
Title:
CENTENNIAL WIRELESS PCS
OPERATIONS CORP.,
as PR Borrower
By:_______________________________
Name:
Title:
K-8
<PAGE>
ASSIGNORS
CENTENNIAL CELLULAR CORP.
By:_______________________________
Name: Peter W. Chehayl
Title: Vice President
ALEXANDRIA CELLULAR CORPORATION
ALEXANDRIA CELLULAR LICENSE CORPORATION
BAUCE COMMUNICATIONS, INC.
BAUCE COMMUNICATIONS OF BEAUMONT, INC.
CENTENNIAL ASHE CELLULAR CORP.
CENTENNIAL BEAUREGARD HOLDING CORP.
CENTENNIAL BENTON HARBOR CELLULAR CORP.
CENTENNIAL BENTON HARBOR HOLDING CORP.
CENTENNIAL CALDWELL CELLULAR CORP.
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF DEL NORTE
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF LAWRENCE
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF MODOC
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF SACRAMENTO VALLEY
CENTENNIAL CELLULAR TELEPHONE
COMPANY OF SAN FRANCISCO
CENTENNIAL CELLULAR WIRELESS
HOLDING CORP.
CENTENNIAL CLAIBORNE CELLULAR CORP.
CENTENNIAL CLINTON CELLULAR CORP.
CENTENNIAL DESOTO CELLULAR CORP.
CENTENNIAL IBERIA HOLDING CORP.
CENTENNIAL LAFAYETTE CELLULAR CORP.
CENTENNIAL LAKE CHARLES CELLULAR CORP.
CENTENNIAL LOUISIANA HOLDING CORP.
K-9
<PAGE>
CENTENNIAL MEGA COMM HOLDING CORP.
CENTENNIAL MICHIGAN RSA 6 CELLULAR CORP.
CENTENNIAL MICHIGAN RSA 7 CELLULAR CORP.
CENTENNIAL PUERTO RICO WIRELESS
CORPORATION
CENTENNIAL RANDOLPH HOLDING CORP.
CENTENNIAL WIRELESS PCS LICENSE
CORP.
CENTENNIAL WIRELESS PCS OPERATIONS CORP.
CENTURY BEAUMONT CELLULAR CORP.
CENTURY CHARLOTTESVILLE CELLULAR CORP.
CENTURY EL CENTRO CELLULAR CORP.
CENTURY ELKHART CELLULAR CORP.
CENTURY LYNCHBURG CELLULAR CORP.
CENTURY MICHIANA CELLULAR CORP.
CENTURY ROANOKE CELLULAR CORP. (DE)
CENTURY ROANOKE CELLULAR CORP. (VA)
CENTURY SOUTH BEND CELLULAR CORP.
CENTURY YUMA CELLULAR CORP.
EL CENTRO CELLULAR CORP.
ELKHART METRONET, INC.
HENDRIX ELECTRONICS, INC.
HENDRIX RADIO COMMUNICATIONS, INC.
LAFAYETTE COMMUNICATIONS, INC.
MICHIANA METRONET, INC.
SOUTH BEND METRONET, INC.
By:_______________________________
Name: Peter W. Chehayl
Title: Vice President
K-10
<PAGE>
CENTENNIAL BEAUREGARD CELLULAR LLC
By: CENTENNIAL BEAUREGARD HOLDING
CORP., a Managing Member
By:_______________________________
Name: Peter W. Chehayl
Title: Vice President
CENTENNIAL CELLULAR TRI-STATE
OPERATING PARTNERSHIP
By: CENTENNIAL CLINTON CELLULAR CORP.
By:_______________________________
Name: Peter W. Chehayl
Title: Vice President
K-11
<PAGE>
CENTENNIAL HAMMOND CELLULAR LLC,
By: CENTENNIAL BEAUREGARD HOLDING
CORP., a Managing Member
By:_______________________________
Name: Peter W. Chehayl
Title: Vice President
CENTENNIAL MOREHOUSE CELLULAR LLC
By: CENTENNIAL BEAUREGARD HOLDING
CORP., a Managing Member
By:_______________________________
Name: Peter W. Chehayl
Title: Vice President
CENTENNIAL RANDOLPH CELLULAR LLC
By: CENTENNIAL RANDOLPH HOLDING
CORP., a Managing Member
By:_______________________________
Name: Peter W. Chehayl
Title: Vice President
ELKHART CELLULAR TELEPHONE
COMPANY
By: ELKHART METRONET, INC., a
General Partner
By:_______________________________
Name: Peter W. Chehayl
Title: Vice President
K-12
<PAGE>
IBERIA CELLULAR TELEPHONE COMPANY LLC
By: CENTENNIAL BEAUREGARD HOLDING CORP., a
Managing Member
By:_______________________________
Name: Peter W. Chehayl
Title: Vice President
LAFAYETTE CELLULAR TELEPHONE PARTNERSHIP
By: LAFAYETTE COMMUNICATIONS, INC., a
General Partner
By:_______________________________
Name: Peter W. Chehayl
Title: Vice President
MEGA COMM LLC
By: MEGA COMM HOLDING CORP., a
Managing Member
By:_______________________________
Name: Peter W. Chehayl
Title: Vice President
NATIONSBANK, N.A.,
as Administrative Agent
By:_______________________________
Name:
Title:
K-13
<PAGE>
FORM OF NOTARY ACKNOWLEDGMENT
STATE OF __________ )
: ss.:
COUNTY OF _________ )
On this ___ day of ____________, 1998, before me appeared
_____________, to me personally known, who being by me duly sworn, did say that
s/he is the ____________ of ____________, a ________ and that said instrument
was signed and sealed on behalf of said ________ by authority of its Board of
Directors, and said acknowledged said instrument to be the free act and deed of
said ________.
IN WITNESS WHEREOF, I have hereunder set my hand and affixed my
notarial seal at my office in ________ County, State of ________, the day and
year last above written.
[NOTARY SEAL] _____________________________
Notary Public
My Commission Expires: Notary's Printed Name:
- ------------------------ -----------------------------
Note: Notary form to be executed by each Assignor.
K-14
<PAGE>
EXHIBIT A
Location Agreements
K-15
<PAGE>
Exhibit M
[Form of Perfection Certificate]
PERFECTION CERTIFICATE
(Complete one for each Obligor and each Subsidiary)
(UCC Financing Statements)
The undersigned, the President of _________________________, a ________________
[corporation/limited liability company] (the "Company"), hereby certifies, with
reference to a certain Security Agreement dated as of January 7, 1999 (terms
defined in such Security Agreement having the same meanings herein as specified
therein), between the Company and NationsBank, N.A. as administrative agent (the
"Administrative Agent") for the Lenders and the Agents, to the Administrative
Agent as follows:
1. Names.
(a) The exact corporate name of the Company as that name appears on
its Certificate of Incorporation is as follows:
Source: UCC ss. 9-402(7) (first sentence)
(b) The following is a list of all other names (including trade names
or similar appellations) used by the Company, or any other business or
organization to which the Company became the successor by merger, consolidation,
acquisition, change in form, nature or jurisdiction of organization or
otherwise, now or at any time during the past five years:
Source: UCC ss. 9-402(7) (second and third sentences)
(c) The following is the Company's federal employer identification
number:
2. Current Locations.
(a) The chief executive office of the Company is located at the
following address:
Source: UCC ss.ss. 9-103(3), 9-103(4), 9-401(6)
M-1
<PAGE>
(b) The following are all other locations in which the Company
maintains any books or records relating to any of the Collateral consisting of
accounts, contract rights, chattel paper, general intangibles or mobile goods:
(i) In the United States of America:
(ii) Outside the United States of America:
Source: UCC ss.ss. 9-103(3), 9-103(4), 9-401(6)
(c) The following are all other places of business of the Company:
(i) In the United States of America:
(ii) Outside the United States of America:
Source: UCC ss. 9-401(1) (Third Alternative)
(d) The following are all other locations where any of the Collateral
consisting of inventory or equipment is located:
M-2
<PAGE>
(i) In the United States of America:
(ii) Outside the United States of America:
Source: UCC ss. 9-103(1)
(e) The following are the names and addresses of entities other than
the Company, such as lessees, consignees, warehousemen or purchasers of chattel
paper, which have possession or are intended to have possession of any of the
Collateral consisting of chattel paper, inventory or equipment:
Source: UCC ss.ss. 9-103(1), 9-103(4), 9-304(2) and 9-304(3); see also
UCC ss.ss. 2-326(3), 9-114, 9-305, 9-308 and 9-408
3. Prior Locations.
(a) Set forth below is the information required by subparagraphs (a),
(b) and (c) of ss. 2 with respect to each location or place of business
previously maintained by the Company at any time during the past five years in a
state in which the Company has previously maintained a location or place of
business at any time during the past four months:
M-3
<PAGE>
Source: UCC ss.ss. 9-103(3)(e) and 9-401(3)
(b) Set forth below is information required by subparagraphs (d) and
(e) of ss. 2 with respect to each other location at which, or other person or
entity with which, any of the Collateral consisting of inventory or equipment
has been previously held at any time during the next four months:
Source: UCC ss.ss. 9-103(1)(d) and 9-401(3)
4. Fixtures. Attached hereto as Schedule 4 is the information required
by UCC ss. 9-402(5) of each state in which any of the Collateral consisting of
fixtures is or is to be located and the name and address of each real estate
recording office where a mortgage on the real estate on which such fixtures are
or are to be located would be recorded.
Source: UCC ss.ss. 9-401(1) and 9-402(5)
5. Unusual Transactions. Except for those purchases, acquisitions and
other transactions described on Schedule 5 attached hereto, all of the
Collateral has been originated by the Company in the ordinary course of the
Company's business or consists of goods which have been acquired by the Company
in the ordinary course from a person in the business of selling goods of that
kind.
Source: UCC ss. 1-201(9), 9-306(2) and 9-402(7) (third sentence); see
also UCC ss. 9-301(1)(c)
6. File Search Reports. Attached hereto as Schedule 6 is a true copy
of a file search report from the Uniform Commercial Code filing officer (or, if
such officer does not issue such reports, from an experienced Uniform Commercial
Code search organization acceptable to the Administrative Agent) (i) in each
M-4
<PAGE>
jurisdiction identified in ss. 2 or 3 above with respect to each name set forth
in ss. 1 above, (ii) from each filing officer in each real estate recording
office identified on Schedule 4 with respect to the real estate on which
Collateral consisting of fixtures is or is to be located and (iii) in each
jurisdiction in which any of the transactions described in Schedule 5 took place
with respect to the legal name of the person or entity from whom the Company
purchased or otherwise acquired any of the Collateral.
7. UCC Filings. A duly signed financing statement on Form UCC-1 in
form acceptable to the Administrative Agent and containing the description of
the Collateral set forth on Schedule 7 has been duly filed in the Uniform
Commercial Code filing office in each jurisdiction identified in ss. 2 hereof
and in each real estate office referred to in Schedule 4 hereto.
8. Termination Statements. A duly signed termination statement on Form
UCC-3 in form acceptable to the Administrative Agent has been duly filed in each
applicable jurisdiction identified in ss. 2 hereof or on Schedule 5 hereto has
been delivered to the Administrative Agent.
IN WITNESS WHEREOF, we have hereunto signed this Certificate on [ ]
___, 1999.
[NAME OF COMPANY]
By: __________________________
Name:
Title:
M-5
<PAGE>
Schedule 4
M-6
<PAGE>
Schedule 5
M-7
<PAGE>
Schedule 6
M-8
<PAGE>
Schedule 7
M-9
<PAGE>
EXHIBIT N
---------------------------------------------------
CONSENT AND AGREEMENT
Dated as of January 7, 1999
among
CENTURY ML CABLE VENTURE
CENTURY-ML CABLE CORPORATION
NATIONSBANK, N.A.,
as Administrative Agent,
and
CENTENNIAL WIRELESS PCS OPERATIONS CORP.
---------------------------------------------------
N-1
<PAGE>
CONSENT AND AGREEMENT (this "Agreement") dated as of January 7, 1999
among CENTURY ML CABLE VENTURE, a New York joint venture (the "Joint Venture");
CENTURY-ML CABLE CORPORATION, a Delaware corporation ("Century ML Cable" and,
together with the Joint Venture, the "Owners"); NATIONSBANK, N.A., as
Administrative Agent (the "Administrative Agent") for the Secured Parties
referred to herein; and CENTENNIAL WIRELESS PCS OPERATIONS CORP., a Delaware
corporation (the "Company").
WHEREAS, the Company was organized for the purpose of constructing and
operating (directly or, through subsidiaries, indirectly) the PR Systems (as
defined in the Credit Agreement referred to below, and referred to herein as the
"PR Systems");
WHEREAS, the Company has entered into the Credit Agreement dated as of
January 7, 1999 (the "Credit Agreement") with certain financial institutions and
the Administrative Agent (such financial institutions and the other Creditors
(as defined in the Credit Agreement) being referred to herein as the "Secured
Parties"), providing for extensions of credit (in the forms of loans and letters
of credit) in an aggregate principal or face amount not exceeding $1.05 billion;
WHEREAS, in connection with the PR Systems, the Company and the Owners
have entered into the Facilities Agreement dated as of January 2, 1995 (as
amended, modified and from time to time in effect, the "Assigned Agreement");
WHEREAS, in order to secure the Company's obligations under the Credit
Agreement, the Company has agreed to transfer and assign for security purposes,
and grant a first priority security interest in, all of its right, title and
interest in and to (among other things) the Assigned Agreement, to the
Administrative Agent pursuant to certain Security Documents (as defined in the
Credit Agreement, and referred to herein as the "Assignments") for the benefit
of the Secured Parties; and
WHEREAS, it is a condition precedent to the extension of credit under
the Credit Agreement that the Owners shall have executed and delivered this
Agreement;
NOW THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and accuracy of which are hereby
acknowledged, the parties hereby agree as follows:
N-2
<PAGE>
1. Definitions; Interpretation. Capitalized terms used in this
Agreement without definition shall have the respective meanings ascribed thereto
in the Assigned Agreement.
2. Undertakings Relating to the Financing. The Owners hereby jointly
and severally acknowledge and agree for the benefit of the Secured Parties as
follows:
(a) Upon receipt by the Owners of notice from the Administrative
Agent that an Event of Default (as defined in the Credit Agreement)
exists under the Credit Agreement, the Administrative Agent and/or its
designee(s) may exercise any and all rights and remedies of the
Company under the Assigned Agreement in accordance with its terms and
the Owners shall comply in all respects with such exercise.
(b) The Owners will not, without the prior written consent of the
Administrative Agent:
(i) consent to or accept any cancellation, termination or
suspension of the Assigned Agreement tendered by the Company; or
(ii) exercise any of its rights set forth in the Assigned
Agreement to cancel or terminate, or suspend performance under,
the Assigned Agreement, unless, in the case of a right to cancel
or terminate the Assigned Agreement by reason of an event of
default by the Company, the Owners shall have delivered to the
Administrative Agent at least 120 days' prior written notice of
its intent to exercise such right, specifying the default giving
rise to such right and permitting the Administrative Agent
(and/or its designee(s) or assignee(s) to cure such default.
In furtherance of the foregoing clause (ii), if the
Administrative Agent or its designee(s) or assignee(s) is precluded
from securing physical possession of the PR Systems or from exercising
remedies or curing any default pending any required regulatory
approval and is pursuing in good faith the obtaining of such
regulatory approval, the foregoing time period shall be extended by
the period of such pendency.
N-3
<PAGE>
Except as otherwise expressly provided pursuant to subsection
(c), (d) or (e) below, no curing of or attempt to cure any of the
Company's defaults under the Assigned Agreement shall be construed as
an assumption by the Administrative Agent or any of its designee(s) or
assignee(s) of any obligations of the Company under the Assigned
Agreement.
(c) The Owners consent to the collateral assignment, pursuant to
the Assignments, by the Company of its interest under the Assigned
Agreement. The Owners jointly and severally agree that upon the
exercise of the Secured Parties' remedies under the Assignments the
Owners shall recognize the Administrative Agent or its assignee(s) or
designee(s) as the Company under the Assigned Agreement (subject as
follows). In the event that the Administrative Agent or its
assignee(s) or designee(s) succeeds to the Company's interest under
the Assigned Agreement by foreclosure, the Administrative Agent or its
designee(s) or assignee(s) shall assume liability for all of the
Company's obligations under the Assigned Agreement and cure all
monetary defaults by the Company, and all other material defaults by
the Company that are curable by the Administrative Agent or its
designee(s) or assignee(s), as the case may be, through commercially
reasonable efforts; provided that, if the Administrative Agent or
its designee(s) or assignee(s) shall have cured all monetary
defaults by the Company, and all other material defaults by the
Company that are curable by the Administrative Agent or its
designee(s) or assignee(s), as the case may be, through commercially
reasonable efforts at the time of such assumption, such liability
shall not include any liability for claims of the Owners against the
Company arising from the Company's failure to perform during the
period prior to such succession.
(d) Upon the exercise by the Administrative Agent of any of the
remedies under the Assignments in respect of the Assigned Agreement,
the Administrative Agent may assign its rights and interests and the
rights and interests of the Company under the Assigned Agreement to
any person or entity, if such person or entity shall assume liability
for all obligations of the Company under the Assigned Agreement, if
(i) such person or entity has the financial resources and managerial
expertise to fulfill its obligations under such Assigned Agreement (an
"Eligible Assignee"), (ii) such person or entity assumes liability for
all obligations of the Company under such Assigned Agreement and (iii)
such person or entity cures all monetary defaults by the Company, and
all other material defaults by such Company that are curable by such
person or entity through commercially reasonable efforts; provided
N-4
<PAGE>
that, if such person or entity shall have cured all monetary defaults
by the Company, and all other material defaults by the Company that
are curable by such person or entity through commercially reasonable
efforts at the time of such assumption, such liability shall not
include any liability for claims of the Owners against the Company
arising from the Company's failure to perform during the period prior
to such assignment. Upon such assignment and assumption, the Secured
Parties shall be relieved of all obligations under the Assigned
Agreement arising after such assignment and assumption.
(e) In the event that the Assigned Agreement is rejected by a
trustee, liquidator, debtor-in-possession or similar person or entity
in any bankruptcy, insolvency or similar proceeding involving either
Owner or the Company, or the Assigned Agreement is otherwise
terminated as a result of any bankruptcy, insolvency or similar
proceeding involving either Owner or the Company, and, if within 120
days after such rejection or termination, the Administrative Agent or
its designee(s) or assignee(s) shall so request, the Owners will
execute and deliver to the Administrative Agent or such designee(s) or
an Eligible Assignee a new Assigned Agreement for the balance of the
remaining term under the original Assigned Agreement before giving
effect to such rejection or termination containing the same terms and
conditions as the original Assigned Agreement (except for any
requirements which have been fulfilled by the Company and the Owners
prior to such rejection or termination). References in this Agreement
to an "Assigned Agreement" shall be deemed also to refer to the new
Assigned Agreement in replacement thereof.
(f) In the event that the Administrative Agent or its
designee(s), or any purchaser, transferee, grantee or assignee of the
interests of the Administrative Agent or its designee(s) in the PR
Systems, assume or are liable under the Assigned Agreement (as
contemplated in subsection (c), (d) or (e) above and shall have cured
all defaults under the Assigned Agreement to the extent required by
any of said subsections), liability in respect of any and all
obligations of any such person or entity under the Assigned Agreement
shall be limited solely to such person's or entity's interest in the
N-5
<PAGE>
PR Systems (and no officer, director, employee, shareholder, affiliate
or agent thereof shall have any liability with respect thereto).
(g) Upon the exercise of remedies by the Administrative Agent or
the Secured Parties referred to in paragraph (c), (d) or (e) of this
Section 2 and at all times thereafter until the termination of this
Agreement, the owners shall duly and timely perform all of their
respective obligations and responsibilities under the Assigned
Agreement for the benefit of the Secured Parties.
3. Special Agreements. Each of the Owners hereby further agrees for
the benefit of the Company and, upon the exercise of remedies by the
Administrative Agent or the Secured Parties referred to in paragraph (c), (d) or
(e) of Section 2 hereof and at all times thereafter until the termination of
this Agreement, the Secured Parties as follows:
(a) The Owners shall maintain and preserve the Fiber Network and
the Wireless Fibers in good working order and condition, ordinary wear
and tear excepted, subject to Section 16 of the Assigned Agreement.
The Owners and the Company shall obtain, preserve, renew and keep in
full force and effect all approvals, authorizations, licenses,
franchises (including, without limitation, in the case of the Owners,
the franchises for the Cable Systems (each, a "Franchise") and other
permissions of all governmental judicial, regulatory and other
agencies and authorities, and all easements and rights-of-way
necessary to enable the Owners to operate and maintain the Fiber
Network and the Wireless Fibers and to perform their respective
obligations under the Assigned Agreement. The Owners shall vigorously
contest by appropriate proceedings any cancellation, termination or
suspension of either Franchise.
(b) If the Owners transfer their interests in either Franchise,
the Owners shall also transfer the Fiber Network and the Wireless
Fibers to the same transferee and (unless such transfer is
accomplished by means of a transfer of stock or other equity interests
in which the Owners continue to be the owners of the Fiber Network and
the Wireless Fibers) cause such transferee to expressly assume the
obligations of the Owners hereunder pursuant to a written agreement
reasonably acceptable to the Administrative Agent.
N-6
<PAGE>
4. Indemnity. The Owners jointly and severally agree to indemnify and
hold harmless the Secured Parties and each of their respective affiliates, and
each of their 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 breach by either Owner of any of its obligations hereunder
or (b) any representation or warranty by either Owner hereunder proving to have
been false when made hereunder.
5. Representations and Warranties. Each Owner hereby represents and
warrants to the Administrative Agent and each of the other Secured Parties that:
(a) such Owner has the full power, authority, and legal right to
execute, deliver and perform its obligations hereunder;
(b) this Agreement has been duly executed and delivered by such
Owner and constitutes the legal, valid and binding obligation of such
Owner enforceable against such owner in accordance with its terms,
except as the enforceability thereof may be limited by applicable
bankruptcy, insolvency, moratorium or other similar laws affecting the
enforcement of creditors' rights generally;
(c) there is no action, suit or proceeding by or before any
government authority, arbitral tribunal or other body now pending or
to the best knowledge of such owner threatened against or affecting
such Owner or any of its properties, rights or assets which (i) if
adversely determined, individually or in the aggregate, could have a
material adverse effect on its ability to perform its obligations
under this Agreement or (ii) questions the validity, binding effect or
enforceability of this Agreement or any action taken or to be taken
pursuant hereto or thereto or any of the transactions contemplated
hereby or thereby.
N-7
<PAGE>
6. Representations and Warranties in Assigned Agreement. Each Owner
hereby represents and warrants to Secured Parties that representations and
warranties made by it in the Assigned Agreement are true as of the date of this
Agreement with the same force and effect as if made on and as of such date (or,
if stated to have been made solely as of an earlier date, were true and correct
as of such earlier date).
7. Termination. The Administrative Agent shall notify the Owners
promptly upon the payment in full by the Company of all outstanding obligations
secured by the Assignments, the termination of the commitments to extend further
credit under the Credit Agreement and the expiration of all letters of credit
issued under the Credit Agreement, whereupon this Agreement shall terminate.
8. Miscellaneous.
(a) No failure on the part of any Secured Party 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 any Secured Party 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.
(b) 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 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.
(c) The Owners jointly and severally agree to reimburse each of the
Secured Parties for all reasonable costs and expenses of the Secured Parties
(including, without limitation, the reasonable fees and expenses of legal
counsel) in connection with any enforcement proceeding resulting from the
Owners' failure to perform any of their obligations hereunder, including,
without limitation, the enforcement of this paragraph (c).
N-8
<PAGE>
(d) The terms of this Agreement may be waived or amended only by an
instrument in writing.
(e) This Agreement shall be binding upon and inure to the benefit of
the respective successors and permitted assigns of each Owner and each Secured
Party.
(f) 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.
(g) This Agreement shall be governed by, and construed in accordance
with, the law of the State of New York. Each Owner hereby further irrevocably
and unconditionally:
(i) submits for itself and its property in any legal action
or proceeding relating to this Agreement, 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;
(ii) 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;
(iii) 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
Owner at its address set forth herein or at such other address of
which the Administrative Agent shall have been notified pursuant
thereto with (in the case of any such service of process to the
Company) a copy to Leavy Rosensweig & Hyman, 11 East 44th Street,
New York, New York 10017, Attention: David Z. Rosensweig, Esq.;
and
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<PAGE>
(iv) 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.
(h) EACH OF THE OWNERS, THE COMPANY AND THE ADMINISTRATIVE AGENT
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.
(i) 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.
(j) 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 Secured Parties 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.
N-10
<PAGE>
IN WITNESS WHEREOF, the undersigned by its officer duly authorized has
caused this Agreement to be duly executed and delivered as of the date first
written above.
CENTURY ML CABLE VENTURE
By: CENTURY COMMUNICATIONS CORP.
(a Texas corporation),
a Venturer and Manager
By:______________________________
Name:
Title:
Address for Notices:
Telecopier No.:
Telephone No.:
Attention:
CENTURY ML CABLE CORPORATION
By: CENTURY COMMUNICATIONS CORP.
(a Texas corporation), Manager
By:_______________________________
Name:
Title:
Address for Notices:
Telecopier No.:
Telephone No.:
Attention:
Accepted:
NATIONSBANK, N.A.
as Administrative Agent
By: __________________________
Name:
Title:
Address for Notices:
NationsBank, N.A.
901 Main Street, 14th floor
Dallas, Texas 75202-3748
Telecopier No.: (214) 508-9390
Telephone No.: (214) 508-2126
Attention: Agency Services
N-11
<PAGE>
Acknowledged and Agreed:
CENTENNIAL WIRELESS PCS OPERATIONS CORP.
By: __________________________________
Name:
Title:
Address for Notices:
Centennial Cellular Corp.
Corporate Office
1305 Campus Office
Neptune, N.J. 07753
Telecopier No.: (732) 919-1022
Telephone No.: (732) 919-1000
Attention.: President
N-12
<PAGE>
Exhibit O
[Form of Joinder Agreement for Lambda Operations Corp.]
JOINDER AGREEMENT, dated as of [ ], made by Lambda Operations Corp.
(an "Additional Obligor"), in favor of NationsBank, N.A., as administrative
agent (in such capacity, the "Administrative Agent") for the several banks and
other financial institutions ("Lenders") from time to time parties to the Credit
Agreement, dated as of January 7, 1999 (as the same may be amended,
supplemented, waived or otherwise modified from time to time, together with any
agreement extending the maturity of, or restructuring, refunding, refinancing or
increasing all or any portion of the Indebtedness under such agreement or any
successor agreement, the "Credit Agreement"; capitalized terms not defined
herein have the meanings given to them in the Credit Agreement), among
Centennial Cellular Operating Co. LLC, as Borrower, PR Borrower, Parent, as a
Guarantor, each of the other Guarantors party thereto, certain lenders, Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Lead
Arranger, NationsBank, N.A., as Co-Arranger and Administrative Agent, The Chase
Manhattan Bank, as Co-Arranger and Co-Documentation Agent, The Bank of Nova
Scotia, as Co-Documentation Agent, Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, as Syndication Agent, and Morgan Stanley Senior
Funding, Inc., as Senior Managing Agent.
W I T N E S S E T H :
WHEREAS, the parties to this Joinder Agreement wish to amend Schedule
1.01(d) to the Credit Agreement and to include Lambda Operations Corp. as a
co-borrower of the Loans and other extensions of credit made thereunder to PR
Borrower in the manner hereinafter set forth; and
WHEREAS, this Joinder Agreement is entered into pursuant to Section
9.03(c) of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
1. The undersigned Additional Obligor hereby acknowledges that it has
received and reviewed a copy of the Credit Agreement and the Security Agreement
dated as of January 7, 1999 among Centennial Cellular Operating Co. LLC, a
Delaware limited liability company, Parent, as a Guarantor, the other Guarantors
party thereto from time to time and NationsBank, N.A., as Administrative Agent
(the "Security Agreement") and acknowledges and agrees to:
O-1
<PAGE>
(a) join the Credit Agreement as an Obligor, and, more specifically, as PR
Borrower and a Guarantor, and the Security Agreement as a Pledgor, as
indicated with its signature below;
(b) be bound by all covenants, agreements and acknowledgments attributable
to an Obligor in the Credit Agreement and a Pledgor in the Security
Agreement; and
(c) perform all obligations and duties required of it by the Credit
Agreement and the Security Agreement as an Obligor and Pledgor.
2. Each of the undersigned hereby represents and warrants that the
representations and warranties with respect to it contained in Section 8 of the
Credit Agreement and each of the other Credit Documents to which such signatory
is a party, by virtue of this Joinder Agreement or otherwise, or which are
contained in any certificate furnished by or on behalf of such signatory are
true and correct on the date hereof as if made on and as of the date hereof.
3. The address and jurisdiction of incorporation of each of the
undersigned is set forth below its name on the signature pages hereto.
4. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
IN WITNESS WHEREOF, each of the undersigned has caused this Joinder
Agreement to be duly executed and delivered in New York, New York by its proper
and duly authorized officer as of the date set forth below.
Dated: [ ]
LAMBDA OPERATING CORP.,
as PR Borrower, Obligor and
Pledgor
By:____________________________________
Name:
Title:
Address:
Jurisdiction of Incorporation:
O-2
<PAGE>
ACKNOWLEDGED AND AGREED TO:
NATIONSBANK, N.A.,
as Administrative Agent
By:______________________________
Name:
Title:
O-3
<PAGE>
ANNEX A
COMMITMENTS
<TABLE>
<CAPTION>
Allocation
Revolving Tranche A Tranche A-PR Tranche B Tranche C Term
Credit Term Loan Term Loan Term Loan Loan
Institution Commitments Commitments Commitments Commitment Commitments Total
- ----------- --------- ----------- ----------- ---------- ----------- -----
<S> <C> <C> <C> <C> <C> <C>
Merrill Lynch Capital Corporation 14,289,215.68 29,402,233.12 11,308,551.20 33,750,000 33,750,000 122,500,000
NationsBank, N.A. 13,509,803.92 27,798,474.95 10,691,721.13 108,500,000 101,000,000 261,500,000
The Chase Manhattan Bank 13,509,803.92 27,798,474.95 10,691,721.13 52,000,000
The Bank of Nova Scotia 12,470,588.23 25,660,130.72 9,869,281.05 48,000,000
Morgan Stanley Senior Funding, Inc. 12,470,588.23 25,660,130.72 9,869,281.05 48,000,000
Fleet National Bank 10,000,000.00 21,666,666.67 8,333,333.33 40,000,000
Societe Generale 10,000,000.00 21,666,666.67 8,333,333.33 40,000,000
Toronto Dominion (Texas) Inc. 10,000,000.00 21,666,666.67 8,333,333.33 6,250,000 9,250,000 55,500,000
BHF - Bank Aktiergesellschaft 6,250,000.00 20,763,888.89 7,986,111.11 5,000,000 5,000,000 45,000,000
Credit Lyonnais New York Branch 8,750,000.00 18,958,333.33 7,291,666.67 35,000,000
Cooperative Centrale
Raiffeisen-Boerenleenbank B.A.,
"RABOBANK NEDERLAND", New
York Branch 8,750,000.00 18,958,333.33 7,291,666.67 35,000,000
Telecom Financial Services
Corporation 6,250,000.00 13,541,666.67 5,208,333.33 25,000,000
PNC Bank, National Association 6,250,000.00 13,541,666.67 5,208,333.33 25,000,000
Dresdner Bank AG, New York and
Grand Cayman Branch 6,250,000.00 13,541,666.67 5,208,333.33 25,000,000
O-4
<PAGE>
Union Bank of California 5,000,000.00 10,833,333.33 4,166,666.67 20,000,000
The Fuji Bank, Limited 3,750,000.00 8,125,000.00 3,125,000.00 15,000,000
The CIT Group/Equipment Financing, Inc. 2,500,000.00 5,416,666.67 2,083,333.33 10,000,000
Tyler Trading, Inc. 5,000,000 5,000,000 10,000,000
KZH III LLC 4,500,000 4,500,000
KZH CypressTree-1 LLC 4,500,000 4,500,000 9,000,000
CypressTree Investment Management
Company, Inc. 500,000 500,000 1,000,000
Canadian Imperial Bank of Commerce 5,000,000 5,000,000 10,000,000
Credit Agricole Indosuez 5,000,000 5,000,000 10,000,000
Floating Rate Portfolio 2,500,000 2,500,000 5,000,000
Oak Hill Securities Fund, L.P. 5,000,000 5,000,000 10,000,000
Octagon Loan Trust 5,000,000 5,000,000 10,000,000
KZH Longdale LLC 2,500,000 2,500,000 5,000,000
KZH Riverside LLC 5,000,000 5,000,000 10,000,000
Travelers Corporate Loan Fund Inc. 2,500,000 2,500,000 5,000,000
The Travelers Insurance Company 2,500,000 2,500,000 5,000,000
Fremont Investment & Loan 3,750,000 3,750,000 7,500,000
The ING Capital Senior Secured High
Income Fund, L.P. 3,750,000 3,750,000 7,500,000
Morgan Guaranty Trust Company of New
York, as Trustee for the Commingled
Pension Trust Fund 2,250,000 2,250,000 4,500,000
Morgan Guaranty Trust Company of New
York, as Trustee for the MGT High
Yield Bond Fund 1,500,000 1,500,000 3,000,000
Osprey Investments Portfolio 2,500,000 2,500,000 5,000,000
Foothill Income Trust, L.P. 2,500,000 2,500,000 5,000,000
KZH Soleil-Z LLC 3,750,000 3,750,000 7,500,000
Allstate Life Insurance Company 2,500,000 2,500,000 5,000,000
Metropolitan Life Insurance Company 2,500,000 2,500,000 5,000,000
Keyport Life Insurance Company 1,500,000 1,500,000 3,000,000
Total $149,999,999.98 $325,000,000.03 $124,999,999.99 $225,000,000 $225,000,000 $1,050,000,000
</TABLE>
O-5
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS REGISTERED UNDER THAT ACT
OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE.
CENTENNIAL CELLULAR CORP.
Senior Subordinated Note
Due 2009
$180,000,000 January 7, 1999
CENTENNIAL CELLULAR CORP., a Delaware corporation (the "Company"), for
value received, hereby promises to pay to WCAS CAPITAL PARTNERS III, L.P. ("WCAS
CP III"), or registered assigns, the principal sum of ONE HUNDRED EIGHTY MILLION
DOLLARS ($180,000,000), on July 15, 2009, and to pay interest as provided in
Section 2 hereof until the principal amount hereof shall have become due and
payable, whether at maturity or by acceleration or otherwise, and thereafter at
the rate of 13% per annum on any overdue principal amount and (to the extent
permitted by applicable law) on any overdue interest until paid.
Subject to the provisions of Section 2 hereof, all payments of
principal and interest on this Note shall be in such coin or currency of the
United States of America as at the time of payment shall be legal tender for
payment of public and private debts. Such payments shall be subject to the
limitations of (i) the Credit Agreement, dated as of January 7, 1999, among
Centennial Cellular Corp., as guarantor, Centennial Cellular Operating Co. LLC,
as borrower, Centennial Wireless PCS Operations Corp., as PR borrower, the other
guarantors party thereto, Merrill Lynch & Co. and Merrill Lynch, Pierce, Fenner
& Smith Incorporated, as lead arrangers and syndication agents, NationsBank
N.A., as co-arranger and administrative agent (the "Agent") and The Chase
Manhattan Bank, as co-arranger and co-documentation agent, The Bank of Nova
Scotia, as co-documentation agent, Morgan Stanley Senior Funding, Inc., as
senior managing agent and the lenders from time to time party thereto, together
with all related documents, including without limitation all guarantees,
security agreements, pledge agreements, mortgages, other collateral documents
and other agreements entered into in connection therewith or in connection with
any restatement, renewal, extension, restructuring, refunding or refinancing
thereof (collectively, the "Bank Credit Agreements"), and (ii) the Indenture,
dated as of December 14, 1998, among Centennial Finance Corp. ("CFC"), a
predecessor in interest to the Company, Centennial Cellular Operating Co. LLC
("Centennial LLC") and the Trustee (the "Trustee") named therein, relating to
the 10 3/4% Senior Subordinated Notes due 2008 (the "High Yield Notes") issued
<PAGE>
by CFC and Centennial LLC, together with all related documents, including
without limitation all guarantees, security agreements, pledge agreements,
mortgages, other collateral documents and other agreements entered into in
connection therewith or in connection with any restatement, renewal, extension,
restructuring, refunding or refinancing thereof (collectively, the "High Yield
Debt Agreements").
On any Interest Payment Date (as defined herein) on or after January
6, 2004, the Company shall pay any amount of accrued original issue discount on
this Note as shall be necessary to ensure that this Note shall not be considered
an "applicable high yield discount obligation" within the meaning of Section
163(i) of the Internal Revenue Code of 1986, as amended, or any successor
provision; provided, however, that each such payment shall only be made if also
permitted under the Bank Credit Agreements and the High Yield Debt Agreements.
The amount of principal payable on this Note shall be reduced by the amount of
any accrued original issue discount that is paid pursuant to this paragraph.
If any payment on this Note is due on a day which is not a Business
Day, it shall be due on the next succeeding Business Day. For purposes of this
Note, "Business Day" shall mean any day other than a Saturday, Sunday or a legal
holiday or day on which banks are authorized or required to be closed in Chicago
or New York.
1. The Notes. This Note is issued pursuant to the Securities Purchase
Agreement, dated as of December 29, 1998 (the "Purchase Agreement"), among CCW
Acquisition Corp., a predecessor in interest to the Company, WCAS CP III and
the several Purchasers named in Schedules I, II and III thereto. As used herein,
the term "Note" or "Notes" includes the Senior Subordinated Note due 2009 of the
Company originally so issued, any Senior Subordinated Notes due 2009
subsequently issued upon exchange or transfer thereof and all "Deferred Interest
Notes" (as defined in Section 2(c) hereof).
2. Interest.
(a) Until the principal amount hereof shall have become due and
payable, the Company shall pay interest (computed on the basis of a 360-day year
consisting of twelve 30-day months) from the date hereof on the unpaid principal
amount hereof at the rate of 10% per annum quarterly in arrears on February 28,
May 31, August 31 and November 30 of each year (each said day being an "Interest
Payment Date"), commencing on May 31, 1999; provided, however, that the Company
shall only be required to make cash interest payments on each Interest Payment
Date (A) in accordance with paragraph (d) of this Section 2 or (B) to the extent
that the Company has received on or prior to such Interest Payment Date (i)
"Cash from Investment Interests" (as defined herein) during the prior three
months or (ii) Cash from Investment Interests before the prior three months (but
after the date of original issuance of this Note) if the amount of such Cash
from Investment Interests exceeds the amount of interest paid in cash on the
Notes on all prior Interest Payment Dates; provided, further, however, that each
such payment shall only be made if also permitted under the Bank Credit
Agreements and the High Yield Debt Agreements.
2
<PAGE>
(b) For purposes hereof, "Cash from Investment Interests" shall mean
any dividends, distributions, interest payments or other periodic payments of
cash received directly or indirectly by the Company from its "Investment
Interests" (as defined in the Purchase Agreement); provided, however, that "Cash
from Investment Interests" shall not include any proceeds received by the
Company from the liquidation, sale, merger, consolidation, transfer or other
disposition of any Investment Interests (any of the foregoing, a "Sale of
Investment Interests").
(c) To the extent that any portion of the amount of interest due
hereon on any Interest Payment Date is not required to be paid in cash on any
Interest Payment Date as provided in paragraph (a) above, any amount not so paid
shall be multiplied by 1.3 (with the result that such unpaid interest shall have
accrued at an effective rate of 13% instead of 10%), and the Company shall
satisfy its obligation to pay such amount of interest by issuing to the holder
hereof a deferred interest note or notes (the "Deferred Interest Notes"), dated
as of such Interest Payment Date, in a principal amount equal to such unpaid
amount of interest. The Deferred Interest Notes shall be in substantially the
form hereof (except that they shall not contain the provision set forth in
clause (i) of Section 3(b) hereof or the text set forth as the second paragraph
immediately preceding Section 1 hereof) and shall bear an appropriate legend
with respect to any original issue discount.
(d) Upon any Sale of Investment Interests, the Company shall in good
faith submit to the holders of the Notes (in form reasonably satisfactory to the
holders of a majority in interest of the aggregate principal amount then
outstanding under the Notes) a calculation of the Cash from Investment Interests
that was directly or indirectly received from the Investment Interests so
disposed of during the twelve months preceding such disposition (such amount,
together with all other such amounts in respect of any other Investment
Interests disposed of previously, being referred to herein as the "Cash from
Sold Interests"). Thereafter, on each subsequent Interest Payment Date, in
addition to the Cash from Investment Interests, the Company shall apply an
amount equal to one-quarter of the Cash from Sold Interests to the payment in
cash of interest on the Notes; provided, however, that each such payment shall
only be made if also permitted under the Bank Credit Agreements and the High
Yield Debt Agreements.
3. Transfer, Etc. of Notes.
(a) The Company shall keep at its office or agency maintained as
provided in paragraph (a) of Section 11 a register in which the Company shall
provide for the registration of this Note and for the registration of transfer
and exchange of this Note. Subject to the provisions of paragraph (b) hereof,
the holder of this Note may, at its option, and either in person or by its duly
authorized attorney, surrender the same for registration of transfer or exchange
at the office or agency of the Company maintained as provided in Section 11 and,
without expense to such holder (except for taxes or governmental charges imposed
in connection therewith), receive in exchange therefor a Note or Notes each in
such denomination or denominations as such holder may request, dated as of the
date to which interest has been paid on the Note or Notes so surrendered for
3
<PAGE>
transfer or exchange, for the same aggregate principal amount as the then unpaid
principal amount of the Note or Notes so surrendered for transfer or exchange,
and registered in the name of such person or persons as may be designated by
such holder. Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed, or shall be accompanied by a written
instrument of transfer, satisfactory in form to the Company, duly executed by
the holder of such Note or its attorney duly authorized in writing. Every Note
so made and delivered in exchange for such Note shall in all other respects be
in the same form and have the same terms as such Note. No transfer or exchange
of any Note shall be valid unless made in the foregoing manner at such office or
agency.
(b) Notwithstanding anything to the contrary herein, the holder of
this Note, by acceptance hereof, covenants and agrees that it shall not transfer
this Note or any part of its right, title or interest in or to this Note to any
third party (i) for a period of 180 days following the original date of issuance
hereof and (ii) in any event, without the prior written consent of the Agent;
provided, however, that the provisions of clause (ii) shall not apply to any
transfer of this Note by the holder hereof to an affiliate, parent or subsidiary
of such holder.
4. Loss, Theft, Destruction or Mutilation of Note. Upon receipt of
evidence satisfactory to the Company of the loss, theft, destruction or
mutilation of this Note, and, in the case of any such loss, theft or
destruction, upon receipt of an affidavit of loss from the holder thereof
reasonably satisfactory to the Company, or, in the case of any such mutilation,
upon surrender and cancellation of this Note, the Company will make and deliver,
in lieu of this Note, a new Note of like tenor and unpaid principal amount and
dated as of the date to which interest has been paid on this Note.
5. Persons Deemed Owners; Holders. The Company may deem and treat the
person in whose name any Note is registered as the owner and holder of such Note
for the purpose of receiving payment of principal of and interest on such Note
and for all other purposes whatsoever, whether or not such Note shall be
overdue. With respect to any Note at any time outstanding, the term "holder", as
used herein, shall be deemed to mean the person in whose name such Note is
registered as aforesaid at such time.
6. Prepayments.
(a) Optional Prepayment. Subject to any applicable restrictions under
the Bank Credit Agreements or the High Yield Debt Agreements, the Company may,
at its option, prepay this Note without premium or penalty, as a whole at any
time or in part from time to time in amounts which shall be integral multiples
of $1,000,000.
(b) Mandatory Prepayment on Change of Control. Subject to any
applicable restrictions under the Bank Credit Agreements or the High Yield Debt
Agreements, if at any time while this Note is outstanding a Change in Control
(as hereinafter defined) shall occur, the Company shall prepay, without
4
<PAGE>
penalty or premium, all principal and interest then outstanding hereunder.
(c) For purposes of this Section 6, a "Change in Control" shall be
deemed to have occurred if:
(i) any person or any persons acting together that would constitute a
"group" (a "Group") for purposes of Section 13(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or any successor
provision thereto, together with any affiliates or related persons thereof,
other than any of the Purchasers named in the Purchase Agreement together
with their respective affiliates, shall beneficially own (for purposes of
Rule 13d-3 of the Exchange Act or any successor provision thereto) at least
50% of the aggregate voting power of all classes of voting capital stock of
the Company; or
(ii) any person or Group, together with any affiliates or related
persons thereof, other than any of the Purchasers named in the Purchase
Agreement together with their respective affiliates, shall succeed in
having a majority of its or their nominees elected to the Board of
Directors of the Company; or
(iii) the Company is a party to any merger or consolidation with any
other business entity, at the conclusion of which transaction the
stockholders of the Company immediately prior to the transaction do not
continue to hold a majority of the total voting capital stock of the
successor entity, in substantially the same proportions, following such
transaction; or
(iv) the Company sells, leases, transfers or otherwise disposes of all
or substantially all of its assets.
(d) In the event of a Change in Control, the Company will promptly, in
good faith, (i) seek to obtain any required consent of the holders of any
"Senior Indebtedness" (as defined herein) to permit the prepayment contemplated
by paragraph (b) above, or (ii) to the extent that it is permitted to do so
pursuant to the Bank Credit Agreements and the High Yield Debt Agreements, repay
some or all of such holders of Senior Indebtedness to the extent necessary
(including, if necessary, payment in full of such Senior Indebtedness and
payment of any prepayment premiums, fees, expenses or penalties) to permit the
prepayment contemplated hereby without such consent.
7. Notice of Prepayment and Other Notices. The Company shall give
written notice of any prepayment of this Note or any portion hereof pursuant to
Section 6 not less than 30 nor more than 60 days prior to the date fixed for
such prepayment. Such notice of prepayment and all other notices to be given to
the holder of this Note shall be given by registered or certified mail to the
person in whose name this Note is registered at its address designated on the
5
<PAGE>
register maintained by the Company on the date of mailing such notice of
prepayment or other notice. Upon notice of prepayment being given as aforesaid,
the Company covenants and agrees that it will prepay, on the date therein fixed
for prepayment, this Note or the portion hereof, as the case may be, so called
for prepayment, at the principal amount thereof so called for prepayment,
together with interest accrued thereon to the date fixed for such prepayment. A
prepayment of less than all of the outstanding principal amount of this Note
shall not relieve the Company of its obligation to make scheduled payments of
interest payable in respect of the principal remaining outstanding on the
Interest Payment Dates.
8. Allocation of All Payments. In the event of any partial payment of
less than all of the interest then due on the Notes then outstanding or any
prepayment, purchase, redemption or retirement of less than all of the
outstanding Notes, the Company will allocate the amount of interest so to be
paid and the principal amount so to be prepaid, purchased, redeemed or retired
to each Note in proportion, as nearly as may be, to the aggregate principal
amount of all Notes then outstanding.
9. Interest After Date Fixed for Prepayment. If this Note or a portion
hereof is called for prepayment as herein provided, this Note or such portion
shall cease to bear interest on and after the date fixed for such prepayment
unless, upon presentation for such purpose, the Company shall fail to pay this
Note or such portion, as the case may be, in which event this Note or such
portion, as the case may be, and, so far as may be lawful, any overdue
installment of interest, shall bear interest on and after the date fixed for
such prepayment and until paid at the rate per annum provided herein for overdue
principal.
10. Surrender of Note; Notation Thereon. Upon any prepayment of a
portion of the principal amount of this Note, the holder hereof, at its option,
may require the Company to execute and deliver at the expense of the Company
(other than for transfer taxes, if any), upon surrender of this Note, a new Note
registered in the name of such person or persons as may be designated by such
holder for the principal amount of this Note then remaining unpaid, dated as of
the date to which the interest has been paid on the principal amount of this
Note then remaining unpaid, or may present this Note to the Company for notation
hereon of the payment of the portion of the principal amount of this Note so
prepaid.
11. Covenants Relating to the Note. The Company covenants and agrees
that so long as the Note shall be outstanding:
(a) Maintenance of Office. The Company will maintain an office or
agency in such place in the United States of America as the Company may
designate in writing to the registered holder of this Note, where this Note may
be presented for registration of transfer and for exchange as herein provided,
where notices and demands to or upon the Company in respect of this Note may be
served and where this Note may be presented for payment. Until the Company
otherwise notifies the holder hereof, said office shall be the principal office
of the Company located at 1305 Campus Parkway, Neptune, New Jersey 07753.
6
<PAGE>
(b) Payment of Taxes. The Company will promptly pay and discharge or
cause to be paid and discharged, before the same shall become in default, all
material lawful taxes and assessments imposed upon the Company or any of its
subsidiaries or upon the income and profits of the Company or any of its
material subsidiaries, or upon any property, real, personal or mixed, belonging
to the Company or any of its material subsidiaries, as well as all material
lawful claims for labor, materials and supplies which, if unpaid, would become a
lien or charge upon such property or any part thereof; provided, however, that
the Company shall not 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 and for
which disputed amounts adequate reserves have been established in accordance
with GAAP.
(c) Corporate Existence. The Company will do or cause to be done all
things necessary and lawful to preserve and keep in full force and effect its
corporate existence, rights and franchises and the corporate existence, rights
and franchises of each of its material subsidiaries; provided, however, that
the Company shall not be required to preserve, with respect to itself, any right
or franchise, and with respect to any material subsidiary, its existence or any
such right or franchise, if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of such entity.
(d) Maintenance of Property. The Company will at all times maintain
and keep, or cause to be maintained and kept, in good repair, working order and
condition all significant properties of the Company and its subsidiaries used in
the conduct of its business, and will from time to time make or cause to be made
all needful and proper repairs, renewals, replacements, betterments and
improvements thereto, so that its business may be properly and advantageously
conducted at all times; provided, however, that nothing in this paragraph (d)
shall prevent the Company from discontinuing any operation or maintenance of any
of such properties, or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Board of Directors of the Company, desirable
in the conduct of the business of such entity.
(e) Insurance. The Company will, and will cause each of its
subsidiaries to, (i) keep adequately insured, by financially sound and reputable
insurers, all property of a character usually insured by corporations engaged in
the same or a similar business similarly situated against loss or damage of the
kinds customarily insured against by such corporations and (ii) carry, with
financially sound and reputable insurers, such other insurance (including
without limitation liability insurance) in such amounts as are available at
reasonable expense and to the extent believed advisable in the good faith
business judgment of the Company.
(f) Keeping of Books. The Company will at all times keep, and cause
each of its subsidiaries to keep, proper books of record and account in which
proper entries will be made of its transactions in accordance with generally
accepted accounting principles consistently applied.
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(g) Notice of Default. If any one or more events which constitute, or
which with notice or lapse of time or both would constitute, an Event of Default
under Section 13 shall occur, the Company shall, immediately after it becomes
aware that any such event has occurred, give notice to the holder of this Note,
specifying the nature of such event.
(h) Financial Reporting. The Company shall furnish to the holder
hereof:
(i) within 90 days after the end of each fiscal year of the Company, a
consolidated balance sheet of the Company and its subsidiaries as of the
end of such fiscal year and the related consolidated statements of
operations, changes in stockholders' equity and changes in financial
position of the Company and its subsidiaries for the fiscal year then
ended, together with supporting notes thereto, certified without
qualification as to scope of audit by a firm of independent certified
public accountants of recognized national standing selected by the Board of
Directors of the Company;
(ii) within 45 days after the end of each quarter in each fiscal year
(other than the last quarter in each fiscal year), a consolidated balance
sheet of the Company and its subsidiaries and the related consolidated
statements of operations, changes in stockholders' equity and changes in
financial position of the Company and its subsidiaries for the quarter then
ended, unaudited but certified by the principal financial officer of the
Company, such balance sheet to be as of the end of such quarter and such
statements of operations, changes in stockholders' equity and changes in
financial position to be for such quarter and for the period from the
beginning of the fiscal year to the end of such quarter, in each case
subject to normal year-end adjustments;
(iii) within 30 days after the end of each month in each fiscal year,
a consolidated balance sheet of the Company and its subsidiaries and the
related consolidated statement of operations for the month then ended,
unaudited but certified by the principal financial officer of the Company,
such balance sheet to be as of the end of such month and such statement of
operations to be for such month and for the period from the beginning of
the fiscal year to the end of such month, in each case subject to normal
year-end adjustments;
(iv) promptly upon filing, copies of all registration statements,
prospectuses, periodic reports and other documents filed by the Company
with the Securities and Exchange Commission; and
(v) promptly, from time to time, such other information regarding the
operations, business, affairs and financial condition of the Company or
any subsidiary as the holder hereof may reasonably request, subject to such
confidentiality agreements as the Company may reasonably request.
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(i) Consolidation, Merger and Sale. The Company will not consolidate
or merge with or into, or sell or otherwise dispose of all or substantially all
of its property to, any other corporation or other entity, unless:
(i) in the event of any such transaction which constitutes a Change in
Control (as defined in Section 6 hereof), and in connection with which the
Company for any reason shall not prepay all principal and interest then
outstanding under this Note (whether or not prepayment is restricted by the
Bank Credit Agreements or the High Yield Debt Agreements), the Company
shall have obtained the written consent of the holders of at least 66-2/3%
of the aggregate principal amount then outstanding under the Notes;
(ii) the surviving corporation or other entity (if other than the
Company) shall expressly and effectively assume in writing the due and
punctual payment of the principal of and interest on this Note, according
to its tenor, and the due and punctual performance and observance of all
the terms, covenants, agreements and conditions of this Note to be
performed or observed by the Company to the same extent as if such
surviving corporation had been the original maker of this Note; and
(iii) the Company or such other corporation or other entity shall not
otherwise be in default in the performance or observance of any covenant,
agreement or condition of this Note or the Purchase Agreement.
(j) Prohibition of Dividends. The Company will not pay any dividend or
distribution in respect of its capital stock, payable in cash or other property,
except for dividends or distributions of common stock of the Company.
12. Modification by Holders; Waiver.
(a) The Company may, with the written consent of the holders of not
less than 66-2/3% in principal amount of the Notes then outstanding, modify the
terms and provisions of this Note or the rights of the holders of this Note or
the obligations of the Company hereunder, and the observance by the Company of
any term or provision of this Note may be waived with the written consent of the
holders of not less than 66-2/3% in principal amount of the Notes then
outstanding; provided, however, that no such modification or waiver shall:
(i) change the maturity of any Note, reduce the principal amount
thereof or reduce the rate or extend the time of payment of interest
thereon without the consent of the holder of each Note so affected; or
(ii) give any Note any preference over any other Note, including,
without limitation, by amending the allocation provisions of Section 8
hereof; or
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<PAGE>
(iii) reduce the percentage of principal amount outstanding under any
Note, the consent of the holder of which is required for any such
modification; or
(iv) amend the provisions of Section 17 hereof in any manner adverse
to the interests of the holder of this Note;
without the consent of the holder of each Note so affected.
(b) Any such modification or waiver shall apply equally to each holder
of the Notes and shall be binding upon them, upon each future holder of any Note
and upon the Company, whether or not such Note shall have been marked to
indicate such modification or waiver, but any Note issued thereafter shall bear
a notation referring to any such modification or waiver. Promptly after
obtaining the written consent of the holders as herein provided, the Company
shall transmit a copy of such modification or waiver to the holders of the Notes
at the time outstanding.
(c) Notwithstanding anything to the contrary herein, any modification
of the Notes that adversely affects the holders of any Senior Indebtedness shall
require the prior written consent of such holders (or any agent or trustee that
is duly authorized to give such consent).
13. Events of Default. Subject to the provisions of Section 17 of this
Note (including without limitation clause (D) of paragraph (a) thereof), if any
one or more of the following events, herein called "Events of Default," shall
occur (for any reason whatsoever, and whether such occurrence shall, on the part
of the Company or any of its subsidiaries, be voluntary or involuntary or come
about or be effected by operation of law or pursuant to or in compliance with
any judgment, decree or order of a court of competent jurisdiction or any order,
rule or regulation of any administrative or other governmental authority) and
such Event of Default shall be continuing:
(i) default shall be made in the payment of the principal of this Note
when and as the same shall become due and payable, whether at maturity or
at a date fixed for prepayment (in accordance with the requirements of
Section 6) or by acceleration or otherwise;
(ii) default shall be made in the payment of any installment of
interest on this Note according to its terms when and as the same shall
become due and payable and such default shall continue for a period of 10
days;
(iii) default shall be made in the due observance or performance of
any covenant, condition or agreement on the part of the Company contained
in Section 11(i);
(iv) default shall be made in the due observance or performance of any
other covenant, condition or agreement on the part of the Company to be
observed or performed pursuant to the terms hereof or of the Purchase
Agreement, and such default shall continue for 30 days after written notice
thereof, specifying such default and requesting that the same be remedied;
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<PAGE>
(v) the entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Company or any of its
subsidiaries in any involuntary case under the federal bankruptcy laws, as
now constituted or hereafter amended, or any other applicable federal or
state bankruptcy, insolvency or other similar laws, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or any of its subsidiaries for any
substantial part of any of their property or ordering the winding-up or
liquidation of any of their affairs and the continuance of any such decree
or order unstayed and in effect for a period of 60 consecutive days;
(vi) the commencement by the Company or any of its subsidiaries of a
voluntary case under the federal bankruptcy laws, as now constituted or
hereafter amended, or any other applicable federal or state bankruptcy,
insolvency or other similar laws, or the consent by any of them to the
appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other similar official) of the Company
or any of its subsidiaries for any substantial part of any of their
property, or the making by any of them of any assignment for the benefit of
creditors, or the failure of the Company or of any of its subsidiaries
generally to pay its debts as such debts become due, or the taking of
corporate action by the Company or any of its subsidiaries in furtherance
of or which might reasonably be expected to result in any of the foregoing;
(vii) default, as defined in any instrument evidencing or under which
the Company or any of its subsidiaries has outstanding at the time any
indebtedness for money borrowed in excess of $20,000,000 in aggregate
principal amount, shall occur and as a result thereof the maturity of any
such indebtedness shall have been accelerated so that the same shall have
become due and payable prior to the date on which the same would otherwise
have become due and payable and such acceleration shall not have been
rescinded or annulled within 30 days; or
(viii) final judgment for the payment of money in excess of
$20,000,000 shall be rendered against the Company or any of its
subsidiaries and the same shall remain undischarged for a period of 60 days
during which execution shall not be effectively stayed;
then, subject to the provisions of Section 17 hereof, the holders of at least
25% in aggregate principal amount of the Notes at the time outstanding may, at
their option, by a notice in writing to the Company, to the Agent of the lenders
specified in the Bank Credit Agreements, if the Bank Credit Agreements are then
in effect, and to the Trustee named in the High Yield Debt Agreements, if the
High Yield Debt Agreements are then in effect, declare this Note to be, and this
Note shall thereupon be and become, immediately due and payable together with
11
<PAGE>
interest accrued thereon, without diligence, presentment, demand, protest or
further notice of any kind, all of which are expressly waived by the Company to
the extent permitted by law. The Company expressly agrees that this Note, or any
payment hereunder, may be extended from time to time and that the holder thereof
may accept security for this Note or release security for this Note, all without
in any way affecting the liability of the Company hereunder.
Without limiting the foregoing, the Company hereby waives any right to
trial by jury in any legal proceeding related in any way to this Note and agrees
that any such proceeding may, if the holder so elects, be brought and enforced
in the Supreme Court of the State of New York for New York County or the United
States District Court for the Southern District of New York and the Company
hereby waives any objection to jurisdiction or venue in any such proceeding
commenced in such court. The Company further agrees that any process required to
be served on it for purposes of any such proceeding may be served on it, with
the same effect as personal service on it within the State of New York, by
registered mail addressed to it at its office or agency set forth in paragraph
(a) of Section 11 for purposes of notices hereunder.
14. Suits for Enforcement. Subject to the provisions of Section 17 of
this Note, in case any one or more of the Events of Default specified in Section
13 of this Note shall happen and be continuing, the holder of this Note may
proceed to protect and enforce its rights by suit in equity, action at law
and/or by other appropriate proceeding, whether for the specific performance of
any covenant or agreement contained in this Note or in aid of the exercise of
any power granted in this Note, or may proceed to enforce the payment of this
Note or to enforce any other legal or equitable right of the holder of this
Note.
In case of any default under this Note, the Company will pay to the
holder hereof such amounts as shall be sufficient to cover the costs and
expenses of such holder due to said default, including without limitation
collection costs and reasonable attorneys' fees, to the extent actually
incurred.
15. Remedies Cumulative. No remedy herein conferred upon the holder of
this Note is intended to be exclusive of any other remedy and each and every
such remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute
or otherwise.
16. Remedies Not Waived. No course of dealing between the Company and
the holder of this Note or any delay on the part of the holder hereof in
exercising any rights hereunder shall operate as a waiver of any right of the
holder of this Note.
17. Subordination.
(a) Anything contained in this Note to the contrary notwithstanding,
the indebtedness evidenced by the Notes shall be subordinate and junior, to the
extent set forth in the following paragraphs (A), (B), (C), (D) and (E), to all
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Senior Indebtedness of the Company. "Senior Indebtedness" shall mean the
principal of, premium, if any, and interest (including any interest accruing
subsequent to the filing of a petition of bankruptcy at the rate provided for in
the documentation with respect thereto, whether or not such interest is an
allowed claim under applicable law) on, and all reasonable fees, reimbursement
and indemnity obligations, and all other obligations arising in connection with,
any indebtedness for borrowed money of the Company, contingent or otherwise, now
outstanding or created, incurred, issued, assumed or guaranteed in the future,
for which, in the case of any particular indebtedness, the instrument creating
or evidencing the same or pursuant to which the same is outstanding expressly
provides that such indebtedness is senior in right of payment to the Notes.
Notwithstanding anything to the contrary herein, Senior Indebtedness shall
include all "Obligations" (under and as defined in the Bank Credit Agreements)
and all "Obligations" (under and as defined in the High Yield Debt Agreements)
in respect of the High Yield Notes; notwithstanding the foregoing, Senior
Indebtedness shall include only such Obligations until such time as the same are
paid in full in cash and all obligations to provide financial accommodations
under the Bank Credit Agreements have terminated.
(A) In the event of any insolvency, bankruptcy, liquidation,
reorganization or other similar proceedings, or any receivership
proceedings in connection therewith, relative to the Company or its
creditors or its property, and in the event of any proceedings for
voluntary liquidation, dissolution or other winding up of the Company,
whether or not involving insolvency or bankruptcy proceedings, then all
Senior Indebtedness shall first be paid in full in cash before any payment,
whether on account of principal, interest or otherwise, is made upon the
Notes.
(B) In any of the proceedings referred to in paragraph (A) above, any
payment or distribution of any kind or character, whether in cash,
property, stock or obligations which may be payable or deliverable in
respect of the Notes shall be paid or delivered directly to the holders of
Senior Indebtedness for application in payment thereof, unless and until
all Senior Indebtedness shall have been paid in full in cash.
(C) No payment shall be made, directly or indirectly, on account of
the Notes upon maturity of any Senior Indebtedness, whether by lapse of
time, acceleration (unless waived) or otherwise, unless and until all
principal thereof and interest thereon and all other obligations in respect
thereof shall first be paid in full in cash and, in the case of maturity of
the Senior Indebtedness incurred pursuant to the Bank Credit Agreements,
all obligations to provide financial accommodations under the Bank Credit
Agreements have terminated.
(D) Notwithstanding anything to the contrary herein, upon the
occurrence of any Event of Default, the holders the Notes shall not declare
the Notes to be due and payable in accordance with Section 13 hereof unless
(i) the Agent shall have declared the indebtedness under the Bank Credit
Agreements, and the Trustee or the holders of at least 25% of the
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<PAGE>
outstanding principal amount of the High Yield Notes shall have declared
such High Yield Notes, due and payable prior to the date on which they are
otherwise due and payable and (ii) such declarations shall not have been
rescinded by any such party within 90 days after receipt by such party of
written notice from the holders of the Notes of such holders' intention to
accelerate the payment of all indebtedness due under the Notes.
(E) Upon the occurrence of any default or event of default under the
Bank Credit Agreements, the High Yield Debt Agreements or any other Senior
Indebtedness, no payments of principal (whether at maturity or otherwise)
or cash payments of interest shall be made upon or in respect of the Notes
until the Company receives written notice from the Agent, the Trustee
and/or the holder of such other Senior Indebtedness, as the case may be,
that such default or event of default has been cured or duly waived.
(b) Subject to the payment in full in cash of all Senior Indebtedness
as aforesaid, the holders of the Notes shall be subrogated to the rights of the
holders of Senior Indebtedness to receive payments or distributions of any kind
or character, whether in cash, property, stock or obligations, which may be
payable or deliverable to the holders of Senior Indebtedness, until the
principal of, and interest on, the Notes shall be paid in full in cash, and, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the holders of the Notes, no such payment or distribution made
to the holders of Senior Indebtedness by virtue of this Section 17 which
otherwise would have been made to the holder of the Notes shall be deemed a
payment by the Company on account of the Senior Indebtedness, it being
understood that the provisions of this Section 17 are and are intended solely
for the purposes of defining the relative rights of the holders of the Notes, on
the one hand, and the holders of the Senior Indebtedness, on the other hand.
Subject to the rights, if any, under this Section 17 of holders of Senior
Indebtedness to receive cash, property, stock or obligations otherwise payable
or deliverable to the holders of the Notes, nothing herein shall either impair,
as between the Company and the holder of this Note, the obligation of the
Company, which is unconditional and absolute, to pay to the holder hereof the
principal hereof and interest hereon in accordance with the terms hereof or
prevent (except as otherwise specified herein) the holder of this Note from
exercising all remedies otherwise permitted by applicable law or hereunder upon
default hereunder.
(c) If any payment or distribution of any character or any security,
whether in cash, securities or other property, shall be received by any holders
of the Notes in contravention of any of the terms hereof or before all the
Senior Indebtedness obligations have been paid in full in cash and all
obligations to provide financial accommodations under the Bank Credit Agree-
ments have terminated, such payment or distribution or security shall be
received in trust for the benefit of, and shall be paid over or delivered and
transferred to, the holders of the Senior Indebtedness at the time outstanding
in accordance with the priorities then existing among such holders for
application to the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all such Senior Indebtedness in full in cash. In the
event of the failure of any such holder to endorse or assign any such payment,
distribution or security, each holder of any Senior Indebtedness is hereby
irrevocably authorized to endorse or assign the name of such holder.
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<PAGE>
(d) The rights under these subordination provisions of the holders of
any Senior Indebtedness as against any holders of the Notes shall remain in full
force and effect without regard to, and shall not be impaired or affected by:
(i) any act or failure to act on the part of the Company; or
(ii) any extension or indulgence in respect of any payment or
prepayment of any Senior Indebtedness or any part thereof or in respect of
any other amount payable to any holder of any Senior Indebtedness; or
(iii) any amendment, modification or waiver of, or addition or
supplement to, or deletion from, or compromise, release, consent or other
action in respect of, any of the terms of any Senior Indebtedness or any
other agreement which may be made relating to any Senior Indebtedness; or
(iv) any exercise or non-exercise by the holder of any Senior
Indebtedness of any right, power, privilege or remedy under or in respect
of such Senior Indebtedness or these subordination provisions or any waiver
of any such right, power, privilege or remedy or of any default in respect
of such Senior Indebtedness or these subordination provisions or any
receipt by the holder of any Senior Indebtedness of any security, or any
failure by such holder to perfect a security interest in, or any release by
such holder of, any security for the payment of such Senior Indebtedness;
or
(v) any merger or consolidation of the Company or any of its
subsidiaries into or with any other person, or any sale, lease or transfer
of any or all of the assets of the Company or any of its subsidiaries to
any other person; or
(vi) absence of any notice to, or knowledge by, any holder of any
claim hereunder of the existence or occurrence of any of the matters or
events set forth in the foregoing clauses (i) through (v).
(e) The holders of the Notes unconditionally waive (i) notice of any
of the matters referred to in Section 13; (ii) all notices which may be
required, whether by statute, rule of law or otherwise, to preserve intact any
rights of any holder of any Senior Indebtedness, including, without limitation,
any demand, presentment and protest, proof of notice of nonpayment under any
Senior Indebtedness and notice of any failure on the part of the Company to
perform and comply with any covenant, agreement, term or condition of any Senior
Indebtedness, (iii) any right to the enforcement, assertion or exercise by any
holder of any Senior Indebtedness of any right, power, privilege or remedy
conferred in such Senior Indebtedness or otherwise, (iv) any requirements of
diligence on the part of any holder of any of the Senior Indebtedness, (v) any
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<PAGE>
requirement on the part of any holder of any Senior Indebtedness to mitigate
damages resulting from any default under such Senior Indebtedness and (vi) any
notice of any sale, transfer or other disposition of any Senior Indebtedness by
any holder thereof.
(f) The obligations of the holder under these subordination provisions
shall continue to be effective, or be reinstated, as the case may be, if at any
time any payment in respect of any Senior Indebtedness, or any other payment to
any holder of any Senior Indebtedness in its capacity as such, is rescinded or
must otherwise be restored or returned by the holder of such Senior Indebtedness
upon the occurrence of any proceeding referred to in Section 17(a)(A) or upon or
as a result of the appoint of a receiver, intervenor or conservator of, or
trustee or similar officer for, the Company or any substantial part of its
property or otherwise, all as though such payment had not been made.
18. Covenants Bind Successors and Assigns. All the covenants,
stipulations, promises and agreements in this Note contained by or on behalf of
the Company shall bind its successors and assigns, whether so expressed or not.
19. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of New York.
20. Headings. The headings of the sections and paragraphs of this Note
are inserted for convenience only and do not constitute a part of this Note.
21. Third Party Beneficiaries. The provisions of Section 17 are
intended to be for the benefit of, and shall be enforceable directly by each
holder of, the Senior Indebtedness.
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IN WITNESS WHEREOF, Centennial Cellular Corp. has caused this Note to
be signed in its corporate name by one of its officers thereunto duly authorized
and to be dated as of the day and year first above written.
CENTENNIAL CELLULAR CORP.
By:/s/ Michael Small
--------------------
Name: Michael Small
Title:Chief Executive Officer
17
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of January 7, 1999, by and between
CENTENNIAL CELLULAR CORP., a Delaware corporation (the "Company"), and MICHAEL
SMALL (the "Employee").
W I T N E S S E T H:
WHEREAS the Company desires to induce the Employee to enter into
employment with the Company for the period provided in this Agreement, and the
Employee is willing to accept such employment with the Company on a full-time
basis, all in accordance with the terms and conditions set forth below;
NOW, THEREFORE, for and in consideration of the premises hereof and
the mutual covenants contained herein, the parties hereto hereby covenant and
agree as follows:
1. Employment. (a) The Company hereby agrees to employ the Employee,
and the Employee hereby agrees to accept such employment with the Company,
beginning on January 7, 1999 (the "Commencement Date") and continuing for the
period set forth in Section 2 hereof, all upon the terms and conditions
hereinafter set forth.
(b) The Employee affirms and represents that as of the commencement of
his employment by the Company on the Commencement Date, he will be under no
obligation to any former employer or other party which is in any way
inconsistent with, or which imposes any restriction upon, the Employee's
acceptance of employment hereunder with the Company, the employment of the
Employee by the Company, or the Employee's undertakings under this Agreement.
2. Term of Employment. (a) Unless earlier terminated as provided in
this Agreement, the term of the Employee's employment under this Agreement shall
be for a period beginning on the Commencement Date and ending on September 30,
2002 (the "Initial Term").
(b) The term of the Employee's employment under this Agreement shall
be automatically renewed for additional one-year terms (each a "Renewal Term")
upon the expiration of the Initial Term or any Renewal Term unless the Company
or the Employee delivers to the other, at least ninety (90) days prior to the
expiration of the Initial Term or the then current Renewal Term, as the case may
be, a written notice specifying that the term of the Employee's employment will
not be renewed at the end of the Initial Term or such Renewal term, as the case
may be. The period from the Commencement Date until September 30, 2002 or, in
the event that the Employee's employment hereunder is earlier terminated as
<PAGE>
provided herein or renewed as provided in this Section 2(b), such shorter or
longer period, as the case may be, is hereinafter called the "Employment Term".
3. Duties. The Employee shall be employed as Chief Executive Officer
of the Company, shall faithfully and competently perform such duties as inhere
in such position and as are specified in the By-laws of the Company and shall
also perform and discharge such other executive employment duties and
responsibilities as the Board of Directors of the Company shall from time to
time determine so long as they are consistent with those performed by a chief
executive officer of a similar business. In all cases, Employee will have
general responsibility and authority over the day to day operations of the
business and will have such duties as are customary for a chief executive. The
Employee shall perform his duties principally at the offices of the Company in
Monmouth County, New Jersey, with such travel to such other locations from time
to time as the Board of Directors of the Company may reasonably prescribe.
Except as may otherwise be approved in advance by the Board of Directors of the
Company, and except during vacation periods and reasonable periods of absence
due to sickness, personal injury or other disability, the Employee shall devote
his full business time throughout the Employment Term to the services required
of him hereunder. The Employee shall render his business services exclusively
to the Company and its subsidiaries during the Employment Term and shall use his
best efforts, judgment and energy to improve and advance the business and
interests of the Company and its subsidiaries in a manner consistent with the
duties of his position. Notwithstanding the preceding sentence, the Employee
shall be entitled to participate as a director of not more than two (2) other
business enterprises so long as such participation does not (i) involve a
substantial amount of the Employee's time, (ii) impair the Employee's ability to
perform his duties under this Agreement or (iii) violate the provisions of
Section 9 of this Agreement. For so long as he serves as the Company's Chief
Executive Officer, the Employee will be nominated to serve on the Board of
Directors of the Company.
4. Salary and Bonus. (a) Salary. As compensation for the complete and
satisfactory performance by the Employee of the services to be performed by the
Employee hereunder during the Employment Term, the Company shall pay the
Employee a base salary at the annual rate of Two Hundred Fifty Thousand Dollars
($250,000) (said amount, together with any increases thereto as may be
determined from time to time by the Board of Directors of the Company in its
sole discretion, being hereinafter referred to as "Salary"). Any Salary payable
hereunder shall be paid in regular intervals in accordance with the Company's
payroll practices from time to time in effect. It is the Company's plan to
review the Employee's Salary if the Company's Fiscal 1999 Plan to be approved by
the Board of Directors of the Company is achieved by the Company for the fiscal
year ending May 31, 1999.
(b) Bonus. The Employee shall be eligible to receive bonus
compensation from the Company in respect of each fiscal year (or portion
thereof) occurring during the Employment Term in accordance with the Company's
management bonus plan as in effect from time to time (pro rated for any portion
of a fiscal year occurring during the Employment Term), in each case as may be
determined by the Board of Directors of the Company in its sole discretion on
the basis of
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performance-based criteria to be established from time to time by the Board of
Directors in its sole discretion. Such bonus amount will be $225,000 if the
Fiscal 1999 Plan to be approved by the Board of Directors of the Company is
achieved by the Company for the fiscal year ending May 31, 1999, subject to
increase if such Fiscal 1999 Plan is exceeded.
5. Other Benefits; Company Stock. (a) General. During the Employment
Term, the Employee shall:
(i) be eligible to participate in employee fringe benefits and
pension and/or profit sharing plans that may be provided by the Company for
its senior executive employees in accordance with the provisions of any
such plans, as the same may be in effect from time to time;
(ii) be eligible to participate in any medical and health plans or
other employee welfare benefit plans that may be provided by the Company
for its senior executive employees in accordance with the provisions of any
such plans, as the same may be in effect from time to time;
(iii) be entitled to the number of paid vacation days in each calendar
year determined by the Company from time to time for its senior executive
officers, provided that such number of paid vacation days in each calendar
year shall not be less than twenty (20) work days (four calendar weeks);
the Employee shall also be entitled to all paid holidays given by the
Company to its senior executive officers;
(iv) be eligible for consideration by the Board of Directors of the
Company for awards of stock options under any stock option plan which may
be established by the Company for its and its subsidiaries' key employees,
the amount, if any, of shares for which options may be granted to Employee
to be in the sole discretion of the Board of Directors of the Company;
(v) be entitled to sick leave, sick pay and disability benefits in
accordance with any Company policy that may be applicable to senior
executive employees from time to time; and
(vi) be entitled to reimbursement for all reasonable and necessary
out-of-pocket business expenses incurred by the Employee in the performance
of his duties hereunder in accordance with the Company's normal policies
from time to time in effect (including, without limitation, relocation
expenses).
(b) Options. Simultaneously with the execution and delivery of this
Agreement by the parties hereto, the Company has granted the Employee options to
purchase 135,000 shares of Class A Common Stock, $.01 par value ("Common
Stock"), of the Company at a purchase price of $41.50 per share, which options
shall vest over a four-year period commencing on July 31,
3
<PAGE>
1999 subject to performance vesting criteria, all as provided in the Option
Agreement of even date herewith between the Company and the Employee. The
Company will increase the option pool for all employees by an amount equal to 2%
of the Company's issued and outstanding equity as of the Effective Time of the
Merger on the first anniversary of the date of this Agreement if the Fiscal 1999
Plan of the Company is met or exceeded, and Employee will be eligible to
participate in such increased option pool at the discretion of the Board of
Directors of the Company.
6. Confidential Information. The Employee hereby covenants, agrees and
acknowledges as follows:
(a) The Employee has and will have access to and will participate in
the development of or be acquainted with confidential or proprietary
information and trade secrets related to the business of the Company and
any present or future subsidiaries or affiliates of the Company
(collectively with the Company, the "Companies"), including but not limited
to (i) customer lists; claims histories, adjustments and settlements and
related records and compilations of information; the identity, lists or
descriptions of any new customers, referral sources or organizations;
financial statements; cost reports or other financial information; contract
proposals or bidding information; business plans; training and operations
methods and manuals; personnel records; software programs; reports and
correspondence; and management systems, policies or procedures, including
related forms and manuals; (ii) information pertaining to future
developments such as future marketing or acquisition plans or ideas, and
potential new business locations and (iii) all other tangible and
intangible property, which are used in the business and operations of the
Companies but not made public. The information and trade secrets relating
to the business of the Companies described hereinabove in this paragraph
(a) are hereinafter referred to collectively as the "Confidential
Information", provided that the term Confidential Information shall not
include any information (x) that is or becomes generally publicly available
(other than as a result of violation of this Agreement by the Employee),
(y) that the Employee receives on a nonconfidential basis from a source
(other than the Companies or their representatives) that is not known by
him to be bound by an obligation of secrecy or confidentiality to any of
the Companies or (z) that was in the possession of the Employee prior to
disclosure by the Companies.
(b) The Employee shall not disclose, use or make known for his or
another's benefit any Confidential Information or use such Confidential
Information in any way except as is in the best interests of the Companies
in the performance of the Employee's duties under this Agreement. The
Employee may disclose Confidential Information when required by a third
party and applicable law or judicial process, but only after providing
immediate notice to the Company at any third party's request for such
information, which notice shall include the Employee's intent with respect
to such request.
(c) The Employee acknowledges and agrees that a remedy at law for any
breach or threatened breach of the provisions of this Section 6 would be
4
<PAGE>
inadequate and, therefore, agrees that the Companies shall be entitled to
injunctive relief in addition to any other available rights and remedies in
case of any such breach or threatened breach by the Employee (and the
Employee hereby waives any requirement that any of the Companies provide a
bond or other security in connection with the issuance of any such
injunction); provided, however, that nothing contained herein shall be
construed as prohibiting the Companies from pursuing any other rights and
remedies available for any such breach or threatened breach.
(d) The Employee agrees that upon termination of his employment with
the Company for any reason, the Employee shall forthwith return to the
Company all Confidential Information in whatever form maintained
(including, without limitation, computer discs and other electronic media).
(e) The obligations of the Employee under this Section 6 shall, except
as otherwise provided herein, survive the termination of the Employment
Term and the expiration or termination of this Agreement.
(f) Without limiting the generality of Section 10 hereof, the Employee
hereby expressly agrees that the foregoing provisions of this Section 6
shall be binding upon the Employee's heirs, successors and legal
representatives.
7. Termination. (a) The Employee's employment hereunder shall be
terminated upon the occurrence of any of the following:
(i) death of the Employee;
(ii) the Employee's inability to perform his duties on account of
disability or incapacity for a period of one hundred eighty (180) or more
days, whether or not consecutive, within any period of twelve (12)
consecutive months;
(iii) the Company giving written notice, at any time, to the Employee
that the Employee's employment is being terminated "for cause" (as defined
below);
(iv) the Company giving written notice, at any time, to the Employee
that the Employee's employment is being terminated other than pursuant to
clause (i), (ii) or (iii) above;
(v) the Employee terminates his employment hereunder for "Good Reason"
(as defined below); or
(vi) the Employee terminates his employment hereunder for any reason
whatsoever (whether by reason of retirement, resignation or otherwise),
other than for "Good Reason".
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<PAGE>
The following actions, failures and events by or affecting the
Employee shall constitute "cause" for termination within the meaning of clause
(iii) above: (A) a conviction of the Employee of, or the entering of a plea of
nolo contendere by the Employee with respect to, a felony, (B) abuse of
controlled substances or alcohol (in the case of alcohol abuse, that has a
material adverse affect on Employee's performance of his obligations under this
Agreement) or acts of dishonesty or moral turpitude by the Employee that are
materially detrimental to one or more of the Companies, (C) acts or omissions by
the Employee that the Employee knew or reasonably should have known would
materially damage the business of one or more of the Companies, (D) gross
negligence by the Employee in the performance of, or wilful disregard by the
Employee of, his material obligations under this Agreement or otherwise relating
to his employment, which gross negligence or wilful disregard continues
unremedied for a period of fifteen (15) days after written notice thereof to the
Employee or (E) failure by the Employee to obey the reasonable and lawful orders
and policies of the Board of Directors that are material to and consistent with
the provisions of this Agreement (provided that, in the case of an indictment
described in clause (A) above, and in the case of clause (B) or (C) above, the
Employee shall have received written notice of such proposed termination and a
reasonable opportunity to discuss the matter with the Board of Directors of the
Company, followed by a notice that the Board of Directors of the Company adheres
to its position). For purposes of this Agreement, "Good Reason" means (1) the
Company shall have materially diminished the Employee's duties, responsibility
or authority without his consent, (2) the Employee's title shall have been
changed without his consent, (3) the Employee's base salary shall have been
reduced without his consent or (4) the Company shall relocate to a location more
than twenty-five miles away from its existing site without the Employee's
consent and, in each such case, such material diminution, change, reduction or
relocation shall continue unremedied for a period of fifteen (15) days after
written notice thereof to the Company
(b) In the event that the Employee's employment is terminated by the
Company pursuant to clause (iv) of Section 7(a) above or by the Employee
pursuant to clause (v) of said Section 7(a), whether during the Initial Term or
during any Renewal Term pursuant to Section 2(b) above, then (i) the Company
shall pay to the Employee, as severance pay or liquidated damages or both,
monthly payments at the rate per annum of his Salary at the time of such
termination for a period from the date of such termination to the date which is
twelve (12) months after such termination plus a pro rata portion of any bonus
payable with respect to the fiscal year during which such termination occurred
if the Company's Plan for such fiscal year is achieved (such pro rata bonus to
be payable within thirty days after the close of such fiscal year) and (ii) the
Company shall continue to provide the Employee with life insurance and medical
and health insurance coverage at levels comparable to those in effect prior to
such termination for a period from the date of such termination to the earlier
to occur of (x) the date which is twelve (12) months after such termination and
(y) the date upon which the Employee becomes eligible to be covered for such
benefits through his employment with another employer.
6
<PAGE>
(c) Notwithstanding anything to the contrary expressed or implied
herein, except as required by applicable law and except as set forth in Section
7(b) above, the Company (and its affiliates) shall not be obligated to make any
payments to the Employee or on his behalf of whatever kind or nature by reason
of the Employee's cessation of employment (including, without limitation, by
reason of termination of the Employee's employment by the Company's for
"cause"), other than (i) such amounts, if any, of his Salary as shall have
accrued and remained unpaid as of the date of said cessation and (ii) such other
amounts, if any, which may be then otherwise payable to the Employee pursuant to
the terms of the Company's benefits plans or pursuant to clause (vi) of Section
5(a) above.
(d) No interest shall accrue on or be paid with respect to any portion
of any payments hereunder.
8. Non-Assignability. (a) Neither this Agreement nor any right or
interest hereunder shall be assignable by the Employee or his beneficiaries or
legal representatives without the Company's prior written consent; provided,
however, that nothing in this Section 8(a) shall preclude the Employee from
designating a beneficiary to receive any benefit payable hereunder upon his
death or incapacity.
(b) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation or to exclusion,
attachment, levy or similar process or to assignment by operation of law, and
any attempt, voluntary or involuntary, to effect any such action shall be null,
void and of no effect.
9. Restrictive Covenants.
(a) Competition. During the Employment Term and, in the event the
Employee's employment is terminated (i) by the Company pursuant to clause (iii)
or (iv) of Section 7(a) above or (ii) by the Employee as provided in clause (vi)
of said Section 7(a), during the twelve (12) month period following such
termination, the Employee will not directly or indirectly (as a director,
officer, executive employee, manager, consultant, independent contractor,
advisor or otherwise) engage in competition with, or own any interest in,
perform any services for, participate in or be connected with any business or
organization which engages in competition with any of the Companies within the
meaning of Section 9(d), provided, however, that the provisions of this Section
9(a) shall not be deemed to prohibit the Employee's ownership of not more than
two percent (2%) of the total shares of all classes of stock outstanding of any
publicly held company, or ownership, whether through direct or indirect stock
holdings or otherwise, of one percent (1%) or more of any other business.
(b) Non-Solicitation. During the Employment Term and during the twelve
(12) month period following the end of the Employment Term for any reason
whatsoever (or, if later, the twelve (12) month period following termination of
the Employee's employment with the
7
<PAGE>
Company), the Employee will not directly or indirectly induce or attempt to
induce any employee of any of the Companies to leave the employ of the Company
of such subsidiary or affiliate, or in any way interfere with the relationship
between any of the Companies and any employee thereof.
(c) Non-Interference. During the Employment Term and, in the event the
Employee's employment is terminated (x) by the Company pursuant to clause (iii)
or (iv) of Section 7(a) above or (y) by the Employee as provided in clause (v)
of said Section 7(a), during the twelve (12) month period following such
termination, the Employee will not directly or indirectly hire, engage, send any
work to, place orders with, or in any manner be associated with any supplier,
contractor, subcontractor or other business relation of any of the Companies if
such action by him would have an adverse effect on the business, assets or
financial condition of any of the Companies, or materially interfere with the
relationship between any such person or entity and any of the Companies.
(d) Certain Definitions.
(i) For purposes of this Section 9, a person or entity (including,
without limitation, the Employee) shall be deemed to be a competitor of one
or more of the Companies, or a person or entity (including, without
limitation, the Employee) shall be deemed to be engaging in competition
with one or more of the Companies, if such person or entity either (1)
conducts the Specified Business (as hereinafter defined) as a significant
portion of its business or (2) derives revenues from the Specified Business
in any Specified Region (as hereinafter defined) that exceed 50% of the
revenues derived by the Companies from the Specified Business in such
Specified Region. For purposes of this Agreement, "Specified Business"
means (A) providing rural cellular telephone service or engaging in a
business which the board of directors of one or more of the Companies shall
have formally proposed be conducted by one or more of such Companies at the
time of termination of the Employee's employment with the Company or (B)
conducting, operating, carrying out or engaging in the business of managing
any entity described in clause (A), in either case in the the geographic
region encompassing the service areas in which any of the Companies
conduct, or are actively investigating the possibility of conducting, their
businesses at the time of termination of the Employee's employment with the
Company (the "Specified Region").
(ii) For purposes of this Section 9, no corporation or entity that may
be deemed to be an affiliate of the Companies solely by reason of its being
controlled by, or under common control with, Welsh, Carson, Anderson &
Stowe VIII, L.P. or any of their respective affiliates other than the
Companies, will be deemed to be an affiliate of the Companies.
(e) Certain Representations of the Employee. In connection with the
foregoing provisions of this Section 9, the Employee represents that his
experience, capabilities and circumstances are such that such provisions will
8
<PAGE>
not prevent him from earning a livelihood. The Employee further agrees that the
limitations set forth in this Section 9 (including, without limitation, time and
territorial limitations) are reasonable and properly required for the adequate
protection of the current and future businesses of the Companies. It is
understood and agreed that the covenants made by the Employee in this Section 9
(and in Section 6 hereof) shall survive the expiration or termination of this
Agreement.
(f) Injunctive Relief. The Employee acknowledges and agrees that a
remedy at law for any breach or threatened breach of the provisions of Section 9
hereof would be inadequate and, therefore, agrees that the Company and any of
its subsidiaries or affiliates shall be entitled to injunctive relief in
addition to any other available rights and remedies in cases of any such breach
or threatened breach (and the Employee hereby waives any requirement that any of
the Companies provide a bond or other security in connection with the issuance
of any such injunction); provided, however, that nothing contained herein shall
be construed as prohibiting the Company or any of its affiliates from pursuing
any other rights and remedies available for any such breach or threatened
breach.
10. Binding Effect. Without limiting or diminishing the effect of
Section 8 hereof, this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors, legal
representatives and assigns.
11. Notices. All notices which are required or may be given pursuant
to the terms of this Agreement shall be in writing and shall be sufficient in
all respects if given in writing and (i) delivered personally, (ii) mailed by
certified or registered mail, return receipt requested and postage prepaid,
(iii) sent via a nationally recognized overnight courier or (iv) sent via
facsimile confirmed in writing to the recipient, if to the Company at the
Company's principal place of business, and if to the Employee, at his home
address most recently filed with the Company, or to such other address or
addresses as either party shall have designated in writing to the other party
hereto, provided, however, that any notice sent by certified or registered mail
shall be deemed delivered on the date of delivery as evidenced by the return
receipt.
12. Law Governing. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
13. Severability. The Employee agrees that in the event that any court
of competent jurisdiction shall finally hold that any provision of Section 6 or
9 hereof is void or constitutes an unreasonable restriction against the
Employee, the provisions of such Section 6 or 9 shall not be rendered void but
shall apply with respect to such extent as such court may judicially determine
constitutes a reasonable restriction under the circumstances. If any part of
this Agreement other than Section 6 or 9 is held by a court of competent
jurisdiction to be invalid, illegible or incapable of being enforced in whole or
in part by reason of any rule of law or public policy, such part shall be deemed
to be severed from the remainder of this Agreement for the purpose only of the
particular legal proceedings in question and all other covenants and provisions
9
<PAGE>
of this Agreement shall in every other respect continue in full force and effect
and no covenant or provision shall be deemed dependent upon any other covenant
or provision.
14. Waiver. Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any right or
power hereunder at any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times.
15. Entire Agreement; Modifications. This Agreement constitutes the
entire and final expression of the agreement of the parties with respect to the
subject matter hereof and supersedes all prior agreements, oral and written,
between the parties hereto with respect to the subject matter hereof. This
Agreement may be modified or amended only by an instrument in writing signed by
both parties hereto.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10
<PAGE>
IN WITNESS WHEREOF, the Company and the Employee have duly executed
and delivered this Agreement as of the day and year first above written.
CENTENNIAL CELLULAR CORP.
By /s/ Peter W. Chehayl
---------------------------------
Name: Peter W. Chehayl
Title: Vice President
/s/ Michael Small
-----------------------------------
Michael Small
11
EMPLOYMENT AGREEMENT
AGREEMENT made as of this January 7, 1999 by and between Centennial
Cellular Corp., a corporation organized and subsisting under the laws of
Delaware (the "Company"), and Rudy J. Graf, an individual residing at 267
Beachfront, Manasquan, NJ 08736 ("Employee").
W I T N E S S E T H:
WHEREAS:
A. The Employee is presently employed by the Company as its
President, Chief Operating Officer and Director.
B. The Company desires to continue to employ the Employee in such
capacity under the terms, provisions and conditions set forth
herein.
C. Employee is willing to accept such continued employment under
the terms, provisions and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein set forth and other good and valuable consideration, the
receipt and adequacy of which is mutually acknowledged, it is agreed by and
between the parties as follows:
1. Representations and Warranties
------------------------------
1.1 Employee represents and warrants that he is not subject to any
restrictive covenants or other agreements or legal restrictions in favor of any
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Initial Initial
<PAGE>
person which would in any way preclude, inhibit, impair or limit his employment
by the Company or the performance of his duties, all as contemplated herein.
2. Employment
----------
2.1 The Company hereby employs Employee and Employee accepts such
employment as Chief Operating Officer of the Company upon the terms and
conditions set forth in this Agreement. As its Chief Operating Officer, Employee
shall supervise and be responsible for the operations and administration of the
business activities of the Company, subject to the direction and control of the
Chief Executive Officer of the Company and the Board of Directors of the
Company.
2.2 Subject to Employee's election as such by the Board of Directors,
Employee agrees to act and serve as President of the Company and as President or
such other officer of one or more of the Subsidiaries as may be determined by
the Board of Directors and, if duly elected, agrees further to serve and act as
a director of the Company and such Subsidiaries. Employee agrees to adhere to
all fiduciary duties and responsibilities inherent in the office of President of
the Company and as an officer of the Subsidiaries and, if elected, as a director
of the Company and such Subsidiaries, and shall comply with all applicable laws
relating to same.
3. Place of Employment
-------------------
3.1 Employee shall render his services where and as required by the
Company, it being understood and agreed, however, that employee's base of
operations shall be the Monmouth County area of New Jersey and that Employee
shall not be required to render services on a permanent basis outside of said
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Initial Initial
2
<PAGE>
region. In conformance with the foregoing and not in limitation thereof,
Employee agrees to take such trips outside said area from time to time as shall
be consistent with or reasonably necessary in connection with his duties.
4. Term
----
4.1 This Agreement shall become effective, and Employee shall commence
his employment under this Agreement, beginning at the "Effective Time" (as such
term is defined in the Agreement and Plan of Merger dated as of July 2, 1998 by
and between the Company and CCW Acquisition Corp.). Unless earlier terminated as
provided in this Agreement, the term of Employee's employment under this
Agreement shall be for a period commencing at the Effective Time and ending on
May 31, 1999 (such period from the Effective Time through May 31, 1999 being
referred to herein as the "Term").
4.2 In the event that Employee's employment under this Agreement has
not been terminated prior to May 1, 1999, the parties hereto agree that within
the last thirty days of the Term, they shall meet to negotiate the terms and
provisions relating to renewal or extension of this Agreement, it being
understood and agreed that nothing herein shall obligate either of the parties
to agree to any such renewal or extension. Employee shall be free to negotiate
with other potential employers during such 30 day period but shall not solicit
or seek out employment with, entertain offers of employment from, or disclose
the contents or nature of this Agreement to, any person or entity prior to May
1, 1999, other than disclosure of the contents or nature of this Agreement to
(i) the Company's authorized representatives and (ii) Employee's spouse and
personal accountant and attorney on a confidential basis.
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Initial Initial
3
<PAGE>
5. Compensation
------------
5.1 As compensation for the complete and satisfactory performance by
the Employee of the services to be rendered by him hereunder and the fulfillment
by Employee of all of his obligations herein, the Company shall pay Employee a
base salary (the "Base Salary") at the rate of $226,800 per year, payable in
regular intervals on such days as the Company normally pays its employees and
subject to such withholdings as may be required by law.
5.2 In accordance with the Company's management bonus plan as in
effect from time to time, the Company shall pay Employee a bonus of up to
$200,000 subject to achievement of the Fiscal 1999 Plan to be approved by the
Board of Directors of the Company. Any bonus amounts paid as described above
will be paid within thirty days from the close of the Company's fiscal year
ending May 31, 1999.
5.3 Promptly following the Effective Time the Company will issue to
Employee shares of Class A Common Stock ("Common Stock") of the Company on a
"restricted stock" basis having a value of $750,000 on the date of issue (the
"Restricted Stock"). Such shares of Restricted Stock will be issued to Employee
in consideration of his services under this Agreement and will be subject to the
terms and conditions of a restricted stock purchase agreement to be entered into
by the Company and Employee that will provide, among other things, (i) for
registration of such shares on Form S-8 or, in the absence of such registration,
"piggy-back" registration rights on customary terms reasonably acceptable to the
Company and (ii) that the Employee shall have the right, but not the obligation,
of requiring the Company to repurchase up to 75% of such shares of Restricted
Stock (the "Put Right") at a purchase price equal the original value of such
shares of Restricted Stock on the date of issue of such shares (the "Original
- ------------------------- -------------------------
Initial Initial
4
<PAGE>
Issue Price") if Employee elects to leave the Company at the end of the Term.
The remaining 25% of such shares of Restricted Stock shall not be subject to the
Put Right and shall be free and clear of any other restriction on the
transferability thereof (other than as imposed by applicable law).
5.4 Immediately after the Effective Time the Company will issue stock
options to Employee exercisable for up to 120,000 shares of Common Stock at a
purchase price of $41.50 per share. Such stock options will be subject to the
terms and conditions of a stock option agreement to be entered into by the
Company and Employee providing, among other things, for vesting over a four year
period and performance vesting criteria in accordance with the Company's option
plan as in effect from time to time.
6. Reimbursement for Business Expenses; Fringe Benefits
----------------------------------------------------
6.1 The Company agrees that all reasonable expenses incurred by
Employee in the discharge and fulfillment of his duties for the Company, as set
forth in Section 2, will be reimbursed or paid by the Company upon written
substantiation signed by Employee, itemizing said expenses and containing all
applicable vouchers.
6.2 The Company agrees that it will cause Employee to be insured under
such group life, medical, major medical and disability insurance that the
Company may maintain and keep in force from time to time during the Term for the
benefit of all the Company employees, subject to the terms, provisions and
conditions of such insurance and the agreements with underwriters relating to
same.
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Initial Initial
5
<PAGE>
7. Exclusivity
-----------
7.1 During the Term, Employee agrees to devote his services and his
best energies and abilities, exclusively, to the business and activities of the
Company, including any Subsidiaries, and not engage or have an interest in or
perform services for any other business or entity of any kind or nature;
provided, however, that nothing herein shall (i) prevent Employee from investing
in (but not rendering services to) other businesses which are not competitive in
any manner with the business then being conducted by the Company or any of its
Subsidiaries or (ii) prohibit the Employee's ownership of not more than two
percent (2%) of the total shares of all classes of stock outstanding of any
publicly held company. The Company acknowledges that Employee is an investor in
a real estate holding company and acknowledges that such investment shall not be
deemed to violate this Section 7.1 as long as such company is not competitive
with the business being conducted by the Company or any of its Subsidiaries.
8. Confidentiality
---------------
8.1 The Employee hereby covenants, agrees and acknowledges as follows:
(a) The Employee has and will have access to and will participate in
the development of or be acquainted with confidential or proprietary
information and trade secrets related to the business of the Company and
any present or future subsidiaries or affiliates of the Company
(collectively with the Company, the "Companies"), including but not limited
to (i) customer lists; related records and compilations of information; the
identity, lists or descriptions of any new customers, referral sources or
organizations; financial statements; cost reports or other financial
information; contract proposals or bidding information; business plans;
training and operations methods and manuals; personnel records; -
- ------------------------- -------------------------
Initial Initial
6
<PAGE>
software programs; reports and correspondence; and management systems,
policies or procedures, including related forms and manuals; (ii)
information pertaining to future developments such as future marketing or
acquisition plans or ideas, and potential new business locations and (iii)
all other tangible and intangible property, which are used in the business
and operations of the Companies but not made public. The information and
trade secrets relating to the business of the Companies described
hereinabove in this paragraph (a) are hereinafter referred to collectively
as the "Confidential Information", provided that the term Confidential
Information shall not include any information (x) that is or becomes
generally publicly available (other than as a result of violation of this
Agreement by the Employee), (y) that the Employee receives on a
nonconfidential basis from a source (other than the Companies or their
representatives) that is not known by him to be bound by an obligation of
secrecy or confidentiality to any of the Companies or (z) that was in the
possession of the Employee prior to disclosure by the Companies.
(b) The Employee shall not disclose, use or make known for his or
another's benefit any Confidential Information or use such Confidential
Information in any way except as is in the best interests of the Companies
in the performance of the Employee's duties under this Agreement. The
Employee may disclose Confidential Information when required by a third
party and applicable law or judicial process, but only after providing
immediate notice to the Company at any third party's request for such
information, which notice shall include the Employee's intent with respect
to such request.
(c) The Employee acknowledges and agrees that a remedy at law for any
breach or threatened breach of the provisions of this Section 8.1 would be
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Initial Initial
7
<PAGE>
inadequate and, therefore, agrees that the Companies shall be entitled to
injunctive relief in addition to any other available rights and remedies in
case of any such breach or threatened breach by the Employee (and the
Employee hereby waives any requirement that any of the Companies provide a
bond or other security in connection with the issuance of any such
injunction); provided, however, that nothing contained herein shall be
construed as prohibiting the Companies from pursuing any other rights and
remedies available for any such breach or threatened breach.
(d) The Employee agrees that upon termination of his employment with
the Company for any reason, the Employee shall forthwith return to the
Company all Confidential Information in whatever form maintained
(including, without limitation, computer discs and other electronic media).
(e) The obligations of the Employee under this Section 8 shall, except
as otherwise provided herein, survive the termination of the Term and the
expiration or termination of this Agreement.
(f) Employee hereby expressly agrees that the foregoing provisions of
this Section 8 shall be binding upon the Employee's heirs, successors and
legal representatives.
9. Restrictive Covenants
---------------------
9.1 During the Term and during the two year period following the end
of the Term for any reason whatsoever (or, if later, the two year period
following termination of the Employee's employment with the Company), the
Employee shall not directly or indirectly (i) induce or attempt to induce any
employee of any of the Companies to leave the employ of any of such Companies,
(ii) hire or cause any other person to hire any employee of any of the Companies
- ------------------------- -------------------------
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8
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or (iii) in any way interfere with the relationship between any of the Companies
and any employee thereof; provided, however, that it shall not constitute a
violation of clause (ii) of this Section 9.1 if (1) Employee is employed by an
employer that receives an unsolicited inquiry regarding employment from an
employee of any of the Companies, (2) such employee is hired by such employer
without Employee's knowledge or involvement for a position in a division or
subsidiary unrelated to the division or subsidiary in which Employee is employed
and/or for which Employee performs services and (3) such employee does not in
fact report to, or work under the direct or indirect supervision of, Employee.
Nothing in this Section 9 shall prohibit the Employee from hiring or causing
another person to hire any former employee of any of the Companies six months or
more following the cessation of such former employee's employment with the
Companies.
10. Death - Permanent Incapacity
----------------------------
10.1 The death of the Employee during the Term shall effect an
immediate fulfillment of this Agreement, in which event all Base Salary and all
Bonus amounts that would have been payable to Employee during the remaining
portion of the Term had the Employee continued his employment with the Company
for such portion of the Term shall be paid to Employee's estate or legal
representatives in a lump sum.
Upon termination of this Agreement by reason of Employee's death,
Employees representative or estate shall have the right and option of requiring
the Company to repurchase up to 75% of the Restricted Stock issued to Employee
as provided in Section 5.3 at the Original Issue Price per share of Restricted
Stock as if Employee had left at the end of the Term as specified in said
Section 5.3.
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10.2 In the event Employee suffers a disability which prevents him
from performing his/her services hereunder (herein called "Disability"), and
such Disability continues for longer than 90 days, Employee shall be deemed to
have suffered a Permanent Incapacity, in which event the Company shall have the
right to terminate this Agreement upon not less than sixty days' notice to
Employee, and this Agreement shall terminate on the date set forth therefor in
said notice.
Upon termination of this Agreement by reason of such Permanent
Incapacity, Employee shall have the right and option of requiring the Company to
repurchase up to 75% of the Restricted Stock issued to Employee as provided in
Section 5.3 at the Original Issue Price per share of Restricted Stock as if
Employee had left at the end of the Term as specified in said Section 5.3.
10.3 In the event there is a dispute between the parties as to whether
or not Employee has suffered a Permanent Incapacity, same shall be determined by
an impartial physician located in the City of New York to be agreed upon by the
parties or, failing agreement by the parties, within 10 days of a written
request by either of the parties to the other, such a physician as may then be
designated by the acting President of the New York Academy of Medicine. If he
fails or is unable to designate such impartial physician, then one designated by
the Chief of Medicine at one of the following hospitals located in New York City
and selected by the Company: (i) New York Hospital, (ii) Columbia Presbyterian
Hospital, (iii) New York University (or Tisch) Hospital, (iv) Mt. Sinai
Hospital, and if no such hospital shall designate such physician, as designated
by the American Arbitration Association. The determination of any such chief of
medicine shall be final and binding upon the parties hereto.
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11. Termination
-----------
11.1 In addition to termination pursuant to Section 10, Employee's
employment hereunder may be terminated for "cause". "Cause" for purposes of this
Agreement shall mean the following:
(A) an indictment for or conviction of the Employee of, or the
entering of a plea of nolo contendere by the Employee with respect to,
having committed a felony involving moral turpitude, (B) abuse of
controlled substances or alcohol (in the case of alcohol abuse, that
has a material adverse affect on Employee's performance of his
obligations under this Agreement), or acts of dishonesty or moral
turpitude by the Employee that are materially detrimental to one or
more of the Companies, (C) acts or omissions by the Employee that the
Employee knew or reasonably should have known would materially damage
the business of one or more of the Companies, (D) negligence by the
Employee in the performance of, or disregard by the Employee of, his
material obligations under this Agreement or otherwise relating to his
employment, which negligence or disregard continue unremedied for a
period of fifteen (15) days after written notice thereof to the
Employee or (E) failure by the Employee to obey the reasonable and
lawful orders and policies of the Board of Directors that are
consistent with the provisions of this Agreement.
11.2 In the event the Company terminates this Agreement and Employee's
employment other than for "cause" or for death or disability, Employee shall be
entitled, in addition to whatever other rights and remedies which may be
available to him, to the following: (i)
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the balance of payments of Base Salary for the remaining portion of the Term, to
be paid at the times they would otherwise have become payable to Employee
pursuant to the terms of this Agreement, (ii) subject to the terms of the
Company's Fiscal 1999 Plan, a full cash bonus payable for the fiscal year, and
(iii) the exercise of the right and option to cause the Company to repurchase
75% of the Restricted Stock as provided in Section 5.3 above. Additionally any
restrictions on the sale of shares of stock previously issued to Employee shall
be deemed inoperative and of no further force and effect subject, however, to
the provisions of applicable law and regulation.
11.3 Employee shall be deemed to have been terminated without cause
if, without Employee's written consent, (i) he is not elected President of the
Company during the Term and is not designated Chief Operating Officer of the
Company during the Term, (ii) his Base Salary is reduced, (iii) he is relocated
in violation of Section 3.1 or (iv) there has been a material diminution in the
Employee's duties or the assignment to Employee of duties which are materially
inconsistent with his duties or which materially impair the Employee's ability
to function as President and Chief Operating Officer of the Company, and such
diminution in duties or assignment to Employee of duties materially inconsistent
with his duties hereunder continues 15 days after the delivery by Employee of
written notice of such events to the Board of Directors of the Company
requesting that such events be cured or corrected.
12. Vacation
--------
12.1 Employee shall be entitled to a vacation of three weeks duration
in the aggregate during the Term at times reasonably agreeable to both Employee
and the Company, it
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being understood that any portion of such vacation not taken during the Term due
to the requirements of the Company shall be paid to Employee in cash at the end
of the Term.
13. Insurance
---------
13.1 In addition to insurance referenced in Section 6.2, Employee
agrees that the Company or any Subsidiary may apply for and secure and/or own
and/or be the beneficiary of insurance on the Employees's life or disability
insurance (in each instance in amounts determined by the Company), and Employee
agrees to cooperate fully in the applying and securing of same, including the
submission to various physical and other examinations and the answering of
questions and furnishing of information as may be required by various insurance
carriers. However, nothing contained herein shall require the Company to obtain
any such life or disability insurance.
14. Miscellaneous
-------------
14.1 This Agreement is being delivered in the State of New York and
shall be construed and enforced in accordance with the laws of such State
applicable to contracts made and fully to be performed therein, and without any
reference to any rules of conflicts of laws.
14.2 Except as may herein otherwise be provided, all notices,
requests, demands and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered personally or if mailed,
first class postage prepaid, registered or certified mail, return receipt
requested, or if sent by telecopier or overnight express delivery service, (a)
to Employee at his address set forth on the signature page hereof or at such
other address as Employee may have notified the Company sent by registered or
certified mail, return receipt requested, or by telecopier or overnight express
delivery service, or (b) if to the Company, at its
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address set forth on the signature page hereof, attention: Chairman of the
Board, or at such other address as the Company may have notified Employee in
writing sent by registered or certified mail, return receipt requested, or by
telecopier or overnight express delivery service. Notice shall be deemed given
(i) upon personal delivery, or (ii) on the date of receipt, when sent prepaid,
in the U.S. mail, return receipt requested, (iii) on the date sent by telecopier
if the addressee has compatible receiving equipment and provided the transmittal
is made on a business day during the hours of 9:00 A.M. to 6:00 P.M. of the
receiving party and if sent on other times, on the immediately succeeding
business day with proof of transmission, or (iv) on the first business day
immediately succeeding delivery to the express overnight carrier for the next
business day delivery.
14.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Each party shall deliver
such further instruments and take such further action as may be reasonably
requested by the other in order to carry out the provisions and purposes of this
Agreement. This Agreement represents the entire understanding of the parties
with reference to the transaction set forth herein and neither this Agreement
nor any provision thereof may be modified, discharged or terminated except by an
agreement in writing signed by the party against whom the enforcement of any
waiver, change, discharge or termination is sought. Any waiver by either party
of a breach of any provision of this Agreement must be in writing and no waiver
of a particular breach shall operate as or be construed as a waiver of any
subsequent breach thereof.
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14.4 "Subsidiaries" or "Subsidiary" shall include and mean any
corporation, partnership or other entity 50% or more of the then issued and
outstanding voting stock is owned directly or indirectly by the Company in the
instance of a Corporation, and 50% or more of the interest in capital or in
profits is owned directly or indirectly by the Company in the instance of a
partnership and/or other entity, or any corporation, partnership, venture or
other entity, the business of which is managed by the Company or any of its
Subsidiaries.
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IN WITNESS WHEREOF, the parties hereto have executed and have caused
this Agreement to be executed as of the day and year first above written.
CENTENNIAL CELLULAR CORP.
By: /s/ Peter W. Chehayl
Title: Vice President
Employee: /s/ Rudy J. Graf
Rudy J. Graf
Title: President & Chief Operating Officer
16
CENTENNIAL CELLULAR CORP. ANNOUNCES RESULTS OF NON-CASH ELECTION
NEW CANAAN, Conn.--(BUSINESS WIRE)--January 7, 1999--Centennial
Cellular Corp. ("Centennial") (Nasdaq National Market:CYCL), a leading
independent cellular provider, today announced the results of the non-cash
election procedures described in the Information Statement/Prospectus, dated
December 8, 1998, and the Non-Cash Election Form, which were first mailed to
Centennial stockholders on December 8, 1998.
To be effective, an election pursuant to the terms set forth in the
Non-Cash Election Form had to be received no later than 5:00 p.m. on January 6,
1999.
Pursuant to the terms of the proposed merger, holders of Class A
Common Stock of Centennial could elect to receive $41.50 in cash or to receive
one common share of the surviving corporation for each of their shares of Class
A Common Stock. Holders of Class A Common Stock who did not make an effective
non-cash election will receive $41.50 in cash for each of their shares upon
consummation of the proposed merger. The election was subject to proration so
that existing holders of Class A Common Stock would receive 736,639 common
shares and the remaining shares would be exchanged for cash upon completion of
the proposed merger between Centennial and CCW Acquisition Corp. Subject to
proper guarantee of delivery, holders of Class A Common Stock elected to receive
approximately 7.9 million shares. As a result, subject to the consummation of
the proposed merger, those stockholders who elected to receive common shares of
the surviving corporation will each receive only approximately 9.3% of their
elected shares. Their remaining shares and shares held by stockholders who did
not make an effective non-cash election will be exchanged for $41.50 in cash per
share upon consummation of the proposed merger.
Any offering of securities in connection with the merger will be made
only by means of a prospectus.
CENTENNIAL CELLULAR CORP. CLOSES MERGER WITH AN AFFILIATE OF WELSH,
CARSON, ANDERSON & STOWE
NEPTUNE, N.J.--(BUSINESS WIRE)--Jan. 7, 1999--Centennial Cellular
Corp. ("Centennial") (Nasdaq National Market-CYCL), a leading independent
cellular provider, announced today the successful closing of the merger of CCW
Acquisition Corp., a company organized at the direction of Welsh, Carson,
Anderson & Stowe ("WCAS"), with and into Centennial.
The acquisition of a 92.9% interest in Centennial by WCAS and its
co-investor, an affiliate of the Blackstone Group, involves an investment of
approximately $580 million in a transaction with a total value of approximately
$1.9 billion.
Thomas E. McInerney, a WCAS general partner, stated, "We are pleased
with the outcome of this transaction for all those involved. We are excited to
be investing in Centennial, a high-quality company led by an outstanding
management team. This investment reflects our view that the communications and
information industries are rapidly converging and that leading providers of
wireless communications services will benefit from increasing subscriber
penetration and growing demand for wireless services."
As previously announced, holders of Class A Common Stock who elected
to receive common shares of the surviving corporation will each receive
approximately 9.3% of the shares with respect to which they made an effective
election. Their remaining shares and shares held by stockholders who did not
make an effective non-cash election will be exchanged for $41.50 in cash per
share. Holders of Class B Common Stock will receive $41.50 in cash per share and
holders of Convertible Preferred Stock and Second Series Convertible Preferred
Stock will receive $41.50 in cash per share on an as-converted basis. Centennial
will also effect a stock dividend of two shares of Class A Common Stock for each
share of Class A Common Stock outstanding as of January 8, 1999.
Centennial also announced that it successfully completed its tender
offers (the "Offers") and consent solicitations with respect to its outstanding
8 7/8% Senior Notes due 2001 (the "8 7/8% Senior Notes") and the Company's
outstanding 10 1/8% Senior Notes due 2005 (the "10 1/8% Senior Notes," and
together with the 8 7/8% Senior Notes, the "Senior Notes"). As of 5 p.m., New
York City time, on January 6, 1999, the expiration date of the Offers,
approximately $248.6 million of $250 million aggregate principal amount of the 8
7/8% Senior Notes had been tendered and approximately $99.8 million of the $100
million aggregate principal amount of the 10 1/8% Senior Notes had been
tendered. Centennial has accepted for payment all Senior Notes validly tendered
and not properly withdrawn pursuant to the Offers.
Centennial acquires, operates and invests in wireless telephone
systems throughout the United States and wireless and wire line telephone
systems in the Commonwealth of Puerto Rico. Centennial's current wireless
telephone interest represent approximately 10.1 million Net Pops.
<PAGE>
Approximately 6.5 million of these Net Pops are represented by Centennial's
wireless telephone systems located in the continental United States, including
approximately 1.1 million Net Pops related to Centennial's minority equity
investments in partnerships owning wireless telephone systems. The balance of
approximately 3.6 million Net Pops represents Centennial's interest in its
wireless telephone systems in Puerto Rico.
WCAS is a private investment firm based in New York and founded in
1979. WCAS currently manages over $8 billion in private equity capital and
focuses primarily on the information services and healthcare industries.
CENTENNIAL CELLULAR CORP. ANNOUNCES 3-FOR-1 STOCK SPLIT
NEPTUNE, N.J.--(BUSINESS WIRE)--January 8, 1999--Centennial Cellular
Corp. (Nasdaq: CYCL) announced today that it will effect a 3-for-1 stock split
of its Class A Common Stock, to be effected by meaning of a stock dividend. The
record date for the 3-for-1 split will be January 8, 1999 and the payment date
has been established as Wednesday, January 13, 1999. The Company has been
advised by Nasdaq that shares will begin to trade ex-dividend (i.e., the seller,
rather than the buyer, of traded shares will be entitled to the stock dividend)
on Thursday, January 14, 1999.
Centennial acquires, operates and invests in wireless telephone
systems throughout the United States and wireless and wire line telephone
systems in the Commonwealth of Puerto Rico. Centennial's current wireless
telephone interest represent approximately 10.1 million Net Pops. Approximately
6.5 million of these Net Pops are represented by Centennial's wireless telephone
systems located in the continental United States, including approximately 1.1
million Net Pops related to Centennial's minority equity investments in
partnerships owning wireless telephone systems. The balance of approximately 3.6
million Net Pops represents Centennial's interest in its wireless telephone
systems in Puerto Rico.
